author: GAZIANO, J.

text:
    Stanley V. SHARRIS, Jr. v. COMMONWEALTH.
    SJC-12165
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued December 7, 2017 Decided September 17, 2018
    Paul R. Rudof, Committee for Public Counsel Services, for the defendant.
    Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the Commonwealth.
    Crystal L. Lyons, Assistant District Attorney, for the District Attorney for the Northern District, was present but did not argue.
    Kevin S. Prussia, Matthew C. Tymann, & Annaleigh E. Curtis, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
    Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
   GAZIANO, J.

General Laws c. 123, § 16 (f ), provides for the dismissal of criminal charges when an individual is found incompetent to stand trial. The statute requires mandatory dismissal of charges at the time when the individual would have been eligible for parole if he or she had been convicted and had been sentenced to the maximum statutory sentence. See id. The statute also provides courts with the discretion to dismiss criminal charges "prior to the expiration of such period." Id.

The defendant, who is now seventy-four years old, was charged with murder in the first degree and interfering with a fire fighter in 1994, when he was fifty-one years old. At that time, he was deemed incompetent to stand trial. Since then, he continually has been deemed incompetent, and at this point, the Commonwealth has conceded that he is permanently incompetent. The nature of the defendant's mental impairment, a form of alcohol-induced dementia, is such that it is permanent, degenerative, and not amenable to any form of treatment. Additionally, his physical condition is deteriorating, and he is now physically frail, nourished through a feeding tube, and bedridden. It is likely that his physical condition also will continue to worsen. Due to the level of medical care he requires, in August, 2015, the defendant was released on bail, with conditions, so he could be placed in a hospital setting. He is civilly committed to the Department of Mental Health (DMH), and is being cared for in an unlocked wing of a public hospital operated by the Department of Public Health (DPH).

Although G. L. c. 123, § 16 (f ), does not explicitly exclude murder in the first degree from its provisions for dismissal, it does so effectively, because the statute is based on the date of parole eligibility, and there is no parole eligibility date for the offense of murder in the first degree. The defendant contends that the charges against him nonetheless should be dismissed, either under the provision allowing discretionary release or on constitutional grounds. Beginning in 2001, through May, 2016, the defendant has filed motions to dismiss, and motions for reconsideration, arguing that G. L. c. 123, § 16 (f ), violates his right to substantive due process because it restricts his fundamental right to liberty and is not narrowly tailored to achieve compelling State interests. See Commonwealth v. Calvaire, 476 Mass. 242, 246, 66 N.E.3d 1028 (2017). All of these motions have been denied. In May, 2016, the defendant sought relief pursuant to G. L. c. 211, § 3, from the denial of his most recent motion for reconsideration. He thereafter appealed to this court from the denial of his petition.

For the reasons that follow, we conclude that maintaining pending charges against an incompetent defendant in those rare circumstances, such as here, where a defendant will never regain competency, and where maintaining the charges does not serve the compelling State interest of protecting the public, is a violation of the defendant's substantive due process rights.

1. Background. The essential facts are uncontested. On December 25, 1994, the defendant was arrested for the beating death of his father; he also was charged with attempting to obstruct fire fighters who were responding to smoke coming from the house where the defendant and his father lived. In January, 1995, a grand jury indicted the defendant on one charge of murder in the first degree and one charge of interfering with a fire fighter.

Prior to his arraignment, the defendant was examined for competency to stand trial, pursuant to G. L. c. 123, § 15 (a ). In December, 1994, he was found to be incompetent to stand trial and committed to Bridgewater State Hospital (Bridgewater) for a period of six months. See G. L. c. 123, § 16 (b ). Since then, he repeatedly has been reexamined and recommitted, for most of that period pursuant to G. L. c. 123, § 16 (c ), and remains incompetent.

Following a competency examination of the defendant in February, 2013, the director of forensic services at Bridgewater filed a report concluding that the defendant was then incompetent to stand trial, and in his opinion would never be competent; the director has reaffirmed that conclusion in subsequent reports. In April, 2014, Bridgewater filed a petition for authorization for medical treatment of the defendant. That motion was allowed. In May, 2014, Bridgewater filed a motion that the defendant be treated by DMH. The Commonwealth's motion for an independent medical examination was allowed, and the defendant's medical records were produced to the Commonwealth. Thereafter, in June, 2014, an evidentiary hearing, at which testimony was taken, was conducted on Bridgewater's motion that the defendant be treated at a DMH facility. The hearing was continued, and the motion was denied on July 31, 2014. On the same day, the Commonwealth's petition for a renewal of the defendant's commitment, under G. L. c. 123, § 8, and request that all subsequent hearings be conducted in accordance with G. L. c. 123, §§ 7, 8, was allowed, and the defendant was civilly committed to Bridgewater for one year.

In July, 2015, the Commonwealth filed a motion to extend the defendant's prior commitment, originally ordered under G. L. c. 123, § 16 (b ), and seeking that all subsequent hearings proceed under G. L. c. 123, §§ 7, 8. In August, 2015, upon a motion by Bridgewater, the defendant was transferred to the custody of DMH and held on bail. He was transferred to a joint DMH-DPH facility, where both DPH and DMH services are offered and where DPH operates hospital wards. On September 15, 2015, a competency hearing was held in the Brockton Division of the District Court Department. The defendant was found incompetent and was civilly committed to Bridgewater for one year, pursuant to G. L. c. 123, § 8. After a judge of the District Court visited the defendant at his bedside in the DPH hospital, the judge allowed Bridgewater's motion that DMH hold the defendant for one year. The Commonwealth "does not dispute ... [the] assessment [by the director of forensic services at Bridgewater]" that the defendant "will never be competent to stand trial." At a hearing before a Superior Court judge in December, 2015, the Commonwealth conceded that the defendant will never be competent to stand trial.

During the course of his commitment to Bridgewater, the defendant repeatedly exhibited violent and assaultive behavior against health care staff, other patients, and correction officers. In addition to physical assaults, he was frequently verbally combative and engaged in numerous outbursts of yelling. He made sexually inappropriate comments and gestures towards female staff. In 2005, he attempted to strangle his roommate and thereafter was placed in a single-occupancy room.

In the last three years of the defendant's time at Bridgewater, however, his doctors noted that the defendant demonstrated "sustained improvement in his aggressive behavior" and that he was no longer engaging in the sexually aggressive speech and behavior he had previously exhibited. The most recent competency evaluation in the record, from 2015, indicated that the defendant's "infrequent aggression without injury" is typical for a person with the defendant's level of dementia, and that his behavior was "not at the level of seriousness of assaults in previous years." "[H]is last serious assault of another patient occurred in November 2011." Between 2012 and June, 2015, the defendant committed four assaults that caused no serious injuries or did not result in any injury.

The improvement in the defendant's behavior was partially attributable to his worsening physical and mental condition. According to the evaluations in the record, over the past twenty-two years, the defendant has been examined by eight forensic psychologists and psychiatrists. Their general consensus is that the defendant suffers from Korsakoff syndrome, which is a form of substance-induced persisting dementia caused by the defendant's prior alcohol use. The defendant's medical records indicate that he began exhibiting symptoms of mental impairment and certain physical difficulties at least as early as 1992, and doctors suspected that these were related to brain damage from alcohol abuse. He also has a history in the records, from at least 1985 onward, of a head injury. In addition, he has an ongoing seizure disorder, and brain scans have shown noticeable abnormalities. During his commitment to Bridgewater, the defendant's cognitive and physical capacities have significantly deteriorated, and they are not expected to improve.

Since 2013, the defendant "has become progressively physically weaker, and currently is bedridden and very weak physically." According to his most recent medical records, the defendant has a permanent feeding tube implanted in his stomach through which he receives all of his nutrition and medications, cannot walk on his own, and spends his time either in a hospital bed or a geriatric chair. He is so weak that an average adult could hold both of his hands with one hand, and he would not be able to pull away. The Commonwealth agreed that the defendant has been "physically frail" since at least 2015. In 2015, in the most recent medical evaluation in the records, the director of forensic services at Bridgewater opined that the defendant could "be managed in a less secure setting, such as a facility of [DMH], a medical unit at the [Lemuel] Shattuck Hospital, or a long-term care facility."

In August, 2015, the Commonwealth did not dispute Bridgewater's motion for the release of the defendant, on bail and with conditions, pursuant to G. L. c. 123, § 17 (c ) ; Bridgewater's motion to transfer the defendant to the custody of DMH, so that he could be treated at a DMH facility, particularly for management of his feeding tube, was allowed. Shortly thereafter, the Commonwealth assented to Bridgewater's motion to amend the special conditions of release so that the defendant could be moved to the medical unit of a DPH hospital ward, in a jointly operated facility, so that he could receive more appropriate medical care; that motion was allowed.

Since the motion to hold the defendant in the DPH hospital ward, under DMH custody, was allowed, the defendant has been held on that ward. He remains civilly committed to the custody of DMH, and DMH continues to follow his care, which is provided day-to-day by DPH staff. DMH has indicated that, if the charges are dismissed, it could seek the defendant's placement in a long-term care facility that could more appropriately manage his care.

2. Prior proceedings. In May, 2001, citing due process considerations, the defendant moved pursuant to G. L. c. 123, § 16 (f ), to dismiss the charges. In August, 2002, a Superior Court judge denied the motion; he determined that the defendant had not been denied due process and that G. L. c. 123, § 16 (f ), is not applicable to charges of murder in the first degree. In March, 2013, the defendant filed another motion to dismiss, again pursuant to G. L. c. 123, § 16 (f ). In April, 2013, a different Superior Court judge denied that motion. The judge concluded that the statute is not applicable to charges of murder in the first degree and that, even if it is, he did not believe it was in the interest of justice to dismiss the charges. In July, 2015, the defendant again moved to dismiss the indictments. That motion was denied in March, 2016, by a third Superior Court judge. In April, 2016, the defendant filed a motion for reconsideration of his motion to dismiss; he argued that the denial of his motion resulted in a violation of substantive due process. The motion was denied one week later. The judge concluded that due process is satisfied by the provisions of G. L. c. 123, § 16 (c ), which requires annual reviews of competency for defendants who have been found incompetent to stand trial.

In May, 2016, the defendant filed a petition in the county court seeking relief pursuant to G. L. c. 211, § 3, from the denial of his motion for reconsideration. The defendant argued that review under G. L. c. 211, § 3, was appropriate, because he is permanently incompetent to stand trial, and would never have an adverse final judgment from which to appeal. The single justice concluded that the defendant had other avenues by which to seek relief and denied the motion without a hearing. In September, 2016, the defendant appealed to this court, pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). In December, 2016, we issued an order allowing the defendant's appeal to proceed in the full court.

3. Discussion. The defendant argues that due process prohibits the Commonwealth from maintaining pending criminal charges indefinitely against a defendant who is permanently incompetent, and, therefore, that there must be some means of obtaining dismissal of a charge of murder in the first degree. The defendant contends that his charges may be dismissed either pursuant to G. L. c. 123, § 16 (f ), which contains provisions for both mandatory dismissal and dismissal in the interest of justice, or by the inherent power of the courts to remedy violations of due process. See Department of Mental Retardation v. Kendrew, 418 Mass. 50, 55, 634 N.E.2d 109 (1994) ("We recognize that the courts of the Commonwealth have certain inherent and implied powers in addition to those powers expressly enumerated in various statutes").

The defendant argues, first, that the court should conclude that a sentence of life in prison without the possibility of parole is unconstitutional when applied to permanently incompetent defendants, and should sever that portion of the murder statute, as applied to incompetent defendants, which prohibits parole. Severance of the statute in such a manner would result in eligibility for parole for permanently incompetent defendants charged with murder in the first degree in a similar manner to those incompetent defendants who are charged with murder in the second degree. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 672-673, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015) (holding that sentence of life in prison without possibility of parole is unconstitutional when applied to juvenile defendants, and therefore severing that portion of murder statute). Alternatively, the defendant argues that G. L. c. 123, § 16 (f ), which permits dismissal in the interest of justice, could be interpreted to apply to all crimes, regardless of parole eligibility. Lastly, the defendant suggests that this court could create a remedy to resolve any due process violation.

The Commonwealth contends, however, that there is no due process violation, and that G. L. c. 123, § 16 (f ), is narrowly tailored to serve the compelling State interest of protecting public safety. In this view, the Legislature implicitly excluded defendants charged with murder in the first degree by hinging the dismissal of charges on eligibility for parole. Such an exclusion is justified, the Commonwealth suggests, because murder in the first degree is different in kind from other crimes. See G. L. c. 277, § 63 (no statute of limitations for murder). See also Commonwealth v. Francis, 450 Mass. 132, 135, 876 N.E.2d 862 (2007), S.C., 477 Mass. 582, 79 N.E.3d 1045 (2017) ("It is reasonable for the Legislature to treat defendants facing a charge of murder in the first degree differently from other defendants").

Although the language of G. L. c. 123, § 16 (f ), read in conjunction with G. L. c. 265, § 1, excludes defendants charged with murder in the first degree from being eligible for dismissal of charges under that provision, substantive due process requires a statute affecting a fundamental right to be narrowly tailored to achieve compelling government interests. See Calvaire, 476 Mass. at 246, 66 N.E.3d 1028. While murder in the first degree is the gravest of charges, we conclude that substantive due process requires dismissal of the charges where a defendant will never regain competency and maintaining the charges does not serve the compelling State interest of protecting the public.

a. General Laws c. 123, § 16 ( f ). General Laws c. 123, § 16 (f ), is intended to ensure that criminal defendants who are incompetent to stand trial are not left facing the indefinite pendency of criminal charges. See Calvaire, 476 Mass. at 244, 66 N.E.3d 1028, citing Foss v. Commonwealth, 437 Mass. 584, 589, 773 N.E.2d 958 (2002). The statute requires dismissal of criminal charges on "the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received." G. L. c. 123, § 16 (f ). Alternatively, a court may, in the interest of justice, dismiss pending charges "prior to the expiration of such period," i.e., during the period before a convicted defendant would be eligible for parole under the provision requiring mandatory dismissal. Id.

"Our primary duty in interpreting a statute is 'to effectuate the intent of the Legislature in enacting it.' " Sheehan v. Weaver, 467 Mass. 734, 737, 7 N.E.3d 459 (2014), quoting Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010). "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444, 895 N.E.2d 446 (2008). That said, "[w]e will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable." Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439 N.E.2d 770 (1982). See Black's Law Dictionary 11-12 (10th ed. 2014) (defining "absurdity" as "being grossly unreasonable" and "[a]n interpretation that would lead to an unconscionable result, esp. one that ... the drafters could not have intended").

Taken in conjunction with the provisions on murder in the first degree that exclude anyone convicted under G. L. c. 265, § 1, from eligibility for parole, G. L. c. 123, § 16 (f ), implicitly excludes dismissal of charges for which a defendant who is convicted and sentenced to the maximum sentence would never be eligible for parole. This is so because, where it is not possible to compute the date on which a person would become eligible for parole on a charge, the charge cannot be dismissed on that date, and a court cannot, in the interest of justice, dismiss the charge prior to that date.

Here, the most serious crime with which the defendant was charged is murder in the first degree. If he had been convicted of that offense, he would have been sentenced to the mandatory sentence of life in prison without the possibility of parole. Under the plain language of G. L. c. 265, § 1, therefore, a defendant charged with that offense is never eligible for dismissal of pending charges in accordance with G. L. c. 123, § 16 (f ).

b. Substantive due process. The defendant contends that the plain meaning of G. L. c. 123, § 16 (f ), as discussed supra, violates the due process clauses of art. 12 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution when applied to permanently incompetent defendants charged with murder in the first degree. We analyze his claim on substantive due process grounds. See Calvaire, 476 Mass. at 246, 66 N.E.3d 1028. Accordingly, where the statute interferes with a fundamental liberty interest, we apply strict scrutiny analysis to the defendant's claim to determine whether G. L. c. 123, § 16 (f ), is narrowly tailored to achieve a compelling State interest. See Aime v. Commonwealth, 414 Mass. 667, 673, 611 N.E.2d 204 (1993).

i. The defendant's liberty interest. In August, 2015, on a motion by Bridgewater that was unopposed by the Commonwealth, the defendant was released on bail, on conditions, and was transferred from the custody of Bridgewater to the custody of DMH, pursuant to G. L. c. 123, § 17 (c ), so that he could receive more appropriate medical care. He remains civilly committed pursuant to G. L. c. 123, §§ 7, 8, in continuation of his commitment under G. L. c. 123, § 16 (c ). The defendant claims, however, that his liberty interest is impaired by the pendency of criminal charges against him. Although he is able to reside in an unlocked medical unit at Lemuel Shattuck Hospital, the pending charges prevent him from being able to seek care in a long-term care facility that could better suit his medical and mental health needs. Furthermore, pending criminal charges may cause "anxiety, forfeiture of opportunity, and damage to reputation, among other conceivable injuries." Williams, petitioner, 378 Mass. 623, 626, 393 N.E.2d 353 (1979).

In Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the United States Supreme Court held that an incompetent defendant cannot be committed based solely on his incompetency for longer than "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competency] in the foreseeable future." Indefinite commitment of a defendant who is unlikely to regain competency intrudes on the defendant's substantial right of liberty. Id. at 731-733, 92 S.Ct. 1845. The Court explained:

"We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing [S]tate facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial." (Footnote omitted.)

Id. at 738.

The Court declined, however, to decide whether due process requires dismissal of criminal charges against an incompetent person. See id. at 740, 92 S.Ct. 1845 ("Dismissal of charges against an incompetent accused has usually been thought to be justified on grounds not squarely presented here: particularly, ... the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.... We think ... that the Indiana courts should have the first opportunity to determine these issues").

Nonetheless, in a series of opinions related to the right to a speedy trial under the Sixth Amendment to the United States Constitution, the United States Supreme Court has determined that a defendant's liberty interest may be restricted simply by the pendency of criminal charges, even where the defendant is not held in custody. Klopfer v. North Carolina, 386 U.S. 213, 221-222, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) ("The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go 'whithersoever he will.' The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes"). See United States v. McDonald, 456 U.S. 1, 8-9 (1982) (same); United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (same). See also State v. Davis, 898 N.E.2d 281, 290 (Ind. 2008) (quoting Klopfer, supra, in context of due process claim). The liberty interests of a defendant who has pending charges are as fundamental in the due process context of the Fourteenth Amendment as they are in the Sixth Amendment context.

In other cases involving the essentially indefinite commitment of incompetent defendants, we have held that a defendant's liberty interests during the pendency of a criminal trial are fundamental rights. See Foss v. Commonwealth, 437 Mass. 584, 589, 773 N.E.2d 958 (2002) ("Among many other problems studied and addressed in the new mental health laws was the pretrial commitment of incompetent criminal defendants. A major thrust was to eliminate the highly questionable practice of committing incompetent criminal defendants indefinitely, while awaiting their unlikely restoration to competency, and also eliminating the indefinite pendency of criminal charges that, most often, significantly limited the incompetent criminal defendant's access to treatment by more effective civil means" [emphasis added] ). See also Calvaire, 476 Mass. at 246, 66 N.E.3d 1028 (applying strict scrutiny analysis in determining that G. L. c. 123, § 16 [f ], does not violate due process because it allows Commonwealth "some time to pursue the legitimate and proper purpose of prosecuting charged crimes, but not for a period of time longer than is reasonably necessary to ascertain the defendant's chances of regaining competency"); Commonwealth v. Nieves, 446 Mass. 583, 590, 846 N.E.2d 379 (2006) (applying strict scrutiny in analyzing liberty interests of incompetent defendant in sexually dangerous person hearing pursuant to G. L. c. 123A). The defendant's claims, therefore, are subject to strict scrutiny analysis. See Aime, 414 Mass. at 673, 611 N.E.2d 204. The Commonwealth does not contest that the defendant's asserted liberty interest is a fundamental right.

ii. Strict scrutiny analysis. To satisfy strict scrutiny, a statute "must be narrowly tailored to further a legitimate and compelling governmental interest and be the least restrictive means available to vindicate that interest." Commonwealth v. Weston W., 455 Mass. 24, 35, 913 N.E.2d 832 (2009). The "requirements for minimum due process may vary depending on the context." See Commonwealth v. Burgess, 450 Mass. 366, 372, 878 N.E.2d 921 (2008), and cases cited.

In Calvaire, 476 Mass. at 246, 66 N.E.3d 1028, we concluded that G. L. c. 123, § 16 (f ), was narrowly tailored to achieve the two compelling State interests of "protecting mentally ill defendants from the indefinite pendency of criminal charges as a result of their incompetency" and "protecting the public from potentially dangerous persons." We noted that the statute affords the Commonwealth sufficient time to prosecute crimes, "but not for a period of time longer than is reasonably necessary to ascertain the defendant's chances of regaining competency." Id. The statute provides a method for calculating a maximum period of time prior to dismissal of charges against all defendants except those charged with crimes that do not permit eligibility for parole, e.g., all crimes other than the offense of murder in the first degree. We also noted the additional statutory safeguard that allows, in the interest of justice, the dismissal of pending charges before the expiration of the computed period of time. Id. Use of that "safety valve" may be warranted, we concluded, where "the defendant's chances of being restored to competency are slim." Id. at 247, 66 N.E.3d 1028.

In its opposition to the dismissal of charges in this case, the Commonwealth relies on the compelling government interest of public safety. It describes in detail the defendant's history of violence prior to his father's murder and during his commitment to Bridgewater. There is considerable evidence from competency evaluations, however, including the opinion of the director of forensic services at Bridgewater, that the defendant is now too physically weak to pose a danger to public safety. Since 2013, the defendant "has become progressively physically weaker, and currently is bedridden and very weak physically." He has a permanent feeding tube, cannot walk on his own, and spends his time either in a hospital bed or a geriatric chair. He is so weak that another person could control both of his hands with one hand, and he would not be able to pull away. The Commonwealth has acknowledged that the defendant was "physically frail" as of at least 2015; while it opposes the dismissal of the pending charges, it did not oppose Bridgewater's motion in August, 2015, to transfer the defendant to DMH for a period of one year, as it had in prior years.

In addition to its assertion that incompetency is not evidence of a lack of guilt, the Commonwealth contends that the charges should not be dismissed because dismissal would prevent the district attorney from being notified of the defendant's location or any hearing related to his competency. This argument is unavailing. Pursuant to G. L. c. 123, § 16 (d ), the district attorney must continue to be notified of any hearings conducted pursuant to any section of G. L. c. 123 for a person who was initially committed under G. L. c. 123, § 16 (b ). The requirement of notification includes any future hearings on petitions for civil commitment or an extension of civil commitment pursuant to G. L. c. 123, §§ 7, 8. See Matter of E.C., 479 Mass. 113, 122-123, 92 N.E.3d 724 (2018). Moreover, any dismissal of charges pursuant to G. L. c. 123, 16 (f ), is without prejudice, so in the unlikely event that a defendant whose charges had been dismissed were to regain competency, the Commonwealth would be able to reinstate the charges. See Commonwealth v. Hatch, 438 Mass. 618, 624, 783 N.E.2d 393 (2003) (dismissal of charges pursuant to G. L. c. 123, § 17 [b ], is without prejudice).

The Commonwealth also emphasizes that the Legislature has legitimate reasons for treating charges of murder in the first degree differently from other offenses. See G. L. c. 277, § 63 (no statute of limitations for murder). See also Francis, 450 Mass. at 135, 876 N.E.2d 862 ("It is reasonable for the Legislature to treat defendants facing a charge of murder in the first degree differently from other defendants").

Furthermore, notwithstanding the exclusion of defendants charged with murder in the first degree from eligibility for dismissal of charges under G. L. c. 123, § 16 (f ), the Commonwealth contends that other statutory provisions provide additional safeguards to prevent indefinite commitment and afford incompetent defendants an alternative avenue for dismissal of charges. General Laws c. 123, § 17 (c ), allows a court to release a defendant, with or without bail, at any stage of a criminal proceeding, and G. L. c. 123, § 17 (b ), permits a defendant to request a hearing that could result in dismissal of charges if there is insufficient evidence to support a conviction on those charges.

The slim possibility that a judge in his or her own discretion might decide to release a particular defendant charged with murder on bail pursuant to G. L. c. 123, § 17 (c ), however, does not address the fundamental liberty interest at issue here. See Klopfer, 386 U.S. at 221-222, 87 S.Ct. 988 ("The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go 'whithersoever he will' ").

General Laws c. 123, § 17 (b ), as the Commonwealth notes, does allow incompetent defendants to petition for a hearing to have their charges dismissed, if they can "establish a defense of not guilty to the charges pending against [them] other than the defense of not guilty by reason of mental illness or mental defect." This statute permits incompetent defendants to request a hearing at any time on the ground that they did not commit the crime charged; that the Commonwealth never had or no longer has sufficient evidence to prove that they committed the charged crime; or that a defense other than mental illness or mental defect, such as self-defense, applies. Furthermore, incompetent defendants could seek to disprove the elements that elevate murder from murder in the second degree to murder in the first degree. If, at a hearing on a motion under G. L. c. 123, § 17 (b ), a defendant is able to demonstrate that the act was not committed with deliberate premeditation or extreme atrocity or cruelty-depending on how the defendant was charged-the most severe crime of which the defendant could be convicted should the defendant later become competent would be murder in the second degree. Defendants who are convicted of murder in the second degree are eligible for parole after a period of from fifteen to twenty-five years that is determined by the sentencing judge. See G. L. c. 265, § 2 ; G. L. c. 279, § 24. Accordingly, incompetent defendants who face a charge of murder in the second degree qualify for dismissal of charges pursuant to G. L. c. 123, § 16 (f ).

The existence of this alternative avenue for dismissal of charges in specific circumstances does not, however, prevent a conclusion that G. L. c. 123, § 16 (f ), violates substantive due process in the circumstances in this case. Because it is undisputed that the defendant will never become competent, allowing charges that can never be resolved at a trial to remain pending indefinitely is inconsistent with his right to substantive due process. Compare Calvaire, 476 Mass. at 246, 66 N.E.3d 1028 ("The statute is narrowly tailored to allow the Commonwealth some time to pursue the legitimate and proper purpose of prosecuting charged crimes, but not for a period of time longer than is reasonably necessary to ascertain the defendant's chances of regaining competency"). A statute is not narrowly tailored to achieve a compelling government interest where the stated interest is not at stake. See Curtis v. State, 948 N.E.2d 1143, 1154 (Ind. 2011) ("Of course, the State's interests cannot be realized if there is a finding that a defendant cannot be restored to competency"). See also Commonwealth v. G.F., 479 Mass. 180, 196, 93 N.E.3d 816 (2018) ("[C]onfinement without legal justification is never innocuous, ... and the legal justification for confinement weakens after [a sexually dangerous person] trial is concluded without a finding of sexual dangerousness" [quotation and citation omitted] ).

General Laws c. 123, § 16 (f ), therefore satisfies the requirement of substantive due process only insofar as it is understood to allow the dismissal of charges, in the interest of justice, in circumstances such as these, where the defendant will never regain competency and does not pose a risk to public safety.

3. Conclusion. The matter is remanded to the county court for entry of an order allowing the defendant's petition pursuant to G. L. c. 211, § 3, and remanding the matter to the Superior Court for entry of an order allowing the defendant's motion to dismiss.

So ordered.

      Although the petitioner commenced this action by filing a petition in the county court, for convenience, we refer to him as "the defendant."

      We acknowledge the amicus briefs submitted by the Massachusetts Association of Criminal Defense Lawyers and the district attorney for the Northern District.

      At the time of the defendant's arrest, defendants convicted of murder in the second degree were eligible for parole after fifteen years. After the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Legislature revised the murder statute. Currently, defendants who are convicted of murder in the second degree are eligible for parole at a period of from fifteen to twenty-five years after sentencing, to be determined by the sentencing judge. See G. L. c. 127, § 133A ; G. L. c. 279, § 24.

      All other offenses which permit a life sentence also have a statutory parole date that follows a fixed number of years; for no offense is this period greater than that for a conviction of murder in the second degree. See G. L. c. 127, § 133A ; G. L. c. 279, § 24.

      General Laws c. 123, § 16 (f ), provides:
      "If a person is found incompetent to stand trial, the court shall send notice to the department of correction which shall compute the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted. For purposes of the computation of parole eligibility, the minimum sentence shall be regarded as one half of the maximum sentence potential sentence. Where applicable, the provisions of [G. L. c. 127, §§ 129, 129A, 129B, and 129C,] shall be applied to reduce such period of time. On the final date of such period, the court shall dismiss the criminal charges against such person, or the court in the interest of justice may dismiss the criminal charges against such person prior to the expiration of such period."

      Very few State courts have addressed this issue. This may be a result of statutes in many States having been modified in light of Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), to permit broader dismissal of charges against incompetent individuals. Indeed, many State statutes employ the specific language from Jackson of "substantial probability that [a defendant] will attain that capacity [to proceed to trial] in the foreseeable future" to determine whether charges should be dismissed. See id. Thirty-two States appear to require or explicitly to allow dismissal of charges of murder in the first degree. See Alaska Stat. § 12.47.110 ; Ark. Code Ann. § 5-2-310 ; Cal. Penal Code § 1370.01 ; Colo. Rev. Stat. § 16-8.5-116 ; Fla. Stat. § 916.145 ; Ga. Code Ann. § 17-7-130 ; Haw. Rev. Stat. § 704-406 ; Idaho Code Ann. § 18-212 ; 725 Ill. Comp. Stat § 5/104-23 ; 15 Me. Rev. Stat. Ann. § 101-D ; Md. Code Ann., Crim. Proc. § 3-107 ; Mich. Comp. Laws § 330.2044 ; Mo. Rev. Stat. § 552.020 ; Mont. Code Ann. § 46-14-221 ; Nev. Rev. Stat. § 178.460 ; N.H. Rev. Stat. Ann. § 135:17-a ; N.J. Stat. Ann. § 2C:4-6 ; N.M. Stat. Ann. § 31-9-1.4 ; N.C. Gen. Stat. § 15A-1008 ; N.D. Cent. Code § 12.1-04-08 ; Okla. Stat. tit. 22, § 1175.6a ; Or. Rev. Stat. § 161.370 ; 50 Pa. Cons. Stat. § 7403; R.I. Gen. Laws § 40.1-5.3-3 ; S.C. Code Ann. § 44-23-420 ; Tex. Code Crim. Proc. Ann. arts. 46B.071, 46B.151 ; Wash. Rev. Code §§ 10.77.084, 10.77.086 ; W. Va. Code § 27-6A-3 ; Wis. Stat. § 971.14 ; Ala. R. Crim. P. 11.6 ; Ariz. R. Crim. P. 11.6 ; State v. Davis, 898 N.E.2d 281, 286 (Ind. 2008).
      Of those, twenty States require dismissal of charges of murder in the first degree after a defendant has been incompetent for a specific period of time. See Ala. R. Crim. P. 11.6 ; Alaska Stat. § 12.47.110 ; Fla. Stat. § 916.145 ; 725 Ill. Comp. Stat § 5/104-23 ; 15 Me. Rev. Stat. Ann. § 101-D ; Md. Code Ann., Crim. Proc. § 3-107 ; Mich. Comp. Laws § 330.2044 ; Mo. Rev. Stat. § 552.020 ; Mont. Code Ann. § 46-14-221 ; Nev. Rev. Stat. § 178.460 ; N.H. Rev. Stat. Ann. § 135:17-a ; N.M. Stat. Ann. § 31-9-1.4 (when defendant is also not dangerous); N.C. Gen. Stat. § 15A-1008 ; N.D. Cent. Code § 12.1-04-08 ; Okla. Stat. tit. 22, § 1175.6a ; Or. Rev. Stat. § 161.370 ; 50 Pa. Cons. Stat. § 7403 (proceedings for murder in first degree or murder in second degree may not be stayed if there is no probability defendant will regain competency); R.I. Gen. Laws § 40.1-5.3-3 ; Wash. Rev. Code §§ 10.77.084, 10.77.086 ; Wis. Stat. § 971.14.
      Other States exclude murder in the first degree-and, in some instances, other serious crimes-from their dismissal provisions, often explicitly. See Conn. Gen. Stat. § 54-56d ; D.C. Code §§ 24-531.04, 24-531.08 ; Iowa Code § 812.9 ; La. Code Crim. Proc. Ann. art. 648 ; N.Y. Crim. Proc. Law § 730.50 ; S.D. Codified Laws §§ 23A-10A-14, 23A-10A-15 ; Tenn. Code Ann. § 33-7-301 ; Va. Code Ann. § 19.2-169.3 ; Minn. R. Crim. P. 20.01. The remaining States either do not have provisions related to dismissal of charges against incompetent defendants or allow dismissal only after proceedings similar to a hearing pursuant to G. L. c. 123, § 17 (b ). See Del. Code Ann. tit. 11, §§ 403 -404 ; Kan. Stat. Ann. § 22-3303 ; Ky. Rev. Stat. Ann. §§ 504.110, 504.150 ; Neb. Rev. Stat. § 29-1823 ; Ohio Rev. Code Ann. § 2945.38 ; Utah Code Ann. § 77-15-6 ; Vt. Stat. Ann. tit. 13, §§ 4820, 4822 ; Wyo. Stat. Ann. § 7-11-303 ; Miss. R. Crim. P. 12.5, 12.6.

      General Laws c. 123, § 16 (d ), provides:
      "The district attorney for the district within which the alleged crime or crimes occurred shall be notified of any hearing conducted for a person under the provisions of this section or any subsequent hearing for such person conducted under the provisions of this chapter relative to the commitment of the mentally ill and shall have the right to be heard at such hearings."

      General Laws c. 123, § 17 (c ), provides:
      "Notwithstanding any finding of incompetence to stand trial under the provisions of this chapter, the court having jurisdiction may, at any appropriate stage of the criminal proceedings, allow a defendant to be released with or without bail."

      General Laws c. 123, § 17 (b ), provides:
      "If either a person or counsel of a person who has been found to be incompetent to stand trial believes that he can establish a defense of not guilty to the charges pending against the person other than the defense of not guilty by reason of mental illness or mental defect, he may request an opportunity to offer a defense thereto on the merits before the court which has criminal jurisdiction. The court may require counsel for the defendant to support the request by affidavit or other evidence. If the court in its discretion grants such a request, the evidence of the defendant and of the commonwealth shall be heard by the court sitting without a jury. If after hearing such petition the court finds a lack of substantial evidence to support a conviction it shall dismiss the indictment or other charges or find them defective or insufficient and order the release of the defendant from criminal custody."

      The Legislature recently enacted a criminal justice reform bill that allows a prisoner who suffers from a terminal illness or permanent incapacitation "that is so debilitating that the prisoner does not pose a public safety risk" to be released on medical parole. See G. L. c. 127, § 119A, inserted by St. 2018, c. 69, § 97. This compassionate release program is available to all prisoners, including those convicted of murder in the first degree.


source: Caselaw Access Project

author: LOWY, J.

license: Public Domain

text:
    COMMONWEALTH v. George ORTEGA.
    SJC-12145
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued February 9, 2018. Decided September 17, 2018.
    Robert L. Sheketoff, Boston, for the defendant.
    Julianne Campbell, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, also present) for the Commonwealth.
    Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
   LOWY, J.

A Superior Court jury convicted the defendant, George Ortega, of murder in the first degree on the theory of deliberate premeditation for the shooting death of Steven Fuentes on May 24, 2012. , The shooting was precipitated by a drug turf war. After the close of all the evidence, the defendant requested that the jury be instructed on self-defense and voluntary manslaughter. The request was denied, and the jury were instructed as to the prerequisites for a guilty finding of murder in the first degree and murder in the second degree.

On appeal, the defendant argues that the judge abused her discretion by declining to require the prosecutor to explain his peremptory challenge to a female African-American member of the venire. The defendant also argues that the judge erred by declining to instruct the jury on self-defense and voluntary manslaughter. For the reasons discussed below, we conclude that the judge erred by declining to require an explanation for the prosecutor's peremptory challenge. We also conclude that the judge erred in declining to give the defendant's requested jury instructions on self-defense and voluntary manslaughter. Accordingly, we vacate the defendant's convictions.

1. Peremptory challenge of juror no. 78. a. Background. The defendant contends that the judge abused her discretion by declining to require the prosecutor to provide an adequate and genuine race-neutral reason for his peremptory challenge to juror no. 78, a female African-American member of the venire. See Commonwealth v. Lopes, 478 Mass. 593, 596, 91 N.E.3d 1126 (2018) ; Commonwealth v. Soares, 377 Mass. 461, 486-488, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). To provide context for addressing this claim, we begin by summarizing the relevant factual background.

After directing a series of questions to the jury venire as a group and through a written questionnaire, the judge conducted an individual voir dire of the prospective jurors. The judge then allowed counsel the opportunity to question the prospective jurors, and the judge required counsel to raise any peremptory challenge to a prospective juror immediately after the judge completed her questioning.

The defendant raised his first race-based Soares challenge when he objected to the prosecutor's use of his second peremptory challenge to strike juror no. 26, a male African-American member of the venire. The judge determined that the defendant had made a prima facie showing of improper use of the peremptory strike, and required the prosecutor to provide an adequate gender- and race-neutral reason for his decision to strike. The judge initially denied the prosecutor's request to strike juror no. 26, explaining that the prosecutor's proffered explanation-concerns related to juror no. 26's health-were inadequate. The prosecutor later sought to exercise his second peremptory challenge to strike juror no. 26 based on that juror's failure to accurately disclose his criminal history on his jury questionnaire. The judge allowed the prosecutor's request, and juror no. 51, a male African-American member of the venire, replaced juror no. 26 without objection.

The defendant asserted his next race-based Soares challenge to the prosecutor's fifth peremptory challenge to strike juror no. 78, a female African-American member of the venire. At that point, one female African-American had been seated, and the prosecutor had used two of his four peremptory strikes against male African-American prospective jurors. Although the judge had already found a Soares pattern of excluding prospective African-American jurors because of race, the judge found that the defendant had not met his prima facie burden, explaining that there was already one "female of color on th[e] jury."

b. Discussion. "The use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in discrete community groups is prohibited both by art. 12 [of the Massachusetts Declaration of Rights], see [

Soares, 377 Mass. at 486-488, 387 N.E.2d 499 ], and the equal protection clause [of the Fourteenth Amendment to the United States Constitution], see Batson v. Kentucky, 476 U.S. 79, 84-88 [106 S.Ct. 1712, 90 L.Ed.2d 69] (1986)." Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). Unlike its Federal counterpart, art. 12 prohibits bias in jury selection not only based on race or gender independently, but also based on a combination thereof. See Commonwealth v. Jordan, 439 Mass. 47, 62, 785 N.E.2d 368 (2003) (purposeful exclusion based on intersectional status in group defined by race and gender prohibited). See also Commonwealth v. Robertson, 480 Mass. 383, 397, 105 N.E.3d 253 (2018). There is a presumption that the exercise of a peremptory challenge is proper. See Commonwealth v. Issa, 466 Mass. 1, 8, 992 N.E.2d 336 (2013). "That presumption may be rebutted, however, if it is shown that (1) there is a pattern of excluding members of a discrete group; and (2) it is likely that individuals are being excluded solely because of their membership in this group." Commonwealth v. Benoit, 452 Mass. 212, 218, 892 N.E.2d 314 (2008), citing Commonwealth v. Curtiss, 424 Mass. 78, 80, 676 N.E.2d 431 (1997).

"A challenge to a peremptory strike, whether framed under State or Federal law, is evaluated using a burden-shifting analysis." Commonwealth v. Jones, 477 Mass. 307, 319, 77 N.E.3d 278 (2017). In the first stage, "the burden is on the party challenging the peremptory strike to make a prima facie showing that the strike is improper. If the party does so, the burden shifts to the party attempting to strike the prospective juror to provide a group-neutral reason for doing so." Id.

Establishing a prima facie case of discrimination "is not an onerous task." Jones, 477 Mass. at 321, 77 N.E.3d 278. See Commonwealth v. Maldonado, 439 Mass. 460, 463 n.4, 788 N.E.2d 968 (2003). In determining whether a pattern exists, a trial judge is to consider all of the relevant facts and circumstances including (1) "the number and percentage of group members who have been excluded"; (2) "the possibility of an objective group-neutral explanation for the strike"; (3) "any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck"; (4) "differences among the various members of the allegedly targeted group who were struck"; (5) "whether those excluded are members of the same protected group as the defendant or the victim"; and (6) "the composition of the jurors already seated." Jones, supra at 322, 77 N.E.3d 278, citing Issa, 466 Mass. at 9, 10-11, 992 N.E.2d 336. A single peremptory challenge may be sufficient to make a prima facie showing that rebuts the presumption of proper use. See Issa, supra at 9, 992 N.E.2d 336 ; Commonwealth v. Fryar, 414 Mass. 732, 738, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997) ("challenge of a single prospective juror within a protected class could, in some circumstances, constitute a prima facie case of impropriety"). We review the judge's decision on the peremptory challenge for an abuse of discretion. Jones, supra at 319-320, 77 N.E.3d 278, citing Issa, supra at 10, 992 N.E.2d 336.

Similar to the judge's decision in the case underlying Jones, 477 Mass. at 325, 77 N.E.3d 278, the judge in this case relied exclusively on the presence of a single female African-American who at that point had been seated in concluding that the defendant had not met his prima facie burden. Specifically, the judge explained that the prosecutor was entitled to exercise the peremptory strike because there was already one woman of color on the jury. While the composition of seated jurors provides a prism through which to determine discriminatory intent, "that is only one factor among many, and must be assessed in context." Id."The presence of one empanelled African-American juror ... cannot be dispositive." Id. See Sanchez v. Roden, 753 F.3d 279, 302-303 (1st Cir. 2014). "[T]o place undue weight on this factor not only would run counter to the mandate to consider all relevant circumstances, see Batson, 476 U.S. at 96-97, 106 S.Ct. 1712, but also would send the 'unmistakable message that a prosecutor can get away with discriminating against some African-Americans ... so long as a prosecutor does not discriminate against all such individuals' " (emphasis added). Jones, supra, quoting Sanchez, supra at 299 (that five African-Americans had already been seated not, by itself, dispositive). Because the judge only considered the composition of the empanelled members of the jury, thereby placing undue weight on one of six relevant factors, we conclude that the judge abused her discretion in finding that the defendant had fallen short of making a prima facie showing of discrimination. Accordingly, the defendant's convictions must be reversed. See Jones, supra at 325-326, 77 N.E.3d 278.

2. Failure to instruct on self-defense and voluntary manslaughter. a. Background. The defendant argues that the judge erred in declining to give his tendered jury instructions on self-defense and voluntary manslaughter. Although the jury heard conflicting testimony from various witnesses, we view the evidence in the light most favorable to the defendant to determine if any view of the evidence would support jury instructions on self-defense and voluntary manslaughter. See Commonwealth v. Little, 431 Mass. 782, 785, 730 N.E.2d 304 (2000), citing Commonwealth v. Berry, 431 Mass. 326, 334, 727 N.E.2d 517 (2000). Viewed in this light, the record reveals the following relevant facts, which the jury reasonably could have found.

On the afternoon of May 24, 2012, the victim confronted the defendant regarding the defendant's drug dealing activities on Leyland Street in the Roxbury section of Boston, which the victim regarded as part of his drug territory. The victim was angry that the defendant was selling drugs in his territory and accused the defendant of "trying to take all the money." During that confrontation, the victim told the defendant that he did not want the defendant coming around Leyland Street, called the defendant a "snitch," and punched him. In response, the defendant reached toward his waist-a gesture arguably understood to mean that person was carrying a firearm-before leaving Leyland Street without further confrontation.

Later that evening, the defendant returned to Leyland Street. The victim approached the defendant, who was standing on the street in front of 23 Leyland Street, and an argument ensued. As the argument escalated, the men began to gesture toward one another as if they were going to fight "up and up" (i.e., without weapons).

The testimony about what happened in the moments prior to the shooting, as with much of the testimony, is in conflict. Viewing the evidence in the light most favorable to the defendant, as we must for this analysis, the jury could have reasonably found as follows. The defendant told a man who had appeared beside him in the street to "look out" for individuals standing on the stairs of the two nearest row houses. Around that same time, the victim's brother departed from one of the row houses and stood on the front steps of 23 Leyland Street; he was holding something in his left hand and had another object tucked into the waist band of his shorts. The victim then moved back toward the row houses and walked away from the crowd toward the area between 19 and 23 Leyland. The victim returned moments later and called out, "It's jammed," after which the defendant started jogging backwards and shooting in the direction of the victim. Somewhere between six and ten gunshots rang out, mostly from the direction of the defendant. The initial shots sounded like they were being fired from the center of the street, followed by a number of shots fired from the entryway of 23 Leyland Street. The victim's brother was standing in the entryway at the time of shooting. The victim was struck with a bullet that entered his lower back and passed through his left lung before leaving through his shoulder.

After being shot, the victim ran toward 19 Leyland Street, where he collapsed on the front steps and died from the gunshot wound to his lower back.

At the scene of the shooting, the police recovered one spent .22 caliber shell casing from the sidewalk in front of 23 Leyland Street and five spent .45 caliber shell casings from the middle of the street. The police also recovered one spent projectile from the victim's body. After analyzing the .45 caliber shell casings and the bullet recovered from victim's body during autopsy, a ballistician with the Boston police department concluded that the same .45 caliber weapon discharged both the shell casings and the bullet. The ballistician further concluded that the shell casing recovered from the sidewalk in front of 23 Leyland was fired from a .22 caliber long rifle.

b. Discussion. The evidentiary threshold for a defendant seeking an instruction on self-defense is low, as it is the Commonwealth's burden to prove that the defendant did not act in proper self-defense once the issue is raised.

Commonwealth v. Pike, 428 Mass. 393, 395, 701 N.E.2d 951 (1998), citing Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980) (defendant entitled to self-defense instruction "if any view of the evidence" would support instruction). In determining whether the evidence warrants an instruction on self-defense, we consider the evidence, from any source, and resolve all reasonable inferences in favor of the defendant. See Commonwealth v. Santos, 454 Mass. 770, 773, 912 N.E.2d 985 (2009) ; Benoit, 452 Mass. at 227, 892 N.E.2d 314 ; Pike, supra ; Commonwealth v. Toon, 55 Mass. App. Ct. 642, 645, 773 N.E.2d 993 (2002).

When deadly force is used, such as in this case, a defendant is entitled to an instruction on self-defense where there is evidence "permit[ting] at least a reasonable doubt" that the defendant "reasonably and actually believed that he was in 'imminent danger of death or serious bodily harm,' " Pike, 428 Mass. at 396, 701 N.E.2d 951, quoting Harrington, 379 Mass. at 450, 399 N.E.2d 475 ; that he "availed himself of all proper means to avoid physical combat before resorting to the use of deadly force," Commonwealth v. Pring-Wilson, 448 Mass. 718, 733, 863 N.E.2d 936 (2007), quoting Harrington, supra ; and that he "used no more force than was reasonably necessary" in light of the circumstances, Pring-Wilson, supra. Additionally, the right of self-defense ordinarily "cannot be claimed by a [person] who provokes or initiates an assault." Commonwealth v. Espada, 450 Mass. 687, 693, 880 N.E.2d 795 (2008), quoting Commonwealth v. Maguire, 375 Mass. 768, 772-773, 378 N.E.2d 445 (1978).

Here, the trial evidence by no means compelled a conclusion that the defendant acted in self-defense, but if the testimony from several witnesses who testified favorably to the defendant were deemed credible, a rational jury could find that the Commonwealth failed to prove beyond a reasonable doubt that the defendant did not shoot the victim in self-defense. Specifically, there was testimony from which the jury could infer that the victim not only escalated the confrontation by displaying a gun, but also tried to shoot the defendant before the victim himself was shot. This evidence, considered in combination with testimony concerning the confrontation between the victim and the defendant earlier that day, would be sufficient to permit a rational jury to find a reasonable doubt whether the defendant had a reasonable and actual belief that he was in imminent danger of being killed or seriously injured. See Commonwealth v. Harris, 464 Mass. 425, 429-430, 432-433, 983 N.E.2d 695 (2013) (overt gesture in combination with statement from victim sufficient to put question of self-defense to jury). See also Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 240, 58 N.E.3d 1032 (2016). Cf. Commonwealth v. Chambers, 465 Mass. 520, 529-530, 989 N.E.2d 483 (2013) (victim's prior violent acts admissible to demonstrate propensity for violence where it is disputed whether defendant or victim was first to use or threaten deadly force).

There is also sufficient evidence, resolving all inferences in favor of the defendant, from which a reasonable jury could find that the Commonwealth failed to prove beyond a reasonable doubt that the defendant was the first to threaten deadly force and that he did not avail himself of all proper means to avoid physical combat before resorting to the use of deadly force. Self-defense is generally unavailable where the confrontation occurs on a public street and "where 'there is no evidence that the principal was not able to walk away.' " Commonwealth v. Avila, 454 Mass. 744, 769, 912 N.E.2d 1014 (2009), quoting Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 820, 850 N.E.2d 1118 (2006). See Berry, 431 Mass. at 335, 727 N.E.2d 517 ("The right to self-defense does not arise unless ... the defendant took every opportunity to avoid combat ..."). Our case law does not, however, "impose an absolute duty to retreat regardless of personal safety considerations," Benoit, 452 Mass. at 227, 892 N.E.2d 314 ; it only requires that a person avoid using deadly force against another if there is a "reasonable avenue of escape available" (emphasis added). Pike, 428 Mass. at 398, 701 N.E.2d 951. If a person is threatened with death or serious bodily injury by an aggressor armed with a firearm, in open space away from cover or safety, it would be unreasonable to impose a categorical rule that requires him or her to be shot in the back in a fruitless attempt to retreat. If the weapon requires close proximity to inflict injury and threaten death, then retreat in an open space becomes a more viable option so long as the aggressor is not within range to use the weapon. In light of the myriad possible permutations of facts and circumstances, whether a defendant has used all available and reasonable means to retreat is generally a question of fact. See Harrington, 379 Mass. at 452, 399 N.E.2d 475 (whether defendant could have retreated was question for fact finder). Here, there was evidence that the victim had a gun and had tried to shoot the defendant first, and that the defendant was jogging backwards prior to, or at the same time, that he first started shooting at the victim. Based on this evidence, whether the defendant could have retreated (or should have attempted to retreat) from the victim, whom he could have believed had a gun and who had already attempted to fire before the weapon malfunctioned, was a question for the jury. See id. See also Iacoviello, 90 Mass. App. Ct. at 240, 58 N.E.3d 1032.

We reach the same conclusion with respect to an instruction on the mitigating circumstance of excessive force in self-defense. In a deadly force case, if the Commonwealth fails to disprove all the elements of self-defense except the element of reasonableness of the force used, then the jury may not return a verdict of murder, but must find the defendant guilty of voluntary manslaughter. See Commonwealth v. Grassie, 476 Mass. 202, 210, 65 N.E.3d 1199 (2017), citing Commonwealth v. Glacken, 451 Mass. 163, 167, 883 N.E.2d 1228 (2008) (excessive force in self-defense will mitigate murder to voluntary manslaughter); Commonwealth v. Walker, 443 Mass. 213, 216, 820 N.E.2d 195 (2005) (same prerequisites for self-defense apply where defendant seeks instruction on manslaughter based on excessive use of force). The evidence here, considered in the light most favorable to the defendant, warranted instructions on self-defense and voluntary manslaughter based on the theory of excessive use of force in self-defense. See, e.g., Iacoviello, 90 Mass. App. Ct. at 241-242, 58 N.E.3d 1032.

3. Conclusion. The defendant's convictions are vacated and set aside. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

      The defendant was also convicted of carrying a firearm without a license.

      A codefendant, Anthony King Solomon, was acquitted of murder in the first degree, as a participant in a joint venture, and of carrying a firearm without a license.

      This section provides information relevant to the peremptory challenge issue. Further factual details are recited in the context of the alleged errors about which the defendant complains.

      The defendant also argues that the judge erred in declining to allow his exercise of a peremptory strike to juror no. 105, a Caucasian member of the venire who is an accountant. See Commonwealth v. Prunty, 462 Mass. 295, 310 n.22, 968 N.E.2d 361 (2012). Because we conclude that the judge abused her discretion by failing to require an explanation for the prosecutor's peremptory challenge of juror no. 78, we do not reach this issue.

      In Commonwealth v. Cousin, 449 Mass. 809, 818, 822, 873 N.E.2d 742 (2007), cert. denied, 553 U.S. 1007, 128 S.Ct. 2053, 170 L.Ed.2d 798 (2008), and Commonwealth v. Hampton, 457 Mass. 152, 171, 928 N.E.2d 917 (2010), we held that a prosecutor has independent authority to conduct checks of jurors' criminal offender record information (CORI) records pursuant to G. L. c. 6, § 172, before the jury are sworn. Here, the prosecutor had alerted the judge in advance of jury selection that he would be checking selected jurors' CORI records and providing such records to all counsel.

      Similar to juror no. 26, juror no. 51's CORI records indicated that he had failed to disclose his criminal history on his jury questionnaire. The judge allowed the prosecutor's subsequent request to exercise his fourth peremptory strike to excuse juror no. 51.

      "This list of factors is neither mandatory nor exhaustive; a trial judge and a reviewing court must consider 'all relevant circumstances' for each challenged strike." Commonwealth v. Jones, 477 Mass. 307, 322 n.24, 77 N.E.3d 278 (2017), quoting Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Commonwealth v. Robertson, 480 Mass. 383, 397, 105 N.E.3d 253 (2018).

      The Commonwealth argues that, at the time of the prosecutor's peremptory challenge to strike juror no. 78, two of the six seated jurors "were women of color." We have previously noted that "[t]he test in Soares and Batson does not apply to challenges to members of all minority ethnic or racial groups lumped together, but instead applies to challenges to 'particular, defined groupings in the community.' " Prunty, 462 Mass. at 307 n.17, 968 N.E.2d 361, quoting Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). See Gray v. Brady, 592 F.3d 296, 305-306 (1st Cir.), cert. denied, 561 U.S. 1015, 130 S.Ct. 3478, 177 L.Ed.2d 1072 (2010) (explaining that African-American and Hispanic jurors are not part of same "cognizable group" for Batson purposes).

      Where a judge has already found a prima facie showing of excluding prospective jurors based on race, gender, or membership in some other protected class, the judge should carefully scrutinize subsequent challenges to the use of peremptory strikes as to another juror in the same protected class. "[W]here a judge abuses his or her discretion by failing to find a prima facie case, the error is unlikely to be harmless." Commonwealth v. Issa, 466 Mass. 1, 11 n.14, 992 N.E.2d 336 (2013). We therefore again "urge judges to think long and hard before they decide to require no explanation from the prosecutor for the challenge and make no findings of fact" where "a defendant claims that a prosecutor's peremptory challenge of a prospective juror is motivated by discriminatory intent." Id.

      Although our conclusion above is dispositive and requires reversal, we discuss the issues raised by the defendant that may arise at a new trial.

      The defendant did not lose his right to a self-defense instruction when he asserted a misidentification defense. If the defendant requests, and the evidence supports, an instruction on self-defense, the Commonwealth must prove its absence beyond a reasonable doubt, and the judge must give a requested self-defense instruction, even when the defendant asserts a misidentification defense. See Commonwealth v. Thomas, 429 Mass. 146, 154-155, 706 N.E.2d 669 (1999) ; Commonwealth v. Anderson, 396 Mass. 306, 313, 486 N.E.2d 19 (1985) ; Commonwealth v. Walden, 380 Mass. 724, 726, 405 N.E.2d 939 (1980). See also Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130, 675 N.E.2d 401 (1997) (defendant could argue, "I didn't do it ... but if I did do it, it was self-defense"). The Commonwealth is also entitled, over a defendant's objection, to a jury instruction on voluntary manslaughter when the facts could support the lesser offense. See Commonwealth v. Woodward, 427 Mass. 659, 662-663, 694 N.E.2d 1277 (1998).

      Generally, determination whether a defendant has availed himself or herself of "all reasonable means to avoid physical combat before resorting to the use of deadly force depends on all of the circumstances, including the relative physical capabilities of the combatants, the weapons used, the availability of room to maneuver or escape from the area, and the location of the assault." Model Jury Instructions on Homicide 30 (2018). See Commonwealth v. Pike, 428 Mass. 393, 399, 701 N.E.2d 951 (1998).

      To the extent that the jury heard conflicting testimony regarding whether the victim had turned away from the defendant before the defendant started shooting, the decision whether to accept or reject that testimony was a question for the jury. See Commonwealth v. Santos, 454 Mass. 770, 773, 912 N.E.2d 985 (2009), citing Commonwealth v. Vanderpool, 367 Mass. 743, 746, 328 N.E.2d 833 (1975) (credibility of evidence or whether it is controverted or conflicts with other evidence is question for fact finder).

      The defendant does not argue on appeal that he was entitled to jury instructions on voluntary manslaughter based on reasonable provocation or heat of passion caused by sudden combat. Because issues and evidence relevant to these instructions may or may not arise in the same way at the retrial, we do not consider whether the jury should have been instructed on these theories.


author: BLAKE, J.

text:
    Shonna CALHOUN & others v. Jason M. RAWLINS, special representative, & others.
    No. 17-P-40
    Appeals Court of Massachusetts, Plymouth..
    Argued February 1, 2018 Decided June 27, 2018
    Richard B. Reiling, Boston, (Richard C. Woods, Jr., also present) for the plaintiffs.
    Stephen M. LaRose, Boston, (Charles Dell'Anno, Boston, & Edward M. Joyce, Jr., Pembroke, also present) for the defendants.
    Present: Trainor, Blake, & Lemire, JJ.

      William Calhoun, Jr., and Timothy Pink, Jr., by his father and next friend, Timothy Pink.

      Of the estate of Brian K. McInerney.

      KeyBank National Association, trustee of the Brian K. McInerney Irrevocable Trust; Jean E. McInerney, trustee of the Brian K. McInerney Irrevocable Trust.

   BLAKE, J.

At issue in this case is whether the assets of an irrevocable spendthrift trust, established in 2007 on behalf of a disabled husband upon divorce from his wife, are available to satisfy any damages awarded in a subsequent personal injury action against the former husband. Resolution of the issue requires us to consider whether the trust was self-settled. We conclude that successful plaintiffs in this action may recover damages from the trust.

Background. a. The Probate and Family Court proceedings. Before the motor vehicle accident at issue in this case, Brian K. McInerney was involved in a motor vehicle accident in 2001, in which he sustained a severe traumatic brain injury. In September of 2004, a judge of the Probate and Family Court appointed coguardians for him due to his inability to make medical and other important decisions. ,

Having married in 1987, McInerney and his former wife, Susan J. Stone, separated in January of 2004. McInerney filed a complaint for divorce on March 8, 2005, requesting an equitable division of the marital assets under G. L. c. 208, § 34.

Throughout the marriage, Stone held significant assets in her own name, including accounts at KeyBank National Association (KeyBank), at least some of which derived from a trust created for Stone's benefit by her grandfather. McInerney worked for only one year during the marriage; Stone worked as an artist and then as a mental health counsellor, making a modest salary. During the marriage, the family was supported primarily, if not exclusively, by Stone's income from her employment and her assets.

McInerney, by his guardian, and Stone executed a separation agreement, which was incorporated into the judgment of divorce nisi. The separation agreement was later amended by stipulation and approved by a judge of the Probate and Family Court. The amended separation agreement (ASA), dated January 26, 2007, settled McInerney's and Stone's rights and obligations to one another upon dissolution of their marriage. In pertinent part, the ASA provided that Stone would transfer approximately thirty-five percent of the funds in her KeyBank accounts to a spendthrift trust to be created for McInerney. In addition, the ASA contained provisions regarding the marital home, a vacation home in Maine, the purchase of a home in Plymouth for McInerney, and other assets, including assets inherited by Stone. The ASA provided that the division of assets would survive entry of the judgment of divorce nisi and would have independent legal significance. By approving the ASA and incorporating it into the judgment of divorce nisi, the Probate and Family Court judge found that the terms were fair and reasonable.

B. Creation of the Brian K. McInerney Irrevocable Trust. The Brian K. McInerney Irrevocable Trust (trust) was created on March 23, 2007, and, though irrevocable, the trustees were given complete discretion to distribute as much of the income and principal of the assets in the trust as they felt were necessary to meet the reasonable needs of McInerney. The terms of the trust identified Stone as the settlor, McInerney as the beneficiary, and their children, Elise and Dru, as the remainder beneficiaries. The trustees at that time were McInerney's sister and guardian (Jean E. McInerney ), and Bank of America as the corporate trustee. The trust provides that the "interest of any beneficiary created herein, either as to income or principal, shall not be alienated, anticipated or in any other manner assigned by such beneficiary and shall not be subject to legal process, bankruptcy proceedings, or the interference or control of creditors."

Pursuant to the ASA, on May 7, 2007, Stone transferred $3,538,402.34 of stocks and bonds to the trust. She also transferred the Plymouth home valued at $538,400 into the trust. In addition, McInerney transferred assets standing in his own name, totaling more than $120,000, into the trust.

C. The motor vehicle accident at issue. On April 30, 2014, plaintiffs Shonna Calhoun and a minor child, Timothy Pink, Jr., were involved in a motor vehicle accident with McInerney. It is alleged that McInerney was traveling seventy-six miles per hour in a thirty-five miles per hour zone, crossed the yellow line to pass a vehicle, and collided head on with a vehicle being driven by Calhoun. The crash caused serious injuries to Calhoun and the minor child, and McInerney died from his injuries.

The plaintiffs commenced this action in Superior Court seeking damages for McInerney's negligence and a judgment declaring that the assets of the trust are available to them to satisfy any damages award. The parties filed cross motions for summary judgment solely on the issue whether the trust's assets are available to the plaintiffs. A judge (motion judge) determined that only the assets that McInerney contributed to the trust are reachable. The motion judge found that the assets contributed by Stone are not reachable because Stone was the sole owner of the assets until they entered the trust and McInerney never had any prior legal or equitable interest in them. A separate and final judgment entered on the declaratory judgment claim. See Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). The plaintiffs appeal.

Discussion. a. Spendthrift trusts. When faced with the question whether creditors may reach the assets of spendthrift trusts, our cases distinguish between spendthrift trusts that are created by third parties, such as parents, and spendthrift trusts that are self-settled by an individual who is both settlor and beneficiary. It has long been the law in this Commonwealth that a trust created by a third-party settlor may protect a beneficiary's interest in the trust from creditors through spendthrift provisions. See Broadway Natl. Bank v. Adams, 133 Mass. 170, 173-174 (1882) ; Pacific Natl. Bank v. Windram, 133 Mass. 175, 176 (1882). Even in the face of public policy arguments favoring access, a third-party settlor's intent to deny creditors of a beneficiary recovery against trust assets has been enforced. Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 20, 411 N.E.2d 1305 (1980). The theory behind the enforcement of these spendthrift trusts is that the settlor of a trust is the absolute owner of his property and, in giving a gift, has "the entire right to dispose of it, either by an absolute gift ... or by a gift with such restrictions or limitations, not repugnant to law, as he [sees] fit to impose." Adams, supra at 173.

Self-settled trusts, where the beneficiary is also the settlor, however, cannot be used to protect one's assets from creditors. "The established policy of this Commonwealth long has been that a settlor cannot place property in trust for his own benefit and keep it beyond the reach of creditors." Ware v. Gulda, 331 Mass. 68, 70, 117 N.E.2d 137 (1954), quoting from Merchants Natl. Bank v. Morrissey, 329 Mass. 601, 605, 109 N.E.2d 821 (1953). "To permit a man ... to attach to a valuable interest in property retained by himself the quality of inalienability and of exemption from his debts, seems to us to be going further than a sound public policy will justify." Windram, 133 Mass. at 176-177. Thus, "[w]hen a person creates for his own benefit a trust for support or a discretionary trust, his creditors can reach the maximum amount which the trustee, under the terms of the trust, could pay to him or apply for his benefit." State St. Bank & Trust Co. v. Reiser, 7 Mass. App. Ct. 633, 636, 389 N.E.2d 768 (1979). "This is so even if the trust contains spendthrift provisions." Ibid. See Ware, supra. This concept also has been codified in the Massachusetts Uniform Trust Code. General Laws c. 203E, § 505(a )(2), inserted by St. 2012, c. 140, § 56, provides that notwithstanding the presence of a spendthrift provision, "[w]ith respect to an irrevocable trust, a creditor or assignee of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit." See Restatement (Second) of Trusts § 156(2) (1959) ("Where a person creates for his own benefit a trust for support or a discretionary trust, his transferee or creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or apply for his benefit"). See also Restatement (Third) of Trusts § 58 (2003).

In Cohen v. Commissioner of the Div. of Med. Assistance, 423 Mass. 399, 414, 668 N.E.2d 769 (1996), cert. denied sub nom. Kokoska v. Bullen, 519 U.S. 1057, 117 S.Ct. 687, 136 L.Ed.2d 611 (1997), the Supreme Judicial Court described self-settled spendthrift trusts as created "for the purpose of having your cake and eating it too." "Under such a trust, a grantor puts his assets in a trust of which he is the beneficiary, giving his trustee discretion to pay out monies to gratify his needs but limiting that discretion so that the trustee may not pay the grantor's debts." Ibid. The court noted that this jurisdiction and others have long followed the Restatement principle for self-settled trusts. Ibid.

On appeal, KeyBank and Jean "do not quibble with this well-established principle" applicable to self-settled trusts, and even agree that the motion judge correctly applied G. L. c. 203E, § 505(a )(2), in concluding that the funds contributed to the trust by McInerney from his own accounts are available to the plaintiffs. KeyBank and Jean contend only that the rule does not apply to the trust assets supplied by Stone. Thus, the determination whether the trust is self-settled or settled by Stone is at the heart of this dispute.

B. Self-settled. In order for creditors to reach trust assets where a person created a trust for support or a discretionary trust for his own benefit, it is not necessary that the beneficiary shall have himself conveyed the property held in trust. Restatement (Third) of Trusts § 58 comment f (2003). It is enough that the beneficiary provide consideration. Ibid. "A trust is established by the person who provides the consideration for the trust even though in form it is created by someone else." Romo v. Kirschner, 181 Ariz. 239, 241-242, 889 P.2d 32 (Ct. App. 1995), quoting from Forsyth v. Rowe, 226 Conn. 818, 826, 629 A.2d 379 (1993). "[I]t is the beneficiary's entitlement to the settlement proceeds, not whether they were literally paid into his hands, that indicates whether the beneficiary funded the trust." Id. at 242, 889 P.2d 32.

Whether the trust was self-settled by McInerney for the purpose of the plaintiffs' claims regarding the trust property requires us to look beyond the labels adopted in the trust instrument and the ASA. Cf. In re Village Green Realty Trust, 113 B.R. 105, 114 (Bankr. D. Mass. 1990), quoting from In re Dolton Lodge Trust No. 35188, 22 B.R. 918, 925 (Bankr. N.D. Ill. 1982) (In determining whether trust is eligible for bankruptcy even though labeled nominee trust, focus is not on label but "on what the debtor actually is and the purpose it has been created to carry out"). Thus, the terms identifying the settlor as Stone or the accounts held by Stone as her individual assets rather than as marital assets were not binding on the motion judge or on the plaintiffs for determining whether the plaintiffs may reach the trust. It would be anomalous indeed if a settlor could avoid the well-settled principle that one cannot avoid creditors through a self-settled trust by the simple expedient of identifying another person in the trust instrument as the settlor. Rather, in determining whether the trust was self-settled, we look to the facts surrounding the creation of the trust.

Here, the proper focus is on the reason Stone funded the trust. The motion judge's focus on the source of the funds was misplaced because it ignored the fact that assets previously held in Stone's name were transferred to the trust in settlement of her obligations to McInerney upon dissolution of the marriage, not as a gift. An agreement that settles the rights of divorcing spouses with regard to property, maintenance, and support is based on valuable consideration. See Handrahan v. Moore, 332 Mass. 300, 303, 124 N.E.2d 808 (1955). McInerney's agreement to settle his rights and obligations pursuant to the dissolution of the marriage was the consideration for the creation of the trust. Stone was not gifting her money to McInerney; she was satisfying her obligations arising from the dissolution of the marriage. Accordingly, McInerney had a legal right to the monies that funded the trust. That he agreed through his guardian to have the funds deposited into the trust does not alter the fact that these funds represented the agreed-upon equitable division due him incident to the divorce.

Even though there are no Massachusetts cases directly on point, our reasoning finds support in the case law. In Cohen, 423 Mass. at 422-423, 668 N.E.2d 769, a beneficiary of a trust argued that, for the purpose of qualifying for Medicaid, she was not the settlor of a trust but, rather, her conservator established the trust with proceeds of a medical malpractice settlement and pursuant to a decree of the Probate and Family Court. In rejecting that argument, the court cited cases from other jurisdictions where trusts were considered self-funded by beneficiaries even though they were created by conservators and guardians of the beneficiaries, sometimes with court approval, and funded with settlement proceeds from the beneficiaries' personal injury actions and workers' compensation claims. See id. at 422, 668 N.E.2d 769, and cases cited. The court reasoned that "[a] conservator, like a guardian, has only the care and management of the ward's estate, and title to it ... never vests in him but remains in the ward." Id. at 423, 668 N.E.2d 769, quoting from Minnehan v. Minnehan, 336 Mass. 668, 670, 147 N.E.2d 533 (1958).

In In re Tosi, 383 B.R. 1, 4 (Bankr. D. Mass. 2008), the debtor's portion of his father's estate was placed into a discretionary trust. The debtor argued that the trust was not self-settled because the trust property passed directly from the executors to the trustees of the trust. Id. at 13. The court rejected the argument because the monies that funded the trust "were monies that [the debtor] was legally entitled to receive and did receive from the settlement of his father's estate. In other words, there can be no dispute that the monies that funded [the trust] were attributable to the [d]ebtor's share of his father's estate." Ibid.

We see no meaningful distinction between the facts considered in Cohen, those considered in In re Tosi, and the facts here. McInerney's legal and equitable rights in the settlement of the parties' rights and obligations upon dissolution of the marriage was the impetus behind the creation of the trust and, therefore, he properly is considered the settlor. Compare Miller v. Ibarra, 746 F.Supp. 19, 30 (D. Colo. 1990) (trust created by courts for incompetent person pursuant to State statute not self-settled). That the monies that funded the trust came from Stone's individual accounts is not controlling where she contributed the funds in satisfaction of her obligations related to the dissolution of the marriage.

We reject the premise adopted by the motion judge that because certain accounts that funded the trust were in Stone's name during the marriage and may have derived from trusts of which she was the sole beneficiary, they could not be considered to be part of the marital estate. "Inherited assets, including an interest in trust property established by one spouse's parents," or, as in this case, a grandparent, "may comprise part of a marital estate for purposes of possible division under G. L. c. 208, § 34." Ruml v. Ruml, 50 Mass. App. Ct. 500, 511, 738 N.E.2d 1131 (2000). While the parties chose to define in the ASA certain bank accounts held solely by Stone as Stone's assets, there is nothing in the record to suggest that accounts held in Stone's name were not available to satisfy Stone's obligations to McInerney at the time of the divorce. To the contrary, the parties mutually agreed that McInerney was entitled to thirty-five percent of the funds in these accounts to be paid into the trust. Accordingly, the parties, when they executed the ASA, and the Probate and Family Court judge when he approved it, determined that the assets were properly divided between the parties. The suggestion that the trust could not have been self-settled because McInerney's name was not on the accounts during the marriage, particularly in these circumstances, is unavailing.

c. Intention of the parties. It appears to have been the intent of the parties to the ASA to create a valid spendthrift trust that would protect the trust's assets from McInerney's creditors. As between the parties, the terms of the ASA are enforceable. The role of the Probate and Family Court judge in approving the ASA was to ensure it was free of fraud and coercion, and fair and reasonable in the circumstances. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 91, 463 N.E.2d 564 (1984). While the ASA set forth the terms of the trust, including the spendthrift provision, there was no evidence that the Probate and Family Court judge was asked to decide whether the trust instrument would in fact protect McInerney's portion of the marital estate from creditors.

McInerney and Stone were free to settle the rights and obligations between them in an enforceable contract. However, by the terms agreed upon in the ASA, they were not free to except the trust from G. L. c. 203E, § 505(a )(2), with regard to a creditor's effort to reach the trust to satisfy any judgment against McInerney. If, as it would appear, their intent was to keep McInerney's funds out of the hands of his creditors, they could not do so by transferring his share of the marital estate into a spendthrift trust over which the trustees had discretion to pay to him both the principal and the interest of the trust during his lifetime. Cf. Guerriero v. Commissioner of the Div. of Med. Assistance, 433 Mass. 628, 633, 635, 745 N.E.2d 324 (2001). Here, the proper application of G. L. c. 203E, § 505(a )(2), allows the plaintiffs to access the trust in the circumstances presented.

Finally, we have considered whether McInerney's cognitive impairments, which caused him to be placed under guardianship, give him a special status in terms of self-settled spendthrift trusts that are approved by a judge in the course of approving a separation agreement. The parties have pointed us to no statute or common-law principle that confers such a status. Cases considered in Cohen, too, involved trusts created by conservators and guardians for incompetent adults. In a case with remarkably similar facts insofar as a husband involved in a motor vehicle accident causing serious injuries placed proceeds of his personal injury action into a spendthrift trust, the Georgia Supreme Court said "no settlor, disabled or otherwise, should be permitted to put his own assets in a trust, of which he is the sole beneficiary, and shield those assets with a spendthrift clause, because to do so is 'merely shift[ing] the settlor's assets from one pocket to another, [in an attempt to avoid creditors].' " Speed v. Speed, 263 Ga. 166, 168, 430 S.E.2d 348 (1993), quoting from 76 Am. Jur. 2d, Trusts, § 129. In the absence of public policy or other argument to the contrary, we agree.

Conclusion. We conclude that the trust was self-settled. The funds transferred to the trust by Stone were transferred for the purpose of satisfying her obligations to McInerney related to the dissolution of the marriage. The principal and the interest of the trust were available to McInerney during his lifetime and the same amounts are available to the plaintiffs to satisfy any judgment in their personal injury action. See Reiser, 7 Mass. App. Ct. at 638-639, 389 N.E.2d 768. The judgment is reversed and a new judgment is to enter declaring that the plaintiffs may reach the assets of the Brian K. McInerney Irrevocable Trust.

So ordered.

      The medical certificate filed in support of the guardianship petition stated that McInerney was unable to make or to communicate informed decisions due to physical incapacity. Specifically, he had residual cognitive impairment in attention, memory, and executive functioning and was unable to make complex decisions involving legal matters.

      Jean E. McInerney, appointed as coguardian, subsequently was appointed sole guardian.

      Three children were born of the marriage. Elise was born in 1989 and Dru was born in 1992. The couple's youngest child, Lia, died from injuries sustained in the 2001 motor vehicle accident. She was two years old at that time.

      The ASA states, "The Husband and the Wife desire by this Agreement to confirm their separation, ... and to settle between themselves all questions pertaining to their respective property and estate rights, the support and maintenance of the Husband and the Wife, and all other rights and obligations arising from their marital relationship." They agreed that the provisions set forth in the ASA were in full satisfaction and discharge of, among other things, "all property claims, past and present, which either may have against the other party, including all such rights as either party may have, or claim to have, to property under the terms and provisions of [G. L. c. 208, § 34 ]." They also agreed that they would not seek from any court "any order or judgment" that would "vary or increase the equitable division of property or any other obligations of the other party as set forth in the" ASA.

      Specifically, the ASA provided, "In light of the circumstances of the Husband ..., it is an essential condition of the assignment and transfer of any and all assets from the Wife to the Husband under this Agreement that said assets be transferred to a trust conforming to the requirements set forth in Article III, subsection C, below and to be approved by the Court for the benefit of Husband, as well as [his children, Elise and Dru,] as the contingent beneficiaries. No such assets shall be transferred unless such condition is met." Article III(C)(4) expressly provides that the trust shall contain spendthrift provisions "to protect the trust from any creditors of the Husband so that the trust is not liable to pay any of the creditors of the Husband."

      Hereinafter, we will refer to McInerney's sister as "Jean" to avoid confusion.

      William Calhoun, Jr., brought a loss of consortium claim regarding his wife.

      There is some discussion in Reiser, supra at 637, 389 N.E.2d 768, pointing to the settlor's retention of a power of appointment as part of the reason creditors may reach the assets of the trust. When the settlor retains some control over the disbursement of the assets of an irrevocable trust, creditors may reach the maximum amount of the funds that can be distributed to the settlor. See G. L. c. 203E, § 505(a )(2) ; Reiser, supra. "The Eleventh Circuit [has] stated that '[t]he issue of self-settlement is separate from the issue of control, and either can serve as an independent ground for invalidating a spendthrift provision.' " In re Raymond, 529 B.R. 455, 479 (Bankr. D. Mass. 2015), quoting from In re Brown, 303 F.3d 1261, 1267 n.9 (11th Cir. 2002).

      General Laws c. 203E, § 34 "is intended 'to provide a mechanism whereby no matter how the property has been acquired or how it is held, the court can distribute it between the parties in such a way as to provide for a balanced disposition and economic justice.' " Denninger v. Denninger, 34 Mass. App. Ct. 429, 434-435, 612 N.E.2d 262 (1993), quoting from Hay v. Cloutier, 389 Mass. 248, 254, 449 N.E.2d 361 (1983).

      As required by rule 401 of the Rules of the Probate Court (2012), Stone disclosed these assets on her financial statement filed in connection with the divorce proceedings.

      We have recognized the validity of such agreements, and have "encouraged divorcing parties to enter into written separation agreements," that "secure with finality the parties' respective rights and obligations concerning the division of marital assets, among other things, according to established contract principles." DeMarco v. DeMarco, 89 Mass. App. Ct. 618, 623, 53 N.E.3d 669 (2016), quoting from Krapf v. Krapf, 439 Mass. 97, 103, 786 N.E.2d 318 (2003). Indeed, "[t]he public policy of Massachusetts 'favors settlement of property disputes resulting from a divorce through equitable, enforceable separation agreements, freely entered into by the parties.' " Ratchford v. Ratchford, 397 Mass. 114, 116, 489 N.E.2d 1015 (1986), quoting from Moore v. Moore, 389 Mass. 21, 24, 448 N.E.2d 1255 (1983). See Pavluvcik v. Sullivan, 22 Mass. App. Ct. 581, 584, 495 N.E.2d 869 (1986). "[A] separation agreement is a 'judicially sanctioned contract' that is valid and enforceable only if and as approved by the judge" upon a finding that the division of the marital estate is fair, reasonable, and equitable in the circumstances. Krapf, supra at 104, 786 N.E.2d 318, quoting from Bell v. Bell, 393 Mass. 20, 26, 468 N.E.2d 859 (1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985) (Abrams, J., dissenting).

      The parties to the ASA filed a joint motion to amend the prior separation agreement in order to clarify that the provision requiring McInerney's assets to be placed into a trust is an integral and essential part of the separation agreement and that an interpretation that the trust established for McInerney was self-settled would be contrary to the parties' intent.