text:
    COMMONWEALTH v. Raheem R. ABUBARDAR.
    17-P-1389
    Appeals Court of Massachusetts.
    Entered: August 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant of assault and battery as a lesser included offense of attempted murder. On appeal the defendant argues that the trial judge erred in instructing the jury only on self-defense by means of deadly force, when the evidence supported a finding that the defendant defended himself with nondeadly force. We affirm.

Background. The Commonwealth elicited the following evidence during its case in chief. In November of 2012, the victim gave the defendant a ride in a van owned by the church they both attended. The defendant sat in the front passenger seat. Once the van was parked, the defendant asked the victim "when [they] were going to be in a relationship." When the victim replied that she was not looking for a relationship, the defendant became angry, threatened to kill her, and started choking her with both hands around her throat. A passerby saw them fighting and knocked on the window, distracting the defendant and allowing the victim to open the door and escape. The defendant ran after her, threw her to the ground, and threatened to kill her daughter, before driving off in the van.

The defendant, testifying on his own behalf, did not dispute that he and the victim fought, but claimed that she instigated the fight by hitting and scratching him after he asked about her activity on a dating Web site. According to the defendant, he was "just sitting there," "trying to hold [the victim] and contain her ... so [he] could get away." After the passerby knocked on the window, the defendant looked up and saw two men approaching the van. Fearing that he was about to be robbed, the defendant pushed the victim so that he could get out of the van and confront the two men. The defendant admitted that he "pushed [the victim] too hard" but stated that he did not intend to hurt her.

The judge gave a self-defense instruction at the defendant's request. The instruction was limited, however, to explaining the defendant's right to use deadly force in self-defense. The defendant did not object to the instruction, nor did he request an additional instruction on nondeadly force.

Discussion. Because the defendant failed to preserve the issue, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015). A defendant is entitled to an instruction on the use of nondeadly force in self-defense "if the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) 'the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.' " Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting from Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 369 (2004). The Commonwealth argues that the second of these requirements is not met because the evidence did not establish that the defendant made efforts to retreat before using force. We agree.

A self-defense instruction is not required unless there is some evidence "that the defendant had availed himself of all proper means to avoid physical combat before resorting to the use of any force, deadly or nondeadly." Commonwealth v. Toon, 55 Mass. App. Ct. 642, 653 (2002). The defendant must have "use[d] every reasonable avenue of escape available to him." Commonwealth v. Pike, 428 Mass. 393, 398 (1998). This "is a factual question dependent on a variety of circumstances, including the relative physical capabilities of the combatants, the weapons used, the availability of maneuver room in, or means of escape from, the area, and the location of the assault." Id. at 399. "Before that question may go to the jury, however, there must be some evidence that the defendant attempted to retreat or that no reasonable means of escape was available." Ibid.

Here, there was no evidence that the defendant made an actual attempt to retreat -- which he could have done by opening the passenger door and exiting the van -- before resorting to the use of force against the victim. Nor was there evidence that a means of escape was unavailable. Though the defendant testified that the victim hit and scratched him, he did not testify that she held him or otherwise impeded his movement such that he was unable to exit the van without pushing her (too forcefully, by his own admission). "In the absence of any evidence of an attempt to avoid further physical combat or of the defendant's inability to retreat, no self-defense instruction was required." Ibid. The judge thus did not err by not giving a nondeadly force instruction sua sponte. See id. at 398-399 (though defendant was standing between high-speed traffic and guardrail, evidence did not show inability to retreat where he "did not testify ... that he reengaged because it was impossible for him to avoid further combat without incurring serious injury"); Commonwealth v. Vives, 447 Mass. 537, 543-544 (2006), overruled in part on other grounds by Commonwealth v. Liebenow, 470 Mass. 151 (2014) (defendant had means to retreat where he was in stairwell of own apartment building); Commonwealth v. Alves, 50 Mass. App. Ct. 796, 809 (2001) (defendant had means to retreat where he was on public street); Toon, 55 Mass. App. Ct. at 654 (similar).

Even were we to assume error, moreover, no substantial risk of a miscarriage of justice arose from it. Whether an error created a substantial risk of a miscarriage of justice turns on whether we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In making that assessment, we consider among other things "whether the error is 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error.' " Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).

Here, considering the entire trial, we have no serious doubt that the jury's verdict might have been different had the judge given a nondeadly force instruction. Contrary to the defendant's assertions, self-defense was not his only defense to the assault and battery charge. The judge properly instructed that an element of the crime of assault and battery is that "the touching was committed without justification or excuse" and that "the Commonwealth must prove the absence of justification or excuse beyond a reasonable doubt." Furthermore, defense counsel's strategy throughout trial was to focus almost exclusively on the more serious charges of rape, attempted murder, and intimidation of a witness. Counsel discussed only the rape charge in his opening statement, while admitting that the defendant was involved in an "altercation" with the victim in November of 2012. Similarly, counsel focused his entire closing argument on the three more serious charges. He mentioned assault and battery only once, when he concluded his argument by stating, "Now, [the defendant] submits to your judgment as a jury ... [whether,] when he was grabbing [the victim, it] was lawful or an assault and battery; but as to the crimes of rape, intimidation and assault to murder, I ask that you find him not guilty." In light of the defense's strategy -- which was successful, as it resulted in findings of not guilty on all three of the more serious crimes -- we do not think an instruction on nondeadly force would have materially influenced the jury's deliberations on the assault and battery charge. In any event, as set forth above, no such instruction was required.

Judgments affirmed.

      The jury also convicted the defendant of threatening to commit a crime, but he raises no claim of error as to that conviction. The jury acquitted the defendant of rape, intimidation of a witness, and unauthorized use of a motor vehicle.

      We disagree with the defendant's contention, raised at oral argument, that the jury may have conflated the instruction on use of deadly force in self-defense with the concept of justification or excuse. The judge first gave the self-defense instruction and then explained the elements of attempted murder followed by the elements of assault and battery. The judge also gave specific examples of what constitutes justification or excuse: "An example of justification is a physical examination by a doctor. An example of excuse is a situation where a person sees another in danger, reaches out and while removing the other person from an oncoming vehicle touches that person's breast." Considering the sequence of the instructions and the examples the judge provided, there is no substantial risk that the jury conflated the concepts.


source: Caselaw Access Project

license: Public Domain

text:
    J.S. v. N.A. (and a companion case ).
    17-P-1078 17-P-1079
    Appeals Court of Massachusetts.
    Entered: August 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      J.S. vs. B.S.

   The plaintiff, J.S., filed complaints against the defendants, N.A. and B.S., seeking harassment prevention orders pursuant to G. L. c. 258E. During a hearing on the complaints, the plaintiff stated that the defendants worked as managers at the plaintiff's place of employment. The plaintiff further testified that she was seeking harassment prevention orders against the defendants because they had done nothing in their capacity as her supervisors to stop instances of workplace harassment perpetrated against the plaintiff by unknown individuals. The plaintiff went on to state that the defendants had not physically assaulted her, nor had they threatened to physically assault her. The judge declined to issue harassment prevention orders against the defendants at the close of the plaintiff's case.

The failure of the defendants to prevent workplace harassment alone is insufficient to satisfy the definition of harassment set forth in G. L. c. 258E, § 1. The plaintiff's requests for harassment prevention orders were properly denied.

Orders denying relief under G. L. c. 258E affirmed.

      Although these appeals were not consolidated, they present the identical issue and we choose to dispose of them in a single memorandum decision.


text:
    COMMONWEALTH v. Christopher LOMBARDO.
    17-P-1094
    Appeals Court of Massachusetts.
    Entered: August 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The issue before us is whether the defendant is entitled to jail credit for time he spent awaiting trial, or whether he already received appropriate credit for that time on an earlier sentence for a probation violation. After review, we conclude that the defendant already received credit for the time he served and that awarding him additional jail credit would be "double counting" and inappropriate.

On August 5, 2010, the defendant was arraigned on four charges of rape of a child. He was held on bail and on October 14, 2010, pleaded guilty to three of those charges. On one count, the defendant received a sentence of two and one-half years in the house of correction, committed, with credit for 167 days spent in custody before the plea. On the remaining two counts, he received a sentence of no less than two and no more than ten years in State prison, suspended for three years of probation, with certain conditions, the probation to begin "from and after" the committed portion of his sentence.

Thereafter, the defendant was charged three times with violations of the terms of his probation. Each time, he initially was held without bail pending a final hearing, but was then placed back on probation. Finally, on February 27, 2014, he was "brought into court from District Court on new charges." The judge found probable cause that the defendant had committed a probation violation, specifically a new criminal offense, and held him without bail. On September 24, 2014, after a hearing, the judge found that the defendant had violated the terms of his probation by committing a new offense and sentenced him to the suspended sentence. At that time, he was given credit for 233 days, deemed already served, awaiting the various violation hearings while he was on probation.

That new criminal charge -- the one that triggered the probation violation hearing -- is the case before us. On March 24, 2014, while already in custody on the probation case, the defendant was indicted on a new, unrelated charge of rape. On March 2, 2015, he pleaded guilty in that case, and was sentenced to four to six years in State prison (with no jail credits), that sentence to run concurrently with the revocation sentence he was already serving. Notably, this new sentence was not "ordered or required to commence on the same date as the [revocation] sentence[ ]." Commonwealth v. Barton, 74 Mass. App. Ct. 912, 914 (2009).

On June 18, 2017, the defendant, acting pro se, brought a motion to correct the mittimus in this case to reflect 388 days of pretrial detention he spent awaiting trial. On August 4, 2017, the motion judge denied the motion, concluding that the defendant was "entitled to no jail credits" in the present case because "the entire period of his detention, up to his sentencing in [the present] case, was credited to his revocation sentence." On appeal, the defendant claims this was error because, in fact, he was in custody for all of the time between his arraignment and the time that he pleaded guilty in this case.

The defendant is correct that he was held on this case for all of that time. The docket sheet shows that bail was set at $100,000 at the time of his arraignment and remained at that amount until the time of the plea. However, for all of the time between the defendant's arraignment on this case and the time of his plea, he also was held on his open probation case, either before the violation hearing or afterwards, when he was serving his sentence after being found in violation of the terms of his probation for the new offense. The motion judge so found, saying "the entire period of his detention, up to his sentencing in [the rape] case, was credited to his revocation sentence. The defendant is not entitled to double counting of jail credits. As the Supreme Judicial Court has stated: 'care should be taken to ensure that a prisoner is not banking time or getting double credit for time.' [ Williams v. Superintendent, Mass. Treatment Center ], 463 Mass. 627, 632 (2012)."

What the defendant seeks, in essence, is double credit for time he spent in pretrial detention for a prior, unrelated crime. "When faced with a request for jail time credit regarding unrelated offenses, ... care should be taken to ensure that a prisoner is not ... getting double credit for time." Ibid. In Commonwealth v. Carter, 10 Mass. App. Ct. 618, 621 (1980), we noted that "[a]ny sentence being served concurrently with a sentence to which a jail credit is applied should receive the benefit of the same credit so that the sentence in fact retains a concurrent status." However, we subsequently explained that that requirement does not apply to the situation here -- a concurrent sentence on an unrelated offense, arising from a different criminal episode. See Commonwealth v. Blaikie, 21 Mass. App. Ct. 956, 957 (1986) ; Barton, 74 Mass. App. Ct. at 914 ("The language from [ Commonwealth v.] Carter, [10 Mass. App. Ct. 618, 621 (1980) ] ... does not govern the sentences in cases" where "multiple concurrent sentences are ordered on different dates, on account of different criminal offenses, ... although the later imposed sentences are ordered to be served concurrently with the first sentence imposed," except when there is unexhausted jail time credit remaining when the first sentence expires, which then must be applied to the remaining sentence). "[A] defendant is generally entitled to [credit for] all of the time he spent in custody awaiting trial, but not more than that." Commonwealth v. Murphy, 63 Mass. App. Ct. 753, 757 (2005).

In short, we see neither error nor an abuse of discretion in the denial of the defendant's motion to correct mittimus.

Order denying motion to correct mittimus affirmed.

      The prosecutor filed a nolle prosequi on the third of the four charges.

      While the record before us ndicates some 219 days' credit, it is likely that the additional days were spent held on bail in the District Court.

      Specifically, the defendant seeks credit for the period from February 7, 2014, to March 2, 2015, totaling 388 days; the Commonwealth contends that the defendant would be entitled only to 368 days (from February 27, 2014, to March 2, 2015). In his order, the judge found that the defendant was held in custody beginning on February 7, 2014. Again, although the record before us is not entirely clear, it is likely that any

      discrepancy is accounted for by time that the defendant was held on District Court bail before he appeared in Superior Court. It is true that the probation violation for which the defendant was sentenced was, in fact, the new offense that is the case before us. Nonetheless, in the end, the two cases involve separate, unrelated, though similar, serious criminal offenses, separated in time. It is neither inappropriate nor unfair for the defendant to serve the two sentences separately -- although, in fact, the judge in the present case ordered the second sentence to run concurrently with the probation violation sentence.


text:
    COMMONWEALTH v. Shaun G. HUNTER.
    17-P-906
    Appeals Court of Massachusetts.
    Entered: August 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This case is before us on interlocutory appeal by the Commonwealth, which asserts error in the judge's allowance of the defendant's motion to suppress. We reverse.

Background. The judge found the following facts, which we conclude are amply supported by the record and therefore will not disturb. Following an investigation into drug activity in an apartment in Pittsfield, the police obtained a search warrant that, inter alia, authorized the search of the apartment and four named individuals. The warrant itself did not authorize the search of all those present at the apartment nor did it name or reference the defendant.

Upon the warrant's execution, three police officers guarded the back door of the apartment as other officers announced their presence with a search warrant at the front door. The defendant was among several people whose attempts to flee through the back door were thwarted by the officers guarding it. Including the defendant, four people were present in the apartment when the warrant was executed, and after being secured and pat frisked, the occupants were detained while the officers searched the apartment. During the search, the officers found "crack" cocaine and heroin in plain view, on the dining room table and elsewhere. A digital scale and packaging materials were also discovered.

Upon discovering the drugs and other indicia of narcotics distribution, the police searched the defendant, and discovered $500 in cash, a cellular telephone, and a key that unlocked the apartment's front door. The defendant was placed under arrest. The judge allowed the defendant's motion to suppress the evidence discovered on his person, concluding that the search of the defendant was not authorized by the search warrant and that there was insufficient probable cause to justify the defendant's arrest. The judge further determined that the defendant's presence in the apartment, even coupled with his attempted flight, did not give police probable cause to believe that he either possessed the heroin discovered in the home or violated G. L. c. 94C, § 35, amended by St. 1972, c. 806, § 25, which criminalizes "knowingly [being] present at a place where heroin is kept." We disagree and conclude that the defendant's presence in the apartment where the drugs and indicia of narcotics distribution were discovered in plain view along with his attempted flight indeed provided the police with sufficient probable cause to arrest him. The search of the defendant was therefore incident to that arrest and lawful, and the defendant's motion to suppress should have been denied.

Discussion. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). As stated above, we discern no error in the judge's findings of fact.

Constructive possession requires that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control" over the drugs. Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting from Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). Knowledge of and proximity to drugs alone is not enough to establish constructive possession, but "presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Brzezinksi, supra at 410 (quotation omitted). "Flight is often considered a 'plus' factor supporting an inference that the occupant intended to exercise dominion and control over the illegal contraband." Commonwealth v. Summers, 93 Mass. App. Ct. 260, 264 (2018). The fact that the defendant was not one of the named targets of the search warrant is ultimately irrelevant. He was present in an apartment where the police officers, during a lawful search, discovered drugs in plain view, and attempted to flee as the police entered. As we conclude that those facts provided the police with sufficient probable cause to arrest the defendant, the fruits of the search of the defendant should not have been suppressed. See Commonwealth v. Mauricio, 477 Mass. 588, 592 (2017) ("A search incident to a custodial arrest is well established as an exception to the warrant requirement under both the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights]"). The order allowing the motion to suppress is reversed.

So ordered.

Reversed.

      The Commonwealth first filed a motion to reconsider, which was denied. The Commonwealth was then given leave to proceed with this appeal by a single justice of the Supreme Judicial Court.

      As such, the search of the defendant would not be proper as incident to an arrest.

      "Probable cause exists where the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Walczak, 463 Mass. 808, 848 (2012) (Spina, J., concurring in part and dissenting in part) (quotation omitted). Probable cause analyses consider probabilities. "These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Draper v. United States, 358 U.S. 307, 313 (1959) (quotation omitted).


text:
    COMMONWEALTH v. Armando LOPEZ.
    17-P-1101
    Appeals Court of Massachusetts.
    Entered: August 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Armando Lopez, of possessing a firearm in his home without a firearm identification (FID) card and possessing ammunition in his home without an FID card. See G. L. c. 269, § 10(h ). In this consolidated appeal, the defendant contends the Commonwealth failed to establish that he did not possess a valid FID card and, further, that the posttrial motion judge (who was also the trial judge) erred in denying his motion for a new trial based on his claim that trial counsel was ineffective for failing to move to suppress the firearm and ammunition evidence on the grounds that the police violated the knock and announce rule. We affirm.

Discussion. 1. Sufficiency. The defendant asserts the Commonwealth's proof was insufficient because it failed to introduce any evidence that he did not possess a valid FID card.

This challenge is controlled in all material respects by the Supreme Judicial Court's decision in Commonwealth v. Jones, 372 Mass. 403, 406 (1977), which held that the "[a]bsence of a license is not 'an element of the crime,' as that phrase is commonly used," of possession of a firearm or ammunition without an FID card. See Commonwealth v. Powell, 459 Mass. 572, 582 (2011), cert. denied, 565 U.S. 1262 (2012), citing Jones, supra. Accordingly, "the Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant, under G. L. c. 278, § 7, ... to come forward with such evidence." Ibid. We discern no error.

2. Ineffective assistance of counsel. We also are not persuaded by the defendant's contention that his trial counsel's failure to move to suppress the firearm and ammunition on the ground that the police violated the knock and announce rule when searching his home rose to ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, the defendant must show that "an attorney's performance fell measurably below that which might be expected from an ordinary fallible lawyer and ... [that] such ineffectiveness has likely deprived the defendant of an otherwise available substantial defense." Commonwealth v. Seino, 479 Mass. 463, 472 n.12 (2018), citing Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). When a defendant bases his ineffective assistance claim on the failure to file an evidentiary motion, the proper question is whether filing the motion "might have accomplished something material for the defense." Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Failure to pursue a futile motion is not ineffective assistance of counsel. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520 U.S. 1245 (1997). Since the defendant brought his ineffective assistance of counsel claim in a motion for a new trial, we review the judge's decision for a significant error of law or for an abuse of discretion. See Commonwealth v. Brescia, 471 Mass. 381, 392 (2015).

Here, trial counsel had no reason to believe that suppression of the firearm and ammunition on the basis of a violation of the knock and announce requirement would have had any chance of success. Even after extensive postconviction discovery, the only evidence that points to a violation of the knock and announce rule is the defendant's own self-serving affidavit, which the motion judge was free to reject. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48-49 (1997) (judge free to disregard self-serving affidavits). All other evidence suggests that the "SWAT" team executing the search warrant complied with the knock and announce requirement. The officers swore out affidavits explaining that an unannounced entry could cause a drug or contraband dealer to suspect attack or theft by a rival dealer and would place them in greater danger of attack. For that reason, the officers explained their additional preference for adhering to a knock and announce protocol. They had no reason to believe they departed from that command and safety protocol here. Accordingly, counsel was not ineffective for failing to file a futile motion, and we discern no abuse of discretion.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The jury acquitted the defendant of possessing another firearm without a license, possessing that firearm without an FID card, and accessory to a felony after the fact.

      Contrary to the defendant's assertion, the witnesses' trial testimony does not contradict these claims. The knock and announce command was not at issue at trial, and no one specifically asked the police witness whether the police knocked and announced before entering the premises.


text:
    Siew-Mey TAM v. John DESJARDINS & others.
    17-P-923
    Appeals Court of Massachusetts.
    Entered: August 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Federal Management Company and Peter Lewis.

   The plaintiff, Siew-Mey Tam, appeals from a judgment entered in the Superior Court granting summary judgment in favor of the defendants on Tam's employment discrimination claim pursuant to G. L. c. 151B, § 4, and on her claim of intentional interference with advantageous business relations. The defendants had terminated Tam's employment as a property manager for the Federal Management Company (company), and Tam argues that the defendants' explanation for the termination provided a false reason and, as a result, her dismissal was unlawful discrimination. The defendants counter that Tam failed to offer evidence of pretext or discriminatory animus to support her claim of discrimination. We affirm, essentially for the reasons well explained in the judge's thoughtful memorandum.

Background. On March 27, 2012, defendant John Desjardins, senior property manager at the company and Tam's direct supervisor, went to Mason Place, an affordable housing property located in the Chinatown section of Boston, to reprimand the maintenance technician for losing his master keys. Desjardins, along with Tam, presented the technician with a written warning that the technician acknowledged and signed; the technician then asked to speak with Desjardins privately. The technician told Desjardins that, at that time, there were several apartments in the building that were listed as rented, but that, in fact, were unoccupied. He showed Desjardins four such apartments that appeared to be vacant.

Tam had worked as property manager at the facility since May, 2005. In addition to overseeing the day-to-day operations of the property, Tam was responsible for compliance with the U.S. Department of Housing and Urban Development (HUD) regulations. Complying with those regulations required Tam to verify that each tenant's apartment was the tenant's primary residence; in addition, as part of the annual HUD "section eight" recertification process, Tam was required to obtain an original signature from each tenant on the appropriate form. Tam was aware that failing to obtain an original tenant signature on the HUD recertification form was grounds for termination.

The following week, Desjardins returned to the facility, accompanied by Peter Lewis, the vice president of the company. The two presented to Tam a "rent roll" for the facility and asked her to identify every unit in the facility that was unoccupied. In addition to the four units Desjardins had seen the previous week, Tam identified four more unoccupied units. After reviewing the tenant files for each of those eight units, Desjardins and Lewis found that some of the tenant signatures that appeared on the HUD recertification forms looked different from the signatures on corresponding rent checks and other papers in the respective tenant files. The two concluded that some of the tenants had not personally signed the HUD recertification forms; this lapse directly violated HUD regulations.

On April 18, 2012, Lewis and Desjardins met again with Tam and presented her with a letter terminating her employment. The letter stated that the reason for her termination was "a violation of company policy"; Lewis and Desjardins then verbally explained to Tam that she had violated company policy when she failed to obtain original tenant signatures on the HUD recertification forms. After Tam's departure, the company undertook to fill her position with a candidate who spoke, as Tam did, Mandarin and Cantonese. A previous applicant for a different position within the company declined the position, and the company then placed advertisements in various publications, including a Chinese language newspaper. Desjardins determined that none of the nine candidates who applied for Tam's position possessed the required experience.

In the meantime, in May, 2012, the company temporarily filled the position with Rob Vreeland, a then current employee who had been displaced after a contract expired at another facility managed by the company. Vreeland was a forty-five year old white male, who did not speak Mandarin or Cantonese. Eventually, in June, 2012, after failing to find a qualified candidate from the pool of applicants, the company stopped its search and placed Vreeland permanently into the property manager position.

On April 16, 2015, Tam filed suit against the defendants, alleging discrimination on the basis of race, color, age, and gender in violation of G. L. c. 151B, § 4 (counts I through III), and intentional interference with advantageous business relations (count IV). After an April 17, 2017, hearing, the defendants' motion for summary judgment was allowed. The judge acknowledged the defendants' concession that Tam had established a prima facie case, but found that the defendants had "put forth credible evidence of a legitimate, nondiscriminatory reason for terminating [Tam]'s employment." He concluded that Tam had failed to establish that the defendants' stated reasons for termination were a pretext and therefore allowed the defendants' motion for summary judgment. Tam timely appealed.

Discussion. "We review a grant of summary judgment de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' " DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013), quoting from Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). The defendants, as the moving parties, have the burden of establishing "that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law." Dias v. Brigham Med. Assocs., 438 Mass. 317, 319 (2002), quoting from Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Here, we are persuaded that the defendants have done so, as Tam has no reasonable expectation of proving her case at trial. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 (2003).

"In order to prevail at trial, an employee bringing a complaint under G. L. c. 151B, § 4, must demonstrate four things: that he or she is a member of a protected class; that he or she was subject to an adverse employment action; that the employer bore 'discriminatory animus' in taking that action; and that that animus was the reason for the action (causation)." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). To survive a motion for summary judgment, an employee must provide "indirect or circumstantial evidence [of discriminatory animus and causation] using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 805 ... (1973)." Id. at 681, quoting from Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39-40 (2005).

The defendants concede on appeal that Tam satisfied the first stage of this paradigm by establishing a prima facie case. "In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its [employment] decision." Ibid., quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). We agree with the motion judge that the defendants have met their burden here in providing evidence to support the nondiscriminatory reason for Tam's termination. The burden then shifts back to Tam, requiring her "to provide evidence that 'the employer's articulated justification [for the termination] is not true but a pretext.' " Ibid., quoting from Blare, supra at 443. To prove pretext, Tam must "establish that the basis of [the defendants'] decision was unlawful discrimination 'by adducing evidence that the reasons given by [the defendants] for [their] actions were mere pretexts to hide such discrimination.... This may be accomplished by showing that the reasons advanced by [the defendants] for making the adverse decision are not true.' " Sullivan, 444 Mass. at 54-55, quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000).

We also agree with the motion judge that the evidence Tam now cites on appeal fails to rebut the defendants' proffered reasons for terminating her "and does not, by itself, create reasonable inferences of discriminatory animus and causation." Ibid. As a result, Tam's proof is insufficient to dispute the defendants' consistent contention that her failure to obtain original tenant signatures, in violation of company policy and HUD regulation requirements, warranted nondiscriminatory termination. Because Tam had no expectation of proving pretext at trial, summary judgment was properly granted in the defendants' favor as a matter of law. See DeWolfe, 464 Mass. at 799.

Judgment affirmed.

      Tam testified at her deposition, and also admitted in the parties' consolidated undisputed statement of facts, that the defendants explained to her verbally that she was being terminated for failing to obtain original tenant signatures on HUD recertification forms and that she was told of no other reason for her termination.

      Many of the tenants at the facility spoke only Mandarin or Cantonese.

      The defendants consistently have maintained that the reason for terminating Tam was her failure to obtain original tenant signatures on the HUD recertification forms. As previously noted, at her deposition, and again in the consolidated statement of undisputed material facts, Tam admitted that failure to obtain original signatures was the only reason the defendants gave her for her termination. She also agreed that failure to obtain the signatures was a "serious issue" for which she could be terminated.

      Tam now contends that the defendants gave false reasons for her termination. However, she provides no evidentiary support for that contention and she fails to acknowledge her own admissions contained in the summary judgment record. Nor did she present evidence indicating that Lewis or Desjardins did not have a sincere belief that certain tenants did not personally sign these forms.

      We agree with the motion judge that Tam's claim for intentional interference with advantageous business relations is a " 'recast version' of her discrimination claims under a common law cause of action." In addition, her argument is unsupported by reasoned analysis or relevant authority. As such, it does not rise to the level of adequate appellate argument as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).


text:
    COMMONWEALTH v. Michael MONTEIRO.
    17-P-643
    Appeals Court of Massachusetts.
    Entered: August 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Michael Monteiro, appeals from his convictions on indictments for trafficking in heroin, G. L. c. 94C, § 32E(c ), and trafficking in heroin near a park, G. L. c. 94C, § 32J. He argues that the motion judge erred in denying his motion to suppress evidence seized by police, and that the trial judge erred in denying his motions for a required finding of not guilty. We affirm.

1. Motion to suppress. The defendant maintains that the police detectives conducted an unlawful stop without any legitimate basis to believe that he was engaged in criminal activity. The Commonwealth argues in response that the stop was supported by reasonable suspicion, based on the detectives' observations, training, and experience, that the defendant was carrying a concealed firearm.

Four Brockton police detectives testified at the suppression hearing, from which the motion judge found the following facts. The detectives initially observed the defendant from their unmarked cruiser while conducting surveillance on a building late at night. They saw the defendant -- known to one of them from a prior narcotics arrest -- walking unnaturally down the street with his left arm tucked firmly to his side at the top of his pants. His left elbow was pinned to his side and his left hand positioned at his groin area. The detectives believed the defendant was using his left arm to conceal a firearm. One of the detectives, from the rear window, then saw the defendant hold his left arm against his body, pause, and then use both hands to readjust an apparent object stashed in his waistband. He then resumed walking, but switching arms, now holding his right arm against his body with his left arm swinging freely. Believing that the defendant was concealing a firearm, the detectives decided to question him.

After following the defendant in their vehicle for a short distance, Detective Hilliard got out of the cruiser, which did not block the defendant's path toward the park (which was closed), approached the defendant as he was about to walk into the park, and said, "Hey fella, let me talk to you." Hilliard wore a tee-shirt with a Brockton police badge insignia on the front, and a holstered service weapon. Looking "panicked," the defendant immediately reached with both arms for his waistband and walked away. The defendant's unexpected reaching hand movements caught Hilliard off-guard, leading him to think the defendant was reaching for a concealed firearm. Stepping backwards, and bringing his hand to his sidearm, Hilliard announced, "Brockton police." The defendant fled toward the park. Hilliard followed and saw the defendant, then bent over at the waist and manipulating his waistband, throw something with his left arm. Hilliard heard a metallic "clang" and thought the thrown object struck a nearby chain link fence with a metal sign affixed to it. Hilliard and another detective caught up to the defendant and arrested him on a basketball court in the park. Shortly thereafter, the detectives returned to the area and discovered, in the back yard of a residence bordering the park, three duct-taped packages of heroin approximately ten to fifteen feet from the roadway where the defendant ran.

A person is constitutionally seized by a police officer "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave" without submitting to police questioning. Commonwealth v. Stoute, 422 Mass. 782, 786 (1996), quoting from Commonwealth v. Borges, 395 Mass. 788, 791 (1985). Police conduct that may cause a reasonable person to believe that he or she is not free to leave usually consists of the application of some type of physical force or a show of authority that exceeds a request for identification or information. See Commonwealth v. Leonard, 422 Mass. 504, 508 (1996) ; Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001) ; Commonwealth v. Martin, 467 Mass. 291, 302-303 (2014). "[T]he police do not effect a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe he was not free to turn his back on his interrogator and walk away." Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). See Commonwealth v. Thomas, 429 Mass. 403, 406 (1999).

In this case, the detectives did not seize the defendant by following him and asking to speak with him. The police are entitled to follow an individual for the purpose of surveillance and may ask the individual to speak with them. See Commonwealth v. Williams, 422 Mass. 111, 116-117 (1996) ; Commonwealth v. Watson, 430 Mass. 725, 731 (2000). In addition, the act of exiting a police cruiser for the purpose of questioning an individual, without some additional show of authority, does not constitute a seizure. See Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228 (2006) (approaching group of youths suspected of drug dealing, officer said, "[H]ang on a second, can I talk to you?"). See also Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 170 (2001) (officer stopping police cruiser, stepping out, and approaching suspects to ask about firearm did not constitute seizure); Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782 (2005) ("[T]he officers did not impinge on the defendant's rights by simply alighting from the police cruiser and approaching him"). It was only when Hilliard, in response to the defendant's unexpected reaching motion, took a step back, placed his hand to his firearm, and announced, "Brockton police," that the defendant was seized.

However, while the detectives could reasonably believe that the defendant possessed a firearm, such a belief alone is not sufficient to justify stopping an individual for a threshold inquiry. "Reasonable suspicion justifying an investigatory stop cannot be founded on police belief (whatever its source) that a person is carrying a concealed firearm in the absence ... of any evidence of suspicious conduct by that person indicative of criminal activity or of an imminent threat to police or public safety." Commonwealth v. DaSilva, 56 Mass. App. Ct. 220, 227-228 (2002). See Commonwealth v. Alvarado, 423 Mass. 266, 269 (1996) ("Carrying a gun is not a crime. Carrying a firearm without a license [or other authorization] is").

Here, the defendant's conduct provided the detectives with reasonable suspicion to believe that he was either engaged in criminal activity, posed a threat, or both. The facts supporting this conclusion include the defendant's suspicious hand placement (at his waist area, indicating that he was securing a loose, concealed object) and unnatural walking motion, his presence in a high crime area at 11:45 P.M. , his attempts to avoid the police by walking down a dead-end street and into a closed park, and his reaction to Hilliard's request to speak with him. See Commonwealth v. Grandison, 433 Mass. 135, 139-140 (2001) (avoiding police may be considered together with other factors to support reasonable suspicion); Commonwealth v. DePeiza, 449 Mass. 367, 374 (2007) ("[N]ot only was the defendant carrying a concealed firearm in his pocket, but he was also concealing his pocket from the police. It is the concealment of his pocket that supplies the reasonable suspicion that the firearm was illegal"); Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 555-556 (2002) (evasive behavior during police encounter may be factor in reasonable suspicion determination). Therefore, we conclude that the police had reasonable suspicion to stop the defendant and conduct a threshold inquiry into his potentially illegal possession of what they believed to be a firearm.

2. Required finding of not guilty. The defendant also contends that the trial judge erred in denying his motions for a required finding of not guilty, arguing that it was not possible for the jury to convict him of the charged offenses based on the evidence presented. Specifically, the defendant's argument at trial was that it was impossible for the packages of heroin to hit the sign and land in the location where the police found them and, therefore, the defendant could not have been the one who put the heroin there. To support this contention, the defendant enlisted an expert who testified that the defendant would have had to throw the packages of heroin in excess of 450 miles per hour in order to hit the sign and land where they did.

However, this argument is not persuasive because, at its core, it is a credibility argument. Thus, even if the jury credited the expert's testimony, they did not have to conclude that the packages hit the sign or the fence when the defendant threw them; they could have found that the defendant threw the packages behind him as he ran, or that they did not hit the sign squarely. "Because the credibility of the defendant's witness[ ] and the weight of [his] testimony are issues for the jury to decide, the Commonwealth's case could not have deteriorated where the defendant's evidence at trial turned solely on the credibility of his witness[ ]." Commonwealth v. Platt, 440 Mass. 396, 404 (2003).

In addition, the Commonwealth presented evidence from which the jury could infer that the defendant threw the packages. When the detectives located the packages, the ground around the packages was wet, but the packages themselves were dry, leading to the inference that they had not been there for long. Furthermore, there was only testimony that the detectives heard a noise while chasing the defendant -- not a "metallic clang" as testified at the suppression hearing -- and no witness testified to seeing the packages hit anything. Thus, there was conflicting evidence on the trajectory of the packages and whether they hit anything after the defendant threw them. When confronted with conflicting evidence, it is for the jury to determine where the truth lies. See ibid. See also Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999). Therefore, the trial judge did not abuse his discretion in denying the defendant's motions.

Judgments affirmed.

      The motion judge concluded, "[T]here was no mistaking the meaning of [Hilliard's] command."

      See Stoute, supra at 789 (request to "hold up a minute" does not constitute seizure); Commonwealth v. Rock, 429 Mass. 609, 611-612 (1999) (following suspects in unmarked cruiser without activating lights and asking, "Guys, can I talk to you for a second?" does not constitute seizure); Martin, supra at 303 (calling out to person to "[h]old on a second, I want to talk to you," does not constitute seizure).

      At this point, Hilliard reasonably believed, based upon the totality of the circumstances, that the defendant possessed a concealed firearm and that he posed a danger. See Commonwealth v. Sanchez, 403 Mass. 640, 643 (1988).

      The motion judge concluded, and we agree, that it was reasonable for the detectives to believe that the defendant concealed a bulky object within his clothing.

      The defense expert, on cross-examination, testified that a person running in that location could throw an item behind him as he ran by the tree and have it land where the heroin was found.


text:
    Karen M. MANNING v. Mark J. MANNING.
    17-P-1087
    Appeals Court of Massachusetts.
    Entered: August 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a trial in the Probate and Family Court, the judge found the appellant, Mark Manning (Mark), not guilty of contempt for failing to pay one-half of certain credit card debts; nonetheless, the judge ordered him to pay a portion of the credit card debt to Karen Manning, his former wife (Karen). Mark appeals, arguing that Karen failed to comply with her obligation under the separation agreement, which was a condition precedent to his obligation to pay, thus relieving him of the obligation entirely. We agree, and therefore reverse that portion of the judgment that orders him to pay. For the same reason, the portion of the judgment finding that Mark was not in contempt is affirmed.

Background. The parties were married in 1989; they separated in 2012. On February 13, 2015, they entered into a separation agreement, incorporated but not merged in the judgment of divorce nisi (except for provisions relating to the children); judgment entered that same date. Relevant here, in subsection C of exhibit one to the agreement (subsection 1.C), the parties "acknowledged that the [w]ife represents that she is holding approximately $45,000.00 in credit card debt." As a condition of sharing equally the payment of this debt, the agreement required Karen, within sixty days of execution, to "produce through counsel documentation proving that this credit card debt was accumulated during the marriage for marital purposes." The provision specifically provided that, if she did not provide within this time period "adequate documentation then she shall remain solely liable for this credit card debt."

On March 16, 2015 (before the sixty-day period expired), Karen produced to Mark a single statement page from each of the credit cards indicating the balance due as of October or November, 2012; she claimed that each balance represented debt accumulated during the marriage. According to Mark, these incomplete statements did not include any itemizing of purchases. By electronic mail message dated March 19, 2015, Mark responded that Karen's documentation was "insufficient to prove that this credit card debt was 'accumulated during the marriage for marital purposes,' " citing to subsection 1.C. (emphasis in original); he then refused to pay any portion of the credit card debt.

Karen did not produce any further documentation within the required sixty days; instead, on September 29, 2015, she filed a complaint for contempt, alleging that Mark had violated the separation agreement by refusing to pay his share of the marital credit card debt. The judge conducted a pretrial conference in December, 2015, and issued an order that Karen, before trial, produce to Mark three years of monthly credit card statements. After a brief trial, the judge found, among other things, that Mark was not in contempt for not paying the credit card debt, because of "the incompleteness of the credit card records produced by [Karen] at the last hearing." Nonetheless, the judge ordered Mark to pay half of the approximately $18,000 of debt charged on the American Express and Care credit cards, after determining that the produced documentation relating specifically to those two credit cards sufficiently established that the debt was accumulated during the marriage for marital purposes. Mark appealed.

Discussion. The disputed provision of the agreement, subsection 1.C., is a "clear and unequivocal command" to the parties regarding their respective obligations concerning the disputed credit card debt. Birchall, petitioner, 454 Mass. 837, 838-839 (2009). As noted, the provision requires Karen first to fulfil her obligation to produce the required documentation within sixty days, before Mark must perform his obligation to pay an equal share of the debt. Karen failed to fulfil her obligation within the time required. As a result, there was no further "command" requiring Mark to act. "[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, supra. For that reason, we agree that Mark was not in contempt.

However, ordering Mark subsequently to pay half of the American Express and Care credit card debt was error, as the language in subsection 1.C. of the agreement created a condition precedent upon Karen to provide to Mark within sixty days of execution of the agreement the required documentation. Karen failed to satisfy her obligation, making Mark's conditioned obligation unenforceable.

"Parties to a contract, of course, are free to create whatever conditions precedent they choose." Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 45 (1991). "A condition precedent defines an event which must occur before a contract becomes effective or before an obligation to perform arises under the contract. If the condition is not fulfilled, the contract, or the obligations attached to the condition, may not be enforced." Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420-421 (2005) (Twin Fires ), quoting from Massachusetts Mun. Wholesale Elec. Co. v. Danvers, supra. "Where the dispute concerns a condition precedent, 'a court looks to the parties' intent to determine whether they have created a condition precedent. To ascertain intent, a court considers the words used by the parties, the agreement taken as a whole, and surrounding facts and circumstances.' " Id. at 420 (citations omitted).

Here, the parties chose to require Karen "within [sixty] days of this agreement to produce ... adequate documentation" showing that the $45,000 in credit card debt (held exclusively in her name) was the result of charges made during the course, and for the benefit, of the marriage; in so doing, they created a condition precedent to Mark's obligation to pay half of that debt. The parties also included language that "[i]n the event that the [w]ife is not able to produce adequate documentation then she shall remain solely liable for this credit card debt."

"Generally, quite emphatic words are necessary to create a condition precedent to the maturing of rights under a contract, or the forfeiture of rights." Thomas v. Massachusetts Bay Transp. Authy., 39 Mass. App. Ct. 537, 543 (1995). See Restatement (Second) of Contracts § 226, comment a (1979). In this case the evidence of the unfulfilled condition precedent was disputed, but the express conditioning language is contained entirely in subsection 1.C. Taking into account the specific language of that provision, as well as the agreement as a whole, it is clear that the parties intended to provide that, if Karen failed to provide by April 13, 2015, the required documentation, payment of the entire $45,000 in credit card debt would remain her exclusive responsibility. Because she failed to do so, the obligation attached to that condition was not enforceable. Twin Fires, supra at 420-421. As a result, the judge erred in ordering Mark to contribute to the payment of the American Express and Care credit card debt.

Conclusion. So much of the contempt judgment dated June 23, 2016, as requires the husband to pay one-half of the wife's credit card debt is reversed. In all other respects, the judgment is affirmed.

So ordered

Reversed in part; affirmed in part.

      We use first names because the parties share a last name.

      To the extent Mark's notice of appeal was premature due to the filing of postjudgment motions, we exercise our discretion to excuse the timing and reach the merits. However, the orders denying those motions are not properly before us because Mark failed to timely appeal from the orders. In addition, we do not consider the following issues identified in Mark's notice of appeal: (i) that Karen be allowed to "have additional time to retrieve her personal belongings" from the marital home; and (ii) that Mark "pay one-half of uninsured medical costs in the amount of $376.44." Mark has argued neither issue in his brief and thus has waived review. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Boston Hous. Authy. v. Guirola, 410 Mass. 820, 827 n.9 (1991).

      The statements Karen did provide on March 16, 2015 (within the required time period), as Mark argues, appear to reflect only the balance due on each credit card and not any itemization of charges proving that the credit card debt "was accumulated during the marriage for marital purposes."


text:
    Janice Anita WOLFF v. Ruth WOLFF, personal representative.
    16-P-1449
    Appeals Court of Massachusetts.
    Entered: August 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Richard C. Wolff. Richard Wolff died on January 16, 2016, shortly before judgment entered in the Probate and Family Court, and Ruth Wolff, in her capacity as personal representative of his estate, was substituted as the defendant for purposes of this appeal.

   This appeal arising out of the Probate and Family Court concerns alimony and life insurance provisions contained in a surviving separation agreement executed by former spouses, Richard Wolff (husband) and Janice Wolff (wife). The wife principally challenges (1) the amount of alimony overpayments she is required to repay to the husband, and (2) the termination of the husband's obligation to maintain life insurance. We affirm in part and vacate in part.

Background. The parties were divorced in 1986 pursuant to a judgment of divorce nisi (divorce judgment) incorporating their surviving separation agreement. The separation agreement required the husband (1) to pay monthly alimony to the wife of $1,350, which amount would eventually be reduced by the wife's Social Security benefits when she turned sixty-eight; and (2) to maintain a $100,000 insurance policy on his life, naming the wife as beneficiary thereof. The separation agreement provided that the husband's alimony and life insurance obligations would both terminate in the same manner: upon the wife's death, remarriage, or cohabitation "with an unrelated adult male in the style of a marriage" for at least two years. If the husband failed to maintain the life insurance coverage required by the separation agreement, the wife would "have a first lien and claim against the assets of the [h]usband and against his estate." However, the wife would "have no right with respect to the assets of the estate of the [h]usband" if the husband's obligation to maintain life insurance "terminate[d] in accordance with the [a]greement" prior to his death. With the exception of the alimony provisions, which were modifiable "by order of the [c]ourt" if the husband became "totally disabled," the separation agreement could only be modified pursuant to "an instrument signed and acknowledged" by the parties.

On October 3, 2014, the wife filed a complaint for contempt alleging the husband had failed to maintain the life insurance coverage required by the separation agreement. On November 6, 2014, the husband filed a complaint for modification seeking to terminate his alimony and life insurance obligations on the basis that he was "totally disabled," his previous life insurance policies had expired, and he was unable to obtain new life insurance due to his "heart condition." On February 5, 2015, the husband filed a complaint in equity seeking reimbursement from the wife for his alleged overpayment of alimony between March of 2001 and September of 2014. The husband claimed the wife failed to provide him with accurate information regarding her Social Security benefits when she turned sixty-eight, resulting in total overpayments of $48,713.80. In her answer to the husband's complaint in equity, the wife admitted the husband had overpaid alimony but disputed the amount of overpayments, asserting the husband only overpaid by $42,004 between March of 2001 and September of 2014. The wife further asserted that, between 1986 and 2000, the husband had underpaid alimony by approximately $7,240. The wife also filed a counterclaim in equity, asserting the husband's life insurance obligation was not modifiable and requesting that the husband be required to place $100,000 in escrow, payable to the wife in the event he predeceased her. The contempt, modification, and equity matters were subsequently consolidated by the Probate and Family Court.

On March 4, 2015, the husband filed a motion for summary judgment on his complaint in equity, which the wife opposed. Following a hearing on March 20, 2015, a judge of the Probate and Family Court allowed the husband's motion for summary judgment and entered a partial judgment finding the husband had overpaid alimony in the amount of $48,713.80 between March of 2001 and September of 2014. The remaining matters, including the wife's complaint for contempt, the husband's complaint for modification, and the wife's counterclaim in equity, were scheduled for trial.

A one-day trial was held on September 17, 2015. On January 16, 2016, approximately four months after the trial concluded, the husband died. On January 28, 2016, the judge issued a final judgment (1) terminating the husband's alimony and life insurance obligations retroactive to November 13, 2014, the date of service of the husband's complaint for modification, and (2) requiring the wife to reimburse the husband in the amount of $48,713.80 by June 1, 2016. The judge found the husband to be "totally disabled," thus warranting modification of his alimony obligation in accordance with the separation agreement. The judge further found the husband had "proven ... something more than a substantial change in circumstances" sufficient to modify his life insurance obligation. The judge specifically found the husband's life insurance policies with "Hutton and CNA" expired when he attained the age of seventy and one-half years, and "due to his health conditions[,] he is unable to pass a physical exam or qualify for new insurance." The judge expressly rejected the wife's claim that the husband's life insurance obligation was part of the property settlement, instead finding the life insurance was intended "to secure the payment of [the husband's] alimony obligation." The judge concluded the husband had "no continuing obligation to provide insurance" once his alimony obligation terminated, and the wife "suffered no harm from his failure to maintain insurance since his obligation was terminated while he was still alive." The present appeal by the wife followed.

Discussion. The wife principally challenges (1) the amount of alimony overpayments she is required to repay to the husband, and (2) the termination of the husband's life insurance obligation. We address the wife's arguments in turn.

1. Alimony overpayments. The wife argues that the judge erred in allowing the husband's motion for summary judgment as there existed a genuine dispute regarding the amount of alimony overpayments made by the husband. We agree.

"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." B.W. v. J.W., 67 Mass. App. Ct. 295, 297 (2006), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, the judge entered summary judgment in the husband's favor, finding he had overpaid alimony in the amount of $48,713.80 between March of 2001 and September of 2014. The judge noted that although the wife sought "offsets for amounts that she claims were underpaid prior to 2001, and claim[ed] that the [h]usband did not make all of his support payments between 2001 and 2014, she has not filed any [c]omplaints addressing those issues." We cannot fault the judge for declining to consider evidence of any alleged underpayments made prior to March of 2001, as the wife did not file a complaint seeking to recoup those amounts, and the husband's complaint in equity only sought reimbursement for overpayments made after March of 2001. That said, the precise alimony overpayment figure found by the judge of $48,713.80 was clearly erroneous as it included payments made by the husband prior to March of 2001. See Mass.R.Dom.Rel.P. 52(a) ("Findings of fact shall not be set aside unless clearly erroneous"); Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636-637 (2010) (finding is "clearly erroneous" where it leaves reviewing court with "a definite and firm conviction that a mistake has been committed" [quotation omitted] ). The husband's own payment chart, submitted in support of his motion for summary judgment, lists total alimony overpayments of approximately $47,219 made between March of 2001 and September of 2014. Moreover, the wife raised a genuine dispute of material fact regarding the amount of alimony overpayments alleged by the husband, asserting that he only overpaid by a total of $42,004. "[V]iewing the evidence in the light most favorable to the [wife]," the husband was entitled to summary judgment only on the amount of overpayments conceded by the wife. B.W. v. J.W., 67 Mass. App. Ct. at 297. Accordingly, we vacate so much of the judgment as requires the wife to reimburse the husband for alimony overpayments above the amount of $42,004, and remand the matter for a limited evidentiary hearing on the remaining disputed amount of $5,215.

2. Life insurance. The wife next challenges the termination of the husband's life insurance obligation, claiming the judge (a) erred in interpreting the separation agreement, and (b) impermissibly modified the agreement's surviving life insurance provisions.

a. Interpretation of the separation agreement. "The interpretation of the separation agreement is a question of law, and is therefore 'afforded plenary review.' " Colorio v. Marx, 72 Mass. App. Ct. 382, 386 (2008), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). When interpreting a separation agreement, "[t]he objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose." Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 805 (2016), quoting from Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006).

Here, the wife argues the parties intended for the husband's life insurance obligation to be part of the property settlement, rather than a means of securing the husband's alimony obligation. However, a "fair reading" of the separation agreement does not support the wife's position, nor does it "raise a question as to the agreement's meaning such that reasonable minds might differ."Colorio v. Marx, supra at 388-389. Construing the separation agreement as a whole, it is apparent that the parties intended to secure the husband's alimony obligation with a $100,000 life insurance policy benefiting the wife. See Foster v. Hurley, 444 Mass. 157, 162 (2005) ("[W]e must construe the [separation] agreement in a manner that appears to be in accord with justice and common sense and the probable intention of the parties" [quotation omitted] ). "Any person with a support obligation to another party, whether it be for child support or alimony, is typically required to maintain life insurance on his or her life to secure the obligation in the event of his or her death." Kindregan, McBrien, & Kindregan, Family Law and Practice § 41:1 (4th ed. 2013). See G. L. c. 208, § 36. See also Braun v. Braun, 68 Mass. App. Ct. 846, 857 (2007) ("[A]n order for life insurance, and the payment of premiums thereon, may be seen as a component of alimony and other payment requirements" [quotation omitted] ). The husband's alimony and life insurance obligations are clearly interrelated, as the separation agreement provides identical grounds for their termination -- the wife's death, remarriage, or cohabitation "with an unrelated adult male in the style of a marriage for a period in excess of two years." While the agreement does not expressly provide for the termination of life insurance if alimony terminates due to the husband's disability, the alternative interpretation advanced by the wife -- that the husband must maintain life insurance even when he no longer has an alimony obligation to secure -- is unreasonable. See Merrimack College v. KPMG LLP, supra at 806 ("The fact that [the wife's] preferred reading is linguistically possible does not make it a reasonable interpretation of the parties' agreement").

We are likewise unpersuaded by the wife's claim that the husband's life insurance obligation was part of the property settlement. "Unlike alimony, a property settlement is not subject to modification." Drapek v. Drapek, 399 Mass. 240, 244 (1987). Because the separation agreement expressly provides for the termination of life insurance under certain circumstances, the husband's obligation to maintain life insurance is, in essence, subject to modification. Moreover, the grounds for terminating life insurance under the separation agreement (the wife's death, remarriage, or cohabitation) are classic contingencies for the termination of alimony. See generally Bell v. Bell, 393 Mass. 20, 21-23 (1984), cert. denied, 470 Mass. 1027 (1985). See also Keller v. O'Brien, 420 Mass. 820, 823 n.4 (1995) ("This court has affirmed the termination of alimony payments on the recipient spouse's remarriage where the parties included automatic termination provisions in an agreement found to survive the divorce judgment"). Compare DuMont v. Godbey, 382 Mass. 234, 234 (1981) (death of husband did not bar wife's action to enforce property division); Earle v. Earle, 13 Mass. App. Ct. 1062, 1063 (1982) (wife's remarriage did not preclude her from obtaining property division in connection with prior marriage). Accordingly, we discern no error in the judge's conclusion that the husband's life insurance obligation was intended to secure his alimony obligation.

b. Modification. The wife further argues that the termination of the husband's life insurance obligation constituted an improper modification of a surviving separation agreement. We disagree.

"In reviewing a modification judgment, we examine whether the factual and legal bases for the decision are in error, or whether the judge otherwise abused his discretion." Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017). "Where a separation agreement is incorporated in a divorce judgment but survives it and retains its force as an independent contract, the agreement is not an absolute bar to subsequent modification of the judgment." However, "something more than a material change of circumstances must be shown before a judge of the Probate Court is justified in refusing specific enforcement of that agreement." DeCristofaro v. DeCristofaro, 24 Mass. App. Ct. 231, 235 (1987) (quotation omitted).

Here, the judge found the husband established "something more" than a material change in circumstances as his previous life insurance policies expired when he attained the age of seventy and one-half years, and he was "unable to pass a physical exam or qualify for new insurance" coverage "due to his health conditions." The wife challenges these findings, claiming the husband was still maintaining other life insurance policies up until 2014, well after he attained age seventy and one-half years. However, the wife points to no evidence in the record, nor are we aware of any, establishing that the husband was able to obtain life insurance at the time of the trial in September of 2015. Indeed, the judge's findings and the record evidence suggest otherwise, given that the husband was eighty-two years old, suffered from "multiple physical issues that impact[ed] his daily ability to function," and required "a feeding tube to eat, drink and take his medication." Moreover, the judge's finding that the husband was unable to qualify for life insurance was based on her assessment of his credibility -- a finding that "is close to immune from reversal on appeal except on the most compelling of showings." Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). There is nothing in the record that would compel us to disturb that credibility determination. In light of the husband's inability to obtain new life insurance at the time of trial, the judge was "justified in refusing specific enforcement" of the separation agreement's life insurance provisions. DeCristofaro v. DeCristofaro, supra at 235. See Capen v. Capen, 234 Mass. 355, 365 (1920) ("When it becomes impossible to afford specific performance of the entire contract, there may be relief as to a part of it under appropriate circumstances"). Accordingly, we affirm the termination of the husband's life insurance obligation retroactive to November 13, 2014.

Conclusion. So much of the judgment dated January 28, 2016, as requires the wife to reimburse the husband for alimony payments over the amount of $42,004 is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects, the judgment is affirmed. The order denying the wife's motion to stay is affirmed. Each party's request for appellate attorney's fees and costs is denied.

So ordered.

Vacated in part; affirmed in part.

      "Said alimony payments shall continue until the [w]ife has attained the age of sixty-eight (68) years and thereafter, the [h]usband shall pay to the [w]ife as alimony the difference between the [S]ocial [S]ecurity benefits to which the [w]ife is entitled each month at the aforesaid age and the sum of $1,350."

      A copy of the summary judgment hearing transcript was not included in the record appendix.

      The husband was permitted to testify by video.

      The judge found the wife had sufficient assets to repay the entire amount of alimony overpayments due to the husband.

      The wife also appeals from the Probate and Family Court judge's order, dated August 22, 2016, denying her motion to stay. However, we decline to consider that challenge as the wife has failed to include a complete copy of her motion to stay in the record appendix. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) ("It is [the appellant's] obligation to include in the record appendix any documents on which [s]he relies, [and] [w]hen a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document"). Moreover, the wife's initial brief contains no citations to legal authorities in support of her argument regarding the motion to stay. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The argument ... shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"); K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014) (court may decline to consider assertions which do not "rise to the level of reasoned appellate argument contemplated by Mass.R.A.P. 16 [a][4]"). While the wife has provided two legal citations in her reply brief, they are cited in support of a new argument regarding the motion to stay which the wife failed to raise in her initial brief. See O'Meara v. Doherty, 53 Mass. App. Ct. 599, 606 n.4 (2002) ("[A] party may not of right raise new contentions that could have been raised in her main brief").

      The judge apparently relied on the husband's payment chart listing a total of $48,713.80 in overpayments made between January of 2001 and December of 2014. Excluding the payments made prior to March of 2001 and after September of 2014, the husband's chart lists total overpayments of $47,219.10.

      The wife claimed the husband failed to make three monthly payments of $860 between 2005 and 2007. The wife also disputed the husband's claim that he paid $1,450 per month from March of 2001 through July of 2001, asserting that she only received $860 per month from the husband during that period.

      The fact that the alimony and life insurance provisions are contained in separate sections of the agreement does not change their interrelated nature, as "[s]eparation [a]greements in divorce typically contain a separate exhibit devoted entirely to life insurance." Kindregan, McBrien, & Kindregan, Family Law and Practice § 41:1.

      See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) ("[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives").

      With respect to the wife's other arguments not addressed herein, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. David W. ARNOTT, Jr.
    17-P-921
    Appeals Court of Massachusetts.
    Entered: August 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction of operating under the influence of intoxicating liquor (OUI), second offense, and from the order denying his motion to set aside the verdict and for a new trial. He argues that his constitutional right to a speedy trial was violated and that there was insufficient evidence to sustain his OUI conviction. On those same grounds, he alleges that his motion should have been allowed. We affirm.

1. Speedy trial. On January 23, 2015, the defendant was arraigned on a complaint charging him, in relevant part, with OUI, first offense. The Commonwealth moved to continue the trial date of November 18, 2015. Over the defendant's objection, the trial was rescheduled to January 25, 2016. On that date, the Commonwealth filed a nolle prosequi "in the interests of justice," further explaining that "[t]he Commonwealth needs to refile as an OUI -- 3rd offense." The judge in the session noted on the nolle prosequi document: "Accepted, however the Court finds the nolle prosequi is filed in bad faith for reasons recited in the record." Approximately two months later, a new complaint issued charging the defendant with OUI, third offense. The charge later was amended to OUI, second offense, and the defendant proceeded to trial on October 5, 2016. After the jury returned a verdict of guilty on the underlying OUI charge, the defendant was convicted of the subsequent offense portion of the charge after a bench trial. The defendant later moved to set aside the verdict and for a new trial, raising the speedy trial claim for the first time. The judge denied the motion.

On appeal, the defendant argues that the Commonwealth's "bad faith" conduct in delaying his case, abandoning it and then recharging him for the same incident, deprived him of his constitutional right to a speedy trial. To determine whether a defendant's constitutional right to a speedy trial has been violated, courts ordinarily consider four factors: the length of the delay, the reasons for delay, the defendant's assertions of his speedy trial right, and the prejudice to the defendant. See Commonwealth v. Butler, 464 Mass. 706, 714-715 (2013), citing Barker v. Wingo, 407 U.S. 514, 530-533 (1972).

Here, the defendant was brought to trial within a few months of the discontinuation of the first case; he was ultimately tried within the constraints of Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). The Commonwealth's stated reason for discontinuing the first case and refiling was to bring the appropriate charge against the defendant. The defendant did not assert his speedy trial rights until after he was convicted. On appeal, he fails to show prejudice.

Foregoing analysis of the traditional speedy trial factors, the defendant instead relies entirely on Commonwealth v. Thomas, 353 Mass. 429 (1967), to support his argument. There, the defendant appeared ready for trial in the District Court, and the Commonwealth requested a continuance. Id. at 430. After the District Court judge denied the request, the prosecutor immediately nolle prossed the case without explanation and subsequently obtain an indictment in the Superior Court for a charge based on the same incident. Ibid. The Supreme Judicial Court upheld the Superior Court judge's dismissal of the indictment, noting that the prosecutor's actions amounted to "an act of effrontery" to the District Court judge. Id. at 432.

Here, however, the record does not disclose that the Commonwealth requested or had been denied a continuance on the day of trial. Moreover, in this case the prosecutor did give a reason for filing the nolle prosequi, namely so that the Commonwealth could file the appropriate charge against the defendant. Upon refiling the appropriate charge, the case remained in the District Court, where it was ultimately tried. Thus, there was no attempt by the prosecutor to circumvent a court order or to divest the court of jurisdiction. Because the refiled case remained in the District Court, the prosecutor remained answerable to the District Court. Rather than moving to dismiss the refiled case, however, the defendant proceeded to trial and only raised the issue postconviction. Under the circumstances, Thomas does not lend support to the defendant's claim. See Commonwealth v. Hinterleitner, 391 Mass. 679, 683 (1984) (where prosecutor nolle prossed District Court complaint on day of probable cause hearing in order to proceed by indictment, defendant's speedy trial rights were not violated; there was no misuse of prosecutorial power). The defendant has failed to establish a constitutional speedy trial violation.

2. Sufficiency of evidence. The defendant argues that there was insufficient evidence to support the underlying conviction of OUI. Viewing the evidence and the inferences that can be drawn from it in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), there was sufficient evidence. To prove OUI, the Commonwealth was required to "prove that the defendant (1) physically operated a vehicle; (2) on a public way or place to which the public has a right of access; and (3) ... was impaired by the influence of intoxicating liquor." Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016) (quotation omitted).

The defendant only challenges the third element. "To establish that the defendant was under the influence, the Commonwealth must prove a diminished capacity to operate safely." Id. at 510. The Commonwealth presented evidence that the defendant hit another motor vehicle with his vehicle and, rather than stopping, continued on the road. The other driver who had been hit followed the defendant and observed the trailer attached to the defendant's vehicle swerving on the road, unable to stay inside the marked lanes. Once the police caught up to the defendant, he ignored police lights and sirens and did not stop his vehicle until a police cruiser cut off his path.

When the defendant spoke with police, officers observed that the defendant had an odor of alcohol, bloodshot glassy eyes, and slurred speech. The defendant also acted belligerently, refusing to comply with any commands from the officers to get out of the vehicle. When the defendant finally emerged from the vehicle, he was unsteady on his feet. A jury could reasonably infer from that evidence that the defendant's ability to operate safely was impaired by alcohol. See ibid.

3. Postconviction motion. After trial, the defendant filed a motion to set aside the verdict and for a new trial, raising the same arguments he raises in his direct appeal. The motion was heard by the trial judge, who denied it. We review a judge's decision regarding whether or not to set aside a verdict for abuse of discretion. See Commonwealth v. Millyan, 399 Mass. 171, 188 (1987). We review a motion for new trial under the same standard. Commonwealth v. Acevedo, 446 Mass. 435, 441-442 (2006). "Reversal for abuse of discretion is particularly rare where[, as here,] the judge acting on the motion was also the trial judge." Ibid., quoting from Commonwealth v. Lucien, 440 Mass. 658, 670 (2004). Because there was sufficient evidence to support the defendant's conviction and no violation of the defendant's speedy trial rights, the judge properly denied the defendant's motion.

Judgments affirmed.

Order denying motion to set aside verdict and for new trial affirmed.

      The defendant was also convicted of resisting arrest; he does not challenge that conviction on appeal. He was acquitted of assault and battery by means of a dangerous weapon.

      The Commonwealth asserts that it filed the nolle prosequi on the day of trial because it had learned for the first time that day that the defendant had two prior convictions. Although the defendant does not appear to dispute it, we do not consider this unsupported assertion.

      The defendant failed to provide this court with the corresponding record in which the judge's reasoning was recited. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (defendant's burden to present record adequate for review).

      An earlier scheduled trial on July 26, 2016, had resulted in a mistrial.

      The defendant asserts that "the Commonwealth was granted several postponements of the trial over [the defendant's] continuous objections," but the docket reflects only a single request to postpone the trial date.

      The motion judge determined that "the Commonwealth complied with Rule 36(b)," and the defendant does not dispute this on appeal.

      The defendant's assertions to this effect on appeal are entirely unsupported by the record, and so we do not consider them.