author: LOWY, J.

text:
    COMMONWEALTH v. Anthony L. MOORE, Jr.
    SJC-11652
    Supreme Judicial Court of Massachusetts, Hampden..
    Argued May 11, 2018 Decided October 31, 2018
    Russell C. Sobelman, Lynn, for the defendant.
    Shane T. O'Sullivan, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   LOWY, J.

On the evening of March 22, 2010, Margaret Przewozniak was shot, execution style, by a masked gunman during an armed robbery and home invasion in Springfield. A Hampden County grand jury returned indictments charging the defendant, Anthony L. Moore, Jr., with murder and various related offenses. At trial, the defendant pursued a misidentification defense and attempted to undermine the procedures employed by the Springfield police. A Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with armed home invasion and armed robbery as the predicate felonies.

On appeal from his convictions and from the denial of his motion for a new trial, the defendant claims error in (1) the exclusion of evidence pertaining to the inadequacy of the police investigation; (2) the Commonwealth's failure to preserve and disclose exculpatory evidence; (3) the conduct of a showup identification procedure; (4) the admission of the prior testimony of an unavailable witness, and (5) error in the denial of his motion for a new trial. The defendant also argues that we should exercise our authority under G. L. c. 278, § 33E, to order a new trial or reduce the murder verdict for a myriad of reasons. We find no reversible error, and we discern no basis to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt or order a new trial. We therefore affirm the judgments and the denial of his motion for a new trial.

Background. We summarize the facts the jury could have found, reserving certain details for our discussion of the specific issues raised on appeal.

In March, 2010, Sarah LaPalm lived with her three year old child and the victim in a two-bedroom apartment in Springfield. LaPalm and her child occupied the two bedrooms on the second floor of the apartment, and the victim occupied a bedroom in the basement. The victim sold cocaine and marijuana, and she kept large sums of money in various denominations in a small keyed strongbox in the basement.

Sometime after 9 P.M. on March 22, 2010, LaPalm, the child, and the victim were in the kitchen of their apartment when a masked African-American man carrying a gun entered the home. The intruder was dressed in black and wore a ski mask covering his face; he was approximately six feet tall and slim. The victim pulled down the intruder's mask, exposing part of his face, and said, "What is this a joke? We went to school together." In response, the intruder pointed the gun at LaPalm's child and said, "This shit is serious. Your [child]'s right there." He then fired a bullet into the kitchen floor.

LaPalm immediately picked up her child and ran out the back door to her neighbor's apartment, where she telephoned 911. As LaPalm ran, she looked back into her kitchen and saw the victim struggling with the intruder, who was dragging the victim toward the basement. LaPalm also saw a second man standing at the foot of the stairs outside her apartment. He was approximately five feet, six inches tall, was dressed in black, and was wearing a ski mask.

As LaPalm fled, a neighbor, Charles Brown, was arriving home. He pulled into his driveway, saw LaPalm banging on his front door, and heard her "screaming," "There [are] two masked guys in my house." Moments later, Brown saw two men wearing masks and dressed in all black leave LaPalm's apartment. One of the men was shorter than the other, approximately five feet, six inches tall; the other was over six feet tall and thin. The two men ran past Brown's motor vehicle toward a light colored minivan. One of the men was carrying a black box. Although he was unable to see either perpetrator's face, Brown believed that he saw the hands of both men and concluded that they were African-American.

LaPalm also watched the masked men run through the parking lot. She noticed that the taller intruder was carrying the victim's strongbox. LaPalm then returned to her apartment, where she found the victim in the basement, curled up in a fetal position and moaning. The victim had suffered two gunshot wounds, one to the front of her left thigh and one to the back of her head. Gunshot residue indicated that the muzzle of the gun had been pressed near or against the victim's head when she was shot. The murder weapon was not recovered.

Officers who responded to the scene that evening learned from college students who lived in a house next to the apartment complex that, at about 9:15 P.M. , one of them saw two African-American men walking out of his backyard. One of the men was about six feet, three inches tall and weighed over 200 pounds. The other was approximately five feet, nine inches tall and skinny. Both men appeared to be between eighteen and twenty-four years old and were wearing black hooded sweatshirts and black winter hats. He asked the two men, "What's going on?" The taller man responded, "We're hiding out in your backyard." The witness went back inside and told his two roommates what he had observed, and they all went outside. From the front porch they observed two African-American men walking towards LaPalm's apartment complex. When one of the students asked the two men what they were doing, the taller man responded, "Do you have a problem?" The three said, "No," and went back inside their house.

In addition, an officer spoke with a woman and her young teenaged daughter, who lived in a house down the street from LaPalm's apartment complex. The woman said that as she and her daughter left their house shortly after 9 P.M. to go grocery shopping, she noticed a gray minivan she did not recognize from the neighborhood parked directly in front of her driveway. She also did not recognize either of the vehicle's two occupants, both of whom were wearing black hooded sweatshirts. After she saw the two men leave the vehicle and run into her neighbor's backyard, the woman instructed her daughter to write down the vehicle's registration number on a piece of paper. She also noticed white lettering on the top of the vehicle's windshield.

As a result, an officer issued a radio broadcast that police officers should be on the lookout for a minivan with the registration number that the woman had provided. Because police were unable to find a matching vehicle in the registry of motor vehicles database, police tried a different combination of the letters and numbers that the woman had provided, and were able to match a registration number that was different by one digit to the license plate number of a vehicle matching witness descriptions.

Officers learned that the license plate number was associated with a gray Dodge minivan that was registered to the defendant's mother. They went to the address in Springfield but did not locate the vehicle. However, at approximately 11:30 P.M. , the same officers observed a gray Dodge minivan with the applicable registration number idling on a street in Springfield. The officers could see two men in the vehicle but could not identify either of them.

Within minutes, additional officers arrived and they all approached the vehicle with their guns drawn. The passenger, who was the defendant's brother, was ordered out of the vehicle and placed in handcuffs. When the defendant was ordered out of the vehicle, he refused to comply and was forcibly removed. At some point during the forcible removal from the minivan and his being escorted to the police cruiser in handcuffs, the defendant said, without any prompting, "That's my little brother. He had nothing to do with what happened earlier." Search of the defendant uncovered, among other things, $1,610 in various denominations, a bag of marijuana, and a small digital scale.

Police remained at the location with the defendant and his brother and, beginning at around 12 A.M. on March 23, 2010, police conducted showup identification procedures of the two men. Of the witnesses who participated in the showup identifications, three had observed the vehicle in which the two men had been traveling earlier that evening, three had observed the perpetrators' faces, and two had observed the perpetrators while they were wearing masks. The witnesses were instructed that they were not to discuss the identification procedures or the results with other witnesses. They were also instructed that it was just as important to clear an innocent person as it was to identify a guilty one, and that the individuals they were about to see may or may not be wearing the same clothing as they were wearing earlier that evening.

Each witness was then separately driven to where the minivan was parked and illuminated by the headlights of a police cruiser. After each witness arrived, the defendant was escorted out from the back of a police cruiser and stood in front of the transport vehicle so that the vehicle's headlights would illuminate the defendant. The defendant's hands were cuffed behind his back and an officer with a flashlight stood on either side of the defendant to illuminate his face. The same process was repeated with the defendant's brother.

All three of the witnesses who had seen the perpetrators' vehicle earlier that evening -- Brown and the woman and her daughter -- positively identified the minivan that the defendant had been driving as the same vehicle they had seen earlier that evening, with the woman pointing out the lettering on the windshield she had seen earlier. Although the woman was unable to express confidence that the defendant was one of the two men she had seen getting out of the minivan, her daughter identified the defendant as being the same height and size as one of the two men she had observed earlier that evening.

LaPalm and Brown had seen both men while they were wearing masks, while the three college students had observed both men at close range without masks. Both LaPalm and Brown identified the defendant as being the same height and build as the taller perpetrator. LaPalm also believed that the defendant was the same complexion as the intruder who was in her kitchen. Two of the college students positively identified the defendant, and the third was confident that the defendant was the same size, build, and complexion as the taller man that he had seen outside his house, but could not confirm that the defendant was that person. With the exception of the mother, all the witnesses excluded the defendant's brother as either one of the two men they had observed that night near LaPalm's apartment complex.

The defendant was then placed under arrest, and police sent his T-shirt, jeans, and sneakers for testing. Although officers observed no visible stains on the defendant's white T-shirt during booking, a forensic scientist subsequently discovered light red-brown bloodstains on it. Forensic testing revealed the presence of the victim's deoxyribonucleic acid (DNA) on that T-shirt. A test of the defendant's hands for gunshot primer residue came back negative.

A search of the vehicle performed on March 24, 2010, revealed a red-brown stain on the inside of the door on the passenger's side of the vehicle. That stain tested positive for the victim's DNA.

In July, 2013, the defendant was convicted of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with armed home invasion and armed robbery as the predicate felonies. The defendant also was convicted of armed home invasion (two counts), assault by means of a dangerous weapon (three counts), unlawful possession of a firearm, and unlawful possession of ammunition without a firearm identification card.

While the defendant's direct appeal was pending in this court, the defendant filed a motion for a new trial. The motion judge, who had also been the trial judge, denied the motion, and the defendant appealed. The appeals were consolidated.

Discussion. Where, as here, an appeal from the denial of a defendant's motion for a new trial has been consolidated with a direct appeal from a conviction of murder in the first degree, we review both under G. L. c. 278, § 33E. See Commonwealth v. Alicea, 464 Mass. 837, 840, 985 N.E.2d 1197 (2013).

1. Exclusion of third-party culprit and Bowden evidence. At trial, the defendant sought admission of an audio recording of the police radio broadcast published after the shooting that contained various witness descriptions of the suspects. Defense counsel argued that the audio recording was relevant to show that the police investigation was inadequate, thus pursuing a so-called Bowden defense, see Commonwealth v. Silva-Santiago, 453 Mass. 782, 802, 906 N.E.2d 299 (2009), citing Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980). The judge concluded that the portions of the recording containing physical descriptions of the perpetrators was hearsay, and excluded them. The judge instead allowed the defendant to play portions of the recording that involved the changed vehicle registration number, as well as portions containing information about the defendant having been previously stopped by police in the same vehicle.

The defendant contends that the physical description portions of the audio recording were admissible both as third-party culprit evidence and as evidence of an inadequate investigation under Bowden, and that the judge's exclusion of these portions constituted reversible error. We consider separately the admissibility of the audio recording under each theory advanced by the defendant because, "[a]lthough the same evidence often may be used to support a third-party culprit defense and a Bowden defense, these two defenses are 'logically (and legally) distinct.' " Commonwealth v. Hoose, 467 Mass. 395, 409 n.6, 5 N.E.3d 843 (2014), quoting Silva-Santiago, 453 Mass. at 800, 906 N.E.2d 299.

a. Third-party culprit evidence. "A defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it." Silva-Santiago, 453 Mass. at 800, 906 N.E.2d 299, quoting Commonwealth v. Lawrence, 404 Mass. 378, 387, 536 N.E.2d 571 (1989). See Mass. G. Evid. § 1105 (2018). As a result, we afford "wide latitude to the admission of relevant evidence" insofar as it tends to show that "a person other than the defendant may have committed the crime charged." Silva-Santiago, supra at 800-801, 906 N.E.2d 299. "If the evidence is 'of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility.' " Id. at 801, 906 N.E.2d 299, quoting Commonwealth v. Conkey, 443 Mass. 60, 66, 819 N.E.2d 176 (2004), S.C., 452 Mass. 1022, 897 N.E.2d 28 (2008). However, "because the evidence is offered for the truth of the matter asserted -- that a third party is the true culprit -- we have permitted hearsay evidence that does not fall within a hearsay exception only if, in the judge's discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime" (quotations and citation omitted). Silva-Santiago, supra at 801, 906 N.E.2d 299. "Because the issue is one of constitutional dimension, we are not bound by an abuse of discretion standard, but rather examine the issue independently." Conkey, supra at 66-67, 819 N.E.2d 176.

The defendant did not assert a third-party culprit defense at trial. Even if he had, however, we would discern no error in the exclusion, as third-party culprit evidence, of those portions of the audio recording that contained witness descriptions of the perpetrators. The recording was inadmissible "layered" hearsay, i.e., unidentified police officers stating for the purpose of identifying the perpetrators what an unidentified person or persons said the perpetrators looked like. See Commonwealth v. Cassidy, 470 Mass. 201, 216, 21 N.E.3d 127 (2014), citing Commonwealth v. Caillot, 449 Mass. 712, 721, 871 N.E.2d 1056 (2007) (layered hearsay with uncertain sources unreliable and inadmissible as third-party culprit evidence).

b. Evidence undermining police investigation. The defendant's alternate theory is that the portions of the audio recording containing physical descriptions of the perpetrators were admissible as part of his inadequate police investigation defense under Bowden. Because "the exclusion of evidence of a Bowden defense is not constitutional in nature," we review the judge's ruling under an abuse of discretion standard. Silva-Santiago, 453 Mass. at 804 n.26, 906 N.E.2d 299. The defendant preserved his objections to the judge's rulings on this issue at trial. Accordingly, we review for prejudicial error if there is an abuse of discretion. See Cassidy, 470 Mass. at 210, 21 N.E.3d 127, citing Commonwealth v. Ridge, 455 Mass. 307, 317-318, 916 N.E.2d 348 (2009).

A defendant may rely on deficiencies or lapses in police investigations to raise the specter of reasonable doubt. Bowden, 379 Mass. at 486, 399 N.E.2d 482. A defendant asserting a Bowden defense may "challenge the adequacy of a police investigation and may use information concerning third-party culprits to question whether the police took reasonable steps to investigate the crime." Ridge, 455 Mass. at 316, 916 N.E.2d 348, citing Bowden, supra. See Mass. G. Evid., supra at § 1107(a). This defense suggests to the jury "that the evidence at trial may be inadequate or unreliable because the police failed to conduct the scientific tests or to pursue leads that a reasonable police investigation would have conducted or investigated," with the result that the police may have missed "significant evidence of the defendant's guilt or innocence." Silva-Santiago, 453 Mass. at 801, 906 N.E.2d 299. "Because any statements introduced as part of such a defense are offered not for their truth, but to prove that the police did not take 'reasonable steps to investigate,' those statements are not hearsay." Commonwealth v. Bizanowicz, 459 Mass. 400, 414, 945 N.E.2d 356 (2011), quoting Ridge, supra. See, e.g., Commonwealth v. Caruso, 476 Mass. 275, 295 n.15, 67 N.E.3d 1203 (2017) ("If the out-of-court statement is offered for any purpose other than its truth, then it is not hearsay").

A defendant does not, however, have an unfettered right to elicit evidence regarding the adequacy of the police investigation. The admissibility of such evidence hinges first, and foremost, on its relevance. See Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485, 803 N.E.2d 735 (2004) ; Mass. G. Evid., supra at §§ 401, 402. See also Silva-Santiago, 453 Mass. at 801, 906 N.E.2d 299, quoting Commonwealth v. Rosa, 422 Mass. 18, 22, 661 N.E.2d 56 (1996) (evidence "must have a rational tendency to prove the issue the defense raises"); Commonwealth v. Thompson, 382 Mass. 379, 383, 416 N.E.2d 497 (1981) ("all relevant evidence is admissible unless barred by an exclusionary rule" [citation omitted] ). Relevant evidence means evidence having "any tendency" to make a consequential fact more or less probable than it would be without that evidence. See Mass. G. Evid., supra at § 401. As a result, evidence need not carry any particular weight to be relevant; it must only provide a link in the chain of proof bearing on an issue of consequence. Commonwealth v. Arroyo, 442 Mass. 135, 144, 810 N.E.2d 1201 (2004). If evidence is relevant to the adequacy of the police investigation, the judge must then determine whether the probative value of the Bowden evidence is substantially outweighed by the danger of unfair prejudice. See Mass. G.

Evid., supra at § 403. See also Harris-Lewis, supra.

Here, because the descriptions were not being offered for their truth, i.e., to show that the defendant did not match the descriptions of the perpetrators relayed by police, the judge erred in concluding that the portions of the audio recording that contained descriptions of the perpetrators constituted inadmissible layered hearsay. See Commonwealth v. Reynolds, 429 Mass. 388, 390-392, 708 N.E.2d 658 (1999) (informants' statements relayed from one officer to another not inadmissible layered hearsay under Bowden ). See also Silva-Santiago, 453 Mass. at 803, 906 N.E.2d 299 (evidence inadmissible under third-party culprit theory may be admissible as part of Bowden defense). The descriptions were being offered to show that, once police stopped the defendant, they focused their investigation on the defendant to the exclusion of all others, even though the defendant did not match the physical descriptions in the broadcast. See Commonwealth v. Phinney, 446 Mass. 155, 166, 843 N.E.2d 1024 (2006), S.C., 448 Mass. 621, 863 N.E.2d 496 (2007). Therefore, the portions of the audio recording that contained descriptions of the perpetrators were relevant to the defendant's Bowden defense, and nothing in the record suggests that the evidence's probative value was substantially outweighed by a danger of unfair prejudice. The portions of the recording containing descriptions of the perpetrators should have been admitted at trial.

Although the judge erred in excluding those portions of the police broadcast, the error did not prejudice the defendant. The defendant was permitted to challenge the adequacy of the investigation as a whole, including that police failed to pursue other leads based on inconsistencies in the initial descriptions. See Commonwealth v. Alcantara, 471 Mass. 550, 562-563, 31 N.E.3d 561 (2015) ; See Ridge, 455 Mass. at 316, 916 N.E.2d 348. Defense counsel had an opportunity to cross-examine witnesses about the various descriptions and to argue the point in closing argument. See Commonwealth v. Wood, 469 Mass. 266, 278, 14 N.E.3d 140 (2014). Moreover, the various initial descriptions of the perpetrators' heights are insignificant in view of the almost exact match of the actual numbers of the registration plate of the vehicle the defendant had been driving, the defendant's positive identification by two witnesses, the defendant's statement to police, and the DNA evidence found in the vehicle and on the defendant's person. The identification by witnesses were corroborated through records from the Springfield school department indicating that the victim and the defendant had attended school together, just as the victim exclaimed when she had pulled down the taller intruder's mask. The defendant was not prejudiced.

2. Failure to preserve and disclose the booking video tape recording. During pretrial discovery, the Commonwealth turned over video recordings that, the prosecutor claimed, showed the defendant's booking at the Springfield police station. Shortly before trial, defense counsel learned that the prosecutor had failed to turn over the correct video recording and instead had turned over a videotape recording of another unidentified African-American man wearing a white T-shirt leaning against the booking desk. Defense counsel did not, however, notify the prosecutor that he had provided the incorrect booking videotape. Instead, defense counsel made a strategic decision to offer the incorrect booking videotape at trial to reinforce his Bowden defense. Specifically, defense counsel intended to play the recording to show that police had turned over the wrong videotape, that the defendant did not have blood on his T-shirt when he first arrived at the police station, and that the victim's blood was transferred to the defendant's T-shirt through contact with the booking desk. The judge subsequently denied defense counsel's request to play the incorrect booking videotape, but allowed him to question police witnesses about the absence of visible bloodstains on the defendant's T-shirt.

The defendant now contends that he is entitled to a new trial because the Commonwealth failed to preserve and disclose the correct videotape recording. We disagree. A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden to establish "a 'reasonable possibility, based on concrete evidence rather than a fertile imagination,' that access to the [evidence] would have produced evidence favorable to his [or her] cause" (citation omitted). Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984). See Commonwealth v. Olszewski, 416 Mass. 707, 714, 625 N.E.2d 529 (1993), cert. denied, 513 U.S. 835, 115 S.Ct. 113, 130 L.Ed.2d 60 (1994). If the defendant meets that initial burden, "a balancing test is employed to determine the appropriateness and extent of remedial action." Commonwealth v. Willie, 400 Mass. 427, 432, 510 N.E.2d 258 (1987). The judge "must weigh the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant." Id.

We assume, without deciding, that cases addressing lost or destroyed evidence apply here because the Commonwealth failed to provide a videotape it claimed to have provided before trial, and that the defendant satisfied his initial burden of establishing a reasonable possibility that access to the videotape recording would have produced favorable evidence. We conclude that the Commonwealth exhibited no bad faith and, even if the Commonwealth had been negligent in failing to preserve the recording, the defendant was afforded a sufficient opportunity to remedy any prejudice. The defendant was allowed, through cross-examination of police witnesses, to elicit testimony about the absence of visible blood stains on the defendant's T-shirt. This was sufficient to remedy any prejudice to the defendant. See Commonwealth v. Harwood, 432 Mass. 290, 302, 733 N.E.2d 547 (2000) ("Our courts have fashioned or upheld various judicial remedies for the loss of evidence"). See also Mass. G. Evid., supra at § 1102.

3. The showup identification. The defendant argues that the one-on-one showup identification procedures conducted within hours of the killing were so unnecessarily suggestive that they offend due process. Although one-on-one showup identification procedures are "generally disfavored as inherently suggestive," Commonwealth v. Dew, 478 Mass. 304, 306, 85 N.E.3d 22 (2017), they only raise due process concerns if it is determined that the procedure was unnecessarily or impermissibly suggestive. See Commonwealth v. Figueroa, 468 Mass. 204, 217, 9 N.E.3d 812 (2014) ; Commonwealth v. Meas, 467 Mass. 434, 441, 5 N.E.3d 864, cert. denied, --- U.S. ----, 135 S.Ct. 150, 190 L.Ed.2d 110 (2014), quoting Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555 (2006). Police are permitted to conduct a showup identification if there is a "good reason" to secure the prompt identification of a suspect. Dew, supra. However, even where there is "good reason" for a showup identification, "it may still be suppressed if the identification procedure so needlessly adds to the suggestiveness inherent in such an identification that it is 'conducive to irreparable mistaken identification.' " Figueroa, supra, quoting Commonwealth v. Phillips, 452 Mass. 617, 628, 897 N.E.2d 31 (2008). See Dew, supra at 307, 85 N.E.3d 22 ("the evidence must be excluded '[i]f there are special elements of unfairness' " [citation omitted] ); Commonwealth v. Austin, 421 Mass. 357, 361, 657 N.E.2d 458 (1995).

Here, there was good reason to conduct showup identifications, and the procedures were not so unnecessarily suggestive as to create a substantial risk of a mistaken identification. The crime involved an armed home invasion and homicide. The police had not located the firearm and the perpetrators were still at large. See Meas, 467 Mass. at 441, 5 N.E.3d 864 ("very good justification" for showup where firearm not recovered at scene). The showup took place within three hours of the shooting, see Figueroa, 468 Mass. at 218, 9 N.E.3d 812 ("good reason" for showup two and one-half hours after shooting to determine whether shooter was still at large); Bowden, 379 Mass. at 479, 399 N.E.2d 482 (showup identification conducted two hours after murder admissible), and there were no "special elements of unfairness, indicating a desire on the part of the police to 'stack the deck' against the defendant," Dew, 478 Mass. at 307, 85 N.E.3d 22, quoting Commonwealth v. Leaster, 395 Mass. 96, 103, 479 N.E.2d 124 (1985). Public safety was paramount, and a prompt identification served to limit risk to the public and to avoid the escape of dangerous suspects. See Austin, 421 Mass. at 364, 657 N.E.2d 458. Accordingly, the showup identification procedures were not so unnecessarily suggestive as to offend due process.

4. Use of unavailable witness's testimony from prior proceeding. Because Brown died before trial, the Commonwealth introduced transcripts of his testimony from a pretrial hearing on the defendant's motion to suppress. The judge had previously allowed the Commonwealth's motion in limine regarding this testimony, over the objection of the defendant, before jury selection on the first day of trial. Because defense counsel did not renew his objection at trial, it was not preserved.

At the suppression hearing, Brown testified that based on his observations of the perpetrators' hands, he believed the two men were African-American. During his testimony before the grand jury, Brown testified, contrary to his testimony at the suppression hearing, that on the night he gave his statement to police, he was "under a lot of ... stress," and that he was no longer sure whether he had seen the shorter man's hands.

The defendant makes two arguments related to the admission of transcripts of Brown's testimony. First, the defendant contends that Brown's testimony was not admissible because it does not fall within the prior recorded testimony exception to the rule against hearsay and that its introduction violated the defendant's confrontation rights under the Sixth Amendment to the United States Constitution. Second, the defendant argues that suppression counsel rendered deficient performance by not impeaching Brown with his prior grand jury testimony.

a. Admissibility of Brown's prior recorded testimony. "We need not decide the admissibility of [Brown's] testimony as prior recorded testimony under our common law rule. If the standards of the confrontation clause are met in the admission of [Brown's] testimony, the interests of justice test applied under G. L. c. 278, § 33E, is also met." Commonwealth v. Trigones, 397 Mass. 633, 638, 492 N.E.2d 1146 (1986). As a result, "we review the admission of the prior recorded testimony only to determine whether it offends the defendant's confrontation rights." Caruso, 476 Mass. 275, 293, 67 N.E.3d 1203 (2017).

The admission of prior testimony does not violate the defendant's confrontation rights "when the declarant is unavailable, as a matter of law, to testify and 'the defendant has had an adequate prior opportunity to cross-examine the declarant.' "

Caruso, 476 Mass. at 293, 67 N.E.3d 1203, quoting Commonwealth v. Hurley, 455 Mass. 53, 60, 913 N.E.2d 850 (2009). An adequate prior opportunity means effective cross-examination at a prior proceeding addressed to "substantially the same interests" where the defendant had a "similar motive" to cross-examine the witness. Caruso, supra. It does not mean cross-examination that is "effective in whatever way, and to whatever extent, the defense might wish." Id., quoting Hurley, supra at 62, 913 N.E.2d 850. See Crawford v. Washington, 541 U.S. 36, 57-59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). "That a subsequent [proceeding] involves additional evidence introduced against the defendant does not mean that the opportunity for cross-examination at an earlier [proceeding] is inadequate to satisfy the confrontation clause." Commonwealth v. Sena, 441 Mass. 822, 833, 809 N.E.2d 505 (2004).

Here, the issues at trial and the defendant's motive on cross-examination at the suppression hearing were sufficiently similar to satisfy the confrontation clause. Brown's testimony at the suppression hearing dealt with the same underlying events -- Brown's observations of the perpetrators and the vehicle on the night of the killing -- and his testimony was admitted at the defendant's trial for that very same purpose. See Hurley, 455 Mass. at 61-62, 913 N.E.2d 850 ; Commonwealth v. Canon, 373 Mass. 494, 500-501, 368 N.E.2d 1181 (1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978). The defendant also had the same motive to cross-examine Brown -- to undermine his identification. Therefore, these issues had been subject to adequate cross-examination sufficient to satisfy the confrontation clause and our review pursuant to G. L. c. 278, § 33. See Caruso, 476 Mass. at 295, 67 N.E.3d 1203 ; Sena, 441 Mass. at 833, 809 N.E.2d 505.

b. Use of grand jury testimony for impeachment. The defendant contends that suppression counsel also rendered deficient performance by not impeaching Brown with his prior grand jury testimony. Failure to impeach does not, standing alone, constitute ineffective assistance of counsel. See Commonwealth v. Johnston, 467 Mass. 674, 696, 7 N.E.3d 424 (2014) ; Commonwealth v. Fisher, 433 Mass. 340, 357, 742 N.E.2d 61 (2001), citing Commonwealth v. Bart B., 424 Mass. 911, 916, 679 N.E.2d 531 (1997). "Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we will, even on § 33E review, still show deference." Commonwealth v. Hudson, 446 Mass. 709, 715, 846 N.E.2d 1149 (2006), quoting Fisher, supra."[A]bsent counsel's failure to pursue some obviously powerful form of impeachment ..., it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Hudson, supra, quoting Fisher, supra.

Here, suppression counsel should have cross-examined Brown with inconsistencies between his testimony before the grand jury and at the suppression hearing. We are confident, nonetheless, that suppression counsel's failure to do so had no bearing on the outcome of the case. The inconsistencies were not material, because the record contains an abundance of evidence with identifications of both the defendant and the vehicle he was driving that night; these instances include identification of the vehicle the defendant had been driving by the mother and her daughter and, more importantly, the positive identification of the defendant by two of the college students at the showup.

5. Motion for new trial. The defendant argues that his trial counsel was constitutionally ineffective in a number of respects, and that the motion judge, who was also the trial judge, abused his discretion in denying the defendant's motion for a new trial that raised these claims. Specifically, the defendant argues that his trial counsel was ineffective for (i) failing to consent to the nolle prosequi of the marijuana possession charge, and (ii) failing to call a blood spatter expert at trial. The defendant also argues that the judge erred in denying his motion for a new trial because of newly discovered evidence of video technology that was not available at the time of the defendant's trial.

Because the defendant was convicted of murder in the first degree, "[r]ather than evaluating an ineffective assistance claim under the traditional standard of Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), ... we apply the more favorable standard of G. L. c. 278, § 33E, to determine whether there was a substantial likelihood of a miscarriage of justice." Commonwealth v. Gulla, 476 Mass. 743, 745-746, 73 N.E.3d 240 (2017), citing Commonwealth v. Wright, 411 Mass. 678, 681-682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). See Alicea, 464 Mass. at 845, 985 N.E.2d 1197. "Under this standard, [w]e consider whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion" (quotation and citation omitted). Commonwealth v. Long, 476 Mass. 526, 529, 69 N.E.3d 981 (2017). Tactical decisions by an attorney are error only if they were "manifestly unreasonable when made." Commonwealth v. Lang, 473 Mass. 1, 14, 38 N.E.3d 262 (2015).

a. Ineffective assistance of counsel. i. Strategic choices regarding nolle prosequi. The defendant was indicted on charges of possession of a class D substance (marijuana) with intent to distribute, G. L. c. 94C, § 32C (a ). Before trial, the Commonwealth sought to enter a nolle prosequi on that charge, but defense counsel refused. Subsequently, trial counsel used the possession charge to explain the defendant's inculpatory statement to police, as well as his possession of marijuana, a scale, and $1,610 in various denominations. The charge was nol prossed after the close of evidence, but before closing arguments.

The defendant now contends that his trial counsel was ineffective for failing to consent to the nolle prosequi, failing to challenge the indictment on the grounds that Sonja Farak was the confirmatory chemist, and putting evidence of the defendant's drug dealing activities before the jury.

The defendant has not shown that his trial counsel's tactical decision was manifestly unreasonable. To the contrary, this situation presents a textbook example of a reasonable strategic concession. Within minutes of apprehension, the defendant made a statement to police that seemingly implicated himself in the shooting. Based on the defendant's statement to police, it was a reasonable strategy at trial to justify those statements by suggesting that the defendant was referring to another criminal offense that, when compared to those before the jury, was seemingly innocuous. Moreover, this strategy provided the jury with a possible explanation -- apart from the inference that these items had been secured in the strongbox that had been stolen from the victim's bedroom -- for the defendant's possession of marijuana, a digital scale, and $1,610 in various denominations. The challenge trial counsel faced was not potential prejudice because the defendant may have sold marijuana, but overwhelming circumstantial evidence of guilt in the murder along with compelling DNA evidence and the defendant's inculpatory statement. Although not entirely without risk, this strategy was not manifestly unreasonable. See Commonwealth v. Vardinski, 438 Mass. 444, 455, 780 N.E.2d 1278 (2003) ; Commonwealth v. White, 409 Mass. 266, 277, 565 N.E.2d 1185 (1991). Accordingly, we discern no error.

ii. Failure to call expert witness. The defendant contends that his trial counsel was ineffective in failing to offer at trial the testimony of a blood spatter expert. The defendant asserts that a blood spatter expert could have explained that the blood stain on the defendant's T-shirt was a transfer stain. He further contends that an expert should have been called to explain the significance of the absence of gunshot residue on the defendant's hands. Although the defendant offered the curriculum vitae of a blood spatter expert, the defendant has not submitted an affidavit from that expert describing the testimony that he would have offered if called to testify. A claim of ineffective assistance of counsel "for failure to call an expert witness is generally doomed where '[t]he defendant's claim is not supported by any affidavits' to disclose the content of the omitted expert testimony" (citation omitted). Alicea, 464 Mass. at 850-851, 985 N.E.2d 1197. Through cross-examination of the Commonwealth's experts, trial counsel elicited evidence that the bloodstains on the defendant's T-shirt could not be classified as spatter stains, thereby providing support for the defendant's theory that the bloodstains on the defendant's T-shirt were transfer stains. See Commonwealth v. Seino, 479 Mass. 463, 474 n.18, 96 N.E.3d 149 (2018) (ineffective assistance claim fails where defense counsel, through cross-examination of Commonwealth's experts, "elicited evidence to support the defense's theory of how the defendant's blood was transferred to the victim"). Accordingly, the defendant's argument fails.

b. Newly discovered evidence of videotape technology. The defendant argues that his motion for a new trial should have been allowed on the ground of newly discovered evidence that allegedly casts doubt on whether he had blood on his T-shirt at the time of booking.

A defendant seeking a new trial on the ground of newly discovered evidence must first establish that the evidence was not discoverable at the time of trial despite the due diligence of the defendant or defense counsel. Commonwealth v. Jones, 432 Mass. 623, 633 n.6, 737 N.E.2d 1247 (2000). Commonwealth v. Salvati, 420 Mass. 499, 507, 650 N.E.2d 782 (1995). The defendant must then show that the newly discovered evidence "casts real doubt on the justice of the conviction" (citation omitted). Id. at 506, 650 N.E.2d 782. In order to obtain a new trial on the ground of newly discovered evidence, there must be "a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Moore, 408 Mass. 117, 126, 556 N.E.2d 392 (1990), quoting Commonwealth v. Grace, 397 Mass. 303, 305-306, 491 N.E.2d 246 (1986).

The defendant has failed to provide an expert affidavit showing that new video technology, not available at the time of the defendant's trial, could be used to show that the defendant did not have any blood on his T-shirt at the time of booking. The defendant has instead provided an affidavit from his sister concerning conversations she had had with various videography experts and what they had told her that this new technology would show. The judge did not err in denying the defendant's motion for a new trial on this ground. See Alicea, 464 Mass. at 850-851, 985 N.E.2d 1197 ; Seino, 479 Mass. at 474, 96 N.E.3d 149.

6. Review under G. L. c. 278, § 33E. Finally, the defendant argues that we should exercise our authority under G. L. c. 278, § 33E, to order a new trial or reduce the murder verdict for various reasons. The defendant contends that he is entitled to relief based on (1) insufficient "physical evidence" connecting the defendant to the crime; (2) misconduct by members of the Springfield police department; (3) the judge's failure to apply the correct standard in ruling on the defendant's motion for a new trial; (4) credibility issues involving the Commonwealth's key witness; and (5) the exclusion of portions of the police audio recording in contravention of the doctrine of verbal completeness.

"When we undertake review under [G. L. c. 278,] § 33E, we do not function as a second jury.... That is we do not determine what verdict we would have returned but whether the verdict 'was against the law or weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require' " (citation omitted). Commonwealth v. Johnston, 467 Mass. at 705, 7 N.E.3d 424, quoting G. L. c. 278, § 33E. Having carefully reviewed the defendant's arguments pursuant to our duty under G. L. c. 278, § 33E, we conclude that the defendant is not entitled to relief. Not only do many of the defendant's supplemental claims have no arguable basis in either law or fact, but also they are patently without merit. See note 2, supra. For example, the defendant argues that he is entitled to relief because LaPalm, the Commonwealth's key witness, "was a drug addict." It is for the jury to make a determination of credibility, Commonwealth v. Cannon, 449 Mass. 462, 469 n.17, 869 N.E.2d 594 (2007), and "[s]uch a determination does not inform whether there was sufficient evidence of the crime," id.

Although the defendant contends that the case rests solely on unreliable witness identifications, the evidence of the defendant's guilt in this case was overwhelming. That the murder weapon was never recovered and that the defendant's DNA was not found inside the victim's apartment does not render all other evidence of the defendant's guilt nugatory. See Commonwealth v. Rakes, 478 Mass. 22, 32, 82 N.E.3d 403 (2017) ("A conviction may rest exclusively on circumstantial evidence"). Based on our careful review of the entire trial record and our consideration of each issue raised by the defendant, we decline to reduce the degree of guilt, order a new trial, or grant other relief under G. L. c. 278, § 33E.

Judgments affirmed.

Order denying motion for a new trial affirmed.

      The defendant also was convicted of nine related offenses.

      The defendant submitted two appellate briefs; one in support of his direct appeal and one in support of his appeal from the trial judge's denial of his motion for a new trial. Together, the briefs assert numerous claims of error, some of which are barely comprehensible and lack compliance with our rule governing appropriate appellate argument. Mass. R.A.P. 16 (a ) (4), as amended, 367 Mass. 921 (1975). See Commonwealth v. Cassidy, 470 Mass. 201, 209 n.9, 21 N.E.3d 127 (2014) (arguments unsupported by "individual legal analysis or citation to the relevant legal authority" are insufficient under rule 16 ); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003, 958 N.E.2d 51 (2011) ("Briefs that limit themselves to 'bald assertions of error' that 'lack[ ] legal argument ... [do not] rise[ ] to the level of appellate argument' required by rule 16"). However, we have reviewed all his claims of error under our obligation pursuant to G. L. c. 278, § 33E ; none requires relief.

      According to the record, at the relevant time, the defendant was approximately six feet, two inches tall and weighed approximately 240 pounds. The defendant was twenty-three years old at the time of the crime.

      Before confirming that the second registration number was correct, an officer asked the daughter whether the "6" she recorded could have actually been a "G." The daughter said that she was unsure, but the officer replaced the "6" with the letter "G" and got a match.

      The defendant was acquitted of assault and battery on a police officer.

      Different portions of the police radio broadcast described the perpetrators as: five feet, five inches tall; five feet, six inches tall; five feet, seven inches tall; and six feet tall.

      In light of the judge's ruling, defense counsel declined to play the recording.

      Although defense counsel did not specifically object to the judge's adverse ruling, the fact that he made an offer of proof as to those portions of the audio recording's admissibility put the judge on notice of the purpose of the proffered evidence. See Mass. R. Crim. P. 22, as appearing in 378 Mass. 892 (1979); Commonwealth v. Bonds, 445 Mass. 821, 828, 840 N.E.2d 939 (2006) ("We have consistently interpreted [rule 22 ] to preserve appellate rights only when an objection is made in a form or context that reveals the objection's basis"); Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984), quoting Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975), S.C., 371 Mass. 596, 358 N.E.2d 776 (1976) (counsel is "not required to make further efforts 'in the face of [a] judge's unequivocal adverse ruling' "). See also Mass. G. Evid. § 103(a)(2) (2018). This is especially true in light of the extensive sidebar discussions about the audio recording throughout trial.

      Our case law has not always been consistent regarding the standard for excluding evidence because the evidence is unfairly prejudicial. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27, 21 N.E.3d 157 (2014). In contrast to the "more exacting standard" of admissibility under Crayton, supra, where "other bad acts" evidence should be excluded where "its probative value is outweighed by the risk of unfair prejudice," evidence offered in furtherance of a defense under Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980), should be excluded only where its probative value is substantially outweighed by the danger of unfair prejudice. See Mass. G. Evid., supra at §§ 403, 404(b). The standard of admissibility for Bowden evidence articulated in Commonwealth v. Silva-Santiago, 453 Mass. 782, 803, 906 N.E.2d 299 (2009), did not accurately reflect the appropriate balancing test. See id. (considering "whether the probative weight of the Bowden evidence exceeded the risk of unfair prejudice to the Commonwealth from diverting the jury's attention to collateral matters"). We therefore clarify: Bowden evidence is admissible so long as its probative value is not substantially outweighed by its prejudicial effect. See Mass. G. Evid., supra at § 403.

      The defendant also argues that the judge impermissibly interfered with trial counsel's strategy and undermined his right to present a defense by excluding portions of the broadcast that included descriptions of the perpetrators, as well as portions containing information about the defendant having been stopped in the same vehicle on a prior occasion. Although we agree that "it is the defendant and his counsel, and not the judge, who must evaluate the risks of their trial strategy," Commonwealth v. Vardinski, 438 Mass. 444, 455, 780 N.E.2d 1278 (2003), as previously discussed, the judge's evidentiary ruling did not preclude the defendant from presenting a Bowden defense to the jury. Cf. Commonwealth v. Bizanowicz, 459 Mass. 400, 419, 945 N.E.2d 356 (2011) ("the judge's exclusion of [evidence did not] deprive the defendant of the ability to present a defense suggesting that [a third-party] was the killer").

      Relatedly, the defendant contends that the judge erred in denying his motion for a new trial because the jury were not given an instruction on cross-racial identifications. Because this case was tried before our decision in Commonwealth v. Gomes, 470 Mass. 352, 361-378, 22 N.E.3d 897 (2015), the judge was not required to give a cross-racial identification instruction. See Commonwealth v. Bastaldo, 472 Mass. 16, 23, 32 N.E.3d 873 (2015) ("Although it was not error before Gomes for the judge to decline to give a cross-racial instruction, such an instruction must be given in trials that commence after Gomes where there is a cross-racial identification"). The defendant did not request such an instruction and the judge's instruction adequately addressed the issue of reliability in eyewitness identifications. We therefore discern no error in the denial of the defendant's motion for a new trial on this ground. See Commonwealth v. Bly, 448 Mass. 473, 496, 862 N.E.2d 341 (2007).

      In Commonwealth v. Grady, 474 Mass. 715, 719, 54 N.E.3d 22 (2016), we held that a defendant need not "object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied." The rule announced in Grady does not, however, apply retroactively. Id. See Commonwealth v. Vazquez, 478 Mass. 443, 448 n.2, 85 N.E.3d 973 (2017). We therefore review to determine whether any error created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Caruso, 476 Mass. 275, 292, 67 N.E.3d 1203 (2017). We note, however, that even if the objection had been properly preserved, Charles Brown's testimony would have been admissible under the prior recorded testimony exception to the hearsay rule under Mass. G. Evid., supra at § 804(b)(1).

      Before trial, suppression counsel withdrew, and the defendant was represented by different counsel for his trial.

      For a description of Sonja Farak's misdeeds as a chemist at a State drug laboratory see, e.g., Committee for Public Counsel Servs. v. Attorney Gen., 480 Mass. 700, 706-710, 108 N.E.3d 966 (2018).


source: Caselaw Access Project

license: Public Domain

text:
    Bahig BISHAY & Others v. SUPERIOR COURT DEPARTMENT.
    SJC-12478
    Supreme Judicial Court of Massachusetts.
    October 31, 2018
    The case was submitted on the papers filed, accompanied by a memorandum of law.
    Bahig Bishay, pro se.
    Robert E. Kelley for National Investigations, Inc., & others.
    RESCRIPT
    The petitioners, Bahig Bishay (Bishay) and National Investigations, Inc., Glenn Gillis, and Garry Gillis (collectively, National), appeal from a judgment of a single justice of this court denying, without a hearing, their petition for extraordinary relief in the nature of mandamus, pursuant to G. L. c. 211, § 3. We affirm.
    This is one of a number of cases relating to Bishay's eviction from his home. Specifically, in the case underlying this, which Bishay commenced in the Superior Court, Bishay sought damages for the removal and storage of his personal property in the course of the eviction. See Bishay v. Clerk of the Superior Court in Norfolk County, 476 Mass. 1017, 1018, 68 N.E.3d 628 (2017) (denying petition for writ of mandamus seeking order compelling clerk to enter final judgment as proposed by petitioners). The National petitioners were among the defendants in the Superior Court action. Final judgment has now entered in that case, Bishay has appealed, and his appeal has been entered and is currently pending in the Appeals Court.
    While that appeal has been pending, Bishay and National filed a joint petition in the county court pursuant to G. L. c. 211, § 3, seeking an order requiring the Superior Court judge to incorporate their "agreement for judgment" into the final judgment in the Superior Court; in the alternative, they sought an order from the single justice requiring a jury trial in the underlying case. The single justice denied their petition.
    The appeal from the single justice's judgment is now before us on the petitioners' memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). The rule applies where a single justice has denied relief from an interlocutory ruling in the trial court, and requires the appellant to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any adverse judgment in the trial court or by other available means." Id. Regardless of whether the rule applies in this situation, "it is clear on this record that Bishay [and National have or] had adequate remedies in the ordinary appellate process." Bishay v. Land Court Dep't of the Trial Court, 477 Mass. 1032, 1033, 81 N.E.3d 292 (2017). See Wallace v. PNC Bank, N.A., 478 Mass. 1020, 1020, 88 N.E.3d 877 (2018) ("whether relief is requested in the nature of certiorari or mandamus, or by means of the court's extraordinary power of general superintendence, relief is available only where the petitioner demonstrates the absence of an adequate and effective alternative remedy"). Specifically, to the extent the petitioners challenge the form of the Superior Court's judgment, or otherwise claim error in the underlying proceedings, they can make those claims in the Appeals Court, in the pending appeal from the final judgment in the underlying action. They have not met their burden of establishing that the normal appellate process is inadequate to provide a remedy.

      National Investigations, Inc.; Glenn Gillis; and Garry Gillis.

      The single justice also denied the petitioners' motion for reconsideration.

   In these circumstances, the single justice neither erred nor abused his discretion in denying the petition.

Judgment affirmed.


text:
    Dennis SENA v. COMMONWEALTH.
    SJC-12490
    Supreme Judicial Court of Massachusetts.
    October 31, 2018.
    Dennis Sena, pro se.
    RESCRIPT
    Dennis Sena filed a petition for relief under G. L. c. 211, § 3, in the county court, seeking review of a Superior Court judge's order denying his motion to withdraw a guilty plea and to enforce a plea agreement. The single justice essentially denied the petition, and Sena appeals.
    Sena has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), although he is not challenging an interlocutory ruling of the trial court. Even though the rule does not apply in this situation, it is evident on the record before us that review under G. L. c. 211, § 3, is not warranted because an adequate alternative remedy is available: specifically, an appeal to the Appeals Court from the Superior Court's denial of the request to withdraw the guilty plea. Indeed, Sena filed a notice of appeal from the judge's order, and his appeal has been docketed in the Appeals Court. "This court's extraordinary power of general superintendence under G. L. c. 211, § 3, is not a shortcut for the normal process of ... appeal." Padmanabhan v. Yout, 477 Mass. 1012, 1013, 75 N.E.3d 1114 (2017).
    A judgment shall enter in the county court denying the petition under G. L. c. 211, § 3.
    So ordered.
    The case was submitted on the papers filed, accompanied by a memorandum of law.


author: BLAKE, J.

text:
    COMMONWEALTH v. Edward GALARZA.
    No. 17-P-728
    Appeals Court of Massachusetts, Hampden..
    Argued June 5, 2018 Decided August 15, 2018
    David Novod for the defendant.
    Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the Commonwealth.
    Present: Green, C.J., Trainor, & Blake, JJ.
   BLAKE, J.

Following a jury trial in the District Court, the defendant, Edward Galarza, was convicted of various firearm related offenses. On appeal, the defendant claims that (1) the motion judge erred in denying his motion to suppress, (2) the trial judge denied him the opportunity to present certain defenses, and (3) the evidence was insufficient on the conviction of possession of a loaded firearm without a license. We affirm in part and reverse in part.

1. Background. The jury could have found the following facts. On September 15, 2015, at approximately 1:50 A.M. , State police Trooper Matthew Stone was on patrol in a marked sport utility vehicle on Armory Street in Springfield, a high crime area. Stone saw a pickup truck traveling in excess of the posted speed limit. As Stone increased his speed to catch up with the pickup truck, the truck rapidly slowed down. Stone noticed that the rear registration plate lights were not working, and that the driver's side mirror was cracked. After stopping the pickup truck, Stone approached it and saw the operator, later identified as the defendant, bend forward slightly and move to his right. As the defendant bent forward, Stone could no longer see his head and torso. When Stone reached the driver's side window, the defendant was speaking on a cellular telephone (cell phone) "very urgently, very nervously." The defendant asked the person on the other end of the cell phone call to come to the location of the stop. Stone saw that the defendant was "very nervous," "panicked," and "breathing very heavily."

Stone asked the defendant to end the call; the defendant refused; Stone again asked the defendant to end the call. This time, without ending the call, the defendant turned toward Stone and told him that the party on the other end of the cell phone call owned the pickup truck. Stone asked the defendant for his driver's license and the pickup truck's registration. The defendant produced only his license, telling Stone that the registration was not in the truck. When asked how he knew that, the defendant answered that "he just knew." Over the speaker on the cell phone, Stone heard the voice of a third party tell the defendant two or three times that the registration was in the center console. When Stone asked the defendant about this, he responded by opening the glove box and quickly closing it. He said, "[S]ee, it's not in there." Stone responded that the third party said the registration was in the center console, not the glove box. The defendant placed his arm over the center console and refused to open it, in an effort to block access to it.

The defendant became extremely nervous and began to look around. Stone was concerned that the defendant would either try to flee or fight; Stone was also concerned for his safety. As a result, Stone ordered the defendant not to move. At the same time, a Springfield police officer drove by and Stone signaled that he needed assistance. Additional Springfield police officers soon arrived on the scene. Stone ordered the defendant to get out of the pickup truck. Although not yet under arrest, the defendant was handcuffed. Meanwhile, Stone returned to the pickup truck and opened the center console, where he observed a handgun. Stone asked the defendant to produce a "license to carry," and the defendant responded that he did not have one. The defendant was then arrested and given Miranda warnings. The gun was loaded with one round of ammunition in the chamber and seven rounds of ammunition in the magazine.

Stone called for a tow truck. While the pickup truck was being prepared to be towed, an individual arrived, later identified as Albin Medina, who said he was its owner. Stone recognized Medina's voice as the same one that he heard on the cell phone speaker; Medina confirmed that, in fact, it was. Stone verified that Medina owned the pickup truck and had a driver's license. Stone asked him if there was anything in the pickup truck that Stone needed to be aware of; Medina said no. Stone then released the pickup truck to him.

2. Motion to suppress. a. Exit order. The defendant contends that the motion judge erred in denying his motion to suppress because the exit order, patfrisk, and search of the pickup truck's center console amounted to an unreasonable warrantless search. "In reviewing a ruling on a motion to suppress, we accept the [motion] judge's subsidiary findings of fact absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law." Commonwealth v. Cawthron, 479 Mass. 612, 616, 97 N.E.3d 671 (2018) (quotation omitted). "We review independently the application of constitutional principles to the facts found." Commonwealth v. Amado, 474 Mass. 147, 151, 48 N.E.3d 414 (2016) (quotation omitted).

Here, the pickup truck was stopped for speeding. Police officers are warranted in stopping a motor vehicle for traffic violations. See generally Commonwealth v. Buckley, 478 Mass. 861, 865-866, 90 N.E.3d 767 (2018). The defendant does not challenge the legality of the stop. Instead, he contends that Stone did not have reasonable suspicion to order the defendant to get out of the pickup truck. An exit order is warranted in three situations: (1) "when a reasonably prudent [person] in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger"; (2) "if the officer developed a reasonable suspicion based on specific and articulable facts that the [subject of the exit order] was engaged in, or about to engage in, criminal activity"; and (3) "where the police were conducting a search of the automobile on other grounds." Amado, 474 Mass. at 152, 48 N.E.3d 414 (quotations omitted). "The police are not required to gamble with their personal safety ... and are entitled to take reasonable precautions for their protection." Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 350, 921 N.E.2d 1026 (2010) (quotations omitted). The defendant parses the facts to suggest that, viewed independently, the defendant's nervousness, his ducking down, and the high crime area where the stop occurred were not enough. However, these facts must be viewed in the totality of the circumstances. See Commonwealth v. Stampley, 437 Mass. 323, 325-326, 771 N.E.2d 784 (2002). Viewing the evidence through the lens of an experienced, trained trooper, as the motion judge did, the exit order was proper. The motion judge articulated a multitude of factors that justify the exit order. As Stone approached the pickup truck, the defendant ducked down; he ignored Stone's command to end the cell phone call multiple times; he appeared nervous and frantic; he refused to open the center console despite information that the pickup truck registration was contained in it; he put his hand over the center console; the pickup truck was stopped in a high crime area at 1:50 A.M. ; and he had a single key, without a ring on it, which in Stone's opinion was consistent with theft of a motor vehicle. This constellation of facts justify the exit order because of an objectively reasonable concern for officer safety.

b. The handcuffing. The defendant's argument that he was arrested when the police placed him in handcuffs fares no better. The defendant's brief detention prior to the discovery of the firearm did not rise to the level of a formal arrest. See Commonwealth v. Sinforoso, 434 Mass. 320, 325, 749 N.E.2d 128 (2001). The use of handcuffs is not dispositive on the question whether and when a stop has been transformed into an arrest. See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556-557, 32 N.E.3d 906 (2015). Indeed, at that point in time the police had reasonable suspicion, but not yet probable cause, to believe a crime had been committed. Moreover, concern for officer safety also permits the defendant to be handcuffed. See Commonwealth v. Williams, 422 Mass. 111, 117-118, 661 N.E.2d 617 (1996).

c. Search of the center console. Police may conduct a protective sweep of the interior of a motor vehicle for a weapon so long as the search is limited to areas from where the defendant could access a weapon. See Commonwealth v. Manha, 479 Mass. 44, 49, 91 N.E.3d 669 (2018). Allowing the defendant to return to the pickup truck without a search for weapons, where a weapon could be within reach of the defendant, poses an obvious concern for officer safety. See Commonwealth v. Edwards, 476 Mass. 341, 348-349, 67 N.E.3d 1224 (2017) ("Although the defendant was not in the vehicle at the time the gun was observed, ... there was no assurance that he would not be returning promptly to his seat behind the wheel of the automobile"). The defendant's refusal to open the console and his placing his hand over the compartment in a way that prevented access to it justified the search. The motion was properly denied.

3. Defenses. The defendant next argues that it was error for the trial judge to prevent him from presenting evidence of a third-party culprit and that the police investigation was inadequate. We disagree.

a. Third-party culprit. A defendant is given wide latitude to present evidence that someone other than himself committed the crime; however, that latitude is not boundless. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 800-801, 906 N.E.2d 299 (2009) ; Mass. G. Evid. § 1105 (2018). A judge is permitted broad discretion in deciding whether to exclude third-party culprit evidence. See Silva-Santiago, 453 Mass. at 801, 906 N.E.2d 299.

On the morning of trial, the defendant indicated his intention to call his prior attorney, Peter Slepchuk, as a witness. During a voir dire, Slepchuk testified that he represented the defendant at arraignment, and that during the bail review, he argued that the firearm belonged to the owner of the pickup truck, Medina. He testified that he had learned that Medina had prior firearm convictions and used this information to support his argument. Slepchuk further testified that approximately one week later, as he was entering the court house for the defendant's bail review hearing, a man who identified himself as Medina approached him. This person told Slepchuk that he was aware of Slepchuk's bail argument. He ordered Slepchuk not to implicate Medina or use his name again. Slepchuk testified that this man told him that the defendant needed to take responsibility; the man then followed him into the court room for the bail review hearing. At sidebar, Slepchuk notified the bail judge and the prosecutor of what occurred; he eventually reported it to the State police. Thereafter, Slepchuk filed a motion to withdraw on the basis that he had become a potential witness. The motion was allowed.

The Commonwealth objected to Slepchuk's proposed testimony, contending that it was largely hearsay and not relevant to the crimes charged. The defendant claimed it was both relevant and necessary for a Bowden defense. See Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980) ; Mass. G. Evid. § 1107 (2018). The proffered testimony, however, would require the jury to speculate on collateral issues. See Commonwealth v. Phinney, 446 Mass. 155, 163, 843 N.E.2d 1024 (2006). Specifically, the jury would have to surmise that the person who approached Slepchuk was in fact Medina, that the firearm belonged to Medina, and that Medina wanted the defendant to take responsibility for the firearm. In considering the proposed evidence, the trial judge properly excluded Slepchuk's testimony, as some of the proposed testimony was hearsay and the balance was not relevant to whether the defendant possessed the firearm at the time it was recovered. See Commonwealth v. Rosario, 444 Mass. 550, 556-557, 829 N.E.2d 1135 (2005) (judge permitted to exclude third-party culprit evidence on relevancy grounds). This ruling did not, however, foreclose the defendant from pursing a third-party culprit defense. The defendant was permitted to testify that he was not the owner of the pickup truck, this was the first time he had borrowed it, he had no knowledge of the items in the pickup truck, and the firearm did not belong to him. There was no error.

Next, the defendant argues that it was error to exclude Medina's prior criminal record. Third-party culprit evidence that is hearsay and does not fall within an exception is admissible if, "in the judge's discretion, the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other substantial connecting links to the crime." Silva-Santiago, 453 Mass. at 801, 906 N.E.2d 299 (quotation omitted). For the same reasons detailed in the discussion concerning Slepchuk's proffered testimony, there was no error in excluding these records.

For the first time on appeal, the defendant argues that the excluded evidence was indicative of Medina's consciousness of guilt. As this was not raised in the trial court, we consider whether the ruling, if error, gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Vuthy Seng, 436 Mass. 537, 550, 766 N.E.2d 492, cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002). We conclude that it does not for substantially the same reasons that Slepchuk's testimony was properly excluded. This evidence would require the jury to speculate that the person who approached Slepchuk was in fact Medina, and that the gun belonged to him. See Rosario, 444 Mass. at 557, 829 N.E.2d 1135. There was no error, let alone a substantial risk of a miscarriage of justice.

b. Failure to investigate. Based on the voir dire testimony of Slepchuk, the defendant sought to advance a defense that the police investigation was inadequate. See Bowden, 379 Mass. at 485-486, 399 N.E.2d 482. The defendant's claim that he was denied the ability to present a failure to investigate defense is belied by the record. He was permitted to question Stone about his conversation with Medina when he arrived at the scene of the stop. Stone was also questioned about the lack of fingerprint evidence and deoxyribonucleic acid testing. As a result of this line of questioning, the judge gave the jury a Bowden instruction. There was no error.

4. Sufficiency of the evidence. In his opening brief, the defendant raised three categories of purported errors: (1) the denial of his motion to suppress, (2) rulings on certain aspects of his defenses, and (3) the sufficiency of the evidence of the conviction on the charge of carrying a loaded firearm. In its brief, the Commonwealth noted that the defendant did not raise the sufficiency of the evidence of the convictions on the charges of carrying a firearm without a license and possession of ammunition and asserted that these issues are waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In the defendant's reply brief, he addressed the Commonwealth's response to the three claims he had raised in his opening brief with specific reference to pages in the Commonwealth's brief. Like his opening brief, the defendant's reply brief was silent on the sufficiency of the evidence on the charges of carrying a firearm without a license and possession of ammunition without a firearm identification card. Thereafter, the defendant filed a motion for leave to file a supplemental brief, a supporting affidavit, and the proposed supplemental brief. There, for the first time, the defendant challenged the sufficiency of the evidence to support the conviction of possession of ammunition. He further argued that this conviction is duplicative of the conviction of possession of a loaded firearm. Defense counsel's supporting affidavit stated that he became aware that he had omitted these two issues after reviewing the Commonwealth's brief, and that he had no strategic reason for doing so. The Commonwealth filed an opposition arguing that the issues were waived, and pointing out that both the defendant's opening brief and his reply brief failed to address these issues.

Rule 16(c) of the Massachusetts Rules of Appellate Procedure, as amended, 399 Mass. 1217 (1987), upon which the defendant relies in support of his motion for leave to file a supplemental brief, provides in pertinent part that an "appellant may file a brief in reply to the brief of the appellee." The defendant did so and made substantive arguments in response to the Commonwealth's brief. Although the Commonwealth highlighted the issue of waiver in its brief, the defendant's reply brief failed to address it. To allow the defendant to file a supplemental brief on an issue that is not new, and does not address a change in the law, would eviscerate the doctrine of waiver. Accordingly, the defendant's motion for leave to file a supplemental brief is denied. However, we address the question of sufficiency of the evidence for purposes of assessing whether there has been a substantial risk of a miscarriage of justice. See Commonwealth v. Powell, 459 Mass. 572, 579, 946 N.E.2d 114 (2011), cert. denied, 565 U.S. 1262, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012), quoting from Commonwealth v. Grandison, 433 Mass. 135, 140 n.8, 741 N.E.2d 25 (2001). (although raised for first time on appeal, we consider claim "because 'findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice' ").

Here, we have the rare case that presents both a procedural defect and a sufficiency issue that compels reversal on the question of sufficiency of the evidence of the conviction of possession of ammunition without a firearm identification card. In addition, the defendant contends that the evidence was insufficient to prove that he knew the firearm was loaded and therefore the conviction of possession of a loaded firearm must be reversed.

"To convict the defendant of unlawful possession of a loaded firearm, the Commonwealth [is] required to prove that the defendant knowingly possessed a firearm that was loaded with ammunition and met the legal requirements of a firearm ...." Commonwealth v. Johnson, 461 Mass. 44, 52, 958 N.E.2d 25 (2011). In a recent decision, the Supreme Judicial Court held that "to sustain a conviction [of possession of a loaded firearm], the Commonwealth must prove that a defendant knew the firearm he possessed was loaded." Commonwealth v. Brown, 479 Mass. 600, 601, 97 N.E.3d 349 (2018). Here, as in Brown, the ammunition in the firearm was the only evidence presented that the firearm was loaded. It therefore follows that because "the defendant 'could not have discerned whether the gun was loaded merely by looking at it,' and the Commonwealth presented no evidence that the defendant knew it was loaded," the evidence was insufficient. Id. at 605, 97 N.E.3d 349, quoting from Commonwealth v. Brown, 91 Mass. App. Ct. 286, 293, 74 N.E.3d 293 (2017).

Possession of ammunition without a firearm identification card is a lesser included offense of unlawful possession of a loaded firearm. See Johnson, 461 Mass. at 54, 958 N.E.2d 25. And, because the only ammunition in this case was found within the firearm itself, this conviction too cannot stand.

5. Conclusion. The conviction of possession of a firearm without a license is affirmed. The convictions of possession of a loaded firearm without a license and possession of ammunition without a firearm identification card are set aside, and judgments shall enter for the defendant on those charges.

So ordered.

      The defendant was found guilty on charges of carrying a firearm without a license, possession of ammunition without a firearm identification card, and carrying a loaded firearm without a license. The Commonwealth filed a nolle prosequi on a charge of improper storage of a firearm. Three motor vehicle violations were filed with the defendant's consent.

      Testing by the State police firearms identification section confirmed that the recovered weapon was an operable firearm.

      A search of the pickup truck incident to arrest was conducted; no further evidence was discovered.

      We consider only the evidence presented at the motion to suppress hearing here, but consider the trial evidence on the remaining issues.

      No contraband was found on the defendant's person.

      The defendant's assumption that the trial judge was unaware that hearsay may be permitted for purposes of a third-party culprit defense is not supported by the record.

      While the jury were not so instructed, more than one person may possess an object. See Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 556, 581 N.E.2d 498 (1991).

      We review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). We have considered the arguments raised by the Commonwealth in its brief on the question of sufficiency of the evidence.

      Although both parties acknowledged in their briefs that the Brown case was pending, neither submitted a letter pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), after that case issued. This would have been the better practice.

      To convict the defendant of unlawful possession of ammunition, the Commonwealth was required to prove that the defendant knowingly possessed ammunition that met the legal definition of ammunition. See G. L. c. 269, § 10(h ).


author: ENGLANDER, J.

text:
    Andrea M. TORTOLANO v. LEMUEL SHATTUCK HOSPITAL.
    No. 17-P-631
    Appeals Court of Massachusetts, Middlesex..
    Argued April 10, 2018 Decided August 20, 2018
    Suzanne L. Herold, North Reading, for the plaintiff.
    Anne M. McLaughlin, Assistant Attorney General, for the defendant.
    Present: Green, C.J., Desmond, & Englander, JJ.
   ENGLANDER, J.

In this case, we consider whether Andrea Tortolano, a State employee, can bring claims in the Superior Court against Lemuel Shattuck Hospital (hospital or defendant) for breach of contract and for nonpayment of overtime wages in violation of G. L. c. 149, § 30B. The motion judge (1) dismissed Tortolano's breach of contract claim on the ground that she failed to exhaust the grievance procedure set forth in the applicable collective bargaining agreement (CBA), and (2) dismissed the nonpayment of overtime wages claim on the ground that there is no private right of action for violations of § 30B. For the reasons that follow, we affirm.

Background. We summarize the relevant facts as set forth in the amended complaint, reserving some details for further discussion. See Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 368, 961 N.E.2d 83 (2012). On February 4, 2008, Tortolano starting working as a physician's assistant at the hospital. Her employment was governed by the CBA between the Commonwealth and the Massachusetts Nurses Association, State Chapter of Health Care Professionals, Unit 7 (union). Pursuant to the CBA, Tortolano was entitled to time and one-half overtime pay for work performed in excess of forty hours per week, including for time spent "on call" while at home. The CBA also set forth a grievance procedure for resolving disputes between an employee and the employer.

In the fall of 2014, Tortolano's union representative filed three grievances on her behalf with the hospital. One of those grievances alleged that the hospital had failed to pay her for time spent "on call" while at home. The hospital did not take any action on any of the grievances. Thereafter, Tortolano did not take any further steps in the grievance process.

Instead, Tortolano filed a complaint against the hospital with the Attorney General, alleging, among other things, nonpayment of wages and overtime pay violations. In response, the Attorney General's office sent Tortolano a letter dated November 23, 2015, which stated that it had "carefully reviewed the complaint," and that it had "determined that the proper resolution of this matter may be through a private suit in civil court." The letter stated that G. L. c. 149, § 150, and G. L. c. 151, §§ 1B and 20, "establish a private right of action for employees who believe they are victims of certain violations of the state wage laws." The letter concluded that it represented "written assent to sue and grant[ed Tortolano] the authority to pursue this matter against the employer ... as permitted by [G. L. cc.] 149 and 151." Finally, the Attorney General's office stated that it would "not take further enforcement action at this time."

Tortolano commenced this action in December of 2015. The original complaint contained four counts against the hospital, alleging violations of G. L. c. 149, §§ 148 and 150 (failure to pay wages) (count 1); G. L. c. 151, § 1A (failure to pay overtime wages) (count 2); G. L. c. 151, § 15 (failure to keep accurate payment records) (count 3); and breach of contract (count 4). After the defendant filed an initial motion to dismiss, Tortolano amended her complaint to add a fifth count, invoking G. L. c. 149, § 30B.

There were two successive motions to dismiss filed with respect to Tortolano's claims. In ruling on the first motion, the judge dismissed the first three counts of Tortolano's complaint, relating to purported violations of the Commonwealth's wage laws other than G. L. c. 149, § 30B. The judge denied the hospital's motion with respect to the breach of contract claim, however, accepting Tortolano's allegations that she had exhausted her administrative remedies by filing a complaint with the Attorney General's office, and that the hospital had repudiated or nullified the CBA by ignoring her grievances.

After Tortolano amended her complaint to add the § 30B claim, the hospital filed a second motion to dismiss. As to Tortolano's breach of contract claim, the hospital this time attached the sections of the CBA setting forth the grievance procedure. The hospital urged that Tortolano had failed to exhaust that procedure, because under the CBA she could have, but did not, continue to pursue her grievances after the hospital failed to respond to her initial filings. The hospital also moved to dismiss the newly added fifth count of Tortolano's amended complaint, on the ground that there is no private right of action to enforce G. L. c. 149, § 30B. In a decision dated January 20, 2017, the judge accepted the hospital's arguments and dismissed both the § 30B and contract claims. Judgment entered for the hospital, and the present appeal followed.

Discussion. 1. Standard of review. In reviewing the allowance of a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), we accept the factual allegations in a plaintiff's complaint, and any favorable inferences reasonably drawn therefrom, as true. See Ginther v. Commissioner of Ins., 427 Mass. 319, 322, 693 N.E.2d 153 (1998). Our review is de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011). "[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Ibid. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636, 888 N.E.2d 879 (2008).

2. Breach of contract. Tortolano contends that the judge erred in dismissing her breach of contract claim on the ground that she failed to exhaust the grievance procedure in the CBA. There was no error.

In general, where a collective bargaining agreement includes a grievance procedure, "failure to pursue contractual grievance procedures bars suit against the employer." Johnston v. School Comm. of Watertown, 404 Mass. 23, 25, 533 N.E.2d 1310 (1989). See O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 695, 664 N.E.2d 843 (1996). "Employees may not simply disregard the grievance procedures set out in a collective labor contract and go direct to court for redress against the employer." Balsavich v. Local 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 286, 356 N.E.2d 1217 (1976).

Section 25.2 of the CBA sets forth a four-step grievance procedure for resolving disputes under the CBA. The first step is for an employee or the union to submit a written grievance to the hospital, which, in turn, shall provide a written response to the grievance within seven days. If either the employee or the union is dissatisfied with the grievance decision, the CBA provides, in steps 2 and 3, for two more appeals within the hospital, after which arbitration may be invoked. Importantly, section 25.6 of the CBA further provides that if the hospital exceeds any time limit for responding, the employee or the union may assume that the grievance has been denied and may invoke the next step of the procedure, except that only the union may request arbitration in the fourth step.

Here, the grievance procedure was never exhausted because neither Tortolano nor the union proceeded beyond step 1. Pursuant to the CBA's express terms, when the hospital did not respond to Tortolano's grievances within the prescribed time period, the grievances were deemed denied, and either Tortolano or the union was permitted to invoke the second step of the process. Tortolano could have done so, without the union's involvement. Rather than continue with the grievance process, however, Tortolano brought this lawsuit.

This case accordingly is controlled by Johnston, 404 Mass. at 24-25, 533 N.E.2d 1310. In that case, the court considered whether an employee's failure to pursue contractual grievance procedures when faced with union inaction barred a breach of contract claim against his employer. There, the union refused to represent the employee in pursuing his claim for overtime pay because the union determined that the claim lacked merit. The court stated that, even if it assumed that the union had failed to fulfil its duty of fair representation, the employee had the right, under the collective bargaining agreement, to pursue his grievance independent of the union. Given that the employee had not fully complied with the agreement's grievance procedure, he could not pursue his contract claim against the employer in court. See ibid. Moreover, the Johnston court made clear that, except in limited circumstances not present here, any claim by the public employee against the union for breach of the duty of fair representation must be presented first to the Labor Relations Commission (now the Department of Labor Relations, see G. L. c. 150E, § 11, as amended through St. 2011, c. 3, §§ 141-143), not to a trial court. See id. at 26-27, 533 N.E.2d 1310.

Johnston thus establishes that Tortolano's contract claim must be dismissed. The grievance procedure was not exhausted before this suit was filed. Although this case differs from Johnston in that here the union invoked the first step of the grievance procedure, Tortolano could have progressed through the next two steps without the union's involvement, and Tortolano does not allege or argue that she was inhibited from doing so. Moreover, even if the union was at fault for the failure to exhaust, Tortolano's remedy was to seek relief from the Department of Labor Relations, before resorting to the courts. See ibid. She did not do so.

Finally, Tortolano cannot avoid the grievance process by pointing to the inaction of the employer. The CBA expressly contemplated such inaction, by providing that the employer's failure to respond constituted a denial of the grievance, thereby permitting the employee to move forward in the process. The hospital's unresponsiveness to Tortolano's grievances therefore did not constitute a repudiation or nullification of the grievance machinery -- she needed to continue pursuing the grievance procedure set forth in the CBA. See Balsavich, 371 Mass. at 286, 356 N.E.2d 1217 ; Azzi v. Western Elec. Co., 19 Mass. App. Ct. 406, 408-409, 474 N.E.2d 1166 (1985).

3. Violation of G. L. c. 149, § 30B. Tortolano next contends that the motion judge erred in ruling that she had no private right of action under G. L. c. 149, § 30B. She asserts that the statute must be broadly construed to effectuate its purpose of protecting the right of public employees to overtime wages. See generally Crocker v. Townsend Oil Co., 464 Mass. 1, 13, 979 N.E.2d 1077 (2012) ("[T]he legislative purpose behind the Wage Act ... is to provide strong statutory protection for employees and their right to wages"). Moreover, Tortolano argues that the letter she received from the Attorney General's office authorized her to file this suit, thereby in essence conferring upon her a private right of action. The judge did not err in dismissing this claim.

There is no express private right of action for violations of G. L. c. 149, § 30B, so the question is whether one should be inferred in light of the statutory scheme and the Legislature's purpose and intent. See Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543, 689 N.E.2d 799 (1998). See also Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373, 893 N.E.2d 1187 (2008). The touchstone is the intent of the Legislature. In evaluating intent, one important consideration is what enforcement provisions are set forth in the statute itself. See ibid.

With respect to c. 149, the general enforcement power is vested in the Attorney General:

"The attorney general shall, except as otherwise specifically provided, enforce the provisions of this chapter, and shall have all necessary powers therefor" (emphasis added).

G. L. c. 149, § 2, as amended by St. 1996, c. 151, § 368. Importantly, there are several provisions of c. 149 that grant express private rights of action for violations of certain sections of the statute, but none that provide a right of action with respect to § 30B. See, e.g., G. L. c. 149, § 27 (employee aggrieved by violation of prevailing wage law may initiate civil action after filing complaint with Attorney General); G. L. c. 149, § 150, as amended through St. 2014, c. 505, § 2 (employee aggrieved by violation of G. L. c. 149, §§ 33E, 52E, 148, 148A, 148B, 148C, 150C, 152, 152A, 159C, or 190, or by violation of G. L. c. 151, § 19, may "institute and prosecute in his own name and on his own behalf ... a civil action for injunctive relief, for any damages ... , and for any lost wages" after filing complaint with Attorney General); G. L. c. 149, § 185(d ) (employee subject to retaliation may institute civil action in Superior Court).

The question here is in large part controlled by the reasoning in Salvas, 452 Mass. at 372-373, 893 N.E.2d 1187, which held that there is no private right of action under another section of c. 149 -- § 100 (requiring meal breaks for employees). As Salvas points out, the many express private rights of action in c. 149 demonstrate that the Legislature knows how to confer a private right of action when it so intends, and the c. 149 provisions are a strong indication that no further private rights of action should be inferred. See id. at 373, 893 N.E.2d 1187. Moreover, the Massachusetts courts are "reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference." Loffredo, 426 Mass. at 544, 689 N.E.2d 799. See Transamerica Mort. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) ("[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it"). The express language of G. L. c. 149, § 2, authorizing enforcement of c. 149 by the Attorney General unless otherwise specifically provided, coupled with the granting of private rights of action in certain sections of c. 149, but none encompassing § 30B or in § 30B itself, signifies that the provisions of § 30B can be enforced only by the Attorney General. See Salvas, 452 Mass. at 373, 893 N.E.2d 1187 ; Mello Constr., Inc. v. Division of Capital Asset Mgmt., 84 Mass. App. Ct. 625, 629-630, 999 N.E.2d 1091 (2013).

Finally, we turn to the matter of the letter from the Attorney General's office. Tortolano's argument in this court -- that the letter conferred on her the right to bring an action in her own name under G. L. c. 149, § 30B -- was not raised in either her amended complaint or in her opposition to the hospital's motion to dismiss the fifth count of that complaint.

Accordingly, this argument was waived. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338, 677 N.E.2d 247 (1997). See also Carey v. New England Organ Bank, 446 Mass. 270, 285, 843 N.E.2d 1070 (2006).

Even if it had been properly raised, however, the argument would fail. As indicated, under the statutory scheme, the authority to enforce G. L. c. 149, § 30B, rests with the Attorney General. See G. L. c. 149, § 2. Tortolano asserts that the Attorney General's letter passed the enforcement power on to her, but we do not agree. First, the letter did not appoint Tortolano, or her counsel, to act as a special assistant attorney general, working on behalf of and subject to the Attorney General's control. See generally G. L. c. 12, § 3 (attorney general shall appear for Commonwealth, and "[a]ll such suits and proceedings shall be prosecuted or defended by [her] or under [her] direction"); New England Div. of the Am. Cancer Soc. v. Commissioner of Admin., 437 Mass. 172, 173 n.5, 769 N.E.2d 1248 (2002). Indeed, the suit is not brought on behalf of the Commonwealth -- Tortolano is the named plaintiff.

Second, while the letter does authorize Tortolano to bring a private right of action under some sections of c. 149, the Attorney General was without power to confer such a private right of action with respect to § 30B. Where, as discussed above, the Legislature has not provided a private right of action, the Attorney General cannot create an alternative enforcement mechanism by unilaterally conferring such a private right of action on an individual. See Local 1445, United Food & Commercial Wkrs. Union v. Police Chief of Natick, 29 Mass. App. Ct. 554, 558, 563 N.E.2d 693 (1990).

Conclusion. For the foregoing reasons, there was no error in the dismissal of the amended complaint.

Judgment affirmed.

      The Commissioner of Public Health has "general supervision and control" of Lemuel Shattuck Hospital. G. L. c. 111, § 69E, as appearing in St. 1975, c. 752, § 4.

      General Laws c. 149, § 30B, as amended by St. 1960, c. 762, § 1, provides, in pertinent part:
      "All service in excess of eight hours in any one tour of duty or forty hours in any one work week rendered by any employee of the commonwealth ... shall be compensated for at the rate of one and one half times the regular hourly rate of said employee for every hour or fraction thereof of such services rendered."

      These counts were dismissed because the particular statutory provisions invoked either did not apply to Tortolano or otherwise did not give rise to a claim. For example, G. L. c. 151, § 1A, which provides rights to overtime pay, does not apply to employees of a "hospital." See G. L. c. 151, § 1A(16), as appearing in St. 1969, c. 108. Tortolano does not challenge the motion judge's dismissal of counts 1 through 3.

      Contrary to Tortolano's argument, the hospital was not precluded from asking the judge to revisit the legal sufficiency of Tortolano's breach of contract claim. A judge is not precluded from reconsidering a prior decision. See Peterson v. Hopson, 306 Mass. 597, 602, 29 N.E.2d 140 (1940) ("[A] judge may modify a decision already announced, so long as the case has not passed beyond the power of the court"). Matters of case management are within the discretion of the judge. See Eagle Fund, Ltd. v. Sarkans, 63 Mass. App. Ct. 79, 85, 823 N.E.2d 783 (2005). Nor was it incorrect for the judge to consider the portions of the CBA that the hospital attached to its second motion, where the CBA was the basis for the contract claim. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 224, 950 N.E.2d 853 (2011), S.C., 466 Mass. 156, 993 N.E.2d 684 (2013) (automobile insurance policy relied on by plaintiff in framing complaint could be attached to motion to dismiss). See also Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 & n.4, 809 N.E.2d 1017 (2004).

      Pursuant to G. L. c. 149, § 150, Tortolano did institute a civil action "in [her] own name and on [her] own behalf" for alleged violations of G. L. c. 149, § 148. Section 148, however, states that it "shall not apply to an employee of a hospital which is supported in part by contributions from the commonwealth ... unless such employee requests such hospital to pay [her] weekly." G. L. c. 149, § 148, as appearing in St. 1956, c. 259. Because Tortolano did not request weekly payment of her wages, her claim under § 148 was dismissed, and she has not challenged that determination.

      The letter from the Attorney General's office appears to be a form letter that is generated in response to the filing of a complaint for, among other matters, nonpayment of wages. The letter certainly can be misconstrued, however, because it suggests that a claimant can take a course of action to remedy statutory violations which, in fact, may not be available. For example, although the letter can be read as authorizing Tortolano to bring an expedited lawsuit under G. L. c. 149, § 150, which she did, see note 5, supra, it turns out that Tortolano was not eligible for relief under that section. While the Attorney General contended, at argument, that the letter only assents to those lawsuits "permitted by [G. L. c.] 149," such is not the most natural reading of the letter.

      We acknowledge that the various provisions of G. L. cc. 149 and 151 combine for a rather unfortunate result in Tortolano's case. The express private right of action under G. L. c. 149, § 150, does not apply to violations of § 30B, and because Tortolano is an employee of a State hospital, she falls outside the protection of other provisions of the statutes.