text:
    COMMONWEALTH v. James G. BELL.
    16-P-803
    Appeals Court of Massachusetts.
    Entered: April 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a District Court jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon on a family member (the defendant's brother). On appeal the defendant argues: (1) the judge's supplemental jury instruction on self-defense was erroneous, (2) the admission in evidence of prior convictions of the defendant was error, and (3) the evidence was insufficient to support the conviction. We affirm.

Background. The charges arose from events that occurred between the defendant and the victim on July 3, 2014, in the Mattapan section of Boston. Based on the evidence, the jury could have found that the defendant struck the victim in the back of the head and in the face with a blunt object. The victim's injuries included a fractured eye socket, and lacerations to the back of the head, the forehead, and the face under the right eye.

At trial, the defendant proceeded on a theory of self-defense, arguing that the victim was the first aggressor. After the defendant testified that he was "not a violent person" and that he did not have "histories of beating people up," the Commonwealth was allowed to impeach him with prior convictions.

Following the presentation of evidence and closing arguments, the judge provided detailed instructions to the jury. After approximately one hour of deliberation, the jury submitted three questions to the judge. The second question was: "[i]s lack of proportional response an element that would disqualify a self-defense argument?" In her supplemental instruction, the judge read the introductory paragraph and the deadly use of force section of the model jury instruction.

1. Jury instructions. The defendant argues that the judge committed reversible error when she provided the supplemental instruction on self-defense in response to the jury's question regarding proportionality. Where, as here, the defendant failed to object to the instruction at trial, we review the instruction to determine whether any error in the instruction creates a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

"The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998), quoting from Commonwealth v. Waite, 422 Mass. 792, 807 n.11 (1996). See Commonwealth v. Nelson, 468 Mass. 1, 16 (2014). Further, we must "judge the adequacy of a particular instruction not in isolation but in the context of the entire charge." Commonwealth v. Stokes, 440 Mass. 741, 750 (2004). Judges "need not repeat all or any part of the original instructions" when providing supplemental instructions. Ibid.

Here, the defendant does not challenge the original instructions but claims as error the judge's supplemental instruction provided after the jury question. The defendant contends the judge failed to include an instruction on the use of nondeadly force and failed to instruct the jury that the supplemental instruction should be considered no more or less than the other instructions. However, these omissions cannot be divorced from "the context of the whole charge." Commonwealth v. Carrion, 407 Mass. 263, 270 (1990). The judge specifically tailored her supplemental instruction to respond to a question posed by the jury, not to augment any earlier instructions regarding self-defense. The jury's question to the judge pertained to the proportionality of the response in considering self-defense and the judge's supplemental instruction was in direct response, providing clarity by providing the parameters for when deadly force can be used to defend oneself. The supplemental instruction did not replace the accurate and clear original instructions that the jury received, nor did it create confusion. See Commonwealth v. Sellon, 380 Mass. 220, 233-234 (1980).

Accordingly, we discern no error in the judge's supplemental instruction within the specific context and in light of the entire charge. We also discern no substantial risk of a miscarriage of justice.

2. Prior convictions. Next, the defendant argues that the judge abused her discretion in admitting his 2004 conviction for armed robbery, and his 1998-1999 convictions for assault and battery by means of a dangerous weapon, assault and battery, violation of a restraining order, and witness intimidation. The defendant argues that the prior convictions were admitted to show his alleged bad character and propensity toward violence, and constituted prejudicial error. We do not agree that the prior convictions were admitted for propensity purposes. Instead, they were offered for the narrow purposes of impeaching the defendant and rebutting the defendant's theory that the victim was the first aggressor.

Before the defendant testified, the prosecutor requested permission to impeach the defendant with prior convictions. After a hearing, the judge determined that the 2004 conviction for armed robbery could be admitted, but excluded all of the other prior convictions. However, the judge reserved the right to reconsider her ruling if "the door is opened" by the defendant.

We review a judge's decision allowing evidence of a defendant's prior convictions for impeachment purposes for an abuse of discretion. See Commonwealth v. Little, 453 Mass. 766, 772 (2009). Pursuant to G. L. c. 233, § 21, the prior convictions of a witness, including the defendant, are admissible for impeachment purposes. "Prior convictions may be introduced in the discretion of the judge, who weighs the danger of unfair prejudice that might result from the admission of such evidence against its probative value for impeachment purposes." Commonwealth v. Brown, 451 Mass. 200, 203 (2008). In determining whether the prejudicial effect outweighs the probative value, a judge considers the similarity between the offense being tried and the prior conviction. Ibid.

Here, the judge engaged in the required balancing test and determined that, while the other offenses were too similar, the 2004 armed robbery conviction could be used to impeach the defendant. Assuming the defendant's claim is preserved, we see no abuse of discretion.

While the judge initially excluded the 1998-1999 convictions, she reserved the right to revisit the issue "if [the defendant] were to present on the stand [and] say, I've never been convicted, I'm the type of person who's peace-loving and never been in trouble[,] then that opens the door." When the defendant testified that he was "not a violent person" and didn't have a history of "beating people up," the judge permitted the prosecutor to use the previously excluded convictions to rebut this specific portion of the defendant's testimony. See Commonwealth v. Roderick, 429 Mass. 271, 275 (1999). "Rebuttal evidence of this nature is introduced to impeach the credibility of the witness, but is of a different sort from evidence of prior convictions introduced to impeach the credibility of the defendant generally." Ibid. Here, the initial decision to exclude the evidence of the prior convictions did not provide the defendant leave to unfairly depict himself as a peaceful man who avoided fighting. Once he represented himself as such, the prosecutor was free to impeach the defendant's testimony with the evidence of the prior convictions. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 53-54 (2009).

Furthermore, as identity of the first aggressor was an issue in the case, the judge appropriately allowed evidence of the victim's prior violent acts, as well as the defendant's prior violent acts. See Commonwealth v. Adjutant, 443 Mass. 649, 660-664 (2005) ; Commonwealth v. Morales, 464 Mass. 302, 307-312 (2013). When prior violent acts evidence was introduced as to the defendant and the victim, the judge properly instructed the jury as to the purpose and limitations of such evidence, that is, for use only to evaluate the issue of first aggressor. This instruction was given three times over the course of the trial. The judge also provided similar instructions during her final charge. These instructions effectively limited any unfair prejudice to the defendant arising from admission of the evidence pertaining to the prior acts of violence. We therefore see no abuse of discretion by the judge.

3. Sufficiency of the evidence. The defendant argues that the judge erred in denying his motion for a required finding of not guilty. The defendant contends that the evidence was sufficient to establish that his actions were justified as he acted in self-defense. Further, he argues that there was insufficient evidence of use of a dangerous weapon.

The defendant's arguments are unpersuasive. The Commonwealth presented ample evidence at trial from which the jury could conclude that the defendant committed an assault and battery by means of a dangerous weapon on the victim. The victim testified that as he was walking away from the defendant, he was struck in the back of the head with a blunt object and when he turned around he was struck in the face multiple times with a blunt object. In reviewing the sufficiency of the evidence, we must look at the evidence in a light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "The jury are entitled to disbelieve the evidence that the defendant acted in self-defense." Commonwealth v. Fluker, 377 Mass. 123, 128 (1979). The fact "[t]hat contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty." Commonwealth v. Merry, 453 Mass. 653, 662 (2009). The victim's testimony that the defendant struck him repeatedly with a blunt object was sufficient to permit the jury to infer the use of a dangerous weapon. See Commonwealth v. Merola, 405 Mass. 529, 533 (1989) (Commonwealth need only present evidence that allows jury to infer essential facts). There was no error.

Judgment affirmed.

      The defendant only appeals from the supplemental instruction provided by the judge in response to question two.

      Counsel conceded at oral argument that there was no objection at trial to the issue being raised on appeal as to the supplemental charge.

      See Commonwealth v. Kerrigan, 370 Mass. 859, 859-860 (1976) (there was no abuse of discretion in permitting Commonwealth to impeach defendant with prior convictions, especially where he testified about convictions on direct examination).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Maurice R. PRIDGETT.
    17-P-963
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was arrested when he was sitting in the passenger seat of a stolen car. He was charged with receiving a stolen motor vehicle, subsequent offense, and receiving stolen property over $250 with respect to certain items found in the car. The defendant filed a motion to suppress the statements he made to a police officer after the arrest. That motion was allowed by a Boston Municipal Court judge. On the Commonwealth's interlocutory appeal, we affirm.

Background. The following facts were elicited at a hearing on the motion to suppress. On September 9, 2016, a police officer was patrolling the Mattapan section of Boston in his unmarked vehicle. On one of the streets, he noticed the defendant leaning against a car while speaking on a cellular telephone. After the officer checked the vehicle's license plate number against a database, he learned that the vehicle had been stolen, and he contacted a police dispatcher to confirm that. As the officer was waiting for the dispatcher's response, he saw the defendant open the front door of the car on the passenger side, toss something inside the vehicle, and then resume leaning against the vehicle. After observing the defendant enter the vehicle and sit in its front passenger seat, the officer told back-up patrol units to "move in" on the defendant, which they did.

Three uniformed patrol unit officers then removed the defendant from the car and placed him in handcuffs. Shortly after, the first officer approached and attempted to administer Miranda warnings. However, as the officer was giving the warnings, the defendant volunteered that he knew that the car had been stolen but that he had not stolen it. After the officer succeeded in completing the Miranda warnings, the defendant repeated his statements. In response to the officer's inquiry whether he would find the defendant's fingerprints on the vehicle's steering wheel, the defendant added that he had started the car in order to charge his telephone and turn on the air conditioner. The defendant also stated that a cellular telephone and a "tablet" device found in the car were his but might have been stolen because he bought them "on the street."

Arguing that the police lacked probable cause to arrest him and search the vehicle, the defendant moved to suppress the statements he made to police following those events. The judge allowed the motion and the Commonwealth appealed.

Discussion. As noted, the judge fully credited the testimony of the Commonwealth's sole witness, and there is no dispute as to the subsidiary facts. We "conduct an independent review of [the motion judge's] ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

We begin our review by examining the grounds on which the judge relied in allowing the defendant's motion. The judge stated that he was allowing it "due to the fact that the [patrol unit] officers seized and arrested the [d]efendant prior to [the first officer's] administering of the Miranda rights" (emphasis supplied). To the extent the judge meant the latter part of the statement to be taken literally, his referenced ground finds no support in the case law, as both parties acknowledge. Indeed, while there is no prohibition on giving Miranda warnings before a defendant is arrested, they are typically given after arrest.

At the same time, the judge's statement may simply have been a slip of the tongue, as the Commonwealth acknowledged at oral argument. It may well be that the actual reason the judge allowed the motion was the one argued by the defendant, namely that his arrest was unsupported by probable cause and that the statements he made must be suppressed as the fruit of the poisonous tree. See Commonwealth v. Lunden, 87 Mass. App. Ct. 823, 826 (2015), and cases cited. In either event, because we can affirm the judge's order on any grounds supported by the record and findings, see Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), we turn to whether the seizure of the defendant was lawful.

The Commonwealth correctly does not dispute that in the circumstances the patrol unit officers effected an arrest of the defendant, which required probable cause in order to be lawful. See Commonwealth v. Landry, 438 Mass. 206, 210 (2002). "[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). Here, it is uncontested that the defendant was arrested because he was believed to have committed the crime of receiving a stolen motor vehicle. See G. L. c. 266, § 28(a ). That offense requires proof of the following elements: "(1) the motor vehicle is stolen; (2) the defendant possessed the motor vehicle; and (3) the defendant knew that the motor vehicle was stolen." Commonwealth v. Aponte, 71 Mass. App. Ct. 758, 760 (2008) (quotation omitted). For the patrol officers to have probable cause to arrest the defendant, it must have been reasonable to believe, based on the facts and circumstances known to them and the first officer before the arrest, that these elements were satisfied.

As is uncontested, the police plainly had a solid basis for believing that the vehicle was stolen. Whether the police had a sufficient basis to believe that the defendant "possessed" the vehicle lies in at least some doubt. For purposes of G. L. c. 266, § 28(a ), we have interpreted possession as "the exercise of dominion and control over the motor vehicle." Commonwealth v. McArthur, 55 Mass. App. Ct. 596, 598 (2002). The Commonwealth's strongest evidence to support a belief that the defendant had exercised dominion and control over the vehicle is the fact that-in the absence of anyone else-he had taken various actions that could be viewed as "proprietary" (leaning on the car, opening its door, putting something into the car, and occupying a passenger seat). Although this evidence was marginal, we assume arguendo that it was sufficient to establish a reasonable basis for the police to believe that the defendant possessed the car.

With respect to knowledge that the vehicle has been stolen, we have long held, in the context of analyzing the sufficiency of evidence at trial, that possession alone is not enough to establish knowledge. See Commonwealth v. Johnson, 7 Mass. App. Ct. 191, 193 (1979) ("The defendant's presence as a passenger in the stolen car did not alone satisfy the statutory requirement of knowing possession of the vehicle ... , but his presence supplemented by other incriminating evidence justified submission of the issue to the jury"). See also Commonwealth v. Namey, 67 Mass. App. Ct. 94, 98-99 (2006) (jury could find that "the defendant possessed sufficient knowledge that the car in which he was seated was, in fact, stolen," where the car's ignition had been "popped" and the door lock on the front passenger side was absent or damaged).

On the record before us, the Commonwealth is unable to point to any evidence that the police had prior to the defendant's arrest that could support a reasonable belief that he was aware that the car had been stolen. Acknowledging that, the Commonwealth asks us to adopt a rule that-for purposes of assessing probable cause-police can infer a defendant's knowledge that a vehicle was stolen from his mere possession of it. Without foreclosing a possibility of drawing such an inference where there is robust proof that a defendant possessed a stolen vehicle, we decline to adopt that approach in this case, where proof of possession was marginal at best.

In sum, because the Commonwealth did not demonstrate that the police had probable cause to arrest the defendant, the statements he made subsequent to his arrest must be suppressed.

Order allowing motion to suppress statements affirmed.

      The motion judge made no written findings of fact, but he credited "in full" the testimony of the police officer who was the sole witness at the motion hearing.

      The officer testified that the car was not running at that time.

      The Commonwealth presented no evidence at the suppression hearing indicating that the detention and handcuffing of the defendant was justified on a lesser basis than probable cause, such as being within the scope of a lawful investigatory stop or reasonably necessary to ensure officer or public safety. See, e.g., Commonwealth v. Williams, 422 Mass. 111, 118-119 (1996).

      There is no evidence in the record as to when the vehicle was stolen. Compare Commonwealth v. Hunt, 50 Mass. App. Ct. 565, 569 n.2 (2000) ("[W]hen a defendant possesses property 'recently' stolen, that possession alone is a sufficient basis for the jury to infer that he knows it to be stolen").

      The Commonwealth has not argued that if the arrest was unlawful, the evidence at issue was not the fruit of the poisonous tree. In any event, we note that giving Miranda warnings to the defendant did not purge the taint of his illegal arrest, as administering Miranda warnings alone is insufficient attenuation when statements are made by a defendant following his or her unlawful arrest. See Commonwealth v. Damiano, 444 Mass. 444, 456 (2005).


text:
    COMMONWEALTH v. Jose R. MONTALVO.
    17-P-1071
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury trial, for driving while under the influence of intoxicating liquor, second offense, G. L. c. 90, § 24. We affirm.

"There are three elements to the crime of operating while under the influence under G. L. c. 90, § 24 : (1) operation of a vehicle, (2) on a public way, (3) while under the influence of alcohol." Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). In order to establish the third element, "the Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely." Commonwealth v. Connolly, 394 Mass. 169, 173, (1985). Proof of drunkenness is not required. See Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988). The defendant's sole argument on appeal is that there was insufficient evidence to prove beyond a reasonable doubt his diminished capacity to operate.

Viewed in the light most favorable to the Commonwealth, the evidence, together with the reasonable inferences to be drawn from it, permitted a rational juror to find the following. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). At approximately 3:00 P.M. on March 9, 2016, Officer Kurt Carpenter of the Granby police department was driving on State Street when he saw the defendant driving towards him almost entirely in the officer's lane. The defendant was waving out the window. The officer activated his lights, turned around and pursued the defendant's car. When the defendant did not stop, the officer activated his siren. Other cars pulled over to stop, but the defendant did not. Instead, he continued to drive, swerving, pulling around the stopped vehicles, and honking his horn at them. The defendant drove into a storm drain causing one of his rear tires to lose contact with the ground. Ultimately, the defendant stopped the car at a forty-five degree angle, half in grass and half on the road, with the rear bumper in the travel lane. The defendant's driving was erratic, unorthodox, and gravely hazardous. See Commonwealth v. O'Hara, 30 Mass. App. Ct. 608, 610 (1991) (defendant's driving irregularities were sufficient to give officer reason to believe defendant was operating while under influence of liquor). The evidence showed not only a diminished capacity to operate safely, but actual unsafe operation.

In addition, there was ample evidence of impairment by intoxication. The defendant was unable to produce his license or registration despite the fact that the registration was easily visible to the officer. The defendant's speech was slow, drawn out, difficult to understand, an odor of alcohol emanated from within the car, and there were empty beer bottles on the floor of the passenger side of the car. See Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924 (1999) (smell of alcohol and slurred speech supported finding of intoxication). A partially-consumed cold bottle of beer was behind the center console, and only four full bottles remained in two six-packs. The defendant's breath smelled of alcohol, and he had difficulty keeping his footing when he got out of the car. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994) (unsteadiness and smelling of alcohol are factors that may support inference of diminished capacity due to intoxication); Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 303 (2000) (erratic driving and unsteadiness while exiting car are evidence of intoxication); Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011) (poor balance and slurred speech are evidence of intoxication). When he was being transported to the station, the defendant admitted that he had drunk seven or eight beers. Given the evidence, it required no large leap for the jury to conclude that the defendant's intoxication was causally linked to his unsafe driving.

Judgment affirmed.

      The defendant was also charged with operating a motor vehicle with a suspended license, G. L. c. 90, § 23, and with the civil infractions of a marked lanes violation, G. L. c. 89, § 4A, and open container of alcohol, G. L. c. 90, § 24I.

      The defendant stipulated to operation and public way.


text:
    COMMONWEALTH v. Marcus AMOS.
    17-P-163
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Marcus Amos, appeals from the order denying his motion to withdraw his guilty pleas, arguing that he did not plead knowingly, intelligently, or voluntarily due to the ineffective assistance of his plea counsel. We affirm.

Background. In 2011, the defendant pleaded guilty to murder in the second degree and illegal possession of a firearm and of ammunition, in connection with the shooting death of the victim. At the time of his guilty pleas, the defendant signed a waiver of rights form, which he first reviewed with plea counsel. The plea judge conducted a thorough plea colloquy with the defendant before accepting his pleas.

Five years later, the defendant moved to withdraw his guilty pleas alleging that his plea counsel made a number of errors in advising him to plead guilty. Specifically, the defendant claimed his counsel failed to advise him (1) that the Commonwealth had to prove he was guilty beyond a reasonable doubt, (2) on the defenses of self-defense and defense of another, and (3) on the defense of lack of criminal responsibility. The defendant also claimed that his youth and inexperience with the court system made him vulnerable to pressure to plead guilty. Based on the evidence before him, the motion judge denied the defendant's motion without an evidentiary hearing.

Here, we address only the defendant's claim of ineffective assistance as it relates to plea counsel's admitted failure to discuss with his client a defense of another strategy. As to the other issues raised in the defendant's motion, we agree with the conclusions reached by the motion judge, largely for the reasons set forth in his comprehensive and thoughtful memorandum of decision.

Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b) [, as appearing in 435 Mass. 1501 (2001) ]." Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016), quoting from Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). "We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion." Ibid. (quotation omitted). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.' " Ibid., quoting from Commonwealth v. Scott, 467 Mass. 336, 344 (2014).

To prevail on a motion to withdraw guilty pleas claiming ineffective assistance of counsel, a defendant must show that (1) the "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer," and (2) counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Millien, 474 Mass. 417, 430 (2016), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Strickland v. Washington, 466 U.S. 668, 687 (1984). Here, we agree with the motion judge, who concluded that plea counsel was not ineffective because the evidence did not support a defense of another justification, and that rejecting the plea would not have been rational. See Commonwealth v. Clarke, 460 Mass. 30, 46, 47-49 (2011).

The defendant contends that he had an available, substantial ground of defense that in shooting the victim, he was defending his girl friend, Dana Schanke, who was the victim's former girl friend, from a possible deadly attack. The defendant asserts that had he learned from his lawyer that the defense of another justification was an available defense, rather than pleading guilty to murder in the second degree, he would have opted for trial on the charge of murder in the first degree. The motion judge determined, and we agree, that plea counsel's lack of advice on this defense did not fall measurably below that expected of an ordinary fallible lawyer.

"In the context of a guilty plea, in order to satisfy the 'prejudice' requirement, the defendant has the burden of establishing that 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Clarke, supra at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). See Commonwealth v. Roberts, 472 Mass. 355, 365 (2015). Additionally, the defendant must "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Clarke, supra, quoting from Padilla v. Kentucky, 559 U.S. 356, 372 (2010). To satisfy that standard, the defendant bears the "substantial burden" to show that "(1) he had an available, substantial ground of defence that would have been pursued if he had been correctly advised ...; [or] (2) there is a reasonable probability that a different plea bargain ... could have been negotiated at the time." Id. at 47 (quotations omitted). Here, the defendant met neither requirement.

First, as the motion judge found, the defendant failed to demonstrate he had an available, substantial ground of defense. The Commonwealth's case was strong. The defendant acknowledged during the plea colloquy that he intentionally shot the victim three times, causing his death. Had the defendant proceeded to trial he faced a very real possibility of a conviction of murder in the first degree with no potential for parole.

The recording of the entire incident, which the motion judge reviewed and which we have before us, shows how the incident unfolded. While Schanke and the victim appear to be engaged in a somewhat intense, animated discussion, we see nothing in the recording indicating a threat to Schanke. She testified before the grand jury that the victim was not yelling at her and that he never threatened her during the encounter. The defendant appears mostly to have stayed out of the conversation between Schanke and the victim. At one point, the defendant walks away and appears to lift up his shirt to reach for something, stopping when he notices a woman walking by with her dog. After this woman returns and walks back the other way, the defendant again walks away from the other two and appears to retrieve something from his waistband. He then walks back toward the victim and Schanke, and as the victim is removing his sweatshirt, the defendant shoots the victim who falls to the ground. Schanke is then seen trying to push the defendant away from the fallen victim, but the defendant, undeterred, manages to reach around Schanke and fire two more shots at the victim as he lay helpless on the ground.

The motion judge concluded, and we agree, that this unequivocal recorded evidence, combined with Schanke's anticipated testimony, completely undercuts a defense of another strategy. The defendant is correct that in making this assessment, we must view the circumstances from the perspective of the would-be intervening defendant, not the third party, and "whether the third party was, in retrospect, actually entitled to use self-defense is not a consideration." Commonwealth v. Young, 461 Mass. 198, 209 (2012). Nevertheless, the recorded evidence shows clearly that it was the defendant-not the victim-who introduced deadly force. Therefore, plea counsel's failure to discuss this defense, while concerning, was not a "serious incompetency." Clarke, supra.

Second, as the motion judge found, the defendant failed to show a reasonable probability of securing a more favorable plea bargain. The plea prosecutor recounts in her affidavit that the defendant's plea counsel lobbied her to reduce the murder charge to manslaughter. After consideration, the Commonwealth offered only to reduce the charge to murder in the second degree in exchange for the defendant's guilty plea. The motion judge found it unlikely that "this defendant [or] a rational person in the same circumstances would have declined the Commonwealth's offer." We agree, and therefore conclude that the motion judge committed no error of law, nor did he abuse his discretion in denying the defendant's motion to withdraw his guilty pleas.

Order denying motion to withdraw guilty pleas affirmed.

      On the murder conviction, the defendant was sentenced to a life term with the possibility of parole in fifteen years. On the possession of a firearm conviction, he was sentenced to three to five years, concurrent with the sentence on the murder conviction. On the possession of ammunition conviction, he was sentenced to two years in a house of correction, concurrent with the other sentences.

      "An actor is justified in using force against another to protect a third person when (a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself." Commonwealth v. Young, 461 Mass. 198, 208 (2012), quoting from Commonwealth v. Martin, 369 Mass. 640, 649 (1976).

      Schanke did testify that the victim threatened the defendant, saying, "Do you know who I am. I'll kill you."

      Police found by the victim's body an open knife with a two-and-one-half-inch blade. Forensic tests revealed traces of human blood on one side of the blade. There is no evidence that the victim held the knife at the time of the shooting.

      We note that while, on these facts, plea counsel's failure to discuss with the defendant the defense of another justification did not constitute ineffective assistance, the better practice is for defense counsel to discuss with their clients all conceivable defenses, regardless of the likelihood of success, so that clients may make better informed plea decisions.


text:
    James F. O'LEARY v. HSBC BANK USA, N.A., trustee, & others.
    17-P-396
    Appeals Court of Massachusetts.
    Entered: April 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the OPTEMAC Asset-Backed Pass-Through Certificates, Series 2006-1.

      Midland Mortgage Co. and MidFirst Bank.

   The plaintiff, James F. O'Leary, separately filed two, now consolidated, actions in 2012. The first action sought to forestall foreclosure on a home in Springfield; failing that, the second action asserted claims of wrongful foreclosure. The gist of O'Leary's claims was that the defendant, HSBC Bank USA, N.A. (HSBC), which foreclosed on the property, was not the lawful mortgagee. HSBC counterclaimed for possession. The note and mortgage are in default and have been for several years. In a series of orders culminating in a final judgment, a Superior Court judge dismissed O'Leary's claims and granted judgment of possession to HSBC. O'Leary appeals. We affirm.

Discussion. This is the second appeal to come before this court regarding the mortgage on the property at 127 Bowles Park in Springfield. In 2012, the Land Court entered a declaratory judgment that HSBC was the current mortgage holder on the property, and this court affirmed that judgment on November 21, 2013. See HSBC Bank USA, N.A. v. O'Leary, 84 Mass. App. Ct. 1121 (2013). Thereafter, and relying on the affirmed judgment from the Land Court, a Superior Court judge dismissed O'Leary's claims and granted summary judgment on HSBC's counterclaims for possession.

In this appeal, O'Leary asserts a variety of errors, among them: (1) that HSBC's counterclaims for possession were transferred to the Housing Court, but then improperly returned to the Superior Court, and that various docket entries relating to this "transfer" were improperly ordered to be "erased" by the Superior Court judge, and (2) that in dismissing O'Leary's wrongful foreclosure claims the Superior Court judge improperly relied on the Land Court judgment declaring that HSBC was the mortgage holder.

We have carefully considered O'Leary's arguments, and they are without merit. The counterclaim for possession was properly within the jurisdiction of the Superior Court, and the judge acted within his discretion in retaining jurisdiction. See Bank of New York v. Bailey, 460 Mass. 327, 333 (2011) ("The Housing Court's jurisdiction over [possession] is concurrent with that of the District Court and Superior Court"); Bank of America, N.A. v. Rosa, 466 Mass. 613, 622-626 (2013). In addition, HSBC's status as mortgagee was established in the prior litigation between the parties, and there was no error in the Court's decision granting judgment of possession. The judgment is affirmed.

Judgment affirmed.

Orders denying motions for reconsideration affirmed.

      To the extent we have not explicitly discussed them, we have carefully considered each of the plaintiff's remaining arguments, and find them to be without merit.


text:
    Courtland L. HARLOW, III, trustee, & another v. BOARD OF ASSESSORS OF KINGSTON (and three companion cases ).
    17-P-820
    Appeals Court of Massachusetts.
    Entered: April 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of 20 Wharf Lane Realty Trust.

      Daniel J. Harlow, trustee of 20 Wharf Lane Realty Trust.

      Dorothy P. Harlow vs. Board of Assessors of Kingston; Courtland L. Harlow, III, trustee, & another vs. Board of Assessors of Kingston; and Courtland L. Harlow, III, trustee, & another vs. Board of Assessors of Kingston.

   The taxpayers appeal from the dismissal of their four abatement appeals by the Appellate Tax Board (board) for lack of prosecution, and from the board's denial of their motion, in effect, to reconsider. We affirm.

An adjudicatory body such as the board possesses inherent authority to dismiss a matter for lack of prosecution, cf. State Realty Co. of Boston, Inc. v. MacNeil Bros., 358 Mass. 374, 379 (1970), although such dismissal is a drastic sanction that should be utilized only where "there [is] convincing evidence of unreasonable conduct or delay." Monahan v. Washburn, 400 Mass. 126, 128 (1987). Before dismissing a matter for want of prosecution the adjudicatory body should "give sufficient consideration to the prejudice that the movant would incur if the motion were denied, and whether there are more suitable, alternative penalties." Id. at 128-129. Our review is confined to determining whether the dismissals constituted an abuse of discretion. Id. at 128. An abuse of discretion occurs where there is " 'a clear error of judgment in weighing' the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

The record before us, as detailed by the board in its March 10, 2017, order denying reconsideration, supports the board's conclusion that the taxpayers engaged in "unreasonable conduct or delay." Monahan, supra. In September, 2016, after the taxpayers had refused to permit inspection by the board of assessors of Kingston (assessors) of certain properties at issue here, the board ordered the taxpayers to make those premises available to the assessors, explicitly warning that failure to do so "may result in the dismissal of the appeals." The taxpayers did not comply with the board's September order, and the assessors moved to dismiss. Despite finding that the taxpayers "unreasonably and without justification limited the inspection of the subject properties," the board, in a December, 2016, order, denied the assessors' motion, choosing instead to sanction the taxpayers by foreclosing them from raising issues that could have been resolved by an inspection. The board also ordered the taxpayers to produce to the assessors, by a specified date, "a copy of any appraisal report or other valuation evidence [they] intend[ ] to introduce into evidence at the hearing of these appeals." Finally, in the same order, the board set the hearing on the taxpayers' appeals for February 21, 2017.

The February hearing date arrived and the assessors appeared. The taxpayers did not. Nor had the taxpayers produced the documents as ordered. Attempts to contact the taxpayers' counsel proved fruitless. The assessors moved at the hearing to dismiss for lack of prosecution, and the board dismissed the appeals by decisions dated March 1, 2017. In these circumstances, particularly insofar as the board earlier had, in lieu of dismissal, imposed lesser sanctions, we are unable to conclude that the board's decision to dismiss constituted a clear error of judgment in weighing relevant factors, such that the decision fell outside the range of reasonable alternatives.

In their reconsideration motion the taxpayers asserted, without benefit of affidavit, that counsel had, on the February date set for hearing, been attending a different hearing in the Boston Municipal Court. The taxpayers asserted that counsel had been unaware of the scheduling conflict because "the last page of the [board's December] order had not been received as part of what was mailed from the [b]oard, but that counsel only received a cover-letter and the first page of the order." The board was not, of course, required to credit the taxpayers' naked assertion, see Kennametal, Inc. v. Commissioner of Rev., 426 Mass. 39, 43 n. 6 (1997), particularly where the facsimile cover sheet and the facsimile machine imprint show that all pages of the order were sent to the taxpayers' counsel.

We are not persuaded that the board could dismiss only the two appeals specifically identified in the caption of the December order. First, we do not consider arguments not made below. G. L. c. 58A, § 13. See Bank of America, N.A. v. Commissioner of Rev., 474 Mass. 702, 713 (2016). Despite opportunity to do so, the taxpayers did not make this argument in their reconsideration motion or otherwise bring the purported error to the board's attention. Second, and in any event, when we view the full context we are satisfied that the board intended its December order to apply to all four appeals, that all four appeals were in fact scheduled for hearing on February 21, 2017, and that all parties, including the taxpayers, so understood the order. We also note that the taxpayers do not claim any surprise, confusion, misunderstanding, or prejudice arising from the caption's omission.

No error appearing, we affirm the decisions of the Appellate Tax Board dated March 1, 2017, and the order dated March 10, 2017.

So ordered.

Affirmed.

      The two appeals identified in the order's caption were F331809 and F331811. The two appeals not specifically identified were F329771 and F329775.


text:
    COMMONWEALTH v. Karim RIZKI.
    16-P-1220
    Appeals Court of Massachusetts.
    Entered: April 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial in the Boston Municipal Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI). He appeals, arguing error in the denial of his motion for a required finding of not guilty. We affirm.

Background. Boston police Officer Seamus Walsh was the only witness at trial. Based upon his testimony, the judge could have found that Walsh responded to a car accident on Tremont Street around 3:40 A.M. on August 3, 2014. When he arrived, Walsh observed a Mercedes-Benz and a Toyota Camry parked on the side of the road. The Camry had significant damage to the driver's side while the Mercedes was damaged on the passenger side; it appeared to Walsh "that the two had an accident where the passenger side of the Mercedes collided with the driver's side of the ... Camry." Walsh observed three people standing "[s]lightly in between [the two cars] off to the left to the driver's side in the street," and that a large crowd had gathered.

"The parties were arguing about the damage done to the cars and what had happened." The defendant was one of the three. The other two individuals, who had stated that they were in the Camry, began to get "agitated at the situation." Walsh took the defendant to the other side of the street to speak to him. As he did so, Walsh noticed a strong scent of alcohol on the defendant's breath. The defendant was unable to follow directions, was unsteady on his feet, and his eyes were red and glassy. Based on "how unsteady [the defendant] was on his feet and his inability to answer any of [Walsh's] questions," Walsh determined that he "wouldn't be able to conduct a field sobriety test safely." Walsh placed him under arrest, and the Mercedes was towed while "[t]he Camry drove away." The next day, a criminal complaint issued charging the defendant with OUI.

Discussion. The defendant argues that his motion for a required finding of not guilty should have been allowed as there was no direct or circumstantial evidence that he operated the car. In reviewing the defendant's argument, we take the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Platt, 57 Mass. App. Ct. 264, 266 (2003) ("The issue turns solely on whether, viewing th[e] evidence in the light most favorable to the Commonwealth, the [fact finder] could have found, beyond a reasonable doubt, that the defendant and no other was the operator of [the] automobile at the time of the accident" [footnote omitted] ).

" 'That the case against [the defendant] was "circumstantial" in some sense of that dubious term does not suggest that the proof was insufficient.' Commonwealth v. Best, 381 Mass. 472, 483 (1980). 'While it is not necessary to prove that the defendant had the exclusive opportunity to commit the crime[ ], ... and while the inferences need not be inescapable or necessary, ... yet the evidence must be such as to convince a [fact finder] beyond a reasonable doubt that the defendant, and no one else, committed the offence[ ] charged.' Commonwealth v. Shea, 324 Mass. 710, 713 (1949)." Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 53 (2006).

Some of the circumstances that courts have relied upon in finding that a defendant was the operator are missing in this case. See, e.g., Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 439 (2002) (discussing relevant circumstantial evidence that established defendant as operator of car); Petersen, supra at 52. Here, there was no evidence about the registration of the Mercedes, and no evidence that the defendant produced any documents, including a driver's license, or had a key to the Mercedes. See Commonwealth v. Deramo, 436 Mass. 40, 43 (2002) (in applying reasonable suspicion standard to investigative stops, "courts have held that the police may, in the absence of any contrary evidence, reasonably conclude that a vehicle is likely being driven by its registered owner"); Cromwell, supra. The defendant, however, appeared unable to perform field sobriety tests or to understand what was happening at all; as a result, it is difficult to draw inferences from his apparent cooperation-except, perhaps, about his sobriety. See Commonwealth v. O'Connor, 420 Mass. 630, 632 (1995) (fact finder could infer operation from facts and circumstances surrounding accident and defendant's cooperation with field sobriety tests).

Nonetheless, taken as a whole, the circumstances support a reasonable inference that the defendant was the driver of the Mercedes, which "appeared to have recently collided with" the Camry, Cromwell, supra, and "there was no evidence tending to indicate that someone other than the defendant was operating the [Mercedes]." Petersen, supra. The defendant and the two individuals were standing next to the two cars that recently had been involved in an accident. The two individuals, not the defendant, stated to Walsh that they were in the Camry. The two individuals and the defendant began arguing about what happened, supporting an inference that the defendant, to whom the agitation of the two individuals was directed, was driving the Mercedes. That inference is strengthened by evidence that the Mercedes was towed from the scene after the defendant, who appeared intoxicated, was placed in custody, while the Camry drove away. In addition, there was no evidence "of bystander reaction to the police treating the defendant as the operator by" removing him to the other side of the street and questioning him. Cromwell, supra. Finally, as noted, there was no evidence "tending to suggest that someone other than the defendant was operating the [Mercedes]." Ibid.

In sum, we are satisfied that, on this evidence, a rational fact finder reasonably could have found beyond a reasonable doubt that the defendant was operating the Mercedes while under the influence of alcohol.

Judgment affirmed.


text:
    Gene LAFOND v. RENEWABLE ENERGY DEVELOPMENT PARTNERS, LLC, & others.
    17-P-990
    Appeals Court of Massachusetts.
    Entered: April 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Paul McAuliffe, as he is director of inspectional services of the town of Plymouth, and the planning board of the town of Plymouth.

   The plaintiff, Gene Lafond, appeals from a Land Court judgment dismissing his complaint for lack of subject matter jurisdiction. He argues that (1) the judge erred in finding that he failed to exhaust administrative remedies; and (2) the futility exception to exhaustion applies. He also argues that it was error to deny his motion for summary judgment. We affirm.

Background . This case arises from the Plymouth planning board's (board) approval of three zoning permits issued to defendant Renewable Energy Development Partners, LLC (REDP), to build a solar development ground-mounted photovoltaic project (the project) on three lots off Herring Pond Road in Plymouth. To obtain zoning permits, REDP submitted an application with an accompanying site plan. Pursuant to the zoning by-law of the town of Plymouth (by-law), the building inspector reviewed the site plan to determine whether the project constituted a permissible use, pursuant to § 205-38.C of the by-law, which states in full:

"If any proposed use is not specifically referred to in any of the subsections in the zone in question, the Building Inspector shall be responsible for determining whether the proposed use should be classified as an allowed use or a special permit use or a prohibited use, based on similarities of use or structures. Where the appropriate classification cannot be clearly determined, the Building Inspector shall certify the proposed use as prohibited and the decision may be appealed to the Board of Appeals."

The building inspector determined that the project was not an allowed use under the by-law. He then concluded that the by-law prohibition is violative of G. L. c. 40A, § 3, which provides that "[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems ...." Accordingly, the building inspector approved REDP's application for the project. On February 13, 2012, the board unanimously approved the site plan with six conditions.

In May, 2016, REDP began to clear the project site of trees to prepare for the installation of the solar arrays. When Lafond, an abutter to the site, learned about the project, he hired counsel. On May 19, 2016, Lafond, through counsel, sent a letter to the building inspector and the board, among others, requesting the issuance of a stop work order and enforcement of § 205-40 of the by-law, governing uses in the rural residential zone. On May 26, 2016, Lafond's counsel sent another letter to the building inspector informing him that Lafond intended to pursue "all legal options to stop work," including "appeal[ing] ... [the] denial of the enforcement order and refusal to issue a stop work order to the Zoning Board of Appeals as provided by the Bylaw and G. L. c. 40A and to thereby exhaust our administrative remedies." On May 31, 2016, the building inspector responded to Lafond's letter explaining that he found no need for a stop work order or enforcement. On July 8, 2016, Lafond's counsel sent yet another letter to the building inspector claiming that he had "failed to respond in writing to the May 19, 2016, request for enforcement and stop work order," failed to respond to the May 26, 2016, letter, and failed to notify abutters of the project approval. On July 29, 2016, town counsel sent an electronic mail message to Lafond's counsel stating that the building inspector had responded to her letter of May 19, 2016, and that "no further response is required with respect to your duplicative request of July 8, 2016."

On July 13, 2016, more than thirty days after the building inspector's denial of the enforcement and stop work request, Lafond filed a two-count complaint in the Land Court, alleging that the zoning permits and site plan review of the project were invalid under § 205-40 of the by-law. He asked the court to declare that (1) G. L. c. 40A, § 3, does not preempt § 205-40 of the by-law, and (2) the project is a prohibited use under the by-law. On cross motions for summary judgment, the judge allowed REDP's motion for summary judgment and dismissed the complaint, finding that the Land Court lacked jurisdiction because Lafond failed to appeal the building inspector's denial to the zoning board of appeals and cannot "sidestep that choice by repackaging it pursuant to G. L. c. 231A." This appeal followed.

Discussion. 1. Standard of review. We review the allowance of summary judgment de novo. "In instances of cross motions, the appellate court assesses the factual materials in the light most favorable to the unsuccessful opposing party." Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752, 756 (2010).

2. Declaratory relief. The plaintiff argues that the judge erred in denying his motion for summary judgment seeking declaratory relief. Pursuant to G. L. c. 231A, § 1, "the land court ... may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof." However, as is the case here, "where the court lacks jurisdiction to make a declaration of rights, the correct disposition of the case is dismissal of the complaint." Iodice v. Newton, 397 Mass. 329, 335 n.5 (1986). There was no error.

a. Exhaustion of administrative remedies. Lafond argues that the judge's finding, that the Land Court lacked subject matter jurisdiction because he failed to exhaust administrative remedies, was error. We disagree.

"[T]he statutorily required submission of zoning disputes to local authority is so central to the architecture of G. L. c. 40A that we have required the exhaustion of administrative remedies as a prerequisite to judicial review." Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20 (1995). As such, "principles of exhaustion require that a person aggrieved by the action of a local zoning administrator (the building inspector in most municipalities) must first attempt to redress the grievances through the local board of appeals before seeking judicial review." Ibid. "Exceptions to the exhaustion requirement are sometimes made in extraordinary circumstances, as when the administrative remedy is inadequate (e.g., the administrative board does not have jurisdiction to hear the plaintiff's complaint), or the issues in the case are of such public significance that the outcome will affect numerous persons in addition to the plaintiffs, or where there is no dispute about the facts, and the issue involves merely a question of law."Balcam v. Hingham, 41 Mass. App. Ct. 250, 266-267 (1996). None of these exceptions apply here.

Lafond is seeking a declaration that the by-law does not run afoul of G. L. c. 40, § 3, and that the building inspector's issuance of the zoning permits to REDP violated the by-law. Initially, the building inspector considered whether the project was a permissible use under the existing by-law. He found that it was not, but that the by-law was violative of State law. Grievance with this determination is precisely the type of dispute that G. L. c. 40A, § 8, governs. The zoning board of appeals (ZBA) is in the best position to determine whether the building inspector's interpretation of the by-law was correct. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009). Had Lafond followed the procedural requirements of G. L. c. 40A, the ZBA's determination would certainly have affected the "scope or character" of the relief that the Land Court could have provided. See Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206, 209 (1985). Moreover, Lafond was well aware that he needed to exhaust his administrative remedies before seeking court intervention, as demonstrated by his letter of May 26, 2016. In it, he stated that he would "appeal [the building inspector's] ... denial of the enforcement order and refusal to issue a stop work order to the Zoning Board of Appeals as provided by the Bylaw and G. L. c. 40A and to thereby exhaust our administrative remedies" (emphasis supplied). Not only did Lafond fail to do so, he sent another letter to the building inspector, more than thirty days later, at which point such an appeal would have been untimely. See G. L. c. 40A, § 15. There was no error.

b. Futility exception. Lafond next argues that he was not required to exhaust administrative remedies because appealing to the ZBA would have been futile. We disagree. Exceptions to the exhaustion doctrine are narrow in scope. Indeed, "to come within the exception, a sort of inevitability is required: the prospect of refusal must be certain (or nearly so)." Daddario v. Cape Cod Commn., 56 Mass. App. Ct. 764, 770 (2002), quoting from Gilbert v. Cambridge, 932 F.2d 51, 61 (1st Cir. 1991). Lafond argues that an appeal to the ZBA would have been futile as he copied it on all the correspondence with the building inspector, but the ZBA did nothing. This does not constitute a proper appeal under G. L. c. 40A, § 15. The ZBA had no jurisdiction to weigh in until the building inspector rendered a decision and Lafond filed a proper notice of appeal. See Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct. 67, 69 (2006) ("An appeal to the zoning board pursuant to § 8 has, as a jurisdictional prerequisite, action by an administrative officer"); G. L. c. 40A, § 15.

Lafond also argues that the permitting of other solar energy projects from 2012 to 2016 was evidence of a policy or practice that rendered his potential appeal futile. There is nothing in the record to support his claim. Indeed, none of these unrelated solar projects was challenged and their validity was never adjudicated by the ZBA. As such, these projects cannot serve as the basis to forego an administrative appeal.

Lastly, REDP's continued work at the project site does not render an appeal to the board futile. See Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141 (1975) (Futility applies when "power and authority of the agency ... [is] in question, and not where the exercise of that agency's discretion is challenged"). Without a stop work order from the building inspector, REDP could continue work on the permitted project site. See, e.g., Balcam v. Hingham, 41 Mass. App. Ct. at 265-267 (failure to exhaust remedies precluded declaratory judgment pursuant to G. L. c. 231A for a mandatory preliminary injunction).

Lafond had the opportunity to appeal the building inspector's decision. As the Land Court judge aptly stated, "He was not denied an administrative appeal, but instead simply chose not to pursue one."

Judgment affirmed.

      Renewable Energy Development Partners, LLC (REDP), was approved for two zoning permits in February, 2012, for two lots. After REDP acquired a third lot, it received approval in March, 2016, for a revised zoning permit for one of the original lots and a new zoning permit for the newly acquired lot.

      Lafond voluntarily waived his first claim pursuant to G. L. c. 40, § 17. After he filed a motion for summary judgment and declaratory relief, the parties agreed to incorporate REDP's pending motion to dismiss into the cross motions for summary judgment. The municipal defendants also joined in REDP's motion to dismiss.


text:
    COMMONWEALTH v. James M. BOWEN.
    17-P-225
    Appeals Court of Massachusetts.
    Entered: April 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a trial in the District Court, a jury found the defendant, James M. Bowen, guilty of one count of violating an abuse prevention order, three counts of threatening to commit a crime, and one count of making annoying telephone or electronic communications. On appeal, he challenges the convictions of violating the abuse prevention order and the two counts of threats in which his ex-wife was the target on the ground that the evidence was insufficient to show that he contacted or intended for his threats to be communicated to her. He also contends that text messages and Facebook posts were erroneously admitted in evidence without proper authentication. We affirm.

Discussion. 1. Sufficiency of the evidence. Noting that he never directly contacted his ex-wife, and that the threats to rape and murder her were contained in text messages sent to her boy friend, Michael Aikey, the defendant contends on appeal, as he did in his motion for required findings of not guilty at the close of the Commonwealth's case, that the evidence was insufficient to prove that he violated the no-contact order or that he intended for his threats to rape and murder his ex-wife to be communicated to her.

"When reviewing the denial of a motion for a required finding of not guilty, 'we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017), quoting from Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 134 S.Ct. 2855 (2014).

"The elements of threatening a crime [under G. L. c. 275, § 2,] include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). "[A] threat may be communicated to an intended target by way of a third-party intermediary, but only where it is shown that the defendant intended the threat to reach the target." Commonwealth v. Hamilton, 459 Mass. 422, 427 (2011). See Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 526 (2002). The defendant's intent "need not be express" and may be proved by circumstantial evidence. Commonwealth v. Meier, 56 Mass. App. Ct. 278, 282 (2002). "Thus, when a defendant utters a threat to a third party who 'would likely communicate it to [the ultimate target],' the defendant's act constitutes evidence of [his] intent to communicate the threat to the intended victim." Ibid., quoting from Troy T., supra at 527.

Similarly, for purposes of a G. L. c. 209A no-contact order, contact with a protected party includes communication through another. See Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996) ; Commonwealth v. Russell, 46 Mass. App. Ct. 307, 310 (1999). "[O]ne cannot undermine a no contact order by the simple expedient of ricocheting prohibited comments off of third parties ... who are in the vicinity of those whom the order protects." Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 741 (2003).

Viewing the evidence in the light most favorable to the Commonwealth, a rational jury could have inferred that the defendant communicated the threats against the victim to Aikey with the knowledge and intent that they would be conveyed to her.

The defendant's first contact with Aikey, in which the defendant gave Aikey his telephone number and invited Aikey to contact him in the event of an emergency concerning the children of the defendant and the victim, supports the inference that the defendant expected Aikey to act as an intermediary between the defendant and the victim. Indeed, the conversation between Aikey and the defendant that preceded the defendant's threats concerned the defendant's apparent intent to move to Florida and to abandon the children. See Commonwealth v. Hughes, 59 Mass. App. Ct. 280, 283 (2003) (jury could infer that defendant's threatening language communicated to his brother would reach the intended victim where brother "had played the role of intermediary" between defendant and victim).

The defendant also knew that Aikey and the victim were involved in a romantic relationship. Indeed, in one of the texts to Aikey, the defendant suggested that he knew he would find Aikey at the victim's house: "I have [the victim's address] in the GPS. You're the only reason I'm coming back. P.S. I'm gonna murder you. Have a good night." The jury could infer that the defendant knew that Aikey would be in the victim's proximity and would share information with her, especially information that involved the defendant, the victim's ex-husband. Contrast Commonwealth v. Furst, 56 Mass. App. Ct. 283, 285-286 (2002) (evidence did not support conclusion that defendant intended that person she took into confidence to help kill her estranged husband would relay threats to him).

The nature and the contents of the communications themselves further indicated the defendant's intent that they reach the victim. In one of his first text messages to Aikey, the defendant wrote, "You're going to die by my hands and this is a text message so everyone knows that that's how you died. I'm not hiding anything." Similarly, the defendant made his intentions public on Facebook, posting a message that said, "Mike, I will murder you, nothing to hide here, when [M]ike Aikey turns up dead and murdered I did it." The jury could reasonably find that the defendant would have expected that this explicitly threatening message would be conveyed to Aikey and the victim by their mutual Facebook friends, as in fact it was. Most telling, shortly after Aikey received the first threatening message from the defendant, the victim contacted the defendant's girl friend, Anna Redden, who had accompanied him on the trip to Florida, to learn if they intended to return to Massachusetts. The defendant responded by texting Aikey, "Keep messaging [Redden], you're both going to get it." This message explicitly suggests that the defendant intended Aikey to communicate with the victim.

With respect to the no-contact order, the fact that Aikey initiated communications with the defendant does not excuse the defendant's subsequent, indirect contact with the victim. While unintentional or accidental contact with the protected party typically will not violate a no-contact order, see Commonwealth v. Shea, 467 Mass. 788, 794 (2014), permissible, unintended contact "cannot be used as an occasion to harass, threaten, or intimidate the protected party." Commonwealth v. Silva, 431 Mass. 194, 198 (2000). See Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006) ("Happening on a protected person whom one did not, and could not reasonably, know to be present is not a violation, but the party subject to the order must end the encounter by leaving"); L.F. v. L.J., 71 Mass. App. Ct. 813, 821 (2008) (while "litigation exception" to c. 209A no-contact order permits limited contact, "the person against whom the order has been entered cannot, under the guise of negotiations, engage in tactics designed to harass, threaten, or embarrass the person who sought the order").

Viewed in the light most favorable to the Commonwealth, a rational trier of fact could have determined that after a single telephone call with Aikey, the defendant purposely and continuously tried to reestablish contact, and that the content of his communications far surpassed the permissible scope of incidental contact. Required to avoid direct or indirect contact with the victim, the defendant instead repeatedly threatened and harassed Aikey and, through him, the victim. This was intentional, impermissible contact, not just an accident or a mistake. See Shea, supra at 795.

2. Authenticity of the texts and Facebook posts. After a voir dire hearing at which Aikey and Redden testified, the trial judge found that the defendant's text messages and Facebook posts were admissible. The defendant contends that the electronic communications were erroneously admitted because they lacked sufficient authentication. We disagree.

"Authentication of a document is a condition precedent to its admissibility." Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 737 (2014). To properly authenticate an item of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2018). "Evidence may be authenticated by direct or circumstantial evidence, including its '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.' " Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011), quoting from Mass. G. Evid. § 901(b)(1), (4) (2011), and Fed. R. Evid. § 901(b)(1), (4) (2010).

"[T]he basic principles of authentication are the same" for electronic and paper communications. Purdy, supra at 450. Where the relevance and admissibility of electronic communications is contingent upon their being authored by the defendant, the trial judge must make a threshold determination of authorship by a preponderance of the evidence. See ibid.; Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366 (2014) ; Mass. G. Evid. § 901(b)(11) (2018). Evidence of the defendant's name on an electronic mail message or social networking account is not sufficient; the proponent must show additional "confirming circumstances" that allow a reasonable jury to conclude "by a preponderance of the evidence that the defendant authored the [communications]." Purdy, supra. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 758-759 (2016). However, "[n]either expert testimony nor exclusive access is necessary to authenticate the source." Mass. G. Evid. § 901(b)(11) (2018).

The judge did not err or abuse her discretion in admitting the text messages and Facebook posts. The Commonwealth authenticated the text messages with ample direct evidence and confirming circumstances. Aikey originally received the defendant's telephone number in a direct interaction with the defendant and immediately saved it in his list of contacts. The victim corroborated that the telephone number from which the texts were received was the defendant's (her ex-husband). Aikey began receiving the text messages from the defendant's telephone number after calling that number and speaking with the defendant. The text messages continued "the familiar tone of the exchange" between the two. Oppenheim, supra at 368. In addition, the text messages were "replete with personal references," Gilman, supra at 759, further identifying the defendant as the author.

Moreover, both Redden and the victim testified that they heard the defendant and Aikey, respectively, having a heated argument on the telephone. Redden was alone with the defendant on their drive to Florida, and no one else had access to his telephone. The text messages also made references to the defendant being on his way to Florida, which Redden confirmed. See Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674 (2011) (confirming circumstances present where electronic mail messages indicated defendant "would be at a certain place at a certain time, and the defendant appeared at that place and time"); Foster F., 86 Mass. App. Ct. at 737 (confirming circumstances present where defendant's location matched where he said he was going to be).

While the Facebook posts present a closer question, as access to a Facebook account is not as limited as access to a cellular telephone, similar confirming circumstances existed to authenticate the posts as having been authored by the defendant.

As an initial matter, Aikey was competent to testify that he personally took "screenshots" of the Facebook posts and printed them out. See Gilman, supra at 759-760 ("best evidence" rule does not forbid use of duplicates of electronic records). The fact that Aikey received them from a third party goes to the weight of the evidence, not its admissibility. See Commonwealth v. Mahoney, 400 Mass. 524, 529-530 (1987) ; Purdy, supra at 451 & n.7.

The Facebook posts all included the defendant's name and photograph, and confirming circumstances provided additional evidence of his authorship. Some of the posts indicated his location in Florida, which the evidence at trial corroborated. One indicated his presence in South Carolina; Redden testified that she took the photograph used in this entry and that the defendant posted it on Facebook. Redden also explained that the defendant took a photograph of a hatchet and posted it on his Facebook page because they had hit a deer on their drive, it had wrecked the car, and "[h]e was mad at the deer. That Facebook message had nothing to do with his wife." These confirming circumstances allowed the judge to conclude that it was more likely than not that the defendant had authored the Facebook posts.

Finally, there is no merit to the defendant's claims that the Facebook posts and text messages constituted inadmissible hearsay or violated his confrontation rights. Aikey was available for cross-examination. The statements attributed to the defendant were not offered for their truth-that the defendant actually would kill Aikey and would rape and kill the victim-but rather as "verbal acts." Purdy, supra at 452. Even if they were offered for their truth, they would be admissible as admissions of a party opponent. Gilman, supra at 757 n.6.

Judgments affirmed.

      We refer to the ex-wife as the victim, although Aikey too was a victim with respect to some of the convictions.

      We reject the defendant's claim, raised for the first time on appeal, that the danger of prejudice from the post about the hatchet outweighed its probative value. In light of Redden's explanation of the photograph, and compared with the language and tenor of the defendant's threatening Facebook posts and text messages, any error would not have created a substantial risk of a miscarriage of justice. Likewise, there is no substantial risk that the jury would have understood, let alone be prejudiced by, the defendant's unexplained comment, "I can't wait to move in with my dad."


text:
    COMMONWEALTH v. Riley DOBEL.
    16-P-1434
    Appeals Court of Massachusetts.
    Entered: April 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order of a District Court judge denying his motion to suppress evidence of an out-of-court identification made by an assault victim. We affirm.

The defendant's appeal is controlled by our opinion issued today in Commonwealth v. Rivers, Mass. App. Ct., No. 16-P-1435, slip op. at 9-11 (April 10, 2018). The defendant here, like his codefendant in that appeal, contends "that the identification procedure employed by the police was impermissibly and unnecessarily suggestive, because the victim saw a police report naming the defendant as one of his assailants before the victim identified the defendant in the photo[graphic] array." Id. at 9-10. As we explain in Rivers, supra at 10-11:

"The argument is fundamentally flawed. First, the victim's ability to recognize the defendant's picture in the photo array was not influenced by the report; indeed, the victim was very familiar with the defendant before the attack.[ ] Moreover, the police report cited by the defendant as the source of the alleged suggestiveness did not include an image of the defendant, and therefore could not have been the source of the victim's ability to recognize the defendant's photograph as an image of the defendant.
"The defendant's claim amounts, in substance, to a contention that the victim's assertion that the defendant was among his assailants was a product of the victim's review of a police report naming the defendant among the alleged assailants. As such, the claim is not that the report influenced the victim's ability to spot the defendant's picture in the array of possible attackers, but that it influenced his memory of who had attacked him. In the circumstances, the motion judge did not err in concluding that the possibility of such influence did not make the procedure 'so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.' [ Commonwealth v.] Johnson, [473 Mass. 594,] 597 [ (2016), quoting from Commonwealth v. Walker, 460 Mass. 590, 599 (2011) ]. The matter is an appropriate topic for cross-examination at trial, and ultimately goes to the weight of the victim's testimony, not its admissibility. The motion to suppress the identification was properly denied."

The same reasoning applies to the defendant here.

Order denying motion to suppress identification affirmed.

      A single justice of the Supreme Judicial Court allowed the defendant's motion to take an interlocutory appeal. See Mass.R.Crim.P. 15(a)(2), as appearing in 474 Mass. 1501 (2016).

      Similarly, the defendant here points to the fact that, in his initial statement to police, the victim did not name the defendant as one of his attackers.

      As found by the motion judge, the victim had seen the defendant here "more than a hundred times" before the incident, knew they played on the same high school lacrosse team in different years, had a conversation with him earlier in the evening about their fathers playing golf together, and saw the defendant's face during the fight.


text:
    COMMONWEALTH v. Sergio V. LOBO.
    17-P-205
    Appeals Court of Massachusetts.
    Entered: April 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2010, a Superior Court jury convicted the defendant of trafficking in cocaine in an amount of fourteen grams or more but less than twenty-eight grams. We affirmed that conviction in the defendant's direct appeal. Commonwealth v. Lobo, 82 Mass. App. Ct. 803 (2012). After the revelations about improprieties at the William A. Hinton State Laboratory Institute (Hinton laboratory) came to light, the defendant filed a motion for new trial. Before us now is the defendant's appeal from the denial of that motion. We affirm.

Background. The substance found on the defendant's person was weighed and its chemical composition analyzed at the Hinton laboratory. State chemist Annie Dookhan served as neither the primary chemist, nor the confirmatory chemist, in that process. See Commonwealth v. Resende, 475 Mass. 1, 7-10 (2016) (describing testing process and various roles that State chemists played). Instead, she served only as the "setup operator" for the gas chromatography-mass spectrometry (GC-MS) machine that produces the graphs that then are analyzed by the confirmatory chemist. Unlike the work of the confirmatory chemist, the role of the setup operator consists of largely ministerial tasks such as tuning the GC-MS machine and loading samples into it. See id. at 9-10.

The person who served as the confirmatory chemist, Daniel Renczkowski, testified at the defendant's trial (as did the primary chemist). Specifically, he testified about how the confirmatory testing process worked in general, about his role in this case, and about his opinion that the substance that he analyzed was cocaine. At one point, the prosecutor asked Renczkowski if he did "in fact work on or test a small vial or sample of [the] substance [provided to the lab in this case.]" The prosecutor also asked him whether "when [he] received that vial ... [he] ran it through the [GC-MS] machine." Renczkowski responded with "yes" to both questions. These answers were not accurate to the extent they suggested that Renczkowski personally loaded the samples into the GC-MS machine and initiated the sampling run; it actually was Dookhan, as setup operator, who performed those functions here. When later pressed during the evidentiary hearing on the motion for new trial about the accuracy of his trial testimony that he "ran [the vial] in this case through the [GC-MS] machine," Renczkowski responded, "Looking back now, probably not entirely accurate." He then offered an explanation for the answers he had given at trial, namely that "[a]t the time, we thought of running something through the [GC-MS machine] as analyzing it and not actually as the person that put the vial on the rack." The specially appointed judicial magistrate who presided over the evidentiary hearing found that Renczkowski's misstatements were "unintentional[ ]." The judicial magistrate also observed that Renczkowski "may in good faith have assumed that he performed the [setup] functions." That observation was supported by evidence that the confirmatory chemist and setup operator were one and the same eighty percent of the time.

The defendant sought a new trial on two grounds. First, he argued that because of Dookhan's role here, he was entitled to the conclusive presumption of egregious government misconduct and that, applying that presumption here, there was sufficient prejudice shown to warrant a new trial. Second, he argued that newly discovered evidence warranted a new trial. He pointed both to the discovery of Dookhan's misdeeds at the Hinton laboratory and the revelation in this case that Renczkowski had misstated who had performed the setup tasks here.

The judicial magistrate concluded that neither Dookhan's role as setup operator, nor Renczkowski's misstatement at trial alone warranted a new trial. However, he also concluded that these two factors "might have the synergistic effect of together warranting a new trial." Because the judicial magistrate further concluded that resolving whether a new trial was warranted involved "weighing the significance of the erroneous testimony of a government witness[,] [which] is a matter reserved for the trial judge," the judicial magistrate referred the matter to the trial judge. After holding a nonevidentiary hearing on the motion for new trial, the judge denied the motion.

Discussion. Issues related to Dookhan's role. The role that Dookhan served in this case as setup operator is identical in all material respects to the one she played in Resende, 475 Mass. 1. It therefore follows that in light of the limited role that Dookhan played in this case as setup operator, the defendant is not entitled to the conclusive presumption of egregious government misconduct recognized by Commonwealth v. Scott, 467 Mass. 336, 352 (2014). See Resende, supra at 14. Unaided by the benefit of that presumption, the defendant is left to argue that Dookhan in fact committed misconduct in this case. See Commonwealth v. Torres, 470 Mass. 1020, 1022 (2015). He has not claimed, much less shown, such misbehavior. Therefore, his argument that Dookhan's involvement in his case warrants a new trial fails.

Renczkowski's misstatement. As noted, the defendant sought a new trial in part based on the fact that Renczkowski provided inaccurate testimony at trial that he was the one who served as the setup operator here, not just the confirmatory chemist. He claims that the discovery that Renczkowski's testimony contained an error constitutes "newly discovered evidence" that is of such significance that, had he known at trial that Renczkowski was not the setup operator, this could have changed the outcome of the trial.

"A defendant seeking a new trial based on 'newly discovered evidence' faces formidable burdens." Commonwealth v. Caruso, 85 Mass. App. Ct. 24, 29 (2014). "To overcome the important societal interests of finality and judicial efficiency, he 'must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.' " Ibid., quoting from Commonwealth v. Grace, 397 Mass. 303, 305 (1986). For such a motion to be granted, "the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial."Grace, supra at 306. The denial of a motion for new trial is reviewed only for "a significant error of law or other abuse of discretion." Commonwealth v. Weichell, 446 Mass. 785, 799 (2006), quoting from Grace, supra at 307. Where, as here, the motion judge was also the trial judge, "special deference" is due. Commonwealth v. Fappiano, 69 Mass. App. Ct. 727, 730 (2007), quoting from Commonwealth v. Buck, 64 Mass. App. Ct. 760, 762 (2005). See Commonwealth v. Santiago, 458 Mass. 405, 414 (2010) ("[The trial judge] is in the best position ... to determine [the new evidence's] probable impact on a jury hearing it with all the other evidence").

For newly appreciated evidence to be "newly discovered," it must "have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial." Grace, supra at 306 (emphasis supplied). The judicial magistrate concluded that the discovery that Renczkowski was not the setup operator constituted "newly discovered evidence," without any analysis of whether this was "reasonably discoverable" by the time of trial. For his part, the judge appears either to have deferred to the judicial magistrate on this issue, or assumed it to be the case. In either event, his memorandum of decision includes no analysis of this threshold question.

In our view, the conclusion that the identity of the setup operator constituted newly discovered evidence is, at a minimum, subject to great doubt. It is uncontested that the Hinton laboratory file identified the setup operator. As the defendant points out, that file was subject to mandatory discovery pursuant to Mass.R.Crim.P. 14(a)(1)(A)(vii), as amended, 444 Mass. 1501 (2005). That means that the Commonwealth had to disclose the existence of that file and make it available for inspection and copying. There is no attorney affidavit or other evidence in the record indicating that the Commonwealth failed to abide by its discovery obligations. Hence, from all that appears in the record, the identity of the setup operator was "reasonably discoverable" and therefore could not constitute newly discovered evidence.

In any event, the defendant also has not made an adequate showing of prejudice. To be sure, the defendant's failure to appreciate that Renczkowski was not the setup operator deprived him of being able to try to impeach Renczkowski about his inaccurate testimony on this point. However, we agree with the judge that such potential impeachment would have had limited force. The Supreme Judicial Court has instructed that "[n]ewly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial." Commonwealth v. Toney, 385 Mass. 575, 581 (1982). Here, there were particular reasons to doubt the force of such impeachment. Indeed, the judicial magistrate found, and the defendant conceded at the evidentiary hearing, that any errors in Renczkowski's testimony were honest misstatements, not intentional misrepresentations.

Moreover, there was other significant evidence that the substance resembling "crack" cocaine found on the defendant was indeed crack cocaine. In fact, perhaps the strongest such evidence came from the defendant himself: his admission to police that he possessed other drugs hidden "under his balls" (which prompted the police to discover the apparent crack cocaine hidden in that area). The motion judge-who was aided by having presided at the trial-concluded that the lost opportunity to impeach Renczkowski about his misstatements at trial would have added little to the defendant's defense. He specifically concluded that this lost opportunity-even if coupled with arguments based on Dookhan's having served the limited role of setup operator-"would not have been a real factor in the jury's deliberations." "[T]he judge was in a unique position to assess the extent to which the [alleged newly discovered evidence] might have made a difference [and] [h]is assessment of the trial evidence is entitled to 'special deference.' " Caruso, 85 Mass. App. Ct. at 36, quoting from Grace, 397 Mass. at 307.

Conclusion. The defendant has not demonstrated that the judge committed an abuse of discretion or any other error of law in concluding that a new trial was not warranted here. We therefore affirm the order denying the defendant's motion for new trial.

So ordered.

Affirmed.

      Strictly speaking, there were two motions for new trial. The parties and the judge treated them as one, and so do we.

      "The following facts are drawn from the motion judge's findings of fact, supplemented with details from the record where they are consistent with the judge's findings." Commonwealth v. Lavrinenko, 473 Mass. 42, 43 (2015).

      In responding to further questions about the procedures at the lab, Renczkowski referred to what "we" would do.

      Unlike the case before us, Resende, supra at 2, involved convictions based on guilty pleas, not a trial. However, the Supreme Judicial Court has indicated that the same considerations apply in both contexts. See Commonwealth v. Francis, 474 Mass. 816, 823-824 (2016). See also Commonwealth v. Nelson, 90 Mass. App. Ct. 594, 595-596 (2016).

      For Dookhan's involvement as setup operator to have affected the outcome of the testing, she would have had to have tampered with the vial before putting it into the machine. The judicial magistrate specifically found that "[t]here is nothing to show that Dookhan purposefully tampered with the vial in this case, or for that matter, any case."

      To the extent that the defendant suggests that the Commonwealth intentionally withheld exculpatory evidence, such a claim is not supported by the record before us. In fact, during the hearing on the motion for new trial, defense counsel expressly disavowed that she was making an argument based on Brady v. Maryland, 373 U.S. 83 (1963).

      We note that a defendant bears the burden of proof that evidence is "newly discovered." Grace, supra at 306 ("The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence").

      According to the defendant, the evidence here was comparable to that of Commonwealth v. Francis, 474 Mass. 816 (2016), a case in which the Supreme Judicial Court ruled that a new trial was required. Numerous factors distinguish Francis from the case before us. For example, the defendant there had not made an admission that what was found in his vehicle was an illicit drug. Id. at 819. Most importantly, based on the role that Dookhan had played there, the defendant was entitled to the presumption of egregious government misconduct. Id. at 823-824.

      In listing the many considerations that he examined, the judge mentioned the defendant's "past arrests for drug offenses." The defendant argues that this was an inappropriate consideration given that the defendant's record was not admitted at trial, nor did he testify. Read in context, the judge's mention of the defendant's criminal record appears to refer to practical limitations that the defendant may have faced in considering whether to offer testimony in any retrial. In any event, in agreeing with the judge that a retrial was not warranted, we have not relied on the defendant's record, if any.