text:
    Eddie Carrasquillo SOSA v. Carol Higgins O'BRIEN & others.
    17-P-270
    Appeals Court of Massachusetts.
    Entered: June 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Richard B. Campbell, Jessica B. Creighton, Kurt S. DeMoura, James J. Saba, Lauren Vinitsky, and Harold Wilkes.

   Eddie Carrasquillo Sosa appeals from a Superior Court judgment of dismissal entered against him on his complaint in the nature of certiorari. The complaint sought review of a disciplinary action brought against him by the defendants. In 1999, while serving a sentence, Sosa escaped from the custody of the Department of Correction (DOC). Within days, Sosa was apprehended in Vermont. After his apprehension, Sosa was placed in Federal custody and transferred to Texas where he served an unrelated Federal drug sentence. Upon the expiration of Sosa's Federal sentence in 2015, he was returned to Massachusetts to finish the sentence he was serving prior to his escape.

Following his return to DOC custody, a disciplinary action was filed against him for the escape. At the disciplinary hearing, Sosa was found guilty of escape, sentenced to fifteen days in the department disciplinary unit, and assessed restitution in the amount of $2,793.98 as sanctions. Sosa's timely appeal to the superintendent was denied. Sosa then brought an action in the nature of certiorari pursuant to G. L. c. 249, § 4. The judge considered cross motions for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), and granted the defendants' motion while denying Sosa's.

Sosa's appeal raises three issues: (1) the DOC failed to comply with their regulations, (2) the DOC violated Sosa's due process rights, and (3) the penalty of restitution was improper. We affirm.

Discussion. Prison inmates are entitled to review of disciplinary actions, whether or not a liberty interest is at stake, through the certiorari procedure. The purpose of the certiorari procedure in this context is to correct substantial errors of law that adversely affect an inmate's material rights. Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 140 (2001). "Our review of a disciplinary proceeding is based on whether the record contains substantial evidence to support the hearing officer's decision." Puleio v. Commissioner of Correction, 52 Mass. App. Ct. 302, 305 (2001). In addition, prison inmates are entitled to procedural due process protections under the United States and the Massachusetts Constitutions if the sanctions create an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). See Torres v. Commissioner of Correction, 427 Mass. 611, 617-618 (1998). Sosa was not entitled to relief under either theory.

First, we adopt the judge's reasoning that the timing of the disciplinary report did not violate prison regulations. The judge properly recognized that the regulations relating to the procedural time limits are directory, not mandatory and may be waived. 103 Code Mass. Regs. § 430.23 (effective November 14, 2014). Cf. Zuckerman v. Zoning Bd. of Appeals of Greenfield, 394 Mass. 663, 667 (1985). Additionally the judge found that "Sosa's own conduct of escaping" caused the initial delay. See Commonwealth v. Edwards, 444 Mass. 526, 532-536 (2005) (establishing parameters of "forfeiture by wrongdoing" doctrine).

Second, the judge properly concluded that the guilty finding was supported by substantial evidence. The hearing officer relied on a disciplinary report that he found to be a true and accurate accounting of the details of Sosa's escape.

Third, we discern no error in the judge's ruling that Sosa received the full measure of the required due process protections in the disciplinary hearing. Sosa contends that prison officials denied him due process by failing to produce the reporting officer at the disciplinary hearing. The judge found that the hearing officer did not abuse his discretion by not allowing Sosa to call as a witness the reporting officer.

Due to the insufficiency of the record, we are unable to review further Sosa's due process claims. Sosa failed to include all portions of the record that are crucial to our review in the record appendix, as required by Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Sosa's appendix does not contain his complaint, the motions to dismiss, or a complete record of the disciplinary hearing including the request for discovery discussed in his brief. "An appellant's obligation to include those parts of the [record below] 'which are essential for review of the issues raised on appeal ... is a fundamental and long-standing rule of appellate civil practice.' Shawmut Community Bank, N.A. v. Zagami, [30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992) ]." Cameron, supra at 84.

Finally, there is no merit to Sosa's contention that the restitution sanction was improper. The amount of restitution was supported by the record below. Sosa's conclusory argument (without citation to the record) that the amount of restitution was unreasonable and created an undue hardship does not rise to the level of proper appellate argument and, therefore, we do not consider it. See Sayre v. Aisner, 51 Mass. App. Ct. 794, 796 n.4 (2001). Double jeopardy principles do not bar imposition of prison sanctions, including restitution, and criminal prosecution for the same wrongful conduct. See Commonwealth v. Forte, 423 Mass. 672, 674-676 (1996) ; Cepulonis v. Commonwealth, 426 Mass. 1010, 1011 (1998).

Judgment affirmed.

      See Mains v. Commonwealth, 433 Mass. 30, 36 (2000) (pro se litigant bound by same rules of procedure as litigants with counsel).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Iride P. RODRIGUEZ.
    17-P-536
    Appeals Court of Massachusetts.
    Entered: June 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Iride P. Rodriguez, appeals from her conviction of operating a motor vehicle while under the influence of intoxicating liquor, second offense, G. L. c. 90, § 24(1)(a )(1), arguing that she was prejudiced by various statements made at trial. We affirm.

First, Rodriguez challenges certain questions asked by the prosecutor during her direct examination of Trooper Kyle Minnicucci, an arresting officer who had recently graduated from the police academy, as well as some of Minnicucci's testimony. The prosecutor asked Minnicucci for "an opinion as to [Rodriguez's sobriety] only," to which Minnicucci responded, "That she was over the legal limit." After the judge struck this answer, the prosecutor asked the question again, to which Minnicucci responded, "That she was not sober." The prosecutor then asked Minnicucci whether he had gone to parties while at college, seen people drink alcohol at those parties, and noticed different ranges of intoxication. Minnicucci answered affirmatively to all these questions, which were not objected to. The prosecutor then asked whether he could describe the ranges, what terminology he would use for someone who consumed a lot of alcohol, "how not sober" Rodriguez was, and whether Minnicucci had "any other opinion as to her sobriety." The judge sustained defense counsel's timely objections to these questions.

Rodriguez argues that the prosecutor's questioning and Minnicucci's testimony insinuated that "not sober" means "over the legal limit," and are impermissible under Commonwealth v. Canty, 466 Mass. 535 (2013). We disagree. Canty held that lay witnesses may opine on a defendant's sobriety but not on the ultimate issue of whether the defendant was operating under the influence. See id. at 539. Here, the only testimony on Rodriguez's sobriety that remained in the record was that she was "not sober," which is permissible under Canty. Contrary to the defendant's assertions, nothing in the prosecutor's questioning of Minnicucci insinuates that "not sober" means "over the legal limit," or otherwise refers to an ultimate issue. And there is no merit to Rodriguez's argument that the judge abused her discretion in concluding that the probative value of Minnicucci's testimony was not outweighed by the risk of unfair prejudice.

Second, Rodriguez argues that the judge erred by admitting Minnicucci's testimony on redirect that, from his college experience, he was able to detect intoxication "relatively quickly." On appeal, she argues that the testimony was irrelevant and substantially more prejudicial than probative because it constituted improper "vouching." But the testimony was probative of Minnicucci's ability to form an opinion on intoxication, which defense counsel, on cross-examination, had called into question due to Minnicucci's lack of experience in performing field sobriety tests outside the police academy. And Minnicucci's testimony that he could detect intoxication "relatively quickly" was not unfairly prejudicial, nor did it constitute improper vouching. Contrast Commonwealth v. Burgess, 450 Mass. 422, 436 (2008) (witness may not "evaluat[e] whether his own testimony was consistent with other testimony").

Finally, Rodriguez argues that the judge erred by not striking her own testimony, which she gave on redirect, that "usually one drink of alcohol is over the legal limit." Defense counsel did not object to this testimony, and so, at best, we may reverse only if it led to a substantial risk of a miscarriage of justice. See Commonwealth v. Silva, 431 Mass. 401, 405 (2000). At trial, Rodriguez had asserted that she consumed only one drink on the night in question, but admitted that she said during booking that she would fail a blood alcohol test. She gave the challenged testimony after defense counsel asked her to explain why she said she would fail the test, presumably in an effort to harmonize her statement during booking with her assertions at trial that she consumed only one drink. Defense counsel apparently believed this testimony would help her case. In these circumstances, there was no substantial risk of a miscarriage of justice. See ibid. (defendant's trial strategy is relevant to substantial risk analysis).

Judgment affirmed.

      The judge instructed the jury not to consider stricken statements.

      At trial, Rodriguez objected to the testimony for being outside the scope of cross-examination, a claim she does not press on appeal.


text:
    ADOPTION OF QUESTA (and a companion case).
    17-P-1249
    Appeals Court of Massachusetts.
    Entered: June 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Judy. The children's names are pseudonyms.

   Following trial, a judge of the Juvenile Court found by clear and convincing evidence that both the mother and maternal grandmother (grandmother) are currently unfit to parent the subject children, Questa and Judy. The judge terminated the mother's parental rights; committed the children to the custody of the Department of Children and Families (DCF); and approved DCF's plan for the adoption of the children by their current foster parents. On appeal, the mother contends that the judge abused his discretion in terminating her parental rights because he (1) failed to give sufficient weight to her recent progress, among other factors; and (2) reached scientific conclusions regarding her substance abuse without the aid of expert testimony. The grandmother contends that the judge's finding that she is unfit is not supported by clear and convincing evidence. We affirm.

Background. The facts of this case are detailed in the judge's 882 findings of fact within his 137-page decision. In brief, the mother has a lengthy substance abuse history coupled with a significant criminal history. At the time of trial, she was twenty-eight years old and had been using drugs for eleven years. She has abused alcohol, cocaine, and opiates, and "is a self-described drug addict." She has participated in multiple substance abuse treatment programs, and has endured several relapses with no success at maintaining long-term sobriety. The mother's considerable history with the criminal justice system is detailed in the record. She was incarcerated at MCI Framingham at the time of trial and was placed on "restriction" for more than one-half of the time she served there. She was unable to have visits with the children when on restriction. Before she was incarcerated, she missed numerous visits with the children, and during some of the visits that she did attend, she was observed with "droopy" eyes, slurred speech, and difficulty sitting up.

Questa was born in 2010 with withdrawal symptoms related to neonatal exposure to Subutex. Judy was born in 2013 with "Neonatal Abstinence Syndrome" and was also treated for withdrawal symptoms.

The mother's conduct, which resulted in numerous DCF investigations, is detailed throughout the judge's findings. The record and the judge's findings contain detailed evidence of the mother's problematic behavioral history marked by domestic violence, anger management issues, problems vis-à-vis DCF employees, arrests, issues with law enforcement, and a variety of criminal conduct.

The grandmother has a long history of treatment for mental health issues. As with the mother, the judge's findings detail the grandmother's myriad behavioral issues, which need not be delineated here again. We do note, however, that the grandmother was disruptive in her contacts with DCF, failed to comply with service plan requirements, and neglected to complete a psychological or neuropsychological evaluation. Questa witnessed domestic violence in the grandmother's home. In addition, the grandmother was disruptive throughout the nineteen days of trial in this case, illustrated by repeated admonitions from the judge and exits from the court room.

Discussion. The mother. The mother concedes that she was unfit at the time of trial and does not challenge the current finding of unfitness. Rather, she contends that the extreme step of termination of parental rights was unnecessary in view of her recent progress, bond with the children, and supportive relationship with the preadoptive family. The argument is unavailing.

We review the mother's claims to determine whether the trial judge abused his discretion or committed a clear error of law. Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). Here, the judge's findings are specific, detailed, and demonstrate that close attention was given to the evidence. See Adoption of Anton, 72 Mass. App. Ct. 667, 673 (2008). Review of the judge's well-supported factual findings does not reveal any error of consequence, and the mother does not contend otherwise.

"A decision to terminate parental rights involves a two-step analysis. First, a determination that the parent is currently unfit, and, second, a determination that termination is in the best interests of the child." Imelda, supra at 360 (citations omitted). The trial judge must consider whether the parents' deficits "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). "Once a parent is found to be unfit, the judge must then ascertain whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Imelda, supra (quotation omitted).

Here, the record supports the finding of parental unfitness by clear and convincing evidence. The judge fully and properly considered the required factors set forth in G. L. c. 210, § 3(c ), and found factors (ii), (iv), (vi), (vii), and (xii) applicable to his determination that the mother is unfit. As of the date of the judge's findings, "[b]y reason of her substance abuse and criminal activity, [the mother] has been unavailable to provide care to [Questa] since in or about April 2012 and has cared for [Judy] for only five of her fifty months of life." She has also demonstrated an inability to make use of substance abuse treatments, failing to achieve "any significant period of sobriety while outside a prison facility." Her behavioral issues, prior to and during periods of incarceration, as well as her inability to control her impulsivity, further support the judge's finding of unfitness. Her history of chaotic and violent interpersonal relationships, and her children's exposure to them, has presented further problems. The record supports the judge's finding that the mother "does not demonstrate any insight into how her abusive and occasionally assaultive or threatening behavior and language may harm the [children]." In view of this lack of understanding and her history, "this behavior is likely to be repeated to the detriment of [the children]." Ultimately, we discern no abuse of discretion in the judge's determination that the mother's unfitness is not temporary. See Adoption of Elena, 446 Mass. 24, 31-34 (2006) ; Adoption of Ilona, 459 Mass. 53, 59-60 (2011).

The grandmother. The grandmother contends that it was erroneous for the judge to find her unfit because DCF failed to make reasonable efforts to reunify her with Questa, and there was no clear and convincing nexus between her mental health issues and inability to provide care for Questa. We are unpersuaded.

First, we agree with DCF's contention that the grandmother failed to raise her "inadequate services" claim in a timely manner. See Adoption of Gregory, 434 Mass. 117, 124 (2001) ; Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). On this basis alone, her claim is unavailing.

Second, even assuming that the claim was raised in a timely manner, and further assuming that DCF failed to make reasonable efforts to restore Questa to the care of the grandmother, the judge was nonetheless required to consider and rule in Questa's best interests. See Ilona, supra at 61; Adoption of Uday, 91 Mass. App. Ct. 51, 53 (2017).

Here, the judge did not abuse his discretion in determining that the grandmother was unfit and that it was in Questa's best interests to be committed to DCF's custody. The judge found that although the grandmother does not have parental rights to be terminated, the factors set out in G. L. c. 210, § 3(c ), are nonetheless relevant to the fitness determination, and considered factors (ii), (iv), (vi), and (xii) to be applicable to his analysis. The judge found, inter alia, that the grandmother had exposed Questa to domestic violence and to persons under the influence of controlled substances; that the grandmother's anxiety disorder is poorly controlled by therapy or otherwise; and that she had a "very tenuous relationship with truth-telling," as evidenced by her willingness to "change her version of events to meet the occasion." The judge also found that the grandmother is unwilling and unable to control her conduct, exemplified by various outbursts in the presence of Questa, and by her removal from the court room for outbursts on numerous occasions during the nineteen days of trial. See Adoption of Mary, 414 Mass. 705, 711 (1993) ("Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child"). Her medical prescriptions, which presented a sedating effect, further created a risk to Questa's safety, as detailed by the judge. DCF clearly and convincingly proved that the grandmother is unfit. The judge's findings in this regard are comprehensive and supported by the record, and thus we find no abuse of discretion stemming therefrom.

Decrees terminating mother's parental rights affirmed.

Judgment finding grandmother unfit affirmed.

      The grandmother was Questa's legal guardian at the time the Department of Children and Families filed its care and protection petition on behalf of Questa.

      The judge also terminated the parental rights of Questa's father and Judy's "unknown unnamed father." Neither father is involved in this appeal.

      The foster parents are Questa's godparents. The foster parents have a generally warm and supportive relationship with the mother and grandmother, and the judge set out a detailed schedule of posttermination and postadoption visitation between the children and the mother and grandmother.

      The judge's comprehensive findings of fact find ample support in the record.

      The judge found, and the record reflects, that opiates-including heroin-are her "drug of choice."

      The mother has received substance abuse treatment from approximately fifteen inpatient programs, five outpatient programs, and three methadone-maintenance programs. At the time of trial, her longest period of sobriety in the community was six months.

      AT MCI Framingham, the mother was placed on restriction for, inter alia, failing to provide a urine screen, fighting with inmates, and other violations of prison rules.

      We pause to note that the mother and the grandmother have shown affection for the children, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother and the grandmother do not love the children. Instead, the relevant inquiry, as the judge recognized and as discussed, infra, was whether the parent's or guardian's deficiencies or limitations "place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren]." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

      We disagree with the mother's contention that expert testimony or scientific evidence was necessary to prove that her substance abuse was predictive of future events. The mother cites no authority for this contention, and we are unaware of any such requirement. The evidence of the mother's pattern of drug abuse and inability to maintain sobriety or make effective use of treatment (combined with myriad other factors), overwhelmingly supported the judge's determination that her unfitness is likely to continue unabated into the future. We are obligated to give substantial deference to that determination. See Ilona, 459 Mass. at 59.

      For purposes of our analysis, we will assume, without deciding, that the clear and convincing evidence standard of proof applies to a guardian.


text:
    Charles C. STOVER, Third, & another v. DEPARTMENT OF CONSERVATION & RECREATION.
    17-P-1361
    Appeals Court of Massachusetts.
    Entered: June 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Katharine S. Stover.

   The plaintiffs appeal from a judgment of the Land Court granting summary judgment in favor of the defendant, and dismissing without prejudice the plaintiffs' action to quiet title to the residential property located at 72 St. Mary's Street, Newton, for lack of subject matter jurisdiction. Because this case is controlled in all respects by Murray v. Department of Conservation & Recreation, 475 Mass. 99 (2016), we affirm the judgment dismissing the action.

Judgment affirmed.


text:
    COMMONWEALTH v. Kathryn CHRISTOPHER.
    16-P-1412
    Appeals Court of Massachusetts.
    Entered: June 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the Superior Court, the defendant, Kathryn Christopher, was convicted of obtaining, by false pretenses, the signature of an eighty-eight year old woman suffering from end-stage Alzheimer's disease, in violation of G. L. c. 266, § 31. The defendant contends that the Commonwealth failed to prove that the signature was obtained by a false pretense or with the requisite intent to defraud, and thus the judge erred in denying her motion for a required finding of not guilty. We affirm.

Background. 1. Prior proceedings. The defendant was initially indicted on a charge of larceny from a person sixty-five years or older (indictment 2011-910-001) and three separate charges of obtaining a signature by false pretenses (indictments 2011-910-002 through -004). A jury trial commenced on October 22, 2012, during which the judge allowed the defendant's motion for a required finding of not guilty as to indictment 2011-910-002. Subsequently, the jury were unable to reach verdicts on the other indictments, and the judge declared a mistrial. Pending retrial, the defendant filed a motion to dismiss the three remaining indictments, which the judge denied. The defendant sought relief from a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3. In a written decision, the single justice allowed the petition as to indictments 2011-910-001 and -003, and dismissed those indictments, but denied the defendant's request to dismiss indictment 2011-910-004. Accordingly, the defendant was retried on a single count of obtaining a signature on mortgage documents by false pretenses.

2. Facts. We briefly summarize the facts a rational fact finder could have found, reserving some details for later discussion. On December 29, 2002, Lieutenant David DeMarco of the Belmont fire department was dispatched to 65 Oliver Road in the town of Belmont, because of water and sewage in the basement and kitchen. Upon arrival, he met with the elderly owner of the home (the victim). Lieutenant DeMarco observed that the victim "appeared to live alone," was "vulnerable," and "needed assistance." Accordingly, he telephoned her the next day "to see how she was, if everything was going okay." His conversation with the victim was "odd" because she did not recall that the fire department had been to her home the previous day. Consequently, Lieutenant DeMarco contacted Lucia Stone, a social worker at the Belmont Council on Aging (BCA), to check on the victim and determine whether she needed assistance.

Upon receiving the information from Lieutenant DeMarco, Stone followed BCA practice and forwarded the referral to the defendant, who served as the "home care coordinator" at the BCA. It was the home care coordinator's responsibility to determine what home care services were needed, if any, and to "make an appropriate match" with a private health care provider. The private health care providers assigned to work with elders in need of services were not employees of the BCA. Additionally, the defendant, as a BCA employee, was forbidden to procure her own private clients introduced through her position as home care coordinator. Despite this restriction, the defendant took the victim on as her private client in late December, 2002, or early January, 2003. The defendant did not tell her supervisor of this arrangement with the victim, and the supervisor did not become aware of it until several years later, in 2007.

The defendant's arrangement with the victim set her wage at fifteen dollars per hour. The defendant was initially paid by personal check, but contended that "because [she] didn't want to claim the income," she was later paid "in the form of paying bills." In other words, the defendant took funds from the victim's accounts to pay her own bills. However, the defendant neither kept track of her accounts receivable from the victim nor maintained a separate bank account for her private client business.

As discussed infra, the evidence demonstrated that at all times relevant to the issues raised on appeal, the victim suffered from dementia and was mentally incapacitated. Prior to April of 2005, the victim was diagnosed with end-stage Alzheimer's dementia, and no later than July of 2005, she would not "have the ability to understand financial decisions" according to the chief of geriatric medicine at Spaulding Hospital.

In 2005 and 2006, the defendant arranged for the victim to change her will, and subsequently sign three mortgages on her home. The contested issues at trial were whether, at the time the October, 2006, mortgage was executed, the defendant obtained the victim's signature by false pretenses and with the intent to defraud her. There is no dispute that the evidence viewed in the light most favorable to the Commonwealth showed that the defendant knew of the victim's mental incapacity, used her hand to guide the victim's signature on the mortgage documents, and used the proceeds from the mortgage to pay personal bills and remodel the first and second floors (together, the upstairs) of the victim's home. There is also no dispute that the defendant moved herself and her family into the upstairs of the victim's home in or around October of 2006, and moved the wheelchair-bound victim into the basement.

Discussion. We review the denial of a motion for required finding of not guilty to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Mass.R.Crim.P. 25(a), as amended, 420 Mass. 1502 (1995). Reasonable inferences may be drawn from the evidence, Commonwealth v. Bush, 427 Mass. 26, 30 (1998), and "need only be reasonable and possible[, not] necessary or inescapable. Commonwealth v. Morgan, 449 Mass. 343, 349 (2007) (quotation omitted).

The statutory elements of the crime of obtaining a signature by false pretenses pursuant to G. L. c. 266, § 31, consist of "(1) obtaining the signature of a person to a written instrument; (2) the false making whereof would be a forgery; (3) by a false pretense; (4) with intent to defraud." Commonwealth v. Levin, 11 Mass. App. Ct. 482, 495 (1981). Here, the defendant challenges the sufficiency of the third and fourth elements only.

Contrary to the defendant's claim, the totality of evidence presented at trial satisfied the elements of false pretense and intent to defraud beyond a reasonable doubt. A rational fact finder could have found, inter alia, as follows. First, the defendant took on the victim as a private client in late 2002 despite being precluded from doing so by the BCA. The defendant hid this information from her supervisor for years.

No later than April of 2004, the defendant took active steps to assist the victim in changing her estate planning documents. Despite being advised by the victim's physician, Dr. Fuller, that the victim should see a neurologist before executing legal documents, no such step was taken.

On April 9, 2005, the victim was admitted to Mount Auburn Hospital due to congestive heart failure. That day, psychiatrist Astrid Desrosiers evaluated the victim while the defendant was present as her health care proxy. Dr. Desrosiers formed the professional opinion that the victim was incompetent. This conclusion was based, in part, on the defendant's statement that the victim was confused and that there had been a progressive decline in her condition. Indeed, the evidence demonstrated that the defendant was well aware by this time that the victim suffered from dementia and had been diagnosed with Alzheimer's disease.

On July 8, 2005, the victim was admitted to the psychiatric unit at Mount Auburn Hospital by the defendant, who falsely represented herself as the victim's "niece." A progress note from July 11 stated that the victim would not "be appropriate for further intervention at this time due to the patient's severe dementia. Significant cognitive impairment so is not able to participate in or benefit from treatment." A rational fact finder could have found that the defendant knew in 2005, and at the time of the signing of the mortgage documents in 2006, of the victim's mental incapacity and inability to consent to the transaction at issue in this case.

With this intimate knowledge of the victim's readily apparent mental incapacity, the defendant continued to engage in what a rational fact finder could have viewed as a pattern of manipulative and deceitful conduct vis-à-vis the victim. In July, 2005, shortly after the victim had been discharged from Mount Auburn Hospital, the defendant assisted the victim in obtaining a $200,000 mortgage on her home from H & R Block. After the mortgage was executed, the defendant took the victim to Cambridge Savings Bank where she and the victim opened a joint account in both of their names. Bank records introduced at trial showed that between November 25, 2005, and April 9, 2007, approximately twenty money orders were issued, through which thousands of dollars were effectively withdrawn from the joint account and deposited into the defendant's checking account at the Winchester Cooperative Bank.

From December, 2005, to October, 2006, there were a series of further hospitalizations in which the victim exhibited similar symptoms to her July, 2005, hospitalization. In July or August of 2006, the defendant enlisted the services of Attorney Pasquale Scavitti to assist with the refinance of the victim's property. Scavitti "was told [by a mortgage broker] to reach out to [the defendant] as the contact person relative to the refinance for her elderly aunt." The defendant represented to Scavitti that the purpose of the refinance was to make modifications to the property "as it related to accommodations for [the victim]." On August 21, 2006, Scavitti met with the defendant and the victim and executed paperwork for another mortgage.

In October, 2006, the defendant reenlisted the services of Attorney Scavitti for yet another mortgage. The October, 2006, mortgage closing was held in a visiting room at the rehabilitation center where the victim was staying following her release from another stay at Mount Auburn Hospital. The mortgage was in the amount of $461,250, which, after paying off the August, 2006, mortgage, resulted in a net balance of approximately $184,000. The net balance was then deposited into the joint account at Cambridge Savings Bank.

A rational fact finder could have found, inter alia, that the defendant falsely represented herself to Attorney Scavitti (and by inference to the victim), as the victim's "niece" before and at the time of the signing of the October, 2006, mortgage documents. Furthermore, the defendant represented that the purpose of the October mortgage was "to do some modifications to the [victim's] house to make it more accessible for her physical disabilities." The evidence showed that no such modifications were made on the victim's behalf, and that no such modifications were ever intended to be made. To the contrary, although the victim was wheelchair bound and unable to reach the upstairs living areas of the home, the renovation plans omitted any means of wheelchair access to those areas. Moreover, none of the upstairs renovations, which included work on the kitchen and several bedrooms, were designed to make those spaces more handicapped-friendly. Thus, a rational fact finder could have determined that, far from using the proceeds of the mortgage to make the home accessible to the victim, the defendant intended to and did use proceeds to improve the home in ways that would benefit only herself and her family.

Finally, the Commonwealth introduced evidence that money from the October, 2006, mortgage was also used to pay the defendant's expenses, including but not limited to her children's college tuition. The judge, as fact finder, was free to disbelieve the defendant's claim that the she was paid for her care of the victim "in the form of paying bills." Instead, the judge could have found, particularly in the absence of any record-keeping by the defendant, that the defendant used the victim's funds as her personal spending account.

The evidence summarized above warranted the inferences that the defendant (1) saw the victim as an easy mark from the outset, (2) knew of the victim's mental incapacity, (3) falsely represented that the purpose of the October, 2006, mortgage was to make the victim's home handicapped-accessible when, in fact, it was for her own personal use, and (4) guided the victim's signature during the closing of that mortgage. Through this evidence, a rational finder of fact could have concluded that the defendant obtained the victim's signature by a false pretense and with intent to defraud. See Commonwealth v. Morrison, 252 Mass. 116, 122 (1925) ; Commonwealth v. Reske, 43 Mass. App. Ct. 522, 525-526 (1997). "It is not necessary to have direct evidence that a representation was false. It is enough if all the circumstances considered together would warrant the [fact finder] in concluding that it was untrue." Morrison, supra at 122-123.

The defendant responds that contrary to the judge's conclusion, the evidence showed that the victim had repeatedly requested to stay in her home rather than a hospital or elder care facility, that her assistance with signing the mortgage was effectuated solely to honor the victim's stated wishes, and that there was no evidence of any false statement made by her to the victim. She further claims that although the facts may show poor judgment, they do not constitute a crime. We disagree. The defendant takes a far too narrow view of "false pretense" as that element has been explicated in our case law. First, her argument ignores well-established precedent holding that "[a] false pretense may be made by implication as well as by verbal declaration." Reske, supra. See Morrison, supra at 122 ("False representations may be made by acts as well as words"). As in Reske, this case involved a mentally incapacitated victim and a defendant who exploited the victim's condition for personal gain. Second, viewing the evidence in its totality, including the timing of the defendant's actions, the false representations as to her relationship to the victim and the purpose of the mortgage, and the rapidity with which she engineered the procurement of the victim's money and home, the judge did not err in finding a false pretense and intent to defraud. See Commonwealth v. McHugh, 316 Mass. 15, 22 (1944). See also Commonwealth v. Khan, 92 Mass. App. Ct. 487, 493-494 (2017) (intent may be inferred from defendant's knowledge and subsequent participation in offense viewing totality of evidenced presented).

We similarly reject the defendant's argument that, having already convinced the victim to name her as heir in the victim's will, she had nothing to gain by the mortgage and thus no intent to defraud. Her false statements regarding the purpose of the mortgage and the relationship to the victim demonstrate otherwise. Moreover, a fact finder could reasonably infer that the defendant wanted to reach the equity in the victim's home immediately and not wait or risk the possibility that the home might be reached by a creditor or that some authority might notice the defendant's action and cause a challenge to the validity of that will. This is not a case in which a fact finder would need to rely on conjecture and pile inference upon inference to find the defendant guilty beyond a reasonable doubt. See Commonwealth v. Ferguson, 384 Mass. 13, 18 (1981). The Commonwealth's case was strong and the inferences drawn by the judge were warranted from the evidence.

Judgment affirmed.

      In denying the request to dismiss indictment 2001-910-004, the single justice stated, in relevant part:
      "The defendant's petition is denied as to [indictment] 4, which again alleged that, on or about October 28, 2006, she induced [the victim] to sign a mortgage for $450,000 despite knowing that [the victim] had been suffering from Alzheimer's disease and dementia for years. The evidence showed that the defendant was aware of [the victim]'s mental incapacity; that she used her hand to guide [the victim]'s signature; that she took the proceeds from the mortgage to open a joint bank account with [the victim]; and that she used that account for her own personal needs. The evidence was sufficient to survive a motion for a required finding."

      The Commonwealth introduced overwhelming evidence that the victim suffered from dementia at the time of the signing of the October, 2006, mortgage documents, and that the defendant was keenly aware of the victim's condition prior to and at the time of the signing of the 2006 mortgages. The victim had been diagnosed with end-stage Alzheimer's disease more than eighteen months before the October, 2006, mortgage closing. Dr. Desrosiers testified that during the April 9, 2005, evaluation, the victim could not remember the defendant's last name; that the victim was confused and could not process information; that the victim's diagnosis was Alzheimer's dementia ; and that the victim was not competent. Dr. Bonnell, chief of geriatrics at Spaulding Hospital, testified that in July, 2005, the victim would not have the ability to understand financial decisions. Dr. Bonnell testified that a note in the victim's medical records from April of 2005 indicated that she was unable to provide any information pertaining to her family history. In addition, numerous witnesses described the victim's symptoms and made observations, which further corroborated the experts' medical conclusions.

      The defendant cites Commonwealth v. St. Hilaire, 470 Mass. 338, 348 (2015), for the proposition that it is not enough for the Commonwealth to prove that the victim suffered from diminished capacity, and that it must also prove that the perpetrator knew of the victim's inability to consent to the transaction at issue. It is unclear whether the defendant is contending that the judge applied an incorrect legal standard, or that the Commonwealth failed to satisfy its burden of proving that the defendant knew of the victim's mental incapacity. In either case, there was no error. The judge accurately summarized the legal standard in St. Hilaire, and found that the Commonwealth had sustained its burden of proof. The record supports the judge's determination, as there was abundant evidence that the defendant knew that the victim lacked the mental capacity to consent to the mortgage transaction.

      The money orders were all signed by the defendant, which, combined with other evidence and exhibits admitted at trial, permitted the inference that the funds were deposited into the defendant's Winchester Cooperative Bank account.

      Attorney Scavitti referred to the August, 2006, mortgage as a "refinance." There was evidence at trial that this mortgage refinanced the 2005 mortgage.

      Several witnesses, including health care practitioners, a contractor, and attorneys testified that the defendant referred to herself as the victim's "niece" or "daughter," or referenced the victim as "her aunt." Viewed in the light most favorable to the Commonwealth, these representations were part and parcel of the defendant's scheme to exaggerate and misrepresent the scope and nature of her relationship with the victim.

      Instead, when the defendant and her family moved in to the home in October, 2006, the victim was relegated to the basement, which is at ground level. Although a friend of the defendant's son performed some work on the basement in 2007, the "finished" product was not designed as a handicapped-friendly space. It included a bedroom and a sink, but no toilet.

      A contractor hired to work on the renovation testified that there are minimum requirements "as far as door widths and stair widths," among other things, to make a building handicapped accessible, and that none of those requirements were met in the renovation plan.

      A rational fact finder could also view the defendant's concealment of her work with the victim from her BCA supervisor as consciousness of guilt. See Commonwealth v. Booker, 386 Mass. 466, 471 (1982).


text:
    COMMONWEALTH v. Christopher GOLDING.
    16-P-1081
    Appeals Court of Massachusetts.
    Entered: June 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant entered unagreed guilty pleas to five drug charges. After learning of assistant lab analyst Annie Dookhan's misconduct, he filed a motion for new trial seeking to withdraw the guilty pleas. A judge of the Superior Court denied the motion. We reverse.

Facts. We recite the relevant facts as found below. Around January 29, 2009, officers at the Billerica police department received information from two confidential informants that the informants had purchased drugs, including OxyContin, from the defendant. One informant also told the officers that the defendant sourced his OxyContin from an eighty year old woman living on Gorham Street in Lowell who had a prescription for them and who had recently been robbed.

On February 3, 2009, one of the informants, in the presence of a Drug Enforcement Agency (DEA) agent, bought five pills allegedly containing morphine from the defendant as part of a controlled buy. The DEA agent then conducted three more controlled buys on February 6, 9, and 13, 2009. At each buy, he purchased two pills that the defendant stated were OxyContin, and drove with the defendant to what, according to the defendant, was his supplier's house on Gorham Street in Lowell. Over the course of the buys, the defendant told the DEA agent, as he had the confidential informant, that his supplier was an eighty year old woman with a prescription for OxyContin who had recently been robbed. The police had a record of a robbery of OxyContin from the Gorham Street house of an eighty year old woman.

Later, after selling a nonfunctioning hand grenade to one of the aforementioned informants, the defendant expressed to the informant an interest in purchasing machine guns, a handgun, and a silencer "to make that up to you." The informant set him up with an undercover agent from the Bureau of Alcohol, Tobacco, and Firearms (ATF).

Over the course of three recorded telephone calls on March 4, 2009, the defendant and ATF agent agreed to exchange the weapons for sixty-three OxyContin pills. During these conversations, the defendant advised the agent to swab test the pills to ensure that they were real. They agreed to meet the next day, at which point the ATF agent tendered the weapons and the defendant tendered a bag of green-colored pills that the ATF agent believed to be OxyContin. The defendant was arrested. The meeting was videotaped pursuant to a search warrant.

The drugs were sent for testing to the William A. Hinton State Laboratory Institute. Dookhan was the primary analyst for all the drugs, and her signature appears on the "Assistant Analyst" line in all the drug certificates. Dookhan concluded that (1) five pills (from the first buy) contained morphine, (2) six pills (two each from the second, third, and fourth buys) contained oxycodone, (3) each pair of oxycodone pills weighed .53 grams, (4) sixty-three pills (from the final buy) contained oxycodone, and (5) the sixty-three pills weighed 16.80 grams.

The defendant was indicted on drug- and weapons-related charges to which he initially pleaded not guilty. On the first day of trial, he changed his pleas on the drug charges to guilty, without any deal or agreement with the Commonwealth. The charges to which he pleaded guilty were one charge of trafficking in oxycodone, fourteen grams or more, G. L. c. 94C, § 32E(c ) (as then in effect) (charge 4), one charge of distribution of morphine, subsequent offense, G. L. c. 94C, § 32A(b ) (charge 5), and three charges of distribution of oxycodone, subsequent offense, G. L. c. 94C, § 32A(b ) (charges 6-8). On the trafficking charge, he faced a mandatory minimum sentence of five years with a possible maximum of twenty years; on the distribution charges, he faced a mandatory minimum sentence of three years with a possible maximum of ten years. After a bench trial, the defendant was convicted of possession of a machine gun while in the commission of a felony, G. L. c. 265, § 18B (charge 1), two charges of possession of a machine gun, G. L. c. 269, § 10(c ) (charges 2-3), and possession of a silencer, G. L. c. 269, § 10A (charge 13). Sentencing on all charges occurred after the trial. The defendant received sentences of five to ten years in prison on charges 1-3, five years to five years and one day in prison on charges 4-8, and five years' probation on charge 13. All prison sentences were concurrent.

After sentencing, the defendant filed a motion for new trial seeking to withdraw his guilty pleas. He submitted an affidavit averring that (a) he did not know of Dookhan's misconduct when he entered his guilty pleas, and (b) had he known of her misconduct, he would not have pleaded guilty to the drug charges. Hearings were conducted by a special judicial magistrate and, later, a motion judge. The motion judge followed the magistrate's recommendation in denying the motion because the judge concluded the defendant failed to demonstrate a reasonable probability that, had he known of Dookhan's misconduct, he would not have pleaded guilty to the drug charges. The defendant timely appealed.

Discussion. "A motion for a new trial is the appropriate device for attacking the validity of a guilty plea." Commonwealth v. Fernandes, 390 Mass. 714, 715 (1984). "A motion for a new trial is ... committed to the sound discretion of the judge." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Therefore, we review "to determine whether the judge abused that discretion or committed a significant error of law." Commonwealth v. Resende, 475 Mass. 1, 12 (2016). See Scott, supra at 344; Commonwealth v. Antone, 90 Mass. App. Ct. 810, 814 (2017). Because the motion judge was not the plea judge, we are "in as good a position as the motion judge to assess" the record, and defer only on matters of credibility. Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "[I]t is plainly not an abuse of discretion simply because a reviewing court would have reached a different result," L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ; rather, we will reverse a discretionary judgment only when the appellant demonstrates an error of law, or "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).

1. Legal standard. Because due process permits judges to accept guilty pleas only if they are intelligent and voluntary, see Commonwealth v. Cotto, 471 Mass. 97, 105 (2015), a defect in the intelligence or voluntariness of a guilty plea justifies its withdrawal. The defendant argues on appeal that his guilty pleas were involuntary.

Pleas can be rendered involuntary by "external circumstances or information that later comes to light," Scott, supra at 345, including information relating to misconduct by government officials. In Scott, the Supreme Judicial Court, following the United States Court of Appeals for the First Circuit in Ferrara v. United States, 456 F.3d 278, 290-297 (1st Cir. 2006), articulated a two-prong test for vacating a defendant's guilty plea in these situations. First, the defendant must show "egregious misconduct by the government that preceded the entry of the defendant's guilty plea." Antone, supra at 815. See Scott, supra at 347. Defendants are entitled to a conclusive presumption of egregious government misconduct when, as is the case here, Dookhan's signature appears on the "Assistant Analyst" line of a drug certificate that predates the defendant's guilty plea. See Scott, supra at 352; Commonwealth v. Ruffin, 475 Mass. 1003, 1004 (2016).

Second, "the defendant must demonstrate a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct." Scott, supra at 354-355. The defendant also must demonstrate that it would have been rational not to plead guilty. Id. at 356.

Although the motion judge may consider a wide range of factors, he or she may consider only "the facts and circumstances actually known to the defendant at the time of his guilty plea." Id. at 358. For example, the judge may consider existing evidence such as recordings and potential witnesses, but may not consider the possibility that the Commonwealth would retest the alleged drugs. See id. at 357. If the defendant has demonstrated a reasonable probability that he would not have pleaded guilty had he known of Dookhan's misconduct, the denial of his motion for new trial must be reversed. See id. at 355.

2. Analysis. a. The benefit from the unagreed pleas. The analysis in this case is controlled by our recent decision in Antone, which involved a plea deal. In Antone, the court weighed the benefit of the plea bargain against the strength of what the government's case would have been in the absence of the Dookhan evidence, which can "not be used against" a defendant at trial. Antone, 90 Mass. App. Ct. at 817. Accord Scott, supra at 357 ("[A] particular case may give rise to consideration of additional relevant factors ... such as whether the defendant was indicted on additional charges and whether the drug-related charges were a minor component of an over-all plea agreement"); Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 328 (2017) (Bridgeman II ) (in Dookhan cases subject to Bridgeman II protocol, before district attorney may retry Dookhan defendant, he or she must "certify that ... the district attorney could produce evidence at a retrial, independent of Dookhan's signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment").

The defendant emphasizes the fact that he received no plea bargain. While obviously this is significant-he was promised no benefit for pleading guilty-this fact alone cannot be dispositive. Indeed, in Resende, the court affirmed the denial of a motion for new trial by a Dookhan defendant who had entered an unagreed plea. See Resende, 475 Mass. at 17-19. Still, the lack of a plea bargain is entitled to significant weight, for the benefit of unagreed pleas is far more uncertain and speculative than that of agreed pleas. The court in Resende determined that the defendant there received a lenient sentence because of the guilty pleas. Id. at 18-19. But in this case, there is no evidence in the record to support such a conclusion. Perhaps misunderstanding this, the motion judge relied on a conclusion that "[b]y pleading guilty, the defendant avoided the risk of consecutive maximum sentences on each count, which would have substantially exceeded the sentences that he received." This may reflect the judge's reading of the recommendation of the magistrate, whose findings the judge adopted, who erroneously referred to "the favorable terms of the defendant's plea agreement (i.e., concurrent five year sentences)."

But, since there was no plea agreement, he did not avoid that risk. Compare Antone, 90 Mass. App. Ct. at 819 (holding that defendant would have pleaded guilty because "the value of the evidence of Dookhan's misconduct was outweighed by the benefits of entering into a favorable plea agreement that eliminated potentially ten additional years in prison"). Since the magistrate's entire analysis here turned on what he described as the favorable terms of the nonexistent plea agreement, we conclude the judge erred in weighing this as a benefit of the plea.

The Commonwealth argues nonetheless that, even though the pleas were unagreed, they should not be disturbed because the drug charges were a "minor" part of the overall case. But the language from Scott on which the Commonwealth would rely states only what is logical: that the court should consider "whether the defendant was indicted on additional charges and whether the drug-related charges were a minor component of an over-all plea agreement." Scott, 467 Mass. at 357. As the Commonwealth acknowledges, the pleas here were not part of any overall agreement. That the pleas were unagreed, then, remains significant.

b. The strength of the Commonwealth's remaining case. The defendant was required to show a "reasonable probability" he would not have pleaded guilty had he known of Dookhan's misconduct. The Commonwealth argues that its case would have been so strong, even without the tainted certificates, that it would not have been rational for the defendant to go to trial, and that there is no reasonable probability that the defendant would not have pleaded guilty.

Obtaining the speculative, uncertain benefit of the unagreed pleas in this case would have been worthwhile only if, even in the absence of the inadmissible Dookhan certificates, the Commonwealth's case would have been an exceptionally strong one. Thus, for example, in Resende, where the court affirmed the denial of the motion to withdraw unagreed pleas, four certificates of analysis relating to different samples had been entered in evidence, and only one of them was signed by Dookhan, and with respect to the sample tested by Dookhan, there had been a positive field test for cocaine. See Resende, 475 Mass. at 17-18 (police detective "conducted five controlled buys, each of which involved a hand-to-hand exchange of cash for two 'twenty bags' or one 'forty' bag of an off-white rock-like substance. Not only could a rational jury have inferred that [the detective] received what he had requested from the defendant, but field tests conducted on the substances indicated the presumptive presence of cocaine .... [Given] the fact that all but one of the drug certificates were signed by chemists other than Dookhan, evidence of her misconduct would not have detracted from the factual bases supporting the defendant's guilty pleas").

As described above, the magistrate's entire analysis relied on his erroneous belief that there had been a favorable plea agreement. But even if that error alone would not require reversal, what remained of the Commonwealth's case here was much weaker than in Resende. And, although, on this side of the scale the motion judge asserted that "[t]he defendant has not suggested any viable defense that he would have pursued had he not [pleaded] guilty"-which is what the magistrate said-in the absence of the evidence contained in the drug certificates of the weighing and testing of the drugs, an argument to the jury that the evidence is too weak to support a conviction might well be a sufficiently viable defense to create a reasonable probability that the defendant would have chosen trial over an unagreed plea.

(i) Trafficking charge and the pills' weight. We address first the most serious charge, that of trafficking. The substance and weight are both elements of this offense. Dookhan's drug certificate identifies the substance (oxycodone) contained in, and the total weight (16.80 grams) of, the sixty-three pills.

The drug certificate is the only evidence of the pills' weight, and it indicates that the weight is only 2.80 grams above the statutory minimum-approximately the weight of a penny. This difference suggests that a fact finder could not determine beyond a reasonable doubt, without scientific testing, that the pills weighed at least fourteen grams. See Commonwealth v. Francis, 474 Mass. 816, 827-828 (2016) (jury could not determine, without scientific testing, that cocaine allegedly weighing 38.7 grams exceeded twenty-eight gram threshold). In the absence of the drug certificate there is no other evidence of the pills' weight, which the Commonwealth concedes, and thus a reasonable probability that the defendant would not have pleaded guilty to the trafficking count, with its five-year mandatory minimum sentence. The fact that all the Dookhan-signed certificates indicate roughly (although, significantly, not exactly) the same per-pill weight is irrelevant, since all were signed by Dookhan. The defendant has met his burden of showing a "reasonable probability" he would not have pleaded guilty to this charge had he known the drug certificates were inadmissible.

The Commonwealth argues that there is no evidence that Dookhan tampered with drugs in tablet form. This is part of what led the magistrate to conclude, in a finding adopted by the judge, that "any perceived weaknesses in the Commonwealth's case resulting from Dookhan's participation in the testing of the underlying substances would have been minimal." The magistrate concluded that "the fact that the drugs were in pill form diminishes the probability of Dookhan's misconduct."

While the Commonwealth likewise couches its argument as one that the prejudice to the defendant is "greatly diminished" because the drugs were in tablet form, to even reach the question would require us to ignore the Supreme Judicial Court's admonition that certificates signed by Dookhan as assistant analyst are subject to a conclusive presumption of egregious governmental misconduct, regardless of the substance in question. See Scott, 467 Mass. at 354. These certificates are inadmissible, see Antone, supra at 817, and the Commonwealth does not suggest that there is any other basis (aside from "eyeballing" the pills, see supra ) on which the jury could have found a weight over fourteen grams. The magistrate, and the judge who adopted his findings, thus miscalculated the strength of the Commonwealth's case in the absence of the certificates.

Given this, we think the judge's conclusion that the defendant failed to demonstrate a reasonable probability that because of the lack of other evidence of weight, which is essential to a trafficking charge, he would not have pleaded guilty to the trafficking charge had he known of Dookhan's misconduct, represents "a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. at 185 n.27 (quotation omitted).

The Commonwealth does not suggest it could have reweighed the pills, nor could it make such an assertion in a case like this. "[I]n assessing the likelihood of whether the defendant would have tendered a guilty plea, a judge may not consider any assertion by the Commonwealth that it would have offered to retest the substances at issue in the defendant's case if the defendant had known of Dookhan's misconduct. The reasonable probability analysis must be based on the actual facts and circumstances surrounding the defendant's decision at the time of the guilty plea in light of the one hypothetical question of what the defendant reasonably may have done if he had known of Dookhan's misconduct. To permit further hypothetical arguments to factor into the analysis, such as the results of any retesting the Commonwealth might have offered to undertake, would require a court to heap inference upon inference and will bring the inquiry under this prong too far afield of the facts and circumstances actually known to the defendant at the time of his guilty plea." Scott, supra at 357-358.

(ii) Charges 4, 6, 7, and 8, and the contents of the alleged oxycodone pills. The Commonwealth also would have needed to prove beyond a reasonable doubt that the pills that formed the basis for the charges of trafficking in and distribution of oxycodone in charges 4, 6, 7, and 8 contained oxycodone and were not counterfeits. As we explained in Antone, supra at 817, although the defendant would have been warranted in concluding the certificates could not be admitted against him, we do not ignore the other evidence with respect to the fact asserted in the certificates-here the composition of the substance.

The drug certificates were not the only evidence of this fact. According to the DEA agent, the agent conducted three controlled buys at which the defendant claimed to be selling OxyContin. Also, according to the DEA agent, the defendant identified his supplier, to both the DEA agent and one of the confidential informants, as an eighty year old woman with a prescription who had recently been robbed, and thrice drove the DEA agent to her residence. The police also had a record of that person's house as one that had been robbed of OxyContin. Finally, the defendant was recorded several times claiming to the ATF agent that the pills contained oxycodone, and he urged the ATF agent to test the sixty-three pills.

To take the last evidence first, an alleged drug dealer's statements that his drugs are real is worth little, especially where the Commonwealth acknowledges the defendant had previously sold a counterfeit or inoperative hand grenade. To be sure, there could be grievous consequences for selling fake drugs-in this case to a person with access to weaponry including machine guns-but any sale of fake drugs carries substantial risks of retaliatory physical violence. Strong assertions that the drugs are real is something, but with this as the primary evidence of the composition of the pills, the Commonwealth's case would have been much, much weaker without the drug certificates. The statements about the supplier, corroborated to some degree by the evidence that she was robbed of OxyContin, add more to the Commonwealth's case. But there was no evidence of the prescription or the bottle, and the evidence had to prove the composition of these pills beyond a reasonable doubt. Cf. Commonwealth v. Alisha A., 56 Mass. App. Ct. 311, 313-314 (2002) ("The jury reasonably could have inferred that the distributed substance was Klonopin" even in the absence of a certificate, from, inter alia, "the juvenile's statements ... that she would be bringing Klonopin pills into school and distributing them to others, and that they were in her home by prescription, a fact confirmed by the juvenile's mother, who testified that she had discovered seventeen pills missing that day. The juvenile's display of pills and a prescription bottle to ... other students the next day also supports the conclusion that the juvenile carried out her stated intention." [Footnote omitted] ). Perhaps the Commonwealth could have marshaled some additional evidence, but again, as Scott instructs, "To permit further hypothetical arguments to factor into the analysis ... would require a court to heap inference upon inference and will bring the inquiry under this prong too far afield of the facts and circumstances actually known to the defendant at the time of his guilty plea." Scott, supra at 357-358.

While the Commonwealth had some case to present on the content of the pills, it was far weaker than one featuring certificates of analysis. The magistrate's conclusion, and thus the judge's, was infected by the same error in weighing the strength of the case without the certificates. Given the speculative nature of the benefit from an unagreed plea, we think the defendant has met his burden to demonstrate all he must: that with respect to the relevant charges, in the absence of the drug certificates, there would have been a "reasonable probability" he would not have entered the unagreed plea. Contrast Antone, supra at 818 (the Commonwealth had "significant additional evidence" the substance was cocaine-a different chemist had performed primary testing and identified the substances as cocaine; two controlled buys had been conducted, of substances that field-tested positive for cocaine; a room in the defendant's house had "all the requisite supplies, tools, and instruments specific to cooking, processing, and packaging cocaine for distribution; the defendant pointed out the 'drugs' to the police; and an experienced detective, based on his training and experience, was potentially available to testify"). With its clear errors in assigning weight to both the value of the pleas to the defendant, and the strength of the Commonwealth's case without the certificates, the judge's conclusion to the contrary was outside the range of his sound discretion.

(iii) Charge 5 and the contents of the alleged morphine pills. Finally, the only direct evidence that the pills related to the charge of distribution of morphine contained morphine is Dookhan's drug certificate. There is no circumstantial evidence supporting that conclusion. There were no recorded conversations between the defendant and the confidential informant who conducted the controlled buy, and there is nothing in the record about the source of the morphine. Indeed, the Commonwealth raises no independent argument about the contents of the pills alleged to be morphine. Again, weighing the factors properly, the defendant has demonstrated a reasonable probability he would not have pleaded guilty had he been aware of Dookhan's misconduct, and for the reasons spelled out above, the judge's conclusion to the contrary must be reversed.

Order denying motion for new trial reversed.

      See Commonwealth v. Scott, 467 Mass. 344, 349-350 (2014) (describing Dookhan's misconduct).

      For ease of expression, we treat the special judicial magistrate's findings of fact and conclusions of law as findings and conclusions of the motion judge, the latter having adopted them.

      The record is unclear whether the defendant was buying pills from the woman or had robbed her.

      The magistrate also relied, in determining the strength of the Commonwealth's remaining case, on the admissibility of the second analyst's "confirmatory analysis, the integrity of which is not in doubt." The Commonwealth does not rely on the confirmatory analysis, presumably because there is, in fact, nothing in the record indicating whether or not the confirmatory analysis was reliable and independent of Dookhan's tests. Compare Antone, 90 Mass. App. Ct. at 816-817 (affidavit of another analyst showing that she "performed at least two tests that indicated the substances were consistent with cocaine and that her role in testing and storing the substances was entirely independent of the testing done by Dookhan" important to defendant's decision to plead guilty).

      The Commonwealth also would rely on the ATF agent, who was familiar with oxycodone, recognizing the pills as oxycodone, but where the issue is whether the pills are or are not genuine, this adds little to the Commonwealth's side of the scale.


text:
    COLUMBIA PLAZA ASSOCIATES v. NORTHEASTERN UNIVERSITY.
    17-P-522
    Appeals Court of Massachusetts.
    Entered: June 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This case arises from a series of agreements between Columbia Plaza Associates (CPA) and Northeastern University (university) related to the development of land near the university's campus.

In 2013, CPA filed a verified complaint in Superior Court alleging seven causes of action. In 2014, a judge of the Superior Court (first judge) allowed the university's Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion to dismiss CPA's claims alleging breach of contract and breach of the implied covenant of good faith and fair dealing, and a claim to enforce the contract in equity. In 2015, a different Superior Court judge (summary judgment judge) ordered the entry of summary judgment pursuant to Mass.R.Civ.P. 56(d), 365 Mass. 824 (1974), on three more of CPA's claims, but allowed CPA's claim for a violation of G. L. c. 93A to go to trial. In 2016, the university again moved for summary judgment on the remaining claim for a violation of c. 93A, and CPA filed a cross motion for leave to amend its complaint to conform to the evidence adduced during discovery. A third Superior Court judge (third judge) denied both motions. In October of 2016, a bench trial commenced on CPA's claim for a violation of c. 93A. On the fourth day of trial, CPA moved to amend its complaint pursuant to Mass.R.Civ.P. 15(b), 365 Mass. 761 (1974), which was summarily denied. Following the conclusion of trial, judgment entered in favor of the university.

CPA now appeals, arguing that (1) the first judge erred by allowing in part the university's motion to dismiss, (2) the third judge and the trial judge abused their discretion by denying CPA's motions for leave to amend its complaint, and (3) the judgment on CPA's claim for a violation of c. 93A claim was clearly erroneous. We affirm.

Motion to dismiss. We review a ruling on a motion to dismiss de novo, "accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Edwards v. Commonwealth, 477 Mass. 254, 260 (2017). To survive a motion to dismiss, the plaintiff must present factual allegations that rise above the level of speculation and plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). See also Flagg v. AliMed, Inc., 466 Mass. 23, 26 (2013).

We limit our de novo review to CPA's complaint and we will not consider facts adduced beyond its four corners. See General Motors Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584 (1992). CPA's dismissed claims relate to a joint venture agreement between CPA and the university for land adjacent to the university's campus. In 1998, the university approached CPA with a proposal to create a joint venture to purchase development rights from CPA. The university requested that CPA obtain title to a parcel from the Boston Redevelopment Authority (BRA) and then sell all interest in that parcel to the university so that the university could build a parking garage. In 1999, the parties reduced this agreement to writing.

Included within the agreement is a provision detailing a separate future joint venture for another parcel of land titled parcel 18-3A. The complaint alleges, and we accept as true, that the parcel 18-3A provision was an integral part of the over-all agreement for the garage parcel. Following closing, the university paid CPA a price below fair market value for the garage parcel, but never entered into the contemplated second joint venture agreement for parcel 18-3A. In 2007, the university independently submitted an amended development plan to the BRA in which it represented the existence of a partnership with CPA. Within these plans, the university included a proposal to build a dormitory on parcel 18-3A. Following BRA approval, the university built the proposed dormitory on parcel 18-3A, which was ultimately completed in 2009. The university never paid CPA rent, a capital contribution, or a purchase price for parcel 18-3A.

To survive a motion to dismiss on a breach of contract claim, the plaintiff must establish (1) an oral or written agreement, express or implied, (2) supported by valid consideration; (3) the plaintiff was ready, willing, and able to perform; (4) breach by the defendant; and (5) damage to the plaintiff. See Singarella v. Boston, 342 Mass. 385, 387 (1961). CPA argues that the unambiguous language contained in the agreement created a contract that the university breached when it failed to compensate CPA for developing parcel 18-3A. See Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010).

The portions of CPA's complaint that assert interpretations of the parcel 18-3A provision are legal, rather than factual, and we do not accept CPA's interpretation as true when reviewing the motion to dismiss. USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116 (1989). Rather, we interpret the agreement de novo to determine if CPA's complaint alleged claims upon which relief could be granted. See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 408 (1995) (contract claim properly dismissed pursuant to rule 12 [b][6] where, accepting plaintiff's allegations as true, defendant acted within contractual rights in terminating her).

Generally, "[a]n agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto." Rosenfield v. United States Trust Co., 290 Mass. 210, 217 (1935). However, "[i]t is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract." Situation Mgmt. Sys. v. Malouf, Inc., 430 Mass. 875, 878 (2000). In such a case, if the parties "specify formulae and procedures that, although contingent on future events, provide mechanisms to narrow present uncertainties to rights and obligations, their agreement is binding." Lafayette Place Assocs. v. Boston Redev. Authy., 427 Mass. 509, 518 (1998). See Hastings Assocs. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. Ct. 162, 169-170 (1997).

When conducting a de novo review of the unambiguous language in the parcel 18-3A provision, we fail to find the necessary formulae and procedures to fill the omitted material terms that CPA argues bind the university to an enforceable contract. Here, the express language of the provision only obligates the parties to "commence negotiations" toward reaching an agreement for parcel 18-3A upon closing of the garage parcel. The provision, unlike in Lafayette Place Assocs. or Hastings Assocs., does not give a party an automatic right to enter into a joint venture agreement, provide a mechanism for resolving omitted terms, or even state what basic form the considered joint venture will take. In fact, the provision itself contemplates that agreement on material terms may never be reached by limiting negotiations to a six-month window unless mutually extended.

CPA argues that despite its plain language, affirmative obligations must be read into the parcel 18-3A provision because of the importance the parties placed on it during negotiations for the entire agreement. We agree that "[t]he judicial bias is toward interpreting a contract 'so as to make it a valid and enforceable undertaking rather than one of no force and effect.' " Finn v. McNeil, 23 Mass. App. Ct. 367, 372 (1987), quoting from Shayeb v. Holland, 321 Mass. 429, 432 (1947). However, "[t]he court cannot make for the parties a contract which they did not make for themselves." Read v. McKeague, 252 Mass. 162, 164 (1925). Accordingly, given the plain language, the parcel 18-3A provision is merely an unenforceable agreement to reach an agreement and the judge properly dismissed the breach of contract claim on the ground that it failed to state a claim upon which relief can be granted. See Schaer v. Brandeis Univ., 432 Mass. 474, 477-478 (2000). Because there must first be a binding contract to bring a claim for breach of the implied covenant of good faith and fair dealing, it also was proper to dismiss that claim. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 288 (2007).

CPA also argues that even if its contractual claims fail, it should be able to enforce in equity the agreement to reach an agreement. Whether CPA's equity claim sounds in quasi-contract or estoppel, the judge properly dismissed it for failure to state a claim upon which relief can be granted. Here, there is an actual written instrument stating the obligations, or lack thereof, of the parties. See Popponesset Beach Assn. v. Marchillo, 39 Mass. App. Ct. 586, 592 (1996) ("[I]mplied-in-fact contract comes into being when, notwithstanding the absence of a written agreement ... expressing mutual obligations, the conduct or relations of the parties imply the existence of a contract"). Alternatively, CPA sought to estop the university from asserting that it did not enter into an enforceable joint venture agreement for parcel 18-3A. However, promissory estoppel requires that the party invoking it must have reasonably relied on the alleged promise to the party's detriment. Rhode Island Hosp. Trust Natl. Bank v. Varadian, 419 Mass. 841, 849-850 (1995). Here, where the terms of the alleged promise are unambiguously indefinite, CPA had nothing more than a well-founded hope that a future joint venture agreement would come to fruition. Thus, where the university did not make a sufficiently definite promise, any reliance on the part of CPA was too unreasonable to give rise to a valid estoppel claim. Ibid.

Motions for leave to amend the complaint. CPA contends that both the third judge and the trial judge abused their discretion by denying its motions for leave to amend its complaint. See Doherty v. Admiral's Flagship Condominium Trust, 80 Mass. App. Ct. 104, 112 (2011), citing Spillane v. Adams, 76 Mass. App. Ct. 378, 390 (2010).

First, CPA contends that the third judge impermissibly deferred to the partial judgment entered on CPA's three dismissed claims. See Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 552-553 (1987). While we agree that a judge is not permitted to merely defer to a prior judgment dismissing a complaint when ruling on a motion to amend, we find no abuse of discretion when a plaintiff's amendment would be futile. See Doherty, supra. Here, CPA argues that the survival clause in the agreement was ignored by both the first and third judges and its consideration would have allowed CPA to state a valid claim for breach of contract. As observed in note 5 supra, such a survival clause, though inconsistent with the six-month expiration clause, does not create an enforceable contract. Accordingly, any motion to amend the complaint to highlight such a clause would be futile. See ibid. We find no abuse of discretion in the third judge's order.

CPA also argues that the trial judge abused her discretion when she denied CPA's motion for leave to amend its complaint to conform to the evidence during trial pursuant to Mass.R.Civ.P. 15(b). "[I]t is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment." Hamed v. Fadili, 408 Mass. 100, 105 (1990), quoting from Goulet, 399 Mass. at 550 n.3. "[T]he timing of such a motion is a factor that may be considered by the judge in ruling on the motion." Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 398 (2003). Here, we find no abuse of discretion when CPA moved to amend two years after the breach of contract claim was dismissed, nine months after summary judgment narrowed the issue solely to the claim for a violation of c. 93A, and four days into trial. From filing its complaint in 2013 until the start of trial, CPA had nearly four years to amend its complaint, which included the summary judgment judge's clear invitation to do so in his memorandum of decision and order. Finally, nothing at trial suggests that the university expressly or implicitly consented to trial of a breach of contract claim and adding such a claim would have severely prejudiced the university. See Herbert A. Sullivan, Inc., supra at 399. Accordingly, we find no abuse of discretion.

Violation of c. 93A. We review whether the trial judge's finding that CPA's claim of a violation of c. 93A exceeded the four-year statute of limitations was clearly erroneous. See G. L. c. 260, § 5A. A "finding is clearly erroneous only when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997) (quotations omitted). "In tort actions and actions for violation of G. L. c. 93A, the cause of action accrues at the time the plaintiff is injured." Stark v. Advanced Magnetics, Inc., 50 Mass. App. Ct. 226, 232 (2000).

CPA did not commence this action until July 1, 2013, more than four years after CPA sent the university a demand letter on April 13, 2009, detailing the alleged violation of c. 93A related to parcel 18-3A. In its demand letter, CPA specifically identified the conduct it alleged violated c. 93A, confirming CPA's notice of its claim against the university. See Riley v. Presnell, 409 Mass. 239, 246 (1991) ("Accrual of the cause of action occurs when the ordinary reasonable person who had been subjected to the experience would have discovered that the injury was caused by that experience"). The demand letter shows that CPA was aware of the university's conduct enough to request damages for its alleged injuries and to start the clock for the statute of limitations. Cf. Baldassari v. Public Fin. Trust, 369 Mass. 33, 44 (1975). We find no error in the trial judge's finding that CPA's claim for a violation of c. 93A was time-barred.

Judgment affirmed.

Posttrial order granting costs affirmed.

      CPA does not appeal from the partial grant of summary judgment.

      CPA also noticed an appeal from the posttrial order awarding costs to the university, but presented no argument to us on this issue. Accordingly, it is waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

      Now known as the Boston Planning and Development Agency.

      The provision reads, in pertinent part, as follows:
      "No later than six (6) months after the Closing (the "Joint Venture Date"), Buyer (or an entity wholly owned and controlled by it) and Seller (or an entity wholly owned and controlled by it) shall enter into a joint venture (the "Joint Venture") to develop a new building on Parcel 18-3A of Ruggles Center (the "Development Parcel") pursuant to a joint venture agreement or liability company agreement in form and substance mutually satisfactory to the parties (the "Joint Venture Agreement"). The parties shall commence negotiations regarding the Joint Venture after the execution hereof and shall work diligently and in good faith to execute the Joint Venture Agreement by the Joint Venture Date, which may be extended by either party for a period of sixty (60) days or longer with the mutual agreement of the parties. The provisions of this section 6.3 shall survive the Closing until full execution of the Joint Venture Agreement at which time they shall be null and void and of no further force and effect."

      CPA alleges that the university's representation of a partnership was fraudulent to both CPA and the BRA. Aside from its claim under c. 93A, CPA did not bring a claim sounding in fraud or tortious interference, and the BRA was not a party below. For the reasons stated in note 2 of the memorandum of decision on the university's motion to dismiss, we agree that this alleged fact does not allow CPA's claims to survive dismissal.

      CPA argues that the survival clause of the provision requires a reading that the mutual obligation between CPA and the university to "commence negotiations" must apply indefinitely. Such a reading ignores the two clauses that come immediately before and after the survival language which expressly contemplate never reaching an agreement. See Metropolitan Property & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass. App. Ct. 818, 822-823 (2003).

      A judge's decision to summarily deny a motion to amend is not a per se abuse of discretion or error of law. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 291-292 (1977).

      We need not address CPA's argument that the trial judge committed an error by ruling on the statute of limitations issue. Evidence at summary judgment and on a motion to dismiss must be read favorably to the nonmoving party. This is not the presumption at trial, and a different judgment need not be reviewed under an abuse of discretion standard.


text:
    COMMONWEALTH v. Mark WAITE.
    17-P-1508
    Appeals Court of Massachusetts.
    Entered: June 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Mark Waite, on three indictments charging him with rape ( G. L. c. 265, § 22 [b ] ), and one indictment charging him with indecent assault and battery ( G. L. c. 265, § 13H ). In this appeal, the defendant contends that his trial counsel was prejudicially ineffective for failing to fully impeach the victim with prior inconsistent statements memorialized in medical records, failing to file an O'Dell motion, see Commonwealth v. O'Dell, 392 Mass. 445 (1984), and for shifting the burden to the defense in opening and closing arguments. The defendant also contends that the judge abused his discretion in denying the defendant's motions for a new trial and postconviction discovery. For the reasons below, we affirm.

Discussion. 1. Ineffective assistance of counsel. We examine all ineffective assistance claims to determine if "there has been serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer-and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic decision constitutes ineffective assistance if it was "manifestly unreasonable when made." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).

a. Victim's prior inconsistent statements. The defendant first claims that counsel's decision not to confront the victim with her prior inconsistent statements regarding her encounter with the defendant was manifestly unreasonable. We disagree.

When the victim first reported the rapes, police transported her to a hospital. According to notes prepared by a licensed mental health counsellor (counsellor) at the hospital, the victim explained her sexual encounter with the defendant as consensual. At trial, the victim denied that she ever consented, and explained that she gave contradictory statements at the hospital because the experience was overwhelming. On cross-examination, she admitted telling the counsellor that "nothing happened" between her and the defendant. Defense counsel then asked her if she remembered telling the counsellor that the encounter was consensual, and the victim replied that she did not recall. Counsel did not press the issue, but did enter the medical records containing the counsellor's notes in evidence.

Trial counsel's decision not to directly confront the victim with the counsellor's notes or call the counsellor as a rebuttal witness (as the defendant suggests) was not "manifestly unreasonable" because it allowed him to present the inconsistencies to the jury without any undermining explanation from the victim. See Commonwealth v. Hensley, 454 Mass. 721, 741-742 (2009) (although medical records supported defense of lack of requisite mental state for murder in the first degree, counsel was not ineffective for not submitting them to jury when doing so would have revealed damaging facts).

b. O'Dell motion. We are also not persuaded that trial counsel was ineffective for failing to file an O'Dell motion to dismiss the indictment. O'Dell requires the Commonwealth to present exculpatory information in its possession to the grand jury if withholding it would damage "the integrity of the grand jury proceeding" by distorting the information presented. O'Dell, 392 Mass. at 449. This includes information that greatly undermines the credibility of key witnesses. Commonwealth v. Mayfield, 398 Mass. 615, 620-621 (1986). However, there is no indication that the Commonwealth had access to or possession of the medical records containing the victim's contradictory statements when presenting evidence to the grand jury. Therefore, the filing of an O'Dell motion would have been futile. "[C]ounsel was not ineffective in not filing a futile motion to dismiss the indictments." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 175 (2001).

c. Burden shifting. Finally, the defendant faults his trial counsel for shifting the burden of proof onto the defense during his opening and closing arguments.

Defense counsel stated several times that he would "prove" both the defendant's innocence and that the victim was lying. However, counsel also properly urged the jury to "listen to the judge's instruction on reasonable doubt," and the judge repeatedly instructed the jury that the burden of proof is always on the Commonwealth. Even if counsel's statements amounted to ineffective assistance, we see no prejudice. "[I]f defense counsel's promise to prove certain facts created any confusion as to who bore the burden of proof, the confusion would have been cured by the judge's instructions after closing argument that the burden of proving the defendant's guilt beyond a reasonable doubt rested with the Commonwealth." Commonwealth v. Parent, 465 Mass. 395, 407 (2013). We perceive no error.

2. Denial of postconviction motions. The defendant claims that the judge's decision to deny his motions for postconviction discovery and a new trial without an evidentiary hearing was an abuse of discretion. We disagree.

The judge may decide a motion for a new trial "on the basis of affidavits if those affidavits and the motion raise no 'substantial issue.' " Commonwealth v. Brown, 479 Mass. 163, 168 (2018), quoting from Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). "The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). Whether to grant a motion for postconviction discovery is also within the discretion of the judge. See Commonwealth v. Gelfgatt, 468 Mass. 512, 519 n.11 (2014). Furthermore, we accord "greater deference to that decision where, as here, the motion judge also presided over the trial." Brown, supra at 168-169.

The defendant made the same ineffective assistance claims in his motion as he does here. Despite the defendant's motion for postconviction discovery, all the information the judge needed to render a decision was contained in the affidavits.

The defendant sought to obtain juror and court officer contact information to determine whether the jurors viewed the victim's medical records. Inquiry "into the substance of jury deliberations" is impermissible, and thus the initiation of posttrial contact with the jurors is generally prohibited. Commonwealth v. Moore, 474 Mass. 541, 549 (2016). Also, aside from trial counsel's unexplained personal belief that the jurors did not view the victim's medical records, the defendant provided no support for the assumption that the jurors failed to view the medical records. In any event, evidence of the jury's failure to view the medical records would not have undermined the appropriateness of trial counsel's strategic trial tactic to rely on the medical records for impeachment purposes. Accordingly, the judge did not abuse his discretion in denying any postverdict discovery or the new trial motion, which raised the same meritless claims we reject on appeal. We discern no abuse of discretion.

Judgments affirmed.

Order denying motions for new trial and postconviction discovery affirmed.