text:
    COMMONWEALTH v. Jessica L. DUPLAK.
    17-P-620
    Appeals Court of Massachusetts.
    Entered: April 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a bench trial in the Ayer District Court, a judge convicted the defendant, Jessica L. Duplak, of possession of a class E substance, Gabapentin. On appeal from the denial of her motion for new trial, which was consolidated with her direct appeal, the defendant argues that counsel was ineffective for failing to (1) file a motion to suppress statements given in the absence of Miranda warnings; (2) object to the admission of those statements at trial; and (3) present evidence that would bolster her claim that she had a prescription to possess Gabapentin. Because we conclude that the defendant's trial counsel did not provide her with effective assistance, we reverse the judge's denial of her motion for a new trial.

Background. The trial judge was warranted in finding the following facts. On August 8, 2015, at about 6:30 A.M. , Townsend police Officer Jeffrey Giles was directed to an in-town residence with his partner, Officer Rochette, to execute an arrest warrant for the defendant. The warrant involved a probation violation. Shortly after their arrival, Giles walked to the back of the house and saw the defendant trying to escape through a bathroom window. He directed her back inside where Rochette arrested her, and Giles then transported her to the police station. Before leaving the residence, Rochette handed a backpack to Giles. Upon arriving at the station, Giles asked the defendant if the backpack was hers; she answered, "Yes." Giles then inventoried the backpack and found twenty-three loose pills inside a CVS prescription bag. The pills were later tested and determined to be a class E controlled substance known as Gabapentin, which has a brand name of Neurontin. The backpack also contained capped and uncapped needles and a plastic baggie with a white substance on it.

Upon finding the pills, Giles asked the defendant if she was currently taking any medication or if there was any reason she should be in possession of these medications. The defendant said, "No." Giles then showed the pills to the defendant, who responded that her "friend asked her to hold onto them for her."

At trial, the defense introduced a more than two-year-old discharge summary from the defendant's hospital stay for opiate dependence showing that on April 17, 2013, she had been "given 30 day supplies of Neurontin 400 mg t.i.d. and Risperdal 1 mg b.i.d. as needed for anxiety." The theory of the defense was that the discharge summary established that she had a valid prescription for the pills in her possession on August 8, 2015.

After conviction, the defendant moved for a new trial. Following a nonevidentiary hearing, the motion judge, who had also been the trial judge, rejected the defendant's claim that the questions posed to the defendant during booking were intended to elicit an incriminatory response and concluded instead that they were asked for the permitted purpose of assessing the defendant's "health and physical state and ensuring her well-being while she was in custody." The judge also rejected the defendant's claim that counsel should have elicited the following evidence in support of her defense: (1) that the defendant was homeless; (2) that the pills were in a CVS bag; and (3) that Gabapentin is generally used to help persons with opiate addiction. The judge reasoned none of this information would have eliminated the primary difficulty with the defense, which was that the authorization for the drugs was more than two years old.

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 here, she was also the trial judge. Ibid."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 from Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). The defendant argues that counsel should have moved to suppress her statements made during booking because the officer elicited them in violation of her Miranda rights, and because the statements diminished the defense theory that the defendant had a prescription for the medication.

The failure of counsel to litigate a viable suppression motion may constitute a denial of the defendant's right to the effective assistance of counsel. Commonwealth v. Segovia, 53 Mass. App. Ct. 184, 190 (2001), citing Strickland v. Washington, 466 U.S. 668, 686 (1984). Where, as here, a defendant claims ineffective assistance of counsel, the defendant must show that the motion to suppress would have presented a viable claim and that "there was a reasonable possibility that the verdict would have been different without the excludable evidence." Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205 (1991). If the defendant satisfies this requirement, the Commonwealth then has the burden of demonstrating that the admission of the evidence was harmless beyond a reasonable doubt. Commonwealth v. Segovia, supra.

There are certain exceptions to the rule that a custodial interrogation of a defendant must be preceded by warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). For example, routine biographical questions such as questions about name, age, or address, asked during a defendant's booking, are not interrogation within the meaning of Miranda. Commonwealth v. Kacavich, 28 Mass. App. Ct. 941, 941-942 (1990). However, "[a]lthough a booking officer proceeding down a litany of routine questions may have no investigatory purpose [in asking certain questions], the content of that person's response may be incriminating." Commonwealth v. Woods, 419 Mass. 366, 373 (1995) (emphasis in original). The key inquiry is whether questions posed during booking "are designed to elicit incriminatory admissions." Ibid., citing Pennsylvania v. Muniz, 496 U.S. 582, 602 n.14 (1990).

Here, the questions at issue posed by Officer Giles to the defendant during booking about her ownership of the backpack, and whether she had a prescription for the pills found in the backpack she had just admitted owning, were not routine, biographical questions necessary to complete booking or pretrial services. See Commonwealth v. Acosta, 416 Mass. 279, 283 (1993). Rather, they were questions that the officer should have known were "reasonably likely to elicit an incriminating response." Commonwealth v. Rubio, 27 Mass. App. Ct. 506, 512 (1989), quoting from Rhode Island v. Innis, 446 U.S. 291, 301 (1980). What was effectively a custodial interrogation began when Giles asked the defendant if the backpack was hers. When Giles discovered the pills in the backpack, he asked the defendant if she was currently taking any medications or had a reason to possess these medications. The defendant answered "no"; in response, the officer showed her the bag of pills. At that point, the defendant faced a choice: she could deny or acknowledge that the pills belonged to her. Either way, she would be incriminating herself if she could not provide a prescription or other valid reason for possessing the pills in the backpack she had admitted owning. Commonwealth v. Rubio, supra at 513 (incriminating response "includes any response by an accused, inculpatory or exculpatory, which can be used at trial to help prove guilt"). These questions were more than reasonably likely to elicit an incriminating response and, therefore, we conclude that a motion to suppress the defendant's statements would have had a reasonable chance of succeeding.

Our inquiry then turns to whether "there was a reasonable possibility that the [finding] would have been different without the excludable evidence." Commonwealth v. Pena, 31 Mass. App. Ct. at 205. Such a possibility exists here. The defendant's statements that she had no prescription for the pills and was holding them for a friend directly contradicted the defense she pursued at trial. Clearly, the strength of the Commonwealth's case with respect to the defendant's line of defense-that she possessed a prescription for the medication-would have been seriously weakened had these statements been excluded. Indeed, the prosecutor made this very point in closing argument. While it is true that the primary difficulty the defendant faced was the fact that the hospital discharge summary was two years old, the prosecutor focused instead on the defendant's statements. For this reason, we cannot conclude that the admission of the statements at issue, in particular the defendant's statement that she was holding the pills for a friend, was not harmless beyond a reasonable doubt. Commonwealth v. Segovia, supra.

In sum, "[w]here, as here, the very matter as to which defense counsel has been ineffective becomes one of the linchpins of the prosecutor's closing, the defendant has met her burden of showing prejudice." Commonwealth v. Alvarez, 433 Mass. 93, 104 (2000). Counsel's failure to move to suppress the defendant's statements has "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, supra at 96.

Accordingly, we reverse the order denying the defendant's motion for a new trial, and a new order is to enter allowing the motion. The judgment is reversed, and the finding is set aside.

So ordered.

Reversed.

      The Commonwealth dismissed a second count for the illegal possession of Class E Nicotine Polacrilex.

      The Commonwealth does not contest that the police did not afford the defendant her Miranda rights.

      The one question posed by Giles that gives us pause concerns the inquiry whether the defendant was taking any medications. However, since that question was immediately followed by a question asking the defendant if she had any reason to possess the medications, we cannot say that the question was justified, as the judge ruled, as one related to assessing the defendant's health and safety.

      The prosecutor argued that "[t]he only issue whether or not she had a valid prescription, ah, that's been proven that she did not have a valid prescription beyond a reasonable doubt by the fact that she stated herself that she did not have any valid prescriptions, that she had no reason to be in possession of [the pills], and that when showed the actual pills, she says, 'I got them from a friend.' "

      In so concluding, we note that the defendant's statement in which she acknowledged ownership of the backpack was likely harmless given the fact that the backpack contained the defendant's personal items including an E.B.T. card and a debit card bearing her name.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Kevin WATKINS.
    16-P-1082
    Appeals Court of Massachusetts.
    Entered: April 9, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On May 9, 1990, a Superior Court jury convicted the defendant on one of two counts of rape, acquitting him on the other, G. L. c. 265, § 22(b ). The defendant filed a timely notice of appeal, and on July 14, 1992, this court affirmed his conviction. See Commonwealth v. Watkins, 33 Mass. App. Ct. 7 (1992). Twenty-three years later, the defendant-represented by new appellate counsel-filed a motion for postconviction relief, which a judge denied on June 13, 2016. The defendant again filed a timely notice of appeal, which appeal is now before us.

The defendant claims that he was denied his constitutional right to a public trial when court officers excluded his mother and appellate co-counsel during jury selection. He further claims that trial counsel's failure to object to the closure was constitutionally ineffective. In support of his motion, the defendant presented his own affidavit and affidavits from his mother; Willie J. Davis, his trial counsel and initial appellate counsel; and Maria E. Saccoccio, who assisted with the brief in the initial appeal. Saccoccio, then a new attorney, states in her affidavit that Davis asked her to come to the trial to observe. Saccoccio watched the trial with the defendant's mother, and claims that at times during jury empanelment court officers either asked them to leave the court room, or prevented them from entering altogether.

Davis avers in his affidavit that, consistent with then existing practice in the Middlesex County Superior Court, court officers closed the court room during jury empanelment. Based on that court's practice, Davis did not object. Davis further avers that he did not discuss the court room closure with the defendant because he then did not know that a criminal defendant's Sixth Amendment to the United States Constitution right to a public trial extended to jury empanelment. In addition, Davis, acting as the defendant's initial appellate counsel, believed it "unlikely that [he] received" a transcript of the jury selection portion of the trial, but if he did, there existed "no strategic or tactical reason" for him not to review it or provide Saccoccio with a copy.

The motion judge denied without a hearing the defendant's motion for postconviction relief, reasoning that because the defendant did not object to any court room closures during jury empanelment, he waived his public trial claim. The motion judge further determined that excluding Saccoccio from the court room did not create a substantial risk of a miscarriage of justice because the docket did not reflect her appearance as the defendant's co-counsel.

Discussion. 1. Court room closure. While violation of the public trial right is structural error, "even structural error is subject to the doctrine of waiver." Commonwealth v. Morganti, 467 Mass. 96, 101-102, cert. denied, 135 S. Ct. 356 (2014) (quotation omitted). See Commonwealth v. Alebord, 467 Mass. 106, 113, cert. denied, 134 S. Ct. 2380 (2014) (extending waiver doctrine to public trial right). Thus, where counsel fails to raise an objection to the closure of a court room, the defendant's claim of error is deemed to be procedurally waived. See Morganti, supra at 102. We review such an unpreserved claim of error to determine whether a substantial risk of a miscarriage of justice occurred. Commonwealth v. Lavoie, 464 Mass. 83, 89, cert. denied, 569 U.S. 981 (2013).

"[W]here the defendant has procedurally waived his Sixth Amendment public trial claim by not raising it at trial, and later raises the claim as one of ineffective assistance of counsel in a collateral attack on his conviction, the defendant is required to show prejudice from counsel's inadequate performance (that is, a substantial risk of a miscarriage of justice) and the presumption of prejudice that would otherwise apply to a preserved claim of structural error does not apply." Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct. 317 (2015). "[I]n circumstances where ineffectiveness is based on '[a]n error of counsel, even if professionally unreasonable, [it will] not warrant setting aside the judgment ... if the error had no effect on the judgment.'" Id. at 859, quoting from Strickland v. Washington, 466 U.S. 668, 691 (1984). While a closed jury empanelment may constitute a structural error, it will rarely have any "effect on the judgment." Ibid.

Such is the case here. The defendant contends that barring Saccoccio from the court room during jury empanelment prejudiced him because it prevented her from identifying any juror bias issues. The evident flaw in the defendant's argument is that even assuming Saccoccio was, at times, barred from the court room during jury empanelment, Davis, defendant's highly experienced criminal trial lawyer, was not. Saccoccio, then a newly admitted lawyer, had never practiced law in Massachusetts. Moreover, given Saccoccio's limited role as a trial observer, acting "as a kind of 13th juror," she admits she knew none of the facts of the case, including that the victim and witnesses had Harvard associations. As such, the defendant's claim that she may have spotted a genuine appellate issue-which Davis somehow missed-is sheer speculation. Therefore, we discern no error in the judge's denial of the defendant's motion on this ground. See Weaver v. Massachusetts, 137 S. Ct. 1899, 1912-1913 (2017) (absent evidence that failure to object to closure during jury voir dire rendered trial fundamentally unfair, defendant not entitled to reversal due to ineffective assistance).

2. Juror challenges. The defendant also claims that the trial judge erred in seating a juror associated with Harvard University. Both the defendant and the victim attended Harvard at the time of the offense. The rape occurred on the Harvard campus, and the prosecutor identified to the jurors Harvard officials as potential witnesses or as trial observers. The defendant claims that these Harvard associations, and Harvard's general interest in the case and its outcome, required the trial judge to dismiss all potential jurors who identified some association with the school. He also argues that the trial judge erred in failing to excuse for cause other jurors with various connections to Harvard, forcing trial counsel to expend peremptory challenges on them.

"There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury." Commonwealth v. Lattimore, 396 Mass. 446, 449 (1985), quoting from United States v. Ploof, 464 F.2d 116, 118-119 n.4 (2d Cir. 1972). "If the trial judge, who conducted the voir dire ..., believed that he had [e]mpanelled a jury of twelve open-minded, impartial persons, then we will set aside his action only where juror prejudice is manifest." Ibid., quoting from United States v. McNeill, 728 F.2d 5, 9 (1st Cir. 1984). The defendant bears the "heavy burden" of demonstrating that the alleged juror prejudice resulted in a "substantial risk that the case would be decided in whole or in part on the basis of extraneous issues." Commonwealth v. Ascolillo, 405 Mass. 456, 459-460 (1989) (quotation omitted). For two reasons, the defendant's argument is misplaced. First, he relies on case law holding that persons with a pecuniary interest in the outcome of a case are disqualified as jurors on that case. See Commonwealth v. Moore, 143 Mass. 136, 138 (1886). Moore, and its progeny, has no force here, as Harvard was not a party to this prosecution and had no pecuniary interest in its outcome. While it is true that the defendant, the victim, and every witness were associated with Harvard, that alone did not require the dismissal of every potential juror with a Harvard connection. See Ascolillo, supra at 460-461 (mere fact that juror is police officer not sufficient to remove for cause absent showing of prejudice or partiality).

Second, each juror with a Harvard connection was questioned individually by the trial judge to ensure their impartiality. The trial judge expressed satisfaction with these jurors' professed ability to remain impartial. As noted, a trial judge's determination of a potential juror's impartiality is given "great deference" as it is "essentially one of credibility, and therefore largely one of demeanor." Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997), quoting from Patton v. Yount, 467 U.S. 1025, 1038 (1984). "Where, as here, the judge, who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion." Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).

3. Identical indictments. Finally, the defendant claims that the two identical rape indictments were constitutionally defective, violating his right to due process. This claim is barred by the principles of collateral estoppel. As this court concluded in the defendant's prior appeal, "the fact that the indictment on which the defendant was convicted is identical to the indictment on which he was acquitted is not, by itself, a ground for reversal." Watkins, 33 Mass. App. Ct. at 11. We decline the defendant's invitation to revisit our ruling in that case, a ruling that the Supreme Judicial Court has since cited with approval. See Commonwealth v. Hrycenko, 417 Mass. 309, 312-313 (1994) ("We agree with the Watkins court's reasoning and hold that identically-worded indictments are not defective if the defendant has the opportunity to obtain, through a bill of particulars, sufficient information to enable him to understand the charges against him and to prepare his defense").

Order denying motion for postconviction relief affirmed.

      The defendant asserts that the trial judge's statement that the court room was "public" and that people would be "coming and going" lulled trial counsel into believing the court room would remain open, and thus, his appeal is factually distinct from LaChance and similar cases. We are not persuaded. Trial counsel clearly stated in his affidavit that he believed officers closed the court room during jury empanelment and that he did not know that the public trial right extended to jury empanelment. Thus, it is unlikely that the trial judge's statement prevented trial counsel from acting to preserve a right he then did not know the defendant possessed.

      Furthermore, the defendant's assertion that trial counsel failed to order or review the transcript of the empanelment bears no relation to any claimed prejudice resulting from the closure of the court room. In any event, the motion judge was not satisfied that trial counsel did not receive the transcript. The record supports this finding. The Superior Court docket reflects that after the trial, the court reporter received an order to prepare a transcript of the trial proceedings. The Appeals Court docket in the initial appeal indicates that this court received eight volumes of transcripts. Finally, the prosecutor involved in the defendant's motion for postconviction relief filed an affidavit in which he stated that the Commonwealth's case file for the initial appeal contains eight volumes of transcripts, one of which is the jury empanelment proceeding.

      We again note that the jury acquitted the defendant on one of the two counts of rape. See Commonwealth v. Crowder, 49 Mass. App. Ct. 720, 722 n.3 (2000) (split jury verdicts suggestive of impartial jury).


text:
    A.K. v. G.B.
    17-P-450
    Appeals Court of Massachusetts.
    Entered: April 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a hearing after notice, a judge in the District Court extended a harassment prevention order pursuant to G. L. c. 258E. The defendant appeals, arguing that the plaintiff failed to meet her burden of proving harassment under the statute. We affirm.

The judge heard the following facts and, at the end of the hearing, explicitly credited the plaintiff's testimony. The plaintiff and the defendant are neighbors; their yards abut one another's at the back of each property. Apparently, at some time before the events at issue, there was an incident involving the plaintiff's dog and the defendant's son, and possibly other members of the defendant's family. Relations between the two families had become strained, to say the least. At the hearing after notice, the plaintiff testified that the defendant had "been consistently like just stalking, going crazy. We had to put an extension on our fence so he wouldn't take videos of my backyard. I have two young children. I fear [for] them. Pictures of-he's pulling things of my Facebook. Just-I've had to block him from everything."

The first of three designated harassing acts occurred on October 13, 2016, at approximately 2:30 P.M. The plaintiff saw the defendant from her window in his van, which was parked on the street that runs along the side of her house (not in front of his own house), for approximately twenty minutes. When she went outside and got into her own car, "he pulled out right behind [her], blaring his horn, screaming profanity at [her], and swerved around [her] as [she] was trying to take a left." Her car windows were closed and the doors were locked, so she was unable to hear what the defendant was "screaming."

The second act occurred on October 30, 2016, at approximately 7:00 A.M. , when the defendant began yelling and swearing at the plaintiff over the six-foot fence that divides their property while she was in her yard with her dog and another dog she was caring for. According to the plaintiff, the defendant yelled to her "this better not be a f'n pitbull in your yard, you just-you f'n 'B,' you wait and see, you just wait and see, you have a cease and desist." , The defendant then threatened, "Don't get this dog out and see what happens" and instructed the plaintiff to "go get [her] piece of S-H-I-T husband."

The third act occurred on October 31, 2016, while the plaintiff was out in her neighborhood with her children trick or treating on Halloween night. The children were heading toward another neighbor's house (who lived on the side street across from the defendant's house) to get candy, when the plaintiff saw the defendant standing in the neighbor's driveway talking to someone. According to the plaintiff, the defendant then approached her children and she heard him say her six year old's name. She was walking behind her children and, when she heard her son's name, she asked the defendant not to speak to her children because she was "in fear that he-he has been going on for (inaudible) since the police dog incident, that [she didn't] want him associating with [her] children." The defendant then "got into [her] face, nose to nose, and started screaming" at her. He "put his hands up and he was yelling, 'Do something you f'n B, do something, I eff'n dare you. I just filed papers to take your house. How do you like that you eff'n B.' " A police report was admitted at the hearing supporting the plaintiff's testimony.

A neighbor who witnessed the October 31, 2016, incident testified at the hearing. The neighbor stated that he was having a conversation with the defendant and, when it ended, the defendant was walking back toward his own house when the plaintiff's children passed him on their way to get candy. The neighbor heard the defendant say to the children " 'nice costume' or something along those lines." He then saw the plaintiff walking toward his house and heard her yell "Don't talk to my kids." He then observed the plaintiff and defendant yelling at each other, and then saw the defendant "walking back to his house with his arms up [in the air] like this." The neighbor described the plaintiff as the aggressor in the incident; he testified that he did not hear the defendant make any threats to the plaintiff. Referring to the plaintiff's version of what the defendant said to her during the October 31 incident, the judge asked the witness, "No you didn't hear it or no it didn't happen." The witness responded, "I didn't hear it."

At the conclusion of the hearing, as noted, the judge found the plaintiff's testimony credible. In his view, the neighbor did not provide a "totally" contradicting version of the third incident, because the neighbor specifically testified that he did not hear the defendant making threats to the plaintiff; "[h]e didn't say it didn't happen." In extending the order for one year, the judge found that the defendant had committed three separate harassing incidents, "including swerving around her, following her, swerving around her, the profanities and screaming at her in such a way to put her in fear, totally out of control on the 30th. And then the statements to her on the 31st. 'Just see what's going to happen.' " The judge amended the original, ex parte, stay away order, reducing it from twenty-five yards to ten yards, based on the distance from the plaintiff's house to the parties' dividing fence.

Discussion. "In reviewing the issuance of a civil harassment order under G. L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that three or more acts did, in fact, occur. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). "It is the plaintiff's burden to prove that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being 'characterized by cruelty, hostility or revenge,' and, as pertinent here, that each act was intended by the defendant to intimidate the plaintiff or place the plaintiff in 'fear of physical harm or fear of physical damage to property.' " V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017), quoting from O'Brien v. Borowski, 461 Mass. 415, 426-427 (2012). Further, the harassing acts must in fact cause fear, intimidation, abuse or damage to property, G. L. c. 258E, § 1, and "[i]n the determination whether the three acts 'did in fact cause fear, intimidation, abuse or damage to property,' it is 'the entire course of harassment, rather than each individual act that must cause fear or intimidation.' " A.T., supra, quoting from O'Brien, supra at 426 n.8.

Here, it is clear that the judge carefully observed the parties and the additional witness and listened thoughtfully to the evidence. "The 'final determination' of whether or not harassment in fact occurred [is] for the judge 'who has heard the evidence and can best determine its credibility' ...." After careful review, we are satisfied that the judge was warranted in extending the order. We see no error and certainly no abuse of discretion.

Modified order dated November 9, 2016, extending harassment prevention order affirmed.

      Specifically, the defendant challenges the judge's finding that he committed "(i) [three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, inserted by St. 2010, c. 23."

      A lawsuit was pending, brought by the defendant against the local police department and the plaintiff's husband (a police officer in that department assigned to work with a police dog as part of the "K-9" unit), alleging that the plaintiff's husband's police dog "mauled" the defendant's wife and son.

      The plaintiff insisted that she runs a dog minding and walking business from her home, not a kenneling business, and that she is licensed by the town to do so.

      During the plaintiff's testimony, the judge stated that "witnessing how [the defendant] behaves in a courtroom, I can imagine only how he'd behave out on the street.... I mean, he can't control himself. Look at him. He can't control himself.... No, he's not helping himself. That's all I'm saying.... His behavior indicates to me what she's saying is probably true. I'm just telling you."

      During cross-examination, the witness confirmed that he heard what the plaintiff said during the incident from "[ten] feet away" but "couldn't hear [the defendant] screaming at [the plaintiff] on the sidewalk right in front of [the witness's] house." Specifically, he testified, "No, I did not hear him."


text:
    COMMONWEALTH v. Janito DECARVALHO.
    16-P-1526
    Appeals Court of Massachusetts.
    Entered: April 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Janito Decarvalho, was convicted of unlawful possession of a shotgun, unlawful possession of ammunition, and three drug-related offenses. On appeal, he contends, among other things: (1) there was insufficient evidence to support his conviction of unlawful possession of a shotgun; (2) the judge should have allowed his motion for a new trial; (3) the judge erred in denying his motion to suppress evidence; and (4) the judge made improper remarks at sentencing. We affirm.

Background. The jury could have found the following facts. In the early morning hours of September 6, 2013, Brockton police officers, with assistance from the Massachusetts State police, executed a search warrant at 555 Main Street, apartment 2N, in Brockton. Upon entry, the officers discovered and detained three individuals, including the defendant. After the individuals were removed from the apartment and informed of their Miranda rights, the officers conducted a search. Their efforts uncovered, among other things, numerous cellular telephones, approximately $700 in cash, several bags of cocaine, 170 oxycodone pills, four Suboxone pills, six rounds of .32 caliber ammunition, four shotgun shells, and a shotgun. One of the troopers asked the defendant "who the shotgun belonged to." The defendant responded that "it was a one bedroom apartment and ... the other two kids that were there that morning don't live there. They're just friends and they come by to hang out and play video games and stuff like that." The defendant was later arrested.

The shotgun was eventually transported to the State police crime laboratory where it was examined and test-fired by Sergeant Stephen Walsh. The weapon was a twelve-gauge shotgun and, as found, was in two pieces. Specifically, the pistol grip part of the stock was separated from the part that fires the ammunition. Moreover, the muzzle was cracked, both the muzzle and the barrel were rusted, and the safety was rusted into the firing position. To test-fire the weapon, Sergeant Walsh fired a "prime cartridge." He explained that this entailed using twelve-gauge ammunition, emptying out the gunpowder and the projectile, loading the part with the primer into the weapon's chamber, and pulling the trigger. When he did so, the trigger struck the primer and made a popping sound, which indicated to the officer that the gun is capable of firing. After conducting the test-fire, Sergeant Walsh was left with "a cut down shot shell with a spent primer."

Sergeant Walsh never fired a live shell due to the gun's condition. He was concerned that, without a stock, the recoil generated by live ammunition could hurt his hand. Nevertheless, he noted that a stock was unnecessary to fire this particular weapon. Moreover, at the close of redirect examination, he specifically testified that the gun's rusted barrel did not alter his conclusion that, in its current condition, it is capable of firing a live cartridge.

Discussion. 1. Motion for required finding. The defendant argues that the evidence at trial was insufficient to establish that the weapon found during the execution of the search warrant was a shotgun within the meaning of G. L. c. 140, § 121. Specifically, he contends that the Commonwealth failed to show that the weapon was capable of discharging a shot. We disagree.

In reviewing the denial of a motion for required finding of not guilty, we must "determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Chhim, 447 Mass. 370, 376-377 (2006).

Here, Sergeant Walsh testified that (1) he successfully fired a prime cartridge; (2) the gun is, therefore, capable of firing a bullet; and (3) the weapon's over-all condition did not alter that conclusion. Walsh was a qualified firearms expert with sixteen years of experience in the firearms identification unit of the Massachusetts State police at the time of trial. He test-fired the shotgun without the need to make any prior repairs thereto. He used a primer cartridge rather than live ammunition to avoid potential injury to his hand. Firing the primer, in Sergeant Walsh's expert opinion based on his training and experience, is a "standard practice" for testing of weapons that may be unsafe. Viewed in the light most favorable to the Commonwealth, this expert testimony was sufficient to submit the question of operability to the jury. See Commonwealth v. Raedy, 24 Mass. App. Ct. 648, 654 (1987) (expert testimony that gun could be discharged once by "inverting it" deemed sufficient to survive motion for required finding). See also Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 402-403 (1998) (expert testimony that gun with broken firing pin could be easily repaired sufficient to survive motion for required finding). In addition, the ballistics certificate indicating that the weapon was a shotgun was admitted in evidence as an exhibit. Such evidence, combined with Sergeant Walsh's expert testimony and his test-firing of the shotgun, described supra, was sufficient to submit the count to the jury. Contrast Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 3-4 (1997) (ballistics certificate along with test firing and testimony of persons familiar with guns, are types of evidence admissible to prove capacity to discharge bullet).

2. Motion for new trial. The defendant next argues that his motion for new trial was incorrectly denied because the judge's failure to provide a limiting instruction as to the search warrant evidence constituted prejudicial error. We disagree.

By way of background, the defendant filed a pretrial motion in limine to exclude (1) any evidence that a search warrant existed for the apartment, or (2) that the defendant was the target of the warrant. The judge allowed the motion as to the latter, but otherwise denied it. Prior to trial, the defendant also filed a proposed jury instruction on the search warrant evidence. Thereafter, various police witnesses mentioned the search warrant to explain the officers' presence at the apartment. The prosecutor also referenced the search warrant in his opening statement and closing argument. The defendant did not object thereto. In his final charge, the judge did not provide an instruction on the search warrant evidence. During deliberations, the jury asked the following question: "is the execution of the search warrant part of the evidence." However, before the judge could provide an answer, the jury returned a verdict. The defendant subsequently filed a motion for new trial, which was denied.

On appeal, the defendant essentially argues that the motion for new trial was incorrectly denied because (1) the judge's failure to provide the instruction was error; and (2) the jury's question indicates that such error was prejudicial. We review the order denying a motion for new trial for "significant error of law or other abuse of discretion," and will not reverse "unless [the denial] is manifestly unjust, or unless the trial was infected with prejudicial constitutional error." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006) (citations omitted). Given that we discern no underlying error in the judge's instructions, as discussed infra, there could have been no abuse of discretion in denying the motion for new trial. See Commonwealth v. Sarmanian, 426 Mass. App. Ct. 405, 408 (1998).

It is well established that "[t]rial judges have 'considerable discretion in framing jury instructions.' " Commonwealth v. Kelly, 470 Mass. 682, 688 (2015) (citation omitted). Moreover, "[s]ome testimony about the search warrant application procedure is generally permissible to explain to a jury why the police were present at the scene of a search and why they did certain things at the scene." Commonwealth v. Ferrara, 31 Mass. App. Ct. 648, 651 (1991). In the instant case, the judge limited the scope of the search warrant evidence to this permissible purpose and, therefore, was well within his discretion in declining to instruct the jury on this issue. See Kelly, supra. Even assuming that such an instruction was warranted, the defendant did not object at trial to witness testimony or to the prosecutor's references in her opening statement and closing argument regarding the existence of the search warrant, and the references to the search warrant at trial were limited in scope. The judge did not abuse his considerable discretion in denying the motion for new trial. Contrast Commonwealth v. Saponzik, 28 Mass. App. Ct. 236, 245-247 (1990) (error to admit in evidence details of warrant procedure and approval of search warrant, particularly where compounded by prosecutor's subsequent closing argument to effect that police entrance into motel room was not accidental because court magistrate had found probable cause to believe officer's conclusions).

3. Motion to suppress. The defendant next claims error in the denial of his motion to suppress evidence obtained from the apartment. He argues that the affidavit in support of the search warrant application, which relied on information provided by a confidential informant (CI), was insufficient to support a finding of probable cause. We disagree.

We review de novo a finding of probable cause based on a search warrant affidavit, Commonwealth v. Tapia, 463 Mass. 721, 725 (2012), confining our inquiry to the "four corners" of the affidavit. Commonwealth v. Ilges, 64 Mass. App. Ct. 503, 508 (2005). An affidavit based on information from a CI must satisfy the two-pronged Aguilar-Spinelli test, which requires that the judge be provided with underlying facts establishing the informant's (1) basis of knowledge and (2) veracity. See Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). Here, there was ample evidence presented in the affidavit to satisfy both prongs.

A. Basis of knowledge. According to the affidavit, the CI personally purchased drugs at the apartment from the defendant and his two associates, and observed all three individuals selling drugs to others at the apartment. This firsthand discovery of information through personal observation was sufficient to satisfy the basis of knowledge prong. See Commonwealth v. Montanez, 410 Mass. 290, 299-300 (1991) ; Commonwealth v. Alvarez, 422 Mass. 198, 205 (1996).

B. Veracity. The affidavit also explained that (1) the CI had provided two tips on prior occasions, each of which led to an arrest and the seizure of drugs; and (2) during the investigation in this case, the CI carried out two supervised controlled buys at the apartment. This information was more than enough to satisfy the veracity prong. See Commonwealth v. Perez-Baez, 410 Mass. 43, 46 (1991) (prior tip leading to arrest and seizure of drugs sufficient to satisfy veracity prong); Commonwealth v. Villella, 39 Mass. App. Ct. 426, 427 (1995) ("It is well settled that a controlled buy supervised by police provides probable cause to issue a search warrant").

4. Sentencing. Finally, the defendant argues that the judge relied on improper factors at sentencing. Specifically, he contends that the judge's comments demonstrate that he predicated punishment of the defendant on (1) the circumstances of the opioid epidemic unrelated to his conduct; and (2) the judge's own personal beliefs. On the record before us, we disagree.

Judges have "considerable latitude" in fashioning appropriate individualized sentences. Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). In completing this task, judges may consider goals such as "punishment, deterrence, protection of the public, and rehabilitation" as well as "many factors which would not be relevant at trial including hearsay information about the defendant's character, behavior, and background." Ibid. In the present case, we are confident that the sentence was crafted solely based on these permissible determinants. The remarks in question were as follows:

"I appreciate the fact that he doesn't have much of a criminal record. I do not overlook the fact, however, that he was peddling Oxycodone and cocaine out of that apartment. And had a shotgun. The evidence was clear that he was a drug dealer. The simple fact of the matter is, you know, 1,300 people have died in Massachusetts last year due to opioid addiction, 27 of them here in Brockton. Thousands of babies are born each year with drugs in their system. He's part of that problem. All right? He was part of that problem, a big part of it, in my view."

The judge's statements outlining the specific charges of which the defendant was convicted, combined with the remark that he was "part" of a larger problem, reflect the judge's awareness that the defendant could be punished only for his own actions. Contrast Commonwealth v. Howard, 42 Mass. App. Ct. 322, 326-327 (1997). Viewed in context, the discussion of the opioid crisis demonstrated the judge's desire to protect the public, not an effort to blame the defendant for the crisis as a whole. Moreover, nothing in these comments indicates that the judge's personal feelings or private beliefs came into play. Contrast Commonwealth v. Mills, 436 Mass. 387, 401 (2002) (finding error, in part, due to judge's discussion of his own personal religious experiences). Lastly, we note that the defendant failed to object to any of the judge's comments. Thus even assuming, arguendo, that the remarks crossed the line into error, we do not believe they created a substantial risk of a miscarriage of justice. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 836 (2010).

Judgments affirmed.

Order denying motion for new trial affirmed.

      The drug-related convictions were possession of cocaine with intent to distribute, possession of oxycodone with intent to distribute, and the lesser included offense of possession of Suboxone.

      The gun was missing the component that attaches the two pieces. Sergeant Walsh testified that shotguns are not "supposed to come with a pistol grip" and, as a result, he found it to be "crude and homemade."

      With respect to the test-fire of the shotgun, Sergeant Walsh explained as follows: "[I]f you can hit the primer, that means the primer would ignite the gunpowder, which will create pressure because it's burning so rapidly, and it will push the projectiles down the barrel." After pulling the trigger, Walsh further confirmed that the primer was "spent" by locating a dimple in the primer created by the firing pin.

      Sergeant Walsh narrowed his safety concern to the shotgun's potential recoil, as he testified that "[i]f I had the stock, I would have fired a live shot shell."

      To constitute a "[s]hotgun" under G. L. c. 140, § 121, and hence within the meaning of G. L. c. 269, § 10(h ), the weapon must have "a smooth bore with a barrel length equal to or greater than 18 inches with an overall length equal to or greater than 26 inches, and capable of discharging a shot or bullet for each pull of the trigger." G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8.

      The defendant also argues that under the language of G. L. c. 140, § 121, a weapon must be capable of discharging multiple times. He cites no authority to support this proposition. Moreover, the evidence, viewed in the light most favorable to the Commonwealth, would support a reasonable inference that the weapon was capable of discharging a bullet repeatedly. Contrast Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 3-4 (1997). Although Sergeant Walsh testified that firing the shotgun without a handle/stock could lead to an injury to his hand, there is nothing to suggest that this possibility rendered the shotgun incapable of discharging a bullet.

      The proposed instruction would have notified the jury that the existence of the search warrant is not to be considered as evidence of any wrongdoing.

      In the motion for new trial, the defendant argued that the jury's question evinced a misunderstanding of the law and showed that they considered "extrinsic evidence" of the search warrant as evidence of the defendant's guilt. He elaborated that "[t]he defendant requested no reference to the search warrant be made as well as a limiting instruction. Those requests were denied. Therefore ... justice was not accomplished."

      The defendant argues that this issue was preserved such that our review should be for prejudicial error, as opposed to review of any error for a substantial risk of a miscarriage of justice. However, discerning no error, we need not dwell on this distinction. See Commonwealth v. Scesny, 472 Mass. 185, 194 n.20 (2015).

      See Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969).

      The first tip provided by the CI led to a controlled buy of narcotics from the target who was then arrested for distribution; the second tip culminated in a motor vehicle stop where the target was arrested for possession of narcotics.

      The judge's remark regarding the births of babies with drugs in their system was better left unsaid. That notwithstanding, we discern no substantial risk of a miscarriage of justice stemming therefrom, for all of the reasons delineated herein.

      Other points argued by the defendant that are 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). Relatedly, we have read the defendant's additional brief brought pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981), and conclude that the arguments contained therein are unavailing.


text:
    Laura L. BORTOLOTTI v. Robert J. BORTOLOTTI.
    16-P-1742
    Appeals Court of Massachusetts.
    Entered: April 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Laura L. Bortolotti (Laura) and Robert J. Bortolotti (Robert), cross-appeal from a judgment of divorce nisi, each asserting various grounds of error. Concluding that the judge erred in determining the length of the marriage for purposes of setting alimony, and in determining Robert's premarital estate for purposes of the equitable division of assets, we vacate in part but affirm the judgment in all other respects.

Discussion. 1. Length of the marriage. Laura asserts the judge misapplied the economic partnership test when deciding to exclude the period of the parties' cohabitation in his determination of the length of the marriage for purposes of alimony. We agree.

The parties lived together for a significant number of years beginning in 1998 and continuing until they married in 2004. During that period of cohabitation, Laura worked and did not provide financial support to the relationship, but there was evidence that she was economically dependent on Robert. The judge correctly concluded that he could adjust the length of the marriage for any significant premarital cohabitation that includes an "economic marital partnership." G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3. However, focusing solely on the fact that Laura did not contribute financially to the relationship, the judge found that there was no "economic marital partnership" for the period of the parties' cohabitation, and he did not include those years in determining the length of the marriage for purposes of alimony. This was error.

Section 48 does not specifically define "economic marital partnership," but G. L. c. 208, § 49(d )(1)(ii), inserted by St. 2011, c. 124, § 3, which pertains to general term alimony, authorizes a judge to consider many factors when determining subsequent cohabitation by a recipient spouse, including the "economic dependence of [one] person on the other." See Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 284 (1991) (in construing statutory term, "we may also look to relevant provisions of other parts of the statute"). The Supreme Judicial Court also recently reasoned that "the Legislature intended to use the terms cohabitation, economic marital partnership, and common household" roughly synonymously. Duff-Kareores v. Kareores, 474 Mass. 528, 534 (2016). Accordingly, if Laura was economically dependent on Robert during their period of cohabitation, there may exist an "economic marital partnership" even in the absence of any financial contribution by her to the relationship. Id. at 535. Accordingly, we vacate the alimony award and remand for the judge to reconsider the period of the parties' cohabitation where Laura was economically dependent on Robert in determining the length of marriage for purposes of setting alimony.

2. Valuation of Robert's premarital assets. Robert, on the other hand, takes issue with the judge's valuation of his premarital assets, asserting that the judge erred when he took judicial notice of a 1999 valuation of Robert's assets from a prior divorce proceeding to value Robert's premarital assets for purposes of an equitable division of assets here. We agree.

When valuing the marital estate under the equitable division statute, G. L. c. 208, § 34, the judge may value and subtract the parties' premarital assets. Adams v. Adams, 459 Mass. 361, 370 (2011). When valuing premarital assets, the judge may accept an expert's valuation, or formulate a valuation independently. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 863 (1989). When making this valuation, the judge must make a determination of the value of the premarital assets at the time of the marriage. See Adams, supra (describing "premarital assets" as things "owned at the time of the marriage").

The judge did not engage in such an inquiry here but, rather, applied a calculation of Robert's net worth that the judge had arrived at five years earlier during a prior 1999 divorce proceeding. This is "plainly wrong." Williams v. Massa, 431 Mass. 619, 631 (2000). Accordingly, we vacate the property division and remand for the judge to engage in a valuation of Robert's premarital assets at the time of the parties' marriage in 2004. Adams, supra.

3. Remaining issues. Laura raises various other challenges to the judgment, none of which warrants reversal or remand. We address these below.

a. Notice of appeal. Laura contends the judge erred in permitting Robert to file a late notice of appeal. A party must file a notice of appeal either within thirty days of entry of judgment in the trial court, or within thirty days of entry of an order disposing of a timely postjudgment motion. Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). Robert filed a timely notice of appeal after the judge's denial of his timely motion to alter or amend the judgment. Then, after the judge issued his findings of fact, and after Laura's motion to amend the findings was filed and denied, Robert filed another notice of appeal, more than thirty days but less than sixty days after the denial of Laura's postjudgment motion. However, because Robert had already timely appealed from the order denying his postjudgment motion, we perceive no error in deeming Robert's appeal timely.

b. Robert's normalized salary. Laura also asserts the judge erred in declining to adopt the full amount of a business valuation expert's normalized salary for Robert from Coastal Equipment Rentals, Inc. (Coastal), when calculating alimony, but accepting the full amount of the normalized salary for equitable division purposes.

Valuation of a business for equitable division is a question of fact, and we only vacate when valuation is clearly erroneous. Adams, supra at 380. Here, the independent expert carefully valued Robert's business interest in Coastal, and, as the judge noted, neither party objected to the expert's report or offered evidence to undermine his conclusions. See Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985) ("[W]here ... there is uncontradicted testimony concerning a subject which is beyond the common knowledge and experience of the finder of fact, that testimony may not be rejected without a basis for such rejection in the record"). The independent expert valued Robert's ownership interest in Coastal using the "income approach method," and derived a normalized salary from these calculations, and thus, the judge properly accepted the independent expert's normalized salary calculations to determine an equitable division. Ibid. However, where there was evidence that Robert did not derive any actual income from Costal, except in August and September, 2015, the judge did not abuse his discretion in electing to consider roughly half rather than the full amount of unrealized income from Costal for purposes of the alimony calculation. See Bernier v. Bernier, 449 Mass. 774, 793-794 (2007).

c. Attributing income to Laura. Laura also takes issue with the judge's attribution of income to her. "In determining the incomes of parties with respect to the issue of alimony, the court may attribute income to a party who is unemployed or underemployed." G. L. c. 208, § 53(f ), inserted by St. 2011, c. 124, § 3. To do so, "the judge must make a determination that a party is capable of earning more with reasonable effort." Emery v. Sturtevant, 91 Mass. App. Ct. 502, 509 (2017). Prior to 2015, Laura was gainfully employed as a trust advisor with TD Bank. However, when the bank terminated that position and offered Laura a new position, she rejected it. Laura obtained extensive experience from that job, but remained unemployed from 2015 to the time of trial. On that basis, the judge could properly conclude that Laura is capable of earning "more with reasonable effort." Ibid. There was no error.

d. Division of the marital estate. Laura also challenges the sixty-five to thirty-five percent division of assets in Robert's favor. When dividing the marital estate, the judge must consider the factors in § 34, and the reasons for his conclusion must be apparent and flow rationally from his findings. Williams, 431 Mass. at 631. Here, the judge made findings as to each of the factors in § 34, and did not consider irrelevant factors. The percentage division of the estate arrived at by the judge flowed rationally from his findings, and was neither plainly wrong nor excessive. Ibid. There was no error.

e. Valuation of properties. Laura also launches various attacks on the judge's valuation of three pieces of real estate and three checking accounts. To begin with, she asserts the judge erred in using a 2014 appraisal date for the real property. We are not persuaded.

"Although the marital estate is typically determined as of the date of the divorce trial, the judge has the discretion to make that determination at another date," such as the date of separation. Moriarty v. Stone, 41 Mass. App. Ct. 151, 154 (1996). Here, the divorce trial occurred in 2016 but the parties separated in 2012. Accordingly, the judge was within his discretion in choosing 2014, which was halfway between the parties' separation and trial, as the appropriate appraisal date.

Laura's other challenges to the judge's findings with respect to these properties are equally unconvincing. For example, contrary to Laura's assertion, there was adequate record support for the judge's finding and consideration of the fact that Robert borrowed money to purchase 14 Jaclyn Lane. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 343 (1997). Similarly, the judge's consideration of a tax liability on 1574 Old Post Road bore ample record support.

We also see no error with the judge's failure to specify the checking accounts held by the three various trusts, as Robert had fully retained his interests in two of these trusts, the Industry Road Development Trust and Old Post Road Development Trust, and the third trust account held only a negligible sum of $659.34.

f. Fees and costs. Finally, Laura argues the judge erred in not awarding her full attorney's fees and costs. We disagree. A judge should only award fees and costs "in appropriate circumstances," such as when a party engaged in "obstructionist conduct which prolonged the proceedings." Cooper v. Cooper, 62 Mass. App. Ct. 130, 141 (2004), quoting from Downey v. Downey, 55 Mass. App. Ct. 812, 819 (2002). Here, there is no evidence that Robert engaged in obstructionist conduct or otherwise prolonged the proceedings. We discern no abuse of discretion in the judge's decision to decline to award costs and fees to either party.

Conclusion. We vacate the alimony and marital property distribution portions of the judgment and remand for further proceedings consistent with this memorandum and order. We affirm the judgment in all other respects.

So ordered.

Vacated in part, and remanded; affirmed in part.

      Because the parties share a surname, we use their first names, meaning no disrespect to either party.

      Robert's assertion that the whole alimony award is clearly excessive is meritless. The judge carefully considered Laura's needs and liabilities when setting alimony, as required by G. L. c. 208, § 53.

      The judge in this case was the judge in the 1999 divorce as well.

      Robert hired an expert witness to testify as to Laura's earning prospects, and contends the judge erred in excluding the expert's testimony. We disagree. The expert submitted his report on the eve of trial, long after the close of discovery. The judge had the discretionary authority to exclude expert testimony revealed shortly before trial. See Grassi Design Group, Inc. v. Bank of America, N.A., 74 Mass. App. Ct. 456, 459-460 (2009).

      Robert also challenges the division of marital assets, but his arguments rest on the judge's erroneous use of the 1999 divorce judgment to value premarital assets, discussed above.

      We deny both parties' requests for appellate attorney's fees and costs.


text:
    COMMONWEALTH v. Dennis F. JORDAN.
    17-P-13
    Appeals Court of Massachusetts.
    Entered: April 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Dennis F. Jordan, appeals from Superior Court convictions on three indictments for armed assault with intent to murder, G. L. c. 265, § 18(b ) ; three indictments for assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b ) ; and one indictment for unlawful possession of a firearm, G. L. c. 269, § 10(a ), as an armed career criminal with three prior convictions, G. L. c. 269, § 10G(c ), and from the trial judge's denial of his motions for new trial and for postconviction discovery. Concluding that (1) the limitations on cross-examination were within the trial judge's discretion; (2) the defendant has not demonstrated prejudice from the alleged delayed disclosure of exculpatory evidence; (3) trial counsel's failure to request a specific jury instruction on honest but mistaken identification did not deprive the defendant of a substantial, available defense; and (4) the motion judge properly found that suppression of the defendant's statements made while in custody after his arrest was not required, we affirm.

Background. In the evening of September 13, 2002, through the early morning hours of September 14, 2002, a private bus driver dropped off a group of seven men, including the defendant, near the old Brockton Area Transportation terminal. At that location, the three victims were serving as security for an after-hours party. After one of the victims removed the defendant from the line for entry, a violent altercation ensued. Ultimately, the defendant and another member of his group fired shots. One of the victims, Nawarrior Lewis, was struck by three bullets and remains paralyzed from the waist down. The other two victims were also struck by bullets and suffered less serious injuries. Two of the victims later identified the defendant as one of the gunmen. One was already familiar with the defendant, but Lewis was not.

After the gunshots, the bus driver observed the defendant return to the bus and bang on the door while holding a black handgun. Another member of the group also had a gun. The driver let the group onto the bus, and the defendant instructed him to drive off.

On October 11, 2002, Stoughton police officers arrested the defendant. During booking, officers provided the defendant with his Miranda rights, and he invoked his right to remain silent. When Brockton police officers, including Detective Dominic Persampieri, arrived soon after to transport the defendant to Brockton, the defendant became agitated and initiated a brief verbal exchange with Detective Persampieri. At the Brockton police station, officers booked the defendant and provided him with his Miranda rights again. The officers did not inform the defendant of his right to prompt arraignment.

In an interview room shortly thereafter, Detective Persampieri asked the defendant if he wanted to make any statements. The defendant refused to speak with Detective Persampieri, but instead requested to speak to Detective Ernest Bell, who was home sick at the time. Detective Bell eventually acquiesced to the defendant's request and arrived at the station to interview the defendant about the incident. The interview, in which the defendant denied involvement with the shooting, lasted from 8:15 P.M. to somewhere between 9:15 P.M. and 9:30 P.M.

Prior to the defendant's second jury trial, the defendant filed several motions to suppress statements made after his arrest, all of which were denied. A jury ultimately convicted the defendant on all counts. At a subsequent jury-waived trial, the trial judge found the defendant guilty as an armed career criminal with three prior convictions.

Discussion. 1. Cross-examination. The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights entitle a defendant to cross-examine prosecution witnesses for bias or prejudice. Commonwealth v. Avalos, 454 Mass. 1, 6-7 (2009). A judge may not "bar all inquiry into the subject" if the defendant demonstrates "a possibility" of bias. Commonwealth v. Magadini, 474 Mass. 593, 604 (2016), quoting from Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). Nonetheless, a judge retains broad discretion both in "[d]etermining whether the evidence demonstrates bias" and in otherwise imposing reasonable restrictions on cross-examination. Avalos, supra at 7, quoting from Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993) ; Commonwealth v. Garcia, 470 Mass. 24, 35 (2014). "A defendant must make a 'plausible showing' of alleged bias, with a factual basis for support"; otherwise, the judge may restrict or entirely exclude the inquiry. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), quoting from Tam Bui, supra at 401. See Commonwealth v. Johnson, 431 Mass. 535, 538 (2000) (affirming exclusion of cross-examination where "the import of the question was too attenuated to create a remote possibility of ... bias"). On appeal, the defendant bears the burden of showing that the judge abused his discretion in restricting cross-examination, Garcia, supra at 35, and must establish that error from the trial record. Avalos, supra.

Here, the trial judge acted within his discretion in restricting the defendant's inquiry given the lack of supporting evidence. The defendant suggests that the bus driver provided biased testimony at trial on account of the defendant's alleged involvement in the murder of the witness's brother. This theory rests on the purported connection between the murder and certain individuals, supposedly associated with the defendant, motivating the witness to later target them while working with Federal authorities in otherwise unrelated criminal investigations. The record, however, does not provide factual support to link either the defendant himself, or even the targeted individuals, to the death of the witness's brother.

The mere fact, moreover, that a witness may be biased against particular persons does not support the inference that the witness is also biased against anyone familiar with those persons. Thus, even if the defendant was familiar with those individuals, that fact would not provide the requisite factual basis to imply the witness was biased against the defendant. See Sealy, 467 Mass. at 625 (defendant's failure to sufficiently establish witness's motive to lie precluded further inquiry). To the contrary, the witness specifically testified that the Federal investigations, carried out years after the defendant's conviction, did not relate in any way, nor to any person involved in, the present case. The judge could thereby find that the defendant's argument fell into the realm of speculation. See Commonwealth v. Meas, 467 Mass. 434, 450-451 (2014).

2. Delayed disclosure. To require a new trial based on delayed disclosure of exculpatory evidence, a defendant must show "how his trial tactics would have or should have changed, had he been aware of the [evidence] earlier." Commonwealth v. Stote, 433 Mass. 19, 23 (2000). The disclosure of the targeted individuals' names, late or not, did nothing to change the defendant's position. See Commonwealth v. Molina, 454 Mass. 232, 236-237 (2009) (late disclosure caused no prejudice where defendant's cross-examination was not impacted). Instead, the defendant's theory remains premised on a missing link, see Commonwealth v. Watkins, 473 Mass. 222, 235 (2015), and he is unable to establish a logical inference that the witness was motivated to fabricate his testimony. Without more, the defendant cannot show the requisite prejudice for a new trial. Molina, supra at 242 (claim of "late disclosure ... requires the defendant to show prejudice").

3. Ineffective assistance of counsel. To establish ineffective assistance of counsel, the defendant "must demonstrate that (1) defense counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' ... and (2) he was prejudiced by counsel's conduct in that it 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant argues that trial counsel rendered ineffective assistance in failing to request an instruction on the possibility of an honest but mistaken identification under Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983). Pretermitting the first prong of Saferian, we conclude that the defendant has not demonstrated that he was prejudiced by this omission.

First, the instructions given alerted the jury to the possibility of an honest but mistaken identification. They directed the jury to the "witness's frankness or evasiveness," "the reasonableness of the testimony," "the opportunity that the witness had to observe what it is they're telling you," and "the accuracy of the witness's memory" (emphases supplied). This was sufficient to draw the jury's attention to the distinct issue of honest but mistaken identification in determining the reliability of eyewitness testimony. See Commonwealth v. Franklin, 465 Mass. 895, 913 (2013) (concluding that instruction pursuant to Commonwealth v. Rodriguez, 378 Mass. 296 [1979], was unnecessary where jury were "informed that they could 'consider the ability, the opportunity, and the reliability of a witness to see or hear something in the past and then remember and later testify' "). Given that "a judge need not give 'a particular instruction so long as the charge, as a whole, adequately covers the issue,' " Commonwealth v. Watson, 455 Mass. 246, 259 (2009), quoting from Commonwealth v. Cruz, 445 Mass. 589, 597 (2005), the instruction as given provided adequate basis for the jury to consider the possibility of an honest but mistaken identification.

Second, contrary to the defendant's arguments, the testimony of Lewis (the only identifying eyewitness for whom honest but mistaken identification was a viable theory) was not the only evidence, or even the most important evidence, implicating the defendant in the crime. As noted in the Commonwealth's closing, multiple witnesses connected the defendant to the crime, including those familiar with him and at the scene of the crime, and the Commonwealth provided corresponding ballistic evidence. Significantly, the defendant's own incriminating and inconsistent statements provided the most substantial evidence of his guilt. See Commonwealth v. Navarro, 474 Mass. 247, 259 (2016) ("[T]he defendant's identity as a perpetrator of the crime did not rest solely, or even largely, on those identifications"). Contrast Pressley, 390 Mass. at 620 ("Identification was crucial to the Commonwealth's case because there appears to be no evidence of the defendant's complicity independent of the identification"). Viewing this evidence, independent of the identifying testimony at issue, together with the fact that the instructions as given provided the basis for an argument regarding honest but mistaken identification, "we are not persuaded that ... including an instruction on good faith error in identification[ ] would have been 'likely to have influenced the jury's conclusion.' " Franklin, 465 Mass. at 912-913, quoting from Commonwealth v. Walker, 460 Mass. 590, 598 (2011).

4. Motion to suppress. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Callender, 81 Mass. App. Ct. 153, 154 (2012), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Clarke, 461 Mass. 336, 340 (2012), quoting from Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).

a. Right to remain silent. Under Miranda v. Arizona, 384 U.S. 436 (1966), "[o]nce a defendant has invoked his right to remain silent, interrogation must immediately cease and the invocation must be 'scrupulously honored.' " Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 707 (2011), quoting from Michigan v. Mosley, 423 U.S. 96, 104 (1975). "Absent such 'scrupulous' protection of the right to remain silent, statements made after invocation of the right are inadmissible." Clarke, 461 Mass. at 343.

The protections of Miranda, however, do not apply to the defendant's statements to Detective Persampieri at the Stoughton police station because they were not in response to any interrogation. See Commonwealth v. Koumaris, 440 Mass. 405, 410 (2003) ("Because the defendant was not subject to an interrogation by correction officers, Miranda warnings were not necessary"). The defendant was not asked any questions by Detective Persampieri or the other officers at the Stoughton police station before he made his comments there. Instead, the defendant initiated the exchange while "agitated" and "swearing" at Detective Persampieri, declaring, "[Y]ou ain't got nothing on me, you can't prove nothing," and, "[W]itnesses seem to not want to testify." The detective then responded, saying, "[W]e may be charging you federally," to which the defendant stated, "[Y]ou ain't got the gun." "Spontaneous or unprovoked statements are not the product of custodial interrogation" and are therefore admissible, Commonwealth v. Martin, 467 Mass. 291, 309 (2014), as are voluntary statements that follow an officer's natural and invited response to the defendant's initial comments. See Commonwealth v. Diaz, 422 Mass. 269, 271 (1996) ; Commonwealth v. Clark, 432 Mass. 1, 16 (2000) ; Koumaris, supra at 409-410 (no interrogation where defendant confessed when officer responded, "Go ahead. Tell me what you got to say" after defendant instigated conversation). The comments here, as a result, are admissible.

Closer inquiry is required surrounding the defendant's statements made later to Detective Bell at the Brockton police station, as custodial interrogation resumed at that point. See Callender, 81 Mass. App. Ct. at 157. In determining "whether the person's right to be free from interrogation, once exercised, was 'scrupulously honored' before questioning resumed," ibid., quoting from Commonwealth v. Atkins, 386 Mass. 593, 598 (1982), we "look to the totality of the circumstances." Callender, supra at 158. Relevant factors include:

"(1) whether a significant amount of time elapsed between the suspect's invocation of the right to remain silent and further questioning; (2) whether the same officer conducted both the interrogation where the suspect invoked the right and the subsequent interrogation, and whether the venues differed; (3) whether the suspect was given a fresh set of Miranda warnings before the subsequent interrogation; (4) whether the subsequent interrogation concerned the same crime as the interrogation previously cut off by the suspect; and (5) the persistence of the police in wearing down the suspect's resistance in order to change his mind."

Id. at 157. See Mosley, 423 U.S. at 105-106. The criteria are not exhaustive and no single factor is dispositive. Callender, supra at 157-158.

Regarding the first factor, the interval between the defendant's invocation of his right to remain silent and further questioning does not support suppression, given that over three hours had elapsed between the defendant's 4:40 P.M. invocation in Stoughton and the beginning of his interrogation in Brockton at approximately 8:15 P.M. See Commonwealth v. Rivera, 424 Mass. 266, 269 (1997) (no Mosley violation where interval was three and one-half hours); Commonwealth v. Avellar, 70 Mass. App. Ct. 608, 616-617 (2007) (reversing suppression where interval was approximately two hours).

Regarding the second factor, Detective Bell was not the officer before whom the defendant invoked his Miranda rights in Stoughton, nor was he present when the defendant said he did not want to speak with Detective Persampieri. This factor, therefore, does not support suppression. The defendant here was not questioned further by Detective Persampieri after the defendant expressed the desire not to be questioned by him, and the defendant's express and repeated requests to speak with Detective Bell were granted. See Callender, 81 Mass. App. Ct. at 159, quoting from Mosley, 423 U.S. at 104 (second Mosley factor inclines toward Commonwealth where defendant was questioned by different officer in different venue, and where "the defendant's 'right to cut off questioning' was fully respected").

Regarding the third factor, the defendant was repeatedly advised of his Miranda rights, including immediately preceding the questioning by Detective Bell. See Mosley, 423 U.S. at 104-105 (defendant given fresh warning prior to second interrogation "was thus reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options"). Contrast Commonwealth v. Jackson, 377 Mass. 319, 326, 329 (1979) (violation resulted where "the police conduct ... was contrary to the letter and the spirit of the Miranda decision"); Callender, 81 Mass. App. Ct. at 160 ("By first getting the defendant in the rhythm of answering questions before providing the fresh Miranda warnings, the officers undermined the spirit of Mosley").

Regarding the fourth factor, "whether the subsequent interrogation concerned the same crime as the interrogation previously cut off by the suspect," Callender, 81 Mass. App. Ct. at 157, there had been no interrogation on any subject prior to Detective Bell's interview. We have, nonetheless, held that this factor "weighs against the Commonwealth" where, as here, the defendant is questioned about the only crime for which he was arrested. Id. at 160. See Mosley, 423 U.S. at 105 (describing this factor as whether interrogation "focused exclusively on ... a crime different in nature and in time and place of occurrence from the [crime] for which [the defendant] had been arrested and interrogated").

Regarding the fifth factor, we see little persistence by the police in wearing down the defendant. There is no evidence in this record that Detective Persampieri knew that the defendant had invoked his Miranda rights in Stoughton. Contrast Callender, 81 Mass. App. Ct. at 160-161 ("[T]he officers knew of the defendant's Miranda invocation before they attempted to speak with him"). In light of the apparently acrimonious relationship between the defendant and Detective Persampieri, when the defendant stated that "he did not want to talk with him" (emphasis supplied), the question whether the defendant wanted to talk to someone else was a natural one.

Considering the "totality of the circumstances," Callender, 81 Mass. App. Ct. at 158, this case is closer to Rivera than Callender. In Rivera, as here, suppression was not required "because the booking officer never questioned the defendant, and other officers did so only after three and one-half hours had passed." Rivera, 424 Mass. at 269. In Callender, unlike here, only thirty-five minutes had passed, the interrogation "took place in the same booking room where the defendant had invoked his right to remain silent," the officers got "the defendant in the rhythm of answering questions before providing the fresh Miranda warnings," and the interrogating "officers knew of the defendant's Miranda invocation before they attempted to speak with him." 81 Mass. App. Ct. at 158-161. Accordingly, the motion judge correctly denied the motion to suppress on this ground.

b. Right to prompt arraignment. Pursuant to Mass.R.Crim.P. 7(a)(1), as appearing in 461 Mass. 1501 (2012), and Commonwealth v. Rosario, 422 Mass. 48 (1996), the police are required to arraign an arrested individual before a court "as soon as is reasonably possible," Commonwealth v. Siny Van Tran, 460 Mass. 535, 560 (2011), and statements made by a defendant over six hours after arrest are generally inadmissible without arraignment "unless the defendant makes 'an informed and voluntary ... waiver of his right to be arraigned without unreasonable delay.' " Ibid., quoting from Rosario, supra at 56. The defendant in this case was arrested at approximately 3:09 P.M. , and was interviewed by Detective Bell from around 8:15 P.M. until between 9:15 P.M. and 9:30 P.M. with neither arraignment nor any waiver of that right. As a result, between six and twenty-one minutes of the interview occurred after the six-hour limit. The last paragraphs of Detective Bell's notes from the interview, taken in chronological order, include the defendant's description of the shooting, leaving the scene in a car with a woman named Star, and being able to find the guns used in the shooting. All these statements are either inconsistent with other witness testimony, or are inherently inculpatory. See Commonwealth v. Cartwright, 478 Mass. 273, 286-287 (2017) (analyzing Rosario claim where six hours expired during interrogation).

It is undisputed that the defendant was interrogated beyond the six-hour limit in violation of the bright-line Rosario rule. The rule, however, is subject to "exceptional circumstances ... 'not attributable to the police,' that render[ ] it extremely impractical, if not impossible, to conduct an interrogation within six hours of arrest." Siny Van Tran, 460 Mass. at 562, quoting from Rosario, 422 Mass. at 57. In such cases, statements made by defendants that do not violate the "spirit of Rosario," Siny Van Tran, supra at 563, are admissible if there is no suggestion of police coercion through "intentional delays of arraignment to prolong custodial interrogation of unwilling and uncounseled arrestees." Commonwealth v. McWilliams, 473 Mass. 606, 614 (2016), quoting from Siny Van Tran, supra at 563.

Here, neither the defendant's arraignment nor his interview was delayed by intentional police misconduct. The time from the arrest to the interview with Detective Bell elapsed partly through the booking process at Stoughton, transporting the defendant to Brockton, and booking him again at the station there. Even before the Stoughton booking was completed after 4:40 P.M. , however, the courts were closed and arraignment was impossible until after the three-day Columbus Day weekend. See Siny Van Tran, 460 Mass. at 563 (delay not attributable to police where defendant's transportation resulted in late Friday night arrival "when he could not be arraigned until court was in session the following Monday").

The interview, moreover, was delayed for the benefit of the defendant. He specifically and repeatedly requested to speak to Detective Bell, who was home sick and initially reluctant to return to the station. Despite his illness, Detective Bell arrived to conduct the interview at the defendant's behest without further delay. Rather than coercing an unwilling suspect, the delay in this case was an accommodation for the defendant's voluntary request. Indeed, after he was informed that Detective Bell was unavailable, the defendant told Detective Persampieri, "[C]all him," which the detective promptly did. Despite all these unavoidable delays, nonetheless, the interview with Detective Bell began at approximately 8:15 P.M. , still within the six-hour window.

Considering the convergence of logistics, timing, and the unforeseen illness, this is an unusual case requiring flexibility, Siny Van Tran, 460 Mass. at 563, for reasons not attributable to the police, where "the six-hour period should be tolled appropriately." Rosario, 422 Mass. at 57. The defendant here was willing to be interviewed and was informed of his right to counsel. See McWilliams, 473 Mass. at 614 (Rosario rule intended to facilitate defendant's right to counsel). Indeed, the voluntary nature of the interview, made to accommodate-not undermine-his wishes, bolsters the finding that the admission in evidence of the defendant's statements does not violate "the spirit of the rule." Commonwealth v. Morganti, 455 Mass. 388, 400 (2009). See Siny Van Tran, supra (affirming denial of suppression did not "offend the spirit of Rosario"). The defendant, accordingly, is not entitled to a new trial under Rosario.

Judgments affirmed.

Orders denying motions for new trial and for postconviction discovery affirmed.

      The bus driver was familiar with the defendant. The driver later served as an informant in unrelated Federal criminal investigations.

      The defendant was previously convicted on all counts by a jury in 2005. Several volumes of transcript, however, could not be produced for appellate consideration and attempts to reconstruct the record were unsuccessful. Accordingly, a Superior Court judge ordered a new trial.

      Regarding counsel's not requesting an identification instruction under Commonwealth v. Rodriguez, 378 Mass. 296 (1979), we see no error in the motion judge's conclusion that the Rodriguez instruction might have harmed the defendant by highlighting the reliability of the identification of the defendant from a photographic array. Avoiding that danger was not "manifestly unreasonable." Commonwealth v. Watson, 455 Mass. 246, 256 (2009), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

      Detective Persampieri's testimony was inconsistent regarding whether it was the defendant or the detective who brought up the idea of the defendant's talking to Detective Bell. We discern no clear error in the motion judge's conclusion that Detective Persampieri, who was aware that Detective Bell and the defendant had a positive relationship, brought up the idea.