text:
    Thomas DALY v. T-MOBILE USA, INC. & another.
    17-P-1375
    Appeals Court of Massachusetts.
    Entered: August 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      John Diefenbach.

   The plaintiff, Thomas Daly, brought a complaint in Superior Court against the defendants for alleged unpaid commissions. In particular, he asserts that the defendant T-Mobile USA, Inc. (T-Mobile) improperly modified his commission schedule after he brought in a new customer account, and seeks to enforce an exemplary commission schedule set forth in T-Mobile's sales manuals. The motion judge allowed summary judgment in favor of the defendants on Daly's breach of contract, Wage Act, and unjust enrichment claims. Because (i) the manuals expressly provide that T-Mobile can modify the exemplary commission schedule at its sole discretion, at any time, (ii) the relevant modification occurred prior to any sales, and was acknowledged by Daly, and (iii) Daly accepted commissions pursuant to the modified schedule for over three years without following the grievance procedure set forth in the manuals, we affirm.

Background. We recite the facts that are undisputed and, where there are disputes, we view the facts in the light most favorable to Daly, the nonmoving party. Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 780 (2007).

Daly began working as an at-will sales representative for T-Mobile in 2006. His compensation included two components: first, he was entitled to a base salary; and second, he was eligible to receive commissions to be paid on a quarterly basis. Commissions were not based on bringing in a new account. Instead, T-Mobile calculated Daly's commissions based on the number of SIMs sold and activated each quarter.

Relevant to the present action, T-Mobile annually distributed to its sales employees two manuals concerning commissions: (1) the "Sales Compensation Sales Incentive Program Document Policies & Procedures" (program manual), which details T-Mobile's commission guidelines and policies applicable to all salespeople, and (2) the position specific plan manual (plan manual), which outlines commissions for salespeople in particular employment positions. These manuals set forth certain metrics used to calculate commissions. The manuals provide that the exemplary commission schedules, therein, may be modified at T-Mobile's sole discretion, at any time. For one category of sales -- called "windfall" sales -- the manuals allow T-Mobile to alter or cap commissions or even to exclude such sales altogether from the calculation of commissions. The manuals set forth a grievance procedure for any employee concerned about his or her commissions. The manuals also include disclaimers, the details of which we reserve for further discussion below. Daly acknowledges that he received the manuals.

In March, 2011, Daly learned of a new business opportunity with a company called SCVNGR, which wanted to purchase a data-only plan at a low cost. The deal that SCVNGR contemplated was not one of T-Mobile's standard offerings, and Daly included his immediate manager, Kevin Farren, early in these discussions, which took place from March to June of 2011.

Eventually, T-Mobile approved a deal for SCVNGR for a data-only rate plan of $9.99 per month per SIM unit; however, T-Mobile insisted on certain conditions. Relevant here, one condition was T-Mobile's decision to impose a 1:5 commission ratio for Daly's commissions on the SCVNGR account; Daly received commissions at a 1:1 ratio, which was an exemplary commission schedule in the plan manual, on his other accounts. In particular, in May or June of 2011, Daly met with John Briare, Farren's manager, and was informed that T-Mobile would accept the rate plan for SCVNGR only if the commission formula for the account reflected the low margin value of the deal. Accordingly, Briare presented Daly with a document acknowledging the 1:5 ratio on the SCVNGR account, which Daly signed. The meeting occurred before any sales to SCVNGR.

Following the meeting, Daly complained to Farren, asking whether Farren thought the 1:5 commission ratio was fair in view of other plans where the rate plan was even lower than for SCVNGR yet commissions were being paid on the 1:1 basis. Daly did not file a written complaint, and did not complain to anyone in human resources, or anyone else in management.

From June of 2011 to February of 2013, SCVNGR purchased SIMs from T-Mobile. Daly was timely paid for all commissions at the 1:5 rate. Daly resigned from T-Mobile in June, 2015.

On July 23, 2015, Daly filed the present action, asserting claims for unpaid commissions -- specifically, the commissions he would have been paid if the commission ratio on the SCVNGR account had been 1:1. In addition to asserting claims under the Wage Act, Daly alleged that the sales manuals constituted a contract, the 1:1 commission ratio was a term thereof, and T-Mobile had breached that term by modifying it for the SCVNGR account. Alternatively, Daly asserted a claim for unjust enrichment. In May, 2017, the judge granted summary judgment in favor of the defendants on all claims.

Discussion. We review a grant of summary judgment to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). When there are no genuine issues of material fact and the nonmoving party "has no reasonable expectation of proving an essential element of its case," the entry of summary judgment will be upheld. Miller v. Mooney, 431 Mass. 57, 60 (2000).

1. Breach of contract. T-Mobile asserts that summary judgment should enter as to Daly's breach of contract claim because the sales manuals (upon which Daly's contract claim is based) expressly disclaim that they are promises or contracts. Alternatively, T-Mobile contends that there was no breach of any term of the manuals because the manuals allow T-Mobile to adjust Daly's commissions for the SCVNGR account and because Daly continued to work for T-Mobile, after acknowledging the modification.

a. Disclaimers in manuals. Provisions in employment manuals may be enforced "to the extent they instill reasonable belief in the employees that management will adhere to the policies therein expressed." Ferguson v. Host Intl., Inc., 53 Mass. App. Ct. 96, 101-102 (2001), citing O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 694 (1996). "[W]hile the words used in such handbooks and policies are important, 'the context of the ... preparation and distribution [of the employment policies] is ... the most persuasive proof' as to whether the employee's reliance thereon as a binding and legally enforceable commitment, is reasonable." LeMaitre v. Massachusetts Tpk. Authy., 452 Mass. 753, 755-756 (2008), quoting from O'Brien, 422 Mass. at 694.

The Supreme Judicial Court has not decided "whether an employer must utilize a specific set of words in its employee handbooks or personnel policies in order to avoid their legal enforceability." Id. at 755. However, this court has said that "if the employer, for whatever reason, does not want the manual to be capable of being construed by the court as a binding contract, there are simple ways to attain that goal. All that need be done is the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing." Ferguson, 53 Mass. App. Ct. at 102, quoting from Woolley v. Hoffmann-La Roche, 99 N.J. 284, 309 (1995).

Here, T-Mobile prominently disclaimed that the manuals comprised a contract. Cf. O'Brien, 422 Mass. at 694 (manual enforceable in contract where employer did not expressly retain right to unilaterally modify manual). The program manual includes, on its front cover, in font comparable in size as used in the remaining text of the manual, and set forth within a bolded box with a prominent border, the following disclaimer:

"Notice: This document contains guidelines relating to the compensation of T-Mobile Sales Professionals. This document and any oral, written or electronic communication related to the subject matter contained in this document are not intended and shall not be read to create any express or implied contract or promise of specific treatment or benefits in specific situations. Your employment relationship with T-Mobile is at-will and either you or T-Mobile can terminate your employment at any time without reason, cause or advance notice. In T-Mobile's sole discretion, this document and the guidelines stated herein may be changed or discontinued at any time without prior notice. You should regularly refer to this document (available on the company intranet and eLMS system) to ensure that you are familiar with its terms." (Emphasis added).

A near identical disclaimer is set forth, equally prominently, on the cover of the plan manual. Neither disclaimer was buried in the fine print. Cf. Ferguson, 53 Mass. App. Ct. at 103 (manual enforceable despite disclaimer "buried in the general, introductory portion of the manual, in a section not as likely to attract the employees' attention as the very specific list of obligations and benefits set out in the bulk of the manual"). Instead, T-Mobile put the text of the disclaimer prominently on the front cover of each of the manuals.

b. No breach of the terms of the manuals. We need not decide if these disclaimers render any reliance on the manuals unreasonable as a matter of law because, even assuming arguendo that the manuals could be construed as binding, Daly has no reasonable expectation of showing a breach. As set forth above, one provision of the program manual specifies that T-Mobile may exclude, adjust, or cap commissions for windfall sales -- a category of sales that includes sales in which T-Mobile has had to make concessions to win the business. Here, there is no dispute that the SCVNGR deal was not one of T-Mobile's standard offerings; SCVNGR's proposed usage was different from ninety-nine percent of all sales made by Daly, and T-Mobile concluded that the SCVNGR deal required concessions (because the average revenue per unit [ARPU] on the SCVNGR account was orders of magnitude below the national and regional ARPU). Given the terms of the provision expressly addressing commissions for windfall sales, T-Mobile could (as it did here with regard to the SCVNGR account) modify the exemplary commission schedule consistent with the terms of the manuals. Doing so does not constitute a breach. Therefore, T-Mobile is entitled to summary judgment on Daly's breach of contract claim.

2. Wage Act claim. We turn next to Daly's Wage Act claim, which the defendants maintain is barred by the three-year statute of limitations because T-Mobile modified Daly's commission rate for the relevant account in May or June 2011 and Daly did not file his complaint until July 2015, more than three years after the modification. Although the claim is not time-barred, we agree with the defendants that summary judgment should enter on their behalf.

a. Statute of limitations. As it concerns commissions, the Wage Act is triggered when those commissions are "definitely determined" and "become due and payable" to the employee. G. L. c. 149, § 148. "[T]he statutory requirement that commissions be paid when they are 'definitely determined' means when they become 'arithmetically determinable.' " Weems v. Citigroup, Inc., 453 Mass. 147, 151 (2009), quoting from Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 708 (2005).

Here, it is undisputed that Daly's commissions are based on the number of SIM cards activated in a particular quarter. Until that number is known, Daly's commissions are not "arithmetically determinable." Accordingly, Daly's Wage Act claim is not barred by the statute of limitations in so far as it concerns disputed commissions from July 23, 2012 (three years before he filed the present action) through the end of his employment at T-Mobile. See, e.g., Crocker v. Townsend Oil Co., 464 Mass. 1, 11 (2012).

b. No commissions due. Alternatively, the defendants contend that summary judgment should enter in their favor because Daly's commissions on the SCVNGR account were paid timely in accordance with the modification he acknowledged (before any SIM orders were placed on the SCVNGR account and perforce before any SIM cards were activated). Daly responds that, at the time he brought in the SCVNGR account, commissions were being calculated at a rate of 1:1 pursuant to T-Mobile's two sales manuals, and that the defendants' modification of the commission rate (to 1:5) in May or June, 2011, cannot be applied to this account because the modification occurred after Daly brought the account to T-Mobile's attention in March, 2011. Daly also contends that, at the least, summary judgment is improper because that there is a dispute as to whether his job responsibilities included signing new accounts such that by bringing in SCVNGR as a new client he "performed" his job prior to the May/June, 2011, change to his commission schedule.

Even if we assume that bringing in a new account was part of Daly's responsibilities, Daly's Wage Act claim fails. The manuals upon which he would rely expressly state that commissions are not earned by signing a new account. In particular, the program manual provides that "[v]ariable incentives are not ... earned when ... a new account is activated." Consistent with this, Daly concedes that, at all relevant times, the commission component of his compensation was based solely on the number of SIM cards activated by the particular customer in each quarter, regardless whether the customer was an existing customer from his assigned accounts or a new customer.

While T-Mobile could not alter commissions retroactively after SIM activations, nothing in the Wage Act prevented T-Mobile from exercising its discretion to alter the commission formula prior to such time. See, e.g., Vonachen v. Computer Assocs. Intl., 524 F. Supp. 2d 129, 134-137 (D. Mass. 2007). Accordingly, summary judgment properly entered in favor of the defendants on Daly's Wage Act claim.

3. Unjust enrichment. T-Mobile next asserts that Daly's unjust enrichment claim fails because he was paid what he was promised on the SCVNGR account. As discussed supra, Daly acknowledged his commission rate for the account prior to any SIM card sales to SCVNGR, his commissions were based solely on SIM card activation (not on bringing in a client), and he was paid pursuant to the modified commission rate. As a matter of law, there is no basis for Daly's claim that T-Mobile was unjustly enriched, and the defendants are entitled to summary judgment. See Community Builders, Inc. v. Indian Motorcycle Assocs., Inc., 44 Mass. App. Ct. 537, 560 (1998).

Judgment affirmed.

      The judge also granted summary judgment on Daly's claim, pursuant to the Wage Act, of unlawful retaliation. Daly raises no argument on appeal as to this claim. Accordingly, any challenge to this aspect of the judge's order is waived. Mass.R.A.P. 16(a)(4), as amended by 367 Mass. 921 (1975). Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 n.9 (2005).

      A SIM is a small chip that can be inserted in a mobile device and tracks identifying information about its usage.

      As set forth infra, the disputed commission schedule was implemented in 2011. Accordingly, we set forth the relevant terms of the manuals covering that period.

      Windfall sales include, among other things, sales in which T-Mobile has had to make concessions to win the business.

      The 1:5 ratio meant that Daly would receive one credit towards his commission quota for five SIMs activated on the SCVNGR account -- an eighty percent reduction relative to the 1:1 ratio that governed Daly's other accounts.

      Neither party has produced this document, although both sides agree that it was presented and signed.

      For the first 200 SIMs, which SCVNGR purchased in June of 2011, however, Daly was paid on a 1:1 basis. According to T-Mobile, this was done because the 1:5 ratio had not been implemented in T-Mobile's commissions system.

      Daly contends that T-Mobile's ability to adjust sales was limited to situations where the sales representative exceeds 200 percent of quota. This argument, however, ignores that the program manual expressly states that any adjustment in commissions to address the situation where the sales representative exceeds 200 percent of his or her quota is "[i]n addition to the Windfall Provision."

      While Daly speculates that the SCVNGR deal was nonetheless profitable for T-Mobile, the manuals do not limit T-Mobile's ability to alter commissions based on profitability. Moreover, Daly admits that he had no knowledge of T-Mobile's ARPU; and, mere speculation that the SCVNGR deal could have been profitable even if he had been paid commissions pursuant to a 1:1 schedule is insufficient to defeat summary judgment. See Somers v. Converged Access, Inc., 454 Mass. 582, 597 (2009).

      There is no dispute that the 1:5 commission ratio was established by June of 2011. For this reason, Daly's reliance on terms in the 2012 manuals and his argument regarding his payment on a 1:1 basis for the initial sales to SCVNGR are misplaced.

      G. L. c. 149, § 150.

      General Laws c. 149, § 148, provides, in relevant part: "This section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty." (Emphasis added).

      Notably, Daly testified that, as a regional account manager (his position at the time the SCVNGR opportunity came to his attention in 2011), his responsibilities did not include bringing in new accounts.

      Daly does not claim that T-Mobile deliberately delayed SIM activations once orders were placed by SCVNGR.

      As set forth supra, the manuals specifically provide that T-Mobile may alter the method of calculating windfall commissions in its sole discretion, at any time.

      As discussed supra, the statute of limitations limits Daly's Wage Act claim to those commissions purportedly due from and after July 23, 2012. Notably, by then, as Daly concedes, his commission schedule on the SCVNGR account had been established by T-Mobile and acknowledged by him for more than one year.


source: Caselaw Access Project

license: Public Domain

text:
    Peter J. TARKOY v. Reka C. TARKOY.
    17-P-964
    Appeals Court of Massachusetts.
    Entered: August 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The husband, Peter J. Tarkoy, appeals from a modification judgment by a judge of the Probate and Family Court that continued alimony of $1,000 per month until September, 2017. Concluding that the judge considered the relevant factors and acted within his discretion, we affirm.

1. Background. The parties were married on July 11, 1993, and the husband filed for divorce on February 23, 1999. The judgment of divorce nisi entered on December 10, 2002, ordering the husband to pay the wife, Reka C. Tarkoy, alimony of $2,500 per month. On December 23, 2008, the judge terminated alimony but later reinstated it at a reduced amount of $1,000 per month. On September 9, 2014, the husband filed the instant complaint for modification, seeking termination of his alimony obligation in accordance with the durational limits of the Alimony Reform Act (Act). Trial was held on the issue of modification on July 22, 2015, and the judge entered a judgment that continued the $1,000 per month alimony order until September, 2017.

2. Continuation of alimony. The Act made several substantive changes to the Commonwealth's alimony laws, including the creation of durational limits. The Act provided presumptive dates for the termination of alimony in marriages that lasted fewer than twenty years. See G. L. c. 208, § 49(b ). These durational limits can be applied retroactively to alimony judgments entered before the Act's effective date of March 1, 2012. See Chin v. Merriot, 470 Mass. 527, 536 (2015). Existing alimony awards that exceed the durational limits established by the Act can be modified upon a complaint for modification without requiring a showing of a material change of circumstance. See St. 2011, c. 124, § 4(b ).

The parties here were married for more than five years, but less than ten years. Pursuant to the durational limits in the Act, for a marriage of that length, the "alimony shall continue for not longer than [sixty] per cent of the number of months of the marriage." G. L. c. 208, § 49(b )(2). The husband contends that he has paid alimony well beyond the durational limits in the Act and his alimony obligation, therefore, should be terminated.

Nevertheless, a judge may order alimony to continue beyond the durational limit if written findings establish that deviation is "required in the interests of justice." George v. George, 476 Mass. 65, 70 (2016), quoting from G. L. c. 208, § 49(b ). "The recipient spouse bears the burden of proving by a preponderance of the evidence" that the deviation is warranted. Ibid. "Further, a judge should evaluate the circumstances of the parties in the here and now, that is, as they exist at the time the deviation is sought, rather than the situation as it existed at the time of divorce."Ibid. "Although a 'judge has broad discretion when awarding alimony under the [Act],' ... the judge must consider all relevant, statutorily specified factors, such as those set forth in G. L. c. 208, §§ 49(d ) and 53(e )." Duff-Kareores v. Kareores, 474 Mass. 528, 535-536 (2016), quoting from Zaleski v. Zaleski, 469 Mass. 230, 235 (2014). Here, the appropriate statutory factors to be considered are set forth in G. L. c. 208, § 53(e ).

Although the judge did not have the benefit of the George decision at the time of the instant modification judgment, we are satisfied that the judge considered all relevant statutory factors. The judge took into account the husband's age and the wife's health, fully crediting the wife's testimony regarding the physical symptoms she currently experiences that have led to her present inability to work.

The judge found that the wife is unable to support herself and is in "relatively [straitened] circumstances." The judge credited the wife's testimony that when she needed money friends and family would send her some, and found that she was primarily being supported "on the largesse of family members."

The judge additionally considered the husband's sources of unearned income from several bank accounts held in his former paramour's name, as well as his continuous use of funds he oversaw from a trust established by his father. The judge was entitled to credit the testimony of the husband's former paramour that she, along with the husband, had engaged in a scheme at his behest to hide thousands of dollars of his money in accounts in her name, in an attempt to keep them from the reach of the court and the wife. See Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 774 (2014). The judge similarly could credit testimony that the husband had used the funds from his father's trust to travel and purchase more than one real property in Hungary in his own name. See ibid.

The judge further relied on other relevant factors, including the husband's efforts to mislead the court regarding his income and assets and "his unwillingness (except in the face of imminent incarceration for contempt) to pay his support obligation." Although the judge did not address several factors enumerated in G. L. c. 208, § 53(e ), there was no evidence at trial that would have supported a finding on any of these factors that would have been beneficial to the husband. We discern no abuse of discretion in the judge's decision to deviate from the presumptive duration of alimony in awarding its continuation for a fixed period of time to allow the wife to make appropriate plans for her future.

3. Discovery. The husband argues that the judge erred in denying his motion to compel the wife to produce information regarding her familial financial support. The wife contends that in the past, the husband has harassed family members who have given her money, including by reporting them to the Internal Revenue Service. The husband does not refute this. The husband similarly does not challenge the judge's finding that the wife was dependent on the generosity of others, a finding amply supported by the record. In divorce cases, "[t]rial judges have 'extensive discretion ... with respect to both the process of discovery and the admission of evidence." Salten v. Ackerman, 64 Mass. App. Ct. 868, 875 (2005), quoting from Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000). Accord Steinert v. Steinert, 73 Mass. App. Ct. 287, 290 (2008). We discern no abuse of discretion in the order denying the motion to compel.

Modification judgment affirmed.

      Although there are several inconsistencies in the record regarding the precise date the husband's notice of appeal was filed and the date of the judgment from which the husband is appealing, we are satisfied that the appeal was timely and properly filed based on the dates provided in the Probate and Family Court's assembly of the record.

      The husband also requested a termination of his obligation to pay child support. As the child is over the age of eighteen and no longer resides with the wife, the parties agree this issue is moot.

      Although the husband has paid all of the alimony (through a forced sale of property), the husband requests that we order the wife to repay him for $35,000 of alimony.

      The factors are "(1) advanced age; chronic illness; or unusual health circumstances of either party; (2) tax considerations applicable to the parties; (3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse; (4) whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance; (5) sources and amounts of unearned income, including capital gains, interest and dividends, annuity and investment income from assets that were not allocated in the parties['] divorce; (6) significant premarital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage; (7) a party's inability to provide for that party's own support by reason of physical or mental abuse by the payor; (8) a party's inability to provide for that party's own support by reason of that party's deficiency of property, maintenance or employment opportunity; and (9) upon written findings, any other factor that the court deems relevant and material." G. L. c. 208, § 53(e )(1)-(9), inserted by St. 2011, c. 124, § 4(b ).

      The husband was seventy-four years old and retired at the time of trial.

      The wife testified that she is hard of hearing, suffers from hand tremors, and experiences constant lower back pain that prevents her from standing for long.

      The husband also testified to keeping accounts in his former paramour's name, albeit for different purposes, but generally because he "didn't want it to appear that it's [his] money."

      At the time the judgment was issued the husband had a contempt order against him in an amount exceeding $130,000 for unpaid child support and alimony.

      The judge did not make specific findings on the factors set forth in G. L. c. 208, § 53(e )(2)-(4), (6), (7).

      On August 25, 2016, the parties filed a "[s]tipulation of the [p]arties" with the Probate and Family Court. The stipulation states that it "shall represent full and final settlement for all disputes related to alimony, and child support, including interest, through September 2017." Because we affirm, we need not determine whether the stipulation waives the husband's right to attempt to recover alimony from the wife.


text:
    COMMONWEALTH v. Kevin LEWIS.
    17-P-1484
    Appeals Court of Massachusetts.
    Entered: August 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion, pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), to withdraw his 2003 guilty pleas. He argues that the pleas were not voluntary and knowing because plea counsel failed to provide effective assistance, and that there were special circumstances supporting a conclusion that the defendant placed particular emphasis on immigration consequences in deciding whether to plead guilty. We affirm, essentially for the reasons explained in the judge's ruling.

On August 8, 2003, the defendant was charged in the District Court with possession of "crack" cocaine with intent to distribute, possession of crack cocaine, assault and battery on a police officer, and resisting arrest. On December 11, 2003, the defendant, represented by counsel, pleaded guilty to counts one, two, and three, and received concurrent sentences of probation for one year. At the time of the pleas, both the defendant and his attorney signed and submitted to the court a tender of plea or admission waiver of rights form (green sheet), indicating that he had discussed his "constitutional and other rights" with his attorney, and that he understood that, if he was not a citizen of the United States, his pleas may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization. Although the Commonwealth recommended concurrent six-month house of correction sentences on each charge, the plea judge imposed concurrent terms of one year of probation. The defendant successfully completed his probation term, and his probation was terminated at the end of the year.

On December 13, 2016, more than thirteen years later, the defendant filed a motion to vacate his guilty pleas, arguing ineffective assistance of counsel. In the motion, he alleged ineffective assistance by plea counsel for failing to advise him of the immigration consequences that would result from his guilty pleas. Specifically, the defendant claimed that, had counsel informed him of the potential consequences, he "would have asked [his] lawyer to try and negotiate a different plea or gone to trial regardless of the risks, rather than simply agree to an offense that would bar legal status and result in [his] removal." He alleged that, as a result of counsel's deficiency, his pleas were not knowing and voluntary. On December 28, 2016, without a hearing, the motion judge, who was not the plea judge, denied the motion; the defendant timely appealed.

"A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b)." Commonwealth v. Lavrinenko, 473 Mass 42, 47 (2015), quoting from Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). When a defendant appeals from the denial of his motion for new trial under Mass.R.Crim.P. 30(b), we review "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).

In addition, when the motion is based on a claim of ineffective assistance, "[t]o prevail, the defendant bears the burden of showing that his attorney's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that he suffered prejudice because of his attorney's unprofessional errors." Lavrinenko, 473 Mass. at 51, quoting from Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).

The defendant has not shown that plea counsel failed to provide effective assistance. Given the passage of time, there is no transcript of the plea hearing available; however, other contemporaneous evidence -- the green sheet and the notation on the docket that the judge gave the required immigration warning pursuant to G. L. c. 278, § 29D -- suggests that the defendant was adequately advised of the consequences that his convictions would have for his immigration status. Motion counsel stated in his supporting affidavit that, although plea counsel told him that he had no recollection of the defendant's case, he informed motion counsel that he "always explained" his clients' immigration rights to them, and that he "told every client that they could be deported." There is no affidavit from plea counsel included in this record.

"When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source." Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). "A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial and may evaluate them in light of factors pertinent to credibility, including bias, self-interest, and delay." Commonwealth v. Torres, 469 Mass. 398, 403 (2014).

In addition, even if the defendant could, on this record, satisfy the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), that is, to show that plea counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," he has failed to show that "he would have rejected the plea but for the incompetent advice of counsel." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 763 (2002). "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, 460 Mass. at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant also must "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Clarke, 460 Mass. at 47, quoting from Padilla v. Kentucky, 559 U.S. 356, 372 (2010). "The judge must determine, based on the credible facts, whether there is a reasonable probability that a reasonable person in the circumstances of the defendant would have chosen to go to trial had he or she received constitutionally effective advice from his or her criminal defense attorney regarding the immigration consequences of a guilty plea." Lavrinenko, 473 Mass. at 55.

The defendant here fails to meet this burden. See Saferian, supra. As noted, defense counsel negotiated a plea agreement with the Commonwealth that gave the defendant an opportunity to argue against a jail sentence; the judge then adopted counsel's recommendation of probation rather than the Commonwealth's request for concurrent six-month sentences in the house of correction. The evidence against the defendant was strong, and the negotiated plea produced for him a favorable disposition -- one year straight probation on charges of possession of cocaine with intent to distribute and assault and battery on a police officer. He points to no ground of defense that he reasonably could have pursued at a trial, nor is one apparent from the record. As a result, the defendant offers no persuasive reason to conclude that any additional efforts by counsel, either in plea negotiations or at a trial, could have produced a better deal for him.

The defendant also has failed to prove any " 'special circumstances' to support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, 460 Mass. at 47-48, quoting from Hill, 474 U.S. at 60. The motion judge's findings indicate that he implicitly discredited the defendant's self-serving affidavit, averring that he "would have done virtually anything to avoid deportation to Jamaica, where [he] had no support system." In addition, it is worth noting that the record contains no affidavits from any members of his "support system" in the United States.

The defendant's claim that his pleas were neither intelligent nor voluntary is also unavailing. The motion judge was warranted in rejecting the defendant's affidavit, and there is thus no available basis on which to conclude that the pleas were defective.

We see no abuse of discretion in the denial of the defendant's motion to withdraw his guilty pleas. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order denying motion to withdraw guilty pleas affirmed.

      The police report included in the record indicates that the defendant was arrested by an undercover police officer. Acting on an informant's tip, the officer had arranged to meet with an individual to purchase cocaine. When the defendant appeared, the officers identified themselves as police officers, and the defendant turned to run. One officer observed what he believed to be a quantity of cocaine in the defendant's mouth, but the defendant struggled, punching and kicking at the officers. One rock of cocaine was recovered after the defendant spit it from his mouth. Officers believed that the defendant swallowed additional rocks of cocaine during the struggle.

      The charge of possession of crack cocaine was dismissed.

      As noted in the Commonwealth's brief, the defendant has provided us only with an unsigned copy of his motion and attached supporting affidavits. He likewise has failed to include the pages of the trial court docket reflecting the filing of his motion and related documents. Nonetheless, the Commonwealth does not challenge the authenticity of the filings, and in the interest of judicial economy, we address the merits of the matter despite this inadequate record. Cf. Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999).

      The defendant's affidavit in support of his motion does not state what family members live in the United States, or where they live, or how they support him. He told the arresting police officer that "he had no address and sleeps in his vehicle on occasion. He did have an Ontario Canada drivers license but he stated he [did] not live there as of [then]."


text:
    COMMONWEALTH v. Jorge MORENO.
    16-P-1757
    Appeals Court of Massachusetts.
    Entered: August 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jorge Moreno, appeals from his convictions of two counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, and one count of open and gross lewdness, G. L. c. 272, § 16. He alleges a number of errors by the prosecutor, the trial judge, and defense counsel. For the reasons discussed below, we affirm.

Background. We summarize the facts the jury could have found, reserving certain details for discussion of specific issues. One night in November, 2011, eight year old Clair told her mother that the defendant had sexually assaulted her multiple times since she was about six years old. The defendant was Clair's older sister's live-in boyfriend; he, Clair's sister, Clair, and her mother all lived together in an apartment in Chelsea along with several other family members. Clair detailed in her testimony a number of episodes in which the defendant, under a pretense of having Clair help him with something, isolated her in the apartment, exposed himself to her, and forced her to touch his exposed penis. On at least one occasion the defendant made Clair touch "[h]is private" and "showed [her] something white coming out ... of his private" that looked like milk. On another occasion, the defendant entered Clair's bedroom and took the clothes off of Clair's large, forty-inch-tall "Barbie" doll. The defendant then told Clair to lie on top of the undressed doll and kiss it, which she did for five to ten minutes before the defendant told her to stop.

Discussion. 1. Doll evidence. The bulk of the issues raised by the defendant on appeal concern the admissibility as an exhibit at trial, and role in the evidence, of the forty-inch-tall "Barbie" doll that belonged to Clair. More specifically, the defendant argues that (1) the prosecutor exhibited misconduct by introducing the doll and the trial judge erred in allowing it into evidence because it related to an uncharged prior bad act that was irrelevant and prejudicial, (2) two Commonwealth witnesses impermissibly testified about the doll, (3) trial counsel ineffectively cross-examined the mother about prior statements involving the doll, and (4) the prosecutor impermissibly included arguments about the doll in her closing. On the record before us, none of these arguments is persuasive.

Clair testified at trial that during one of the incidents of alleged abuse, the defendant took off the doll's clothes, "made [her] get on it," and told her to kiss the doll. In addition, the mother testified on cross-examination that Clair told her the defendant masturbated on the doll. Prior to trial, the trial judge addressed the doll's admissibility in response to the Commonwealth's motion in limine, and ruled on its relevance. We see no error in the judge's ruling.

Under the circumstances of this case, it was not misconduct for the Commonwealth to seek to admit the doll as an exhibit. The doll was material evidence that was relevant to the case. See Mass. G. Evid. § 401 (2018). As referenced above, Clair testified regarding the doll's use in the abuse alleged, and defense counsel elicited testimony from the mother that the child had previously told her something about the defendant masturbating on the doll.

It was also not improper for the Commonwealth to elicit testimony on the investigators' obtaining and testing of the doll. The record shows that the testing came about as a result of Clair's and her mother's references to the doll's role in the alleged abuse. Under those circumstances, it was not misconduct by the Commonwealth to seek to admit the doll or to elicit brief testimony on how the investigators obtained and tested the doll. The trial judge considered these issues prior to trial and ruled the doll evidence admissible. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982) ("The prosecution was entitled to present as full a picture as possible of the events surrounding the incident itself"). Accordingly, Detective D'Alba described obtaining the doll from the mother, and the forensic scientist testified that no seminal fluid or other forensic evidence was recovered from the doll. The prosecutor then stated in her closing that there were "plenty of reasons" why semen would not be found on the doll, which was consistent with the forensic scientist's testimony.

Therefore, we discern no judicial error, prosecutorial misconduct, or ineffectiveness by defense counsel regarding the doll. We agree with the motion judge and do not view the limited testimony regarding the doll as overreach by the Commonwealth in order to vouch for, or "create[ ] the imprimatur of official belief in the complainant." Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). Nor was defense counsel's strategy with regard to the doll manifestly unreasonable; once the judge ruled the doll admissible, counsel took reasonable steps to limit the prejudice to the defendant. Finally, because it was based on the evidence, the prosecutor's statement during her closing that there were "plenty of reasons" why semen would not be found on the doll was not error.

2. Mother's testimony. The defendant next claims that the Commonwealth improperly elicited false testimony from the first complaint witness, Clair's mother. The defendant cites a number of instances of what his new trial motion labels as inconsistencies -- either between the mother's testimony at trial and her prior statements, or between the mother's and Clair's testimony with regard to certain elements of Clair's disclosure. The defendant also challenges his trial counsel's choices in his cross-examination of the mother. We examine the defendant's claim under the familiar two-prong approach set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the first of which is whether the cross-examination fell measurably below that of an ordinary fallible lawyer. We must defer to a counsel's trial strategy and tactics unless they were "manifestly unreasonable." Commonwealth v. White, 409 Mass. 266, 273 (1991).

Here, the record does not support the defendant's claim of prosecutorial misconduct or that of ineffective assistance of counsel. Rather, the record demonstrates the common occurrence that the testimony of the complainant, Clair, and the first complaint witness, her mother, was not always consistent. See Commonwealth v. King, 445 Mass. 217, 235 (2005), cert. denied, 546 U.S. 1216 (2006) ("Some inconsistency ... is expected, and will often aid the jury"). It was up to defense counsel to "exploit such discrepancies during both cross-examination and closing argument," Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 587 (2013), which he undertook in a reasonable manner. Cross-examination of a first complaint witness regarding discrepancies between a complainant's testimony and the first complaint witness's is "not a manifestly unreasonable trial strategy, even where this strategy ultimately result[s] in the admission of some evidence that the jury might otherwise not have heard." Commonwealth v. Kebreau, 454 Mass. 287, 300 (2009). The weight and credibility of the witnesses' testimony are left for the jury to determine. King, supra.

Furthermore, we discern no evidentiary error, and thus no prosecutorial misconduct regarding the scope of the mother's first complaint testimony. A first complaint witness is permitted to testify to the fact of the complaint, the circumstances surrounding the making of the complaint, and the details of the complaint itself. Id. at 218-219. See Commonwealth v. Santos, 465 Mass. 689, 699-700 (2013). Here, the mother testified that Clair told her that "[the defendant] took his pants down and all of his clothes, and he forced her to touch his part until his milk came out." The mother testified that Clair told her "[the defendant] had done this many times since we had lived at [their previous apartment] when I had gone to work and [Clair] had stayed with [Clair's older sister]." The mother also testified regarding the doll. The mother ended her testimony by noting that the day after Clair's disclosure, the mother initially notified the school "that [Clair] was not going to go because she was ill," but she later took Clair to school and "asked to speak with a worker." This brief testimony was a natural outcome of a description of the circumstances surrounding the making of the complaint, and it does not rise to the level of inappropriate vouching for the credibility of the disclosure. See Kebreau, supra at 298 (brief mention of call to Department of Social Services did not create substantial risk of miscarriage of justice). Therefore, we conclude that the mother's testimony did not exceed the bounds of the first complaint doctrine.

3. Commonwealth's expert testimony. Finally, the defendant argues that his trial counsel also was ineffective for failing to effectively cross-examine Dr. Tishelman on the subject of delayed disclosure. He singles out trial counsel's questions to Dr. Tishelman regarding a possible relationship between puberty and sexual awareness, and the doctor's answers of strong disagreement, as evidence that trial counsel elicited damaging testimony. However, that exchange only constitutes a part of the cross-examination. Counsel also covered issues of bias, the lack of connection between delayed disclosure and the truth, the percentage of abused children who delay disclosure, and information available within school systems directed at abuse prevention and reporting. Viewed as a whole, there was nothing manifestly unreasonable about counsel's cross-examination.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant's direct appeal from his convictions was consolidated with his appeal from the denial of his motion for a new trial.

      A pseudonym. See G. L. c. 265, § 24C.

      For example, defense counsel pointed out that no semen was discovered on the doll during forensic testing. He also cross-examined the mother regarding inconsistencies between what Clair told her about the doll and what Clair testified to.

      The forensic scientist testified that a number of factors could cause a negative test result, such as extreme temperature or the lack of "seminal fluid residue."

      The defendant erroneously argues that the prosecutor promised during the motion in limine hearing that she would "stay away from any extra facts" but did not "keep her word" when she elicited this testimony from the mother at trial. However, the transcript of the motion hearing makes clear that the prosecutor was referring to the mother's claim that Clair told her that she awoke on the couch to the defendant touching her, which Clair could no longer recall.

      See discussion part 1, supra.

      Other points argued by the defendant that are not discussed in this decision have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Sean R. SOMERS.
    17-P-681
    Appeals Court of Massachusetts.
    Entered: August 29, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Sean R. Somers, of aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(c )(i). , On appeal, he contends that the motion judge erred in denying his motion to suppress several eyewitness identifications, and that the trial judge erred in denying his motion for individual voir dire of prospective jurors for potential bias regarding eyewitness identification testimony and in improperly instructing the jury on both assault by means of a dangerous weapon and reckless assault and battery by means of a dangerous weapon. We affirm.

Discussion. 1. Motion to suppress. The defendant challenges the identifications by two eyewitnesses, Manuel Miranda and Michael Miranda. He asserts that those out-of-court identifications were unnecessarily suggestive and resulted in unfair prejudice to him. We disagree.

Unfair prejudice arises from "suggestive circumstances" surrounding the identification. Commonwealth v. Johnson, 473 Mass. 594, 600 (2016). "The probative value of the identification depends on the strength of its source independent of the suggestive circumstances of the identification." Id. at 601.

In this case, together Manuel and Michael made a total of three out-of-court identifications. The first occurred while Michael was being interviewed at the Wareham police station. In the course of being questioned, Michael saw the defendant walk past the doorway of the room he was in and stated, "That's the punk right there" -- indicating that the defendant was the individual who had stabbed the victim.

That encounter between Michael and the defendant was accidental -- there is no evidence that the police paraded the defendant in front of Michael intentionally. Nor was there any evidence of "highly or especially suggestive circumstances." Id. at 598. According to the evidence from the suppression hearing, Michael and the defendant were two of several individuals from the scene who were at the police station that evening, and, when Michael saw him, the defendant was not restrained. Under these circumstances, we do not conclude that Michael's spontaneous identification of the defendant was the product of "suggestive circumstances." Id. at 600.

In any event, the probative value of the identification "substantially outweigh[ed]" the danger of any unfair prejudice. Ibid. Michael, who was only a few feet away from the defendant when he witnessed the stabbing, was in a good position to identify the stabber. He already had provided the police with a description matching the defendant before he spontaneously identified him, and he made that spontaneous identification a few hours after the incident when the details of the crime would still be fresh in his mind. See id. at 601 (strength of identification depends on "quality of the witness's opportunity to observe the offender at the time of the crime, the amount of time between the crime and the identification, [and] whether the witness's earlier description of the perpetrator matches the defendant").

The defendant next challenges the two photographic (photo) identifications made by Manuel and Michael. A photo identification is only inadmissible "if the defendant proves by a preponderance of the evidence that the identification was 'so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.' " Id. at 597, quoting from Commonwealth v. Walker, 460 Mass. 590, 599 (2011). The defendant has failed to meet that burden.

Separately, Manuel and Michael were each asked to identify the defendant from a photo array. The defendant takes issue with the failure by the police to follow the protocol for photo identification adopted in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-799 (2009), which provided that, when conducting a photo identification, police officers should display the photographs sequentially rather than simultaneously. However, the use of simultaneous display does not by itself render an identification inadmissible. Commonwealth v. Thomas, 476 Mass. 451, 464 (2017).

Here, the photo identifications of the defendant were not so suggestive as to preclude their admission. See ibid. The police assembled an array containing eight photographs, when only five photographs would have been sufficient. See Commonwealth v. Allen, 22 Mass. App. Ct. 413, 416-417 (1986). In avoiding the risk of the defendant's photograph standing out from the rest, the police also obscured the right side of the necks of the individuals displayed so that the defendant's tattoos did not show. See Commonwealth v. Melvin, 399 Mass. 201, 207 n.10 (1987) (disapproval of photo arrays that distinguish suspect from others on basis of some physical characteristic). In addition, the officer who created the photo arrays did not also administer the identification procedure. See Thomas, supra at 454 n.2 (double-blind identification procedure preferred). Finally, prior to administering the photo identification procedure, each officer gave the Supreme Judicial Court's suggested written warnings on the limitations of photo arrays. See Silva-Santiago, supra at 797-798. Accordingly, we discern no error.

2. Individual voir dire. We also are not persuaded that the trial judge erred in denying the defendant's motion for individual voir dire of prospective jurors for potential bias regarding eyewitness testimony. "It is in the sound discretion of trial judges to determine on a case-by-case basis whether an individual voir dire is required." Commonwealth v. Pina, 430 Mass. 66, 74 (1999). "We ... reverse a judge's failure to question jurors individually upon request only 'when a "substantial risk" of bias has been shown.' " Ibid., quoting from Commonwealth v. Hunter, 427 Mass. 651, 654 (1998).

While jurors can unconsciously misjudge the value of eyewitness testimony, see Commonwealth v. Gomes, 470 Mass. 352 (2015), the defendant's broadly framed questions would not have alleviated these concerns. Moreover, in this case, the trial judge examined the prospective jurors as outlined in G. L. c. 234, § 28. He also gave the Gomes instruction on eyewitness testimony on two occasions -- once before the first identification witness identified the defendant and, again, during his final charge to the jury. See id. at 379-388 (Appendix). Accordingly, there was no error. See Commonwealth v. Reavis, 465 Mass. 875, 889 (2013) (no individual voir dire necessary where no likelihood of extraneous influences).

3. Instructions on assault by means of a dangerous weapon. The defendant challenges on two grounds the trial judge's instruction on the lesser included offense of assault by means of a dangerous weapon where the Commonwealth proceeded on the theory of attempted battery. He first argues the instruction was not "suggested by a reasonable view of the evidence." Commonwealth v. Nardone, 406 Mass. 123, 132 (1989). We disagree.

To support a conviction of assault by means of a dangerous weapon, the evidence must establish that the defendant had (1) the specific intent (2) to attempt (3) to use physical force against another (4) with a dangerous weapon. See Commonwealth v. Gorassi, 432 Mass. 244, 248-249 (2000) ; Commonwealth v. Aldrich (No. 1), 88 Mass. App. Ct. 113, 118 (2015) ("[A]ttempt crimes have as an element a specific intent to commit all of the elements of the offense"). Here, there was evidence that the defendant was one of two people "waiving [his] knife from left to right" at a group of individuals. He was observed "jabbing" the knife toward the crowd gathered in front of him. The jabbing motion constituted not only a threat of harm, but also an attempted touching. Therefore, because an attempted battery against a group may constitute an assault against each member, see Commonwealth v. Dello Iacono, 20 Mass. App. Ct. 83, 84, 89-90 (1985), and the victim was a member of that group, the defendant's argument fails.

The defendant's contention that the evidence did not establish the victim's location in the group is equally unavailing. The evidence established that the victim was among the individuals gathered when the defendant jabbed his knife at the group, and that he was ultimately stabbed. The jury could reasonably infer from these facts that the victim was among the people up front and close to the defendant during the assault. Therefore, the trial judge did not err in instructing on this lesser included offense.

The defendant next asserts that the trial judge erred in his specific intent instruction as to the element of assault. We again are not persuaded. The trial judge instructed on specific intent three times. The first time he properly defined specific intent, quoting from Commonwealth v. Nickerson, 388 Mass. 246, 253-254 (1983). Even assuming that the trial judge misspoke when defining specific intent the second time that he addressed the jury, he correctly defined specific intent when addressing the jury for a third time. We look to the "interpretation a reasonable juror would place on the judge's words ... rather than scrutinizing bits and pieces removed from their context." Commonwealth v. Allen, 474 Mass. 162, 168 (2016), quoting from Commonwealth v. Harris, 464 Mass. 425, 434 (2013). This third and final instruction to the jury on specific intent, like his first, was proper. Therefore, evaluating the trial judge's instruction as a whole, we are not persuaded that the instruction was erroneous. See Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 476 (1998).

4. Instruction on reckless assault and battery by means of a dangerous weapon. Last, the defendant contends that the trial judge erred by instructing the jury on reckless assault and battery by means of a dangerous weapon because the evidence did not support an instruction on that lesser included offense. Reckless assault and battery occurs when "a wilful, wanton and reckless act ... results in personal injury to another." Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274 (1983). Here, the evidence indicated that the defendant "dagger[ed]" his knife toward a crowd, eventually stabbing the victim in the chest. The jury could have also reasonably viewed this behavior as reckless. See Nardone, 406 Mass. at 132 (instruction on lesser included offense should be given where suggested by reasonable view of evidence). There was no error.

Judgment affirmed.

      We note, based on the record before this court, that the lower court docket states that the defendant was convicted of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b).

      The Commonwealth filed prior to trial a nolle prosequi for two charges of armed assault with intent to murder; the judge entered a required finding of not guilty on a charge of assault by means of a dangerous weapon and dismissed a charge of assault and battery by means of a dangerous weapon as being merged in the remaining count of aggravated assault and battery by means of a dangerous weapon.

      Due to their shared surname, we refer to them individually by their first names.

      At the motion hearing, the officer escorting the defendant testified that he had no memory whether the defendant was handcuffed at that time, but that in that type of situation he "[n]ormally" would not use handcuffs. At trial, Michael testified that the defendant was in handcuffs when he saw him in the police station. However, "in reviewing a judge's ruling on a motion to suppress, an appellate court 'may not rely on the facts as developed at trial' even where the testimony differed materially from that given at trial." Commonwealth v. Deramo, 436 Mass. 40, 43 (2002), quoting from Commonwealth v. Grandison, 433 Mass. 135, 137 (2001).

      Where, as here, a knife is used in a dangerous manner, it is a dangerous weapon. See Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984) (where object not dangerous per se, question is "whether the object, as used by the defendant, is capable of producing serious bodily harm").


text:
    COMMONWEALTH v. Samuel RAMOS.
    16-P-1754
    Appeals Court of Massachusetts.
    Entered: August 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, the defendant, Samuel Ramos, was convicted of two counts of unlawful distribution of heroin and one count of illegal possession of cocaine. In a subsequent jury-waived trial, the defendant was also convicted as a habitual offender. On appeal the defendant argues that (1) the evidence before the grand jury was insufficient to sustain the indictments; (2) the trial evidence was insufficient to sustain his convictions; (3) his motion to suppress should have been allowed because the Terry-type stop was not justified; and (4) the evidence was insufficient to support the habitual offender counts. We affirm.

1. Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts.

By June, 2015, the Springfield police department had begun an investigation into the distribution of narcotics from an apartment on the first floor of 113 Euclid Avenue (apartment) involving Roberto Morales and Freddie Borrero. As part of that investigation, undercover police officer Christian De La Cruz conducted three "controlled buys" of heroin and cocaine from the suspects, all in front of the apartment, between June 25 and July 2. During at least one of those buys, De La Cruz saw other individuals making what appeared to be narcotics purchases from Borrero and Morales.

On July 8, 2015, police obtained a search warrant for the apartment. Before executing the warrant, De La Cruz was directed to make another controlled buy. Borrero was standing outside the apartment when De La Cruz approached. He consummated the cocaine purchase with Borrero and asked if he had one hundred bags of heroin to sell. Borrero said he did not have that amount and would "have to arrange for someone to deliver that." Borrero made the telephone call to be resupplied in De La Cruz's presence. While they waited, De La Cruz observed other individuals approach the home and purchase narcotics directly from Borrero.

Eventually a Nissan Murano pulled up to the building and stopped. The Murano's driver, later identified as Mark Matthieu, was accompanied by the defendant, who was sitting in the front passenger seat. Referencing the Murano, Borrero indicated to De La Cruz that this was the heroin delivery. Borrero went to the driver's side of the vehicle and De La Cruz saw Borrero hand cash to Matthieu in exchange for an item.

De La Cruz noticed that during the transaction the defendant "looked in the front, he looked to the side, and he looked to the rear." He neither appeared nervous, nor attempted to get out of the vehicle. The defendant's behavior alerted De La Cruz to the possibility that he may have been acting as a lookout. He considered it unlikely that he was merely a buyer because, according to De La Cruz, buyers "typically ... approach [the dealer] very nervously and in a rush" because "[t]hey want to get the drug, use it, and be done with the whole interaction. In any event, as Borrero walked away from the Murano he signaled to De La Cruz to follow and De La Cruz completed the purchase of heroin from Borrero.

Matthieu began to drive the Murano away from the area, together with his passenger, the defendant. Detective Jaime Bruno, who was among the undercover officers surveilling the controlled buy, was directed to follow them. Bruno, an experienced narcotics investigator, explained that drug transactions often occur in a matter of seconds because the details have been arranged in advance by cellular telephone (cell phone). Bruno also testified that he has seen individuals acting as a lookout during a drug transaction. They keep an eye out for anyone "trying to rob the person that is involved in the actual hand-to-hand sale and also to look for police activity, [and] make observations if somebody is approaching where the sale is taking place."

Bruno was able to follow the Murano as it left the scene, without losing sight of the vehicle. The Murano drove directly to a nearby Citgo gasoline (gas) station, without making any intervening stops, and pulled into the parking lot. Bruno parked his vehicle on the opposite side of the gas pump from where the Murano was located. He noticed that a male, later identified as a Mr. Risciotti, had been waiting at the Citgo station when the Murano pulled into the parking lot.

As soon as the Murano stopped, the defendant got out of the vehicle and walked to the front of the store, and Risciotti headed toward the vehicle. The defendant did not go into the store but stood outside appearing to talk on his cell phone while "looking around in different directions." He seemed to have an unobstructed view of the parking lot and "looked around very aware of what was going on, making himself aware of his surroundings." When Bruno refocused on the Murano, he saw Risciotti standing at the driver's side door handing Matthieu cash in exchange for receiving several small white packets. When the transaction was complete, the defendant rejoined Matthieu in the vehicle. Bruno communicated with the other officers in the area and they moved in and arrested all three suspects.

A search of the defendant turned up a plastic bag that contained five glassine packets that were secured with a rubber band and later found to contain heroin. A small packet was retrieved from the defendant's pants pocket containing a substance that was later determined to be cocaine, and police also found a cell phone in his possession. No other phone or implements of drug use were found either in the Murano or in the possession of either occupant.

A narcotics expert, Lieutenant Steven Kent, testified to the characteristics of a lookout in a drug transaction. According to Kent, the individual does not pay attention to the drug deal, but is instead looking around at cars going by, cars in the parking lot, and checking for police. A lookout will often put himself in a better position to view the entire scene, rather than stay at the location of the transaction. Their head appears to be "on a swivel," surveying the area. In addition, when an individual who has arrived with a drug dealer and engages in behaviors consistent with that of a lookout returns to the vehicle, and prepares to leave with the same individual instead of leaving the scene, the behavior further bolsters the conclusion that the person is acting as a lookout. Based on the police report and additional facts provided in questions posed by the prosecutor, Kent gave an opinion that the defendant's behavior was consistent with someone acting as a lookout during a drug transaction.

Kent also gave an opinion that the five packets of heroin found on the defendant were consistent with selling drugs, not using them. Given that heroin is usually packaged in bundles of ten bags, the remaining five bags bundled together with a rubber band suggested to Kent that the other bags had been pulled off and sold. Kent testified that the lack of implements to use narcotics is more consistent with dealing drugs than using them. In addition, Kent testified that because only the defendant had a cell phone, it indicated customers were communicating with the defendant as opposed to the driver. Based on these circumstances, Kent opined that the defendant's behavior was "consistent with a person acting in concert with another person to distribute heroin."

2. Discussion. a. Grand jury evidence. The defendant first contends that the indictments were not supported by probable cause. To sustain an indictment, the evidence presented to the grand jury need only be " 'sufficient to warrant a reasonably prudent [person] in believing that the [accused] had committed' the offense." Commonwealth v. Rakes, 478 Mass. 22, 29 (2017), quoting from Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). " 'This standard ... has been employed primarily to strike down indictments in cases where a grand jury has heard ... no evidence whatever that would support an inference of the defendant's' guilt." Ibid., quoting from McCarthy, supra.

In this case the grand jury heard evidence similar to that adduced at trial. Specifically, they heard Officer De La Cruz's account of the investigation as it appeared in his police report, including what he and other officers observed at both the apartment and the Citgo station on July 8, 2015. The grand jury were also informed that the defendant was arrested in possession of cocaine and heroin that day.

This evidence is sufficient to warrant a finding of probable cause to believe the defendant was assisting the driver of the Nissan Murano in the delivery of narcotics to at least the male at the Citgo station. See Commonwealth v. Ward, 45 Mass. App. Ct. 901, 902 (1998) ; Commonwealth v. Lara, 58 Mass. App. Ct. 915, 915-916 (2003).

b. Sufficiency of the evidence at trial. Viewed in the light most favorable to the Commonwealth, there was also sufficient evidence to support the defendant's conviction under a theory of joint venture. The defendant's presence, in combination with " 'plus' factors, 'i.e., incriminating evidence of something other than presence,' " establish that he was engaged in a joint venture with Matthieu. Id. at 916, quoting from Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 149 (1999). See Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009) ("joint venture criminal liability has two essential elements: that the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent"). These plus factors are (1) the defendant's presence and behavior in the Murano while Matthieu sold drugs from the driver's seat at Euclid Avenue; (2) the defendant continuing with Matthieu to the Citgo station and his immediate departure from the vehicle upon their arrival as a male approached; (3) the defendant taking up a stance outside the Citgo store while "look[ing] around ... making himself aware of his surroundings" as Matthieu sold drugs to the male; (4) the defendant rejoining Matthieu in the vehicle as soon as the transaction was complete; (5) the defendant being the only individual in the Murano with a cell phone, together with evidence that the Euclid Avenue dealer had ordered a resupply of heroin via telephone; and (6) the defendant found in possession of drugs packaged in a manner consistent with distribution. With respect to the third and fifth factors, police opinion testimony bolstered the conclusion that the defendant's actions were consistent with those of a lookout, and that the defendant was likely communicating with customers because only he possessed a cell phone.

Viewing the evidence in totality, including the reasonable inferences drawn therefrom, the jury could conclude that the defendant and Matthieu were engaged in a joint enterprise to sell cocaine and heroin. Not only does the evidence show that the defendant acted as a lookout on at least one occasion, but also that he kept some of the drugs for sale on his person, that he communicated using his cell phone with those seeking to buy narcotics, and that he did so working in concert with Matthieu. See Commonwealth v. Pope, 15 Mass. App. Ct. 505, 510-511 (1983), quoting from Commonwealth v. Conroy, 333 Mass. 751, 755 (1956) (defendant's location at the time of a home break-in by another permitted inference that defendant "by prearrangement was stationed in a position where he might render ... aid and encouragement"); Ward, 45 Mass. App. Ct. at 902 (a person who acts as a lookout while others engage in a crime can be convicted as a joint venturer); Lara, 58 Mass. App. Ct. at 915-916.

Commonwealth v. Saez, 21 Mass. App. Ct. 408 (1986), relied on by the defendant, is different than the present case. There, the evidence showed that one Gonzales approached the defendant, Saez, and spent over an hour with him. During this period, Saez was seen "loo[king] up and down the street" (1) while Gonzales engaged in an apparent drug transaction right next to him; and (2) as Gonzales hid drugs nearby. See id. at 409. The men had just separated when Saez examined the street the second time, and there was no evidence that they reunited or even communicated thereafter. Ibid. The court found that the Commonwealth's evidence was "notable for its lack of detail" and that Saez's conduct was "ambiguous," "commonplace," and "equally" suggestive of innocent motive. Id. at 411-412 (citation omitted). By contrast, here, as discussed above, there was ample and detailed evidence of coordination between the defendant and Matthieu, which showed that they were working in sync to complete a prearranged drug sale. This included evidence that the defendant was found to be in possession of (a) contraband packaged in a manner consistent with sales, and (b) the only cell phone, which, by reasonable inference, could have been used to communicate with customers. In this case, unlike in Saez, the plus factors tip the scale in favor of sufficiency.

c. Motion to suppress. The defendant also argues, relying again on Saez, supra, that his motion to suppress was improperly denied because the evidence did not support a finding that the police had reasonable suspicion to stop the defendant. Based on the evidence discussed above, we agree with the motion judge that the collective knowledge of the police "provided reasonable suspicion to believe that ... Matthieu and [the defendant] were engaging in illicit drug distribution" and were therefore "justified in stopping the Murano." See Commonwealth v. Andrews, 34 Mass. App. Ct. 324, 327 (1993).

d. Habitual offender enhancement. Lastly, the defendant argues that the habitual offender portion of the indictment should be dismissed because it shows only one prior criminal episode. The argument is unavailing. The evidence presented to the grand jury makes clear that the first conviction, for unarmed robbery, occurred on March 28, 2011, and the second conviction, for breaking and entering, occurred on April 28, 2011. See G. L. c. 279, § 25(a ). Contrast Commonwealth v. Garvey, 477 Mass. 59, 68 (2017) (affirming order dismissing habitual offender portions of indictments where "the grand jury heard no evidence that would allow them to conclude that the defendant's prior convictions stemmed from separate criminal episodes").

Judgments affirmed.

      The defendant was originally charged with unlawful possession of cocaine with the intent to distribute, but at the conclusion of the Commonwealth's case the judge allowed so much of the defendant's motion for a required finding of not guilty as reduced the count to illegal possession of cocaine.

      See Terry v. Ohio, 392 U.S. 1 (1968).

      At that time, Bruno had worked in the Springfield police department for twenty years, and during the last fifteen years he had been assigned to the narcotics bureau including eight years as an undercover officer making purchases of narcotics. He testified he had been involved in thousands of street level heroin and cocaine transactions.

      The first time Kent gave an opinion, the defendant objected, on the second occasion, he did not.

      The defendant does not claim that the evidence before the grand jury was insufficient to establish his identity. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (evidence must be sufficient "to establish the identity of the accused ... and probable cause to arrest him").

      The evidence before the grand jury showed that the defendant was the sole passenger in the Murano that stopped at 113 Euclid Avenue -- a site known by police for the sale of drugs -- where the driver delivered narcotics that had been ordered, before continuing to a nearby Citgo gas station. Upon arrival at the Citgo station, the defendant exited the vehicle and walked to the front of the store and looked around as if he was a lookout, while a male who had been waiting at the gas station approached the vehicle. The male purchased narcotics from the driver and, as he walked away, the defendant returned to the vehicle. All three men were then arrested. Both a bag of cocaine and heroin were found in the defendant's possession. The driver's wallet was located in the glove compartment and contained $800.

      We reject the defendant's claim that Kent, a nonpercipient police witness, was improperly allowed to give an opinion that the defendant's behavior was consistent with that of a lookout. See Commonwealth v. Miranda, 441 Mass. 783, 794 (2004). Kent's opinion was not only based on the police report, but also on facts provided by the prosecutor during questioning and, therefore, had a sufficient foundation. Even if we were to conclude otherwise, the testimony was not unduly prejudicial. The judge plainly instructed the jury that they could reject expert testimony, and this instruction in combination with testimony that is not challenged on appeal from percipient police witnesses that included a description of a lookout's behavior, provided sufficient detail to allow the jury to form their own opinion regarding the defendant's behavior without the expert's opinion.


text:
    In the MATTER OF Elizabeth S. PAYSON.
    17-P-1425
    Appeals Court of Massachusetts.
    Entered: August 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   T.D. Bank, N.A. (bank), as successor trustee of a testamentary trust, created by the will of Elizabeth S. Payson (testatrix), sought instructions in the Probate and Family Court as to the proper final distribution of the principal of the trust. In the bank's view, the use of the terms "children" and "issue" created an ambiguity in the trust instrument. Five people filed objections to the petition -- the four living grandchildren of the testatrix, and, also, one of her seven great-grandchildren.

The judge concluded that the terms were not ambiguous and that the principal of the trust should be distributed equally among the four living grandchildren, along with their seven children (the great-grandchildren), for a total of eleven beneficiaries. Randolph Payson Duncan, one of the grandchildren appealed; the bank did not file a brief, but Catherine F. Duncan, one of the great-grandchildren, filed a brief as an appellee. After review, we conclude that the four living grandchildren of the testatrix are the proper beneficiaries, in equal shares. As a result, we vacate the decree, and remand the case to the Probate and Family Court for further proceedings consistent with this opinion.

Background. The February 9, 1960, will of the testatrix, in its residuary clause, the fourth clause, created a trust for the benefit of her husband, whereby he received the net income derived from the trust according to a designated payment schedule. Upon the husband's death, their only daughter, Elizabeth Payson Duncan (daughter), received the net income "during the term of her natural life." Upon the death of the daughter, paragraph four of the fourth clause then instructs:

"to pay the net income [derived from the trust] to the children of my said daughter, until the youngest shall have attained the age of twenty-one years, then I direct my said Trustee to pay over and distribute the whole corpus or principal of this Trust Fund, together with accumulated income, to the issue of my daughter, Elizabeth Payson Duncan, in equal shares, share and share alike, free and discharged of this Trust."

The testatrix died on May 21, 1961. Her husband died sometime thereafter, before the daughter; the daughter died on December 24, 2014. At the time of the daughter's death, each of her four children were living and were over the age of twenty-one.

On September 9, 2016, the bank, the successor trustee, filed a petition with the court, seeking instructions for determining the proper final beneficiaries of the trust. Citing an ambiguity created by the use of the terms "children" and "issue" in paragraph four of the fourth clause of the will, the bank sought a determination whether distribution of the trust was to go solely to the daughter's four living children -- Robert R. Duncan, III, Elizabeth Duncan Ladner, Randolph Payson Duncan, and Theodore S. Duncan (collectively, the grandchildren) -- or, also, to the daughter's seven living grandchildren (the testatrix's great-grandchildren), which would have totaled eleven beneficiaries. At the pretrial hearing on the bank's petition, and the grandchildren's and Catherine F. Duncan's (great-granddaughter) oppositions, the judge ordered the opposing parties to submit legal memoranda on the meaning of "issue" as used in the will, and the proper ultimate distribution of the testamentary trust.

In the trial court, the grandchildren argued that G. L. c. 190B, § 2-708, is applicable to identify the "class" of issue who shall take under the will. They contended that, because the will does not specify the manner of distribution among the class members, it should be, under the statute, distributed in accordance with the laws of intestate succession, distributing per capita at each generation. In their view, based on the language of the will and in consideration of the statute, they are the only four beneficiaries, as the "descendants [the great-grandchildren] will not be allowed to compete with their parents unless such was the intention of the testator."

The great-granddaughter, in opposing the bank's petition, argued that the use of the terms "issue" and "children" creates no patent or latent ambiguity in the language of the will, as "[t]he words are used to describe takers at different times and for different types of inheritance" and are not to be used interchangeably. She contended that the language of the will clearly indicates the testatrix's intention to include "children" and "issue" as separate and distinct classes of heirs, distributing the net income of the trust to the children, then the entire principal (including accumulated income) of the trust to all generations of the daughter's descendants; this, she argues, equates to a distribution to all eleven beneficiaries.

Deciding solely on the papers, and relying in part on the Uniform Probate Code, the judge agreed with the great-granddaughter, concluding that the terms "children" and "issue" as used in the will do not create an ambiguity but, instead, indicated the testatrix's intention to identify two separate groups of heirs that should benefit under the will. As a result, the judge found, "all eleven (11) descendants are the proper beneficiaries of the Testamentary Trust." Randolph Payson Duncan, one of the grandchildren, timely appealed.

Discussion. Because this dispute arises from the judge's legal interpretation, we review de novo. See T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010). "The fundamental object in the construction of a will is to ascertain the [testatrix's] intention from the whole instrument, attributing due weight to all its language, considered in light of the circumstances known to the [testatrix] at the time of its execution, and to give effect to that intent unless some positive rule of law forbids." Flannery v. McNamara, 432 Mass. 665, 667-668 (2000), quoting from Putnam v. Putnam, 366 Mass. 261, 266 (1974). See McMillen v. McMillen, 57 Mass. App. Ct. 568, 572 (2003). "The settled law in this Commonwealth is and has been that one executing a will or trust and distributing property thereby is entitled to rely on the law in effect at the time the instrument was created." Lowell v. Talcott, 86 Mass. App. Ct. 145, 148 (2014), quoting from Anderson v. BNY Mellon, N.A., 463 Mass. 299, 306-307 (2012). Because here the will lacks a specific definition for the disputed term, "issue," we look at the common meaning and usage of the word "issue" at the time of execution. Lowell, supra. See Boston Safe Deposit & Trust Co. v. Park, 307 Mass. 255, 260 (1940).

In 1960, the term "issue" was known, "in the absence of any indication to the contrary, ... [to] refer[ ] to lineal descendants of the ancestor who would be entitled, at the death of such ancestor, to take [her] property under the law of intestate succession, and, in conformity to this principle, grandchildren of the ancestor and their descendants will not be allowed to compete with their parents unless such was the intention of the [testatrix.]" B.M.C. Durfee Trust Co. v. Borden, 329 Mass. 461, 463 (1952) (quotations omitted). See G. L. c. 190, §§ 2, 3 (as in effect 1960). Put another way, the children (descendants) of the daughter (ancestor) are entitled, at her death, to take her property under the law of intestate succession; because all of the daughter's children survived her, and there was no indication in the will stating otherwise, their children (the great-grandchildren) would not take under the will, as they would not be "allowed to compete" with their living parents. Issue take only in the event the parent of such issue is not living; if the issue are only to take in place of "their respective parents, and not along with them in equal shares, then, in the absence of anything further, such issue will naturally take the share of the parent that they replace." Hall v. Hall, 140 Mass. 267, 270 (1885). In this case, no language appears in the will indicating the testatrix's intention to contradict the common meaning of "issue" known at the time of execution.

After examining the language and structure of the testatrix's will in the context of the information available to the testatrix and her attorney at the time the will was drafted and executed, we conclude that interpreting "issue" to mean any surviving child or children of a deceased grandchild of the testatrix is consistent with the testatrix's intent. See Boston Safe Deposit & Trust Co. v. Wilbur, 431 Mass. 429, 437 (2000).

Relying on this meaning of the term, we discern no ambiguity in the will. As a result, we need look no further than the four corners of the instrument, and not the statute of distribution, to determine the appropriate beneficiaries for the final distribution of the testamentary trust. See Thompson v. Thornton, 197 Mass. 273, 276 (1908). Upon the daughter's death in December, 2014, the time for distribution of the trust had arrived because her youngest child had already attained the age of twenty-one.

Triggered by this event, the successor trustee was instructed by the will to "pay over and distribute the whole corpus or principal" of the trust to the issue of the daughter -- her four surviving children. Based on the testatrix's intention gleaned from the language of the will, the testatrix's four grandchildren are entitled to the principal of the trust in equal shares. To include the great-granddaughter (or any of the other great-grandchildren) within the final beneficiaries would cause her "to compete" with Theodore S. Duncan, her living parent, in direct contradiction to the testatrix's intention, and in conflict with the laws of intestate succession. See G. L. c. 190, §§ 2, 3 ; B.M.C. Durfee Trust Co., supra.

As a result, the decree must be vacated and distribution instructions issued to the bank in accordance with this memorandum and order.

Decree vacated and case remanded for further proceedings in accordance with this memorandum and order.

      Also part of this appeal is Randolph Payson Duncan's appeal from the denial of his motion for relief from judgment, bringing to the judge's attention an earlier representation to that court from the attorney who drafted the will, suggesting that the grandchildren were the intended final beneficiaries. Because the decree is vacated, there is no need to address this motion.

      The third clause of the will bequeathed to the testatrix's husband the sum of $10,000 in a trust for specific uses. One such use was that the income from the trust be distributed to Ruby Magnolia Teixeira and, on her death, to the testatrix's daughter. At the time of the daughter's death, that trust was to terminate and the "whole corpus or principal" similarly distributed in equal shares to the issue of the daughter.

      The testatrix's husband was the original trustee appointed in October, 1961. The bank became successor trustee in June, 2016.

      Theodore S. Duncan, one of the daughter's four living children and grandson of the testatrix, is the great-granddaughter's father.

      Randolph Payson Duncan's subsequent motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), was denied, from which an appeal was timely filed; that appeal was consolidated with the instant appeal. The grandchildren's motion for reconsideration and clarification also was denied, but it appears no appeal was taken; as a result, that denial is not part of this appeal.

      Looking to G. L. c. 190, § 3 (descent of real property, as in effect 1960), detailing intestate succession during this same time period, the statute provides:
      "When a person dies seized of land, tenements or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts and to the rights of the husband or wife and minor children of the deceased as provided in this and in the two preceding chapters and in chapter one hundred and ninety-six, as follows:
      "(1) In equal shares to his children and to the issue of any deceased child by right of representation; and if there is no surviving child of the intestate then to all his other lineal descendants. If all such descendants are in the same degree of kindred to the intestate, they shall share the estate equally; otherwise, they shall take according to the right of representation."
      Section two of this chapter relates to personal property, referring to § 3 for instruction on distribution.

      Randolph Payson Duncan's request for attorney's fees and costs is denied. Catherine F. Duncan's motion for fees and costs also is denied.