author: SACKS, J.

text:
    COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION v. BOSTON BOAT BASIN, LLC, & others.
    No. 17-P-355
    Appeals Court of Massachusetts, Suffolk..
    Argued November 13, 2017 Decided July 10, 2018
    Patrick P. Dinardo, Boston, for Boston Boat Basin, LLC, & another.
    John M. Allen (William A. Zucker also present), Boston, for the plaintiff.
    Present: Kinder, Desmond, & Sacks, JJ.

      The only other defendant appearing in this appeal is Charles Lagasse, individually and as manager of Boston Boat Basin, LLC. The additional defendants in the Land Court were Yovette Mumford, individually and as a member of MGM Commercial Wharf, LLC; MGM Commercial Wharf, LLC; Boston Yacht Haven Marina, LLC; Commercial Wharf Marina, LLC; and Garron Markey, individually and as manager of MGM Commercial Wharf, LLC. These defendants were subject to the judgment entered in the Land Court but did not appeal.

   SACKS, J.

The defendants Boston Boat Basin, LLC, owner of an inn and marina on Boston harbor, and its manager (together, Boston Boat), appeal from a Land Court judgment ordering Boston Boat to comply with certain property use restrictions-agreed to by one of Boston Boat's predecessors in title-that benefit an abutter, plaintiff Commercial Wharf East Condominium Association (CWECA). On appeal, Boston Boat presses its attempt to cast off these restrictions on the ground that they impermissibly "limit the use of [its] marina and inn almost exclusively to private clients" and "restrict the public's ability to enjoy Boston Harbor." Boston Boat claims that the restrictions thus violate the public trust doctrine, which, in general terms, protects public rights in "tidelands," i.e., "present and former submerged lands and tidal flats lying below the mean high water mark," G. L. c. 91, § 1, as amended by St. 1983, c. 589, § 21, unless those right are properly relinquished. See Arno v. Commonwealth, 457 Mass. 434, 436, 455-456, 931 N.E.2d 1 (2010). Boston Boat also appeals from the judge's finding that it was in contempt of a preliminary injunction earlier obtained by CWECA to enforce the restrictions against a predecessor in title. We affirm the judgment requiring compliance with the restrictions as the judge interpreted them. We conclude, however, that the preliminary injunction did not apply to Boston Boat. Therefore, the contempt finding cannot stand.

Background. We draw our description of the case largely from the judge's detailed decision. Except as to the contempt claim, the pertinent facts are undisputed.

1. Prior proceedings. Boston Boat owns and operates an inn and marina (the locus), known as Boston Yacht Haven, at the seaward end of Commercial Wharf on Boston harbor, on or over Commonwealth tidelands. See note 2, supra. Boston Boat holds a license under G. L. c. 91, the Waterways Act administered by the Department of Environmental Protection (the department), to use the locus. The sole land access is by easement over the property of CWECA, an association of owners of certain condominiums located at the landward end of the wharf.

In 2006, CWECA filed this suit against the locus's prior owner of record and its affiliates (the prior owners ) to enforce certain restrictions on the use of the locus. CWECA obtained a preliminary injunction requiring the prior owners to comply with those restrictions as the judge interpreted them. In 2009, CWECA obtained a partial summary judgment ruling that rejected the prior owners' claim that the restrictions violated the public trust doctrine, and reiterated the proper interpretation of the restrictions, leaving the issue of damages for trial. Also in 2009, the prior owner of record filed for bankruptcy, and the mortgagee bank foreclosed. The purchaser at the foreclosure auction sold the locus to Boston Boat in 2010.

After some inconclusive procedural skirmishing over whether Boston Boat should be made a defendant in this action, CWECA filed in July of 2011 a contempt complaint asserting that Boston Boat was using the locus in violation of the 2006 preliminary injunction. That injunction remained in effect but had not been made permanent. CWECA subsequently amended its underlying complaint to add Boston Boat as a party and to seek declaratory and injunctive relief against Boston Boat regarding the validity and interpretation of the restrictions. In December of 2011, the judge held a trial on both the underlying and contempt complaints. Only CWECA and Boston Boat (and not the prior owners) participated in the trial.

In December of 2016, the judge issued a decision (1) rejecting Boston Boat's claim that the restrictions interfered with public trust rights and (2) finding Boston Boat in contempt of the 2006 preliminary injunction. The resulting judgment required Boston Boat to comply with the restrictions, as the judge interpreted them, and which we now describe.

2. The restrictions. The restrictions on Boston Boat's use of the locus stem from three sources: conditions on an access easement; a zoning variance and permit limiting the number of parking spaces at the locus; and, most significantly, a 2003 settlement agreement between CWECA and one of Boston Boat's predecessors in title, the developer of the locus (the 2003 agreement). The 2003 agreement, which resolved a suit by CWECA against the developer, encumbered and ran with the locus for the benefit of CWECA and was duly recorded. As summarized and interpreted by the judge, the agreement included restrictions that:

"(1) regulate deliveries and parking at the [i]nn [and] [m]arina, (2) prohibit its use by ferries, party, cruise, charter, or excursion boats, boats that sell alcoholic beverages, and boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants, (3) prohibit its use as a 'function hall,' and (4) prohibit its use for 'social events, such as, but not limited to, weddings, bar mitzvahs, school dances or holiday parties,' except for up to four 'special events' per year, open only to 'privately invited guests or narrowly targeted audiences,' for which [CWECA] must be given at least thirty-days prior notice."

These are the restrictions that Boston Boat sought to void as inconsistent with the public trust doctrine.

3. The c. 91 license. In 1997, the department issued to the developer a thirty-year c. 91 license for the locus. Boston Boat succeeded to that license in 2010. The license authorized construction and maintenance of a pier, marina service building, and float system, with such structures to "be limited to the following uses: to provide a public recreational boating facility; public access to navigable waters; and accessory uses to the marina including a restaurant primarily serving marina patrons, a marine chandlery, office, crew quarters, vehicular circulation and parking." Notably, the license contained a "special condition" that provided in pertinent part:

"In partial compensation for the private use of structures on Commonwealth tidelands, which interferes with the rights of the public to use such lands, the [l]icensee shall allow the public to pass on foot, for any purpose and for 24 hours per day, on the proposed pier .... To the extent that the [l]icensee has the right to allow the public to pass across Commercial Wharf to its proposed pier pursuant to the [easement], the [l]icensee shall allow the public such a right of passage.... In no event shall the [d]epartment require the [l]icensee to provide access across Commercial Wharf if the licensee does not have the legal right to provide such access."

The license also included numerous "standard" conditions, many of them also imposed by c. 91 itself, including provisions (1) confirming the department's authority to control changes in the use of the licensed locus; (2) describing generally the nature of the public rights protected; and (3) disclaiming any intent to infringe on the rights of property owners other than the licensee.

Discussion. 1. Authority to enforce public trust rights. We now come to Boston Boat's claim that the restrictions agreed to by its predecessors in title unduly restrict public access to and use of its waterfront locus, and therefore violate the public trust doctrine and are void. The judge, seeing no such impact on public rights, rejected this claim. We likewise reject it, but on a different ground: Boston Boat had no authority in the first place to seek judicial enforcement of public trust rights in this private litigation.

"Only the Commonwealth, 'or an entity to which the Legislature has delegated authority expressly, may act to further public trust rights.' " Moot v. Department of Envtl. Protection, 448 Mass. 340, 347, 861 N.E.2d 410 (2007) ( Moot I ), S.C., 456 Mass. 309, 923 N.E.2d 81 (2010) ( Moot II ), quoting from Fafard v. Conservation Commn. of Barnstable, 432 Mass. 194, 197, 733 N.E.2d 66 (2000). Accord Arno, 457 Mass. at 451, 931 N.E.2d 1. The primary entity to which the Legislature has delegated this authority is the department, as administrator of c. 91, which "generally is viewed as an encapsulation of the Commonwealth's public trust authority and obligations." Arno, 457 Mass. at 454, 931 N.E.2d 1, quoting from Fafard, 432 Mass. at 200 n.11, 733 N.E.2d 66. "[T]he Legislature has designated [the department] as the agency charged with responsibility for protecting public trust rights in tidelands through the c. 91 licensing program." Navy Yard Four Assocs., LLC v. Department of Envtl. Protection, 88 Mass. App. Ct. 213, 218, 37 N.E.3d 46 (2015), quoting from Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 678, 932 N.E.2d 787 (2010). In administering c. 91, the department must "ensur[e] that the tidelands are utilized only for water-dependent uses or otherwise serve a proper public purpose." G. L. c. 91, § 2, as amended by St. 1983, c. 589, § 22.

The court has enforced the express delegation principle strictly. Thus, in Fafard, where there was no statutory delegation to a town or its conservation commission of authority to enforce public trust rights, the commission could not prohibit landowners from building a pier on the basis that the commission viewed the pier as conflicting with such rights. Fafard, 432 Mass. at 195-196, 197-198, 199 & n.10, 733 N.E.2d 66.

Similarly, in Moot I, the court held that the department itself, despite its broad c. 91 responsibilities, could not issue a regulation exempting landlocked tidelands from c. 91 licensing requirements, because the Legislature had not expressly authorized such a relinquishment of public rights. Moot I, 448 Mass. at 347, 349, 861 N.E.2d 410. The court emphasized that c. 91 "sets out to 'preserve and protect,' under the department's watch, the public's rights in tidelands," id. at 347, 861 N.E.2d 410, and "[t]he department has no authority to forgo [that] responsibility ... whether for administrative convenience, conservation of the department's resources or any other laudable agency reason." Id. at 350, 861 N.E.2d 410. Nor was the court willing to step into the department's shoes and decide for itself whether the project at issue satisfied the "proper public purpose" criterion of c. 91. "[I]t is not [the court's] role to determine whether the proposed ... project meets that statutory requirement." Id. at 350-351, 861 N.E.2d 410.

And in Arno, the court held that the Attorney General and the Land Court had no authority to relinquish public trust rights through land registration proceedings. Arno, 457 Mass. at 451-453, 931 N.E.2d 1. Although the Attorney General had "expressly waived any such rights" in a certain parcel during 1922 registration proceedings, id. at 436, 931 N.E.2d 1, the waiver was invalid, because the land registration statutes did not "contain[ ] an express delegation, to the Land Court or to the Attorney General, of the Legislature's power to relinquish the public's rights in tidelands." Id. at 451, 931 N.E.2d 1.

Here, Boston Boat purports to seek to enforce public trust rights, by asking the Land Court to invalidate use restrictions (agreed to by a predecessor in title) that assertedly infringe on such rights. But Boston Boat is not "an entity to which the Legislature has delegated authority expressly ... to further public trust rights.' " Moot I, 448 Mass. at 347, 861 N.E.2d 410, quoting from Fafard, 432 Mass. at 197, 733 N.E.2d 66. Nor does Boston Boat point to any statute authorizing the Land Court, in a suit between private parties to enforce property use restrictions, to invalidate such restrictions as inconsistent with public trust rights. Given the Supreme Judicial Court's consistent and strict enforcement of the express delegation requirement, we reject the argument that the proper extent of public trust rights in a particular locus may be determined in private litigation such as the present case.

In light of the department's preeminent responsibility in enforcing public trust rights through the c. 91 licensing process, the department is in the best position to assess claims such as Boston Boat's. As should be evident from our summary, supra, of some of the relevant conditions of Boston Boat's c. 91 license, the department has already considered, at least as a general matter, not only the proper balance between, but also the possibility of conflicts between, private rights and public trust rights. The license authorizes Boston Boat to make specified uses of structures on Commonwealth tidelands, including "a public recreational boating facility" and "public access to navigable waters" as well as "accessory uses to the marina including a restaurant primarily serving marina patrons, a marine chandlery, office, crew quarters, vehicular circulation and parking." The license recognizes that Boston Boat will make some "private use" of the locus, and that in "partial compensation" therefor, Boston Boat must allow public access on foot to its pier, unless it is determined that Boston Boat "does not have the legal right to provide such access."

Plainly, the license does not invalidate every restriction that might somehow diminish the public's ability to use the locus, as Boston Boat seems to contend. Rather, licensure reflects a balance; it requires the department to determine that the pier and other structures on the locus "serve a proper public purpose and that said purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands." G. L. c. 91, § 14, as amended by St. 1983, c. 589, § 24; G. L. c. 91, § 18. See also id., § 18B.

We presume that the license as issued in 1997 met this standard. See James Constr. Co. v. Commissioner of Pub. Health, 336 Mass. 143, 146, 143 N.E.2d 206 (1957) ("the actions of public officials are presumed to be regular and lawful" and to have "followed the procedure prescribed by the Legislature"); LaPointe v. License Bd. of Worcester, 389 Mass. 454, 459, 451 N.E.2d 112 (1983). We leave it to the department to determine whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights. Given the department's special role in this area, Boston Boat may not obtain judicial invalidation of restrictions on the use of the locus by asserting, in private litigation, their inconsistency with the public trust doctrine.

2. Contempt. The judge found Boston Boat in contempt of the 2006 preliminary injunction, entered against the prior owners but never made permanent. The judge based the finding on Boston Boat's having allowed a separate entity to hold an event at the locus on June 21, 2011, before Boston Boat was a party to the case. The judge found that the event, a "boats, burritos and beer" promotion conducted by a private marketing firm, violated the preliminary injunction's prohibitions against, among other things, using the locus as a "function hall." On appeal, Boston Boat challenges the judge's ruling-which he based alternatively on grounds of privity and judicial estoppel-that Boston Boat was bound by the preliminary injunction despite not having been a party when it was issued or when the promotional event occurred.

"[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 853, 913 N.E.2d 799 (2009). We review the judge's ultimate finding of contempt for abuse of discretion, but we review underlying conclusions of law de novo and underlying findings of fact for clear error. Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443, 451, 677 N.E.2d 127 (1997). Our review is informed by the Birchall court's statement that the standard it adopted is necessary to ensure "the level of certainty appropriate to justify civil contempt sanctions," which may be severe. Birchall, 454 Mass. at 852, 913 N.E.2d 799.

a. Privity. Relying on DeGiacomo v. Quincy, 476 Mass. 38, 63 N.E.3d 365 (2016), the judge ruled that "Boston Boat is in sufficient 'privity' with the parties against whom the injunctive relief was granted to be bound by those orders for contempt purposes." The judge stated that "[w]hile [ DeGiacomo ] discussed res judicata, its reasoning is equally applicable to contempt." This ruling was error insofar as it applied to a preliminary injunction.

The DeGiacomo court applied settled principles of issue preclusion, a doctrine premised on the existence of an earlier final judgment and operative against parties to that judgment and those in privity with them. DeGiacomo, 476 Mass. at 42, 63 N.E.3d 365. Nothing in DeGiacomo suggests that a preliminary injunction applies to nonparties. Although a nonparty may be held in contempt for counseling, aiding, abetting, or otherwise acting in concert with a party in violating an order, see Bird v. Capital Site Mgmt. Co., 423 Mass. 172, 178-179, 667 N.E.2d 826 (1996) (violation of attachment order), there was no finding of any concerted activity here. Nor has CWECA cited any case in which a nonparty has been held in contempt of a preliminary injunction based solely on its status as a successor in title to a party.

b. Judicial estoppel. The judge ruled in the alternative that judicial estoppel required Boston Boat to obey the preliminary injunction. The judge found that Boston Boat had previously "represented ... in open court, that it would abide by those restrictions and orders, with this court relying on that representation." Our review of this finding requires us to recount in some detail the proceedings that led to Boston Boat becoming a party to this case.

In 2010, after Boston Boat acquired the locus, CWECA moved to substitute Boston Boat for the prior owner of record as a defendant in this action. Boston Boat opposed the motion on the ground, among others, that it had no relationship with the prior owner and had not succeeded to any of its liabilities. With its opposition, Boston Boat filed the affidavit of its manager, stating that he was familiar with the recorded instruments containing the locus use restrictions and that Boston Boat had no intention of violating them.

CWECA's motion was the subject of two hearings, which focused in part on whether Boston Boat agreed to be bound not only (1) by the restrictions themselves, but also (2) by the judge's interpretations of them, as embodied in the 2006 preliminary injunction and the 2009 partial summary judgment ruling. At the first hearing, on July 23, 2010, the judge pressed Boston Boat on that question; in response, Boston Boat offered to submit a supplemental affidavit of its manager, agreeing to abide by those interpretations. The judge, seeking a more definitive end to the litigation, asked if Boston Boat would file a stipulation and agreement to judgment to that effect. Boston Boat declined to do so, expressing its opposition to becoming a party. The judge then stated his inclination to allow Boston Boat to be substituted as a defendant-so as to "end this once and for all with a judgment that everybody recognizes as binding on the wharf"-but asked Boston Boat and CWECA to try to agree on the terms of such a judgment.

At the September 8, 2010, hearing, the parties reported their inability to agree. The judge then noted Boston Boat's earlier statement that it was "willing to live with the restrictions," but observed that Boston Boat "may have hedged a bit" on whether it also agreed to abide by "[his] interpretation of the restrictions" and asked Boston Boat to clarify its position. In response, Boston Boat reiterated that it was aware of "the restrictions" and had no intent to violate them, but that, given the judge's expressed inclination "to substitute Boston Boat into the case over [its] objection," Boston Boat would not simply agree to "a substitution and then an entry of judgment." Boston Boat was "not prepared to waive any rights to litigation[,] appeal or otherwise to lodge some valid objection or motion to the enforceability of those restrictions as they sit." The judge asked whether Boston Boat was seeking to preserve its appellate rights; Boston Boat replied that it would not waive "any rights, including [its] appellate rights," and that, "since it sounds like Boston Boat is coming into this case, [it] would like the opportunity to take part in some of the litigation that was missed in the last four years." The judge then took the motion to substitute under advisement.

Ten months later, CWECA filed its contempt complaint, asserting that Boston Boat was using the locus in violation of the 2006 preliminary injunction. The judge then issued an order stating that Boston Boat was not a party to this action, and that the motion to substitute Boston Boat as a defendant remained under advisement, but that in the meantime CWECA should move to amend its underlying complaint to add Boston Boat as a defendant. CWECA filed such a motion, which the judge allowed over Boston Boat's objection, and the 2011 trial on the underlying and contempt complaints ensued.

The judge's decision found with respect to judicial estoppel that Boston Boat had "stipulated that [it] would abide by the restrictions and the court's prior orders interpreting them" (emphasis added), citing the transcript of the July 23, 2010, hearing. The judge appears to have overlooked the later hearing of September 8, 2010, at which he himself had expressed uncertainty over whether Boston Boat had agreed to abide by "[his] interpretation of the restrictions," and had asked for clarification. He also appears to have overlooked Boston Boat's carefully-worded reply-that it had no intention of violating "the restrictions," but conspicuously omitting any mention of the judge's interpretation of them-and its further clear statements that if it were going to be made a defendant over its objection, it would not agree to a judgment, would not waive "any rights," and wished to "take part in some of the litigation that was missed in the last four years." These statements plainly indicated Boston Boat's intent to litigate further the validity and interpretation of the restrictions, despite prior interlocutory rulings on those issues that were adverse to its predecessors in title.

As reluctant as we are to hold a judge's finding about events in his own court room to be clearly erroneous, we are constrained to do so here. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Marlow v. New Bedford, 369 Mass. 501, 508, 340 N.E.2d 494 (1976), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Here, the "entire evidence" includes the transcript of the September 8, 2010, hearing, which leaves us with the definite and firm conviction that Boston Boat did not agree to be bound by the judge's prior interpretations of the restrictions. To be sure, Boston Boat could have answered the judge's question more directly, by affirmatively stating its refusal to agree. We should not be misunderstood as condoning anything less than full and forthright answers to questions from the bench. But Boston Boat's implicit negative answer, coupled with its clear reservations of rights, compels us to reject the judge's finding that Boston Boat had agreed to be bound.

Here, an agreement to be bound was essential to the ultimate estoppel-based contempt finding. If Boston Boat was not bound, then either its later conduct was not "disobedience," or there was no "clear and unequivocal command" applicable to it in the first place. Either way, the contempt finding was not "supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, 454 Mass. at 853, 913 N.E.2d 799. It lacked "the level of certainty appropriate to justify civil contempt sanctions," a serious matter. Id. at 852, 913 N.E.2d 799.

Conclusion. We affirm the judgment on the underlying complaint and reverse the order finding Boston Boat in contempt.

So ordered.

      Tidelands include both "Commonwealth tidelands" and "private tidelands." G. L. c. 91, § 1. "Commonwealth tidelands" are defined as "tidelands held by the commonwealth in trust for the benefit of the public or held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose." Ibid."Private tidelands" are defined as "tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water." Ibid.

      We use the phrase "prior owners" to refer to the owner of record, MGM Commercial Wharf, LLC, and the affiliated persons and entities listed in note 1, supra, other than Lagasse.

      The injunction was later clarified and extended in ways not relevant here, and a single justice of this court denied the prior owners' petition for relief from the injunction. Also, the prior owners, one of which then held the license, moved to join the department as a necessary party. The department did not respond to the motion, and it was denied.

      The record does not explain the passage of time between the trial and the decision.

      Under an easement recorded in 1978, the owner of the locus has a nonexclusive right to pass and repass to and from the locus, on foot or by vehicle, over the condominium parking and driveway areas now owned by CWECA, subject to the right (subsequently conveyed to CWECA) to manage and control those areas and collect fees for their use. The easement derives from the one at issue in Commercial Wharf E. Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123, 552 N.E.2d 66 (1990). The locus is identified as Lot 1 in that decision. Id. at 126-127, 552 N.E.2d 66.

      In 1997, a developer, in order to reconstruct and expand the marina facilities at the locus, sought and obtained a variance and conditional use permit from the Boston board of appeal. The decision granting the permit provided that "[s]ix parking spaces will be provided on the pier for transient and employee parking related to marina services." The permit itself is not in the record. The judge treated the six-parking-space provision as binding.

      The 2003 agreement incorporated several documents and was amended in 2005. For convenience we refer to these documents collectively as the 2003 agreement.

      See 310 Code Mass. Regs. § 9.23 (1996) ("a valid [c. 91] license shall run with the land").

      Condition 3 provides in part that "[a]ny change in use ... of any structure ... authorized herein shall require the issuance by the [d]epartment of a new [w]aterways [l]icense.... Any unauthorized substantial change in use ... shall render this [w]aterways [l]icense void." See G. L. c. 91, § 18. Condition 4 provides in part that the license "shall be revocable by the [d]epartment for noncompliance with the terms and conditions set forth herein." See id. §§ 15, 18.

      Condition 9 provides in part that, because the license authorizes structures on "Commonwealth [t]idelands," the licensee "shall not restrict the public's right to use and pass freely, for any lawful purpose, upon lands lying seaward of the low water mark. Said lands are held in trust by the Commonwealth for the benefit of the public.... No restriction on the exercise of these public rights shall be imposed unless otherwise expressly provided in this license." See G. L. c. 91, § 1.

      Condition 6 provides that nothing in the license "shall be construed as authorizing encroachment in, on, or over property not owned or controlled by the [l]icensee, except with the written consent of the owner or owners thereof." See G. L. c. 91, § 15. The license also states: "Nothing in this license shall be so construed as to impair the legal rights of any person." See id. § 17.

      The judge's conclusion on the merits that the restrictions did not interfere with public trust rights was not expressly incorporated in the judgment. Accordingly, although we reject Boston Boat's claim at the threshold rather than on the merits, no amendment to the judgment is necessary.

      The court has noted, however, that c. 91, "the Waterways Act[,] is not necessarily coextensive with the public trust doctrine"; "certain aspects of the Legislature's public trust authority may not be contained in the Waterways Act and, indeed, may never have been recodified" since the colonial era. Arno, 457 Mass. at 454 n.22, 931 N.E.2d 1, citing Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 634-635, 393 N.E.2d 356 (1979).

      In response to the Moot I decision, the Legislature amended c. 91 to provide, among other things, that "[n]o license shall be required under this chapter for fill on landlocked tidelands, or for uses or structures within landlocked tidelands." G. L. c. 91, § 18, as amended by St. 2007, c. 168, § 6. The court upheld the validity of this amendment in Moot II, 456 Mass. at 314, 923 N.E.2d 81.

      There is nothing to the contrary in Maslow v. O'Connor, 93 Mass. App. Ct. 112, 99 N.E.3d 814 (2018), where we held that the rights of certain property owners to use a preexisting easement to travel the full length of a private way ending in tidelands were not impaired by a c. 91 license authorizing abutters to deposit fill at the end of the way. Id. at 117-118, 99 N.E.3d 814. The license itself disclaimed any such effect on private rights. Id. at 116, 99 N.E.3d 814. Here, in contrast, Boston Boat seeks to use the public trust doctrine embodied in c. 91 as a weapon to invalidate CWECA's private rights.

      This standard applies regardless whether the licensed use is "water-dependent," a point on which the parties differ. Other standards and procedures vary according to whether the use is water-dependent. See G. L. c. 91, § 14 (water-dependent uses); id. § 18 (nonwater-dependent uses).

      That the department may lack authority under c. 91 to adjudicate competing private property claims, see Tindley v. Department of Envtl. Quality Engr., 10 Mass. App. Ct. 623, 625-626, 411 N.E.2d 187 (1980), does not mean the department lacks authority to determine whether a private property right, particularly one created after issuance of a c. 91 license, is inconsistent with and may affect the status of that license. The locus here occupies "Commonwealth tidelands," defined in part as tidelands "held by another party by license or grant of the commonwealth subject to an express or implied condition subsequent that it be used for a public purpose." G. L. c. 91, § 1. See note 11, supra.

      Boston Boat has framed its argument in the alternative as a claim that, because the 2003 agreement infringed upon public trust rights, the developer and CWECA had no authority to enter into the 2003 agreement without the approval of the Commonwealth. Because the question of such infringement has yet to be determined, and because we hold that Boston Boat cannot ask a court to determine the question in the first instance, we do not discuss the argument further.

      Because the only contempt sanction the judge ordered was an award of CWECA's attorney's fees, and CWECA did not submit a request documenting those fees in the three months between Boston Boat's filing of a notice of appeal and the entry of the appeal in this court, no final contempt judgment has entered. We nevertheless exercise our discretion to reach Boston Boat's appeal of the contempt finding, because "[d]ismissal of the appeal would serve no purpose and might require the parties to return to reargue issues already briefed and argued." Arch Medical Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 405 n.3, 589 N.E.2d 1251 (1992).

      Boston Boat mistakenly cites to the now-superseded "clear and undoubted disobedience of a clear and unequivocal command" (emphasis added) standard that Birchall expressly rejected. Birchall, 454 Mass. at 852-853, 913 N.E.2d 799. Birchall not only raised the standard of proof from a preponderance of the evidence to clear and convincing evidence, it also discarded the "clear and undoubted disobedience" standard, thus "clarif[ying] that the disobedience must be clear, but need not be beyond doubt." Id. at 853, 913 N.E.2d 799.

      We therefore need not decide whether the judge was correct in ruling that Boston Boat was in privity with the prior owners.

      "Judicial estoppel bars a party from asserting a position directly inconsistent with, meaning mutually exclusive of, the position asserted in a prior proceeding where the party convinced the court to accept its prior position." Bay State Gas Co. v. Department of Pub. Utils., 459 Mass. 807, 818, 947 N.E.2d 1077 (2011).


source: Caselaw Access Project

author: ENGLANDER, J.

license: Public Domain

text:
    COMMONWEALTH v. Johnny COLON.
    No. 17-P-1091.
    Appeals Court of Massachusetts, Plymouth..
    Argued April 13, 2018 Decided July 12, 2018
    Michelle A. Dame, Springfield, for the defendant.
    Dan A. Jimenez, Assistant District Attorney, for the Commonwealth.
    Present: Green, C.J., Desmond, & Englander, JJ.
   ENGLANDER, J.

The defendant challenges the sufficiency of the evidence to convict him of indecent assault and battery on a child under fourteen, where he hugged the victim for a prolonged time while extensively licking in and around her ear. We hold that the evidence, in context, was sufficient to support the conviction, and that the criminal offense of indecent assault and battery on a child under fourteen is not unconstitutionally vague as applied to the facts here.

Background. We recite the facts in the light most favorable to the Commonwealth. The defendant and the victim met for the first time at a family barbecue on September 6, 2015. The defendant was fifty-eight years old at the time; the victim, thirteen. The family relationship was distant; the defendant was the brother of a relative of the victim's stepfather. There were twelve to fifteen people at the barbecue.

Sometime during the barbecue the victim was introduced to the defendant; the victim testified that during the barbecue the defendant was looking at her in a way that made her "uncomfortable." As the barbecue was winding down, the victim went to leave and encountered the defendant in a doorway. The defendant put his arms out for a hug; no one else was present, as the remaining guests were in another room at the time. The victim hugged the defendant. The defendant then pulled the victim to him, "right on his chest," and "wouldn't let [the victim] go." The defendant then began licking the victim's ear, including licking all around her three ear piercings, and inserting his tongue in her ear. The victim tried to get away, but the defendant held on. The hugging and ear licking went on for a prolonged period; the victim testified, "I honestly don't know [the] exact time, but it felt like forever." When another of the victim's relatives came in the vicinity and called her name, the defendant pushed the victim away and she left.

The trial was jury-waived. The judge convicted the defendant of indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B ; as to this charge the defendant was sentenced to two and one-half years in the house of correction, with ninety days to serve, the balance suspended for two years' probation.

On appeal, the defendant raises two issues: first, that the evidence of ear licking and hugging was insufficient to constitute indecent assault and battery as a matter of law, and second, that the term "indecent" in the criminal statute is not sufficiently defined and therefore is unconstitutionally vague.

Discussion. a. Sufficiency of the evidence. As to the defendant's first argument, we review a challenge to sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979) (quotation omitted).

To sustain a conviction of indecent assault and battery on a child, the Commonwealth must prove "that (1) the child was not yet fourteen years old at the time of the offense, (2) the defendant intentionally touched the child without legal justification or excuse, and (3) the touching was indecent." Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 138, 99 N.E.3d 827 (2018). See G. L. c. 265, § 13B. There is no issue on appeal as to the sufficiency of the evidence on the first two elements. Rather, the question on appeal is whether, on these facts, the evidence was sufficient to establish that the unwanted touching by the defendant was "indecent."

Several of our cases have addressed the question of what conduct constitutes "indecent"

assault and battery. We have stated that "the intentional, unjustified touching of private areas such as the breasts, abdomen, buttocks, thighs, and pubic area of a female constitutes an indecent assault and battery." Commonwealth v. Mosby, 30 Mass. App. Ct. 181, 184, 567 N.E.2d 939 (1991) (quotation omitted). These areas have been classified as "sexual parts." Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625, 818 N.E.2d 621 (2004). But this list "is not intended to be exhaustive," and our cases have held that the unjustified touching of other areas of the body may also qualify as indecent, depending upon context. Ibid. The mouth, in particular, has been recognized as an "intimate" body part, and we have held that the insertion of a tongue during a kiss, Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 565-567, 772 N.E.2d 1093 (2002), and the insertion of fingers into the mouth coupled with sexual commentary, can constitute indecency. Rosa, 62 Mass. App. Ct. at 624-626, 818 N.E.2d 621.

In an effort to define an "indecent touching" more generally, we have said that it is a touching that is "fundamentally offensive to contemporary moral values," Mosby, 30 Mass. App. Ct. at 184, 567 N.E.2d 939 (quotation omitted), and that "society would regard as immodest and improper because of its sexual overtones ...." Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 779, 716 N.E.2d 659 (1999). See Commonwealth v. Miozza, 67 Mass. App. Ct. 567, 572, 854 N.E.2d 1258 (2006). The test is an objective one, see Castillo, 55 Mass. App. Ct. at 565, 772 N.E.2d 1093, and our cases have set forth several other guideposts for consideration, to wit: whether there is a disparity in age and sophistication between assaulter and victim; whether there is an existing relationship between them; and, whether there is evidence of surreptitious behavior or the use of force. See id. at 567, 772 N.E.2d 1093 ; Cruz, 93 Mass. App. Ct. at 139, 99 N.E.3d 827. These guideposts can help to separate conduct that is objectively offensive and sexual from conduct that may in fact be innocent.

Applying these standards, we have no difficulty concluding that there was sufficient evidence of an indecent assault and battery here. While ears may not be on the list of "sexual parts," they are intimate enough so that the insertion of a tongue into an ear can reasonably qualify as "indecent." Indeed, here it is very difficult to credit any suggestion that the conduct was not sexual in nature -- unlike a hug or a kiss, an extended ear licking is not normal behavior between persons who are not intimate. And of course, here the evidence of context adds greatly to the calculus. The age disparity was substantial - - fifty-eight to thirteen. The location of the contact was sufficiently separate from the others at the barbecue that it could be found to be surreptitious -- particularly where the defendant broke off his conduct as soon as another person was in the vicinity. This behavior tends to confirm not only that the conduct was improper, but that the defendant knew it was. See Rosa, 62 Mass. App. Ct. at 626, 818 N.E.2d 621. Importantly as well, there was an element of force used here -- the victim testified that she tried to break away, but the defendant would not let go. There was more than sufficient evidence for the judge to find "indecency."

b. Vagueness. The defendant argues, alternatively, that "indecent assault and battery," as defined under G. L. c. 265, § 13B, is unconstitutionally vague, because "persons of common intelligence must necessarily guess at its meaning." Commonwealth v. Quinn, 439 Mass. 492, 499, 789 N.E.2d 138 (2003) (quotation omitted). The defendant urges that "based on how the statute has previously been defined and interpreted," one would not know that licking an ear could qualify as "indecent."

We disagree. A statute is not unconstitutionally vague merely because its terms require judicial construction, or because "it requires a person to conform his conduct to an imprecise but comprehensible normative standard." Commonwealth v. Gallant, 373 Mass. 577, 580, 369 N.E.2d 707 (1977) (quotation omitted). The vagueness challenge is to the statute as applied to the defendant's facts. See id. at 581, 369 N.E.2d 707, quoting from United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) ("[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand"). Here, once again, we have no difficulty concluding that the defendant's conduct fell comfortably within those behaviors that are encompassed within the standards for "indecency" previously set forth in our cases -- because the conduct was "fundamentally offensive," and "immodest and improper because of its sexual overtones." Moreover, nothing in our prior cases suggests that the conduct at issue would not qualify as indecent. Under the above standards there is no material difference between the intentional insertion of a tongue into the victim's mouth in Castillo, and the defendant's intentional insertion of his tongue into the victim's ear, here.

Recently, in Commonwealth v. Cruz, 93 Mass. App. Ct. 136, 99 N.E.3d 827 (2018), we addressed facts that were not sufficient to constitute indecency. Those facts included a brief but tight hug, "like a hug [the victim's] parents would give her," a kiss on the neck, which in the victim's words was "not anything that necessarily alarmed her," and the slight lifting of a corner of the victim's shirt, but without exposing or touching of skin. Id. at 137, 99 N.E.3d 827. While the majority and concurring opinions in Cruz help to further define the boundaries of indecent assault, the facts here are plainly distinguishable from Cruz. This case does not involve a parental-like hug and a brief kiss on the neck; it involves a forced hug that "felt like forever," coupled with the licking of an ear, and the insertion of a tongue "over and over again." See id. at 137-139, 99 N.E.3d 827. There is nothing unconstitutionally vague about the term "indecent" as applied to these facts.

Judgments affirmed.

      The defendant was additionally charged and convicted of assault and battery; the defendant raises no challenge to that conviction.

      Indeed, the defendant's conduct was "overtly sexual based upon objective standards," and thus would satisfy the standard proposed in the concurring opinion in Cruz. See id. at 144, 99 N.E.3d 827.


author: LEMIRE, J.

text:
    COMMONWEALTH v. Jonathan W. KARDAS.
    No. 17-P-714.
    Appeals Court of Massachusetts, Suffolk..
    Argued May 1, 2018 Decided July 20, 2018
    Colby Tilley, Assistant District Attorney, for the Commonwealth.
    Max Bauer, Boston, for the defendant.
    Present: Kinder, Lemire, & McDonough, JJ.
   LEMIRE, J.

This is an appeal by the Commonwealth from the sua sponte dismissal of a complaint for trespass issued from the Dorchester Division of the Boston Municipal Court (BMC). When the defendant failed to appear for the first pretrial conference on September 21, 2016, the judge asked the prosecutor for the facts of the case. The prosecutor summarized the police report, which indicated the charge was brought on July 15, 2016, after the homeless defendant refused to vacate his friend's residence where he had been staying temporarily. Upon hearing these facts, the judge dismissed the complaint, over the Commonwealth's objection, because the defendant had not "been in any new trouble" in the two months since the incident.

More than seven months after the dismissal, the Commonwealth submitted a motion to file a late notice of appeal to the single justice of this court; the motion was granted, and the defendant did not appeal therefrom. The Commonwealth argues on appeal that the BMC judge exceeded her constitutional authority when she dismissed the complaint. Rather than submitting a brief, the defendant has taken the unusual step of filing a motion to dismiss the appeal on grounds that the single justice abused his discretion when he allowed the Commonwealth's motion to file a late notice of appeal. We address the propriety of filing a motion to dismiss in the first instance in this court before turning to the merits of the Commonwealth's appeal.

1. Motion to dismiss. In its broadest terms, an appeal is "a legal proceeding by which a case is brought from a lower to a higher court for rehearing." Webster's Third New International Dictionary 103 (2002). To ensure that the appellate process is undertaken with due regard to fairness and the efficient administration of justice, certain guiding principles and procedures have been set in place. See generally Massachusetts Rules of Appellate Procedure; Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 378, 330 N.E.2d 488 (1975) ("The purpose of the Massachusetts Rules of Appellate Procedure is to simplify and expedite appellate procedure"). While these principles clearly encompass the ability to obtain review of an "action of a single justice" in an appellate court, Mass.R.A.P. 15(c), 365 Mass. 859 (1974), they also set forth specific requirements for perfecting that or any appeal.

An aggrieved party must first file a notice of appeal in the court in which the order or judgment was entered and from which an appeal is being taken. See Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979) ("An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by [ Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999) ]"); Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501 (1996) (requiring notice of appeal to be filed in trial court before pursuing interlocutory appeal); Commonwealth v. Cowie, 404 Mass. 119, 119-120, 533 N.E.2d 1329 (1989) (failure to file notice of appeal results in loss of right to direct appeal).

An appeal from an order of the single justice is no different. Our rule 2:02 provides that the litigant must proceed in "the same manner as if the single justice were the 'lower court' within the meaning" of the Massachusetts Rules of Appellate Procedure. In other words, a litigant must comply with the Massachusetts Rules of Appellate Procedure, which require the filing of a notice of appeal in the court in which the order or judgment appealed from was entered. See Mass.R.A.P. 3(a). Although there is a notation in rule 2:02 that it is "[a]pplicable to civil cases," rule 2:02 is instructive in criminal cases; its application to criminal cases is consistent with the pervasive requirement that a civil or criminal appeal must proceed from a timely filed notice of appeal.

In this case, the sole issue raised in the defendant's motion to dismiss concerns the single justice's conclusion that good cause justified the Commonwealth's delay in filing its notice of appeal. To challenge that decision, the defendant should have commenced an appeal by filing a notice of appeal. Because he did not do so, his challenge to the order of the single justice is not properly before this court. See Cowie, 404 Mass. at 119-120, 533 N.E.2d 1329 (direct appeal not permitted where notice of appeal not filed within permitted time period); Commonwealth v. Burns, 43 Mass. App. Ct. 263, 266, 683 N.E.2d 284 (1997) (appeal dismissed because notice of appeal was filed fourteen months late, which exceeds one-year time period in which this court can extend time for filing notice of appeal). See also Commonwealth v. Jordan, 469 Mass. 134, 148-149, 12 N.E.3d 371 (2014) (single justice must resolve any issues related to timeliness of notice of appeal before ruling on substance of application seeking interlocutory appeal).

The defendant attempts to avoid this result by arguing that in Commonwealth v. Linhares, 80 Mass. App. Ct. 819, 957 N.E.2d 243 (2011), we provided an alternative mechanism for obtaining review, namely by filing a motion to dismiss the appeal directly in the appellate court. The defendant's interpretation paints the discussion in Linhares with too broad a brush.

In Linhares, the Commonwealth filed a notice of appeal in the trial court twenty days late, together with a motion for leave to extend the time to file an appeal. Id. at 821-822, 957 N.E.2d 243. After the trial judge allowed the motion to file a late notice of appeal, the defendant moved for reconsideration on grounds that the Commonwealth had not established excusable neglect; the judge denied the defendant's motion. Id. at 822, 957 N.E.2d 243. "[T]he defendant did not appeal from the judge's allowance of the motion to file a late notice of appeal or from the denial of his motion for reconsideration; he also did not file a cross appeal or move to dismiss the appeal" (emphasis added). Ibid.

Nevertheless, the defendant in Linhares argued on appeal "that the judge abused his discretion when he allowed the Commonwealth's motion to file a late notice of appeal." Ibid. The defendant conceded that he had not taken any of the steps outlined above to pursue his appeal from the allowance of the Commonwealth's motion to file a late notice of appeal, but claimed "that a challenge to the lateness of an appeal is jurisdictional, and that such a challenge is appropriate at any stage of the proceeding." Ibid. We rejected the defendant's characterization of his claim as jurisdictional and ruled that because he had not "properly appealed from the order allowing the motion to file a late notice of appeal or moved to dismiss the appeal, ... the matter [was] not properly before us." Id. at 822-823, 957 N.E.2d 243.

We note that the circumstances in Linhares, in which we mentioned a motion to dismiss as an avenue for challenging a trial judge's order, may be readily distinguished from those present here. Because the notice of appeal filed in Linhares was only twenty days late, the deadline could be enlarged by the trial judge upon a showing of excusable neglect. See Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2001); Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979). Thus, the timeliness of the notice of appeal could be and was litigated in the trial court. In this setting, our inclusion in Linhares of a motion to dismiss as a method available to the defendant to challenge a ruling of the trial judge was appropriate, because motions to dismiss are part of the everyday lexicon of the trial court, which is not true in an appellate court.

Here, because the notice of appeal was filed seven months late, only an appellate court or a single justice thereof was permitted to extend the time (but not beyond one year from the date the judgment or order being appealed from was entered in the trial court). See Burns, 43 Mass. App. Ct. at 265, 683 N.E.2d 284 ; Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Rule 15(c) of the Massachusetts Rules of Appellate Procedure, 365 Mass. 859 (1974), states that "a single justice may not dismiss ... an appeal," thus plainly prohibiting the application of the "motion to dismiss" language in Linhares to a single justice matter. Moreover, because the function of an appellate court is to review trial court actions, we do not view it as an appropriate venue in which to file a motion to dismiss challenging the exercise of discretion by a trial judge. See Commonwealth v. Zannino, 17 Mass. App. Ct. 73, 75, 455 N.E.2d 1221 (1983) (discussing review of motion to dismiss). For these reasons, we consider the mention of a motion to dismiss in Linhares as limited to the situation presented therein, namely where the notice of appeal is not more than thirty days late and its timeliness can still be addressed in the trial court, together with any related motion to dismiss.

Here, because the defendant challenges the single justice's exercise of discretion, rather than raising an issue that bars the appeal from going forward, a motion to dismiss is inappropriate. The defendant should have challenged the single justice's order allowing the Commonwealth's late notice of appeal by filing an appeal therefrom, and his failure to do so is fatal to his claim.

2. Commonwealth's appeal. Next, we consider whether the BMC judge was permitted to dismiss a complaint over the Commonwealth's objection. "In the context of criminal prosecutions, the executive power affords prosecutors wide discretion in deciding whether to prosecute a particular defendant, and that discretion is exclusive to them." Commonwealth v. Cheney, 440 Mass. 568, 574, 800 N.E.2d 309 (2003). "Judicial review of decisions which are within the executive discretion of the [prosecutor] would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights." Shepard v. Attorney Gen., 409 Mass. 398, 401, 567 N.E.2d 187 (1991) (quotation omitted). "Thus, when a judge, '[w]ithout any legal basis ... preempt[s] the Commonwealth's presentation of its case [t]hat action effectively usurp[s] the decision-making authority constitutionally allocated to the executive branch.' " Cheney, 440 Mass. at 574, 800 N.E.2d 309, quoting from Commonwealth v. Gordon, 410 Mass. 498, 501, 574 N.E.2d 974 (1991). "Pretrial dismissal, over the Commonwealth's objection, of a valid complaint or indictment before a verdict, finding, or plea, and without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint or indictment." Commonwealth v. Pellegrini, 414 Mass. 402, 404, 608 N.E.2d 717 (1993). "[T]he decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention." Gordon, 410 Mass. at 500, 574 N.E.2d 974.

In this case, the judge appeared to dismiss the complaint against the defendant because she did not believe it was a case that should be prosecuted. This belief is not a sound basis upon which to dismiss the complaint. See Commonwealth v. Morgan, 476 Mass. 768, 780, 73 N.E.3d 762 (2017) ("In the absence of a legal basis to do so, it is well established that a judge may not dismiss a valid complaint over the Commonwealth's objection"). In addition, the defendant did not file a motion under Mass.R.Crim.P. 13(c), as appearing in 442 Mass. 1516 (2004), or under any other rule, asserting any ground for dismissal, and the judge did not identify any legal ground for dismissing the complaint. Absent a legitimate basis that appears from the record, that is sanctioned by statute or rule, and that does not run afoul of constitutional principles, the decision regarding whether the prosecution of the defendant is a wise use of prosecutorial discretion belongs to the executive branch alone, and the judge erred in usurping that authority. See and contrast Morgan, 476 Mass. at 776-781, 73 N.E.3d 762.

Order dismissing complaint reversed.

      The Commonwealth was appealing from the judge's allowance of a motion for a required finding of not guilty after the discharge of the jury. Linhares, 80 Mass. App. Ct. at 821, 957 N.E.2d 243.

      We note that "[a]ny party adversely affected by [an action of the single justice] may request reconsideration, vacation, or modification of such action." Mass.R.A.P. 15(b), 365 Mass. 859 (1974).

      In Linhares, the defendant argued that his challenge to the allowance of the late notice of appeal was jurisdictional, and could be raised at any time. Linhares, 80 Mass. App. Ct. at 822-823, 957 N.E.2d 243. Issues that are jurisdictional in nature or involve a procedural bar present the fairly rare situation in which a motion to dismiss is indeed an appropriate vehicle by which to bring the matter to the attention of either the trial or appellate court. For example, when there is no relevant case law or rule that permits the late appeal or when no notice of appeal has been filed, a motion to dismiss may properly be entertained on appeal. See Burns, 43 Mass. App. Ct. at 265-266, 683 N.E.2d 284.

      Article 30 of the Massachusetts Declaration of Rights provides, "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."


author: AGNES, J.

text:
    COMMONWEALTH v. Leonides BONES.
    No. 14-P-1169
    Appeals Court of Massachusetts, Suffolk..
    Argued September 14, 2017 Decided August 3, 2018
    Brad P. Bennion, Boston, for the defendant.
    Darcy A. Jordan, Assistant District Attorney (Patrick R. Mulligan, Assistant District Attorney, also present) for the Commonwealth.
    Present: Wolohojian, Agnes, & Wendlandt, JJ.
   AGNES, J.

This is an appeal by the defendant, Leonides Bones, from his conviction, after a trial by jury, of possession of a class A controlled substance with intent to distribute, see G. L. c. 94C, § 34, and, following a subsequent jury-waived trial conducted in accordance with G. L. c. 278, § 11A, of being a second or subsequent offender. The defendant argues that his motion to suppress was improperly denied because the police were not justified in stopping him on a public sidewalk for drinking an alcoholic beverage as that conduct is not a criminal violation under State or local law. The defendant further argues that even if the motion to suppress was properly denied, there was insufficient evidence presented at trial to permit the jury to infer that he intended to distribute the heroin found on his person. Finally, the defendant also appeals the order denying his motion for a new trial arguing that his motion was improperly denied. For the reasons set forth below, we affirm.

The relevant facts are set forth in connection with each of the defendant's several arguments.

Discussion. 1. Motion to suppress. The defendant does not take issue with the facts found by the motion judge, which are supported by the evidence.

On April 4, 2012, Sergeant Brian Dunn, then a patrolman with the Chelsea police department, was in uniform and operating a marked cruiser when he responded to a call from a party reporting possible drug activity. The caller reported that the offender was a black male wearing a white T-shirt, shorts, and a hat. On Division Street, in the vicinity of Bellingham Square, Sergeant Dunn observed a black male matching the caller's description. From prior encounters, Sergeant Dunn recognized the man as the defendant. Sergeant Dunn observed the defendant "drinking out of a nip type bottle of alcohol" while he was walking down the sidewalk. Sergeant Dunn stopped his cruiser and got out to speak with the defendant. After seeing Sergeant Dunn approach, the defendant said, "I'm sorry, I didn't see you. I'll dump it out," and began dumping contents of the bottle of alcohol onto the sidewalk. Sergeant Dunn did not order the defendant to stop drinking the alcohol or make any other show of authority. Sergeant Dunn testified without objection that "drinking alcohol in public is an arrestable offense in the [c]ity of Chelsea." He then detained the defendant to see whether he had any active warrants. After determining that the defendant did have an active warrant for his arrest, Sergeant Dunn and other officers who had arrived on scene arrested the defendant on the warrant and transported him to Chelsea police headquarters.

At the police station, the officers conducted an inventory of the defendant's personal property. The defendant had $209 on his person. The currency was separated into bundles of small denominations "like a stack of [fifteen dollars], a stack of [twenty dollars], a stack of [fifteen dollars], like that in each pocket." Sergeant Dunn testified that he had seen United States currency bundled like that in the past "and it's usually that way when it's involved in drug activity." In accordance with departmental policy, the officers removed the defendant's shoes and took his belt before he was placed in a cell. The officers noticed a bulge protruding from the defendant's sock; when asked what it was, the defendant removed his sock and threw it to the floor. In his sock, the police found a large plastic bag filled with fifteen individually wrapped smaller bags of heroin.

The defendant's argument on appeal is that Sergeant Dunn was not justified in detaining him to check for warrants because drinking in public is not a crime under either the General Laws of the Commonwealth or the ordinances of the city of Chelsea. The defendant relies for support on a document that appears in an addendum to his brief on appeal, which he describes as the pertinent city of Chelsea ordinance. The same material appears in the Commonwealth's brief on appeal. A copy of the city of Chelsea ordinance was not offered in evidence during the hearing on the motion to suppress.

The defendant's argument fails for several reasons. First and foremost, the defendant overlooks the testimony by Sergeant Dunn, credited by the judge, that drinking an alcoholic beverage on the street or a sidewalk in the city of Chelsea is a criminal offense. In Massachusetts, the contents of a municipal bylaw or ordinance may be proved by oral testimony. See Commonwealth v. Rushin, 56 Mass. App. Ct. 515, 518 & n.6, 778 N.E.2d 982 (2002) (officer's testimony that defendant's drinking can of beer while sitting in car violated city ordinance was sufficient to prove contents of municipal law). Contrast Commonwealth v. Perretti, 20 Mass. App. Ct. 36, 40, 477 N.E.2d 1061 (1985) (criminal conviction for violating municipal ordinance proscribing "peeping and spying" was invalid because there was no evidence of contents of ordinance either in oral or documentary form). Here, Sergeant Dunn testified without objection that in the city of Chelsea, drinking alcohol in public is an arrestable offense. See G. L. c. 272, § 59, as appearing in St. 1981, c. 629 (providing that person who, in public, willfully violates ordinance "the substance of which is the drinking or possession of alcoholic beverage," is subject to arrest). See also Commonwealth v. Jones, 83 Mass. App. Ct. 296, 296 n.1, 983 N.E.2d 253 (2013). The detention of the defendant for purposes of conducting a check for active warrants therefore was valid, because Sergeant Dunn had probable cause to arrest the defendant for violating the ordinance prior to his detention. See Commonwealth v. Charros, 443 Mass. 752, 765, 824 N.E.2d 809 (2005). Accordingly, Sergeant Dunn's subsequent arrest of the defendant based on an outstanding warrant was valid. For these reasons, the defendant's motion to suppress properly was denied.

While what has been said is sufficient to dispose of the defendant's argument that he was unlawfully detained before the police discovered there was an outstanding warrant for his arrest, we add this additional observation about municipal ordinances and bylaws. Courts are required to take judicial notice of the General Laws of the Commonwealth, statutes, and other public acts of the Legislature, the common law, rules of court, the Code of Massachusetts Regulations, and Federal statutes. Furthermore, courts will take judicial notice of the contents of Federal regulations, the laws of foreign jurisdictions, legislative history, and municipal charters and charter amendments when this material is called to their attention. See Mass. G. Evid. § 202(a)(1) & (2) (2018). However, the general rule here in Massachusetts is that in the absence of statutory authorization, a court will not take judicial notice of a municipal ordinance. E.g., Brodsky v. Fine, 263 Mass. 51, 54, 160 N.E. 335 (1928) ; Russell v. New Bedford, 74 Mass. App. Ct. 715, 722, 910 N.E.2d 404 (2009). See Mass. G. Evid. § 202(c) (2018).

The law has traditionally treated municipal ordinances as a "peculiar species of fact, requiring formal proof" because those materials tended to not be readily available to judges. 2 McCormick on Evidence § 335, at 334 (K.S. Broun ed., 7th ed. 2013). See, e.g., Passanessi v. C.J. Maney Co., 340 Mass. 599, 604, 165 N.E.2d 590 (1960) ; Peters v. Haymarket Leasing, 64 Mass. App. Ct. 767, 775 n.11, 835 N.E.2d 628 (2005). Ordinarily, the contents of a municipal ordinance or bylaw is proved by offering an attested copy of the same as an exhibit. See Mariano v. Building Inspector of Marlborough, 353 Mass. 663, 666, 233 N.E.2d 903 (1968), citing G. L. c. 233, § 75. At least one noted authority on the law of evidence has observed "that as these materials become more accessible, the tendency is toward permitting the judges to do what perhaps they should have done in the beginning, that is, to rely on the diligence of counsel to provide the necessary materials, and accordingly to take judicial notice of all law." 2 McCormick on Evidence, supra. We have noted that "reliable versions of municipal ordinances and by-laws now may be as generally accessible as statutes." Halbach v. Normandy Real Estate Partners, 90 Mass. App. Ct. 669, 675 n.5, 63 N.E.3d 388 (2016). The time may have come for the rule prohibiting judicial notice of municipal ordinance and bylaws to be revisited by the Supreme Judicial Court.

Even if we were to consider the material that both parties have included in their briefs and described as the city of Chelsea ordinance, it is not inconsistent with Sergeant Dunn's testimony that drinking in public is a criminal offense in Chelsea. The defendant misunderstands language in that material that provides a civil alternative to what otherwise would be a criminal violation. A municipal ordinance or bylaw that provides a criminal penalty for a violation by, for example, setting forth a schedule of fines, may also provide for a noncriminal, civil disposition of the violation. See G. L. c. 40, § 21D.

See also G. L. c. 277, § 70C.

The existence of an alternative civil process for the disposition of a violation of an ordinance or bylaw establishing criminal liability does not mean that the police cannot proceed with enforcement of the criminal sanction by subjecting violators to arrest pursuant to G. L. c. 272, § 59. See Commonwealth v. Weston W., 455 Mass. 24, 29, 913 N.E.2d 832 (2009). Contrast, G. L. c. 94C, § 32N (directing police departments to enforce G. L. c. 94C, § 32L [possession of less than one ounce of marijuana] in accordance with the noncriminal provisions of G. L. c. 40, § 21 ).

2. Sufficiency of the evidence. The defendant next argues that the evidence presented against him at trial was not sufficient to prove beyond a reasonable doubt that he intended to distribute the heroin found in his sock at booking. We disagree.

In reviewing the sufficiency of the evidence, the question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Intent is a factual matter that may be proved by circumstantial evidence." Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 731, 604 N.E.2d 1317 (1992), quoting from Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427, 475 N.E.2d 81 (1985).

Here, the defendant was found in possession of 1.49 grams of heroin. However, "[t]he fact that the amount of drugs seized was small does not, by itself, require a finding of not guilty to so much of the indictment as states 'intent to distribute.' A dealer's inventory of drugs may have been reduced before his arrest to a small amount by a number of sales." Ibid. A detective with the Chelsea police department provided expert testimony indicating that the manner in which the drugs were packaged -- fifteen individually wrapped plastic bags inside of a larger plastic bag -- was consistent with possession with an intent to distribute. See ibid. (ten glassine bags bundled by elastic band evidence of intent to distribute). Moreover, the detective testified without objection that in his experience, someone possessing drugs for personal use in Chelsea would typically have the drugs in a single bag and would also possess paraphernalia to use the drugs. The defendant was not found with any paraphernalia on his person that would allow him to inject or otherwise ingest the heroin. See Commonwealth v. Labitue, 49 Mass. App. Ct. 913, 914, 731 N.E.2d 114 (2000). The detective further described the area in which the defendant was arrested as a high drug activity area. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 178, 912 N.E.2d 525 (2009). Finally, the defendant was found with $209, $100 of which was located in his wallet, and $109 of which was located in his pocket and stacked in fifteen and twenty dollar denominations, which is consistent with the detective's testimony that each baggie of heroin possessed by the defendant had an approximate street value of twenty dollars. See Commonwealth v. Arias, 29 Mass. App. Ct. 613, 619 n.10, 563 N.E.2d 1379 (1990).

Based on the foregoing, the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that the defendant possessed the heroin with the intent to distribute and the defendant's motion for a required finding of not guilty was properly denied.

3. Motion for a new trial. The defendant argues that his motion for a new trial was improperly denied by the motion judge, who also presided over the defendant's trial.

A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), 365 Mass. 780 (1974). Our review of a decision to deny a motion for a new trial is limited to determining whether the motion judge "committed an abuse of discretion or a significant error of law." Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720, 80 N.E.3d 347 (2017), quoting from Commonwealth v. DeJesus, 468 Mass. 174, 178, 9 N.E.3d 789 (2014). We grant special deference to a judge's decision on a motion for a new trial where, as here, the motion judge also acted as the trial judge. See ibid.

a. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective for failing to introduce a Social Security letter indicating that he began receiving Social Security benefits in the amount of $993 per month in December, 2012, and other Social Security documents "show[ing] benefits to Mr. Bones over the years" as evidence of the defendant's income in an attempt to account for the money found on the defendant's person during booking.

A defendant complaining of ineffective assistance must establish (1) "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer ..." and (2) that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Here, the Commonwealth's argument in relation to the cash found on the defendant focused on the way in which the bills were folded in groups of fifteen or twenty dollars, suggestive of a series of individual transactions consistent with the testimony about the cost of an individual bag of heroin purchased on the street. The Commonwealth did not refer to the defendant's employment status, nor argue that due to being unemployed his possession of $209 in cash could not be explained other that by assuming it was the proceeds of illegal drug sales. Moreover, the prosecutor did not make any reference to the defendant's employment status in the Commonwealth's closing argument. Finally, the Social Security letter in the record before us does not cover the period during which the defendant was arrested, as the letter indicates that he began receiving Social Security benefits in December, 2012, and the defendant was arrested in April, 2012. The letter alone thus does not provide an alternative explanation as to how the defendant came to possess the money found on his person. While the defendant's trial counsel indicated in her affidavit that other Social Security records would have been helpful to the defendant had they been introduced in evidence, the defendant has failed to prove how the contents of those records would have been helpful to the defense, or to show that such records even exist. The motion judge did not abuse her discretion in finding that defense counsel was not ineffective for failing to submit in evidence documents concerning the defendant's receipt of Social Security benefits. b. Testifying chemist's credentials. The defendant further argues that his motion for a new trial should have been allowed on the basis that newly discovered evidence cast doubt on the defendant's conviction. The defendant argues that the testifying chemist falsely asserted at trial that she earned a bachelor's degree in chemistry, when she was in fact awarded a bachelor's degree in sociology.

"A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305, 491 N.E.2d 246 (1986). As the motion judge correctly found, even assuming that this is newly discovered evidence, see id. at 306, 491 N.E.2d 246 (newly discovered evidence is evidence not reasonably discoverable by defendant at time of trial), the information was, at best, impeachment evidence that does not rise to the level of requiring a new trial. See Commonwealth v. Simmons, 417 Mass. 60, 72, 627 N.E.2d 917 (1994) ("Newly discovered evidence that tends merely to impeach the testimony of a witness does not ordinarily warrant a new trial").

c. Commonwealth's closing argument. The defendant makes numerous arguments relating to the propriety of the Commonwealth's closing argument, all of which lack precision. Our understanding of the defendant's argument is that the defendant objects to the following: (1) the prosecutor's argument that it was unfair that the credibility of the testifying chemist and police officers was being undermined by Annie Dookhan's malfeasance, see Commonwealth v. Scott, 467 Mass. 336, 5 N.E.3d 530 (2014) ; (2) the prosecutor's statement that it is not the jury's job "to give anybody a break"; and (3) the prosecutor's statement that Dookhan's misconduct and its aftermath are "a chilling thing for our whole society."

As for the defendant's first argument, the prosecutor is entitled to base his argument on the evidence and the fair inferences drawn therefrom. See Commonwealth v. Kozec, 399 Mass. 514, 516, 505 N.E.2d 519 (1987). Here, the defendant attempted to undermine the validity of the drug certificate and the testimony of the Commonwealth's witnesses by referencing the misconduct of Dookhan. The prosecutor properly argued that the evidence elicited at trial indicated that Dookhan did not taint the drug samples admitted in evidence, and that the chemist reported Dookhan's misconduct to her supervisor. The Commonwealth's closing argument was proper in this respect, as it was based on the evidence admitted at trial and the fair inferences drawn therefrom. The defendant's second argument must also fail because the prosecutor was entitled to argue that the evidence showed that the defendant was guilty in spite of Dookan's misconduct and that the jurors have a duty to make a determination as to the defendant's guilt based on the admissible evidence before them. See Commonwealth v. Payton, 35 Mass. App. Ct. 586, 597-598, 623 N.E.2d 1127 (1993). Third, the prosecutor's statement that Dookhan's misconduct is a "chilling thing for our whole society" was best left unsaid, as it was arguably based on the prosecutor's knowledge of events outside of the record in this case. However, we do not believe that this statement prejudiced the defendant because, as the evidence showed, Dookhan was not involved in the testing of the drugs in this case. Furthermore, the judge gave a strong curative instruction indicating that the evidence about Dookhan and the Hinton Drug lab were properly admitted as relevant to the issues before the jury in response to defense counsel's objection to this statement. See Kozec, supra at 518, 505 N.E.2d 519. Finally, we note that the Commonwealth's closing argument, while critical of the defense mounted by the defendant, did not "constitute[ ] an overly aggressive response" to the defendant's challenging of the validity of the drug certificate and testimony of the chemist. Commonwealth v. Lopes, 478 Mass. 593, 607, 91 N.E.3d 1126 (2018).

Judgment affirmed.

Order denying motion for new trial affirmed.

      The jury also found the defendant guilty of possession of a class A controlled substance with intent to distribute in a school zone, see G. L. c. 94C, § 32J, but the judge ordered that a not guilty finding be entered as to that conviction after concluding that St. 2012, c. 192, § 30, which reduced the school zone area from 1,000 feet to 300 feet, was applicable.

      At oral argument, the defendant waived any challenge to the validity of the seizure of his sock at the police station. In view of the judge's finding that the defendant removed his sock and threw it to the cell floor when the police asked him about the bulge, the seizure did not constitute a search. See Commonwealth v. Battle , 365 Mass. 472, 475, 313 N.E.2d 554 (1974).

      For the national perspective, see 6 McQuillen, Municipal Corporations § 22.18 (3d ed. Supp. 2017) (collecting cases); 2 Wharton's Criminal Evidence § 5:34 (15th ed. Supp. 2017) (same); Jones on Evidence § 2:85 (7th ed. Supp. 2017) (same); 2 Sutherland, Statutory Construction § 39.5 (7th ed. & Supp. 2017-2018) (same).

      See, e.g., https://www.mass.gov/guides/massachusetts-city-and-town-ordinances-and-bylaws [https://perma.cc/K6BT-7XAB] (comprehensive collection of Massachusetts city and town ordinances and bylaws prepared by trial court law libraries).

      General Laws c. 40, § 21D, as amended by St. 1992, c. 133, § 370, provides, in pertinent part:
      "Any city or town may by ordinance or by-law not inconsistent with this section provide for non-criminal disposition of violations of any ordinance or by-law or any rule or regulation of any municipal officer, board or department the violation of which is subject to a specific penalty.
      "Any such ordinance or by-law shall provide that any person taking cognizance of a violation of a specific ordinance, by-law, rule or regulation which he is empowered to enforce, hereinafter referred to as the enforcing person, as an alternative to initiating criminal proceedings shall, or, if so provided in such ordinance or by-law, may, give to the offender a written notice to appear before the clerk of the district court having jurisdiction thereof at any time during office hours, not later than twenty-one days after the date of such notice.... Such notice shall be signed by the enforcing person, and shall be signed by the offender whenever practicable in acknowledgment that such notice has been received.
      "The enforcing person shall, if possible, deliver to the offender a copy of said notice at the time and place of the violation. If it is not possible to deliver a copy of said notice to the offender at the time and place of the violation, said copy shall be mailed or delivered by the enforcing person, or by his commanding officer or the head of his department or by any person authorized by such commanding officer, department or head to the offender's last known address, within fifteen days after said violation. Such notice as so mailed shall be deemed a sufficient notice, and a certificate of the person so mailing such notice that it has been mailed in accordance with this section shall be prima facie evidence thereof."

      General Laws c. 277, § 70C, as amended through St. 2005, c. 54, § 3, provides in part that "[u]pon oral motion by the commonwealth or the defendant at arraignment or pretrial conference, or upon the court's own motion at any time, the court may, unless the commonwealth objects, in writing, stating the reasons for such objection, treat a violation of a municipal ordinance, or by-law or a misdemeanor offense as a civil infraction." There are a series of criminal statutes listed in § 70C which are exempted from this alternative procedure.

      Because Sergeant Dunn had the authority to arrest the defendant for drinking alcohol in public in violation of the Chelsea city ordinance, the defendant's claim that trial counsel was ineffective for failing to discover that it was not an arrestable offense must fail. See Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 147, 879 N.E.2d 1261 (2008).

      A Chelsea police detective testified that the street value of the drugs at the time of the defendant's arrest was approximately $300.

      The defendant argued below that trial counsel was ineffective for failing to request a voir dire of the Chelsea police detective who testified as an expert witness at trial. The defendant concedes on appeal that a voir dire was in fact requested and held prior to the detective providing expert witness testimony. The defendant now attempts to argue that police witnesses should not be allowed to offer expert opinion testimony as to whether the drugs possessed by the defendant were consistent with an intent to distribute. There is no merit to the defendant's argument. See, e.g., Commonwealth v. Johnson, 410 Mass. 199, 202, 571 N.E.2d 623 (1991).

      The defendant provided both the motion judge and this court with transcripts from a motion hearing in a separate case involving the same chemist. Essentially, the chemist stated that she completed all the necessary degree requirements to earn a bachelor of science degree in chemistry, but, unbeknownst to her, the college she attended never awarded her the degree.

      During trial, defense counsel was permitted to offer evidence of Annie Dookhan's misconduct at the Hinton Drug lab, including testimony elicited during the recross-examination of the Commonwealth's expert indicating that the lab remained an active crime scene at the time of trial. The prosecutor was free to argue to the jury that Dookhan's misconduct had no bearing on the drug testing done in this case. However, insofar as the prosecutor's comments indicated to the jury that it simply should not consider the misconduct of Dookhan in the context of this case, the judge appropriately instructed the jury that the evidence was properly admitted and could be weighed and considered accordingly.