text:
    COMMONWEALTH v. Bobby Ray KINES
    17-P-1531
    Appeals Court of Massachusetts.
    Entered: November 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Also known as Bobby Hall.

   Bobby Ray Kines appeals from the order denying his second postconviction motion for access to evidence and forensic testing, and from the order denying his amended motion for postconviction discovery, both pursuant to G. L. c. 278A. We affirm.

Background. Kines was previously convicted of rape, armed robbery, and three counts of kidnapping. , Pursuant to Kines's first motion for forensic testing in 2014, a judge ordered that deoxyribonucleic acid (DNA) testing be conducted on two cigarette butts that were located in the ashtray of the van where the rape occurred. The results indicated that the DNA from the cigarette butts came from an unknown male, excluding Kines as a possible contributor. Kines's current appeal concerns his second motion made under G. L. c. 278A where he asked for additional DNA testing on the same cigarette butts, specifically for a DNA phenotype snapshot report and composite profile, as well as an amended motion for postconviction discovery of numerous documents. In the second c. 278A motion, Kines claimed that additional DNA testing from the cigarette butts would result in evidence that is material to the perpetrator's identification due to the inconsistent descriptions of the suspect made by the victims. A different judge denied Kines's motions without a hearing as well as his motions for reconsideration, citing largely the reasons in the Commonwealth's opposition for the denials. This appeal followed.

Discussion. 1. Standard of review. We consider de novo the question whether Kines's motion and supporting affidavits meet the requirements of G. L. c. 278A, § 3. Commonwealth v. Wade, 467 Mass. 496, 506 (2014). In order to obtain a hearing under G. L. c. 278A, § 3, a defendant's motion must meet "the preliminary criteria set forth in G. L. c. 278A, § 3." Wade, supra at 501. See Commonwealth v. Clark, 472 Mass. 120, 123 (2015). These preliminary criteria include information outlined in G. L. c. 278A, § 3 (b ). Wade, supra at 502. See G. L. c. 278A, § 3 (b ) (1)-(5). A defendant "is only required 'to point to the existence of specific information that satisfies the statutory requirements' and need not make an evidentiary showing by a preponderance of the evidence" (citation omitted). Clark, 472 Mass. at 130. Kines argues that he has met the criteria through his motion and supporting documents. We disagree because there is no "information demonstrating that the analysis has the potential to result in evidence that is material to the moving party's identification as the perpetrator of the crime in the underlying case." G. L. c. 278A, § 3 (b) (4).

2. Analysis. In deciding whether Kines has met his threshold burden under G. L. c. 278A, § 3 (b ) (4), "it is necessary to consider only whether the test results could be material to the question of the identity of the person who committed the criminal act of which the moving party was convicted." Wade, 467 Mass. at 508. Kines is not required to "establish a 'reasonable probability of a more favorable result at trial' " had the testing been conducted, id. at 507 ; rather, "the critical inquiry is whether such testing has the 'potential' to result in material identification evidence." Commonwealth v. Lyons, 89 Mass. App. Ct. 485, 495 (2016). See Wade, supra ("what is relevant is that the DNA testing has the potential to produce a result that is material to [a defendant's] identification as the perpetrator of the rape").

Here, Kines argues that the victims initially identified the perpetrator as a male with "medium complexion," but later described a male with "dark complexion." Where the defendant is of dark complexion, he believes that DNA phenotyping on the cigarette butts will have the potential to identify a third-party perpetrator by creating a profile that shows the medium complexion of the DNA contributor on the cigarette butts. Any test results from the cigarette butts, however, would not be material to the question of the identity of the person who committed the rape because there is no factual connection between these cigarette butts and the crime. There is nothing in the record that suggests that the perpetrator smoked cigarettes -- let alone on the night of the crime -- and none of the victims testified that the perpetrator was smoking in the van. Indeed, the evidence carried even less weight because the van was stolen, which could reasonably explain why another male's DNA was found on the cigarette butts.

Kines also failed to provide an affidavit of "someone with 'personal knowledge of the factual basis of the motion.' " Id. at 502, quoting G. L. c. 278A, § 3 (b ). Kines claims that the additional testing he is seeking will help identify the pigmentation of the complexion of a third-party perpetrator, but provides no expert affidavit that such testing will be able to determine this. Compare Clark, 472 Mass. at 132-133 (defendant submitted affidavit from doctor that DNA testing, of kind requested, on knife used during the crime could reveal biological material from perpetrator).

In conclusion, in the absence of any reason to believe that the perpetrator used the cigarette butts on the night of the crime, Kines failed to show that the requested "analysis has the potential to result in evidence that is material to the moving party's identification as the perpetrator of the crime." G. L. c. 278A, § 3 (b ) (4). See Clark, 472 Mass. at 127-128. Kines's motion was properly denied without a hearing. See G. L. c. 278A, § 3 (e ).

As to Kines's amended motion for discovery pursuant to G. L. c. 278A, § 7, we agree with the Commonwealth's position that the items sought do not fall within the purview of G. L. c. 278A, as these documents cannot be subjected to analysis.

Posttrial orders dated August 4, 2017, affirmed.

      The armed robbery conviction subsequently was dismissed.

      The facts surrounding these crimes are summarized in Commonwealth v. Kines, 5 Mass. App. Ct. 632, 632-634 (1977), cert. denied, 434 U.S. 1076 (1978). For purposes of this appeal, the panel need not recite those facts.

      Where DNA testing has already been conducted on these cigarette butts, excluding Kines as a contributor, his due process argument is without merit.

      Because the judge denied Kines's motion without a hearing, she was not required to make findings of fact and conclusions of law. See G. L. c. 278A, § 7 (a ). Accordingly, the defendant's argument concerning the judge's failure to make such findings is without merit.

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


source: Caselaw Access Project

license: Public Domain

text:
    Candace-Jabril S. AFRICA v. Gregory S. BEDARD & others.
    18-P-94
    Appeals Court of Massachusetts.
    Entered: November 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Jose A. Rosario, Deborah Reyes, Stacey Sparks, and Donald J. Hager. All defendants are sued in their individual and official capacities.

   The plaintiff, an inmate in the custody of the Massachusetts Department of Correction (department), appeals from an order denying her motion for relief from judgment, Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974) ( rule 60 [b] [6] ). We affirm.

Background. We summarize the relevant allegations in the complaint. The plaintiff self-identifies as a transsexual woman; she has been diagnosed with mental illnesses, including extreme gender dysphoria and gender identity disorder. Since April 15, 2013, the plaintiff has been permitted by the department to wear a hijab as part of her observance of the Baha'i faith. She also adheres to a kosher diet.

In September, 2015, the plaintiff was housed at the Souza-Baranowski Correctional Center (SBCC) in a special management unit known as the secure treatment program (STP). At that time, Gregory S. Bedard was employed by the department as a consultant to the SBCC director of discipline. Jose A. Rosario was a correction officer. Deborah Reyes and Stacey Sparks were mental health professionals who were part of a "triage team" that was treating the plaintiff. Donald J. Hager was the director of SBCC's mental health services.

On August 31, 2015, the plaintiff attempted suicide. On September 21, 2015, Sparks placed the plaintiff on a mental health "crisis watch" for four days. The plaintiff was strip searched before being transported. When she refused to remove her hijab, Rosario issued a disciplinary report without going through the chain of command. Thereafter, the plaintiff was placed alone in a cell that was monitored by a department employee and illuminated twenty-four hours per day, which caused the plaintiff discomfort. She required a "C-PAP machine" for obstructive sleep apnea, but, pursuant to the department's policy, the machine's power cord was not permitted in the plaintiff's cell because it could be used for self-injury. According to the complaint, the defendants knew of the plaintiff's medical issues and allowed the plaintiff to suffer in the cell.

On October 30, 2015, the plaintiff, acting pro se, filed a verified complaint in which she alleged that the defendants conspired to deny her due process of law by (1) suspending her ability to file grievances, and (2) committing her to crisis watch without access to writing instruments. The plaintiff also alleged that the forced removal of her hijab violated her constitutional right to the free exercise of religion, and that her confinement violated her right to be free from cruel and unusual punishment. The plaintiff sought (1) relief pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 2000cc-1, and G. L. c. 12, § 11I ; (2) compensatory damages of $75,000 per count; (3) punitive damages of $50,000 per count; and (4) a jury trial as to all issues.

All of the defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The judge allowed the motions, concluding that the claims were conclusory and did not state grounds for relief. A judgment dismissing the plaintiff's complaint entered. Nearly one year later, the plaintiff sought leave to file a late notice of appeal. After that motion was denied, the plaintiff moved for relief from the judgment pursuant to rule 60 (b) (6), arguing that the judge, sua sponte, should have allowed her to amend the complaint. The judge denied the rule 60 (b) (6) motion, reasoning that (1) it "does not articulate a basis to amend or any theory on which plaintiff wishes or has a right to proceed," and (2) "[t]he Court may not give legal advice to a litigant or sua sponte suggest a cause of action or procedural tactic for a pro se litigant."

Discussion. The plaintiff makes no argument on appeal regarding the denial of the rule 60 (b) (6) motion. Instead, she claims error in the underlying judgment of dismissal and asserts that counsel should have been appointed for her. It is well settled that rule 60 (b) does not provide a substitute for the normal appellate process. See Jones v. Boykan, 464 Mass. 285, 291 (2013) ; Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987). Indeed, "the appeal of an order denying relief under rule 60 (b) raises only the correctness of that denial, and the appellant may not attack the underlying judgment on a ground that she might have raised had she appealed." Care & Protection of Georgette, 54 Mass. App. Ct. 778, 788 n.15 (2002), S.C., 439 Mass. 28 (2003).

Although we need not pass on issues not argued in the brief, see Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), we consider whether the judge abused his discretion in denying the rule 60 (b) (6) motion. See Parrell v. Keenan, 389 Mass. 809, 815 (1983) ("A motion pursuant to rule 60 [b] [6] is addressed to the discretion of the judge"). When determining whether 60 (b) (6) relief is warranted, we assess "whether the moving party has a meritorious claim or defense ... whether extraordinary circumstances warrant relief ... and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion." Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 346 (2010), quoting Owens v. Mukendi, 448 Mass. 66, 72 (2006). Here, where the plaintiff failed to attach a proposed amended complaint to the rule 60 (b) (6) motion, we cannot say that the judge abused his discretion in concluding that the plaintiff did not have a meritorious claim. He was not required to rely on the plaintiff's bare assertion that she would allege "excessive use of force and denial of medical care in violation of article 26 and the 8th Amendment."

Moreover, the judge properly concluded that the plaintiff's indigence, lack of legal training, and claimed need for time to investigate the facts were not "extraordinary circumstances" justifying relief under the rule. Contrast Parrell v. Keenan, 389 Mass. at 816 (relief appropriate where release and agreement for judgment were not executed by plaintiff or with her authority); Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. at 348 (relief appropriate where plaintiffs "alleged an extraordinary fraud that touched every part of [the defendant's] case against them and resulted in a huge verdict"). Finally, although he did not address the issue, the judge could have concluded that any prejudice resulting from the denial of the plaintiff's rule 60 (b) (6) motion "is offset by the system's important interest in finality." Owens v. Mukendi, 448 Mass. at 76.

In short, because the plaintiff "essentially used rule 60 (b) as a means of appeal when no extraordinary circumstances existed to justify relief under the rule," Jones v. Boykan, 464 Mass. at 291-292, the denial of the motion for relief from the judgment was not an abuse of discretion or other error.

Order entered November 7, 2017, denying motion for relief from judgment affirmed.

      The plaintiff was subsequently transferred to the Massachusetts Correctional Institution at Norfolk.

      The complaint does not explain the term C-PAP machine.

      The plaintiff did not appeal from the order denying her motion to file a late notice of appeal.

      We decline to address the plaintiff's argument that counsel should have been appointed because that issue was not raised in the Superior Court. See Trustees of the Stigmatine Fathers,Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976) ("An issue cannot be raised for the first time before this court").


text:
    S.B. v. D.G.
    18-P-164
    Appeals Court of Massachusetts.
    Entered: November 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The former husband, D.G. (father), filed a complaint for modification of the divorce judgment in May of 2015, seeking a reduction in child support and an adjustment regarding his contribution to the children's college expenses. The father and the former wife, S.B. (mother), have four children. The college expenses at issue were incurred in connection with the third oldest child's (daughter) enrollment at Salve Regina University. Following trial, a judge of the Probate and Family Court reduced the child support order as a result of another child's emancipation. However, the judge declined the father's request to adjust his financial obligations toward the daughter's college expenses, and entered a judgment of modification requiring the parties to share the cost of the daughter's college education with the father paying thirty-six per cent and the mother paying sixty-seven per cent retroactive to the 2014-2015 school year. On appeal, the father contends that the judge abused her discretion by ordering him to pay educational expenses that were incurred prior to the date he filed his complaint for modification. We affirm.

We summarize the facts found by the judge, all of which are supported by the record. The parties executed a separation agreement on January 23, 2014 (agreement), incorporated but not merged in the judgment of divorce nisi, except for provisions relating to the children. Relevant here is exhibit D to the agreement, which pertains to the parties' obligations relating to the children's postsecondary education. The provisions state in relevant part as follows:

"3. If the costs and expenses associated with the child's college education are not covered by financial aid or loans, each party will contribute, in a percentage calculated according to their respective incomes, to said educational costs and expenses; including, but not limited to tuition, fees, books, meal plan, dormitory costs and school supplies.
"4. The [h]usband and [w]ife shall exchange financial information at the time that the child makes application to college in order to determine the respective financial obligations of the parents and will cooperate fully with the completion of the annual FAFSA application.
...
"6. The within [e]xhibit and obligations as set forth within, apply also to the costs of college testing, applications and any further related costs associated with said preparation for college."

The daughter began attending Salve Regina in the fall of 2014, and was in her junior year at the time of the trial. At that point, the mother had paid all of the daughter's college expenses, totaling approximately $25,000. After the trial, at which both parties testified, the judge found that the father failed to meet his burden of showing that "a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children." G. L. c. 208, § 28.

In reaching her conclusion, the judge rejected the father's argument that he should not be required to contribute to the daughter's college expenses, as required by the agreement, because he did not know that she was attending a private university. The judge found this claim not credible in light of the father's admission that he had paid for one-half of the daughter's $700 enrollment fee and had contributed to the cost of books and athletic fees. The judge also rejected the father's assertion that the mother had failed to provide him with information regarding the daughter's expenses and correctly observed: "Father's obligation to contribute to the children's college expenses is not contingent upon such notification." The judge then calculated the father's share of the cost of the daughter's college education in accordance with the contribution formula contained in the parties' agreement and ordered the father to pay thirty-six per cent of the daughter's college expenses commencing with the 2014-2015 school year and continuing until the daughter's graduation. The father also was required to reimburse the mother for his share of expenses (thirty-six per cent) incurred between the fall of 2014 and the fall of 2016.

We discern no error of law or abuse of discretion. The judge's findings were more than adequate to support her conclusion that no material and substantial change warranting a modification to the parties' agreement pertaining to payment of college expenses had occurred. The judge properly focused on the provision set forth in exhibit D to the parties' agreement in which the "parties agreed to a certain allocation of college expenses between them at the time of their divorce." As noted, the agreement states: "[E]ach party will contribute, in a percentage calculated according to their respective incomes, to said educational costs and expenses." Based on the financial information presented during trial, the judge properly calculated the parties' proportional shares, concluding that the father's share amounted to thirty-six per cent of the expenses.

Furthermore, we discern no merit to the father's assertion that the modification judgment amounts to a retroactive child support order. The judge had the equitable authority to order him to reimburse the mother for thirty-six per cent of the costs the mother previously paid in educational expenses. See Calabria v. Calabria, 91 Mass. App. Ct. 763, 766 (2017) ("giving effect to the parties' agreement where it operates to increase support payments in the manner agreed by the parties, and where it is in the best interest of the child [as the judge here found], is consistent with the articulated public policy of the Commonwealth that dependent children shall be maintained, as completely as possible, from the resources of their parents" [quotation omitted] ).

Modification judgment dated March 21, 2017, affirmed.

      At the time of the divorce in January of 2014, three children were unemancipated.

      The mother has not filed a responsive brief. In reaching our conclusions in this case we have not considered the mother's letter filed with this court on May 16, 2018. As a result, we take no action on the husband's motion to strike the letter.

      "A trial court's findings of fact will be upheld unless shown to be clearly erroneous." Rosen v. Rosen, 90 Mass. App. Ct. 677, 692 (2016), quoting Martin v. Martin, 70 Mass. App. Ct. 547, 548-549 (2007). See Mass. R. Dom. Rel. P. 52 (a).

      The judge had before her the parties' current financial statements, and each party's 2015 Form W-2 and individual tax returns.

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


text:
    Anthony CLEMENTE v. DEPARTMENT OF CORRECTION.
    17-P-1341
    Appeals Court of Massachusetts.
    Entered: November 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Anthony Clemente, a prisoner in custody at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk or prison), appeals from a judgment dismissing his complaint. Clemente's complaint seeks equitable relief -- an injunction requiring the defendant Department of Correction (department) to allow him to receive back his Koss headphones, in prison, if he sends them out to be repaired pursuant to their lifetime warranty. Because there is no legal theory that would allow Clemente the relief he seeks, we affirm.

As alleged, Clemente purchased a pair of Koss headphones on some date prior to 2014 "due to their high quality and lifetime warranty." When Clemente purchased the headphones, and until 2014, MCI-Norfolk allowed prisoners to send damaged headphones to the manufacturer for repair or replacement; the manufacturer would then return the repaired or replaced headphones "to the inmates [for entry] back on their Property Inventory sheets." In October of 2014 the prison changed its policy and issued a memorandum stating that "effective immediately inmates will no longer be allowed to receive Koss headphones back from repair"; instead, the prisoner "may opt to have the repaired headphones sent from Koss directly to a 'civilian party.' "

Clemente filed this suit in November of 2015, charging, in essence, that the department "broke [its] promise" by changing its Koss headphones return policy and that, therefore, the prison was estopped from carrying out the new policy. The department moved, under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), to dismiss for failure to state a claim. A Superior Court judge allowed that motion, essentially on the ground that a claim for promissory estoppel does not lie against a governmental agency, such as the department, in these circumstances. See Ridgeley Mgt. Corp. v. Planning Bd. of Gosnold, 82 Mass. App. Ct. 793, 801-802 (2012) ("The courts cannot estop the conduct of a governmental ... agency ... because the public interest in the lawful work of the governmental actor overrides the unfairness or injury to the private complainant").

"We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true "the factual allegations in the plaintiff['s] complaint, as well as any favorable inferences reasonably drawn from them." Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). "What is required at the pleading stage are factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

Clemente's lawsuit suffers from multiple fatal defects, and thus fails as a matter of law. At bottom, the suit seeks specific performance in equity of an implied promise -- not an express promise -- allegedly made by a State agency. Clemente claims that this implied promise arose because the State agency historically had followed a particular policy with respect to the handling of inmate property -- that is, the Koss headphones. The injunction Clemente seeks would tie the prison's hands with respect to headphones purchased prior to the policy change. Not surprisingly, Clemente cites no case that supports the granting of equitable relief in such circumstances.

There are sound and longstanding reasons that such equitable relief is not available. We pass the point that it is the rare case where any kind of estoppel can lie against the government, see Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 30-31 (2006), as we need not rest our decision on that ground. Equally fundamental is that a claim in equity for specific performance must show the lack of an adequate remedy at law, and that "a substantial right of the plaintiff will be impaired to a material degree." Kenyon v. Chicopee, 320 Mass. 528, 534 (1946). A judge will also consider whether an injunction is, on balance, in the public interest. Cf. Dunigan Enters., Inc. v. District Attorney for the N. Dist., 11 Mass. App. Ct. 254, 257 (1981) (upholding decision denying injunction against government, and noting that such power should be "exercised sparingly"). Compare Water Keeper Alliance v. United States Dep't of Defense, 271 F.3d 21, 34 (1st Cir. 2001).

Clemente's claim evidences none of these features. He complains that due to the change in prison policy the warranty on his headphones is not as valuable, because the headphones must be returned to a "civilian" outside of the prison, rather than returned to him. Even assuming that such a claim can meet the requirements of promissory estoppel (a proposition as to which we have considerable doubt), it is a claim that can be quantified in money damages, not a claim to be remedied in equity. And perhaps more importantly, the claim seeks to have the courts directly interfere in prison policy with respect to the handling of prisoner property, and such policies are a matter of prison safety as to which prison officials have broad discretion. See Rasheed v. Commissioner of Correction, 446 Mass. 463, 476 (2006) (prison officials have "broad statutory authority" to implement security measures). Clemente's complaint provides no basis for such an interference with the public interest.

No error appearing, the judgment is affirmed. The December 2, 2016, order denying Clemente's reconsideration motion is also affirmed.

So ordered.

Affirmed

      He also appeals from an order denying reconsideration.

      On July 6, 2016, Clemente filed a motion to amend his complaint, attaching a copy of his proposed amended complaint. Clemente did not serve this motion on the department and a judge denied it without prejudice to renewal. Clemente did not renew his motion. Clemente's operative complaint thus is his originally filed complaint. Nonetheless, for present purposes we will take our factual recitation from Clemente's proposed amended complaint, and our decision applies to the claims as stated in the amended complaint as well as the original complaint.

      Cf. Rhode Island Hosp. Trust Nat'l Bank v. Varadian, 419 Mass. 841, 848 (1995) (essential elements of promissory estoppel claim include unambiguous promise and reasonable reliance on promise).

      As the judge observed, the prison's new policy specifically "permits [Clemente] to direct the manufacturer to ship the headphones to a third-party civilian address."

      The fact that other correctional facilities have different policies does not alter this analysis. Similarly, nothing in Clemente's motion for relief from judgment alters the analysis.


text:
    COMMONWEALTH v. Hugo R. BACCARIN.
    18-P-166
    Appeals Court of Massachusetts.
    Entered: November 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Hugo R. Baccarin, appeals from an order denying his motion to withdraw guilty pleas. His motion advanced the claim that "there was an insufficient factual basis to support" his guilty pleas. We discern no abuse of discretion or error of law in the judge's decision. We therefore affirm.

Background. In May, 2017, Baccarin pleaded guilty to assault and battery on a family or household member and vandalism. During the plea hearing, the prosecutor summarized the facts that supported the charges. The judge was informed that Baccarin punched his girl friend in the stomach, pushed her, and punched her in the back. The prosecutor also stated that Baccarin broke a door frame at the residence. Baccarin agreed that the facts recited by the prosecutor were true.

Approximately six months after pleading guilty, Baccarin filed a motion seeking to withdraw his guilty pleas. He claimed that his guilty pleas were invalid because there was no factual basis that he had committed an assault and battery on a family or household member or that he injured property of another, contrary to the requirements of Commonwealth v. Hart, 467 Mass. 322, 325-326 (2014). After a hearing before the same judge who accepted the defendant's guilty pleas, the motion was denied. The judge concluded that "[t]he information obtained by the court in the course of the plea hearing was sufficient to support the charges to which the defendant pled."

Discussion. 1. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). We review the motion judge's conclusion for abuse of discretion or error of law. See Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015).

"A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). We grant "substantial deference" to a decision on a new trial "when the judge passing on the motion is the same judge who heard the plea." Commonwealth v. Grant, 426 Mass. 667, 672 (1998), S.C., 440 Mass. 1001 (2003).

2. Denial of motion. A judge may accept a plea of guilty only if it is voluntarily and intelligently made, and "there are sufficient facts on the record to establish each element of the offense." Hart, 467 Mass. at 325, quoting Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986). A trial judge "is not required to determine whether the defendant is or is not guilty of the offense charged, but [s]he need determine only whether the evidence which [s]he had heard, plus any information [s]he has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty." Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987).

General Laws c. 265, § 13M (a ), provides: "Whoever commits an assault or assault and battery on a family or household member shall be punished ...." Subsection (c ) (iii) of § 13M, the relevant subsection here, provides that " 'family or household member' shall mean persons who (iii) are or have been in a substantive dating or engagement relationship." In determining whether the parties are in a substantive dating relationship § 13M (c) (iii) instructs that "the trier of fact shall determine whether a relationship is substantive by considering the following factors: the length of time of the relationship; the type of relationship; the frequency of interaction between the parties; whether the relationship was terminated by either person; and the length of time elapsed since the termination of the relationship." The factors enumerated in § 13M (c ) (iii) are not elements of the offense of assault and battery on a family or household member. Therefore, the Commonwealth need not present evidence as to each of the factors and does not have to prove any one of the factors beyond a reasonable doubt. See Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7 (2016). Here, the judge heard that the victim was Baccarin's girl friend. This fact taken in conjunction with the judge's review of the impact statement, the discussions surrounding Baccarin's plea, and any reasonable inferences drawn from all the facts allowed the judge to determine that the victim qualified as a "family or household member."

We see no abuse of discretion or error of law in the judge's exercise of her "separate and independent duty ... to determine that a sufficient factual basis exist[ed] for the charge[s]" to which the defendant pleaded guilty. Hart, 467 Mass. at 325. As such, the motion judge properly denied the motion to withdraw guilty pleas.

Order denying motion to withdraw guilty pleas affirmed.

      At oral argument, the defendant conceded that the facts presented at the plea hearing were sufficient to support the charge of vandalism. Therefore, we need not address that claim.


text:
    Candace Shekinah AFRICA v. Jean E. PARENT & others.
    18-P-521
    Appeals Court of Massachusetts.
    Entered: November 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Michelle A. Rochette, Jason R. Chicoine, and Alicia Cote-Levanti. All defendants are sued in their individual capacities only.

   The plaintiff, an inmate in the custody of the Department of Correction (DOC), appeals from the dismissal of her complaint for failure to prosecute, Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). We affirm.

Background. On March 7, 2017, the plaintiff filed a pro se complaint alleging that the correction officer defendants violated her civil rights when they used excessive force in removing the plaintiff from her cell on February 22, 2014. After the incident, the plaintiff allegedly reported pain in her wrist, hand, ribs, and eye to defendant Alicia Cote-Levanti, a registered nurse employed by a private company with which the DOC contracts to provide medical services to inmates. According to the complaint, Cote-Levanti examined the plaintiff in cursory fashion and ignored her reports of injury. A subsequent X-ray showed the plaintiff had a fractured finger. The complaint sought damages for the defendants' violations of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.

On June 29, 2017, the correction officer defendants moved to dismiss the complaint on the ground of improper venue. On July 24, 2017, Cote-Levanti moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Among other grounds, Cote-Levanti asserted that the case was time-barred under the applicable statute of limitations. On November 13, 2017, Cote-Levanti served the plaintiff with a motion to dismiss for failure to prosecute, because the plaintiff had not responded to her motion to dismiss. The motion was docketed on November 14, 2017, and allowed on November 21, 2017, by margin endorsement. On November 24, 2017, the remaining defendants filed a motion to dismiss for failure to prosecute, because the plaintiff had not responded to their motion to dismiss. On November 27, 2017, their motion was allowed by a similar margin endorsement. This appeal followed the judgment of dismissal.

Discussion. "On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court." Mass. R. Civ. P. 41 (b) (2). We review a judge's decision to allow a rule 41 (b) (2) motion for an abuse of discretion, Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986), which we will not find unless "we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Before an action may be dismissed pursuant to rule 41 (b) (2), a judge must consider (1) whether there is "convincing evidence of unreasonable conduct or delay," (2) "the prejudice that the movant would incur if the motion were denied," and (3) "whether there are more suitable, alternative penalties." Monahan v. Washburn, 400 Mass. 126, 128-129 (1987). Here, the judge's margin endorsements did not refer to these considerations. Rather, the orders simply stated that the motions were allowed "for the good and sufficient reasons herein" -- that is, because the plaintiff had taken no action on the case for over four months since the motions to dismiss were filed.

Even assuming, without deciding, that the judge's allowance of the rule 41 (b) (2) motions without explicit consideration of the Monahan factors constituted an abuse of discretion, we discern no error in the orders of dismissal because the plaintiff's claims were time-barred. See Viriyahiranpaiboon v. Department of State Police, 52 Mass. App. Ct. 843, 847 (2001) (reversal on procedural grounds not required where plaintiff is not entitled to relief as matter of law). The plaintiff's personal injury and civil rights claims are subject to a three-year statute of limitations. See G. L. c. 260, §§ 2A, 5B. As alleged in the complaint, the plaintiff was injured on February 22 and 23, 2014, when the defendants used excessive force to remove her from her cell and denied her proper medical care. Therefore, she was required to file her complaint by February 24, 2017, at the latest. Her complaint, filed on March 7, 2017, was too late.

Although the complaint states that it was placed in the prison's institutional mailbox on February 10, 2017, and cites to the so-called "prison mailbox rule" as it is explained in Grady v. United States, 269 F.3d 913, 916 (8th Cir. 2001) ("In its original form, the prison mailbox rule deemed a pro se prisoner's notice of appeal 'filed' at the moment he delivered it to the warden"), the plaintiff made no argument in the Superior Court, or on appeal, that the prison mailbox rule makes her complaint timely. See id. at 916-917 (inmate "bears the ultimate burden of proving [ ] entitlement to benefit from the rule"). We decline to address the issue here because it has not been argued in the plaintiff's brief, see Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), and because there is no evidence that the complaint was sent by certified or registered mail as required by Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982).

Judgment affirmed.

      Parent, Rochette, and Chicoine.

      The judge wrote, "Upon review of the submissions and the docket, allowed for the good and sufficient reasons herein."

      The judge wrote, "Allowed without opposition for the good and sufficient reasons herein."

      It is not clear from the materials before us whether the judgment dismissing the plaintiff's action against the correction officer defendants also dismissed the action against Cote-Levanti, whether there was a separate judgment as to her, or whether no judgment has entered regarding her. The possibility that no final judgment has yet entered for Cote-Levanti does not deter us from addressing the order of dismissal as to her, where the issues raised are virtually the same as with the other defendants. We anticipate that after receipt of the rescript for this appeal, the trial court will enter any additional judgment needed.


text:
    COMMONWEALTH v. John RYDER.
    17-P-911
    Appeals Court of Massachusetts.
    Entered: November 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of aggravated rape of a child, of rape of a child by force, and on four indictments charging indecent assault and battery on a child under fourteen. On appeal he contends the judge admitted improper first complaint evidence, gave defective first complaint instructions, and wrongly permitted the prosecutor to read aloud from the victim's hospital records. We affirm.

Discussion. 1. First complaint evidence. The defendant argues that the judge erroneously allowed Detective Michael Donovan, who investigated Estelle's allegations that the defendant sexually assaulted her, to testify as an additional fresh complaint witness. Specifically, the defendant argues that Donovan should not have been permitted to explain the SAIN interview process, to testify that he received sexual assault investigation training, to refer to Estelle as the "victim," and to testify that child interview specialists are trained "[t]o make sure the victim is telling the truth."

The first complaint doctrine generally allows only the sexual assault complainant and the recipient of the first complaint to testify about the substance and circumstances of the first complaint. See Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert. denied, 546 U.S. 1216 (2006). However, "the admission of multiple reports of a victim's allegations of rape is permissible where the evidence serves an independent purpose and is necessary to present a fair and accurate picture of the Commonwealth's case." Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009). Moreover, when the defendant is the first to introduce statements exceeding the scope of the first complaint doctrine to pursue a defense that the victim fabricated the allegations, the prosecution may "explore the contents and the context of the statements in more detail," Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278 (2014), and present evidence to "rebut questions raised by the defendant." Commonwealth v. Kebreau, 454 Mass. 287, 298-299 (2009). Testimony regarding a police investigation is also admissible for "the independent purpose[ ] of providing background information." Commonwealth v. McCoy, 456 Mass. 838, 847 (2010). "We review the admission of first complaint testimony for abuse of discretion." Torres, 86 Mass. App. Ct. at 277.

a. The SAIN interview process. Over the defendant's objection on relevance grounds, Donovan described the purpose of a SAIN interview, how it is conducted, and the individuals present. Donovan also testified that he was present for Estelle's two SAIN interviews, that both followed proper protocols, and that the second interview was conducted to clear up an uncertainty in Estelle's account.

The judge did not abuse her discretion by admitting this testimony. In his opening statement, defense counsel introduced the fact that Estelle gave two separate SAIN interviews with significant discrepancies: "If the truth was being told, these discrepancies simply would not exist." When cross-examining Estelle, defense counsel attempted to impeach her credibility by emphasizing these inconsistencies.

By using the substance of Estelle's SAIN interviews to impeach her credibility, the defendant opened the door for the Commonwealth to "explore the contents and the context of the statements in more detail." Torres, 86 Mass. App. Ct. at 278. See Kebreau, 454 Mass. at 298-299. The Commonwealth properly rebutted the defendant's theory that Estelle fabricated her allegations with Donovan's explanation of why the prosecution team reinterviewed her: to clear up a discrepancy. See id.

b. References to the "victim." The defendant next contends that Donovan's references to Estelle as the "victim" on direct examination amounted to reversible error. Because the defendant did not object, we review for "a substantial risk of a miscarriage of justice." McCoy, 456 Mass. at 850. "A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result of the trial might have been different had the error not been made" (quotation omitted). Id.

While the better practice is to refer to the complainant as the "alleged victim," Donovan's references to Estelle as the "victim" did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Cadet, 473 Mass. 173, 181 (2015) ; Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 947 (1992). Donovan referred to Estelle as the victim only a handful of times; his use of the term was not as pervasive as the prosecutor's references to the victim "throughout the trial and in his closing argument" in Cadet, 473 Mass. at 180-181, which were held not to create a substantial risk of a miscarriage of justice. "We assume 'a certain degree of jury sophistication,' Commonwealth v. Kozec, 399 Mass. 514, 517 (1987), and do not think it likely that the jury were swayed by the repeated references to the 'victim.' " Id. at 181.

c. Implicit vouching. The defendant contends for the first time on appeal that the judge improperly allowed Donovan to testify that SAIN interviewers are trained to ask nonleading questions "[t]o make sure that the victim is telling the truth." "[I]t is improper to ask a witness at trial to assess the credibility of other witnesses' testimony." Torres, 86 Mass. App. Ct. at 280, quoting Commonwealth v. Colon, 64 Mass. App. Ct. 303, 306 (2005). Furthermore, testimony suggesting that government officials believed the victim's allegations is inadmissible. Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). Commonwealth v. Revells, 78 Mass. App. Ct. 492, 498-499 (2010).

Donovan's statement would have permitted the jury to infer that government officials believed Estelle's allegations because the SAIN interview process ensured accurate testimony. This testimony impermissibly "create[d] the imprimatur of official belief in the complainant." Stuckich, 450 Mass. at 457. To the extent Donovan's statement was offered to explain the SAIN interview process, it had little, if any, probative value and should not have been admitted. Compare Kebreau, 454 Mass. at 298-299 ; Torres, 86 Mass. App. Ct. at 277-278.

Nonetheless, we do not discern a substantial risk of a miscarriage of justice. The Commonwealth presented ample evidence for the jury to evaluate Estelle's credibility: she testified about the assaults, her friend Jim (a pseudonym) testified as the first complaint witness, and Estelle's mother and brother testified as well. The defendant thoroughly cross-examined Estelle regarding inconsistencies between her trial testimony, her two SAIN interviews, and her statements to hospital staff. "[I]n the context of the entire trial," McCoy, 456 Mass. at 850, Donovan's remark was a passing reference unlikely to have materially affected the outcome. See Kebreau, 454 Mass. at 298 ; Revells, 78 Mass. App. Ct. at 498.

2. Jury instruction. The defendant also argues that the judge's erroneous omission of a sentence from the first complaint jury instructions required by King, 445 Mass. at 247, created a substantial risk of a miscarriage of justice. "[I]n determining whether a jury instruction is defective, we view the charge in its entirety and consider how it likely would have been interpreted by a reasonable juror in the over-all context of the instructions" (quotation omitted). Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 804 (2011). "We presume that the jury followed the judge's proper instructions in assessing the first complaint testimony." Commonwealth v. Lewis, 91 Mass. App. Ct. 651, 664 (2017).

Prior to the testimony of the first complaint witness, Jim, the judge instructed the jury substantially in accordance with King. However, after stating "You may consider this testimony ... about the first complaint for specific limited purposes," the judge omitted the following sentence: "You may not consider this testimony as evidence that the assault in fact occurred." King, 445 Mass. at 247-248. During the final jury charge, the judge repeated the instruction mandated by King, this time including the previously omitted language. At no time did the defendant object to the instructions.

The judge should have instructed the jury prior to Jim's testimony not to use his testimony as evidence the assault in fact occurred. However, this omission did not create a substantial risk of a miscarriage of justice. The judge's initial instruction admonished the jury to use Jim's testimony for its proper, limited purpose: "to permit you to find that the testimony that [Estelle] gave is supported or detracted by" Jim's testimony. Moreover, Jim did not testify about the substance of Estelle's first complaint on direct; he merely clarified some terms he used in his messages to Estelle. Most importantly, the judge's final charge, given on the same day as Jim's testimony, thoroughly explained the first complaint doctrine as King required. Taken together, the judge's instructions sufficiently mitigated the risk that the jury used Jim's testimony as proof that the assaults in fact occurred. See Lewis, 91 Mass. App. Ct. at 664.

3. Hospital records. Finally, the defendant argues, again for the first time on appeal, that the judge abused her discretion in allowing the prosecutor to read into the record statements from Estelle's postassault hospital records. The defendant now claims these statements were inadmissible hearsay that improperly corroborated Estelle's testimony.

Even assuming that this evidence was hearsay, the prosecutor used it permissibly. Estelle's hospital records were admitted in evidence at the defendant's request to support his theory that Estelle fabricated her allegations. Defense counsel referenced these records in his opening statement, during his cross-examination of Estelle, and in his closing argument. The defendant having introduced the hospital records in evidence, the prosecutor was free to use them as well. See Commonwealth v. Roberts, 433 Mass. 45, 48 (2000) (evidence admitted with no limitations may be used for all purposes).

Judgments affirmed.

      The defendant pleaded guilty to the subsequent offense component of three of the indictments.

      A pseudonym.

      "SAIN" is an acronym for the Sexual Assault Intervention Network.

      The defendant also maintains the judge should have excluded Donovan's testimony that he received sexual assault investigation training, testimony to which the defendant did not object at trial. We disagree. Donovan's sexual assault investigation training was properly admitted as background information. See McCoy, 456 Mass. at 847.

      The judge stated, "You may not consider ... [this] testimony as evidence that the crime in fact occurred."

      In any event, this evidence did not prejudice the defendant. "Where the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant." McCoy, 456 Mass. at 851.


text:
    COMMONWEALTH v. Robert LACROIX.
    17-P-1388
    Appeals Court of Massachusetts.
    Entered: November 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of aggravated rape (on two indictments), aggravated kidnapping, assault and battery by means of a dangerous weapon, and simple assault and battery. The convictions were affirmed on direct appeal in an unpublished memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Lacroix, 85 Mass. App. Ct. 1104 (2014). Acting pro se, the defendant filed a motion for new trial claiming errors not raised at trial or on direct appeal. The motion judge, who was also the trial judge, denied the motion after a nonevidentiary hearing, reasoning that (1) the claims lacked factual support, (2) the defendant had waived all claims but those of ineffective assistance of appellate counsel, and (2) none of the waived claims created a substantial risk of miscarriage of justice. On appeal, the defendant claims the judge abused his discretion in denying the motion. The defendant's principal contentions are that (1) he was denied his right to a fair trial due to the absence of a transcript from jury empanelment, (2) he was denied his right to be present at a pretrial conference, and (3) his trial and appellate counsel provided ineffective assistance. Discerning no error or other abuse of discretion, we affirm.

Discussion. We review a judge's decision to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We extend special deference to the motion judge where, as in this case, he was also the trial judge. Id.

1. The reconstructed record. Upon learning that the recording and stenographer's record of empanelment had been lost, defendant's appellate counsel moved for reconstruction of the record pursuant to Mass. R. A. P. 8 (c), as amended, 378 Mass. 932 (1979). The trial judge reconstructed the record by adopting the findings proposed by the defendant's trial counsel and the prosecutor, rather than the contradictory findings proposed by the defendant. Without further objection, the reconstruction was certified and transmitted to the Appeals Court. The content of the reconstructed record was not raised by the defendant on direct appeal. He now claims that the absence of a transcript of jury empanelment entitles him to a new trial. We disagree.

Where, as here, it is undisputed that neither party was at fault for the lost transcript and the proceedings at trial can be sufficiently reconstructed and presented to the appellate court, a new trial is not required. Commonwealth v. Harris, 376 Mass. 74, 77-78 (1978). The defendant's claim of error in empanelment "reduces to a complaint that the judge did not credit his position with respect to missing elements of the record." Commonwealth v. Flint, 81 Mass. App. Ct. 794, 803 (2012). Because the judge reasonably relied on information provided by both trial counsel, there was no error, much less a substantial risk of a miscarriage of justice.

2. The pretrial conference. We also disagree with the defendant's claim that his right to be present at all critical stages of the proceedings was violated by his absence from a pretrial conference. First, the only evidence of the defendant's failure to attend his pretrial conference was his self-serving affidavit, which the judge did not credit. See Commonwealth v. Marrero, 459 Mass. 235, 241 (2011) (judge may summarily reject claims in self-serving affidavit). Second, we are aware of no authority, and the defendant offers none, supporting the defendant's claim that a pretrial conference is a critical stage of the proceeding requiring his attendance. Rule 11 (a) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1509 (2004), provides that the "defendant shall be available for attendance at the pretrial conference" (emphasis supplied). By contrast, the rule states that "the court shall order the prosecuting attorney and defense counsel to attend." From this language, we discern no requirement that a defendant must be present for all pretrial conferences. Finally, we agree with the Commonwealth that the defendant's speculative claim that he was deprived of the opportunity to discuss a plea agreement in which he "would plea to a short time on a non-sex offense," failed to establish prejudice. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) (defendant bears the burden of proof on a motion for new trial).

3. Ineffective assistance of counsel. "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). "Where defense counsel made a strategic or tactical decision that the defendant now challenges," the defendant must demonstrate that the decision was "manifestly unreasonable when made" (quotation omitted). Commonwealth v. Walker, 460 Mass. 590, 598 (2011).

We see nothing manifestly unreasonable in trial counsel's decision to pursue a defense that the victim consented to sex in exchange for drugs, where there was evidence that the victim was addicted to heroin and crack cocaine, and had admittedly acted as a prostitute in the past. While the defendant claims that trial counsel was ineffective for failing to retain an expert in cocaine-induced psychosis, any evidence that would have been offered by that expert would go solely to the victim's credibility. It is well-established that failure to impeach a witness does not constitute ineffective assistance of counsel. See Commonwealth v. Lally, 473 Mass. 693, 709 (2016) ; Commonwealth v. Johnston, 467 Mass. 674, 696 (2014) ; Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). Moreover, the defendant has not included an affidavit or any evidence in support of his claim that an expert would have testified that cocaine-induced psychosis would have affected the victim's ability to recall the events to which she testified. "Speculation, without more, is not a sufficient basis to establish ineffective representation." Commonwealth v. Duran, 435 Mass. 97, 103 (2001).

On our review of the record, we see no behavior by appellate counsel that falls below that expected of an ordinary, fallible lawyer. In light of our conclusions with respect to his other claims, the defendant has not shown that any alleged failings by appellate counsel "probably resulted in forfeiture of a substantial defence." Commonwealth v. Saferian, 366 Mass. at 98.

4. Remaining claims. "Other points, relied on by the defendant[ ], but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Order denying motion for new trial affirmed.

      At the hearing on the motion for new trial the defendant withdrew his claims regarding errors in the jury instructions on the issue of lack of consent.

      In any event, trial counsel cross-examined the victim regarding her drug abuse and prior history of drug-induced psychosis.


text:
    ADOPTION OF FABIANA.
    17-P-1521
    Appeals Court of Massachusetts.
    Entered: November 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a decree entered by a Juvenile Court judge terminating her parental rights to the child. On appeal, the mother contends that (1) comments made by the judge prior to the close of evidence prejudiced her and warrant a new trial, (2) the judge failed to consider the emotional bond between the mother and child in determining the number of posttermination visits, and (3) there was not clear and convincing evidence of unfitness and therefore her parental rights should not have been terminated. We affirm.

Background. We draw on the detailed findings of fact made by the judge below, which find ample support in the record. In October, 2014, the case was opened for services following reports of domestic violence between the mother and Adam Jones (a pseudonym), with whom the mother had been in a long-term relationship. At the time, the mother stated she was leaving Jones's residence to avoid exposing the child to domestic violence; however, in what would be a pattern throughout the case, she returned to Jones's residence with the child a few days later, minimizing concerns regarding violence in the home. In an interview with the Department of Children and Families (department) during that time period, the mother admitted to a history of substance use disorder. She began a Suboxone treatment, but failed to use the Suboxone pills as prescribed.

In December, 2014, while the case was still open, Jones and his son found the child rubbing the mother's back in Jones's residence as she lay unconscious from an overdose. "[A] burnt spoon with white residue [was] on the table next to" the mother's bed. When first responders arrived, the child was crying while her mother was unresponsive in another room. The mother was administered Narcan, and when she became responsive, she admitted to snorting heroin. At the hospital, she tested positive for heroin, benzodiazepines, amphetamines, marijuana, and cocaine. The mother initially stated that she had used only heroin that evening. After some pressing, however, the mother admitted that she had also used cocaine and smoked marijuana and that she lacked prescriptions for the Xanax and Adderall, which she had also taken. She minimized her overdose and refused both in-patient and out-patient treatment options.

The day after the mother's overdose, the department filed the present petition pursuant to G. L. c. 119, § 24. The child was removed on an emergency basis, and temporarily placed in a department foster home. In January, 2015, the child was placed in her current kinship placement with her paternal great aunt.

In May, 2016, a hearing was held on the department's petition. The mother stipulated to her unfitness. The judge found the mother to be unfit, and the child was found to be in need of care and protection. At the time, the judge did not terminate parental rights.

In June, 2016, the department filed a motion, requesting a review and redetermination hearing and seeking an order terminating the mother's parental rights. Following the review and redetermination hearing, which was held in February and March of 2017, the judge found that the mother suffers from persistent substance use disorder. The judge recognized that, at times, the mother has made substantial progress towards addressing these issues; however, she has a demonstrated pattern of struggling with relapse and an inability to maintain sobriety.

Moreover, the judge also found that the mother has not been candid regarding her substance use disorder. She has minimized her relapses, and relayed conflicting information regarding her intravenous use of heroin. The department has been unable to verify much of the mother's participation in service plan tasks aimed at assisting the mother to overcome her substance use challenges because the mother has not provided, or revoked, releases with her providers. The mother has also failed to provide significant information, such as a complete list of her prescribed medications.

The judge also found that what the department has been able to verify demonstrates that the mother's engagement in substance use disorder treatment has been inconsistent and incomplete. Additionally, in the two years before the hearing, the child's foster mother expressed concerns regarding the mother's presentation in person and during video calls, including the mother's "head moving downward as if she were going to sleep and her eyes rolling."

Furthermore, the judge found that the mother's significant criminal history is indicative of her continued substance use disorder and addiction. Hypodermic needles and heroin have been seized from the mother during some of her arrests. Her demeanor during one arrest is consistent with her admission of having used heroin.

The judge also relied on substantial evidence that the mother's long-term relationship with Jones has been fraught with domestic violence to which the child has been exposed. The mother has at times denied the domestic violence, but also has at times admitted the violence in the relationship and its ill effects on the child. She has demonstrated a pattern of returning to the relationship and Jones's residence, and exposing the child to the violence. The child confirmed that she was present during multiple episodes of domestic violence between the mother and Jones, and reported that the mother asked her not to talk about them.

The judge found that the mother was not able to obtain stable, appropriate housing for the child. When she was not living with Jones, the mother resided in North Eastham, at a combination residence and business, which the mother inherited from her father after his death in 2014. The residence was a former garage converted into a studio apartment; it required major renovations, and was not zoned for residential living. The mother has not allowed the department to inspect the living space, and she has prevented the child's foster mother from entering.

The judge also found that the mother's compliance with her service plan tasks has been inconsistent. At times, she has made substantial progress; but, especially during the months when her business is closed, she has been unable to maintain sobriety and has struggled with domestic violence issues.

The mother's visits with the child have been reduced to one hour every other week as a result of the mother's noncompliance with the department's conditions for the visitations. During one unsupervised visit, for example, she kept the child for three days even though she was supposed to return the child within twenty-four hours. In January, 2016, after she received approval for another unsupervised visit, the mother took the child to Jones's residence even though this violated the terms of the visitation set by the department. Thereafter, visits were supervised by the foster mother, who reported that the mother was tardy picking up and dropping off, and failed to comply with the conditions of the visits. As a result, visits were reduced to one hour per week in the community and, following additional failures of the mother to comply with visitation conditions, visits were reduced to one hour every other week. The child's emotional and behavioral issues were exacerbated following contact with the mother.

In April, 2017, the judge filed a memorandum of decision, terminating the mother's parental rights. The mother appealed. In July, 2017, the judge entered his written findings of fact, conclusions of law, and order, considering the requisite factors under G. L. c. 210, § 3 (c ), finding factors (ii), (iii), (iv), (vi), (vii), (viii), (ix), (x), (xii), and (xiv) applicable.

Discussion. a. The judge's comments following the parties' announced settlement. The mother first maintains that she was deprived of the right to fair procedures in light of the comments made by the judge after the first hearing day, prior to the close of evidence and in response to the parties' announcement that they had reached a settlement. See Adoption of Tia, 73 Mass. App. Ct. 115, 122-123 (2008). Specifically, the judge indicated that, based on the evidence he had heard so far, "there's certainly enough evidence to keep [the child] in the custody of the Department of Children and Families at this time. I didn't feel as though there was enough evidence to terminate your parental rights." He also stated that, although he had not heard all the evidence, he "had an idea as to how this thing was going to go. And I don't think it would have been favorable for you to get on the witness stand and start answering questions to which you don't really want to answer." The judge also commented that it would not favor the mother that the child did not live with her, stating also that the court process was designed so that if the mother did "not put her daughter first, [her parental] rights ultimately [would] be terminated." The parties expected the settlement to be finalized and the mother to be ready for a colloquy in March, 2017. Instead, in March, 2017, the hearing continued.

The mother raised no objection to the judge continuing to preside over the case despite the earlier comments. As such, the mother waived her present claim. See Adoption of Pierce, 58 Mass. App. Ct. 342, 348-349 (2003). "[A] party, knowing of a ground for requesting disqualification, cannot be permitted to wait and decide whether he likes the subsequent treatment that he receives." Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 549 (1998). Thus, the issue was not preserved and will only be considered under exceptional circumstances, none of which is present here. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016) ; Adoption of Mary, 414 Mass. 705, 713 (1993).

b. Visitation. The mother next contends that the judge failed to consider the emotional bond between her and the child in deciding that two visits per year would be in the child's best interests. Judges have broad discretion in awarding visitation between a child and a biological parent whose rights have been terminated. See Adoption of Ilona, 459 Mass. 53, 63 (2011). In order to determine whether to grant posttermination parental visitation, the judge must consider whether visitation is in the child's best interests and whether an order of visitation is necessary to protect the child's best interests. See id. The decision to grant visitation rights is not based on the rights of the biological parent, but rather on what is in the best interests of the child. Adoption of Warren, 44 Mass. App. Ct. 620, 626 n.5 (1998).

The mother's visitation had been substantially reduced and became more limited over time due to the mother's inability to comply with the department's conditions. The mother's visits exacerbated the child's emotional and behavioral issues. And, contrary to the mother's contention, the judge considered the bond between the mother and the child in awarding two visits per year. On this record, we cannot say that the judge abused his discretion. See Adoption of Douglas, 473 Mass. at 1029 ; Adoption of Ilona, 459 Mass. at 63-64.

c. Unfitness. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). On appeal, "[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. at 59. "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. at 711. When determining parental unfitness, a judge's decision is "not a moral judgment or a determination that the mother and father do not love the child." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). Rather, the judge must determine "whether the parents' deficiencies or limitations place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child" (quotation omitted). Id.

The record supports the judge's finding that the mother was unfit. The mother has a long history of substance use disorder. While she has made substantial progress at times, the judge appropriately considered the mother's relapses and her continued inability to remain sober, her minimization of her substance use disorder, and her unwillingness to provide the department with sufficient access to her records to verify her compliance with her treatment tasks. See Adoption of Serge, 52 Mass. App. Ct. 1, 6-8 (2001). The judge also properly considered the danger to the child from the domestic violence between the mother and Jones, which the mother has had trouble ending despite her acknowledgement that the violence has an ill effect on the child. See Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017). The mother lacks appropriate and stable housing for the child, and the judge properly considered this in connection with his decision. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). Furthermore, the child has behavioral and emotional needs that require a level of attention that the judge determined the mother was unable to provide. Indeed, the mother has minimized the child's special needs. See Petitions of Dep't of Social Servs. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 689, 697-698 (1985). On this record, we cannot say that the judge abused his discretion or committed a clear error of law in finding that the mother's inability to provide for the child's needs rendered her unfit, that this unfitness would continue into the foreseeable future, and that the best interests of the child would be served by termination of the mother's parental rights.

Decree affirmed.

      The father was not present at the hearing and has not been present throughout the case. He has been absent from the child's life and has not made himself available to the department. The judge terminated his parental rights, and he has not appealed.

      The mother has been arrested for a range of offenses including possession of a class A substance (heroin), larceny over $250, breaking and entering, operating a motor vehicle while under the influence of drugs, marked lanes violation, and operating to endanger. At the time of the hearing, she was on probation.

      The record is silent as to why the settlement did not come to fruition.

      The mother argues that the fact that settlement was reached presents a special circumstance. Assuming arguendo that the mother is correct, this fails to excuse her failure to object after the settlement had failed to come to pass.

      The mother also contends that exhibit nos. twenty-three through thirty-three, which were proffered by the department, were not properly admitted in evidence and therefore should not have been relied on by the judge in his decision. The mother objected to only exhibit no. thirty-three. Thereafter, the judge said that he would take the exhibits into consideration de bene, proceed with trial, and indicate in his written decision whether the exhibits would be admitted. In his decision, the judge did not rely on exhibit no. thirty-three. By not objecting to the other proffered exhibits, the mother waived any objection on appeal. Adoption of Pierce, 58 Mass. App. Ct. at 348-349. Moreover, the exhibits at issue did not prejudice the mother because they were cumulative of the other evidence already in the case. Adoption of Paula, 420 Mass. 716, 727 (1995).


text:
    COMMONWEALTH v. Brian O. BUCKSON.
    17-P-1490
    Appeals Court of Massachusetts.
    Entered: November 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the District Court, the defendant, Brian O. Buckson, appeals from his conviction for larceny of property valued at over $250, in violation of G. L. c. 266, § 30 (1). The defendant claims that the trial judge erred in denying his motion for a required finding of not guilty. We affirm.

Facts. In October, 2015, Fred's Energy in Derby, Vermont received an online inquiry from an individual (buyer) seeking information about a particular brand of natural gas generator. The buyer subsequently ordered two generators and paid fifty per cent of the price as a down payment via credit card, indicating that he would pick up the generators when they arrived at Fred's Energy.

Fred's Energy then ordered the two generators from its supplier, the Granite Group. Fred's Energy paid $11,827.71 to the Granite Group for the generators. The Granite Group shipped the generators to Fred's Energy in Derby. The buyer paid the remaining fifty per cent for the generators via credit card but did not pick up the items as originally indicated. Instead, FedEx picked up the generators, which were in large crates on four feet by six feet pallets, weighing approximately one thousand pounds.

On October 6, 2015, FedEx delivered two pallets containing the generators to 105 Fremont Street in Worcester, the site of BPS Towing Automotive Recovery (BPS), the defendant's place of business. The defendant signed for and received the two pallets, which were addressed to "Mike Brown" as consignee. In February, 2016, Worcester police officers interviewed the defendant about the generators that had been delivered to his business in October, 2015. He denied knowing Mike Brown, but acknowledged having signed for and received the generators in the ordinary course of his business. He told the police that he shipped the packages to Ghana because they were in the way.

Discussion. The defendant asserts that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth presented insufficient evidence to support the offense charged in the complaint: that he "did steal the property of Fred's Plumbing & Heating, such property having a value of more than $250, in violation of G. L. c. 266, § 30(1)."

In reviewing a motion for a required finding of not guilty, we examine the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In satisfying this standard, "the Commonwealth may rely on reasonable inferences drawn from circumstantial evidence." Commonwealth v. Degro, 432 Mass. 319, 325 (2000). To prove larceny by stealing, the Commonwealth was required to prove the "unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently." Commonwealth v. Mills, 436 Mass. 387, 394 (2002), quoting Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985).

The defendant argues that there was insufficient evidence from which the Commonwealth could have proved, beyond a reasonable doubt, that he took or carried away property of another. Rather, he passively received them on behalf of an unknown person who had them delivered to his place of business. Since everyone in the chain of delivery consented to the transfer of the generators, he argues, there could be no trespassory taking, against the will of the victim, necessary to constitute larceny by stealing. He also argues that the evidence was insufficient to establish that he had the requisite intent to "permanently deprive the owner of the stolen goods."

Trespassory taking. It is true that "the sine qua non of the crime of larceny" is lack of consent. Commonwealth v. St. Hilaire, 470 Mass. 338, 345 (2015). Cf. Mills, 436 Mass. at 394 ("We agree with the well-reasoned analysis of the Appeals Court that filing false earnings reports with the [city's retirement] board does not constitute a trespassory taking of money"). The nonconsensual or trespassory aspect of a taking refers to the violation of a possessory interest of the victim. See J.R. Nolan & L.J. Sartorio, Criminal Law §§ 345, at 366 ("Larceny is a crime against the possession of property") and 343, at 364 (3d ed. 2001) ("The exercise of improper dominion over the property of another constitutes a trespass").

Here, the Commonwealth presented evidence that the defendant signed for a delivery of goods that he knew belonged to someone else, and that he took that property and carried it away onto his own business premises. Although the property may have been delivered to the defendant's place of business in an entirely consensual manner, the defendant's act of signing for the generators, which were plainly addressed to and therefore likely intended for someone else, was sufficient to establish that the taking was without the consent of the owner. Additionally, evidence that the defendant sent the generators, belonging to someone else, off the premises without the owner's consent further demonstrates his "exercise of improper dominion over the property of another" sufficient to constitute a trespass. J.R. Nolan & L.J. Sartorio, Criminal Law § 343, at 364.

Specific intent. The defendant also argues that there was insufficient evidence that he had the specific intent to permanently deprive the owner of the generators, since he shipped them to Ghana in the ordinary course of his business, as he would with all of the other goods he receives. The judge was not required, however, to believe the defendant's testimony that he shipped the generators to Ghana. In any event, even if he did credit this testimony, the Commonwealth was not required to show that the defendant personally gained from the disposition of the property. Rather, "[o]ne who takes property without the authority of the owner and so uses it or disposes of it as to show indifference whether the owner recovers possession may be found to intend to deprive the owner of it permanently" (quotation omitted). Commonwealth v. Moore, 36 Mass. App. Ct. 455, 456-457 (1994). See Commonwealth v. Coyle, 17 Mass. App. Ct. 982, 984 (1984).

Here, the defendant took possession of the two generators that did not belong to him and disposed of them such that he could not recover them. The evidence was sufficient to establish that the defendant disposed of the generators in a manner that showed indifference as to whether they would ever return to their rightful owner. The element of specific intent to permanently deprive the owner of the property was satisfied.

The motion for required finding was properly denied.

Judgment affirmed.

      Subsequently, the buyer attempted to purchase two additional generators using a different credit card, but the card was declined. Shortly thereafter, Fred's Energy was notified by the credit card company on which the original purchase had been made that the full amount of the purchase price was being "charged back" to it. Fred's Energy never received the generators back or payment for the generators, and so notified the Vermont State police of the theft in or about mid-October, 2015.

      The packages had been addressed to 105 Tremont Street in Worcester; since there was no Tremont Street in Worcester, FedEx delivered them to the likely intended address of 105 Fremont Street.

      At trial, the defendant testified that his business entails receiving automobiles, as well as other goods, and shipping them to Africa on behalf of others. He stated that, after receiving the generators in October, 2015, someone came to claim them, alleging that the packages contained shingles, but failed to provide identification as to Mike Brown. The defendant told the person that he would ship the packages to Ghana per his request when he provided the proper paperwork. After holding on to the generators for more than three months with no one else claiming them, the defendant shipped them to Ghana in January, 2016, because the presence of the generators on his premises caused him to have problems with space he needed to run his business as well as with his licensing (for a class 3 junk yard license). He stated that the generators remained in a port in Ghana, but that he could not retrieve them because the container in which they were shipped was seized.

      The FedEx delivery receipt indicates that the generators were shipped from "Fred's Plumbing & Heating Inc.," but the representative of the company who testified at trial indicated that the correct name of the business is Fred's Energy, consistent with its invoice for the generators.

      " 'The word "steal[ing]" has become a term of art and includes the criminal taking or conversion by way either of larceny, embezzlement or obtaining by false pretenses.' These three formerly separate crimes have been merged into the one crime of larceny as defined in G. L. c. 266, § 30. Larceny can be established by evidence that would have warranted a conviction upon any one of the three formerly separate charges" (citations omitted). Commonwealth v. Mills, 436 Mass. 387, 391-392 (2002). Here, the Commonwealth proceeded on the theory of larceny by stealing at trial and on appeal limits its arguments to that theory. We likewise limit our consideration to that theory.

      There is no dispute that the generators did not belong to the defendant, as he admitted this at trial and does not dispute ownership on appeal. See Commonwealth v. Souza, 397 Mass. 236, 238-239 (1986) (identity of owner is not essential for larceny, only that defendant was not owner); Commonwealth v. Alvarez, 90 Mass. App. Ct. 158, 161 n.3 (2016) (same).

      At oral argument, an issue was raised as to the necessity of the specific intent coinciding with the taking and carrying away elements of the offense. The parties have not "cited any authority and we do not know of any which holds, in these circumstances, that the requisite intent must be present at the exact moment of the taking." Commonwealth v. Lent, 46 Mass. App. Ct. 705, 708 (1999).

      As it related to the credibility of the defendant's account, the judge could have considered that the defendant made no attempt to contact Fred's Energy in Vermont and instead sent the generators to an unspecified recipient in Ghana without any confirmation of the identity or direction of the owner.


text:
    COMMONWEALTH v. Aaron M. FOX.
    17-P-1540
    Appeals Court of Massachusetts.
    Entered: November 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2014, following a jury-waived trial in the Superior Court, the defendant was convicted of home invasion, G. L. c. 265, § 18C ; carrying a dangerous weapon, G. L. c. 269, § 10 (b ) (second offense); stalking, G. L. c. 265, § 43 (a ) ; witness intimidation, G. L. c. 268, § 13B ; annoying communications, G. L. c. 269, § 14A ; and assault and battery, G. L. c. 265, § 13A (a ). The defendant appealed the judgments and also filed a motion for release from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The trial judge denied the rule 30 (a) motion and a motion for reconsideration. In 2016, a different panel of this court affirmed the judgments in an unpublished memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Fox, 90 Mass. App. Ct. 1108 (2016) (Fox I ).

The defendant then filed a second motion for release from unlawful restraint and for a new trial. See Mass. R. Crim. P. 30 (a), (b). As relevant here, he claimed that (1) his conviction of carrying a dangerous weapon violated his constitutional right to bear arms under the Second Amendment to the United States Constitution, and (2) his trial counsel was ineffective. On appeal, the defendant claims error in the trial judge's denial of that motion. We affirm.

Discussion. We review the trial judge's denial of the rule 30 motion to determine whether there has been a significant error of law or other abuse of discretion. See Commonwealth v. Perez, 480 Mass. 562, 567 (2018) (motion under rule 30 [a] ); Commonwealth v. Grace, 397 Mass. 303, 307 (1986) (motion under rule 30 [b] ). We accord greater deference to the judge's decision because she presided over the trial. Commonwealth v. Brown, 479 Mass. 163, 168-169 (2018). We review the defendant's claim of ineffective assistance to determine whether the defendant has satisfied his burden of "showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Finally, because the defendant did not raise a constitutional challenge to G. L. c. 269, § 10 (b ), at the time of trial or in connection with his first motion for postconviction relief, we review that claim for a substantial risk of a miscarriage of justice. See Mass. R. Crim. P. 30 (c) (2) ; Commonwealth v. St. Louis, 473 Mass. 350, 255 (2015).

1. Carrying a dangerous weapon. In rejecting the argument that the defendant's conviction of carrying a dangerous weapon violated his constitutional right to bear arms, the trial judge, quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008), reasoned that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as the carrying of dangerous and unusual weapons." She concluded that the statute is not unconstitutional on its face because the Legislature has reasonably deemed knives with opening mechanisms designed to allow for easy access in a violent confrontation, such as that carried by the defendant, to be knives "not typically possessed by law-abiding citizens for lawful purposes." The judge also concluded that the statute is not unconstitutional as applied to the defendant because he did not carry the knife for a lawful purpose; rather, he used it in a "violent and unlawful confrontation" with the victim. We discern no error in the judge's reasoning.

The Supreme Judicial Court has repeatedly rejected facial challenges, on Second Amendment grounds, to those portions of the statute that regulate firearms. See Commonwealth v. Cassidy, 479 Mass. 527, 539 (2018), cert. denied, --- U.S. ---- (October 1, 2018), and cases cited. Assuming without deciding that knives such as that carried by the defendant are "arms" within the meaning of the Second Amendment, the portion of the statute that is at issue here does not offend the Second Amendment because the prohibition on knives "is not a blanket one." Commonwealth v. Gouse, 461 Mass. 787, 800 (2012). Contrast Ramirez v. Commonwealth, 479 Mass. 331, 341-342 (2018) (total ban on stun guns is unconstitutional). Instead, the statute "makes it illegal for anyone to carry certain kinds of knives" unless they have permission "as provided by law" (emphasis added). Commonwealth v. Higgins, 85 Mass. App. Ct. 534, 535 & n.2 (2014), quoting G. L. c. 269, § 10 (b ). It "leaves a person free to possess any otherwise lawful [knife] he chooses -- so long as it" is not one enumerated in the statute. United States v. Marzarella, 614 F.3d 85, 97 (3d Cir. 2010). The "certain kinds of knives" that are prohibited are specifically identified in the statute, whose purpose is "to outlaw the carrying of those knives which are primarily designed for stabbing human beings or for other unlawful objectives." Commonwealth v. Miller, 22 Mass. App. Ct. 694, 696 (1986). Because the knives identified in the statute are not designed for a lawful purpose, the trial judge correctly concluded that carrying them is not protected by the Second Amendment. Commonwealth v. Powell, 459 Mass. 572, 584 (2011), cert. denied, 565 U.S. 1262 (2012), citing Heller, 554 U.S. at 617-618 ("the right protected by the Second Amendment involves only the bearing of arms for a lawful purpose"). See Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 587 (2006) (Brown, J., concurring) ("Where a constitutional construction of a challenged statute is possible, a facial challenge must be rejected").

The statute is not unconstitutional as applied to the defendant because the Second Amendment does not "protect the right of citizens to carry arms for any sort of confrontation." Heller, supra at 595. Instead, a central component of the right is self-defense. Id. at 599. The defendant does not claim that he carried the knife in self-defense, but argues that, because he intended to commit suicide, he was not carrying the weapon for an unlawful purpose. Where there was ample evidence at trial to support the conclusion that the defendant used the knife in a violent and unlawful confrontation with the victim, the judge did not err in concluding that he carried the knife for an unlawful purpose.

2. Ineffective assistance. The defendant claims that the judge abused her discretion when she rejected his argument that his trial counsel was constitutionally ineffective. Because the defendant did not raise this claim in his first motion for postconviction relief, we review only for a substantial risk of a miscarriage of justice. See Mass. R. Crim. P. 30 (c) (2) ; Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) ; Commonwealth v. Deeran, 397 Mass. 136, 138-139 (1986). "The substantial risk standard requires us to determine 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.' " Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). We have no such reservations in this case.

The defendant claims that trial counsel was ineffective for failing to argue, in connection with the charge of annoying communications, that the victim consented to the contact. The defendant's first motion for postconviction relief is not in the record appendix, but on direct appeal, the defendant challenged the sufficiency of the evidence underlying that conviction. See Fox I, 90 Mass. App. Ct. at 1108. This court held that there was sufficient evidence to support the conviction and specifically noted that "[t]he defendant persisted with the calls and text messages in the absence of any response from" the victim. Id. The trial judge declined to revisit the issue, and we too decline to address the defendant's claim other than to state that (1) we do not consider it ineffective for counsel not to argue that the absence of a response from the victim is evidence of her consent to the contact, and (2) we are aware of no case, and the defendant has not called our attention to one, wherein consent has been held to be a defense to a charge of annoying communications.

The defendant also raises two claims of ineffective assistance from which his counsel has found it necessary to disassociate himself in accordance with Commonwealth v. Moffett, 383 Mass. 201 (1981). First, the defendant faults trial counsel for failing to argue with respect to the charge of assault and battery that there was no evidence of abuse or physical force. Where the judge apparently credited the victim's testimony that the defendant forcibly entered her bedroom, grabbed her by the shoulders and shook her, we cannot say that such an argument "might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

Next, the defendant argues that trial counsel should have elicited evidence of a "quid pro quo" whereby an investigating officer stated that he would not file a report with the Department of Children and Families pursuant to G. L. c. 119, § 51A, if the victim obtained an abuse prevention order pursuant to G. L. c. 209A. Even assuming trial counsel knew of this evidence and his decision not to pursue it was "manifestly unreasonable when made," Commonwealth v. Walker, 460 Mass. 590, 598 (2011), such evidence relates only to the victim's credibility. It is well-established that failure to impeach a witness does not constitute ineffective assistance of counsel. See Commonwealth v. Lally, 473 Mass. 693, 709 (2016) ; Commonwealth v. Johnston, 467 Mass. 674, 696 (2014) ; Commonwealth v. Hudson, 446 Mass. 709, 715 (2006).

Order denying motion for new trial and for release from unlawful restraint affirmed.

      The facts underlying the defendant's convictions are set forth in detail in our decision in Fox I and need not be recounted here.

      At argument, defense counsel asserted that the constitutional claim had not been waived because the theory on which the defendant relies was not sufficiently developed at the time of trial or when he filed his first motion for postconviction relief. See Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984), and cases cited. We disagree, as both District ofColumbia v. Heller, 554 U.S. 570 (2008) (holding that Second Amendment guarantees right to keep and bear arms in one's home for purpose of self-defense), and McDonald v. Chicago, 561 U.S. 742 (2010) (individual's Second Amendment right is fully applicable to States), were decided before 2012, when the events leading to the defendant's convictions occurred, and well before 2014, when the defendant's trial took place.

      For a facial challenge to succeed, a defendant must establish that no set of circumstances exists under which the statute would be valid, or that the statute lacks any "plainly legitimate sweep." Chief of Police of Worcester v. Holden, 470 Mass. 845, 860 (2015), quoting United States v. Stevens, 559 U.S. 460, 472 (2010). In analyzing a statute's constitutionality, "we are required to presume that every enactment of the Legislature is intended to comply with constitutional constraints." Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 581 (2006).

      No published Massachusetts case has addressed whether knives qualify for Second Amendment protection. In Wooden v. United States, 6 A.3d 833, 839 (D.C. 2010), the court noted that "the discourse in Heller is focused exclusively on 'arms' or 'weapons,' meaning firearms when read in context." The Supreme Court of Washington has held that a small fixed-blade knife "does not qualify as an arm under the Second Amendment." Seattle v. Evans, 184 Wn.2d 856, 866 (2015). However, the Supreme Court of Connecticut has held that dirk knives constitute "arms" within the meaning of Heller. State v. Deciccio, 315 Conn. 79, 117 (2014).

      Our conclusion is consistent with that of courts in other States with laws prohibiting the possession of certain knives. See People v. Mitchell, 209 Cal. App. 4th 1364, 1375 (2012) (statute prohibiting concealed carrying of dirk knives or daggers not unconstitutional on its face); Lacy v. State, 903 N.E.2d 486, 492 (Ind. Ct. App. 2009) (statute prohibiting possession of switchblade knives does not violate State constitutional right to bear arms).