text:
    COMMONWEALTH v. Brian C. CHUCKRAN.
    17-P-1085
    Appeals Court of Massachusetts.
    Entered: August 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his convictions, after a jury-waived trial, of two counts of assault and battery upon an elder (a person sixty years of age or older), G. L. c. 265, § 13K(a½). On appeal, the defendant argues that (1) the evidence was insufficient to support his convictions, (2) the judge erred or abused his discretion in admitting prior bad acts evidence, and (3) trial counsel was ineffective by asking a question on cross-examination that "open[ed] the door" to the prior bad acts evidence being admitted. We affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the trial judge could have found the following facts. Much of the evidence consisted of testimony from the victim -- the defendant's mother -- who was a reluctant witness for the Commonwealth and sought to minimize the defendant's conduct.

The defendant suffered from bipolar disorder and schizophrenia. When he did not take his medication he became visibly "agitated" and his demeanor was "not level." On the days of the charged incidents, he had not taken his medication and had also consumed several beers.

On October 12, 2015, as the mother stood at her kitchen sink, the defendant came up behind her and squeezed her neck. The mother testified that "[i]t was playfully done because ... it's been done in the past by both my children." Nevertheless, she did not "appreciate [it] because [her] neck is very sensitive in that area," she did not "like it," they "do things stronger than [she] want[ed] them to," and she had "t[old] them not to do it, but they do it anyway. You know, to kind of aggravate me."

On January 16, 2016, as the mother stood in a doorway between her kitchen and living room, the defendant tried to squeeze by her. He "nudged" her with his body and "tapp[ed]" her face "strong[ly]" with his open hand, "almost like a shove to get out of the way," leaving a bruise above her eye. The mother testified that the defendant was acting "playfully." Several weeks later, however, after the defendant became irate and threw a chair in her apartment, the mother became scared, called 911, and reported both prior incidents to the police, who described her as "emotional ... crying and rather shaken."

At trial, over the defendant's objection, the judge admitted evidence of prior bad acts. In April, 2012, police came to the mother's home where she told them that the defendant, who had not been taking his medication and was "agitated," had jumped off of the couch and threatened to burn down her house. She also told officers that a few days earlier, the defendant had placed his hands around her neck. And in September, 2013, the mother had called 911 after the defendant kicked her and left a bruise. The responding officer found the defendant "yelling and screaming," and the mother was "visibly upset and shaking," with "a black eye, and ... various bruises all over her arms and legs." The mother told the officer that she was afraid the defendant was going to kill her.

Discussion. 1. Sufficiency. The defendant argues that the Commonwealth's evidence was insufficient to support his convictions of assault and battery on an elder. Here, the Commonwealth proceeded on an intentional battery theory. "An intentional assault and battery is 'the intentional and unjustified use of force upon the person of another, however slight.' " Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting from Commonwealth v. McCan, 277 Mass. 199, 203 (1931). "Where the touching is physically harmful, 'consent is immaterial,' but 'a nonharmful touching is a battery only if there is no consent.' " Ibid., quoting from Commonwealth v. Burke, 390 Mass. 480, 481 (1983).

As to the incident of October 12, 2015, the defendant points to the mother's characterization of his neck-squeezing as "playful," without explaining its relevance to any particular element of battery. To the extent that he suggests it establishes consent, we disagree. There was sufficient evidence of lack of consent in the mother's testimony that she did not appreciate or like the touching, that her neck was very sensitive, that the defendant did such things more strongly than she wanted, and that she had told him not to do it but he did it anyway to aggravate her. The defendant does not contest the sufficiency of the evidence of any other element of the offense.

As to the incident of January 16, 2016, the defendant argues that the evidence was insufficient to prove his touching was intentional. See Commonwealth v. Moore, 36 Mass. App. Ct. 455, 459 (1994) (assault and battery under intentional battery theory involves touching that is intentional, not simply result of intentional act). Again, we disagree. The evidence that he "tapp[ed]" the mother's face "strong[ly]" with his open hand, "almost like a shove to get out of the way," leaving a bruise above her eye, was sufficient to prove that he intended to touch her. In light of the evidence of bruising, the defendant's further argument that the Commonwealth failed to prove lack of consent misses the mark: where a touching is physically harmful, consent is immaterial. See Porro, 458 Mass. at 529. The defendant's final argument -- that there was insufficient evidence of reckless conduct causing more than a transient or trifling injury -- need not be addressed where the evidence of an intentional battery was sufficient. See id. at 529-530.

2. Prior bad acts evidence. The defendant argues that the judge erred or abused his discretion in admitting the prior bad acts evidence. The defendant claims that (1) its probative value was outweighed by the risk of unfair prejudice, (2) the judge failed to instruct himself properly on its use, and (3) the prior bad acts were too remote in time. The determination whether to admit such evidence is "committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.' " Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting from Commonwealth v. Fordham, 417 Mass. 10, 23 (1994). We see no error of law or abuse of discretion here.

The judge expressly and reasonably determined that the evidence was admissible for limited purposes, such as to show a lack of accident, rather than to show propensity. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) ; Mass. G. Evid. § 404(b)(2) (2018). The evidence tended to negate the defendant's claim, advanced through cross-examination and argument, that his conduct was merely "too aggressively playful" rather than nonconsensual. Although prior bad acts evidence "can be highly prejudicial," Helfant, 398 Mass. at 224, we see no reason to doubt the judge's statement that, as the finder of fact, he would "be able to sort out the prejudices." The prior bad acts evidence was not so extensive as to risk "overwhelming" the evidence of the charged acts. See Commonwealth v. Roche, 44 Mass. App. Ct. 372, 380 (1998). The testimony describing the incident of April, 2012, was very brief. The testimony describing the incident of September, 2013, while more detailed, was not excessive.

We also reject the defendant's claim that the judge failed to instruct himself properly on the use of the prior bad acts evidence. "[W]e presume that the judge 'correctly instructed himself' on the law of evidence." Commonwealth v. Sepheus, 468 Mass. 160, 170 (2014), quoting from Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000). See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005). The judge's comments on the record, describing how he would and would not use the evidence and demonstrating his awareness of its potential prejudicial effect, confirm that he properly instructed himself here.

Finally, the judge did not abuse his discretion in ruling that the prior bad acts were "not remote in time" so as to make them inadmissible. They occurred in April, 2012, and September, 2013, and the charges concerned acts in October, 2015, and January, 2016. "There is no bright-line test for determining temporal remoteness of evidence of prior misconduct." Helfant, 398 Mass. at 228 n.13. Courts have upheld the admission of prior bad acts evidence substantially more remote in time than the evidence at issue here. See Roche, 44 Mass. App. Ct. at 374, 380-381 (six years); Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 819-820 (1998) (nine years); Commonwealth v. Robertson, 88 Mass. App. Ct. 52, 56-57 (2015) (eight years). Here, where the mother herself testified on direct examination that she thought the neck-squeezing was "playfully done because ... it's been done in the past" by the defendant, and particularly where the defendant did not challenge the occurrence of the prior bad acts, we see no abuse of discretion in the admission of evidence about them despite their occurrence several years earlier.

3. Ineffective assistance of counsel. The defendant claims that trial counsel was ineffective by asking the mother questions on cross-examination that opened the door to the prior bad acts evidence. Specifically, counsel asked her to explain why, despite the fact that she had suffered an injury, she thought the defendant's conduct was "playful," and when she answered, "[f]rom past history," counsel asked whether the charged behavior was "consistent," to which the mother replied in the affirmative. The judge then commented that counsel had "opened up a door of prior incidents that were deemed to have been playful."

To prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978). "[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions ...." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). See Zinser, 446 Mass. at 811.

On this record, the defendant has not shown that it was manifestly unreasonable for trial counsel to have asked the mother whether the defendant's "playful" conduct was consistent with past behavior. It appears that this was part of the defense strategy: to minimize the seriousness of his conduct and to suggest that the mother, as the victim, was not concerned about it. This was the core of the defense; the theme of counsel's closing was that the Commonwealth had failed to "show that this was not actually playful, that this was malicious and offensive contact[,] which directly contradicts ... the percipient witness," i.e., the mother. Thus, the record now before us does not show that counsel's conduct fell measurably below what is ordinarily expected.

Moreover, we are not persuaded that counsel's cross-examination was the dispositive factor in the judge's decision to admit the prior bad acts evidence. On direct examination, the mother had already explained that she viewed the neck-squeezing as "playfully done because ... it's been done in the past by both my children." The judge indicated his inclination to allow the Commonwealth to explore this comparison to prior incidents in order to understand the mother's characterization of the charged conduct as "playful." It is far from clear that counsel's cross-examination, in eliciting testimony that the defendant's conduct was "consistent" with "past history," measurably changed the calculus of admissibility. In short, the defendant has not shown that counsel's questioning deprived him of an otherwise available, substantial ground for excluding the evidence.

Judgments affirmed.

      "Every battery includes an assault." Burke, 390 Mass. at 482. Thus the defendant does not challenge the sufficiency of the evidence of assault. Nor does he challenge the evidence that his mother was at least sixty years of age and thus an elder under the statute.

      We therefore need not assess whether, in the context of the trial as a whole, the admission of the prior bad acts evidence "likely deprived the defendant of an otherwise available, substantial ground of defence." Saferian, 366 Mass. at 96.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Jia ZHENG.
    17-P-1060
    Appeals Court of Massachusetts.
    Entered: August 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion to withdraw his 2013 guilty plea to kidnapping. He claims that he received ineffective assistance of counsel regarding the immigration effects of pleading guilty because he was given inaccurate advice -- that is, he was advised that a conviction for kidnapping would not render him ineligible for asylum. Because on the record before us an evidentiary hearing is necessary to elucidate the affidavit of plea counsel that was submitted with the motion, we vacate the order denying the defendant's motion, and remand to Superior Court for an evidentiary hearing.

Background. On November 13, 2013, the defendant pleaded guilty to kidnapping and assault and battery. The facts recited at the plea hearing showed that on July 24, 2012, the defendant and his sister saw his sister's husband kissing a waitress (the victim) on live surveillance footage from the restaurant his sister's husband owned. They were able to observe the restaurant through an online connection to the surveillance system on the defendant's home computer. Upon seeing this indiscretion, the defendant immediately drove to the restaurant and confronted the victim. He demanded that she get in his car and after she complied, he got in and began to drive to where her husband worked. En route, the defendant struck the victim in the face several times and when the defendant refused to let her out of the car, she jumped out of the moving vehicle, suffering injuries as a result.

The prosecutor told the judge that the Commonwealth was recommending a sentence of probation because the victim did not want to testify, the defendant had no record, and because the defendant "[stood] a very good chance of being deported back to China"; "given his immigration status[,] [h]e's probably more to fear from them then [sic] he would on a state prison." The judge accepted the plea after conducting a lengthy colloquy that included advising the defendant that upon conviction, he will "practically automatically be deported ... that your deportation is practically automatic or inevitable." The defendant acknowledged that he understood. The judge imposed a sentence of two years of probation.

The defendant is a Chinese citizen and at the time of the plea hearing was lawfully in this country awaiting a decision on his asylum application. At the plea hearing, a Mandarin interpreter translated the proceedings and plea counsel indicated that he had had some difficulty communicating with his client but that he had been able to do so using the interpreter and relatives. After the defendant was convicted of kidnapping and assault and battery, information related to these charges was added to his asylum application. In a "Notice of Decision" (decision) dated December 15, 2016, the defendant's application was denied by the United States Citizenship and Immigration Services (USCIS).

On February 1, 2017, the defendant moved to withdraw his guilty plea to kidnapping, arguing that plea counsel was ineffective because he failed to advise the defendant that a conviction on that charge would make him ineligible for asylum. Attached to the motion was an affidavit from plea counsel that stated,

"I consulted with attorneys at Joyce & Associates in regards to the immigration consequences of [the defendant's] criminal charges. I understood and explained to [the defendant] that a conviction for kidnapping would render him deportable but understood that he would remain eligible for asylum. Had I believed that this plea would make [the defendant] ineligible for asylum, I would have informed [the defendant] of this prior to any plea during our discussions of the case." (Emphasis added).

The judge held a hearing on the defendant's motion, but it was limited to the affidavits and no testimony was adduced. At the hearing the defendant's counsel pressed his point that the kidnapping conviction barred the defendant's application for asylum, because kidnapping is a "particularly serious crime" under the relevant Federal statute. See 8 U.S.C. § 1158(a)(1) & (b)(2)(A)(ii). He argued that plea counsel should have told the defendant that if he pleaded guilty to kidnapping he would not be eligible for asylum.

The motion judge denied the motion. His fundamental reasoning was that plea counsel's advice -- that the defendant would "remain eligible for asylum" -- was not incorrect, because the kidnapping conviction did not render the defendant "categorically ineligible." Relying on the decision on the defendant's asylum application issued by the USCIS, the judge reasoned as follows:

"Given that [USCIS] did not treat the kidnapping conviction as conclusive by itself, but looked to the underlying facts and circumstances and considered the probationary sentence, [the defendant] retained the ability to argue for eligibility based on the facts, with some support from the probationary sentence. He did not become ineligible for asylum by reason of the guilty plea. He became ineligible when the arguments he had retained failed to convince [USCIS]. 'Ultimately unsuccessful' and categorically 'ineligible' are not the same thing."

The judge accordingly ruled that "it appears that plea counsel advised his client appropriately regarding immigration consequences," and he rejected the defendant's claim that counsel's advice fell measurably below that which might be expected from an ordinary fallible lawyer.

Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). Pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), a motion judge "may grant a motion for a new trial [at] any time [if] it appears that justice may not have been done" and the decision "is thus committed to the sound discretion of the judge." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "A defendant bears the burden of proof on a motion for a new trial, and a judge is entitled to discredit affidavits he or she does not find credible." Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) (citation omitted). See Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451 (2015).

The defendant argues on appeal that in accordance with Padilla v. Kentucky, 559 U.S. 356 (2010), his plea attorney was ineffective when he advised the defendant that he would "remain eligible" for asylum after pleading guilty to kidnapping when, according to the defendant, a conviction for kidnapping either barred his asylum application, or rendered it extremely unlikely to be granted.

The relevant law with respect to asylum applications is not straightforward, and was the subject of much discussion before the judge. Applications for asylum are governed by 8 U.S.C. § 1158. The statute provides that where the Attorney General determines that "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States," asylum shall not be available. 8 U.S.C. § 1158(b)(2)(A)(ii). Any crime of violence for which the term of imprisonment is at least one year constitutes an aggravated felony, 8 U.S.C. § 1101(a)(43)(F), and is automatically considered a particularly serious crime. 8 U.S.C. § 1158(b)(2)(B)(i). Because the defendant was not sentenced to a term of imprisonment, his kidnapping conviction did not constitute an aggravated felony; the kidnapping conviction could, however, still qualify as a "particularly serious crime." "Particularly serious crime" is not further defined in the statute, but has been interpreted to be subject to case-by-case adjudication of individual asylum applications by the Attorney General, based on "the nature of the conviction, the underlying facts and the circumstances and the sentence imposed." Delgado v. Holder, 648 F.3d 1095, 1098, 1105-1107 (9th Cir. 2011). Accordingly, whether a conviction that is not an aggravated felony is nonetheless a particularly serious crime is determined case by case, and cannot be definitively determined in advance.

The judge correctly set forth the above asylum law, but we cannot agree with his conclusion, on this record, that plea counsel's advice was accordingly accurate. Plea counsel averred that he told the defendant that despite a kidnapping conviction, the defendant would "remain eligible" for asylum. We find this statement ambiguous, particularly in light of the clear importance the defendant placed on maintaining his ability to obtain asylum. On the one hand, the single statement by plea counsel that the defendant "remain[s] eligible for asylum" -- if that is the totality of what was said -- seems to us misleading to the point of inaccuracy, given authorities that were available to plea counsel at the time. For example, the opinion in Choeum v. Immigration & Naturalization Serv., 129 F.3d 29, 35-36 (1st Cir. 1997), indicates that a kidnapping conviction may well amount to a particularly serious crime. On the other hand, given plea counsel's obvious understanding of the nuances of the applicable Federal statutes, it seems unlikely that "remain[s] eligible" was the sum total of the advice he gave to his client. If additional advice was given, then in context the statement may well have been appropriate. There is no means to resolve the issue on this record, however, since further evidence is needed as to whether counsel said anything else to the defendant on the subject.

Padilla, 559 U.S. at 360, 374, established the importance of providing a noncitizen with competent advice regarding the effect of a guilty plea on their deportation status. See also Commonwealth v. Lavrinenko, 473 Mass. 42, 52-54 (2015). Here, the affidavit setting out plea counsel's statement to his client raises a substantial issue concerning the adequacy of that advice, on a matter of significance. See Commonwealth v. Philyaw, 55 Mass. App. Ct. 730, 735-739 (2002). As such, an evidentiary hearing should have been held regarding the details of what the defendant was advised by counsel. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004) (if substantial issue is raised by motion or affidavits, evidentiary hearing should be held); Commonwealth v. Cano, 87 Mass. App. Ct. 238, 240 (2015) (same). At the hearing, the defendant now will need to go beyond the statements in the various affidavits to carry his burden.

The order denying the motion to withdraw guilty plea is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated; remanded.

      The defendant does not challenge his guilty plea to assault and battery entered in the same proceeding.

      The defendant also submitted an affidavit that read in part,
      "[Plea counsel] told me that the case could make me deportable from the United States but that my pleading guilty would not affect my already submitted asylum application.... [He] assured me that I should take the Commonwealth's offer and that it would not make me ineligible for asylum. Had [plea counsel] told me that a plea to kidnapping would guarantee my ineligibility for asylum, I would have insisted that we proceed to trial and face a sentence of committed time if I were convicted." (Emphasis added).

      As to ambiguity, we note that the conclusion of the USCIS decision was that the defendant was "ineligible" for asylum status.

      The record shows that plea counsel negotiated an agreement that would avoid the defendant's conviction of kidnapping from being categorized as an aggravated felony, by obtaining an agreement that involved only a probation sentence. The record also shows that plea counsel consulted with immigration counsel. Having so crafted the agreement, common sense suggests that plea counsel's conversation with his client addressed at least some of the nuances of the Federal law.

      The Commonwealth argues that even if plea counsel's advice was inaccurate, the defendant failed to meet the "prejudice" prong of the Saferian test. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because we are remanding for a hearing as to what advice was given, we do not address the issue, and express no opinion on it.


text:
    COMMONWEALTH v. Rashon NICHOLAS.
    17-P-1053
    Appeals Court of Massachusetts.
    Entered: August 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth's complaint charged the defendant, Rashon Nicholas, with possession with intent to distribute marijuana (subsequent offense), operating with a suspended license (subsequent offense), threats to commit a crime, and with a civil infraction of improper use of a mobile telephone by an operator. The defendant filed a motion to suppress, arguing that the officers' decision to seize and impound the vehicle he was operating was unlawful and, therefore, the incriminating items found in the vehicle pursuant to an inventory search must be suppressed. After a hearing, a judge allowed the motion. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to pursue an interlocutory appeal of that ruling, and directed the appeal to this court. We reverse.

Background. The motion judge made the following findings of fact, which we accept absent clear error. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004). On January 8, 2017, at about 1:14 A.M. , Boston police Officer Joshua De LaRosa was on patrol in the Jamaica Plain section of Boston with his partner when he observed a motor vehicle approach and stop at the intersection of Walnut Avenue and Westminster Avenue. The night was stormy and snowy. The driver, later identified as the defendant, twice waved the police vehicle through the intersection with his hand as he held an illuminated cellular telephone. De LaRosa declined to proceed as the defendant directed, and instead, followed behind the defendant's vehicle. De LaRosa noticed one of the vehicle's two license plate lights was out and the other light was dim. He signaled the vehicle to stop and the defendant complied, stopping in the travel lane of the street.

When the officers approached the vehicle, the defendant rolled down the back-seat passenger window on the driver's side. From the outset, the defendant interacted with the officers with hostility and belligerence. He acceded to the police request for his license and registration, and a query revealed that his license had been suspended and that the vehicle was registered to a Maria Perez. The officers brought the defendant to the rear of his vehicle and placed him under arrest.

Police determined that the passenger, Ka-sha Cooper, held a valid driver's license. Police asked her if she knew the registered owner of the vehicle and Cooper responded that it was the defendant's mother; she did not know her name. From his data terminal check, De LaRosa already knew that Maria Perez was not the defendant's mother. Although Cooper offered to drive the vehicle home, the officers did not permit her to do so, in part because she could not identify the registered owner.

The police requested a tow truck for the vehicle and did not inquire of the defendant about an alternative to the tow, nor did the defendant suggest an alternative on his own. The police permitted Cooper to leave the scene. Pursuant to a written policy, the officers conducted a vehicle inventory search and discovered three medical marijuana bags containing marijuana on the front seat and a digital scale in the glove compartment. At booking, officers discovered on the defendant's person two more bags of marijuana and $1,271 in cash. The defendant held no documentation for medical marijuana.

The motion judge ruled that "[i]t may well have been reasonable for the police to refuse to allow Ms. Cooper to drive off with the car based upon her request only, inasmuch as she could not identify the owner by name and did not appear connected by the facts reasonably knowable by police to the owner, whether by similarity of name or address or otherwise. But where the driver, a person with apparent authority to have custody of the car, is still on scene, as here, it was not reasonable for the police, faced with a passenger who provided a valid license and asked to take the car and so avoid impoundment, to refrain from asking the defendant one question." While recognizing the defendant's belligerent behavior toward the police, the judge nonetheless concluded that because he was not violent, the police should have "asked him if he wished Ms. Cooper to take the car" before impounding the vehicle. The judge concluded that, because authorized drivers routinely permit others, such as restaurant valets or car wash attendants to drive their vehicles, the defendant could have authorized Cooper "to take the car from the scene and the failure of police to ask him in the face of Cooper's request" was unreasonable. He therefore allowed the motion to suppress.

The Commonwealth moved for reconsideration and the motion judge, relying on Commonwealth v. Campbell, 475 Mass. 611, 619 (2016), rejected the argument that the defendant, as an authorized driver, did not have implicit authority to allow others to drive the vehicle.

Discussion. On appeal, the Commonwealth argues that the motion to suppress should not have been allowed because the impoundment of the vehicle was in all respects reasonable. In assessing the validity of an officer's decision to impound a vehicle, "the question is whether impoundment 'was reasonably necessary based on the totality of the evidence.' " Commonwealth v. Crowley-Chester, 476 Mass. 1030, 1031 (2017), quoting from Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016). The Commonwealth bears the burden of proving the constitutionality of the seizure -- the vehicle's impoundment. See Commonwealth v. Ehiabhi, 478 Mass. 154, 164-165 (2017). "In reviewing the judge's decision on this point, 'we accept [his] subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.' " Crowley-Chester, supra, quoting from Commonwealth v. Eddington, 459 Mass. 102, 108 (2011).

Here, there is no dispute that following the defendant's arrest for operating with a suspended license, the police had a legitimate purpose for requiring the vehicle's removal. When directed by the police to pull over, the defendant stopped in the travel lane of the roadway, rather than a lawful parking spot. It was snowing and the vehicle's location would likely impede snow removal, and the area was one known for car break-ins. See Oliveira, supra at 13-14. Therefore, consideration turns to "whether the owner of the vehicle or a person clearly authorized by the owner to drive the vehicle was present and lawfully able to drive the vehicle away, that is, whether the vehicle was properly registered and the person was licensed to drive and neither under arrest nor under the influence of drugs or alcohol" (emphasis supplied). Id. at 14-15. Upon the defendant's arrest, neither the owner nor anyone "clearly authorized by the owner" was present to drive the vehicle away. There was no evidence that the owner, Maria Perez, authorized Cooper to drive the vehicle, nor could any such inference be drawn absent some evidence Cooper even knew Perez. Thus, where, as here, "the owner or authorized driver, for whatever reason, [is] unable to drive the vehicle away, we consider whether the owner or authorized driver offered the police a lawful and practical alternative to impoundment of the vehicle." Id. at 15.

While it may be fair to assume on this record that the defendant was an authorized driver, he did not offer the police "a lawful and practical alternative to impoundment of the vehicle." Ibid. We agree with the Commonwealth that there is no requirement in the decisional law that the police inquire of the defendant regarding such alternatives, rather decisional law suggests that placing such burdens on police is disfavored. See ibid. See also Commonwealth v. Ellerbe, 430 Mass. 769, 776 (2000) (police need not wait with vehicle until licensed driver can be located); Oliveira, supra at 15 ("police have no obligation to locate or telephone the registered owner to determine his or her wishes").

Because our appellate decisions also make clear that the overriding concern in cases such as this is the "guiding touchstone of 'reasonableness,' " we look to determine whether on the facts of this case it would have been reasonable for police to have posed the question the motion judge suggests. See, e.g., Eddington, supra at 108, quoting from Ellerbe, supra. We begin with the judge's conclusion that even though the defendant was belligerent throughout his contact with police, it was not an impediment to police posing the question. We disagree with this conclusion. The defendant's conduct impaired the police officers' ability to seek the defendant's cooperation in eliciting an alternative to towing, particularly where De LaRosa specifically testified that the defendant's behavior prevented them from getting to an inquiry regarding whether another driver was available.

Moreover, the defendant was, at most, merely an authorized driver; he was not the registered owner, and it is far from clear on this record that the owner imbued him with the authority to permit another to operate the vehicle, particularly where the defendant's operation of the vehicle was unlawful due to his suspended license. Unlike the situation where a valet or car wash attendant takes the vehicle for a brief instant for the benefit of the lawful operator, allowing Cooper to drive the vehicle away from the scene presented a risk that the police might face the owner's accusation of misappropriation of the vehicle. This risk was not speculative. The record supports the inference that the registered owner was either the defendant's wife or girl friend, who was unlikely to authorize Cooper to take her car, given Cooper's testimony that, at that late hour, she was accompanying the defendant to a party.

In any event, more troubling to the judge's conclusion (that suppression was required because the police failed to ask the defendant if he would permit Cooper to remove the vehicle) is the dearth of evidence that the defendant would have answered that question in the affirmative. Not only is there no evidence he would have agreed, the record provides some support for the inference that he would not. Whether or not the defendant heard Cooper's offer to drive the vehicle, the defendant necessarily understood that the police did not intend to place Cooper under arrest, and that the tow of the vehicle was imminent. His silence in these circumstances is some indication that he could offer no lawful and practical alternative. In addition, even though Cooper testified, she offered no evidence that, if asked, the defendant would have permitted her to drive the vehicle. Without some proof that the defendant would have allowed Cooper to remove the vehicle, the conclusion that the failure to ask the question rendered the police decision to impound the vehicle unreasonable is speculative.

Conclusion. We reverse the order allowing the defendant's motion to suppress.

So ordered.

Reversed.

      The judge found that the police saw the medical marijuana bags after entering the vehicle to conduct the inventory search.

      To the extent that the judge relied on Commonwealth v. Campbell, 475 Mass. at 618-619, to define who may be authorized to operate a motor vehicle, the conclusions in Campbell are constrained by its facts involving a lawful operator not named in a rental agreement being charged with the criminal offense of unauthorized use. Here, the issue is whether the police may permit another driver, who was not operating the vehicle and was without actual or apparent authority to do so, to operate and remove it -- a concern distinct from those at issue in Campbell, namely, whether the police action will create liability or the risk of unfounded claims.

      The defendant's affidavit filed in support of his motion to suppress similarly lacks any statement of permission despite the requirement that it must give in detail "all facts relied upon in support of the motion," Mass.R.Crim.P. 13(a)(2), as amended, 423 Mass. 1405 (1996), although the affidavit of course cannot serve as evidence and "is not a substitute for the defendant's testimony at the hearing." Commonwealth v. Mubdi, 456 Mass. 385, 389 n.4 (2010).


text:
    COMMONWEALTH v. Ivan DAVILA.
    17-P-1225
    Appeals Court of Massachusetts.
    Entered: August 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Ivan Davila, appeals from his conviction by a Superior Court jury of unlawful possession of a class A substance, heroin, with intent to distribute. On appeal, he contends that the judge abused his discretion in allowing evidence of prior bad acts to be admitted, specifically acts tending to show that he distributed heroin just prior to his arrest. He argues that he was prejudiced by statements made by the prosecutor and the judge characterizing these prior bad acts as drug distribution. He also claims that the judge's final instructions failed to limit the jury's consideration of the prior bad acts to permissible purposes. We affirm.

Facts. Based on the evidence at trial, the jury could have found that, on April 3, 2016, at approximately 6:45 P.M. , the defendant was standing with his bicycle, conversing with a group of people in a courtyard of a housing project in Springfield. Two officers, who were parked in a parking lot nearby, watched as one of the individuals in the group handed the defendant money in exchange for small items that the defendant removed from the righthand pocket of his jacket. The group was alerted to the presence of police and scattered, with the defendant riding away on his bicycle. Approximately thirty minutes later, the officers located the defendant inside a nearby gas station. When the defendant exited, the officers stopped him outside the doors of the gas station. The officers searched the defendant and found thirty bags of heroin in the defendant's righthand jacket pocket. The officers also found $1,036 on the defendant.

Discussion. The defendant argues that the judge abused his discretion by allowing police officers to testify regarding their observations of the defendant engaged in a hand-to-hand exchange with others prior to his arrest. Because the defendant preserved the issue by raising it as a motion in limine, see Commonwealth v. Grady, 474 Mass. 715, 719 (2016), we review for prejudicial error. Our inquiry begins with whether there was an error; that is, whether it was an abuse of discretion for the judge to have admitted the evidence. Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009). A judge abuses his discretion where he makes "a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citations and quotations omitted).

"The long-standing rule is that 'the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.' " Commonwealth v. McClendon, 39 Mass. App. Ct. 122, 127-128 (1995), quoting from Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). "Such other relevant purposes include intent, knowledge, state of mind, identity, motive, pattern of conduct, common scheme, or absence of mistake or accident." Id. at 128. See Mass. G. Evid. § 404(b)(2) (2018). If the evidence is relevant and "has probative value, the trial judge in his discretion must decide if such evidence is admissible by determining whether its probative value outweighs the risk of undue prejudice." McClendon, supra.

As the defendant concedes, the officers' observations were probative to show the defendant intended to sell the heroin he possessed and to rebut the defendant's claim, alluded to in his opening statement, that it was for his own personal use. See Commonwealth v. Gollman, 436 Mass. 111, 114 (2002) (finding no abuse of discretion in the admission of prior drug distribution evidence where it was probative of the defendant's intent and "to rebut the inference that the defendant possessed the cocaine for his own personal use"). We discern no abuse of discretion in the judge's determination that the probative value of this evidence outweighed the risk of undue prejudice.

Cognizant of the potential prejudice, the judge prohibited the officers from rendering any opinion regarding what the defendant was actually doing and gave limiting instructions after each officer's testimony. The judge cautioned the jury that they could use the evidence of the exchange only to understand why the officers pursued and ultimately arrested the defendant, and not for whether he was a bad person or whether he committed a different crime than the one with which he was charged. "[A]ny prejudice was minimized by the judge's careful instructions to the jury that such evidence could only be used for a limited purpose" and "[j]uries are presumed to follow such limiting instructions." Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 479 (1998).

The defendant nevertheless argues that the limiting instructions were undermined by the characterization of the uncharged conduct as alleged drug distribution by both the judge and the prosecutor, even though no expert witness testified to that effect. The jurors readily could have inferred from the evidence that the exchange was likely drug distribution, without the need for any expert testimony. The defendant was observed taking small items out of his righthand jacket pocket and giving them to others in exchange for money. A short time later, police found small packets of heroin in the defendant's righthand jacket pocket. From this, the jury could have deduced that the defendant had been selling heroin just prior to his arrest. Indeed, the evidence was offered precisely for the purpose of allowing the jury to understand the reason that the police approached the defendant -- suspected drug dealing, and to allow the jurors to infer that the heroin found in the defendant's possession was held for the purpose of drug distribution -- because he had been distributing drugs only moments before. Under the circumstances, there was no undue prejudice from the references to the exchange as alleged drug distribution.

The defendant also contends that the final instruction to the jury concerning the prior bad acts evidence was confusing and failed to restrict the jury's consideration to its legitimate purpose. As the defendant points out, the judge misspoke. Instead of telling the jurors that they could not convict the defendant based on his conduct in the courtyard, the judge called the area a parking lot. The parking lot, of course, was where the officers were as they observed the defendant, not where the exchange occurred. As the defendant did not object to this portion of the instruction, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Drummond, 76 Mass. App. Ct. 625, 627 (2010). There was none.

"When reviewing jury instructions, [w]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words. We do not consider bits and pieces of the instruction in isolation." Commonwealth v. Young, 461 Mas. 198, 207 (2012) (citation omitted). Taken as a whole, the jury reasonably would have understood that the judge meant the courtyard where the defendant was observed and not the parking lot from which the police were watching. Further, given that the defendant was searched and arrested at a gas station, not a parking lot, a reasonable juror would not have mistaken the two locations.

Beyond this misstatement, the judge's instructions were clear. As to the prior bad acts evidence, the judge emphasized that the defendant was not charged with committing any crimes other than those in the indictments. He prohibited the jurors from finding the defendant guilty of the charged offenses based solely on the prior bad acts evidence. He then correctly instructed on the proper use of the prior bad acts evidence:

"[Y]ou may consider this evidence on the issue of why the police officers pursued the Defendant and ultimately took him into custody. And you may also consider this testimony for the purpose of determining whether or not the Defendant had the motive, the opportunity, the intent, the preparation, the plan and knowledge."

Although the judge did not explicitly say that the evidence could not be used for propensity purposes in his final instruction, he did say in each limiting instruction (closer in time to the evidence presented) that the prior bad acts evidence could not be used for the purpose of establishing that the defendant was a bad person or had committed other crimes. Under the circumstances, we discern no substantial risk of a miscarriage of justice.

Judgments affirmed.

      The defendant was also convicted of resisting arrest; he makes no argument related to this conviction.

      The criticized language was contained in the limiting instructions that were proposed by the defendant. Thus, any error in this regard was invited. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 342 (2017) (invited error reviewed only to extent necessary to prevent substantial risk of miscarriage of justice).


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    FASHIONHAUS, LLC v. T & C MAIN STREET, INC., & others.
    17-P-1336
    Appeals Court of Massachusetts.
    Entered: August 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      T & C Main, LLC, and Tess & Carlos, Inc.

   In this case we consider whether the defendant companies, T & C Main Street, Inc., and T & C Main, LLC (collectively, new T & C corp.), are the corporate successors to Tess & Carlos, Inc. (old corp.). After a bench trial, a Superior Court judge ruled that "[new T & C corp.] is in essence [old corp.] wearing a new hat," and that new T & C corp. accordingly was responsible for the debts of old corp. The facts found by the Superior Court judge, however, show that new T & C corp. was not a successor to all, or substantially all, of the assets of old corp. and thus that the legal doctrines that could impose successor liability on new T & C corp. do not apply. We accordingly reverse.

Background. 1. Old corp. and the formation of new T & C corp. Old corp., the original Tess & Carlos, Inc., began business in 1995 selling primarily women's clothing. There were two principals: Tess Enright, who owned fifty-one percent of the stock, and Carlos Pava, who owned forty-nine percent. Enright did the purchasing and selling of the merchandise, and developed the relationships with customers and vendors. Pava was responsible for design and construction of the stores.

From 1995 until roughly 2007, old corp. operated without significant financial issues, primarily out of two stores -- one in Newton and one in Cambridge. As of 2008, the Newton store was the central operating location. The Cambridge store merchandise was ordered and stocked out of the Newton store.

By 2008, however, old corp. was struggling. It had made a series of business moves that had not worked out, and had incurred substantial debt. One unsuccessful business move was opening a store on Newbury Street in Boston in 2006; that store closed in 2009. During this time the relationship between Enright and Pava also deteriorated, both personally and professionally. Pava was not involved in the business operations of old corp. after 2009.

In 2011, Enright formed the two new corporations, T & C Main Street, Inc., and T & C Main, LLC. Defendant T & C Main, LLC, was incorporated in April, 2011, to operate a clothing store named "Tess & Carlos" in Concord; defendant T & C Main Street, Inc., was incorporated in September, 2011, to operate a "Tess & Carlos" clothing store in Pittsford, New York. Enright was and is the sole officer and director of both of these new corporations. Pava never had an interest or involvement in either of them. According to Enright, T & C Main, LLC, ceased operations shortly after T & C Main Street, Inc., was formed, and accordingly T & C Main Street, Inc., is the new T & C corp. that currently operates.

Both of the new T & C corp. stores sold women's clothing at retail, much as the Newton and Cambridge stores did. The judge found that "[a]t least part of the reason for the formation of these two entities was to provide Ms. Enright with a 'fresh start' apart from the personal and professional involvement with Mr. Pava and without debt accumulated during that professional involvement in Tess & Carlos, Inc." He also found that "[t]here was no sale of the assets of [old corp.] to either [new T & C corp.]" Thus, as of September, 2011, Enright was operating four stores: two through new T & C corp., in which Pava had no interest, and two through old corp.

2. The cessation and winding up of old corp. Old corp. ceased operations in its Cambridge and Newton stores over the twelve months following September, 2011, but the manner in which it did so differed markedly by store. As to the Cambridge store, T & C Main Street, Inc., "assumed the operation" in "late 2011." Before it assumed the operation in Cambridge, all of the merchandise of old corp. in Cambridge was packaged and shipped to the Newton store. T & C Main Street, Inc., then acquired, stocked, and sold new merchandise in Cambridge. However, the Cambridge store kept the same name -- "Tess" -- as well as the same location, telephone number, and Website address.

As to the Newton store, old corp. continued to operate that store for another year, until the store eventually closed in October of 2012. At that point old corp. ceased operations. The remaining old corp. merchandise was either packaged and labeled for storage, or returned to the vendors for credit. Some vendors of old corp. received at least partial payments, and went on to do business with new T & C corp. Many old corp. vendors, however, were not paid for their goods.

Plaintiff Fashionhaus, LLC, was a supplier of merchandise to old corp. Fashionhaus, LLC, ceased selling to old corp. in 2006, and never did business with either T & C Main Street, Inc., or T & C Main, LLC. When it did not receive payment, it sued and obtained a judgment against old corp. in 2013. When execution was returned unsatisfied, it initiated this action against new T & C corp., asserting among other things, that new T & C corp. was liable as the legal successor to old corp.

On the above facts, the Superior Court judge concluded that defendant T & C Main Street, Inc., was "in essence" old corp. and that new T & C corp. was responsible for the debts of old corp. under doctrines of corporate successor liability. We disagree.

Discussion. In general, a corporation is not responsible for the debts of another corporation absent a contractual obligation. See Scott v. NG US 1, Inc., 450 Mass. 760, 766-767 (2008). Corporations are distinct and separate entities, with distinct and separate assets and liabilities. See Gordon Chem. Co. v. Aetna Cas. & Sur. Co., 358 Mass. 632, 638 (1971) ; Scott, 450 Mass. at 766-767. There are well-established exceptions to these general rules, however, under which a successor corporation can be liable for the debts of a predecessor corporation.

In Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 475 (2013), quoting from Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 556 (2008), the Supreme Judicial Court stated the exceptions as follows:

"[T]he liabilities of a selling predecessor corporation are not imposed upon the successor corporation which purchases its assets, unless (1) the successor expressly or impliedly assumes liability of the predecessor, (2) the transaction is a de facto merger or consolidation, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor" (emphasis omitted).

The plaintiff here relied primarily on two of these exceptions -- the so-called "de facto merger" and the "mere continuation" doctrines -- in asserting new T & C corp.'s successor liability.

The court in Premier Capital emphasized, however, that "[i]n order for one corporation to be deemed a successor corporation in the first place, it must be a successor to all, or substantially all, of another corporation's assets." Ibid., quoting from National Soffit & Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 266 (7th Cir. 1996). This transfer of assets requirement accordingly is a threshold requirement; there can be no successor liability, under any of the commonly recognized doctrines including "de facto merger" or "mere continuation," absent a showing that "all, or substantially all," of the predecessor's assets were transferred to the successor. Ibid.

The plaintiff's claim founders on this threshold requirement. The facts found by the Superior Court judge, which neither party challenges, show that perhaps the most significant asset of old corp. -- its merchandise -- was never transferred to new T & C corp. Rather, old corp. retained that merchandise and either sold it, liquidated it, or returned it to vendors. Moreover, no assets from old corp.'s principal store in Newton were transferred to new T & C corp. The Newton store instead continued to operate for over a year after new T & C corp. commenced operations; eventually old corp. ceased operations and its business was wound up.

On this record there can be no finding of a transfer of all, or substantially all, of the assets of old corp. to new T & C corp. Indeed, the judge did not make such a finding, instead stating that "[t]here was no sale of the assets of [old corp.] to [new T & C corp.]."

We recognize that there were facts present in this case that pointed in the opposite direction, toward successor liability. New T & C corp. took over the operations of the Cambridge store, and that store essentially continued in operation, with no outward signs of change. We are inclined to believe that new T & C corp. acquired some of old corp.'s assets at that time -- at the least, the goodwill associated with the location, customers, and ongoing business in Cambridge. These facts, in isolation, have some of the earmarks of the "mere continuation" doctrine. And we recognize, as well, that the factual record presented was complicated and tangled because, as the judge found, Enright "largely ignored" corporate formalities as she conducted her businesses.

Nevertheless, despite evidence of the transfer of some assets, the bulk of the assets of old corp. were never transferred to new T & C corp. including, in particular, old corp.'s merchandise, and the assets associated with the Newton store. The uncontested facts thus show no sale of all or substantially all of old corp.'s assets to new T & C corp. and, accordingly, successor liability cannot attach. We are bolstered in this view because, even if the plaintiff could make the required threshold showing of a sale of assets, there are other critical aspects of the mere continuation and de facto merger doctrines that also are absent here. For example, the mere continuation doctrine generally requires "at a minimum: continuity of directors, officers, and stockholders; and the continued existence of only one corporation after the sale of assets." Milliken, 451 Mass. at 557. These requirements were not met here, as old corp. had different shareholders than new T & C corp., and continued to operate in Newton for a substantial period, with its own assets, after new T & C corp. began operations. Similarly, several of the de facto merger factors also were not present here, including that, for example "the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible" (emphasis supplied). Ibid. Once again, the circumstances here did not consist of a merger of new T & C corp. with old corp., given the separateness that was maintained for the Newton store and its assets.

Finally, we note that the judge expressly found that the plaintiff did not establish that the defendants committed any fraud in connection with the transactions and business structures at issue. See Milliken, 451 Mass. at 556, quoting from Guzman v. MRM/Elgin, 409 Mass. 563, 566 (1991) (noting one basis for imposing liability upon a successor corporation could be whether "the transaction is a fraudulent effort to avoid liabilities of the predecessor").

Because on the uncontested facts there is not a basis to impose the liabilities of old corp. on the defendants, we reverse.

So ordered.

reversed

      We recite the facts as found by the judge after a jury-waived trial. See Cavadi v. DeYeso, 458 Mass. 615, 624 (2011). Neither party has contested any of the factual findings.

      The judge's decision accepts that T & C Main Street, Inc., is the currently operating entity, but imposes liability on both new T & C corporations. We do not distinguish between the two for present purposes. The judge found no documentation of the cessation of business by T & C Main, LLC, and expressly found that "[t]he formalities of corporate law and the distinctions between and among the various corporate entities were largely ignored by Enright as she conducted her businesses." While these failures increased the factual complexities of the case, they do not affect the outcome dictated by the judge's uncontested findings.

      There was no lease in Cambridge; the arrangement was tenant-at-will.

      We accept the judge's findings of fact unless they are clearly erroneous. We review the judge's legal conclusions de novo. See Cavadi v. DeYeso, 458 Mass. at 624.

      The judge did not distinguish between these two doctrines in ruling for the plaintiff, and in light of our reasoning we need not do so, either.

      The judge did not make a specific finding as to whether there was a transfer to new T & C corp. of the goodwill associated with the Cambridge store. Even assuming there was, such would not be sufficient to constitute a transfer of all, or substantially all, of old corp.'s assets.


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    COMMONWEALTH v. Tevon NGOMBA.
    16-P-1034
    Appeals Court of Massachusetts.
    Entered: August 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The probationer, Tevon Ngomba, appeals from an order revoking his probation and imposing a sentence of five to six years. On appeal, the probationer argues that he was denied due process by the Commonwealth's failure to provide him with notice of the probation revocation proceeding on the day he was arraigned on the charges alleged to be a violation of probation. The probationer further argues that he was denied due process where his probation was revoked based on hearsay evidence, and that the revocation judge did not make factual findings. We affirm.

Background. The probationer was arraigned in the Somerville Division of the District Court Department on April 6, 2015, on multiple new charges based on his alleged involvement in a shooting the previous day. After a dangerousness hearing on April 10, 2015, a different judge set bail and the probationer was detained. On May 8, 2015, a preliminary surrender hearing was held in Superior Court. The probationer was provided a copy of the surrender notice when he was brought to court that day.

On March 17, 2016, the probationer moved to dismiss the revocation proceedings for lack of notice. The revocation judge (hereinafter judge) denied the motion. At the final revocation hearing, on March 28, 2016, the probationer moved for reconsideration of the order denying his motion to dismiss, which the judge denied. There was both live testimony and documentary evidence submitted at the hearing. The judge held that the Commonwealth proved by a preponderance of the evidence that the probationer violated the conditions of his probation through his involvement in the Somerville shooting, and in an incident at the Billerica house of correction.

Discussion. 1. Failure to provide notice. The probationer argues on appeal that the Commonwealth's failure to provide him with notice of the probation violation proceeding on the date of his arraignment in District Court, i.e., April 6, 2015, constituted a deprivation of due process. We disagree.

Probation violation proceedings do require due process, including written notice. Commonwealth v. Durling, 407 Mass. 108, 113 (1990). However, the "purpose of the preliminary hearing is to protect the rights of the parolee or probationer who, being at liberty, is taken into custody for alleged violation of his parole or probation conditions, and detained pending a final revocation hearing." Fay v. Commonwealth, 379 Mass. 498, 504 (1980).

Here, the probationer was held on charges related to the Somerville shooting after being unable to post the set bail. As such, the probationer was not deprived of due process by being given notice of the probation violation at the preliminary hearing because he suffered no loss of liberty and therefore was not entitled to such a hearing. See Commonwealth v. Odoardi, 397 Mass. 28, 33 & n.5 (1986) ("a preliminary hearing [is] inapplicable ... where the defendant was incarcerated at the time of the probation revocation proceeding pursuant to a conviction on other charges"; "suggest[ing]" that same reasoning applies to probation proceedings based on pending charges). Furthermore, the probationer has not shown that he was prejudiced by the lack of notice before the hearing on May 8, 2015. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 588 (2000). The probationer had more than ten months to prepare before the final revocation hearing on March 28, 2016. See Delisle v. Commonwealth, 416 Mass. 359, 362 (1993) ("even if the petitioner received inadequate notice of the ... hearing ... the petitioner's failure to show any prejudice is fatal to his claim"). We therefore conclude that the probationer suffered no deprivation of due process when he first received notice of his probation violation at the May 8, 2015, hearing.

2. Hearsay. The probationer further argues that the judge abused her discretion in concluding that he violated his probation by basing that conclusion on unreliable hearsay that did not establish a violation by a preponderance of the evidence. We disagree.

A probation revocation hearing does not carry with it "the 'full panoply of constitutional protections applicable at a criminal trial.' " Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), quoting from Durling, supra at 112-113. Hearsay evidence is admissible if reliable, and can form the sole basis for a revocation if it has "substantial indicia of reliability." Durling, supra at 118. Such indicia include:

"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). The judge made oral findings on the record that each piece of hearsay evidence was substantially reliable under Durling. We conclude that there was no error in the judge's determination.

The judge considered grand jury testimony from the alleged victim of the Somerville shooting as well as two witnesses and the detective who investigated the incident. Those witnesses were under the penalties of perjury when they testified before the grand jury and corroborated each other. That testimony resulted in indictments. The grand jury testimony also was corroborated by detailed police reports about the Somerville shooting, which included consistent statements from four witnesses taken the day of the shooting detailing the probationer's appearance and escalated interaction with the victim. Furthermore, the detective testified that a photograph obtained from the probationer's cellular telephone showed the probationer holding a gun that matched witness descriptions and was time-stamped one hour before the shooting. The judge also considered incident reports by correction officers at the Billerica house of correction who responded to the probationer's assault on another detainee. Two officers saw the probationer punching the detainee and one saw the probationer initiate the fight. This evidence bore additional circumstantial reliability including consistency in statements made on the same day as the incident and based on direct observation. See Hartfield, supra. Based on the record, we discern no error in the judge's reliance on the hearsay evidence, and no abuse of discretion in her determination that the probationer violated his probation.

Order revoking probation and imposing sentence affirmed.

      The probationer did not include in his record appendix a transcript of this hearing. The clerk's minutes show only that counsel was appointed, the probationer's warrant was removed, and the matter was continued until June 23, 2015. The probationer has not argued that any evidence was taken on May 8, 2015.

      The Commonwealth also offered live testimony from the probation officer and the detective who investigated the Somerville shooting. The probationer's father testified on his behalf.

      The photograph was introduced as evidence to the grand jury and was also admitted at the probation revocation hearing.

      The judge found on the record that a probation violation was proven and the condition that was violated based on the facts presented at the hearing. Nothing more was required. See Fay, 379 Mass. at 504-505 ; Commonwealth v. Morse, 50 Mass. App. Ct. 592-594 (2000).


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    COMMONWEALTH v. Raymond R. JEFFERSON.
    17-P-768
    Appeals Court of Massachusetts.
    Entered: August 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Raymond R. Jefferson, appeals from his convictions in the Boston Municipal Court of, among other crimes, assault and battery by means of a dangerous weapon, to wit: a flashlight, in violation of G. L. c. 265, § 15A. The defendant maintains five arguments on appeal. First, the defendant argues that the evidence was insufficient to sustain the verdict of assault and battery by means of a dangerous weapon because "there was no showing that the alleged weapon, a flashlight, was used in a manner capable of producing serious bodily injury." Second, the defendant argues that the introduction of testimony from the victim's coworker, the first responding police officer, an emergency medical technician (EMT), and the investigating officer regarding the details of the assault were errors that created a substantial risk of a miscarriage of justice because such testimony was first complaint testimony and did not meet the first complaint requirements. Third, the defendant argues that the judge erred in allowing the victim's rebuttal testimony in evidence as prior consistent statements. Fourth, the defendant argues that the introduction of his prior bad act, i.e., his suspension from work, was not relevant and was unfairly prejudicial. Finally, the defendant claims that he received ineffective assistance of counsel. We affirm.

Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997). On September 12, 2015, the defendant went to pick up his paycheck at Domino's Pizza (store). While inside the store, the defendant and the victim interacted with one another. The defendant and the victim "side hug[ged]" and the defendant tried to "press up against" the victim. The victim pushed the defendant away, telling him to "[b]ack up." The defendant thereafter grabbed another employee's flashlight from a nearby table. The victim tried to "go around [the defendant]" in order to "move towards the back" of the store when the defendant "jammed the flashlight" in her "frontal area," her "vagina." The victim testified that the defendant then "moved up closer to [her]," "went around behind [her] and whispered in [her] ear, 'I don't work here anymore. I can do whatever the fuck I want.' " The defendant then "jammed his finger behind [her,] ... cupp[ing her] behind ... [while the defendant's] middle finger went up [her] butt." Darius Cardoso, the victim's coworker who was present at the time of the incident, testified that he saw the defendant "move closer to [the victim]" so that the defendant was "around -- a little bit below [the victim's] waist." Cardoso then saw the defendant "hit [the victim] with the flashlight below [the victim's] waist." Cardoso also testified that the defendant either "touch[ed]," "hit," or "tapped" the victim with the flashlight.

Discussion. 1. Sufficiency of the evidence. We review the record and determine "whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "The evidence may be primarily or entirely circumstantial, provided that, when viewed in the light most favorable to the Commonwealth, it 'and the inferences permitted to be drawn therefrom [are] of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.' " Commonwealth v. Jansen, 459 Mass. 21, 27 (2011), quoting from Latimore, supra at 677. An inference "need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Casale, 381 Mass. 167, 173 (1980).

A conviction of violating G. L. c. 265, § 15A, requires the Commonwealth to have proved beyond a reasonable doubt that the defendant committed an intentional, unjustified, and unexcused touching of the victim by means of a dangerous weapon. "Courts have classified dangerous weapons into two categories: those dangerous per se and those dangerous as used." Commonwealth v. Appleby, 380 Mass. 296, 303 (1980), citing Commonwealth v. Farrell, 322 Mass. 606, 615 (1948). "Weapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be 'dangerous weapons.' " Appleby, supra at 304. "Generally it is held to be a question for the fact finder whether the instrument was so used in a particular case." Ibid."The criminal law of assault and battery by means of a dangerous weapon expresses society's desire to punish the use of an instrument which is capable of producing serious bodily harm" (emphasis added). Id. at 306-307. "The meaning of 'dangerous weapon' depends to a certain extent on the context in which it is used." Id. at 305. "[T]he thrust of the offense of assault with a dangerous weapon, for example, is the outward demonstration of force which breaches the peace." Ibid."[T]he relevant behavior for the offense of assault with a dangerous weapon, G. L. c. 265, § 15B, is an outward demonstration of force, and § 15B requires only apparent ability to injure" (emphasis added). Ibid. Thus, when the object used is not dangerous per se, we look at whether the defendant's conduct was an outward demonstration of force upon the victim with an object that, as used by the defendant, has the apparent ability to injure the victim.

Assault and battery by means of a dangerous weapon "does not require specific intent to injure; it requires only general intent to do the act causing injury." Id. at 307. "Once an actor intends to commit assault with an object capable of causing bodily harm, ... he is threatening to use the instrumentality in a dangerous fashion. The offense of assault and battery by means of a dangerous weapon is complete once the threat is consummated by the application of any force upon the victim by means of the instrumentality. ... This effectuates the policy of § 15A to deter the use of 'neutral' objects in a dangerous fashion." (Emphasis added.) Id. at 308.

The defendant maintains that the evidence was insufficient to prove that the flashlight was used in a manner capable of producing serious bodily harm. We disagree. The victim's testimony at trial that the defendant "jammed the flashlight" "below [her] belt" in her "frontal area," her "vagina," coupled with Cardoso's testimony that he saw the defendant "hit" the victim with the flashlight below the victim's waist is sufficient evidence that would allow the jury to reasonably infer that the flashlight, as used by the defendant, constituted a dangerous weapon. See id. at 299 (law need not wait until instrument actually does cause serious bodily harm in order to classify weapon as dangerous; defendant "hit" victim with riding crop, "barely connect[ing] with [the victim's] back"). The common understanding of the terms "jammed" and "hit" are, respectively, "to push forcibly" and "to cause to come into contact ... to apply forcefully or suddenly." Merriam-Webster's Collegiate Dictionary 669, 650 (2005). Using an object to make such contact onto an individual is well within the scope of that which G. L. c. 265, § 15A, is intended to protect against. The defendant's conduct with the flashlight was clearly an outward demonstration of force onto the victim, and his use of the flashlight in such a manner falls within the apparent ability to injure requirement. We therefore conclude that there was sufficient evidence for the jury to find that the flashlight, as used by the defendant in this case, was a dangerous weapon.

2. Witness testimony. The defendant maintains that it was error to admit the testimony of the (1) victim's coworker, Mark Simon; (2) the first responding police officer, Officer O'Brien; (3) EMT Anderson; and (4) the investigating police detective, Detective Bowen, because such testimony did not satisfy the requirements of first complaint testimony. We need not reach whether such testimony satisfies the first complaint doctrine because the testimony of Simon, Officer O'Brien, and EMT Anderson were admissible under the excited utterance exception. See Mass. G. Evid. § 803(2) (2018). While Detective Bowen's testimony does not satisfy the excited utterance exception as the victim's statements were given to Detective Bowen six days after the incident, his testimony was merely cumulative and, thus, not reversible error. See Commonwealth v. Whelton, 428 Mass. 24, 27 (1998).

The defendant did not object to the admission of the witnesses' testimony at trial. As such, our review of any error is for a substantial risk of a miscarriage of justice. See Commonwealth v. Grady, 474 Mass. 715, 716 (2016). A witness's out-of-court statements are admissible if the "utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event." Commonwealth v. Brown, 413 Mass. 693, 695 (1992) (citation omitted). A statement is considered reliable when the individual is "under the stress of extreme trauma ... and in a context where she would be expected to be truthful." Id. at 696.

The record shows that there was adequate evidence to qualify the testimony of Simon, Officer O'Brien, and EMT Anderson regarding the victim's statements about the assault as excited utterances. Simon testified that the victim was "angry," and "honestly shocked." Officer O'Brien testified that when he arrived at the scene to speak to the victim about the assault, the victim "was very ... nervous, angry and upset," and "kept on screaming about how somebody had just violated her." EMT Anderson testified that when he first found the victim in the store, she was "pretty anxious," "very upset," and that she was "breathing very quickly." The victim's statements to Simon, Officer O'Brien, and EMT Anderson were made "where the traumatic event occurred," Commonwealth v. Hardy, 47 Mass. App. Ct. 679, 682 (1999), and while the victim was still under the stress of the defendant's assault and battery by means of a dangerous weapon. Her behavior and emotions make clear that the stress of the incident had not dissipated by the time she spoke with the testifying witnesses. See Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008) (victim "under the influence of the exciting event" at time statement made regardless of one-hour lapse of time from exciting event) (citation omitted). Moreover, even if there were error, which we do not conclude, "cumulative spontaneous utterance evidence is mitigated where the person who made the out-of-court statements testifies at trial and is subject to cross-examination about her prior statements." Commonwealth v. Davis, 54 Mass. App. Ct. 756, 764 (2002). Here, the victim testified and was subject to the defendant's cross-examination. We see no error.

3. Victim's rebuttal testimony. The defendant next argues that the judge erred in admitting the victim's rebuttal testimony because, according to the defendant, such testimony constituted prior consistent statements. The defendant failed to object to the admission of the victim's rebuttal testimony, thus, our review of any error is for a substantial risk of miscarriage of justice. See Grady, 474 Mass. at 716. The prosecutor asked the victim several questions on rebuttal, including: "What did you tell [Andriana Beltre] about [the] incident? ... Was it ... the story you told us here today?"; "[W]hat you told the jurors [yesterday] -- is that what you told your coworkers?"; "Is that what you told the officers that responded to the scene?"; "Is that what you told the detective that followed up the investigation?" The victim responded "[y]es" to all of these questions. The victim's testimony, consisting of only a "yes" in response to the prosecutor's five questions, does not constitute prior consistent statements. Such testimony only confirmed her previous testimony and her conversation with Beltre, her coworkers, Officer O'Brien, and Detective Bowen. Even if it were error to admit the victim's rebuttal testimony, which we do not conclude, such testimony was merely cumulative and so minimal as to be nonprejudical. Therefore, there was no substantial risk of a miscarriage of justice. See Grady, supra.

4. Prior bad acts. The defendant argues that the admittance of prior bad act evidence, i.e., his suspension from work, was error because such evidence was not relevant and was unfairly prejudicial. The defendant also argues that the Commonwealth's references to the defendant's prior bad act in its opening statement and closing argument were unfairly prejudicial. We disagree.

The defendant failed to object to the admission of the prior bad act evidence and the Commonwealth's opening and closing statements, thus, our review of any error is for a substantial risk of a miscarriage of justice. See ibid."Evidence of prior bad acts is not admissible to show a defendant's bad character or propensity to commit the charged crime, but may be admissible if relevant for other purposes such as common scheme, pattern of operation, identity, intent, or motive." Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). The judge must determine whether the probative value of the evidence outweighs any undue prejudice to the defendant. In doing so, the judge must look at the connection between the evidence and the facts of the case as well as whether the evidence is too remote in time.

Here, the Commonwealth sought to introduce evidence that the defendant had recently been fired from his job. Such evidence included testimony from the victim and from Simon. Simon testified that he "was hearing ... that [the defendant] got fired." The victim testified that the defendant "was suspended," and that during the incident the defendant whispered in the victim's ear, "I don't work here anymore. I can do whatever the fuck I want." The victim's testimony regarding the defendant's statement was admissible as a party admission. See Commonwealth v. Crayton, 470 Mass. 228, 246 n.22 (2014) ; Mass. G. Evid. § 801(d)(2)(A) (2018). Both Simon and the victim's testimony that the defendant was "fired" and "suspended," respectively, provided context to the defendant's statement to the victim and was relevant to show the defendant's state of mind and motive during the incident. See Commonwealth v. Butler, 445 Mass. 568, 573-574 (2005). We see no error, much less a substantial risk of a miscarriage of justice.

5. Ineffective assistance of counsel. Finally, the defendant argues that he received ineffective assistance of counsel. "The preferred method of resolving factual disputes concerning the conduct of the original trial" is for the defendant to file a motion for new trial. Commonwealth v. Saferian, 366 Mass. 89, 90 n.1 (1974). Without a showing of exceptional circumstances, we do not review ineffective assistance claims on direct appeal. See Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). Here, no such exceptional circumstances have been shown.

Judgments affirmed.

      "In resolving this issue the jury may consider the nature, size, and shape of the object as well as the way in which it is handled or controlled." Appleby, supra at 307 n.5, quoting from Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975).

      "The quantum of harm has been variously described as 'great bodily harm,' [Farrell, supra at 614-615]; 'serious injury,' Commonwealth v. Tarrant, 367 Mass. 411, 416 n.4 (1975) ; 'serious bodily harm,' [Appleby, 380 Mass. at 307 ]; and bodily harm that 'endangers another's safety.' Commonwealth v. Sexton, 425 Mass. 146, 149 (1997). In each case, excluding those obvious ones involving death, the harm is 'calculated to interfere with the health or comfort of the [victim]. Such hurt or injury need not be permanent, but must ... be more than merely transient and trifling.' [Farrell ], 322 Mass. at 621, quoting from Rex v. Donovan, 2 K.B. 498, 507 (1934). See Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780 (1975) (conviction [of] assault and battery [by means of] dangerous weapon affirmed where police officer, who was not otherwise injured, temporarily knocked off his feet by car door). The degree of bodily harm that a weapon must be capable of inflicting is the same, whether the weapon is inherently dangerous or dangerous as used. The primary difference between weapons in these two categories is in their design and purpose." (Emphasis added.) Commonwealth v. Lord, 55 Mass. App. Ct. 265, 269 n.7 (2002). " 'Bodily harm' is defined as 'any hurt or injury calculated to interfere with the health and comfort of the [victim].' " Appleby, supra at 308 n.7 (citation omitted).

      It is undisputed that a flashlight, in general, is an object that is capable of being used to inflict serious bodily harm. The question in this case is whether the jury could find that the flashlight, as used by the defendant, was capable of causing serious bodily harm to the victim.

      "Several factors are relevant to the determination whether a statement is admissible under this exception to the hearsay rule: the degree of excitement displayed by the person making the statements, Commonwealth v. McLaughlin, 364 Mass. 211, 222 (1973) ; whether the statement is made at the place where the traumatic event occurred or at another place, see Commonwealth v. Zagranski, 408 Mass. 278, 284-286 (1990) ; the temporal closeness of the statement to the act it explains, see Commonwealth v. Giguere, 420 Mass. 226, 233-234 (1995) ; and the degree of spontaneity. See Commonwealth v. Hampton, 351 Mass. 447, 449-450 (1966) ; Commonwealth v. Burden, 15 Mass. App. Ct. 666, 676-677 (1983)." Commonwealth v. Hardy, 47 Mass. App. Ct. 679, 682 (1999).


text:
    COMMONWEALTH v. Steven CUOCO.
    17-P-1019
    Appeals Court of Massachusetts.
    Entered: August 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of assault and battery on a correctional facility employee, in violation of G. L. c. 127, § 38B(b ). Prior to trial, the defendant moved to suppress his statements, contending they were elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966). After an evidentiary hearing, the motion judge denied the defendant's motion, finding that the defendant was not subject to express questioning or its functional equivalent while in custody. On appeal, the defendant argues that the motion judge erred in denying his motion to suppress. We affirm.

Background. "[W]e accept the judge's subsidiary findings of fact absent clear error ...." Commonwealth v. Gomes, 453 Mass. 506, 508-509 (2009) (quotation omitted). On April 3, 2015, the defendant was an inmate at the Hampshire County house of correction. While inside his cell, the defendant began banging on his cell door. Sergeant Christopher Wall heard the banging and turned to observe the defendant's cell from his position in a control room. Wall saw Officer Daniel Healey in the open doorway of the defendant's cell and then saw Officer Healey's head jolt backwards. Fearing that Healey had been physically attacked, Wall ran to the defendant's cell. When he arrived, Wall observed Healey holding the defendant down so that the defendant was on his knees facing his mattress with both of his arms restrained.

When he saw Healey restraining the defendant, Wall exclaimed, "[W]hat happened?" As Healey started to place handcuffs on the defendant, Healey responded by stating, "[H]e just hit [me]." The defendant responded immediately after Healey, shouting, "I only hit him because I needed my meds." After being alerted to the situation, the shift supervisor, Captain Mark Davies, went to the defendant's cell. As Davies arrived, he heard the defendant screaming while Healey and Wall attempted to restrain him. Davies asked the defendant, "[W]hat the heck is going on here?" The defendant responded that he struck Healey because he did not get his medication. In an attempt to calm the defendant and deescalate the situation, Davies ordered the other officers to leave the defendant's cell, and he removed the handcuffs from the defendant's wrists. Davies then asked the defendant, "[W]hat the heck happened?" The defendant again admitted to hitting Healey. Following their conversation, the defendant spontaneously started to yell to other inmates that he punched Healey because he did not get his medication. The defendant never received Miranda warnings.

The defendant moved to suppress his statements made to Wall, Davies, and the other inmates while he was in custody. After hearing testimony from Wall and Davies, the judge credited their testimony. The motion judge denied the defendant's motion to suppress because she found that the defendant was never subject to interrogation.

Discussion. The motion judge correctly found, and the Commonwealth properly concedes, that the defendant was in custody at the time he made all inculpatory statements. See Commonwealth v. Larkin, 429 Mass. 426, 435 (1999) (prisoner is in custody for Miranda purposes if, in totality of circumstances, "the prisoner would reasonably believe himself to be in custody beyond that imposed by the confines of ordinary prison life" [quotation omitted] ). However, our inquiry does not end with the judge's finding regarding custody. Miranda warnings are required only when "a person in custody is subjected to either express questioning or its functional equivalent." Commonwealth v. Torres, 424 Mass. 792, 797 (1997), quoting from Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). "The 'functional equivalence' test does not turn on the subjective intent of the particular police officer but on an objective assessment as to whether the police statements and conduct would be perceived as interrogation by a reasonable person in the same circumstances." Ibid., quoting from United States v. Taylor, 985 F.2d 3, 7 (1st Cir.), cert. denied, 508 U.S. 944 (1993).

The motion judge credited Wall's testimony that his statement, "[W]hat happened?" was generally directed toward both Healey and the defendant. The defendant contends that because Wall's statement was directed in part to the defendant, the statement must be considered a question in the constitutional sense. However, as noted above, the functional equivalence test does not turn on the subjective intent of the particular law enforcement official, but on an objective assessment. See ibid; Commonwealth v. D'Entrement, 36 Mass. App. Ct. 474, 479 (1994).

Here, we agree with the motion judge that the exchange of remarks between Wall and the defendant cannot objectively be characterized as interrogation. Based on Wall's credited testimony, Wall's statement was neither confrontational nor aggressive; it was merely a reflexive exclamation to a surprising situation, and the motion judge properly categorized it as rhetorical rather than intended to elicit an incriminating response. Compare Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155 (2000) (questioning was "aggressive and persistent," and substance of conversation was harsh and of type normally associated with arrest and custody). The motion judge did not err in finding that the defendant's attempt to explain his actions after Healey gave a version of the events was not the result of any interrogation from Wall. Accordingly, the defendant failed to meet his burden to show that his statement to Wall was the product of interrogation.

Similarly, the defendant's statements made to Davies were also not the result of interrogation or its functional equivalent under the circumstances. We agree with the motion judge that Davies's statements made to the defendant and other correction officers would be perceived as an attempt to restore calm, prevent any further violence, and stabilize the situation. There is nothing in this record that would require us to disturb the judge's findings that Davies's statements were not objectively designed to elicit an incriminating response from the defendant and thus, the defendant's statements did not require suppression. See Commonwealth v. Byrd, 52 Mass. App. Ct. 642, 649 (2001).

If a statement is spontaneous and unprovoked, or is volunteered by a defendant without improper probing questioning, then it is not the product of interrogation. See Commonwealth v. Koumaris, 440 Mass. 405, 408-410 (2003). According to Davies's credited testimony, the defendant began yelling to other inmates spontaneously and without prompting after his restraints were removed. Because these statements were made freely and voluntarily, the protections afforded by the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights were not implicated. See Commonwealth v. Brum, 438 Mass. 103, 115 (2002). In sum, there was no error in the denial of the defendant's motion to suppress and the subsequent admission of that evidence at trial.

Judgment affirmed.

      Healey testified at trial, but did not testify during the motion to suppress hearings.

      We recognize, as did the motion judge, that the statements made by Davies to the defendant after Davies cleared the other officers from the defendant's cell present a closer issue. However, where the defendant reiterated the same statement multiple times without prompting, and there was direct evidence of the defendant's guilt independent of the defendant's statements to Davies, any error would have been harmless beyond a reasonable doubt. See Commonwealth v. Ghee, 414 Mass. 313, 318 (1993). See also Commonwealth v. Colby, 422 Mass. 414, 418-419 (1996).