text:
    COMMONWEALTH v. Joseph FRAGATA.
    SJC-12330
    Supreme Judicial Court of Massachusetts, Bristol..
    Argued December 4, 2017. Decided July 18, 2018.
    Christopher DeMayo, Cambridge, for the defendant.
    Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
   LOWY, J.

A District Court jury convicted the defendant, Joseph Fragata, of intimidating a witness in violation of G. L. c. 268, § 13B, in connection with an incident of alleged domestic violence.

The statute, as relevant here, provides:

"Whoever, directly or indirectly, willfully ... attempts or causes physical injury ... [or] intimidates ... another person who is ... a witness or potential witness at any stage of a criminal investigation, ... or other criminal proceeding of any type ... with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished ...."

G. L. c. 268, § 13B (1) (a ), (c ) (i), (v), as amended through St. 2010, c. 256, § 120. The Commonwealth's theory at trial was that the defendant violated § 13B (1) (c ) (i) by taking away the alleged victim's cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her. On direct appellate review, the defendant contends primarily that the evidence was insufficient to sustain his conviction of witness intimidation under § 13B (1) (c ) (i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim's cellular telephone.

We hold that, to convict a defendant of witness intimidation under the central provision at issue here, G. L. c. 268, § 13B (1) (c ) (i), the Commonwealth must prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding. Applied here, we conclude that the evidence was insufficient to support the defendant's conviction on the particular theory argued by the Commonwealth at trial. There was sufficient evidence to convict the defendant of witness intimidation based on his conduct after he took the victim's cellular telephone. But this alternative ground was not argued by the Commonwealth, and we have no way of knowing whether the jury based their verdict on this alternative ground, for which the evidence was sufficient to convict, or on the theory argued by the Commonwealth, for which the evidence was insufficient to convict. Accordingly, we reverse.

1. Background. We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

The victim and the defendant met in May, 2014, and developed a romantic relationship. On Christmas Day, 2015, the victim and the defendant hosted a small gathering in the apartment where the two were living. After their guests left, the defendant screamed at the victim and called her "nasty names." The victim began to cry and told the defendant that she was going to telephone 911. The defendant immediately took the victim's cellular telephone from her and begged her not to call the police.

The victim told the defendant that she wanted to leave and that she was still going to call 911. As soon as she ran to the door to get out and call 911, the defendant stood in front of the door; grabbed the victim by the arms, causing them to bruise; and pushed the victim aside, again begging her not to call 911. Then, while the victim was sitting on a couch, the defendant approached her, grabbed her throat, and started choking her, hitting her head against the wall. After that attack, the victim sat on the couch and cried; the defendant had told her that he would not let her leave and she did not feel free to do so. Finally, after about thirty to forty-five minutes, the victim was able to grab her cellular telephone, leave the apartment, and call 911 from across the street.

The defendant was tried before a jury in the District Court on charges of intimidating a witness, strangulation or suffocation, assault and battery by means of a dangerous weapon, kidnapping, and assault on a family or household member. At the close of the Commonwealth's case, and again at the close of the evidence, the defendant moved for a required finding of not guilty on all charges, which the judge denied. In his final jury charge, the judge instructed the jury on the elements of the crime of witness intimidation as follows:

"In order to prove the [d]efendant guilty of [intimidation of a witness], the Commonwealth must prove three things beyond a reasonable doubt: First, that the [d]efendant directly or indirectly attempted to cause physical injury to [the victim], cause[d] physical injury to her, or intimidated her; second, that [the victim] was a witness or potential witness in any stage of a criminal investigation or criminal proceeding of any type; and third, that the [d]efendant did so willfully with the specific intent to impede, obstruct, delay, or otherwise interfere with a criminal investigation."

The jury convicted the defendant of intimidating a witness, but acquitted him of all other charges. The judge imposed a sentence of two years in a house of correction. The defendant appealed, and we granted his application for direct appellate review.

2. Discussion. General Laws c. 268, § 13B, offers far-reaching protection to five categories of protected persons delineated therein. See Commonwealth v. Morse, 468 Mass. 360, 367, 10 N.E.3d 1109 (2014) (noting that § 13B is "[o]ne of the broader statutes in the category of 'crimes against public justice' "); Commonwealth v. Hamilton, 459 Mass. 422, 434 n.16, 945 N.E.2d 877 (2011) (acknowledging legislative intent to proscribe broad range of conduct by "expanding the types of 'proceeding' covered by the statute"). The subsection at issue here specifically prohibits, in relevant part, intimidation of "a witness or potential witness at any stage of a criminal investigation, ... or other criminal proceeding of any type." G. L. c. 268, § 13B (1) (c ) (i).

The defendant argues that § 13B (1) (c ) (i) prohibits intimidation only of witnesses who have knowledge of actual crimes that have already occurred. The defendant thus contends that his motion for a required finding of not guilty should have been allowed because there was no basis for a reasonable jury to find that he had already committed a crime when he took the victim's cellular telephone to prevent her from calling 911. See Commonwealth v. A Juvenile, 368 Mass. 580, 589, 334 N.E.2d 617 (1975) ("abusive speech is not, without more, subject to criminal sanction"). Although we reject the defendant's construction of the statute as too narrow, we agree that the evidence was insufficient to sustain his conviction under § 13B (1) (c ) (i) on the theory argued by the Commonwealth at trial.

The language of § 13B (1) (c ) (i) does not require proof that an actual crime was committed before the act of intimidation, but rather, as stated, that the victim of the intimidation was "a witness or potential witness at any stage of a criminal investigation, ...

or other criminal proceeding." We have previously observed that a " 'criminal proceeding' within the meaning of § 13B commences on the investigation of a possible criminal violation"-not an actual crime (emphasis added). Commonwealth v. Figueroa, 464 Mass. 365, 371, 982 N.E.2d 1173 (2013). To require proof that a predicate crime was committed before the act of intimidation would be contrary to the statute's plain language and the intent of the 2006 amendment that added this provision. See St. 2006, c. 48, § 3; Figueroa, supra at 368-369, 982 N.E.2d 1173 (noting 2006 amendments were intended to broaden scope of protections and prohibited conduct); Hrycenko v. Commonwealth, 459 Mass. 503, 508, 945 N.E.2d 915 (2011) (amendments "expressly expanded" scope of § 13B ).

Further, the statute's reference to a "potential witness at any stage of a criminal investigation" indicates that the investigation need not have already begun when the intimidation occurred. "Potential" means "[c]apable of being but not yet in existence; latent." American Heritage Dictionary of the English Language 1025 (New College ed. 1980). See Webster's Third New International Dictionary 1775 (1963) (defining "potential" as "existing in possibility: having the capacity or a strong possibility for development into a state of actuality"); Black's Law Dictionary 1357 (10th ed. 2014) (defining "potential" as "[c]apable of coming into being; possible if the necessary conditions exist"). See, e.g., Boelter v. Selectmen of Wayland, 479 Mass. 233, 239, 93 N.E.3d 1163 (2018), quoting Boylston v. Commissioner of Revenue, 434 Mass. 398, 405, 749 N.E.2d 684 (2001) ("We usually determine the plain and ordinary meaning of a term by its dictionary definition"). Consistent with these definitions, we have described a potential witness as, inter alia, a person who might observe further criminal activity or testify at a future proceeding. See Commonwealth v. Brown, 479 Mass. 163, 167-168, 92 N.E.3d 1189 (2018) (describing "potential witness" as witness to "further criminal activity"). See also Commonwealth v. Squires, 476 Mass. 703, 711, 71 N.E.3d 520 (2017) (Gaziano, J., dissenting) (describing "potential witnesses" as persons who might see crime occurring); Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800, 702 N.E.2d 37 (1998), citing Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 230, 694 N.E.2d 5 (1998) (describing victim of intimidation as "potential witness" where there was no ongoing investigation, but defendant prevented victim from contacting police by destroying telephone). Thus, a "potential witness at any stage of a criminal investigation" includes persons who are likely to participate in a future investigation that has not yet begun.

This interpretation is consistent with previous Appeals Court decisions, which have concluded that the purpose of G. L. c. 268, § 13B, includes "deterring interference with future communication of information," and that, consequently, "[a]

criminal investigation need not have commenced" for the statute to apply. Commonwealth v. King, 69 Mass. App. Ct. 113, 121, 866 N.E.2d 938 (2007), quoting Commonwealth v. Burt, 40 Mass. App. Ct. 275, 278, 663 N.E.2d 271 (1996). "It is enough that the jury reasonably conclude from the surrounding circumstances that it was likely that the victim would furnish to an official investigating authority information pertaining to the crime and that the defendant intended to discourage such communication." King, supra. In Belle Isle, 44 Mass. App. Ct. at 227, 229, 694 N.E.2d 5, the Appeals Court rejected the defendant's argument that the statute did not apply to him because there was no ongoing criminal investigation when he severed a telephone cord from the wall to prevent his sister from contacting the police to report the defendant's assault on her husband.

We therefore conclude that to convict the defendant of witness intimidation under G. L. c. 268, § 13B (1) (c ) (i), the Commonwealth had to prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding. The Commonwealth was not required to prove that an actual crime had occurred or that a criminal investigation was in progress when the alleged intimidation occurred.

With this legal framework in mind, we now turn to the particulars of the present case. In closing argument, the prosecutor argued to the jury that the victim "wanted to call 911 because [the defendant] was using ... abusive language, was getting louder, and was getting louder every time that he was using that abusive language," but when "[s]he took her phone out and attempted to call 911," the defendant "grabbed her phone from her, prevented her from calling 911." "That's intimidation of a witness," the prosecutor asserted. After careful review of the record in the light most favorable to the Commonwealth, we conclude that the evidence was insufficient to support a conviction on this basis. The evidence did not permit a rational trier of fact to find that, at the point in time when the defendant took the victim's cellular telephone, a possible criminal violation had occurred that would trigger a criminal investigation or proceeding in which the victim was likely to be a potential witness, and that the defendant intended to interfere with such an investigation or proceeding.

The victim testified that the defendant loudly called her "nasty names," which hurt her feelings and made her cry, and that as soon as she said she was going to call 911, the defendant took her cellular telephone from her and begged her not to call. The prosecutor did not elicit any details from the victim, however, about how exactly the defendant took her cellular telephone, or whether he had made any kind of verbal threats or physical movements toward her, either before taking her cellular telephone or when he did so. Thus, although the Commonwealth characterizes the defendant's conduct as "assaultive behavior," it presented no evidence at trial to support that characterization by showing that the defendant attempted a battery or sought to put the victim in fear of an immediately threatened battery at that point in time. See Commonwealth v. Gorassi, 432 Mass. 244, 247-248, 733 N.E.2d 106 (2000) ("Under the common law, an assault may be accomplished ... either by an attempted battery, or by putting another in fear of an immediately threatened battery.... In the case of a threatened battery type of assault, the Commonwealth must prove that the defendant engaged in 'objectively menacing' conduct with the intent to put the victim in fear of immediate bodily harm"). See also Commonwealth v. Lavrinenko, 473 Mass. 42, 56, 38 N.E.3d 278 (2015) ("The victim's apprehension of imminent physical harm must be reasonable. In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances" [citations omitted] ).

In sum, the Commonwealth failed to present a case that the defendant engaged in anything more than abusive speech before he took the victim's cellular telephone. Consequently, we are constrained to conclude that there was insufficient evidence for the jury to find that, at the moment when the defendant took the victim's cellular telephone, a possible criminal violation had occurred; that a criminal investigation would ensue in which the victim would likely become a potential witness; and that the defendant intended to interfere with that anticipated investigation.

The prosecutor could have made a different argument to the jury, for which the evidence was sufficient to convict the defendant of witness intimidation. The prosecutor could have argued that, once the defendant grabbed the victim's arms and pushed her away as she attempted to leave the apartment, the victim had knowledge of a possible criminal violation, such as assault or assault and battery, and therefore became a "potential witness at any stage of a criminal investigation." See G. L. c. 268, § 13B (1) (c ). The prosecutor could also have argued that, by choking the victim, banging her head against the wall, and preventing her from leaving the apartment, the defendant "attempt[ed] or cause[d] physical injury" to the victim or "intimidate[d]" her within the meaning of the statute. See G. L. c. 268, § 13B (1) (a ), (c ). And finally, given the victim's testimony that she had told the defendant she wanted to leave to call 911, that he begged her not to do so, and that he said he was not going to let her leave, the prosecutor could have argued that the defendant attempted or caused physical injury to the victim or intimidated her to prevent her from contacting the police, i.e., with the intent to interfere with a criminal investigation. See G. L. c. 268, § 13B (1) (c ) (v).

But we cannot affirm the defendant's conviction on this alternative ground, even though it was open to the jury to consider under the trial judge's instructions, because we have no way of knowing whether the jury's verdict was based on this ground or on the defendant's isolated act of taking the victim's cellular telephone, as the prosecutor argued. "[I]f the evidence presented to the jury would warrant a conviction on one ground, but not on another, and it is impossible to tell on which ground the jury relied, the verdict must be set aside on appeal." Commonwealth v. Rollins, 470 Mass. 66, 78, 18 N.E.3d 670 (2014), quoting Chambers v. Commonwealth, 421 Mass. 49, 51-52, 653 N.E.2d 170 (1995). Indeed, given the prosecutor's singular focus on the defendant's act of taking the victim's cellular telephone as the ground for the witness intimidation charge, the jury may well have convicted the defendant based on that isolated act, even though the evidence was insufficient to show that a possible criminal violation had occurred at that point in time. In light of these circumstances, we must reverse the defendant's conviction. "It is well established in this Commonwealth that a verdict cannot stand unless it appears that the jury reached their verdict on a theory for which there was factual support." Commonwealth v. Plunkett, 422 Mass. 634, 635, 664 N.E.2d 833 (1996). The Commonwealth may retry the defendant on the charge of witness intimidation based on the alternative ground set forth above, since sufficient evidence was introduced to support a conviction on that basis. See Gorassi, 432 Mass. at 249-250, 733 N.E.2d 106. 3. Conclusion. The judgment is reversed, and the verdict is set aside.

So ordered.

      The jury acquitted the defendant of four related offenses arising from the same incident. See part 1, infra.

      Here and throughout this opinion we cite G. L. c. 268, § 13B, as it was in effect at the time of the alleged crime and the defendant's conviction and sentencing. We note that the statute was substantially reorganized and rewritten by the criminal justice reform bill enacted in April, 2018, see St. 2018, c. 69, § 155, but the 2018 amendment has no bearing on this case. See Commonwealth v. Galvin, 466 Mass. 286, 290, 995 N.E.2d 27 (2013) ("As a general rule of statutory construction, a newly enacted statute is presumptively prospective ..."); G. L. c. 4, § 6, Second ("The repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect ...").

      In arguing that G. L. c. 268, § 13B (1) (c ) (i), requires proof that a predicate crime was committed before the act of intimidation, the defendant relies on G. L. c. 268, § 13B (1) (c ) (ii), which protects "a person who is or was aware of information, records, documents or objects that relate to a violation of a criminal statute, or a violation of conditions of probation, parole or bail." That is not, however, the part of the statute under which the Commonwealth prosecuted the defendant and the trial judge charged the jury.

      We recognize that these Appeals Court decisions concerned an earlier version of G. L. c. 268, § 13B, that lacked the statutory clause at issue here-"potential witness at any stage of a criminal investigation" -which was added by amendment in 2006. But we think it unlikely that the Legislature intended thereby to narrow the statute's scope by newly requiring that a criminal investigation or other proceeding be pending at the time of the alleged intimidation, given that the purpose of the 2006 amendments was to broaden the statute's coverage. See Commonwealth v. Figueroa, 464 Mass. 365, 368-369, 982 N.E.2d 1173 (2013).

      "A defendant's reckless disregard of the possibility that his or her conduct might interfere with the proceeding at issue also is sufficient to establish this element of the statute." Commonwealth v. Paquette, 475 Mass. 793, 797 n.5, 62 N.E.3d 12 (2016), citing G. L. c. 268, § 13B (1) (c ) (v). In this case, however, the trial judge did not include the reckless disregard standard in his jury instruction, and consequently we do not consider it further in deciding whether to affirm the defendant's conviction.

      Although the prosecutor subsequently stated more generally, in discussing the witness intimidation charge, that the victim "attempted to call the police for help" and that the defendant "prevented her from doing that," he did not identify any other alleged actions by the defendant as the basis for that charge.

      We disagree, however, with the defendant's contention that taking the victim's cellular telephone was not sufficient to constitute "intimidat[ion]" under G. L. c. 268, § 13B (1) (c ) (i). The statute "does not require that a defendant specifically articulate a threat not to speak to the police or other criminal investigator." Commonwealth v. King, 69 Mass. App. Ct. 113, 120, 866 N.E.2d 938 (2007). And an "action does not need to be overtly threatening to fall within the meaning of 'intimidation.' " Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124, 921 N.E.2d 906 (2010), quoting Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708, 876 N.E.2d 475 (2007). Especially given the central place of cellular telephones as a means of communication in contemporary life, depriving a victim of access to one can certainly qualify as an act of intimidation when a potential witness seeks to report a possible criminal violation. Cf. Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 230, 694 N.E.2d 5 (1998).

      In response to a question from the jury about the criteria for witness intimidation, the judge instructed them that the charge of intimidation "relates to the Commonwealth's allegation of what happened inside the apartment and [the defendant] allegedly preventing [the victim] from leaving and/or taking her cell phone."

      For example, in Commonwealth v. Rollins, 470 Mass. 66, 78-79, 18 N.E.3d 670 (2014), we reversed a defendant's conviction on one count of possession of child pornography where the Commonwealth submitted two photographs to the jury, only one of which was pornographic under the relevant statute, and there was no way of discerning which photograph was the premise for the jury's guilty verdict.

      The defendant also argues that the trial judge abused his discretion by admitting in evidence a letter and drawings that the defendant later sent to the victim. The defendant contends that these documents constituted uncharged bad acts evidence the prejudicial effect of which outweighed their probative value, and that the jury may have based their verdict on these documents rather than on the events on December 25, 2015. While this argument is moot in light of our ruling above, we address the issue in case it resurfaces at a new trial. The trial judge specifically and repeatedly instructed the jury that the letter and drawings were admitted for the limited purposes of showing the defendant's consciousness of guilt, that the defendant was not charged with any crime based on those documents, and that they were not the basis for the witness intimidation charge. "We generally 'presume that a jury understand and follow limiting instructions, ... and that the application of such instructions ordinarily renders any potentially prejudicial evidence harmless.' " Commonwealth v. Crayton, 470 Mass. 228, 251, 21 N.E.3d 157 (2014), quoting Commonwealth v. Donahue, 430 Mass. 710, 718, 723 N.E.2d 25 (2000).


source: Caselaw Access Project

author: TRAINOR, J.

license: Public Domain

text:
    SPENCER-EAST BROOKFIELD REGIONAL SCHOOL DISTRICT v. SPENCER-EAST BROOKFIELD TEACHERS' ASSOCIATION.
    No. 17-P-103
    Appeals Court of Massachusetts, Worcester..
    January 16, 2018 June 4, 2018
    Laurie R. Houle, Boston, for the defendant.
    James P. Hoban, Worcester, for the plaintiff.
    Present: Trainor, Massing, & Singh, JJ.
   TRAINOR, J.

The Spencer-East Brookfield Teachers' Association (association) appeals from a judgment of the Superior Court permanently staying the grievance arbitration proceeding commenced by the association before the Department of Labor Relations (DLR). The association argues that the arbitration became moot once the teacher involved withdrew his grievance, and, thus, the matter should have been dismissed. At the same time, the association argues that the teacher had an absolute right to arbitrate an alleged collective bargaining agreement (CBA) violation that preceded his termination. The association maintains that it is irrelevant that the teacher did not have professional teacher status, that he had been employed for less than ninety days, and that reinstatement was the remedy being sought. We affirm.

Background. The Spencer-East Brookfield Regional School District (district) and the association entered into a CBA that covered the period July 1, 2015, through June 30, 2018. Edward Suglia was hired by the district in December, 2015. His employment was terminated on January 15, 2016, after approximately forty-four days of employment with the district. On January 19, 2016, the association filed a grievance on behalf of Suglia which asserted that his "rights under the Collective Bargaining Agreement were violated by the school committee ... when he was terminated ... without the supports and process that are contractually guaranteed." The school committee, pursuant to Level Four of Article XX of the CBA, determined that it had no jurisdiction over the grievance because it was a personnel matter, and notified the association that it could proceed to Level Five of the grievance procedure.

In April, 2016, the association filed a petition to arbitrate Suglia's termination with the DLR. The petition asserted that the termination violated the terms of the CBA because the district had failed in its obligations pursuant to Article XVI and Article VIII of the CBA. The association specifically asserted that Suglia's termination violated the provisions of the "Educator Evaluation Process" instrument, which provides a procedure for evaluating teacher progress and is incorporated by reference into the parties' CBA. As remedies, the petition sought "[r]einstatement; make grievant whole; and any and all additional appropriate remedy."

Pursuant to G. L. c. 150C, § 2(b ), the district sought a permanent stay of the grievance arbitration proceedings that had been commenced in the DLR, on the ground that the association's demand was not arbitrable. The Superior Court issued an order, dated September 7, 2016, allowing the district's application to stay the grievance arbitration, and finding that, in the circumstances of this case, the association had no right to grievance arbitration under the CBA and that its remedy existed exclusively in statute. Shortly thereafter, because the matter was pending in the Superior Court, the association sought and obtained a temporary administrative closure of the grievance arbitration proceedings.

The district then notified the DLR of the court's order staying the arbitration proceedings and requested the dismissal of the arbitration proceeding. The association filed an opposition to the requested dismissal. On October 28, 2016, however, the association withdrew its petition for grievance arbitration before the DLR and notified the Superior Court that the "Plaintiff's petition to stay arbitration is now moot and there is no need for further proceedings beyond the decision already issued by this Court." The district responded by seeking entry of judgment permanently staying the grievance arbitration sought by the association. A judge of the Superior Court allowed the motion, determining that the issue in dispute had been decided on the merits and had been fully adjudicated. He further found that the issue raised as to whether the CBA "may provide for arbitration of teachers' rights that transcend the ones particular to [the] terminated member ... merits resolution despite the ... withdrawal of [the] arbitration petition," and that the matter was not moot. The association appeals from that determination.

Discussion. The association argues that the Superior Court should have dismissed, as being moot, the district's motion for entry of judgment because the association had withdrawn the petition for grievance arbitration, with prejudice. As we have noted, the judge considered and rejected this argument when allowing the district's motion. See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298-299, 327 N.E.2d 885 (1975) (in case "of asserted importance, capable of repetition, yet evading review ... a court should take particular care that judicial review not be foreclosed on the basis of technical mootness" [citations and quotations omitted] ). Here, the association had argued that "the issue presented may deal with important rights of all teachers covered by its collective bargaining agreement, an agreement that the [association] argued at hearing may be 'nullified' by the court action here." We, however, agree with the judge that the matter is not moot, and will therefore consider the court's legal holding.

The association argues that it has the right to arbitrate a purported violation of the CBA that preceded the district's termination of Suglia's employment. Teacher dismissals are governed by the statutory scheme contained in G. L. c. 71, § 42. See Groton-Dunstable Regional Sch. Comm. v. Groton-Dunstable Educators Assn., 87 Mass. App. Ct. 621, 33 N.E.3d 1253 (2015). Section 42 provides three different levels of procedural and substantive due process requirements and protections for public school teachers being terminated from their employment.

Teachers with "professional teacher status," which they are entitled to after three school years of consecutive service, are afforded the greatest degree of due process rights and protections. G. L. c. 71, § 41, as appearing in St. 1993, c. 71, § 43. See Downing v. Lowell, 50 Mass. App. Ct. 779, 783-784, 741 N.E.2d 469 (2001) ; Groton-Dunstable Regional Sch. Comm. v. Groton-Dunstable Educators Assn., supra. The statute provides that teachers with professional teacher status may not be terminated from employment except for "inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight" of chapter 71. G. L. c. 71, § 42, as appearing in St. 1993, c. 71, § 44. Such a teacher also has the statutory right to receive written notice of the intent to terminate employment with an explanation and documentation of the reasons sufficient to allow the teacher to respond. Finally, such a teacher also has the statutory right to seek review of his or her termination at an arbitral hearing at which he or she may present evidence and call witnesses. The school district carries the burden of proof at any such hearing. Ibid.

A lesser degree of due process protection is afforded to public school teachers who have not attained professional teacher status but who have been teaching in a school system for at least ninety calendar days but less than three consecutive school years. Such a teacher shall not be dismissed unless he or she has been "furnished with written notice of intent to dismiss and with an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond and documents relating to the grounds for dismissal." Ibid. Such a teacher shall also have the right, if requested, to review the decision to terminate employment with the principal or superintendent and to "present information pertaining to the basis of the decision and to the teacher's status." Ibid. The teacher may be represented by an attorney or other representative at such a meeting. The statute does not provide the right, however, for such a teacher to review the decision to terminate employment by filing a petition to arbitrate. Ibid.

Lastly, a public school teacher who has not attained professional teacher status and who has held his or her teaching position for less than ninety calendar days has no statutory protections provided by G. L. c. 71, § 42. "Teachers without professional teacher status [ (i.e., those teachers who have worked less than ninety calendar days) ] shall otherwise be deemed employees at will." Ibid. "Employment at will is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all." Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9, 525 N.E.2d 411 (1988). See Merola v. Exergen Corp., 423 Mass. 461, 464, 668 N.E.2d 351 (1996) (with certain narrow exceptions derived from public policy, "[p]rinciples of employment law permit the termination of employees at will, with or without cause").

General Laws c. 71, § 42, provides that, "[w]ith the exception of other remedies provided by statute, the remedies provided hereunder shall be the exclusive remedies available to teachers for wrongful termination."

We have previously addressed the question of how the statutory scheme contained in G. L. c. 71, §§ 41 et seq., applies when there are potentially contradictory provisions contained in the statute and a CBA that is binding on all the parties. In particular, we concluded that G. L. c. 71, § 42, provides the exclusive remedy for a public school teacher who claims to be aggrieved by his or her termination of employment irrespective of the provisions of any applicable CBA. Since the enactment of St. 1993, c. 71, the Education Reform Act of 1993, we have "consistently held that the source, authority, and scope of arbitration for terminated teachers derive from [G. L. c. 71,] § 42, not from contract-regardless of the existence of terms of a collective bargaining agreement." Groton-Dunstable Regional Sch. Comm. v. Groton-Dunstable Educators Assn., 87 Mass. App. Ct. at 623, 33 N.E.3d 1253.

The association argues that nothing in the controlling statutes prohibits the "arbitration of violations of negotiated evaluation procedures and other contract rights when a district non-renews or dismisses a teacher." The association relies on School Comm. of Hull v. Hull Teachers Assn., MTA/NEA, 69 Mass. App. Ct. 860, 872 N.E.2d 767 (2007), and School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 784 N.E.2d 11 (2003), for support of its argument. However, given the facts and legal issues that we consider here, both cases are inapposite.

While the Education Reform Act of 1993 exempted then-existing CBAs the provisions of which were contrary to § 42, it also mandated that "[c]ollective bargaining agreements effective after the date of this act shall be subject to the provisions of said section[ ] [42]."

Groton-Dunstable Regional Sch. Comm. v. Groton-Dunstable Educators Assn., 87 Mass. App. Ct. at 623, 33 N.E.3d 1253, quoting from St. 1993, c. 71, § 77. The CBA and the evaluation instrument that the association relies upon as the basis for its arbitration demand were executed well after the Education Reform Act was enacted in 1993.

Moreover, the teacher here was an employee at will, had no statutory due process rights controlling his termination from employment, and had been terminated from employment before the association filed the grievance alleging violation of the CBA's evaluation requirements. At the time that the association filed the grievance on behalf of the teacher, Suglia was no longer employed by the district. He had been terminated pursuant to the provisions of § 42 and was no longer entitled to the benefits of the CBA. The exclusivity provision of § 42 applies here, and the association had no right to pursue arbitration on behalf of a terminated teacher who had worked for the district for less than ninety days. Suglia was no longer an employee of the district and the association's remedy existed exclusively in § 42. Accordingly, the Superior Court's judgment dated December 12, 2016, based on the court's order dated September 7, 2016, permanently staying the grievance arbitration proceeding commenced by the association before the DLR (Case No. ARB-16-5201), is affirmed.

So ordered.

      Our review of this matter is de novo. See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600, 925 N.E.2d 9 (2010).

      "Article XX-Grievance Procedure" of the CBA outlines the five levels of the grievance process. Level Five allows the association to seek arbitration if the matter has not been resolved to its satisfaction at Level Four.

      "Article XVI-Teacher/Nurse Evaluation" outlines an evaluation process for all teachers and nurses. Professional status and nonprofessional status employees are provided different procedures and rights under the article; "Article VIII-Policy for Cooperating Teachers and Mentors" outlines the relationship between cooperating teachers and student teachers and the requirement that a newly hired teacher be assigned a certified mentor teacher.

      The district denied any violation of the evaluation process.

      Significantly, Suglia was terminated from his position on January 15, 2016, but the association filed the grievance on January 19, 2016, claiming that he had been "terminated ... without the supports and process that are contractually guaranteed."

      General Laws. c. 71, § 42, as appearing in St. 1993, c. 71, § 44, reads in pertinent part:
      "A teacher who has been teaching in a school system for at least ninety calendar days shall not be dismissed unless he has been furnished with written notice of intent to dismiss and with an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond and documents relating to the grounds for dismissal, and, if he so requests, has been given a reasonable opportunity within ten school days after receiving such written notice to review the decision with the principal or superintendent, as the case may be, and to present information pertaining to the basis for the decision and to the teacher's status. The teacher receiving such notice may be represented by an attorney or other representative at such a meeting with the principal or superintendent. Teachers without professional teacher status shall otherwise be deemed employees at will.
      "A teacher with professional teacher status, pursuant to section forty-one [of this chapter], shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause."

      Professional teacher status may also be conferred "upon the recommendation of the principal, ... to any teacher who has served in the principal's school for not less than one year or to a teacher who has obtained such status in any other public school district in the commonwealth." G. L. c. 71, § 41, as amended through St. 1996, c. 450, § 127.

      "Of course, there are certain restrictions on an employer's ability to discharge an employee at will[, none of which are present or applicable here]. See, e.g., DeRose v. Putnam [Mgmt.] Co., 398 Mass. 205, 208-210, 496 N.E.2d 428 (1986) (liability for discharge in violation of public policy); Fortune v. National Cash Register Co., 373 Mass. 96, 104-105, 364 N.E.2d 1251 (1977) (obligation of good faith and fair dealing); G. L. c. 151B, § 4 (1986 ed.) (prohibition against discrimination in employment)." Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9, 525 N.E.2d 411 (1988).

      In School Comm. of Hull, supra, a teacher grieved the school committee's decision not to renew her employment, claiming that the committee had violated the CBA by failing to follow the evaluation procedures set forth in the CBA. The teacher had not attained professional teacher status, but she had worked for more than ninety days, and thus was entitled to the statutory due process rights conferred by G. L. c. 71, § 42, second par. An arbitrator ordered her reinstated, and this court affirmed, concluding that the CBA provisions were consistent with the statutory due process rights conferred by § 42 as a prerequisite to nonrenewal of employment. Here, in contrast, Suglia had worked for the district for less than ninety days, and thus was afforded no due process rights under § 42. School Comm. of Pittsfield, supra, unlike the case at bar, did not concern a teacher's dismissal, but, rather, her involuntary transfer to another school district. The court determined that the issue was governed exclusively by the CBA and not by statute. Arbitration was therefore the appropriate remedy.

      As we have noted, Suglia was terminated from his position on January 15, 2016, and the association filed the grievance on January 19, 2016. The CBA applies to active members of the association or those members who have the right to grieve their termination. Suglia does not fit into either category. See School Comm. of Hull, supra ; Groton-Dunstable Regional Sch. Comm., supra.


author: GREEN, C.J.

text:
    COMMONWEALTH v. Ian HOLNESS.
    No. 16-P-1758
    Appeals Court of Massachusetts, Suffolk..
    February 9, 2018 June 7, 2018
    Robert L. Sheketoff, Boston (Carlos A. Apostle also present) for the defendant.
    Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.
    Present: Green, C.J., Henry, & Singh, JJ.
   GREEN, C.J.

On appeal from his convictions on charges of assault and battery by means of a dangerous weapon, see G. L. c. 265, § 15A(b ), assault by means of a dangerous weapon, see G. L. c. 265, § 15B(b ), and unlawful possession of a firearm, see G. L. c. 269, § 10(a ), the defendant claims error in the denial of his motion to suppress evidence seized as the result of a warrantless search of his motor vehicle. For the reasons set forth below, we affirm.

Background. We recite the findings of fact made by the motion judge, supplemented by the evidence in the record that is uncontroverted and undisputed, or implicitly credited by him. Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007).

On December 25, 2013, at approximately 4:04 A.M. , the Boston police department responded to a 911 call reporting a person shot at a house party at 92 Wales Street in Dorchester. The shooting occurred a few minutes before the 911 call was placed. Many of the partygoers left the house quickly in response to the shooting. Upon arrival, officers learned from people still inside the first-floor apartment that the victim, Rashaan O'Neil, was deceased in the basement. 92 Wales Street is approximately 200 yards from the intersection of Wales Street and Talbot Avenue, a main through street in Dorchester.

At 4:10 A.M. , six minutes after the report of the shooting at 92 Wales Street, Boston police were dispatched to respond to a "ShotSpotter" device activation at 276 Talbot Avenue, at the intersection of Talbot Avenue and Aspinwall Road, about one-half mile from 92 Wales Street. Officer Michael Peters responded to the scene and found a large area of broken glass in the street at the intersection. On Whitfield Street, near its intersection with Talbot Avenue, about 320 feet from the Talbot-Aspinwall intersection, Officer Peters saw a dark-colored four-door Jaguar and a Kia Optima that each had damage consistent with having been in a recent accident. The rear of the Jaguar was only a few feet in from Talbot Avenue. The left rear corner of the Kia was about one foot in front of the Jaguar's left front corner. The Kia had damage to its rear bumper. The Jaguar had damage to its passenger-side tail light, and to the front driver's side, causing the top of the left front wheel to tilt sharply outward and downward. From the wheel damage it appeared that the Jaguar was inoperable. Both vehicles were protruding at odd angles into the travel lane of Whitfield Street. The front of the Jaguar was sticking out into the travel lane with its left rear tire next to the curb. The rear of the Kia was sticking out into the travel lane with its left front tire touching the curb.

When Officer Peters first arrived at the scene there was no one in the vicinity of the Jaguar and the Kia. After making his initial observations of the vehicles, Officer Peters walked back to Talbot Avenue to block traffic. A short time later, he returned to the Talbot-Whitfield intersection where the vehicles were located and a man approached him on Whitfield Street. The man asked Officer Peters if he could retrieve his cellular telephone from the Jaguar. The officer responded "no" and informed the man that he had to move back from the accident scene. The man complied and left the scene. Officer Peters did not see the man again that night. At the motion hearing, Officer Peters identified the defendant as the man who had approached him.

While the two scenes were being secured, additional information was relayed to units on scene regarding a potential second gunshot victim, located at Carney Hospital. Officers dispatched to the hospital observed a tan-colored Toyota Camry parked outside with a shattered passenger-side window consistent with gunshot damage, and apparent blood on the front seat. The responding officers located the second victim, Zuwena Ham, who provided a brief statement during which she admitted that she was inside the basement at 92 Wales Street at the time of the fatal shooting, standing directly next to O'Neil when he was shot. Ham reported that the shooting at the Talbot-Aspinwall intersection occurred directly after she left the party at 92 Wales Street in the Camry. There were six occupants in the Camry. When the Camry paused to make a left turn from Talbot Avenue onto Aspinwall Road, one or more persons in a four-door car fired gunshots at the Camry. Ham was shot in the hand. The driver of the Camry, Fedelyne Maurice, who was also at the party, drove Ham to the hospital. Maurice described the shooter's vehicle as a four-door vehicle that was black or possibly dark-colored.

Upon obtaining information from officers at the two scenes and the hospital, the investigating officers suspected that the 92 Wales Street shooting, the shooting at the Talbot-Aspinwall intersection, and the accident at the Talbot-Whitfield intersection were related. They treated an area along Talbot Avenue, including both of these intersections, as an extended crime scene. Officers closed off this entire strip of Talbot Avenue, putting "Boston Police" tape around the accident scene involving the Jaguar and the Kia. A subsequent line search conducted by officers revealed two bullet fragments at the Talbot-Aspinwall intersection and a shell casing at the intersection of Talbot Avenue and Colonial Avenue, about 175 feet from the Jaguar. There appeared to be a tire skid mark leading from the middle of Talbot Avenue to the Jaguar. Sergeant Detective Paul McLaughlin ordered that the Jaguar and Kia be towed from the scene to the Boston Police B-3 station in Mattapan. The vehicles were towed at about 8:12 A.M. on December 25. A few photographs were taken at the accident scene prior to the vehicles being towed.

At about 10:30 A.M. on December 25, the defendant went to the B-3 police station inquiring about the Jaguar, identifying himself as the owner. Detective James Sheehan spoke with the defendant and told him that the Jaguar could not be released at that time since it was being held for an investigation. The defendant gave Detective Sheehan his telephone number to call when the investigation was done. Between about 11:00 A.M. and 2:00 P.M. on December 26, investigators from the crime scene services unit went to the B-3 station to examine the Jaguar and the Kia. They did not search or go into the interior of the cars. Both vehicles remained locked. Only exterior photographs of the Jaguar and Kia were taken. Paint chips were taken from damaged areas of the exteriors of the vehicles that appeared to be accident impact points. After the examination was complete, the Jaguar was moved from the B-3 police station to a private towing yard. Detective Sheehan telephoned the defendant and left a message that the Jaguar could now be released to him.

On the afternoon of December 26, after the vehicles were examined by the crime scene services unit, detectives obtained and viewed a video recording from a camera at the intersection of Talbot Avenue and Bernard Street, between the Talbot-Wales intersection and the Talbot-Aspinwall intersection. The time on the recording leading up to 4:10 A.M. showed a car consistent with a gray Jaguar making several turns in the area around Wales Street and Talbot Avenue. The video also showed a car consistent with the tan Camry driving on Talbot Avenue toward Aspinwall Road. The car that looked like the Jaguar approached at a high speed behind the Camry from the direction of Wales Street. At or just before 4:10 A.M. , the two cars on the video were continuing southeast toward Aspinwall Road and went out of the camera's view before reaching Aspinwall Road. After viewing the video, Sergeant Detective Paul McLaughlin completed an affidavit in support of a search warrant for the Jaguar. The detectives had the Jaguar moved from the private tow yard to the B-2 police station in Roxbury. A Superior Court judge issued a search warrant on December 26. Officers searched the Jaguar on December 27 under the authority of the warrant. Items obtained from the Jaguar in the warrant search included two shell casings, clothing items, beverage bottles, fingerprints, a piece of plastic molding, photographs of the exterior and interior of the car, personal papers, and the Jaguar's event data recorder and supplemental restraint system control module.

Discussion. 1. Motion to suppress. The defendant argues that the Jaguar was seized shortly after 4:10 A.M. when he was denied access to his vehicle to retrieve his cellular telephone. The defendant claims that at that time, the police lacked probable cause to seize his car without a warrant. As such, the defendant asserts that the evidence found in the initial search of the exterior of the Jaguar and the search pursuant to the warrant must be suppressed as the fruit of an unlawful seizure and search of the vehicle that happened before the search warrant was issued. While we agree with the defendant that at the time when Officer Peters denied him access to the Jaguar, the police had seized the vehicle by asserting control over and interfering with his property rights, see Commonwealth v. Connolly, 454 Mass. 808, 819-823, 913 N.E.2d 356 (2009), we disagree that there was a lack of probable cause to justify the warrantless seizure.

"A warrantless search or seizure is presumptively unreasonable unless it falls under a recognized exception to the warrant requirement." Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162, 580 N.E.2d 1014 (1991). A warrantless seizure must be based on probable cause. See Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). "Probable cause exists where 'the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Here, the police were initially dispatched to the Talbot-Aspinwall intersection at 4:10 A.M. in response to a ShotSpotter activation. Upon arrival, Officer Peters saw a large area of broken glass in the street at that intersection. Approximately 320 feet from the intersection, he observed the Jaguar and the Kia. The Jaguar was just inside the corner and pointing away from Talbot Avenue towards Whitfield Street, with the Kia about one foot in front. The appearance of the vehicles indicated that the Jaguar and the Kia had been in a recent collision. The Kia had rear-end damage, and the Jaguar had both rear and front-end damage that caused the left front wheel to sharply bend. Both vehicles were protruding at odd angles into the travel lane on Whitfield Street.

The physical appearance of the Jaguar, and its proximity to the location of the ShotSpotter activation and broken glass, as well as the temporal proximity between the activation and recent motor vehicle accident, occurring in or around 4:00 A.M. on Christmas morning, when few other vehicles were likely on the road, provided a sufficient nexus between the incriminating evidence in plain view and the accident scene. This afforded the police with probable cause to secure the scene and prevent public access to the restricted area while they continued to search the vicinity for evidence.

By 8:12 A.M. , when the vehicle was towed and impounded, the officers had gathered additional evidence which gave them further probable cause to believe that the accident between the Jaguar and the Kia was connected to the two shootings and that a search of the Jaguar would produce more related evidence. The shooting at the Wales Street party occurred six minutes before and one-half mile away from the shooting at the Talbot-Aspinwall intersection. At least two of the women who were shot at in the Camry had just left the party at 92 Wales Street. Ham, the woman who was struck in the hand by one of the bullets, was standing next to O'Neil in the basement when he was fatally shot. The driver of the Camry described the shooter's vehicle as a four-door vehicle that was black or possibly dark-colored. The Jaguar, located about 320 feet from the Talbot-Aspinwall intersection where the SpotShotter was activated, matched the description of the motor vehicle involved in the nonfatal shooting. Further searches in the vicinity revealed a tire skid mark that led from the center of Talbot Avenue toward the Jaguar, two bullet fragments, and a discarded shell casing about 175 feet from the Jaguar.

This additional evidence, and reasonable inferences, supported a belief that the Jaguar had been rapidly traveling down Talbot Avenue prior to hitting the Kia. The motion judge properly determined that the proximity of the Jaguar, in time and location, to the two shootings showed a possible link that was enough to justify a search of the vehicle pursuant to the automobile exception to the warrant requirement. See Commonwealth v. Gentile, 437 Mass. 569, 573-575, 773 N.E.2d 428 (2002). When an automobile is stopped on a public way and probable cause exists to search it, the inherent mobility of the motor vehicle provides the exigency necessary to justify a warrantless search. Commonwealth v. Motta, 424 Mass. 117, 124, 676 N.E.2d 795 (1997). "The inherent mobility of motor vehicles ... and the reduced expectation of privacy associated with them ... justify application of the vehicular exception '[e]ven in cases where an automobile [is] not immediately mobile.' " Commonwealth v. Nicholson, 58 Mass. App. Ct. 601, 607 n.7, 792 N.E.2d 124 (2003), quoting from United States v. McCoy, 977 F.2d 706, 710 (1st Cir. 1992).

The photographs and removal of paint chips from the Jaguar at the police station were proper as "the facts constituting probable cause to make the search continued to exist" after the vehicle had been towed to the B-3 station. Commonwealth v. Rand, 363 Mass. 554, 561, 296 N.E.2d 200 (1973). See id. at 560, 296 N.E.2d 200 ("The physical appearance of the car, its proximity to the scene of the hit and run, and the damage to its front end which was consistent with the type of damage expected to the hit-and-run vehicle provided sufficient nexus between the incriminating evidence in plain view and the hit-and-run accident to constitute probable cause to search the automobile for further evidence of the hit and run"). Accordingly, we are of the opinion that the officers had probable cause to believe that there would be evidence relating to the shootings at 92 Wales Street and the Talbot-Aspinwall intersection in or on the Jaguar, so as to satisfy the automobile exception. The officers subsequently developed further probable cause and searched the interior of the vehicle pursuant to a valid warrant. The motion to suppress was properly denied.

2. Sentencing. We likewise discern no merit in the defendant's challenge to his sentences. This court reviews sentences already appealed to the Appellate Division of the Superior Court for "errors of law or constitutional violations." Commonwealth v. Grimshaw, 412 Mass. 505, 513, 590 N.E.2d 681 (1992). "A sentencing judge has great discretion within the statutorily prescribed range 'to fashion an appropriate[,] individualized sentence.' " Commonwealth v. Cole, 468 Mass. 294, 302, 10 N.E.3d 1081 (2014), quoting from Commonwealth v. Mills, 436 Mass. 387, 399, 764 N.E.2d 854 (2002). "[A] sentencing judge may not undertake to punish the defendant for any conduct other than that for which the defendant stands convicted in the particular case." Commonwealth v. LeBlanc, 370 Mass. 217, 221, 346 N.E.2d 874 (1976). A judge may consider a variety of factors, including "the defendant's behavior, character, background, and, perhaps most important, 'the nature of the offense and the circumstances surrounding the commission of the crime.' " Commonwealth v. Jones, 71 Mass. App. Ct. 568, 572, 884 N.E.2d 532 (2008), quoting from Commonwealth v. Derouin, 31 Mass. App. Ct. 968, 970, 583 N.E.2d 1293 (1992).

The jury found the defendant not guilty of the murder of O'Neil, but guilty of assault and battery by means of a dangerous weapon for shooting Ham, assault by means of a dangerous weapon, and unlawful possession of a firearm. The trial judge's sentences fell well within the ranges permitted by statute. See G. L. c. 265, §§ 15A(b ), 15B(b ) ; G. L. c. 269, § 10(a ). The judge's comments during sentencing show that she considered the nature of the offenses and the circumstances surrounding the defendant's crimes in fashioning an appropriate sentence, not that she intended to punish the defendant for the murder of which he was acquitted. We discern no error and are confident that the sentencing judge relied solely on legally acceptable criteria in imposing sentence in this case.

Judgments affirmed.

      The defendant was acquitted on a charge of murder pursuant to G. L. c. 265, § 1. In a separate claim of error, the defendant contends that the trial judge impermissibly considered the alleged murder in imposing sentence on the remaining charges.

      "We conduct an independent review of the judge's application of constitutional principles to the facts found." Commonwealth v. Hoose, 467 Mass. 395, 400, 5 N.E.3d 843 (2014).

      A ShotSpotter was described in testimony as "a remote sensing device" that, "based [on] an acoustic signature," makes police aware of "what may be [gun]shots." See Commonwealth v. Young, 78 Mass. App. Ct. 548, 549 n.1, 940 N.E.2d 885 (2011).

      Although the argument was not presented to the motion judge, there was also an independent basis to seize the vehicle based on probable cause that the Jaguar was involved in an accident causing property damage and the driver of the vehicle had left the scene. See G. L. c. 90, § 24(2)(a ). In the conversation with Officer Peters, the defendant did not identify himself as the owner or driver of the Jaguar. Although it is unclear who, the defendant or otherwise, might have been implicated as the perpetrator of the accident, it is of no consequence to the ability of the police to seize the vehicle at that time for further investigation.