source: Caselaw Access Project

author: SHIN, J.

license: Public Domain

text:
    COMMONWEALTH v. Rodney MCCRAY
    No. 16-P-1109
    Appeals Court of Massachusetts, Essex..
    Argued December 11, 2017 Decided August 31, 2018
    David B. Hirsch for the defendant.
    Marina Moriarty, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Lemire, & Shin, JJ.
   SHIN, J.

On the afternoon of August 30, 2013, two men attacked another man on a public street, inflicting life-altering injuries. Both men punched the victim, one slammed him to the pavement, and one or both kicked him while he lay on the ground. After an eyewitness identified the defendant as one of the assailants, the defendant was indicted on charges of assault and battery, assault and battery by means of a dangerous weapon (to wit, pavement) causing serious bodily injury (ABDW-SBI), and assault and battery by means of a dangerous weapon (to wit, shod foot). A jury convicted the defendant of all three charges.

On appeal the defendant argues that (1) the motion judge should have suppressed the eyewitness's identification, (2) the evidence was insufficient to support a conviction of ABDW-SBI under a theory of joint venture, (3) the trial judge erred in instructing the jury on the intent required for ABDW-SBI under a theory of joint venture, and (4) the trial judge failed to instruct the jury that they could draw no adverse inference from the defendant's failure to testify, despite his request for such an instruction. As to the third of these arguments, we agree that the joint venture instructions were erroneous because they did not convey to the jury that the defendant must have shared his coventurer's intent to use a dangerous weapon to be guilty of ABDW-SBI. Nonetheless, we conclude that there is no substantial risk of a miscarriage of justice because the jury, by convicting the defendant of assault and battery with a shod foot, necessarily rejected his theory that he withdrew from the assault before the climactic moment when the pavement was used as a dangerous weapon. Instead, the jury necessarily found that the defendant consciously acted together with his coventurer throughout the course of the assault, including at that climactic moment. Accordingly, and as we reject the defendant's remaining arguments, we affirm.

Background. 1. The assault. Jesse Downs was walking on Winter Street near Lafayette Square in Haverhill when, seemingly without provocation, two men attacked him. Four eyewitnesses to the assault testified at trial as follows.

Maria Baez, a childhood acquaintance of Downs, was driving on Winter Street when she saw Downs and rolled down her window to say hello. Before she could do so, two "dark complexion[ed]" men walking behind Downs yelled something that caught his attention. They approached and immediately started punching Downs in his upper body. The shorter man held Downs's hands, while the taller man with tattoos "continued to punch, and at one point lift[ed] Downs off the floor and dropped him on the ground." One of the two men -- Baez did not remember which -- then kicked Downs, while the other stood nearby, before both took off running down the street. Baez telephoned 911 and followed the two men as they ran up Winter Street. A third man was at the scene but did not participate in the assault.

Christopher Siek was driving on Winter Street when he saw two "dark-skinned" men punching a white man in the torso, while a third man stood off to the side. As the victim went into the street to avoid the punches, one of the two men followed him, "picked him right up and just slammed him down ... [l]ike a body slam." The attack "happened so fast [Siek] couldn't do anything." After Siek sounded his horn, the three men ran up the street.

Kenneth Farinelli was driving through Lafayette Square when he saw "[t]hree African American[s]" standing around a white man. One of the men "picked [the victim] up from around the waist" and "slammed [him] on his head." The three men then "ran off."

James Flanagan was driving through Lafayette Square when he saw two men with "dark skin" attacking a white man. One "fairly tall" man "picked [the victim] up and body slammed him." Both men then kicked the victim in the head before running down the street together. A third man was there but was not involved in the assault.

Downs was transported to the hospital, where he collapsed in the waiting room and was airlifted to another hospital to undergo emergency brain surgery. Four months after the assault, he was finally released from a rehabilitation facility. By the time of trial in June of 2015, Downs was still confined to a wheelchair, dependent on a feeding tube, and had a pump in his stomach "to control the tone in his body." According to his girl friend, Downs "needs assistance with everything" -- "[h]e can't go to the bathroom on his own, he can't shower on his own."

2. The investigation. Haverhill police Officer Bryan Bailey was dispatched to Winter Street following "a report that a male was laid out after being beat up." As he was heading that direction, he was redirected to a different location about one-quarter of a mile away. There, he saw two men matching the descriptions provided by dispatch. One man, later identified as the defendant, was wearing jeans and had a black tank top draped over his shoulder. The other man was wearing a white shirt and jeans.

Officer Bailey stopped the defendant and asked to speak with him. The defendant "went off," "flailing his arms and yelling and screaming." The officer then asked dispatch to "have the witness that was following [the two] individuals come to [his] location." Although the officer did not see anyone arrive, he was told by dispatch "that the witness had driven by and said the party [he] had stopped was the correct person."

Officer Bailey drove the defendant back to the scene of the assault. As he was taken out of the cruiser, the defendant started yelling at Downs, to the effect of "I hit you? You said I fucking hit you?" When Downs could not make an identification, the officer returned the defendant to the cruiser and drove him to the police station. During booking the defendant's height was recorded as six feet, two inches, and his weight as 160 pounds.

Officer Jamie Landry headed to a different location in search of the second suspect wearing the white shirt and jeans. There, he saw a man known to him as Xavier Simms. Although Simms admitted he had been with the defendant, the officer allowed him to leave because he did not match the description of either suspect.

Ten to fifteen minutes later, Officer Landry saw Simms again, a few blocks from his previous location. Simms was with the defendant's brother and a man known to the officer as Roberto Hilerio. Several hours later, the three men entered the police station asking about the defendant. Sergeant Meaghan Buckley interacted with them and saw no tattoos on either Hilerio or Simms. At some time thereafter, Hilerio was arrested in connection with the assault; during booking his height was recorded as five feet, ten inches, and his weight as 180 pounds.

Officer Dennis Moriarty was transporting the defendant from the police station on the night of the assault. While seated in the cruiser, the defendant asked "multiple different times, different ways," "how much time he could get for the crimes," "if he was going to get life," and "if he told the truth, could he get less time." He also said, "Seriously, I didn't kill no one, right? ... I'm just going to say everything I did. I can't go away for life."

Also that night, the police interviewed Baez. She described one suspect as "tall and skinny kind of like muscled with tattoos on his arms," wearing a black tank top and jeans, and the other as "probably about five something height" wearing a white shirt and jeans. She stated that "[t]he much taller, tattooed, dark-skinned guy lifted [Downs] in the air and smashed him against the ground." She also stated that the "much taller" man "was the one [who] did the kicking."

In October of 2013, Sergeant Buckley interviewed Flanagan, who recalled that "the bigger of the two" men "grabbed ... the white guy and picked him up and slammed him on his head." According to Flanagan, the man with the white shirt was "le[ss] aggressive" and "smaller." He also stated that he saw an officer with "the bigger," "well-built" man, and that that man was the one who had picked the victim up and dropped him on the ground.

At trial the prosecutor asked the defendant to remove his shirt and show his arms, hands, and shoulder to the jury. When he did so, he revealed three tattoos -- one on each hand and one on his right shoulder.

3. The defendant's case. The defense's theory at trial was that, while the defendant "threw a couple punches," he had stopped punching when "out of nowhere" Hilerio "ran up, grabbed Mr. Downs from behind, and picked him up and slammed him onto the street." The defendant was merely "standing there watching this whole thing unfold."

In support of this theory, the defense elicited testimony from Officer Guy Cooper that Baez told him at the crime scene that a man "with a white t-shirt" had slammed Downs to the ground. The defense also called Simms, who testified that the defendant had "stopped throwing punches" and "backed up" when Hilerio "jumped in," picked Downs up, and dropped him. According to Simms, the defendant was just "standing there," and "then after that, he took off." Finally, the defense called the defendant's brother, who testified that Hilerio told him that "he slammed the guy down" and the defendant "didn't know he was going to do it."

Discussion. 1. Motion to suppress. The motion judge made the following findings regarding Baez's identification. After witnessing the attack, Baez telephoned 911 and gave a description of the suspects. She continued to relay information to dispatch as she followed the suspects in her vehicle.

Within two to four minutes of the 911 call, Officer Bailey saw an individual, identified at the motion to suppress hearing as the defendant, who matched Baez's description. The officer stopped the defendant on Fifth Avenue and conducted a patfrisk. The defendant became "very agitated" and started "flailing his arms and yelling." As a result, the officer arrested the defendant for disorderly conduct, handcuffed him, and put him in the cruiser.

While this was happening, the dispatcher told Baez to go to Fifth Avenue and wait in her vehicle for an officer to come over. Instead of following these instructions, Baez drove by and observed the defendant with Officer Bailey. She then telephoned back to dispatch and stated that the person the officer was holding was one of the perpetrators. When Baez drove by, Officer Bailey was in the process of arresting the defendant but had not yet placed him in the cruiser.

Based on these findings, the motion judge ruled that Baez's identification was admissible because it did not result from "unnecessarily suggestive" circumstances. We review this ruling only for abuse of discretion as it is uncontested that the identification did "not arise from a police procedure." See Commonwealth v. Johnson, 473 Mass. 594, 602, 45 N.E.3d 83 (2016). An abuse of discretion occurs if the "decision resulted from a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." Ibid. (quotation omitted).

Out-of-court identifications made without police wrongdoing are analyzed under common law principles of fairness, as articulated in Commonwealth v. Jones, 423 Mass. 99, 109, 666 N.E.2d 994 (1996). See Johnson, 473 Mass. at 598, 45 N.E.3d 83. A judge applying those principles "may decline to admit an unreliable eyewitness identification that resulted from a 'highly' or 'especially' suggestive confrontation with the defendant." Id. at 598-599, 45 N.E.3d 83, quoting from Jones, 423 Mass. at 109, 666 N.E.2d 994. The defendant bears the burden of proving suggestiveness by a preponderance of the evidence. See id. at 599, 45 N.E.3d 83. If he meets that burden, then the judge must weigh "the probative value of the identification against the danger of unfair prejudice" arising from the suggestive circumstances. Id. at 600, 45 N.E.3d 83.

Here, the motion judge assumed that the defendant was already handcuffed when Baez drove by, but concluded that that alone did not render the circumstances of her identification "unnecessarily suggestive." The defendant does not contend that the judge abused his discretion in this respect. In fact, he concedes that the judge was correct. See Commonwealth v. Phillips, 452 Mass. 617, 627-628, 897 N.E.2d 31 (2008) (showup procedure was not unnecessarily suggestive even though defendant was in police wagon, handcuffed and flanked by two officers).

Nevertheless, the defendant argues that Baez's identification was so unreliable -- because, among other reasons, she drove by quickly, while distracted, and without stopping to hear instructions from the officer -- that it should have been suppressed. But under the Jones framework, a judge need not conduct a reliability analysis unless the defendant first demonstrates the existence of especially suggestive circumstances. See Jones, 423 Mass. at 109, 666 N.E.2d 994 ; Johnson, 473 Mass. at 604, 45 N.E.3d 83. Because the defendant failed to make that showing here, the motion judge properly left the reliability of Baez's identification to the jury to decide.

2. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence only as to his conviction of ABDW-SBI. As to this charge, the Commonwealth proceeded on theories of both principal and joint venturer liability, and the jury returned a general guilty verdict. While not contesting that the evidence was sufficient to convict him as a principal, the defendant argues that he could not be convicted as a coventurer because the Commonwealth failed to prove that he knew or intended that Hilerio would throw Downs to the pavement. In considering this challenge, we review the evidence in the light most favorable to the Commonwealth to determine whether any "rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Mendez, 476 Mass. 512, 523, 69 N.E.3d 968 (2017).

The flaw in the defendant's argument is that, under Commonwealth v. Zanetti, 454 Mass. 449, 468, 910 N.E.2d 869 (2009), a reviewing court does not "examine the sufficiency of the evidence separately as to principal and joint venture liability." Instead, we ask "whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime." Ibid. See Commonwealth v. Housen, 458 Mass. 702, 706-707, 940 N.E.2d 437 (2011) ; Commonwealth v. Barbosa, 477 Mass. 658, 665, 81 N.E.3d 293 (2017). Regarding the charge here, the intent required is general -- the Commonwealth must prove "that the defendant intentionally touched the victim ... with an inherently dangerous weapon or an object used in a dangerous fashion" without justification, resulting in serious bodily injury. Commonwealth v. Vick, 454 Mass. 418, 432, 910 N.E.2d 339 (2009).

Viewed in the light most favorable to the Commonwealth, the evidence supports a finding that the defendant was the assailant who threw Downs to the pavement, establishing that the defendant had the requisite knowledge and intent to commit the crime. Baez testified and stated in her police interview that the taller man with tattoos dropped Downs on the ground. Similarly, Flanagan testified that the "fairly tall" man "body slammed" Downs, and he stated in his police interview that the "bigger" man picked Downs up and dropped him. Given the additional evidence that the defendant was four inches taller than Hilerio, and has tattoos while Hilerio does not, a rational jury could have found that it was the defendant himself who slammed Downs to the pavement, causing his grievous injuries.

Furthermore, even examining the evidence of joint venture separately as the defendant requests, we conclude that it was sufficient to support his conviction. "[T]here is no need to prove an anticipatory compact between the parties to establish joint venture ... if, at the climactic moment the parties consciously acted together in carrying out the criminal endeavor." Commonwealth v. Sexton, 425 Mass. 146, 152, 680 N.E.2d 23 (1997) (quotation omitted). Here, there was testimony from several witnesses that the defendant and Hilerio acted in concert throughout the course of the assault. The two men approached Downs together and attacked him in a coordinated fashion, one holding his hands while the other punched him. After Downs was thrown to the pavement, the defendant continued the assault by kicking him. The two men then fled together. "At no time during [the] conflict did the defendant seek to withdraw." Ibid.

From this evidence the jury could have found that the defendant had the intent to touch Downs with the pavement in a dangerous fashion. See Vick, 454 Mass. at 432, 910 N.E.2d 339. Contrary to the defendant's contention, the Commonwealth did not need to prove that he knew or intended in advance that the pavement would be used during the assault. See Sexton, 425 Mass. at 152, 680 N.E.2d 23. Rather, the jury could have inferred the requisite knowledge and intent from the evidence that the defendant kicked Downs immediately after he was slammed to the pavement. See ibid. (although defendant "may not initially have had knowledge that his brother intended to use the pavement to effectuate the attack," jury could still convict him as coventurer based on his actions of "continuously kick[ing] and punch[ing] [the victim] while his brother repeatedly slammed [the victim's] head into the pavement"); Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 232-233, 47 N.E.3d 41 (2016) (evidence sufficient to support conviction of assault and battery with knife, where defendant and coventurer pursued victim together and defendant kicked victim while coventurer stabbed him). Cf. Commonwealth v. Johnson, 92 Mass. App. Ct. 538, 545, 94 N.E.3d 413 (2017) (there was probable cause that defendant shared intent to use glass as dangerous weapon, where "after [coventurer] struck the victim with the glass, [defendant] did not retreat from the combat, but instead went after the victim himself").

3. Instructions on joint venture. We next consider the defendant's challenge to the joint venture instructions, which he says were deficient because they failed to "advise the jury that the aider and abettor needed to share the principal's intent that some dangerous weapon be used." Consistent with Zanetti, 454 Mass. at 467-468, 910 N.E.2d 869, the trial judge instructed the jury that the defendant was guilty of ABDW-SBI if the Commonwealth proved beyond a reasonable doubt that he "knowingly and meaningfully participated in the commission of the crime of [ABDW-SBI]" and "had the intent required for that particular crime." The judge then gave a more specific instruction on intent. After first explaining that the principal must have "intentionally used pavement as a means of inflicting serious harm," the judge instructed as follows on the intent required of an aider and abettor:

"The intent required [of] an aider and abettor is different. The aider and abettor must have intended a joint venture with the principal to assault and batter Jesse Downs. The aider and abettor need not have agreed to use pavement as a dangerous weapon, or even known or intended that the principal use pavement as a dangerous weapon.
"The aider and abettor must have intended that he and the principal would jointly commit an assault and battery upon Jesse Downs. That is, the aider and abettor must have intended
a joint enterprise with the principal to assault and beat Jesse Downs in a harmful way, without justification or excuse."

We agree with the defendant that these instructions were erroneous in that they would have allowed the jury to convict the defendant of ABDW-SBI upon mere proof that he intended jointly with Hilerio to commit a simple assault and battery. The Commonwealth's burden was higher: it had to prove that the defendant knowingly participated in the commission of the charged offense "with the intent required for that offense," Zanetti, 454 Mass. at 468, 910 N.E.2d 869, which for ABDW-SBI includes intent to use a dangerous weapon. But it is not the case, as the defendant argues, that "such proof could be established only by evidence that Mr. Hilerio communicated to [the defendant] that he intended to ... use the pavement as a weapon or that [the defendant] urged him to use or otherwise supported his use of it." Again, the jury could infer the requisite intent from evidence that "at the climactic moment the parties consciously acted together in carrying out the criminal endeavor."

Sexton, 425 Mass. at 152, 680 N.E.2d 23 (quotation omitted). See Lugo, 89 Mass. App. Ct. at 232-233, 47 N.E.3d 41 ; Johnson, 92 Mass. App. Ct. at 544-545, 94 N.E.3d 413. Nevertheless, the instructions here, viewed as a whole and notwithstanding the judge's accurate statement of Zanetti, did not clearly apprise the jury of this element of the crime. See Commonwealth v. Thomas, 401 Mass. 109, 119, 514 N.E.2d 1309 (1987), quoting from Connolly v. Commonwealth, 377 Mass. 527, 536, 387 N.E.2d 519 (1979) ("[N]o general statement of the charges can remedy a specific instruction which is defective 'unless the general statement clearly indicates that its consideration must be imported into the defective instruction' ").

The error does not, however, require automatic reversal of the defendant's conviction as he suggests. "Although constitutional error, the omission of an element of the crime from the jury instruction is not among the very limited class of structural errors subject to automatic reversal, and upon proper objection would be subject to harmless error analysis." Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7, 757 N.E.2d 249 (2001). See Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 424-425, 796 N.E.2d 423 (2003). The defendant claims that he preserved his objection, but the record demonstrates, to the contrary, that he affirmatively agreed with the instructions. We must therefore determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 15, 712 N.E.2d 575 (1999) ; Commonwealth v. Loadholt, 456 Mass. 411, 427, 923 N.E.2d 1037 (2010). This standard requires us to "review the evidence and the case as a whole, considering the strength of the Commonwealth's case, as well as the nature and significance of the alleged errors." Commonwealth v. Chase, 433 Mass. 293, 299, 741 N.E.2d 59 (2001). After doing so, we will reverse the verdict "only in the extraordinary situation where ... we are left with uncertainty that the defendant's guilt has been fairly adjudicated." Ibid.

The Commonwealth argues that no substantial risk of a miscarriage of justice exists because "the overwhelming weight of credible evidence suggested that the defendant" was the principal in the assault. It is true that, under the substantial risk standard, overwhelming evidence of guilt can overcome an error in instructing on an element of the offense. See Alphas, 430 Mass. at 15, 712 N.E.2d 575. But the evidence here, while certainly sufficient to convict the defendant as the principal, would also support a finding that Hilerio was the one who threw Downs to the pavement. The cases suggest that a greater quantum of evidence is needed for us to conclude that justice did not miscarry. See Commonwealth v. Azar, 435 Mass. 675, 688-689, 760 N.E.2d 1224 (2002) (erroneous malice instruction created substantial risk of miscarriage of justice where Commonwealth's evidence was "strong" but "controverted" and malice could not be "ineluctably inferred").

The verdicts that the jury actually returned, however, allow us to conclude that there is no substantial risk of a miscarriage of justice. Even under harmless error analysis, "an instructional omission, misdescription, or conclusive presumption" does not mandate reversal "where other facts necessarily found by the jury are the 'functional equivalent' of the omitted, misdescribed, or presumed element." Neder v. United States, 527 U.S. 1, 13, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Cf. Commonwealth v. Britt, 465 Mass. 87, 98-99, 987 N.E.2d 558 (2013) (omission of instruction on knowledge of dangerous weapon did not create substantial likelihood of miscarriage of justice where jury, by convicting defendant of other counts, necessarily found that she herself possessed a firearm); United States v. Baldwin, 987 F.2d 1432, 1438-1439 (9th Cir. 1993) (failure to give overt act instruction was harmless error where jury could not have convicted defendant of other counts without finding overt act); United States v. Johnson, 216 F.3d 1162, 1167 (D.C. Cir. 2000) (error in defining "use" and "carry" was harmless where jury could not have convicted defendant of another count without finding "act that constitutes both 'using' and 'carrying' "). Furthermore, where "the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." Neder, 527 U.S. at 17, 119 S.Ct. 1827. See Alphas, 430 Mass. at 15, 712 N.E.2d 575 ; Loadholt, 456 Mass. at 427, 923 N.E.2d 1037.

In this case, by convicting the defendant of simple assault and battery and assault and battery by means of a dangerous weapon (shod foot), the jury necessarily found that the defendant punched Downs and then kicked him once he was on the pavement. This means, in turn, that the jury necessarily rejected the defendant's theory that he threw a few punches and then withdrew from the conflict. Critically, this was the only theory presented by the defense. The defense did not argue, and no reasonable view of the evidence would permit a finding, that the defendant withdrew from the rapidly unfolding conflict before Downs was thrown to the pavement, then returned to kick him moments later. Therefore, by convicting the defendant of kicking Downs, the jury had to have found that he "consciously acted together" with Hilerio throughout the assault, including "at the climactic moment" when the pavement was used as a dangerous weapon. Sexton, 425 Mass. at 152, 680 N.E.2d 23 (quotation omitted).

No substantial risk of a miscarriage of justice exists in these circumstances. Under Sexton, proof that a defendant "consciously acted together" with his coventurer at the moment a dangerous weapon is used is alone sufficient to show the defendant's intent to commit assault and battery by means of that dangerous weapon. Ibid. Accord Lugo, 89 Mass. App. Ct. at 233, 47 N.E.3d 41. Were the rule otherwise, assailants who participate in a group attack would be insulated from criminal liability where it is not possible to determine which one used which weapon or inflicted which injuries. But in a joint venture situation, our law does not require the Commonwealth to prove who actually committed the crime and who aided and abetted it. See Zanetti, 454 Mass. at 468, 910 N.E.2d 869. Thus, it is enough here that the defendant was consciously participating in the assault at the point when either he or Hilerio used the pavement as a dangerous weapon. See Sexton, 425 Mass. at 152, 680 N.E.2d 23 ; Lugo, 89 Mass. App. Ct. at 233, 47 N.E.3d 41.

Against this legal backdrop, the jury's finding that the defendant did not withdraw from the conflict is critical, and our reliance on that finding does not "eliminate[ ] the shared intent requirement," as the dissent posits. Post at ----, 109 N.E.3d at 1106. Again, once the jury determined that the defendant kicked Downs, no view of the evidence would have allowed them to conclude that he was anything other than an active participant in the conflict when, moments earlier, Downs was thrown to the pavement. Contrary to the dissent's view, see post at ----, --- N.E.3d at ----, it is of no legal consequence that the kicking occurred immediately after the assault with the pavement, as compared to Sexton where the two acts appeared to have occurred simultaneously. What matters is whether the defendant was consciously acting together with Hilerio during the assault with the pavement. The verdicts returned by the jury, in light of the evidence presented, compel the conclusion that he was.

In reaching the result that we do, we do not, as the dissent puts it, "in effect usurp the jury's function." Post at ----, 109 N.E.3d at 1105. Rather, we "in typical appellate-court fashion, ask[ ] whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." Neder, 527 U.S. at 19, 119 S.Ct. 1827. Here, based on the evidence and the verdicts that the jury actually returned, we are confident that the error in the instruction did not materially influence the outcome of the trial. That is, this is not the "extraordinary situation where ... we are left with uncertainty that the defendant's guilt has been fairly adjudicated." Chase, 433 Mass. at 299, 741 N.E.2d 59.

4. Failure to give "no adverse inference" instruction. Finally, the defendant argues that the trial judge erred in failing to instruct the jury that they could not draw an adverse inference from the defendant's decision not to testify. Before the close of the Commonwealth's case, the defendant requested such an instruction, but the judge, it appears inadvertently, did not give one. Because the defendant did not bring the omission to the judge's attention, our standard of review again is whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 544, 883 N.E.2d 1243 (2008).

We discern no such risk. The judge gave a clear instruction in his opening remarks to the venire that the defendant had "an absolute right not to testify" and no "negative inference" could be drawn from his decision. See Commonwealth v. Cintron, 438 Mass. 779, 786, 784 N.E.2d 617 (2003) (instructions given to venire "will be considered along with the judge's final instructions in deciding whether the instructions were correct"). In his opening instructions to the jury, the judge reiterated that the defendant had "no obligation, no burden" to call witnesses or offer evidence. And although in the final charge the judge did not use the specific words "adverse inference," he carefully instructed on the presumption of innocence and then stated: "The presumption of innocence also means that no person ever has to prove his innocence. No person charged with a crime ever has to explain anything or prove anything to a jury. Exactly the contrary is true." Considering these instructions as a whole, we view them as similar to those that the Supreme Judicial Court has held to "satisf[y] the requirement for an instruction minimizing the danger that the jury will draw an adverse inference from the defendant's decision not to testify." Commonwealth v. Gilchrist, 413 Mass. 216, 219, 597 N.E.2d 32 (1992). Cf. Commonwealth v. Feroli, 407 Mass. 405, 410-411, 553 N.E.2d 934 (1990) (no substantial likelihood of miscarriage of justice where judge did not use specific words "no adverse inference" but did instruct that "defendant has the absolute right to remain passive and require the Commonwealth to prove its case beyond a reasonable doubt").

Moreover, it is fair to say that the Commonwealth's case was strong, and defense counsel's failure to object to the omission of the instruction suggests that it had minimal significance in the overall context of the trial. In fact, we think it plausible, as the Commonwealth argues, that counsel could have made a tactical decision not to object in order to draw the jury's attention away from "the question why the defendant decided not to assist the jury in their fact-finding function" and to focus them instead on the three witnesses who testified on his behalf. Commonwealth v. Buiel, 391 Mass. 744, 746-747, 463 N.E.2d 1172 (1984). See Dussault, 71 Mass. App. Ct. at 545, 883 N.E.2d 1243. And unlike in Commonwealth v. Botelho, 87 Mass. App. Ct. 846, 852-853, 35 N.E.3d 417 (2015), on which the defendant heavily relies, the prosecutor in her closing argument did not comment on the defendant's decision not to testify. In this situation we can conclude with confidence that the omission did not materially affect the jury's verdicts.

Judgments affirmed.

The jury in this case were not instructed on an element of the offense of assault and battery by means of a dangerous weapon (to wit, pavement) causing serious bodily injury. They were not told that, assuming the defendant was not the principal, in order to convict him as a joint venturer in the commission of the crime with which he was charged, they were required to find beyond a reasonable doubt that the defendant shared with the principal, Roberto Hilerio, the intent to use a dangerous weapon when the principal did so by hurling the victim to the pavement. See Commonwealth v. Zanetti, 454 Mass. 449, 466, 910 N.E.2d 869 (2009) (judge must instruct jury that conviction of crime as joint venturer requires proof beyond reasonable doubt that "the defendant knowingly participated in the commission of the crime charged ... with the intent required for that offense"). Indeed, they were told they could convict him if he merely had the intent to assault and batter, which, the overwhelming evidence showed, he certainly did. Because no objection was made to the inadequacy of the instruction on intent, we are required to determine whether the failure to instruct the jury that they were required to find this element beyond a reasonable doubt created a substantial risk of a miscarriage of justice. Under settled law, because the evidence did not compel a finding that the defendant had the requisite intent, the error did create a substantial risk of a miscarriage of justice. See Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 8, 757 N.E.2d 249 (2001). Because the court majority finds to the contrary only by effectively replacing the shared intent requirement for joint venturers with respect to use of a dangerous weapon with a weaker requirement that they were already "consciously acting together" with the principal, I must respectfully dissent.

When we uphold the conviction of an individual in the absence of a jury instruction on an essential element of the offense, we in effect usurp the jury's function. An individual may be found guilty of a crime, of course, only after a finding that each element of the offense has been proven has been made by a jury, not by a panel of appellate judges who have not heard the live testimony or deliberated about the evidence as jurors do. And, of course, it is a bedrock principle of due process that one may not be convicted of a crime, with, among other things, the attendant loss of liberty, unless each essential element of the offense has been proven to the jury beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). When we uphold a conviction in these circumstances, by definition the jury, which has not been instructed on an element of the offense, has not explicitly found it proven beyond a reasonable doubt.

Thus, although our cases hold that not every failure to instruct on an essential element of the offense creates a substantial risk of a miscarriage of justice, in light of the fundamental nature of such an error, a substantial risk of a miscarriage of justice must be found unless the presence of that element can be "ineluctably inferred" from the evidence, Commonwealth v. Azar, 435 Mass. 675, 688, 760 N.E.2d 1224 (2002) (quotation omitted), that is, unless the evidence "required the jurors to find" the essential element on which they were not instructed. Ibid.

The rule does not create a "presum[ption,]" ante at ---- n.9, 109 N.E.3d at 1101 n.9. As in all cases of unpreserved error, the burden to show a substantial risk of a miscarriage of justice lies with the defendant. But the law is clear. As Justice Grasso wrote in Commonwealth v. Redmond, 53 Mass. App. Ct. at 8, 757 N.E.2d 249, a substantial risk of a miscarriage of justice is created by failure to instruct on an element of the offense unless "the only permissible inference" from the evidence is that the element was present. The defendant's burden in this circumstance thus is to show merely that that is not the only permissible inference. This is what creates the requisite "uncertainty that the defendant's guilt has been fairly adjudicated," that requires reversal. Commonwealth v. Chase, 433 Mass. 293, 299, 741 N.E.2d 59 (2001).

Thus, while viewed with a wide-angle lens it may be an "extraordinary situation" in which we find a substantial risk of a miscarriage of justice, ibid., where the judge fails to instruct the jury on an essential element of the offense -- itself, I hope an extraordinary situation -- it is an ordinary one. Unsurprisingly, both the Supreme Judicial Court and our court conclude routinely that that such a failure has created such a risk. Indeed, the Supreme Judicial Court has reached such a conclusion without even mentioning, let alone analyzing, the possibility that failure to instruct on an essential element of the offense might not create such a risk, see Commonwealth v. Paquette, 475 Mass. 793, 802, 62 N.E.3d 12 (2016), and we have made clear that in at least some circumstances when a jury is not charged on, and therefore has not found, an essential element of the offense, a substantial risk of a miscarriage of justice is "inherent." Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 492, 998 N.E.2d 344 (2013).

While I agree with the court majority that the evidence in this case would have supported a finding that the defendant, if he was acting as a joint venturer and not a principal, shared the intent of the principal, the evidence does not compel such a finding.

The court majority does not conclude otherwise. Instead it asks a different question, one that eliminates the shared intent requirement: whether the defendant consciously acted together with the principal throughout the assault and battery or, instead, "withdrew from the rapidly unfolding conflict before [the victim] was thrown to the pavement." Ante at ----, 109 N.E.3d at 1102. Because this is the question it asks, the court majority then suggests that, given the other verdicts, the only way the defendant could not have had the intent required would be if he "withdrew from the ... conflict before Downs was thrown to the pavement, then returned to kick him moments later," a most unlikely scenario.

The court majority concludes unsurprisingly that the jury's other verdicts demonstrate that the jury found the defendant did not withdraw in this exceedingly implausible way. It concludes that "by convicting the defendant of kicking [the victim]," after he was thrown to the pavement, "the jury had to have found that [the defendant] 'consciously acted together' with Hilerio throughout the assault, including 'at the climactic moment' when [the victim] was thrown to the pavement." Ante at ----, 109 N.E.3d at 1102, quoting from Commonwealth v. Sexton, 425 Mass. 146, 152, 680 N.E.2d 23 (1997). This, the majority concludes, demonstrates there was no substantial risk of a miscarriage of justice, regardless of whether the defendant actually had the intent to use a dangerous weapon at the moment when (by hypothesis) Hilerio threw the victim to the pavement.

But to convict the defendant on the joint venture theory, the jury were required, as the majority explains elsewhere in its opinion, not merely to find that the parties "consciously acted together," before and after the climactic moment, or that the defendant did not withdraw prior to it, but to find that the defendant had the intent at the moment of the principal throwing the victim to the pavement to assault and batter the victim by means of a dangerous weapon. Since the use of the pavement was the first use of a dangerous weapon in the assault, if Hilerio was the principal the defendant might at that moment not have had the intent to use a dangerous weapon not because he withdrew, but because he had not yet formed the intent to use a dangerous weapon at the time when Hilerio suddenly acted. That the defendant had acted together with Hilerio prior to this moment demonstrated only an intent to assault and batter; that the defendant had an intent to use a dangerous weapon (his shod foot) afterward suffices to support a finding that he had the requisite shared intent at the prior time when the victim was thrown to the ground, but it does not compel such a conclusion. Thus, in holding that the necessary implication of the defendant "consciously acting together" with Hilerio both before and after the victim was thrown to the pavement is that the defendant had the requisite intent to be convicted as a joint venturer for throwing the victim to the pavement, the majority reads the shared intent requirement out of its analysis.

An examination of the defendant's conviction for kicking the victim may make the point more clearly. The majority and I agree that the critical evidence necessary to support a finding beyond a reasonable doubt that the defendant shared the requisite intent is the defendant's own assault of the victim with a dangerous weapon, his shod foot. See ante at ----, 109 N.E.3d at 1103. But this conduct came after the victim was thrown to the pavement, the first use of a dangerous weapon against the victim. Whether, at the "climactic moment" when the victim was thrown to the pavement the defendant already had an intent to utilize a dangerous weapon, or instead was surprised by such use of the pavement, and developed his own intent only afterward, is thus a question for the jury. The finding that he shared the principal's intent at that moment was neither "required" nor did the evidence make it "ineluctable." It was not the only inference the jury could have drawn. See Redmond, 53 Mass. App. Ct. at 8, 757 N.E.2d 249. Therefore the failure to instruct on intent created a substantial risk of a miscarriage of justice.

The court majority may be read to suggest that if I am correct, "assailants who participate in a group attack would be insulated from criminal liability where it is not possible to determine which one used which weapon or inflicted which injuries." Ante at ----, --- N.E.3d at ----. But this conflates sufficiency of the evidence with the question of whether failure to instruct creates a substantial risk of a miscarriage of justice. Of course assailants in a group attack can be, and routinely are, convicted as joint venturers (just as, on retrial, the defendant may be convicted here), so long as a jury actually finds the assailants share the requisite intent with the principal. The evidence here (and in all such similar cases) is sufficient to support such a finding. It just does not in this case compel it. And therefore, because, and only because, the jury were erroneously instructed they did not have to find shared intent, the defendant is entitled to a new trial on this charge.

Commonwealth v. Sexton, 425 Mass. at 152, 680 N.E.2d 23, to the extent it is relevant -- the court there did not hold that the jury were required to find the requisite intent, only that there was sufficient evidence to support such a finding -- supports my analysis and my conclusion. The Supreme Judicial Court explicitly noted there that the defendant "may not initially have had knowledge that [the principal] intended to use the pavement to effectuate the attack." Ibid. It stated, however, that it was "apparent" that the defendant shared the principal's intent, but only because "the defendant continuously kicked and punched [the victim] while [the principal] repeatedly slammed [the victim's] head into the pavement." Ibid. The critical fact that made the defendant's shared intent to use the pavement as a dangerous weapon apparent in that case was that the principal slammed the victim's head against the pavement not only before, but after the defendant himself began kicking the victim. By contrast, the court recognized that at the time of the principal's initial use of the pavement as a dangerous weapon, the defendant, as here, may not have had sufficient knowledge to share his intent. Ibid.

Because evidence is absent here that ineluctably requires a finding of shared intent at the climactic moment when, by hypothesis, Hilerio threw the victim to the ground, under our case law, the failure to instruct the jury properly on the essential element of intent with respect to the one charge at issue created a substantial risk of a miscarriage of justice. Because I conclude as a consequence that there must be a new trial on this charge, I must respectfully dissent.

      The jury acquitted the defendant of intimidation of a witness.

      The jury were instructed only as to principal liability on that charge.

      We summarize the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

      This witness was Baez, and her identification was the subject of the defendant's motion to suppress. We discuss the identification in greater detail, infra.

      Although the judge phrased the inquiry in these terms, we note that unnecessary suggestiveness is the standard that applies to identification procedures conducted by the police. See Johnson, 473 Mass. at 604, 45 N.E.3d 83. Where, as here, there is no allegation of police misconduct, the standard is whether the identification was made under "highly" or "especially" suggestive circumstances -- meaning, circumstances that are "so suggestive that there is a substantial risk that they influenced the witness's identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event." Id. at 603-604, 45 N.E.3d 83. Under either standard, however, the result is the same. As the judge correctly observed, if the procedure would not have been unnecessarily suggestive had it been conducted by the police, "a common law analysis provides no more protection." See Commonwealth v. McWilliams, 473 Mass. 606, 617, 45 N.E.3d 94 (2016), quoting from Johnson, 473 Mass. at 603-604, 45 N.E.3d 83 (where identification was made "in circumstances comparable to a permissible showup conducted by a police officer," procedure "could not have been 'especially suggestive' because it was conducted by a third party").

      The defendant does not contest that the pavement qualifies as a dangerous weapon, that the touching was without justification, and that Downs's injuries were serious.

      We entertain the defendant's argument as it is relevant to our discussion, infra, regarding the instructions on joint venture.

      As the defendant notes, lead defense counsel and the judge had an extended discussion about the intent element of the offense. At no point, however, did counsel object to the instructions. He failed to do so despite the judge's expressed concerns that it appeared as though counsel "[didn't] agree with [the] instructions" and that he (the judge) "didn't quite understand ... [counsel's] contentment with these instructions." Nonetheless, counsel stated three times that he agreed. And although the defendant's second counsel indicated that he did have concerns, he chose not to specify the nature of his objection, stating that he "[didn't] want to confuse anyone else." Furthermore, after the judge finished instructing the jury, lead counsel again stated that he was content. From these circumstances we conclude that the objection was not preserved.

      Our dissenting colleague suggests that we must presume a substantial risk of a miscarriage of justice where there has been an instructional error on an element of the offense. See post at ----, --- N.E.3d at ----. But to the contrary, the Supreme Judicial Court and this court have repeatedly held that such an error does not require reversal where the circumstances reveal that it did not materially affect the guilty verdict. See, e.g., Alphas, 430 Mass. at 15, 712 N.E.2d 575 ; Loadholt, 456 Mass. at 427, 923 N.E.2d 1037 ; Palmer, 59 Mass. App. Ct. at 426, 796 N.E.2d 423 ; Commonwealth v. Velez, 82 Mass. App. Ct. 12, 19-20, 969 N.E.2d 1142 (2012).

      In particular, such a finding would be supported by Simms's testimony and Siek's statement in his police interview that the "small, thin one, that was about five-eight, [was] the suspect who slammed the white boy on the ground." There was also conflicting evidence about the color and type of shirt worn by the principal assailant.

      As the majority describes, although the jury could also have found the defendant guilty as the principal, the evidence would have supported a finding that Hilerio was the individual who threw the victim to the ground. Thus, as the majority concludes, because there was a general verdict, we must assess the adequacy of the instructions on both possible theories of conviction, principal and joint venturer liability, since the failure to give a correct instruction as to both theories is constitutional error. See Commonwealth v. Bolling, 462 Mass. 440, 450, 969 N.E.2d 640 (2012) (failure to properly instruct on both theories is error); Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 6-7, 757 N.E.2d 249 (2001) (omitting essential element of crime in jury instruction is constitutional error).

      The Commonwealth does not argue that the failure to object was a reasonable tactical decision of trial counsel, see Commonwealth v. Silva, 431 Mass. 401, 405, 727 N.E.2d 1150 (2000) (defendant's trial strategy is relevant to substantial risk analysis), or that this was "invited error." Commonwealth v. Knight, 37 Mass. App. Ct. 92, 99-100 & n.2, 637 N.E.2d 240 (1994) (when defendant specifically requests instruction at trial, defendant may not challenge instruction on appeal).


author: RUBIN, J.

text:
    H. Christopher STARKEY & another v. DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, & others.
    No. 16-P-1594
    Appeals Court of Massachusetts, Barnstable..
    Argued December 11, 2017. Decided September 11, 2018.
    Glenn F. Russell, Jr., Fall River, for the plaintiffs.
    Charles L. Solomont, Boston, for Deutsche Bank National Trust Company & another.
    Present: Rubin, Lemire, & Shin, JJ.

      Louisa H. Starkey.

      Of the WaMu Mortgage Pass Through Certificates Series 2006-AR1 Trust.

      JPMorgan Chase Bank, N.A.; Chase Home Finance, LLC; Washington Mutual, Inc.; Washington Mutual Bank, FA; Washington Mutual Mortgage Securities Corporation; Washington Mutual Mortgage Service Corporation; and ATM Corporation.

   RUBIN, J.

The plaintiffs, H. Christopher Starkey and Louisa H. Starkey, entered into a mortgage loan transaction in which they executed a promissory note in favor of Washington Mutual Bank, FA (Washington Mutual), as lender and payee in the amount of $1,000,000, on November 22, 2005, and gave Washington Mutual a mortgage on their residential real property in South Yarmouth. The plaintiffs ultimately fell behind on their mortgage payments. On May 14, 2009, Deutsche Bank National Trust Company (Deutsche Bank), as trustee for WaMu Mortgage Pass Through Certificates Series 2006-AR1 Trust (trust), brought a "Complaint to Foreclose Mortgage" against the plaintiffs under the Servicemembers Civil Relief Act, as a final step prior to initiating the process of foreclosure through publication. On June 10 and June 15, 2009, the plaintiffs sent "Notice[s] of Rescission" to Deutsche Bank as trustee of the trust, in which they claimed the right to rescind the November 22, 2005, transactions. After receiving no response, they filed their November, 2009, complaint in the instant action in Superior Court, naming as defendants Deutsche Bank, as trustee for the trust; JPMorgan Chase Bank, N.A. (JPMorgan Chase), successor in interest to Washington Mutual; and other entities related to JPMorgan Chase or Washington Mutual. The plaintiffs sought declaratory relief, damages, and rescission of the mortgage and note, alleging that the defendants have no enforceable rights with respect to the mortgage and note due to their failure to properly convey these assets into the trust (count 1), that the note and mortgage were obtained without disclosures mandated by G. L. c. 140D (count 2), that the plaintiffs were fraudulently induced to sign the mortgage and note (count 3), that the defendants breached their contract with the plaintiffs by refusing to allow the plaintiffs to rescind the mortgage loan (count 4), that the defendants violated the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 - 2617 (2006) (count 5), that the defendants violated the consumer protection statute, G. L. c. 93A (count 6), and that the defendants violated the borrower's interest statute, G. L. c. 183, § 28C (a ) (count 7).

The defendants filed motions to dismiss in January, 2010. In their memoranda in support of the motions to dismiss, the defendants did not raise any argument that dismissal was required by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183, the relevant portions of which are codified at 12 U.S.C. § 1821(c) - (l) (2006). However, at argument on the motions, without prior notice to the plaintiffs, the defendants presented the judge with a copy of Demelo v. U.S. Bank Nat'l Ass'n, 727 F.3d 117 (1st Cir. 2013), and argued that FIRREA, as construed by Demelo, required dismissal of the suit.

The motion judge ordered the dismissal of all but one claim in the complaint -- count 5 as against JPMorgan Chase -- solely on the basis of FIRREA. At the first opportunity to address that statute, after the decision was rendered, the plaintiffs filed a motion for reconsideration, arguing the inapplicability of FIRREA. That motion was denied the same day it was filed. Eventually the remaining count 5 claim was resolved by mutual agreement and dismissed by separate judgment. A second judgment then entered dismissing counts 1 through 4, 6, and 7, on the basis of FIRREA. Before us now is the plaintiffs' timely appeal from that judgment (as corrected to remedy a clerical mistake).

On appeal the only issue before us is whether FIRREA requires dismissal of these counts. In light of the procedural history described, we think the plaintiffs' arguments were adequately raised below. Additional relevant facts will be described in the course of our discussion below.

Analysis. On September 25, 2008, Washington Mutual Bank, formerly Washington Mutual Bank, FA, was declared insolvent and placed into receivership of the Federal Deposit Insurance Corporation (FDIC). See Thompson v. Washington Mut., 806 F.Supp.2d 197, 199 (D.D.C. 2011). Its assets were immediately sold to defendant JPMorgan Chase. FIRREA sets forth a claims procedure that requires creditors of failed banks to file claims with the FDIC, and divests courts of jurisdiction to hear these claims against these banks, or the FDIC as receiver, until administrative remedies with the FDIC have been exhausted. Specifically, the statute provides,

"Except as provided in this subsection, no court shall have jurisdiction over--
"(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the Corporation [i.e., the FDIC] has been appointed receiver, including assets which the Corporation may acquire from itself as such receiver; or
"(ii) any claim relating to any act or omission of such institution or the Corporation as receiver."

12 U.S.C. § 1821(d)(13)(D). The defendants argue that the statute bars the plaintiffs' claims because it eliminates the trial court's jurisdiction, and that the plaintiffs are remitted to the claim procedure set forth in FIRREA, under which the deadline for filing claims has now passed. See Alkasabi v. Washington Mut. Bank, F.A., 31 F.Supp.3d 101, 104 (D.D.C. 2014) (FDIC set December 30, 2008, as deadline for filing claims against the Washington Mutual receivership).

Procedural setting. As an initial matter, in their complaint, the plaintiffs alleged that their mortgage was "apparently" held by "Washington Mutual, Inc., or one of its subsidiaries" on the date of Washington Mutual's insolvency. They alleged that they were not informed that anyone other than the original mortgagee, Washington Mutual, held their mortgage loan prior to their receipt of the trust's Complaint to Foreclose Mortgage. The notion that the mortgage loan was held by Washington Mutual on the date of its placement in receivership (September 25, 2008) was certainly a reasonable inference, since, three days before bringing the May 14, 2009, Complaint to Foreclose Mortgage, the trust was purportedly assigned the mortgage by JPMorgan Chase. The assignment was signed by Barbara Hindman, vice-president of JPMorgan Chase, recorded in the Barnstable Registry of Deeds on May 20, 2009, and accompanied by an affidavit by the FDIC stating that JPMorgan Chase came to own all of Washington Mutual's "loans and loan commitments" on September 25, 2008.

Although the memoranda in support of the defendants' motions to dismiss, filed by a single attorney purporting to represent all the defendants, including JPMorgan Chase and the trust, did nothing to clarify the question of who owned the note and the mortgage at what times, the plaintiffs did append to an opposition memorandum a copy of the "Pooling and Servicing Agreement" (PSA), an agreement between WaMu Asset Acceptance Corp. as depositor of a set of assets (primarily mortgage loans), Washington Mutual Bank as servicer of those loans, Deutsche Bank as trustee of the trust, and Deutsche Bank Trust Company Delaware as Delaware trustee. Its inclusion suggests that the mortgage was securitized and sold to the trust long before Washington Mutual's insolvency. That document reveals that the trust obtained all its assets through a purchase from WaMu Asset Acceptance Corp., the set of assets being valued at over $1.5 billion. The PSA states that those assets include "Mortgage Loans" that would be conveyed to the trust on the closing date, January 30, 2006. "Mortgage Loan[ ]" is relevantly defined to include both the note and the mortgage. According to the PSA, the "Mortgage Files," which include the mortgage notes and recorded mortgages, endorsed or assigned respectively either in blank, to the trust, or to the trustee, were also to be delivered to the trust on January 30, 2006. The trust then issued a variety of classes of "certificates," each representing a fractional ownership interest in the bundle of Mortgage Loans that made up the trust assets, and the certificates were subsequently sold on the open market. The PSA appears to make no provision, and appears to grant the trust no authority, for acquisition of additional assets by the trust subsequent to the closing date.

Arguing that FIRREA bars the plaintiffs' claims if the mortgage was owned by Washington Mutual on the date of its placement in receivership, the defendants now contend that because the plaintiffs, understandably in light of the defendants' own conduct, pleaded that the mortgage was "apparently" owned by Washington Mutual on that date, the plaintiffs have "pled themselves out of court."

At this stage in the proceedings, however, we need not determine what claims or actions might be barred by FIRREA with respect to assets owned by Washington Mutual on the date it went into receivership. That is because the judge, appropriately, considered the PSA in ruling on the motions to dismiss, specifically concluding that "[t]he mortgage was quickly packaged into a security sold to Deutsche Bank." The judge thus implicitly treated the motions as ones for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), rather than as motions to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). See Mass. R. Civ. P. 12 (b) ("If, on any motion asserting the defense numbered [6], to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment ..."). Accord Cousineau v. Laramee, 388 Mass. 859, 860 n.2, 448 N.E.2d 756 (1983) (trial judge who relies on factual matters outside the pleadings in deciding a rule 12 [b] [6] motion implicitly converts that motion into one for summary judgment).

On appeal, we therefore do the same . Our review is de novo. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680, 46 N.E.3d 24 (2016). Drawing every inference from the record in favor of the nonmoving parties, the plaintiffs, we must determine whether there is any genuine issue of material fact and whether, as a matter of law, the defendants are entitled to judgment. Id. See Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007).

Discussion. As our description of the proceedings below suggests, there is, at least, a genuine issue of fact with respect to the ownership of the plaintiffs' mortgage loan in 2008. If, as the PSA suggests, the note and the mortgage were sold to the trust in 2006, they were no longer assets of Washington Mutual on the day it went into receivership. Both the note and the mortgage would have been the property of the trust since 2006, notwithstanding the transfer document recorded in May, 2009.

In a suit against a purchaser of a loan from a depository institution that later became insolvent and went into receivership of the FDIC, the first clause of 12 U.S.C. § 1821(d)(13)(D) is inapplicable. Such a suit does not seek "payment from, or ... a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver." The question before us is whether such a suit is barred by the second clause, eliminating jurisdiction over "any claim relating to any act or omission of such institution or the [FDIC] as receiver." 12 U.S.C. § 1821(d)(13)(D)(ii).

"In FIRREA, the word 'claim' is a term-of-art that refers only to claims that are resolvable through the FIRREA administrative process, and the only claims that are resolvable through the administrative process are claims against a depository institution for which the FDIC is receiver." American Nat'l Ins. Co. v. Federal Deposit Ins. Corp., 642 F.3d 1137, 1142 (D.C. Cir. 2011). This understanding of the scope of the word "claim" accords with the purposes of FIRREA, which are "to ensure that the assets of a failed institution are distributed fairly and promptly among those with valid claims against the institution, and to expeditiously wind up the affairs of failed banks." McCarthy v. Federal Deposit Ins. Corp., 348 F.3d 1075, 1079 (9th Cir. 2003), quoting Freeman v. Federal Deposit Ins. Corp., 56 F.3d 1394, 1401 (D.C. Cir. 1995). See Marquis v. Federal Deposit Ins. Corp., 965 F.2d 1148, 1154 (1st Cir. 1992) ("FIRREA was designed to create an efficient administrative protocol for processing claims against failed banks"); Rosa v. Resolution Trust Corp., 938 F.2d 383, 396 (3d Cir. 1991) (purpose of FIRREA's administrative procedure is to "quickly and efficiently resolve claims against a failed institution without resorting to litigation").

Courts have required the use of the administrative claims procedure for claims against third-party banks that purchased the assets of the failed bank from the FDIC as receiver and assumed its rights and/or liabilities from the FDIC -- the purchasing bank in this case is JPMorgan Chase -- when those claims are "functionally," if not "formally," against the failed bank. See, e.g., Tellado v. IndyMac Mtge. Servs., 707 F.3d 275, 280-281 (3d Cir. 2013) ; Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1214 (9th Cir. 2012) ; Aber-Shukofsky v. JPMorgan Chase & Co., 755 F.Supp.2d 441, 448 (E.D.N.Y. 2010). In those cases, the suit was functionally against the failed bank because the purchasing bank held, at the time of the suit, the assets that the FIRREA claims process was designed to distribute, and a contrary rule would allow plaintiffs to circumvent the required process simply by naming the purchasing bank rather than the failed bank as the defendant. See, e.g., American Nat'l Ins. Co., supra at 1144, ; Benson, supra at 1214,. This was the case with the defendant bank in Demelo v. U.S. Bank Nat'l Ass'n, 727 F.3d 117 (1st Cir. 2013), relied on by the defendants here.

Consistent with the purposes of the statute, though, in Demelo the United States Court of Appeals for the First Circuit implied that the FIRREA bar applies only to holders of mortgages originally issued by the failed bank when those mortgages were "acquired ... by way of the powers vested in the FDIC under FIRREA." Id. at 124. See American First Fed., Inc. v. Lake Forest Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir. 1999) ("[The bank], having purchased the note from the [FDIC], stands in the shoes of the [FDIC] and acquires its protected status under FIRREA"). In other circumstances, the assignee will have whatever "successor liability" comes with the assigned mortgage. Demelo, supra. This is the approach taken by the United States Court of Appeals for the Second Circuit in Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905 (2d Cir. 2010). In that case, a trust created by a bank, NextBank, purchased some assets from NextBank before it failed. The trust then issued notes backed by proceeds from the assets, which notes it subsequently sold. After NextBank failed, the FDIC and various noteholders each claimed the right to certain proceeds -- the noteholders under the notes, and the FDIC as receiver for the trust's creator. The trust interpleaded the FDIC and the noteholders to resolve the dispute. Id. at 908-910. The FDIC argued that the case was barred by FIRREA. Id. at 920. The Second Circuit rejected this argument because, although it concluded the case involved claims related to an "act or omission" of the FDIC, the claims at issue were only against the solvent trust -- not against the failed bank or the FDIC as receiver. Since such claims could not have been brought under the administrative procedures of 12 U.S.C. § 1821(d), FIRREA did not bar them:

"This interpleader ... is not an administrative claim, nor could it have been one. The noteholders are not creditors of NextBank, and they assert no claims against either that failed institution or against the FDIC. They hold notes issued by the trust, an independent and still solvent entity. Accordingly, since they assert no claims against the FDIC as receiver for NextBank, they are not bound by the jurisdictional limitations or other procedural requirements of § 1821(d).
"While the plain language of ... § 1821(d)(13)(D)(ii) [ ] may initially appear helpful to the FDIC's argument, closer examination reveals it to be irrelevant. Section 1821(d)(13)(D)(ii) states: '[e]xcept as otherwise provided in this subsection, no court shall have jurisdiction over ... any claim relating to any act or omission of [an] institution [in receivership] or the
[FDIC] as receiver.' Read out of context, this provision may seem to deprive courts of jurisdiction over any claim involving the FDIC's 'act or omission,' even a claim not directly against the FDIC. Such an interpretation would be erroneous. This provision is not an isolated edict, but is part of FIRREA's statutory scheme, which was intended to force plaintiffs with claims against failed depository institutions to exhaust administrative remedies before coming to [F]ederal court. Carlyle Towers [Condominium Ass'n, Inc. v. Federal Deposit Ins. Corp.], 170 F.3d [301,] 307 [ (2d Cir. 1999) ]. Courts interpreting the broad language of § 1821(d)(13)(D)(ii) have universally concluded that this provision bars only claims that could be brought under the administrative procedures of § 1821(d), not any claim at all involving the FDIC. See Auction Co. of Am. v. FDIC, 141 F.3d 1198, 1201 (D.C. Cir. 1998) (holding that § 1821 [d][13][D][ii] grants the FDIC immunity only from claims that can be brought through the administrative processes of § 1821 [d] ); Hudson United Bank v. Chase Manhattan Bank of Conn., N.A., 43 F.3d 843, 849 (3d Cir. 1994) ('The purpose [of FIRREA] was not to immunize certain claims from review.'). We agree with their conclusion. Accordingly, since the noteholders assert no claim against either the FDIC or NextBank, and since they are not compelled to comply with the administrative procedures of § 1821(d), § 1821(d)(13)(D)(ii) [does not] bar[ ] their claims ...."

Bank of N.Y., supra at 920-921,.

We find that reading of FIRREA persuasive. And indeed, although the reasoning of various courts in construing this provision of FIRREA varies, we are aware of no case in which a court has held that FIRREA eliminates jurisdiction over a claim such as this -- against a solvent third party that is not the failed bank, the FDIC, or a successor that obtained assets of the failed bank from the FDIC -- for either money damages that the third party will be required itself to pay, or for declaratory or injunctive relief. Except to the extent, if any, that the plaintiffs seek money damages from Washington Mutual, or arguably JPMorgan Chase as the bank that assumed its rights and/or liabilities from the FDIC, then, we conclude their claims are not barred by FIRREA. To the extent there exists any dispute by the defendants about the ownership of the note or the mortgage on the date Washington Mutual went into receivership -- and we note that date of preparation or recordation of a mortgage transfer does not necessarily indicate that that is the date on which ownership of the mortgage was in fact transferred to a purchaser -- the plaintiffs are entitled to further discovery on the matter.

The plaintiffs also argue that, even if the mortgage loan was owned by Washington Mutual on the date of receivership or FIRREA otherwise applied, some or all of their claims would survive because they do not fall within the language of the statute as properly construed, in particular because declaratory judgments and affirmative defenses do not fall under FIRREA's definition of "claim." See Bolduc v. Beal Bank, SSB, 167 F.3d 667, 671-672 (1st Cir. 1999) (preemptive assertion of affirmative defense to foreclosure action not barred by FIRREA). See also, e.g., Beaton v. Land Court, 367 Mass. 385, 392, 326 N.E.2d 302 (1975) (fraud is defense to foreclosure). In light of our holding, and the fact that the motion judge was presented with the FIRREA argument only at the hearing on the motions to dismiss, so that these issues were not fully briefed before the motions were initially decided, we think the prudent course is to allow the Superior Court to address these issues on remand in the first instance, should it become necessary.

The corrected judgment is reversed and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

      The plaintiffs also raise a constitutional argument that, in light of our disposition of this case, it is unnecessary to address.

      We treat these entities as the same for simplicity.

      We note that the record before us contains no evidence as to JPMorgan Chase's assumption of Washington Mutual's or the FDIC's liabilities.

      Our conclusion is not inconsistent with the recent decision in Willner v. Dimon, 849 F.3d 93 (4th Cir. 2017), on which the defendants would rely, but which they read for more than it is worth. Although the court in Willner held that the language in 12 U.S.C. § 1821(d)(13)(D)(ii) is broad enough to encompass certain claims brought against third parties (i.e., not the failed bank, the FDIC, or a successor that obtained assets of the failed bank from the FDIC) based on the acts or omissions of the failed bank or the FDIC, id. at 105, its holding was limited to claims that could have been brought in an administrative proceeding under the statute and that, if found meritorious, would have been paid by the FDIC, not the third party itself. Indeed, after concluding that claims were not automatically excepted from the FIRREA bar because brought against third parties, the court went on to say that, regardless of that conclusion, "[c]ourts interpreting ... § 1821(d)(13)(D)(ii) have universally concluded that [it] bars only claims that could be brought under the administrative procedures of § 1821(d)." Id. at 105-106, quoting Bank of N.Y., 607 F.3d at 921. The Willner court then went on to assess whether claims against a solvent third party that had purchased a mortgage prior to a failed bank's insolvency could be brought under that procedure; the plaintiffs argued that the FDIC could not order a remedy against that third party and that, therefore, the claims could not have been brought under the FIRREA administrative procedure.
      The court held that FIRREA applied, but only because the money damages claim was "functionally" against the failed bank and "upon receiving a timely and meritorious claim for damages, the FDIC can resolve it by making a payment to the claimant." Id. at 108. It did not address whether a money-damages claim that would be paid by the third party, not the FDIC, would be barred by the statute. Likewise, it explicitly declined to determine whether the claims procedure could be used to issue a declaratory judgment binding against the third party. Id. at 108-109.

      The same course should be taken with respect to surviving claims, if any, pressed by the plaintiffs for money damages against Washington Mutual or JPMorgan Chase as purchaser of its assets from the FDIC.


author: Per Curiam.

text:
    The STATE EX REL. KEITH, Appellant, v. DEPARTMENT OF REHABILITATION AND CORRECTION et al., Appellees (Two Cases).
    Nos. 2017-1015 2017-1214
    Supreme Court of Ohio.
    Submitted February 13, 2018 Decided August 8, 2018
    Bernard R. Keith, pro se.
    Michael DeWine, Attorney General, and George Horvath, Assistant Attorney General, for appellees.
   Per Curiam.

{¶ 1} In these consolidated appeals, appellant, Bernard R. Keith, appeals the judgment of the Tenth District Court of Appeals denying his petition for a writ of mandamus to compel appellee Ohio Parole Board to hold a parole hearing at which his parole request is given "meaningful consideration." We affirm the judgment of the court of appeals.

Background

{¶ 2} Keith is a state inmate serving an indeterminate sentence. Following a hearing held in February 2012, the parole board denied Keith parole, in part based on its finding that he had been previously paroled eight times. See State ex rel. Keith v. Adult Parole Auth. , 141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, ¶ 6 (" Keith I "). The board set the next hearing for 62 months later (i.e., April 2017).

{¶ 3} On May 8, 2012, Keith filed an original action in the Tenth District Court of Appeals seeking a writ of mandamus to compel the board to correct allegedly inaccurate information in his parole record. The court of appeals denied the writ as moot, finding that the board had corrected the inaccurate information in Keith's parole record and subsequently had decided not to modify its previous decision. Id. at ¶ 13.

{¶ 4} On October 7, 2014, we reversed and granted a writ of mandamus. Id. at ¶ 32. We held that Keith had made a showing that there may still be substantive errors in his parole record that, if not corrected, may influence the board's consideration of his parole and prevent his application from receiving meaningful consideration, id. at ¶ 21, 30, and we ordered the board "to investigate Keith's allegations and correct any substantive errors in the record used to consider him for parole," id. at ¶ 32.

{¶ 5} In October 2014, the parole board notified Keith that it had corrected some of the parole-record errors that he had alleged in the Keith I litigation.

{¶ 6} A new hearing took place on February 17, 2015. Several weeks later, the parole board informed Keith that it had denied his parole request and that his next hearing would be in April 2017 (the same date that had been set for his next hearing when he was denied parole in February 2012). His request for reconsideration was denied.

{¶ 7} On November 30, 2015, Keith filed a second petition for a writ of mandamus against the board in the Tenth District Court of Appeals. Keith's second petition alleged that his parole request did not receive "meaningful consideration" at the February 2015 hearing, as required by Keith I . As evidence of the alleged lack of meaningful consideration, Keith pointed to the fact that the parole board did not change the date of his next parole hearing, despite the corrections that the board had made to the information in his parole record.

{¶ 8} After the parties submitted evidence and briefs, the Tenth District magistrate appointed to hear the case issued a decision on February 17, 2017, in which he concluded that Keith had failed to show by clear and convincing evidence that his parole record contained any significant errors or that the board had relied on substantively inaccurate information. Keith filed objections to the magistrate's decision.

{¶ 9} On June 20, 2017, the Tenth District Court of Appeals overruled Keith's objections, adopted the magistrate's findings of fact and conclusions of law, and denied the request for a writ of mandamus. The court of appeals denied Keith's application for reconsideration and motion for relief from judgment.

{¶ 10} Keith filed two notices of appeal. On July 25, 2017, he appealed the court of appeals' denial of the writ (case No. 2017-1015). And on August 31, 2017, he appealed the denial of his application for reconsideration (case No. 2017-1214). On November 1, 2017, we consolidated the two appeals. 151 Ohio St.3d 1423, 2017-Ohio-8371, 84 N.E.3d 1062.

Procedural motions

{¶ 11} On November 15, 2017, Keith filed (in both cases) an unopposed motion to reduce the number of copies of his briefs required for filing. We grant the motion.

{¶ 12} On November 17, he filed a motion for leave to file an amended cover page for his merit brief in case No. 2017-1015 to reflect its consolidation with case No. 2017-1214. We grant that motion.

{¶ 13} Finally, Keith has filed three requests for judicial notice. The first, filed November 15, 2017, asked this court to take judicial notice of a motion for a stay that he filed in this court on October 20.

Because he withdrew the stay motion on December 19, that request is denied as moot. Next, on December 19, he filed a request that this court take judicial notice that he placed his reply brief in the institutional mailbox within the time allowed by this court's rules. But because the reply brief was received and filed and because no one has challenged its timeliness, we deny that request as moot. In addition, Keith's reply brief complains that pages were missing from the copy of the board's merit brief that he received. Although he presents this complaint as an "issue for judicial notice," he asks for no relief in connection with it.

Merits of the appeal

{¶ 14} In his merit brief, Keith asserts nine propositions of law, but there is only one issue of consequence: has Keith demonstrated that the parole board failed to give his parole request meaningful consideration at his February 2015 hearing, as a result of materially false or misleading information in his parole record?

{¶ 15} As previously noted, Keith's claim is premised on the fact that after the February 2015 hearing, the parole board did not change the scheduled date of his next parole hearing. He sees that as evidence that the board's review of his parole request was cursory and/or biased. But there is no basis for Keith's assumption that the board's correction of the errors in his parole record should have caused the board to reach a different decision. It is equally possible that he overstated the significance of the inaccuracies in his record and that a fair review of his record would lead the board to make the same decision.

{¶ 16} The issue in Keith I concerned the problem of materially false or misleading information in an inmate's parole record. And on that score, Keith has only one allegation: he claims that his parole record contains an entry indicating that he participated in an education program referred to as "GED Fast Track" even though he had not enrolled in that program. However, Keith has suggested no reason to believe that this allegedly erroneous information was material to his parole request. And contrary to his assertion, this court in Keith I did not hold that a writ of mandamus will issue every time an inmate identifies a factual error in his parole record. Rather, a writ will issue when there is a credible claim of an error that may prevent the inmate's application from receiving meaningful consideration.

Keith I , 141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, at ¶ 21 ; id. at ¶ 30 (requiring "a showing that there may be substantive errors in [the inmate's] record that may influence the [APA's] consideration of his parole").

{¶ 17} Keith has failed to demonstrate the elements of his claim: that his parole record contains false or misleading information that might have adversely affected the parole board's consideration of his parole request. We therefore affirm the judgment of the court of appeals.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.

      The parole hearing that had been scheduled for April 2017 was actually held on February 9, 2017. At that hearing, the parole board denied Keith's parole request and scheduled the next hearing for February 2020.