text:
    COMMONWEALTH v. Jamir CASTILLO.
    17-P-157
    Appeals Court of Massachusetts.
    Entered: March 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      We take the defendant's name as it appears in the indictments.

   Following a jury trial in the Suffolk Superior Court, the defendant, Jamir Castillo, was convicted of one count conspiracy to traffic heroin and one count conspiracy to traffic cocaine, both in violation of G. L. c. 94C, § 40. The defendant appeals from the denial of his motion to suppress evidence and the denial of his motion for a finding of not guilty notwithstanding the verdict. We affirm.

Background. "We summarize the facts as found by the judge, supplemented by uncontroverted facts from the record of the hearing[s] [and trial]." Commonwealth v. Cruz, 459 Mass. 459, 461 (2011), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). On June 14, 2014, Massachusetts State Police Officers Joseph Gray and Christopher Fantasia pulled the defendant's vehicle over for a civil vehicle infraction. The vehicle's rear license plate was affixed to the vehicle with only one screw and dangling vertically. Officer Fantasia approached the vehicle on the passenger side and Officer Gray approached on the driver's side. Upon reaching the vehicle, Officer Fantasia observed the passenger, Ivan Castillo (the defendant's cousin), move his hands at least twice, reaching into his right pocket to "remove a plastic bag, ... and try to place it into the door pocket." Officer Fantasia's initial thought was that the passenger may have been reaching for a weapon. The officer then saw the plastic bag and "assumed the passenger was trying to place narcotics in the door pocket." Officer Fantasia alerted Officer Gray to the passenger's movements. With both officers now on the passenger side of the vehicle, Officer Fantasia opened the door and immediately saw a plastic bag containing a white substance placed in the pocket of the passenger door. Based on his training and experience, Officer Gray suspected the white substance was cocaine, which was later confirmed. Both the passenger and the defendant were ordered to exit the vehicle.

The officers thereafter found two bags of heroin under the passenger seat, a "grinder" and "small digital scale" in the center console, and approximately $1,820 on the passenger's person. During an inventory search of the vehicle, a drug sniffing dog alerted police to a removable stereo, which provided an approximate one or two inch space to hide narcotics.

Discussion. 1. Motion to suppress. The defendant maintains that the judge erred in denying the defendant's motion to suppress evidence because the officers did not have a legal basis to stop the defendant's vehicle. The defendant further argues that, even if the initial stop was warranted, the officers' subsequent conduct exceeded the permissible scope of a routine traffic stop. We disagree.

"In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error, and conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Stephens, 451 Mass. 370, 381 (2008).

a. The initial stop. We agree with the judge here that the officers' stop of the defendant's vehicle was legally valid. "Where the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). Here, the officers were warranted in believing that the defendant had committed a civil vehicle infraction by failing to conspicuously display his registration plate, in violation of G. L. c. 90, § 6, as amended through St. 1968, c. 293. The position of the vehicle's license plate required Officer Gray to tilt his head for a period of time in order to read the license plate numbers. Such a positioning, as the judge found, "made it very difficult to read from a moving vehicle or read as the vehicle was moving," thus violating a requirement of G. L. c. 90, § 6, that the license plate numbers be "plainly visible," "legible," and not "obscured in any manner."

b. The exit order and subsequent acts. The defendant next challenges the officer's exit order as unconstitutional. "There are three scenarios in which an exit order issued to a passenger in a validly stopped vehicle is justified. First, an exit order is justified if 'a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.' Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver. Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement." Commonwealth v. Cruz, 459 Mass. at 466-467 (citations omitted). Here, the facts, viewed objectively, supported the officers' reasonable belief that their safety was in danger. The facts also support the officers' reasonable suspicion that criminal behavior was afoot and subject to further police investigation.

The defendant argues that Officer Fantasia's belief that the passenger was reaching for a weapon or trying to conceal illegal drugs was merely a "hunch," and, thus legally insufficient to constitute reasonable suspicion of illegal activity. This argument is not persuasive. Whether Officer Fantasia continued to believe that the passenger was reaching for a weapon or attempting to secrete contraband in the passenger side door, he had a reasonable belief to fear for his safety, as well as reasonable suspicion that the defendant and passenger were engaged in criminal activity. "[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order ... based on safety concerns." Commonwealth v. Gonsalves, 429 Mass. 658, 664 (1999). "Strange, furtive, or suspicious behavior or movements can infuse otherwise innocent activity with an incriminating aspect." Commonwealth v. Pagan, 63 Mass. App. Ct. 780, 782-783 (2005). "We need only point out that whether a gesture is furtive (and indicative of criminal activity or danger to police officers) or innocent depends on the factual context." Id. at 783. The judge here appropriately considered the high crime area in which the stop took place, the passenger's hands twice reaching to the right side of his pocket and then to the passenger side door, and Officer Fantasia's reasonable belief that the passenger was reaching for a weapon or secreting narcotics. The officers, thus, had a lawful basis to order the defendant and passenger out of the vehicle.

In addition, once the officers opened the passenger side door and immediately observed the clear plastic bag containing a white substance believed to be cocaine, they had probable cause to order the defendant and passenger out of the vehicle for further police investigation. See Commonwealth v. Miller, 366 Mass. 387, 389 (1974) ("observation of contraband in a vehicle or on the person of an occupant of a vehicle provides probable cause for a complete search for more contraband"). The officers' subsequent patfrisk and search of the vehicle were also constitutional. See Commonwealth v. Torres, 433 Mass. 669, 675 (2001) ("Once the officer reasonably concluded that his safety or that of other persons was at risk, and ordered the occupants to step out of the vehicle, it followed that it was proper for him to conduct a patfrisk for weapons before proceeding further"). The defendant's motion to suppress was, thus, properly denied.

2. Motion for required finding of not guilty. The defendant next argues that the judge erred in denying his motion for a required finding of not guilty because there was no evidence that would permit a jury to find, beyond a reasonable doubt, that the defendant conspired with the passenger to traffic heroin or cocaine. We disagree.

"A motion for a required finding of not guilty is allowed if the evidence of the Commonwealth is insufficient as a matter of law to sustain a conviction for the offense at issue." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012) (citations omitted). In determining the sufficiency of the evidence at trial, we apply the Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We inquire "whether any rational fact finder could have found all essential elements of the crime beyond a reasonable doubt" while viewing the "evidence in its entirety and in the light most favorable to the Commonwealth." Acosta, supra at 839.

Here, the Commonwealth was required to prove, beyond a reasonable doubt, that the defendant made an agreement with the passenger to traffic in heroin and cocaine. A conspiracy is a "combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 249 (1971). A conspiracy need not be proved, however, by "direct evidence of an accused's participation in the conspiracy or [by an] admission of such participation." Commonwealth v. Nelson, 370 Mass. 192, 200 (1976). "A conspiracy may be proved by circumstantial evidence, and this is the usual mode of proving it, since it is not often that direct evidence can be had." Ibid. "Circumstances must be shown from which a reasonable inference can be drawn that the defendant participated in the particular conspiracy charged." Commonwealth v. Schnackenberg, 356 Mass. 65, 74 (1969).

Here, the trier of fact could draw a reasonable inference that the defendant participated in a conspiracy with the passenger based on the evidence obtained from the defendant's vehicle and from the passenger's person. Not only was the defendant the registered owner of the vehicle, but he was also the operator at the time the officers stopped the vehicle. Items commonly used to weigh and package narcotics were stored inside the vehicle's center console. The officers discovered narcotics under the passenger seat of the vehicle, as well as a large sum of cash on the passenger's person. In addition, after towing the vehicle, a drug sniffing dog alerted to and discovered that the vehicle had a removable stereo which provided approximately a one or two inch space to hide narcotics. The additional fact that the passenger and the defendant are related adds to the inference that a conspiracy existed. Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 607-608 (1992). This evidence, at a minimum, allowed the jury to conclude, beyond a reasonable doubt, that the defendant and the passenger conspired to traffic in cocaine and heroin, in violation of G. L. c. 94C, § 40.

Judgments affirmed.

      The cocaine weighed 27.93 grams and had a street value of approximately $1,200 to $1,400.

      One bag of heroin weighed 25.05 grams, and the other bag weighed 8.41 grams. The two bags of heroin combined had a street value of approximately $1,800.

      General Laws c. 90, § 6, reads, in pertinent part:
      "Every motor vehicle ... registered under this chapter when operated in or on any way in this [C]ommonwealth shall have its register number displayed conspicuously thereon by the number plates furnished by the registrar .... The said number plates shall be kept clean with the numbers legible and shall not be obscured in any manner by the installation of any device obscuring said numbers, and during the period when the vehicle or trailer is required to display lights the rear register number shall be illuminated so as to be plainly visible at a distance of sixty feet" (emphasis added).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Ivey JOHNSON.
    17-P-933
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from the dismissal of so much of an indictment that alleged murder in the first degree under the theory of deliberate premeditation. Applying the standard set forth in Commonwealth v. McCarthy, 385 Mass. 160, 161-163 (1982), we conclude that sufficient evidence was presented to the grand jury to establish probable cause that the defendant murdered the victim, and did so under at least one of the theories of murder in the first degree. The motion to dismiss the indictments should have been denied in its entirety. Moreover, the Commonwealth is not precluded at trial from prosecuting the defendant under any of the theories of murder in the first degree.

Order allowing motion to dismiss count 1 of the indictment charging murder in the first degree under the theory of deliberate premeditation reversed.

      Arguments made by the defendant regarding the judge's denial of the motion to dismiss indictments for assault and battery by means of a dangerous weapon, and murder in the first degree under the theory of extreme atrocity or cruelty are waived as the defendant has not filed a cross appeal. See Superintendent of Pub. Works of Attleboro v. Attleboro Contributory Retirement Bd., 38 Mass. App. Ct. 130, 132 n.6 (1995).

      We review the evidence to determine whether the grand jury heard "sufficient evidence to establish the identity of the accused, ... and probable cause to arrest [her]." McCarthy, supra at 163. "This standard is considerably less exacting than the requirement that a judge must apply at trial." Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). "All that is required is 'reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the defendant had committed ... an offense.' " Ibid., quoting from Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984).

      "So long as the evidence suffices to establish probable cause for murder under any of its prongs, the Commonwealth is free to prove malice under any of its prongs at trial and need not present the same theory or evidence as before the grand jury" (emphasis supplied). Commonwealth v. Riley, 73 Mass. App. Ct. 721, 730 (2009).


text:
    COMMONWEALTH v. Kerr CARRINGTON.
    16-P-722
    Appeals Court of Massachusetts.
    Entered: March 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2011, a Superior Court jury convicted the defendant of thirteen counts of larceny, thirteen counts of uttering, and nine counts of attempted larceny. The convictions were affirmed on direct appeal. Commonwealth v. Carrington (No. 2), 84 Mass. App. Ct. 1121 (2013). The defendant filed multiple motions for a new trial, all of which were denied. Before us now is the defendant's appeal from the order denying his fifth motion for new trial, which claimed that trial counsel was unprepared and provided ineffective assistance to the defendant at trial. The defendant's appellate brief, however, does not address that issue. We "need not pass upon questions or issues not argued in the brief." Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) (court need not consider claims of error unsupported by sufficient legal argument). Because the defendant has not argued the issue he raised on appeal, he has failed to establish "an abuse of discretion that produces a manifestly unjust result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997).

Order entered March 21, 2016, denying motion for new trial affirmed.

      The defendant's brief challenges the search of his residence. In particular, he claims that he was improperly denied his right to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). This claim is not before us because the defendant did not appeal from the denial of his postconviction "Franks Motion." Moreover, for the reasons set forth on pages fourteen through eighteen of the Commonwealth's brief, we discern no error in the judge's denial of the defendant's "Franks Motion."


text:
    COMMONWEALTH v. Kevin D. PINO.
    17-P-323
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Kevin D. Pino, appeals from a judgment of conviction of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b ). We affirm.

Background. On October 17, 2014, the defendant met Afrik Brisbon, his former wife and mother of four of his children, at a coffee shop in Everett for a visitation exchange of the three youngest children. Seventeen year old Kevin, Jr., the couple's oldest child, accompanied his mother to the meeting.

Seeing Kevin, Jr., the defendant told him that "he had some nerve." The defendant and Kevin, Jr. began arguing; they were less than two feet away from each other. Kevin, Jr. took his shirt off to fight his father. The defendant pulled out a knife and pointed the blade towards Kevin, Jr. with an expression on his face that Brisbon described as, "I'll stab him."

Kevin, Jr. jumped back when he saw the knife. Brisbon heard her son say to the defendant, "You got a knife." She grabbed the defendant's arm. In a panic, Kevin, Jr. ran off, picked up a paving stone, and threw it toward the defendant, hitting him on the wrist, then fled.

Sufficiency of the evidence. The defendant contends that his conviction must be reversed because the jury returned a general verdict after being instructed on both the "attempted battery" and "threatened battery" theories of assault, but the evidence was not sufficient to support the attempted battery theory. He also argues that the evidence was insufficient to prove threatened battery. We disagree. The evidence was sufficient under both theories.

The Commonwealth may prove assault using either the attempted battery or threatened battery theory. See Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010) ; Commonwealth v. Chambers, 57 Mass. App. Ct. 47, 48 (2003). We review "the evidence in the light most favorable to the prosecution" to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

Under the attempted battery theory, the Commonwealth has the burden to prove that the defendant "intended to commit a battery, took some overt step towards accomplishing that intended battery, and came reasonably close to doing so." Porro, supra at 530, quoting from Commonwealth v. Melton, 436 Mass. 291, 295 (2002). The jury could have found that in the middle of a heated argument with his son, the defendant pulled a knife out and pointed it at him. From these actions, the jury could reasonably have inferred that the defendant intended to harm Kevin, Jr. See Commonwealth v. Mazariego, 474 Mass. 42, 46 (2016) (jury "may rely on common experience to draw inferences"). The jury were also warranted in finding that by pointing the knife at Kevin, Jr. in such close proximity, the defendant took an overt step towards carrying out his intent and came reasonably close to completing the battery. The evidence supports a conviction under the attempted battery theory.

With respect to the threatened battery theory, the Commonwealth must prove that the "defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat." Porro, supra at 530-531. "The Commonwealth may properly use the same conduct to prove an assault under both forms." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 434 (2010).

The jury could have found the defendant's conduct-pointing a knife at Kevin, Jr. while in close proximity-to be threatening to a reasonable person. The jury could also conclude that Kevin, Jr. perceived the threat and feared an imminent battery. After he saw the knife, Kevin, Jr. jumped backwards, exclaimed, seemed to panic, and ran off to find a means to defend himself. A rational trier of fact could have found that the defendant committed an assault under the threatened battery theory.

Missing witness instruction. Kevin, Jr. did not testify at the defendant's trial. After the judge had completed the final charge, the defendant requested a missing witness instruction, which the judge refused. The defendant claims that the judge's failure to give the instruction was an abuse of discretion warranting reversal of his conviction.

"A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting from Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991). "The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable." Ibid.

The defendant asserts that Kevin, Jr.'s testimony was important to the case because the only other eyewitness, Brisbon, was biased against him, and because Kevin, Jr.'s state of mind and conduct were relevant to both the elements of the assault charge and his claim of self-defense. Indeed, the defendant suggests that Kevin, Jr.'s testimony would have been favorable to him. "When it appears that the witness may be as favorable to one party as the other, no inference is warranted." Anderson, supra at 282.

Moreover, the defendant was the witness's father, and nothing in the record suggests that the Commonwealth had superior knowledge of the witness's whereabouts or superior access to him. "Where 'a witness is equally available to parties on both sides of a dispute, no inference should be drawn against either side for failing to call the witness.' " Commonwealth v. Hoilett, 430 Mass. 369, 376 (1999), quoting from Commonwealth v. Cobb, 397 Mass. 105, 108 (1986). The defendant has not demonstrated that the judge's failure to give the instruction was manifestly unreasonable.

Judgment affirmed.


text:
    ADOPTION OF HENRIETTA.
    16-P-1496
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   Both the mother and father appeal the termination of their parental rights with respect to their daughter, Henrietta. We consider the arguments of each parent in turn and affirm.

Background. We summarize the facts and procedural history, drawing from the judge's findings and reserving details for the discussion of the issues.

The child was born in September, 2007. In May, 2015, the Department of Children and Families (the department) filed a care and protection petition pursuant to G. L. c. 119, § 51A, following a report from Yale New Haven Hospital that, on April 15, 2015, a caustic substance was inserted into the child's cecostomy tube. The father confessed to police that he injected the child's cecostomy tube with "Liquid Plumr" drain cleaner (caustic substance), although he later recanted the confession. Each parent contends the other parent poisoned the child with the caustic substance. The trial judge found that either the father committed the poisoning, though the judge did not credit the timing of when the caustic substance was introduced, or the father was aware that the mother poisoned the child and he intended to take the blame. The trial judge further found that the father's confession was rehearsed with, and concocted with or by, the mother. As a result of this poisoning, the child experienced profound and permanent injuries.

The department also presented evidence that the child's history of medical illnesses was fabricated. The mother represented that the child was chronically ill. The mother reported that the child experienced various symptoms, prompting medical intervention including but not limited to the child undergoing medical testing, receiving medication, and undergoing medical procedures largely based on symptoms reported by the mother. Several of these reported symptoms, including reports that the child suffered from seizures and low blood sugar, were uncorroborated by medical testing, were only observed by the mother or father, or were absent from the child's medical records. The department's expert, Dr. Rebecca Moles, personally examined the child, reviewed the child's medical history, and opined that the child experienced the consequences of caregiver fabricated illness attributable to the mother.

The child was removed from her parents' care in May, 2015. She met the foster parent in November, 2015, and has lived with her since discharge from the hospital in February, 2016. Although the child experiences continued medical needs as a result of the trauma to her organs, she no longer uses the wheelchair, leg braces, or cooling vest that she used while under her parents' care, and at school she does not require the assistance of a one-on-one aid or nap room. She does not carry a diagnosis of hypoglycemia, glutaric acidemia, seizures, or mitochondrial disorder. She does not require treatment of her 22Q11 microduplication and it remains of unknown significance. There has been a marked decrease in central line infections since the child was removed from the parents' care.

After thirty days of trial that included approximately 6,000 pages of testimony from both parents and twenty-one other witnesses, as well as seventy exhibits, the trial judge adjudicated the child in need of care and protection and terminated the parents' rights based on medical neglect and abuse. Both parents appealed.

Discussion. 1. Mother's arguments. a. Prior care and protection findings. The mother argues that the trial judge improperly considered and gave preclusive effect to findings from a care and protection petition the department filed regarding the child in 2009. In the first case, a different judge initially adjudicated the child in need of care and protection and found the parents unfit. She later vacated "[f]indings of [l]aw" that the child was in need of care and protection and that the parents each were unfit, and dismissed the case. The judge in this second case (sometimes referred to as the trial judge) took judicial notice of the findings, procedural history, and orders from the first case, and also admitted in evidence the findings of fact made on the first petition.

The mother argues that the trial judge improperly considered the findings from the first case and barred her from inquiring about that time period as it impacted issues in this second case. The department disputes this, contending that the trial judge noted he would not relitigate the prior case but allowed the parties to present evidence of rebuttal of any finding they wished to dispute. The child concedes that there was error. It is well established that findings from a previous care and protection proceeding may be offered but are not preclusive and additional evidence may be offered by any party to support or contradict them. See Adoption of Frederick, 405 Mass. 1, 4-5 (1989) ; Adoption of Paula, 420 Mass. 716, 721-722 (1995) ; Adoption of Tina, 45 Mass. App. Ct. 727, 731-732 (1998).

Assuming without deciding that the judge impermissibly gave preclusive effect to the findings of fact from the first case, we review for prejudicial error. See Adoption of Paula, 420 Mass. at 722. We conclude that any error was harmless. The overwhelming majority of the findings in the second case address the child's medical history and the parents' actions after March, 2011, through the 2016 trial. Neither parent challenges as clearly erroneous any finding of fact involving events after March, 2011. The father's injection of the caustic substance into the child and the mother's related actions would constitute clear and convincing evidence of the mother's unfitness and warrant termination. Although the judge credited the father's confession, the judge found that one or both parents was involved, that the mother helped to prepare the father's confession, and that, at the least, she was unable to protect the child from grievous injury. The mother does not contend that anyone other than the father injected the caustic substance. As a result, the child experienced permanent bodily injuries. The mother's failure to protect the child and her assistance to the father would be sufficient to terminate the mother's parental rights. See Adoption of Lorna, 46 Mass. App. Ct. 134, 140-141 (1999) ("While at least one [parent] had to have abused [the child], both [parents] were deemed unfit for their inability to protect the [child] from future abuse").

In addition, within only the March, 2011, through 2015 timeframe, there were extensive findings that the mother, who was the child's primary caregiver, was medically abusive of the child. The judge found that, as a result of caregiver fabricated illness mainly attributed to the mother, the child experienced numerous uncorroborated medical issues, underwent "unnecessary and dangerous" medical procedures, and received potentially unnecessary medical treatments which she no longer received after removal from her parents' care. The detailed findings about the child's medical history following March, 2011, and the conclusion that the majority of the illnesses that the mother said the child suffered from were fabricated and were the result of the mother's medical neglect and abuse, supported termination. See Adoption of Willamina, 71 Mass. App. Ct. 230, 238 (2008) (considering effects of Munchausen syndrome by proxy as grounds for termination).

Therefore, any error from the trial judge's consideration of facts from the first case was harmless.

b. Department's expert. The mother also raises several arguments related to the department's expert, Dr. Moles, who opined that, aside from the injuries caused by the caustic substance, the majority of the child's illnesses were due to or exacerbated by caregiver fabricated illness.

First, the mother challenges Dr. Moles's review of medical records back to the child's birth to reach her opinion, as it reached back into the timeframe of the first case. Although Dr. Moles's testimony included some discussion of the child's medical history prior to 2011, a review of the judge's findings indicate that he largely relied on her testimony about the child's medical condition after the first case, the deterioration of the child while she was in her parents' care, and the child's improved medical status after removal from her parents' care in May, 2015. Based on this testimony, the trial judge concluded that the child's illnesses resulted from caregiver fabricated illness. Specifically, the judge credited Dr. Moles's testimony that the child's gastrointestinal issues, blood and central line infections, alleged seizures, continued testing for genetic disorders, anticoagulant issues, and orthopedic issues were all the result of caretaker fabricated illness, largely based on testimony about the child's health between 2011 and 2016.

The mother also argues that Dr. Moles lacked an expertise in genetics to opine that a genetic abnormality did not cause the child's illnesses, and that her conclusion to this effect was based on inadmissible hearsay. Dr. Moles was qualified as an expert in pediatric medicine and child abuse. On cross-examination, Dr. Moles testified that she reviewed the child's medical records and spoke with a geneticist involved with the child's care to reach her conclusion. The judge offered to expand the witness list to allow the geneticist to be called to testify, but the mother did not subpoena the geneticist. "It is established that an expert may 'base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider formulating an opinion.' " Adoption of Seth, 29 Mass. App. Ct. 343, 352 (1990), quoting from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).

c. Mother's experts. The mother also argues that she was denied due process because her experts were prevented from discussing events prior to March 28, 2011, whereas Dr. Moles testified to the child's early medical history. The mother offered three experts: Joel Huberman, qualified as an expert in molecular biology with a focus in genetics; Eli Newberger, qualified as an expert in pediatric medicine and Munchausen syndrome by proxy ; and Frank Marotta, qualified as an expert in psychology, Munchausen syndrome by proxy, and trauma, and testifying as the mother's treating therapist. However, as Dr. Moles's testimony about the child's early medical history was not central to her opinion, and since termination would be warranted based on events between March, 2011, and the end of trial, there was no prejudicial harm in preventing the mother's experts from testifying about the child's early medical history.

Furthermore, the mother contends that the trial judge failed to address conclusions reached by her experts that contradicted Dr. Moles. We disagree. The judge did not overlook the expert testimony of Dr. Newberger and Dr. Huberman; the judge addressed why their testimony was not credible. Additionally, the judge was not obligated to credit Dr. Marotta's opinion that the child's illnesses were not a result of caregiver fabricated illness. Where the judge's determination was based on the credibility of competing experts, we give deference to the trial judge. See Custody of Two Minors, 396 Mass. 610, 618 (1986) ; Adoption of Hugo, 428 Mass. 219, 229 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999) (trial judge is in best position to evaluate evidence).

2. Father's arguments. a. Burden shifting. The father first argues that the judge improperly shifted the burden to him to prove his own fitness. We disagree.

The burden is on the department to prove parental unfitness by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 769 (1982) ; Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 698 (1984). That burden never shifts to the parents. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 802-803 (1983).

As a preliminary matter, we note that the father exercised his privilege under the Fifth Amendment to the United States Constitution against self-incrimination 546 times and that the trial judge permissibly drew a negative inference from each assertion. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 121 (2002). However, the trial judge did acknowledge that, on its own, a negative inference was insufficient to satisfy the department's burden. See Custody of Two Minors, 396 Mass. at 616.

The father contends that four conclusions of law indicate that the trial judge impermissibly shifted the burden. In the first instance, when discussing the parents' cooperation with the department, the judge concluded that the "Father's attorney refused to allow Father to interact with the Department while he was incarcerated. Father has presented no testimony and shown no evidence of his taking steps towards becoming fit." The social worker assigned to the family could not provide services to the father because she was unable to see him while he was incarcerated. The judge did not shift the burden when he made this conclusion. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) ; Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("Evidence of parents' refusal to cooperate with the department ... is relevant to the determination of unfitness").

Similarly, after finding the father currently unfit and while considering if it was in the child's best interests to terminate his parental rights, the judge concluded that "[e]vidence was not presented on ameliorative steps taken by parents to address the circumstances that led to the child's removal." In terminating the father's parental rights, the judge was required to consider if the father was offered or received services from the department. See G. L. c. 210, § 3(c )(iii). Again, the conclusion that no evidence was presented on this point did not shift the burden.

Next, the father contends that the trial judge shifted the burden when he concluded that the parents "have not shown how they, as a unit, would be able to protect [the child] from this happening for a third time." This conclusion came only after the judge reviewed the harm that the parents caused to the child, including Dr. Moles's opinion that the mother falsified or exaggerated the child's medical conditions and that the father "was an active parent while this happened." The judge may consider both preventive and remedial purposes when determining parental fitness. See Custody of Two Minors, 396 Mass. at 620. Read in context, the statement was a summation of the evidence and the issues at hand. See Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003) (in context of over-all findings, use of word "demonstrated" did not indicate that judge improperly shifted burden of proof).

Lastly, the father argues that the judge shifted the burden while considering termination when he concluded that "[t]he parents have shown very little to prove that they would be able to overcome these shortcomings and properly care for [the child]." The judge may properly consider the reasonable likelihood that parental unfitness is only temporary before terminating a parent's rights. See Adoption of Carlos, 413 Mass. 339, 350-351 (1992). Again, read in its entirety, the judge considered predictive harmful effects while maintaining that the burden remained on the department. Ibid. The judge did not impermissibly shift the burden of proof to the father.

b. Troublesome facts. The father also contends that the judge failed to consider certain evidence and that we should therefore grant less deference to his decision.

"Troublesome facts ... are to be faced rather than ignored.... Only then is the judge's conclusion entitled to the great respect traditionally given to discretionary decisions." Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995), quoting from Adoption of a Minor (No. 2), 367 Mass. 684, 688-689 (1975).

The father argues that he could not have injected the caustic substance into the child's cecostomy tube because the evidence that the caustic substance would have affected the child in a short period of time was inconsistent with the timeframe of his confession. However, the judge did consider the discrepancies in the timeline. Although the judge credited the father's confession insofar as the judge found that the father injected the caustic substance into the child's cecostomy tube, the judge specifically did not credit the "precise details" of the timing or sequence of events. The judge further concluded that the confession indicated that the father either directly injected the caustic substance himself or that he was aware that someone else, likely the mother, did so and he intended to take the blame. Even if the father's role was "limited" to his false confession and his failure to protect the child, termination would nonetheless be supported by the facts. See Adoption of Lorna, 46 Mass. App. Ct. at 140-141. We are satisfied that the judge properly considered the evidence before him.

Finally, the father also argues that the judge ignored evidence of his positive interactions with the child. Termination is supported by ample evidence where the father injected the child with a caustic substance or was aware that the mother did so and where he was an active parent while the mother falsified or exaggerated the child's medical condition, resulting in serious medical injuries. See Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005).

Decrees affirmed.

      During two subsequent surgeries, about two-thirds of the child's intestines and forty percent of her bladder had to be removed. She must wear an ostomy bag because she cannot pass stool through her anus. The child requires continued medical assistance and faces ongoing risk of infection, malnutrition, dehydration, and possible further surgeries as she ages.

      For example, in 2013, the child underwent testing to determine if she had glycogen storage disease, mitochondrial disorder, fatty acid oxidation defect, maple syrup urine disease, or certain enzymes in gluconeogenesis. She tested negative for any of these abnormalities. In 2014, the child was tested for a genetic defect. An initial test showed a defect in her "ETFB" gene and further testing was ordered. That further testing included deoxyribonucleic acid sequencing and a skin biopsy, both of which tested negative for the metabolic disorder associated with defective ETFB genes. Despite the negative testing, the mother reported to a different physician later that year that the child was diagnosed with the metabolic disorder.

      In 2011, the child was prescribed medication based on the mother's concern that the child may have a metabolic or mitochondrial disorder. In 2012, the child's primary care physician prescribed medication based on the parents' report that the child experienced a vomiting feeling in her mouth. Also in 2012, the mother reported to a neurologist that the child experienced migraines, despite a previously normal magnetic resonance imaging. The child was prescribed migraine medication. In 2013, the mother reported that the migraines worsened despite the medication. The mother requested that the child be prescribed narcotics. The child's neurologist refused.

      In 2012, the child underwent an upper endoscopy based on the mother's report that the child experienced difficulties swallowing. The endoscopy showed no major issues. In 2013, the mother reported that the child experienced low blood sugar or hypoglycemia based on the child's symptoms and glucometer readings done at home. A gastrostomy tube (G-tube ) was inserted into the child's stomach, which allowed her to receive feeding and medication directly. The parents requested that the G-tube be placed so they could feed the child at night without waking her. The recommendation to place the G-tube was not based on medical necessity. In 2014, a cecostomy tube was implanted into the child's cecum based on the mother's reports that the child experienced chronic constipation.

      In 2012, the mother reported that the child was experiencing seizures. A previous electroencephalography (EEG) test was normal, and the mother refused to have the child admitted to the hospital for overnight EEG monitoring. In 2013, the mother reported that the child had been rediagnosed with epilepsy in 2012, but the medical records did not support the statement of diagnosis or rediagnosis. Later in 2013, the mother reported that the child's seizures had improved. The child was weaned off her seizure medication, but the mother reported that the child experienced a seizure. The child was restarted on medication. In 2014, the child was reportedly taking three medications to treat seizures.

      In 2013, the mother reported that the child experienced low blood sugar based on the mother testing the child's glucose levels at home. See note 5, supra.

      Dr. Moles defined caregiver fabricated illness as "where a caregiver either falsifies symptoms, so exaggerates symptoms, creates symptoms or induces illness in a child." Caregiver fabricated illness was formerly known as Munchausen syndrome by proxy.

      Dr. Moles opined that several of the symptoms that the mother reported or medical issues that the child experienced were the result of caregiver fabricated illness, including gastrointestinal issues, blood and central line infections, alleged seizures, alleged genetic disorders, anticoagulant issues, and alleged orthopedic issues. For example, Dr. Moles opined that the report of seizures was a component of caregiver fabricated illness because there was no documentation in the medical records that the child experienced a seizure witnessed by a medical provider, and because the child stopped receiving antiseizure medication in 2015 with no adverse consequences. Dr. Moles also opined that the child's difficulties with her anticoagulant levels were also a result of caregiver fabricated illness. The child began experiencing blood clots in 2014 as a result of her central line and was started on anticoagulant medication. She had difficulty keeping her anticoagulant levels in a "therapeutic" range between 2014 and 2015. At times, the mother administered the child's anticoagulant medication. The child's anticoagulant levels entered the therapeutic range within days after she went into the department's custody and the doses of medication were decreased.

      The child experienced central line infections between 2014 and 2015. Dr. Moles opined that the number and type of infections were unusual and of special concern. The child's blood cultures reflected infections typically found in saliva, stool, or the gastrointestinal tract, not in blood.

      For clarity, we refer to the earlier proceeding as "the first case" and the case on appeal as "the second case."

      Although the child remained in the department's custody, the department entered into a temporary agreement with the parents and the child went home with the parents that same day.

      The mother also argues that the findings from the first case were inadmissible because they were vacated in March, 2011. The judge in the first case vacated the adjudication and conclusion that the parents were unfit but did not vacate the findings.

      Though only seven of the 187 factual findings entered in the second case derive from the findings of fact in the first case, the mother contends that those seven findings created a lens coloring the entire second case.

      The mother challenged the completeness of the records admitted at trial. Dr. Moles documented her notes in a spreadsheet, which she used to create the report admitted at trial. The Yale New Haven Hospital child abuse team maintained the spreadsheet in a database separate from medical records and so it was not produced in discovery. However, the mother's attorney had Dr. Moles's report and the opportunity to cross-examine Dr. Moles about the child abuse team's records and, in response to the mother's motion to compel the child abuse team's records, Dr. Moles was recalled to testify further. Dr. Moles testified that a subpoena would not produce the records maintained by the child abuse team, but that the information in the team's records were also in the child's medical records.

      Specifically, the judge found that Dr. Newberger was not credible where the mother and one of her attorneys assisted his preparation of the chalk to use while testifying, where he referred to them as his "research assistants," and where they reviewed medical files and brought inconsistencies or allegations of caregiver fabricated illness to his attention. Additionally, the judge did not find Dr. Huberman to be credible where he had never treated patients, never met nor examined the child, was not qualified to give a medical opinion, and was guided by instructions from the mother about the specific areas of genetics to be investigated.

      To the extent that we do not address the other contentions of the mother or father, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    Raymond BENCE, individually and as coexecutor, & another v. Annmarie B. HUNT & another.
    17-P-456
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Evelyn E. Gries.

      Gail English-White, individually and as coexecutor of the estate of Evelyn E. Gries.

      Massachusetts Executive Office of Health and Human Services, intervener.

   The plaintiffs, Raymond Bence and Gail English-White, appeal from an order allowing a motion to intervene by the Massachusetts Executive Office of Health and Human Services (MassHealth) to enforce a lien on a settlement and directing payment forthwith. The plaintiffs assert that: (1) intervention was untimely; (2) MassHealth's lien does not reach the settlement; and (3) a trial or hearing is necessary before ordering payment of the lien. We affirm.

Background. This appeal arises out of an underlying tort suit. According to the plaintiffs' complaint, on May 19, 2009, the defendant, Annmarie B. Hunt, struck and injured their mother, Evelyn E. Gries, with her car. Gries had mild dementia before the accident, and the injuries exacerbated it. Gries died on November 10, 2010, and on May 11, 2012, the plaintiffs filed suit. On December 18, 2013, the parties settled for $250,000; the defendant's insurance immediately paid the claim, and on January 20, 2014, the parties executed a stipulation of dismissal on all claims. The parties never sought, nor did the trial court enter, a final judgment.

After the accident but before Gries's death, MassHealth had expended $18,026.44 in medical care for Gries and had imposed a lien on the plaintiffs' claim for reimbursement of the monies paid. Throughout 2013 and 2014, MassHealth and plaintiffs' counsel discussed the lien, including forms offering to reduce the lien, but plaintiffs' counsel never filed the forms.

In 2015, MassHealth commenced sending demand letters to plaintiffs' counsel. Then, on March 2, 2016, MassHealth learned that it had not been named on the settlement check. MassHealth contacted plaintiffs' counsel, and after negotiations between them broke down, moved to intervene on the settlement. The judge granted the motion and payment to MassHealth for Gries's medical expenses. This appeal followed.

1. Rule 24(a) of the Massachusetts Rules of Civil Procedure. The plaintiffs contend that the motion to intervene was untimely. We disagree. Under G. L. c. 118E, § 22(k ), as appearing in St. 2010, c. 131, § 72, the Commonwealth may "intervene as of right in a civil action" to protect its interest in MassHealth liens. Pursuant to rule 24(a), 365 Mass. 769 (1974), such intervention must be "[u]pon timely application." Timeliness is a "flexible concept" that is "largely left to the discretion of the judge below." Revere v. Massachusetts Gaming Commn., 476 Mass. 591, 598 (2017), quoting from Corcoran v. Wigglesworth Mach. Co., 389 Mass. 1002, 1003 (1983).

While intervention after judgment enters in a suit is "seldom timely," Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct. 56, 61 (2000), there can be no final judgment in a suit subject to a MassHealth lien unless MassHealth receives "written notice and a reasonable opportunity to intervene or otherwise perfect their rights to recovery." G. L. c. 118E, § 22(j ), inserted by St. 2010, c. 131, § 72.

Here, the plaintiffs did not provide MassHealth with notice of the settlement or the stipulation of dismissal. MassHealth learned nearly two and a half years after settlement that it was not a payee on the settlement check. Even then, MassHealth tried to negotiate with the plaintiffs' counsel. Where the plaintiffs kept MassHealth in the dark about the settlement for over two years, the judge did not abuse his discretion in allowing MassHealth to intervene when it did.

2. MassHealth's lien. The plaintiffs advance three arguments to prevent MassHealth's lien from reaching the settlement. First, the plaintiffs contend that the Medicaid statutes do not allow MassHealth's lien to reach the settlement. We disagree.

"When ... a claimant's heirs, estate or legal representative receives payment from a liability or workers' compensation insurer or any other third party as a result of a loss, ... the claimant's heirs, estate or legal representative shall repay to [MassHealth] the total of medical assistance benefits provided from monies allocated in ... settlement." G. L. c. 118E, § 22(b ), inserted by St. 2010, c. 131, § 72.
"If a ... settlement ... fails to specify what portion of the ... settlement ... is in payment of medical expenses, there shall be a presumption that the ... settlement ... applies first to the medical expenses incurred by the claimant in an amount equal to the medical assistance benefits paid." Id. at § 22(c ), inserted by St. 2010, c. 131, § 72.

Here, the plaintiffs recovered from a third party and must repay MassHealth for the benefits it provided. The settlement agreement does not disaggregate any portion of the lump-sum payment to the plaintiffs to pay for any particular type of injury, cause of action, or plaintiff. Therefore, the statutory presumption applies, and all MassHealth expenditures get repaid off the top.

We are also not persuaded by the plaintiffs' assertion that recovery under G. L. c. 229, § 2, for wrongful death is beyond the reach of MassHealth's lien. The settlement agreement and complaint explicitly state that they cover both "negligence and wrongful death." The settlement is not disaggregated to pay for specific claims, so G. L. c. 118E, § 22(c ), requires payment of MassHealth's lien off the top.

Last, the plaintiffs' claim that Arkansas Dept. of Health & Human Servs. v. Ahlborn, 547 U.S. 268 (2006), bars recovery is also unavailing. First, the plaintiffs waived this argument by not raising it below. See NES Rentals v. Maine Drilling & Blasting, Inc., 465 Mass. 856, 860 n.8 (2013). Moreover, as of October 1, 2017, 42 U.S.C. 1396a(a)(25)(H) may abrogate Ahlborn, as it allows State Medicaid programs to recover expenditures from "any payments by" a third party liable for causing the injuries resulting in the expenditures. Pub. L. No. 113-67, 127 Stat. 1177 (2013) ; Pub. L. No. 114-10, Title II, § 220, 129 Stat. 154 (2015). This case is also different from Ahlborn in two ways. The parties in Ahlborn stipulated to the value of Ms. Ahlborn's full claim and the amount from the settlement that reimbursed medical costs. See Ahlborn, supra at 280. In this case, the parties neither stipulated to these facts nor presented any evidence regarding them.

3. Hearing or trial on lien. Last, the plaintiffs contend that the judge erred in not holding a hearing on the amount of the lien before ordering payment. In addition to waiving the argument by not raising it below, see NES Rentals, supra, the plaintiffs did not dispute the $18,026.44 in medical expenses sought by MassHealth. The plaintiffs are required by law to reimburse MassHealth. G. L. c. 118E, § 22(b ). We discern no error.

Order allowing motion to intervene and ordering payment affirmed.

      Although there is no final judgment in this case, a single justice, in an order dated May 26, 2017, allowed this appeal to proceed.

      To the extent that we do not address the plaintiffs' other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. James A. SNOW.
    17-P-839
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his convictions, after a District Court jury trial, of assault and battery on an elderly person, G. L. c. 265, § 13K(a½) (count 1); witness intimidation, G. L. c. 268, § 13B (count 2); assault and battery on a household member, G. L. c. 265, § 13M (count 3); and resisting arrest, G. L. c. 268, 32B (count 5). We affirm in part and reverse in part.

1. Assault and battery on a household member. The defendant argues that the judge erred in denying the defendant's motion for a required finding of not guilty, at the close of the Commonwealth's case, on the charge of assault and battery on a household member. The defendant contends that the Commonwealth presented insufficient evidence that on the date of the defendant's assault and battery upon the victim, she was a "household member" for purposes of G. L. c. 265, § 13M. We disagree.

"In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt." Commonwealth v. Rivera, 460 Mass. 139, 141 (2011). "Fact finders are not 'required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.' " Commonwealth v. Russell, 46 Mass. App. Ct. 307, 309 (1999), quoting from Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990).

Under G. L. c. 265, § 13M(c ), as appearing in St. 2014, c. 260, § 23, as relevant here, a " 'household member' shall mean persons who ... (iii) are or have been in a substantive dating or engagement relationship." The statute further provides:

"[T]he trier of fact shall determine whether a relationship is substantive by considering the following factors: the length of time of the relationship; the type of relationship; the frequency of interaction between the parties; whether the relationship was terminated by either person; and the length of time elapsed since the termination of the relationship."

Ibid. The defendant argues that the Commonwealth failed to establish these "essential factors." However, the defendant overlooks that these factors "are not themselves elements of the offense. There does not need to be evidence as to each factor, let alone proof beyond a reasonable doubt as to any one or more of them." Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7 (2016). "It is enough that the evidence on these factors, taken as a whole, warrants a finding of a substantive dating relationship beyond a reasonable doubt." Ibid.

Here, the testimony of the Commonwealth's witness, Sherrie McWhinnie, taken as a whole, was sufficient to establish that the defendant and the victim were in a substantive dating relationship. First, McWhinnie testified that the defendant had introduced the victim to her as his "girlfriend." Compare Dustin, 476 Mass. at 1004, 1006 (sufficient evidence of substantive dating relationship where defendant and victim were in boy friend-girl friend relationship, although not living together). See Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 185 (1994) (that defendant referred to victim as "former girlfriend" tended to prove they were in substantive dating relationship). Second, McWhinnie testified that, for at least the week during which she and her son had shared a two-bedroom apartment with the defendant, the defendant and the victim shared the other bedroom. Third, McWhinnie's testimony provided evidence of a domestic financial relationship between the defendant and the victim; she testified that she had received a phone call from the defendant, who was at his residence, sounded "irate," and complained that the victim had "shut off her social security benefits card." McWhinnie heard the victim in the background, "yell[ing] into the phone, 'He broke my jaw. Call 9-1-1.' "

Taken in the light most favorable to the Commonwealth, McWhinnie's testimony was sufficient to permit a jury to find, beyond a reasonable doubt, that the defendant was in a "substantive dating relationship" with the victim.

2. Intimidation of a potential witness. The target of the alleged witness intimidation was McWhinnie, who the parties agree was, at the relevant time, at most a "potential witness." The defendant argues, and the Commonwealth concedes, that the evidence was insufficient to convict the defendant of this charge. The Commonwealth contends, however, that, under the recent decision in Commonwealth v. Muckle, 478 Mass. 1001 (2017), which postdated the trial in this case, the District Court had no jurisdiction in the first place over a charge of intimidating a potential (as opposed to an actual) witness, so that we should order the complaint dismissed for lack of jurisdiction. We disagree.

The court in Muckle was called upon to construe the language of a District Court jurisdictional statute, G. L. c. 218, § 26, which had been amended in 1996 to include the phrase "intimidation of a witness or juror under [ G. L. c. 268, § 13B ]." 478 Mass. at 1002. The court held that "[t]he plain language of G. L. c. 218, § 26, ... confers jurisdiction in the ... District Court over intimidation of a witness or juror, but not over intimidation of any other person." Id. at 1003. See G. L. c. 268, § 13B(1)(c )(i), (iii). Accordingly, the District Court lacked jurisdiction over a charge of intimidating "a person furthering a court proceeding," a separate category of persons protected by G. L. c. 268, § 13B, and at issue in Muckle. Id. at 1001. See G. L. c. 268, § 13B(1)(c )(iv). Similarly, the Commonwealth suggests here, District Court jurisdiction does not extend to the crime of intimidating "a potential witness" under G. L. c. 268, § 13B(1)(c )(i).

The flaw in the Commonwealth's argument is that, even before the jurisdictional statute was amended in 1996 to give the District Court jurisdiction over the crime of intimidating a "witness," see Muckle, 478 Mass. at 1002, the word "witness" in G. L. c. 268, § 13B, had been interpreted as applying to "potential witnesses." See Commonwealth v. Burt, 40 Mass. App. Ct. 275, 278 (1996) ("There was no error in the instruction that the word 'witness' included 'potential witness' "). Thus the 1996 amendment effectively gave the District Court jurisdiction over the crime of intimidating a potential, as well as an actual, witness. We hardly think the Legislature's 2006 codification of the interpretation in Burt, see note 4, supra, somehow deprived the District Court of such jurisdiction, nor do we see anything in Muckle as precluding the recognition of such jurisdiction. Accordingly, here, rather than ordering a dismissal on jurisdictional grounds, we reverse the defendant's conviction on sufficiency grounds.

3. Jury instructions. For the first time on appeal, the defendant argues that the judge erred by (a) providing the jury with a written summary of the elements of each charge that did not include the elements of self-defense on the charge of resisting arrest, and (b) failing to provide the jury with a complete audio recording of his jury instructions. We review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).

a. The judge did not err in omitting, from the written summary of the elements furnished to the jury, the elements of self-defense on the charge of resisting arrest. We are constrained by the Supreme Judicial Court's ruling that, where a judge furnishes a jury with a written summary of the crimes' elements, "[t]here is no requirement that a judge provide an outline of the defendant's defenses." Commonwealth v. Guy, 441 Mass. 96, 109 (2004). The defendant does not dispute that the judge properly instructed the jury on each element the Commonwealth was required to prove on the resisting arrest charge, including its burden to "prove beyond a reasonable doubt that the defendant did not act in self-defense." There was no error.

b. Nor did the judge err when, without agreement of the parties, he provided the jury with the written summary of the elements unaccompanied by an audio recording of the entire jury instructions. "Whatever we may have said before, it is now time to recognize that reasonable steps to assist a jury in performing their function should be encouraged," and this includes "provid[ing] a jury with an accurate statement of the elements of each crime charged." Commonwealth v. DiBenedetto, 427 Mass. 414, 422 (1998). The judge may do so "in a summary form, in writing, without the parties' consent." Guy, 441 Mass. at 108. Neither DiBenedetto nor Guy requires that such a summary be accompanied by a full recording (or verbatim written copy) of the judge's oral instructions.

Conclusion. The judgments as to counts 1, 3, and 5 are affirmed. As to count 2 (witness intimidation), the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.

So ordered.

Affirmed in part; reversed in part.

      The defendant was found not guilty of assault and battery on a police officer, G. L. c. 265, § 13D. The defendant makes no argument on appeal regarding the conviction of assault and battery on an elderly person.

      We reject the defendant's argument that his facts differ meaningfully from Dustin, 476 Mass. at 1006, and Brossard, 417 Mass. at 185, on the basis that here, the victim did not testify in the Commonwealth's case-in-chief as to a "boy friend-girl friend relationship." Neither Dustin nor Brossard states that testimony from the victim is necessary in order to prove a substantive dating relationship.

      She provided evidence of the type of relationship between the defendant and the victim, and some evidence concerning its length, and the frequency of interaction between the parties. See G. L. c. 265, § 13M(c ). No one element is dispositive. See Dustin, 476 Mass. at 1006 n.7.

      As relevant here, the statute now prohibits intimidation of "a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type" (emphasis added). G. L. c. 268, § 13B(1)(c )(i), inserted by St. 2006, c. 48, § 3.

      Burt was decided on April 5, 1996, see 40 Mass. App. Ct. at 275, which was before the jurisdictional statute was amended by St. 1996, c. 393, approved on September 26, 1996. That same 1996 act also made three separate amendments to the witness intimidation statute. See St. 1996, c. 393, §§ 2-4. Had the Legislature disagreed with Burt, it could easily have added to St. 1996, c. 393, a further amendment to the witness intimidation statute to negate the effect of Burt. It did not do so.

      In Guy, unlike here, the jury also had an audiotape of the complete instructions, but the court cited that as an "addition[al]" circumstance, rather than one necessary to its ruling. See Guy, 441 Mass. at 109.

      Although the judge did not request the parties' approval to distribute the summary sheet to the jurors, he did notify counsel that he intended to give the summary to the jury, and stated that he would provide them with an advance copy.

      In light of DiBenedetto's prefatory language ("[w]hatever we may have said before"), the defendant errs in relying on two decisions predating DiBenedetto that caution against giving incomplete copies of instructions (whether recorded or written) to the jury. See Commonwealth v. Lavalley, 410 Mass. 641, 652 n.15 (1991) ; Commonwealth v. Baseler, 419 Mass. 500, 505-506 (1995).


text:
    COMMONWEALTH v. Paul SMITH.
    17-P-261
    Appeals Court of Massachusetts.
    Entered: March 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2005, the defendant was indicted for murder in the first degree for the stabbing death of Thomas Morgado (the victim). Based on certain specific grounds, he moved to suppress secretly recorded conversations in which he admitted to having killed the victim, as well as all evidence derived from those conversations. After that motion was denied, the defendant pleaded guilty to murder in the second degree. Almost nine years later, the defendant filed a motion for new trial through which he sought to withdraw his guilty plea. He claimed that his counsel was constitutionally ineffective for failing to assert additional grounds in the motion to suppress. The same Superior Court judge who had denied the defendant's motion to suppress and who had accepted his guilty plea denied his motion for new trial, and the defendant appealed. Discerning no abuse of discretion or other error of law, we affirm.

Background. The crime and the electronic recordings. The victim was stabbed to death in 2002 in an alleyway in New Bedford. Although there was an eyewitness to the stabbing, the crime went unsolved for years. On multiple occasions in 2005, the defendant told Gene and Deborah Hebert that he had killed the victim. The conversations between the defendant and the Heberts took place in the context of his seeking to recruit them to join him in various criminal endeavors. In making those admissions, he revealed knowledge of certain details of the stabbing that had not been released to the public.

The Heberts informed the police about the defendant's admissions and agreed to participate in having additional conversations with the defendant secretly recorded. On Friday, April 22, 2005, the police informed the Heberts that they intended to seek a warrant to authorize this. Nevertheless, the Heberts that day-on their own initiative-went ahead and used a microcassette device to record a conversation with the defendant. The following day, they provided that recording to the police, who subsequently sought and obtained a warrant as planned. The police then arranged to record new conversations between the Heberts and the defendant in which he once again admitted that he had stabbed the victim to death. Confronted with these recordings, the defendant confessed to the murder.

The motion to suppress. The defendant moved to suppress the electronic recordings that the police had made, as well as the incriminating statements that he made after being confronted with them. As grounds for that motion, he argued that the police recordings were obtained as a result of the Heberts' initial recording, which he argued was an illegal wiretap. Following an evidentiary hearing held in August of 2006, a Superior Court judge denied that motion. In doing so, the judge assumed-without deciding-that the Heberts' recording would have to be suppressed, but ruled that there were independent grounds to support the warrant for the separate recordings later made by the police.

The guilty plea. A few months later, the defendant pleaded guilty to murder in the second degree. During the plea colloquy, he acknowledged that he was waiving the right to appeal the denial of any motions and to pursue any additional motions, including motions to suppress.

The motion for new trial. In November of 2015, the defendant sought to withdraw his guilty plea based on the claim that his trial counsel was constitutionally ineffective for not arguing that the recordings should have been suppressed on additional grounds. Specifically, the defendant maintained that his counsel should have argued that the police had not made a sufficient demonstration that the offense being investigated was "in connection with organized crime" as required by the Commonwealth's statute governing surreptitious electronic recordings (wiretaps). G. L. c. 272, § 99 B 7. The same judge who denied the motion to suppress and accepted the defendant's guilty plea denied the motion for new trial. He explained his ruling in a thoughtful twelve-page memorandum of decision.

Discussion. The defendant's argument. The secret recordings here were made by the police with the consent of the Heberts. In this context, there needed to be a nexus between the police investigation and "organized crime." Commonwealth v. Thorpe, 384 Mass. 271, 280-281 (1981) (interpreting G. L. c. 272, § 99 A ). Specifically, had the defendant challenged the existence of such a nexus, the Commonwealth would have been required "to show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime." Id. at 281. In turn, "organized crime" is defined as "a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services." Id. at 277. G. L. c. 272, § 99 A. The defendant claims that his counsel was constitutionally ineffective for failing to argue suppression based on an insufficient nexus to organized crime.

Standard of review. By pleading guilty to murder in the second degree, the defendant generally waived his appellate rights to challenge that conviction. See, e.g., Commonwealth v. Zion, 359 Mass. 559, 563 (1971). Nevertheless, a defendant can seek to withdraw a guilty plea by arguing that the plea resulted from the constitutional ineffectiveness of his plea counsel. Commonwealth v. Pike, 53 Mass. App. Ct. 757, 761 n.5 (2002) ("Since competency of counsel affects the determination of voluntariness, a waiver of direct appeal based on incompetent advice incident to a plea agreement does not waive a defendant's right to challenge the plea agreement on grounds of ineffective assistance of counsel").

To make out a claim of ineffective assistance, a defendant must demonstrate (1) that his counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that it "likely deprived [him] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, the conviction was the result of a plea agreement, "the defendant has the burden of establishing that 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).

A motion to withdraw a guilty plea is treated as a motion for new trial, and its denial is reviewed only for an abuse of discretion or other error of law. Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), and cases cited. For the reasons set forth below, we conclude that the motion judge did not abuse his discretion in denying the defendant's motion.

Application of Saferian prong one. With some force, the defendant argues that the wiretap here would not pass muster under a trio of cases issued in the last decade: Commonwealth v. Long, 454 Mass. 542, 557-558 (2009) ; Commonwealth v. Tavares, 459 Mass. 289, 301-302 (2011) ; and Commonwealth v. Burgos, 470 Mass. 133, 142 (2014). However, those cases postdate the entry of the defendant's guilty plea in 2007. In evaluating whether counsel's failure to raise the organized crime issue fell "measurably below that which might be expected from an ordinary fallible lawyer," we need to examine the case law as it existed at the time the guilty plea was entered. See Commonwealth v. Collins, 470 Mass. 255, 261 (2014) ("[D]efense counsel was not ineffective for failing to make an objection that would have been futile under the prevailing case law"). Compare Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 442-443 (2014) (Cypher, J.) ("As legal research [conducted before the defendant pleaded guilty] would have indicated that the crimes [to which the defendant pleaded guilty] were ones involving moral turpitude, we must conclude ... that counsel's failure to inform the defendant that pleading guilty to the charges would subject him to presumptively mandatory deportation fell below an objective standard of reasonableness").

The defendant maintains that he had a solid basis for suppressing the recordings even under earlier case law. In this regard, he argues that prior to recording the conversations (or for that matter afterward), the police had no reason to believe that the 2002 murder was anything other than an isolated crime committed by a single individual, not the product of an organized crime enterprise. However, that argument ignores the fact that-as the affidavit submitted in support of the application for a search warrant makes explicit-at the time the recordings were made in 2005, the police were investigating not only the 2002 murder, but other crimes as well. Those offenses involved ongoing, organized efforts among multiple individuals. Indeed, the defendant's disclosure to the Heberts that he killed the victim was made as part of his efforts to enlist them in criminal actions actively being planned. The affidavit described some offenses in general terms, referring to the defendant's expressed desire "to commit robberies of Guatemalans." It also described in detail one planned future offense: a highly coordinated burglary of the home of an identified individual. Because the investigation was expressly targeting such offenses, not just the 2002 murder, the Commonwealth's showing that the authorized wiretap was connected to organized crime was far greater than was present in Commonwealth v. Jarabek, 384 Mass. 293 (1981), the only pre-2007 case that found a one-party wiretap unjustified because of a lack of such a nexus. The facts here also compared favorably to those of the many cases of that era that found a sufficient nexus to organized crime. In these circumstances, we conclude that the Commonwealth at least has a strong argument that defense counsel's failure to raise the organized crime issue in his motion to suppress did not fall "measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96.

Application of Saferian prong two. In any event, we conclude that the defendant has not shown sufficient prejudice. We recognize that a recording of a defendant's own words acknowledging his guilt has an unparalleled bite to it. However, the fact that the recordings provided the most powerful evidence of the defendant's guilt does not mean that the remainder of the Commonwealth's case was thin. Notably, even had the defendant raised the organized crime issue and the recordings been excluded as a result, the Heberts still could have testified as to what the defendant had told them, including as to the details of the stabbing that had not been made public. Although the defendant presumably would have attempted to argue that the Heberts were biased because they wanted to curry favor with the police, he has not proffered a viable means of countering their specific claim that he had revealed to them insider knowledge of how the 2002 murder took place.

Moreover, the defendant passes over the fact that had he insisted on going to trial, he would have faced a potential conviction of murder in the first degree. In light of the nature of the killing, the fact that it was conducted in conjunction with a robbery, and the defendant's reported statement that stabbing the victim to death "gets him off," a conviction of murder in the first degree was a very real possibility. By pleading guilty to murder in the second degree, the defendant gained the possibility of parole. Based on the value that the plea bargain provided him and on the strength of the Commonwealth's case even without the recordings, we conclude that the defendant has not shown that there was a reasonable probability that "but for" his counsel's failure to raise the organized crime issue, "he would not have pleaded guilty and would have insisted on going to trial." Clarke, 460 Mass. at 47 (quotation omitted).

Conclusion. In sum, the defendant has not demonstrated that the judge abused his discretion or committed other error of law in denying the defendant's motion.

Order denying motion for new trial affirmed.

      In his motion, the defendant also claimed that the Commonwealth failed to disclose exculpatory evidence. The defendant does not press this argument on appeal.

      Our factual recitation is drawn principally from the findings the judge made and the lengthy affidavit that the Commonwealth submitted in support of its application for a warrant to obtain the recordings at issue. The procedural history of the case is taken from the docket, the relevant rulings, and the transcript of the change of plea hearing.

      A different third party, Shawn Audette (the father of the defendant's goddaughter), told police in 2002 that the defendant had admitted to the murder. Meanwhile, the defendant's girl friend both sought to implicate Audette in the murder and provided an alibi for the defendant.

      According to the testimony of the detective at the evidentiary hearing on the motion to suppress-whom the judge appeared to credit in all respects-the Heberts learned that the defendant was traveling out of State and feared losing the opportunity to record him. They tried to contact the detective to discuss this with him but were unable to reach him until the next day.

      Although the police did obtain a warrant in the case before us, one is not required by the statutory exception on which the Commonwealth relies. Compare Commonwealth v. Blood, 400 Mass. 61, 70-77 (1987) (in some circumstances, warrant is required by Constitution). In his appeal, the defendant makes only statutory arguments with respect to the warrant requirement, not constitutional ones.

      Those cases applied the same nominal standards first articulated in Thorpe, supra, but they also infused increased rigor into the analysis. This is especially true as to the level of proof required regarding the organized nature of the criminal enterprise being investigated. See, e.g., Tavares, 459 Mass. at 302 (concluding that the Commonwealth had made an inadequate showing that the gang members being investigated were sufficiently organized and disciplined to constitute "an organized criminal enterprise").

      The defendant additionally argues that there was an insufficient showing that the 2002 murder was motivated by pecuniary gain. While there was some evidence in the record that the defendant stabbed the victim to death "because it gets him off," an eyewitness observed the killer rifle through the victim's pockets after the stabbing. The fact that the defendant may have taken pleasure in the killing does not negate the connection between it and pecuniary motives.

      The defendant's scheme of robbing Guatemalans was apparently not new, as the police had evidence that he had stabbed and robbed a Guatemalan male approximately two weeks before the 2002 murder.

      That case-which was issued the same day as Thorpe-involved allegations that two local officials had solicited illicit campaign contributions from a contractor. Jarabek, 384 Mass. at 294-295. A Superior Court judge allowed the defendants' motion to suppress based on his finding that the police had made no showing of "a continuing conspiracy," but only of "a scheme by two municipal officials to extort a kickback from a single contractor." Id. at 296. The Supreme Judicial Court deferred to that finding as not clearly erroneous. Ibid.

      Two examples will suffice. First, Thorpe itself involved the theft and sale of a police promotional examination. 384 Mass. at 272. The court held that the approval of the wiretap at issue there met the newly articulated standard regarding a required connection between the offense under investigation and "organized crime." Id. at 281. The court reached that conclusion even though the evidence of such a connection was far from extensive. The defendant whose conversation had been recorded had previously indicated that the test "was available to him through an organization headed by a woman." Ibid. Based on this, the court concluded both that the defendant was not acting alone and that, because police examinations presumably "are strictly confidential and not readily available, we may infer that a certain amount of discipline and organization would be required to acquire and supply the examinations illicitly." Ibid.
      Second, Commonwealth v. Lykus, 406 Mass. 135 (1989), involved the investigation of a kidnapping in which the victim was killed. The defendant argued that the police had undertaken the electronic surveillance without any showing that the crimes had been carried out by an organized crime enterprise. Id. at 142 n.10. The court rejected that argument, id. at 142-143, even though, as in Thorpe, the support for a connection between the kidnapping and organized crime was relatively thin. Specifically, that evidence was as follows: the fact that the ransom notes referred to the perpetrator(s) as "we," the fact that one of the ransom notes indicated that the perpetrator(s) learned that the family of the victim had contacted the police (from the which the court concluded that it reasonably could be inferred that the group had to be organized), and that "the nature of the crime ... len[t] itself to inferences of discipline and organization." Id. at 142.

      It bears noting that in denying the motion to suppress, the judge briefly addressed the organized crime issue even though the defendant had not raised it. His conclusion that the Commonwealth had demonstrated a sufficient nexus to organized crime is not inconsistent with the case law of that era.

      In conducting our analysis of prejudice, we have assumed two things in the defendant's favor. One is that if the police wiretap were excluded, the defendant's confession to the police could have been excluded as the fruit of the poisonous tree (an issue that the defendant does not address on appeal). The other is that the recording that the Heberts made on their own also would be excluded. Contrary to the defendant's assertions, the judge did not rule on the admissibility of that recording; instead, he assumed its inadmissibility arguendo as part of his analysis of whether the subsequent recordings could be used. In fact, the judge's memorandum of decision points out that some argument could be made that there was insufficient State action to warrant suppression of the Heberts' own recording. Compare Commonwealth v. Barboza, 54 Mass. App. Ct. 99, 103-105 (2002) (secretly recorded telephone conversations made by a private party without police knowledge were admissible, although additional recordings made after the police were informed were not).

      As noted, there was also a third individual to whom the defendant had acknowledged his guilt. See note 3, supra.

      Nothing in the record suggests that the Heberts had any involvement in the 2002 stabbing.

      There are indications in the record that the victim was stabbed twenty to thirty times and his throat was slit.


text:
    CHUNRONG QIN v. PEIKANG LIU.
    17-P-302
    Appeals Court of Massachusetts.
    Entered: March 1, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Chunrong Qin (wife), appeals from a judgment of the Probate and Family Court dismissing her contempt complaint against the defendant, Peikang Liu (husband), for nonpayment of child support. The complaint was dismissed by the judge sua sponte for lack of personal jurisdiction over the husband, a resident of South Carolina. Because we conclude that the court had jurisdiction over the husband under the Uniform Interstate Family Support Act, G. L. c. 209D, § 2-201(2), as then in effect, see St. 1995, c. 5, § 87, we reverse.

Background. The parties were divorced in New Hampshire in 2012. The wife was awarded physical custody of their two children and the husband was ordered to pay $800 per month in child support. Thereafter, the husband stopped paying child support and disappeared. The wife moved to Massachusetts with the children.

After locating the husband in South Carolina, the wife commenced an action in the Probate and Family Court to enforce the New Hampshire judgment in Massachusetts. She filed a subsequent complaint for contempt in the Massachusetts action for failure to pay child support and medical expenses. The husband was served with the complaint for contempt in South Carolina.

Although the husband did not appear in Massachusetts, he negotiated with counsel for the wife for approximately eighteen months in an effort to resolve the case. During that time he assented to the wife's motions to continue the case "to work out an agreement and ... avoid further litigation." When the negotiations failed, a hearing was scheduled. Prior to the contempt hearing, the husband wrote a letter to the judge setting forth his position. He acknowledged his child support obligation, but explained that he was in arrears due to unanticipated financial difficulty.

On April 8, 2016, the judge dismissed the complaint sua sponte for lack of personal jurisdiction over the husband. The dismissal was without prejudice, and the judge gave the wife an opportunity to secure the husband's waiver of personal jurisdiction. The wife did not obtain the waiver, but filed a motion for relief from judgment on May 5, 2016. The judge denied the motion, reasoning that "the court does not find that the [husband] voluntarily submitted himself to [Massachusetts] for personal jurisdiction." This appeal followed.

Discussion. We review the question of personal jurisdiction de novo. See Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 533 (1997). "In order for a court to exercise personal jurisdiction over a defendant, the assertion of jurisdiction must be both authorized by statute and consistent with due process." I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 561 (2013). The husband was served in South Carolina on July 25, 2014. At that time, the Uniform Interstate Family Support Act provided that

"[i]n a proceeding to ... enforce ... a support order ... a tribunal of the commonwealth may exercise personal jurisdiction over a nonresident individual ... if ... the individual submits to the jurisdiction of the commonwealth by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction."

G. L. c. 209D, § 2-201(2), inserted by St. 1995, c. 5, § 87. Here, the husband did not submit to jurisdiction by explicit consent. Nor did he enter a general appearance in the case. The wife contends, however, that the husband's November, 2015, letter to the judge was a responsive document in which he effectively waived any jurisdictional argument by failing to raise it. For the reasons that follow, we agree.

The husband's letter referenced the docket number of the contempt action and was addressed to the judge. In the body of the letter, the husband acknowledged his child support delinquency and stated his intention to pay the arrearage. The husband claimed that "[t]he reason [he] did not pay the child support for a few months [was] that [he] was unemployed without any income and insurance." According to the husband, his financial difficulties were related to poor health and two automobile accidents. It is clear from the letter's content that the husband wanted the judge to consider it in response to the wife's contempt complaint. Indeed, the husband stated, "I understand that [the statements in the letter are] made for use as evidence in court and [are] subject to penalty for perjury." We conclude, therefore, that the letter was a responsive document within the meaning of G. L. c. 209D, § 2-201(2).

We turn next to the question of waiver. A personal jurisdiction defense "may be waived by conduct, express submission, or extended inaction." Lamarche v. Lussier, 65 Mass. App, Ct. 887, 889 (2006). "The threshold question in these cases is whether the defendant brought the jurisdictional defense to the attention of the court before further proceedings had gotten underway." Id. at 890. Here, there was no reference to a jurisdictional defense, even under a liberal construction of the husband's pro se pleadings. See Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983). Nothing in the record indicates that the husband challenged the court's jurisdiction at any time. Ultimately, when the husband communicated directly with the judge in advance of the contempt hearing, he asserted equitable defenses, but no jurisdictional challenge. Indeed, he asked to participate in the contempt hearing by telephone. In these circumstances we conclude that the husband waived the jurisdictional defense by failing to raise it in his responsive document. See G. L. c. 209D, § 2-201(2). Accordingly, the sua sponte dismissal for lack of personal jurisdiction was error.

Judgment reversed.

      This provision of the statute has since been amended, see G. L. c. 209D, § 2-201(a)(2), as amended by St. 2016, c. 53, § 1. Our result would not change under the amended statute.