text:
    COMMONWEALTH v. Juan RODRIGUEZ.
    17-P-407
    Appeals Court of Massachusetts.
    Entered: May 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial, the defendant was convicted of two counts of aggravated rape and abuse of a child under the age of sixteen, three counts of indecent assault and battery on a child under the age of fourteen, and dissemination of matter harmful to minors. On appeal he argues that the judge erred in allowing the victim to review prior written statements while she was testifying, that the evidence was insufficient to support the dissemination conviction, that there was cumulative first complaint testimony, and that the judge erred in admitting evidence of a prior bad act. We affirm.

1. Use of prior written statements. The victim first disclosed the sexual assaults in a Facebook message exchange she had with a friend. While the victim was on the stand, the Commonwealth had her look at the messages and then sought to admit them in evidence as a past recollection recorded. Upon objection, the judge ruled that the messages could "only [be] admitted as to [the victim's] first complaint." In so ruling, the judge explained: "[F]irst complaint evidence is not admitted substantively.... [I]f [the victim] said something in [the messages] ... that is something different than or other than what she is testifying to as she is on the stand, then that can't substitute for her testimony." Limiting the use of the messages to this purpose, the judge allowed the Commonwealth to lay a foundation as to the authenticity of the victim's half of the messages. After the first complaint witness later authenticated her portion of the messages, the judge admitted them in evidence.

The defendant does not contest that the messages themselves were properly admitted as first complaint evidence. Nonetheless, he argues that the judge abused her discretion in allowing the victim to view the messages without first requiring the Commonwealth to establish that her memory was exhausted. This created the risk, he says, that the victim simply adopted her prior statements from the messages, rather than testifying from her present memory.

We discern no abuse of discretion, as the judge properly allowed the victim to view the messages to authenticate her half of them. Written communications disclosing sexual abuse can serve as first complaint evidence. See Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008). But before a document is admitted in evidence, the judge must determine that "there is evidence sufficient, if believed, to convince the [fact finder] by a preponderance of the evidence that the item in question is what the proponent claims it to be." Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586 (2017), quoting from Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). The judge did not err in allowing the Commonwealth to lay a foundation for this purpose.

Furthermore, even assuming error in the manner in which the Commonwealth used the messages, the defendant suffered no prejudice. Again, the judge expressly stated that she would admit the messages only as first complaint evidence, not as substantive evidence. Despite this ruling, the defendant argues that the judge must have considered the messages substantively because, without them, the evidence was insufficient to prove the victim's age at the time of the offenses. We disagree. The victim testified that she was born in 2000 and stated the month and day. Other witnesses testified that the victim reported the assaults to the police and underwent a medical examination on February 26, 2014, which was after the final offense occurred, but before her fourteenth birthday. She was therefore under the age of fourteen at the time of the final offense, which establishes the age element of each of the statutes under which the defendant was convicted.

2. Dissemination of matter harmful to minors. The defendant challenges his dissemination conviction on the basis that the videos he showed to the victim do not qualify as matter that is harmful to minors. Because the defendant did not move for a required finding of not guilty on this count, our review is limited to determining whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Bell, 455 Mass. 408, 411 (2009).

"[M]atter is harmful to minors if it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors." G. L. c. 272, § 31, as amended by St. 1982, c. 603, § 6. Descriptive testimony can be sufficient to prove that matter is harmful to minors, even where the matter itself is not admitted in evidence. See Ferrari v. Commonwealth, 448 Mass. 163, 168-169 (2007).

Here, the victim testified that on two separate occasions the defendant showed her "porn" videos on a computer. She specifically described the videos as depicting "[w]omen and men naked ... [h]aving sex" and "naked" "[p]eople having sex." Viewing this testimony in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we conclude that it was sufficient to prove that the matter was harmful. This case is unlike Commonwealth v. Militello, 66 Mass. App. Ct. 325, 332 (2006), on which the defendant relies, where the testimony "indicated no more than that [the minors] saw photographs of naked women." Instead, this case is more like Ferrari, 448 Mass. at 168-169, where the court concluded that the Commonwealth had presented sufficient evidence for a dissemination conviction based on testimony from the victim that the defendant showed her "porn" videotapes depicting nudity and sexual conduct.

We also reject the defendant's argument that the Commonwealth had to put forth evidence of prevailing standards in the community. Although standards may "vary somewhat from county to county throughout the Commonwealth," there is "a baseline, perhaps defined by the standards prevailing in the county with the most permissive views on the subject." Commonwealth v. Sullivan, 55 Mass. App. Ct. 775, 781 (2002). The victim's testimony was sufficient to establish that the videos at issue here fell below that baseline, as "no reasonable and disinterested observer anywhere in the Commonwealth would think" that videos of naked men and women engaging in sexual intercourse are "suitable for display to children." Ibid.

3. First complaint testimony. The victim testified that, after telling her friend about the sexual assaults via Facebook message, she took her friend's advice and disclosed the assaults to her mother. The defendant argues that this testimony violated the first complaint doctrine. Because the defendant did not object, we review any error to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Roby, 462 Mass. 398, 409-410 (2012).

In sexual assault cases, the first complaint doctrine permits "the recipient of a complainant's first complaint of an alleged sexual assault [to] testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint." Commonwealth v. King, 445 Mass. 217, 218-219 (2005). "The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time." Id. at 219. The complainant may not, however, testify that she disclosed the assault to anyone other than the first complaint witness, unless the testimony is admissible for some other purpose. See Commonwealth v. Aviles, 461 Mass. 60, 68-69 (2011).

Here, it is undisputed that the recipient of the first complaint was the victim's friend. We therefore agree with the defendant that the victim's testimony about her later disclosure to her mother violated the first complaint doctrine, absent a showing that it was admissible for another purpose. But we do not believe that the testimony resulted in a substantial risk of a miscarriage of justice. "[T]here was no 'piling on' of complaint witnesses," and the testimony "was so lacking in detail as to be virtually insignificant." Commonwealth v. Murungu, 450 Mass. 441, 448 (2008). See King, 445 Mass. at 245. Moreover, "[i]n a jury-waived trial, we presume that the judge was not affected, as a jury might be, by" testimony about a second complaint. Murungu, 450 Mass. at 448.

4. Prior bad act. The victim testified, without objection, that the defendant forced her to "suck his penis." The defendant argues that this was inadmissible evidence of a prior bad act. To the contrary, the testimony concerned charged conduct: the bill of particulars states, as the basis for count three (aggravated rape and abuse of a child under the age of sixteen), that "the defendant forced the victim to suck his penis." And in any event, no substantial risk of a miscarriage of justice occurred because we presume that the judge did not consider any evidence of uncharged conduct as indicative of the defendant's bad character or his propensity to commit the crimes charged. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 257 (2006), quoting from Commonwealth v. Milo M., 433 Mass. 149, 152 (2001) ("[I]t is presumed that the judge as trier of fact applies [the] correct legal principles").

Judgments affirmed.

      As the parties agree that the defendant preserved his objection, our review is for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

      At the close of the Commonwealth's case, the judge allowed the Commonwealth's motion to dismiss this count.


source: Caselaw Access Project

license: Public Domain

text:
    Edward G. WRIGHT v. DEPARTMENT OF CORRECTION & others.
    17-P-749
    Appeals Court of Massachusetts.
    Entered: May 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Osvaldo Vidal, Shelley Williams, and Debbie Leabman.

   The plaintiff, Edward G. Wright, appeals from the judgment dismissing his amended verified complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Because Wright's complaint sets forth plausible allegations warranting relief under 42 U.S.C. § 1983, we reverse in part and affirm in part.

Background. In seeking to dispose of Wright's lawsuit, the defendants filed a motion to dismiss or, in the alternative, for summary judgment. The defendants supplemented their motion with the affidavit of defendant Shelley Williams, the operations captain of the Souza Baranowski Correctional Center (SBCC) mail room. In her affidavit, Williams responded to some of Wright's factual allegations and explained some of the defendants' decisions. The motion judge, however, treated the motion as a motion to dismiss under rule 12(b)(6) ; accordingly, he properly did not consider Williams's affidavit, and neither do we. We therefore recite the facts as alleged in Wright's complaint, which must be taken as true for the purpose of evaluating the motion to dismiss. See Edwards v. Commonwealth, 477 Mass. 254, 260 (2017).

Wright is an inmate at SBCC, a facility of the defendant Department of Correction (department). On December 21, 2015, Wright's wife sent him eighteen photographs of herself dressed in a Santa hat and a thong bikini, with plastic red and green cover-ups placed over her areolas. The next day defendant Debbie Leabman, an SBCC mail room officer, sent Wright a contraband notice stating that the photographs contained sexually explicit material. Wright requested to view the photographs to determine whether to appeal their being withheld.

On January 11, 2016, Williams met with Wright. Williams told Wright he could have twelve of the eighteen photographs, but he could not have the other six. Wright agreed that two of the six photographs were sexually explicit, but pressed Williams on why he was not able to have the other four. When it was clear to Wright that he would not be allowed to have the four contested photographs, he informed Williams of his intent to appeal her decision. Williams said, "In that case, if you are not getting rid of them and are appealing, then you're not getting any of them."

Wright sent defendant Osvaldo Vidal, the SBCC superintendent, a written appeal of Williams's decision, claiming that he was being coerced to give up his rights under the First Amendment to the United States Constitution. Wright was ultimately allowed to have fourteen of the eighteen photographs. Four were withheld: the two that Wright conceded were sexually explicit, and two that he contested.

On February 1, 2016, Wright received a contraband notice disapproving of a news article regarding a judge granting a new trial for George Perrot, which a friend had sent him. On February 6 and April 5, 2016, Wright received contraband notices disapproving of two sets of home-printed color photographs. Wright appealed the withholding of these materials to Vidal but never received a reply.

In his complaint, Wright sought injunctive relief against the defendants for their continued withholding of the two contested photographs of his wife and the other papers, and a declaration that he had a First Amendment right to possess these materials. Wright also alleged claims against the individual defendants under § 1983 for violation of his First Amendment rights; he also claimed intentional infliction of emotional distress. Lastly, Wright asserted a claim against Williams under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I (MCRA).

Discussion. To withstand a motion to dismiss, a plaintiff's complaint must set forth "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "We review the denial of a motion to dismiss de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Edwards, 477 Mass. at 260.

1. Section 1983. In general, to make out a valid claim under § 1983, a plaintiff must allege that some person has deprived him of a Federal constitutional right. See Brum v. Dartmouth, 428 Mass. 684, 698 (1999) ; Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 55 (1st Cir. 2006). Wright alleges that the defendants acted arbitrarily and capriciously, and in violation of his First Amendment rights, by denying him materials that he is permitted to receive under the department's inmate mail and property regulations.

Prisoners retain their First Amendment rights while incarcerated. See Turner v. Safley, 482 U.S. 78, 84 (1987) ("Prison walls do not form a barrier separating prison inmates from the protections of the Constitution"). "Regulations, policies, or practices that restrict the written correspondence or mail of prisoners no doubt implicate the First Amendment's guarantee of freedom of speech." Commonwealth v. Jessup, 471 Mass. 121, 129 (2015). To be valid, such regulations must be "reasonably related to legitimate penological interests." Id. at 130-131, quoting from Turner, supra at 89. But even if a regulation is valid, a plaintiff "could show it to be wholly irrational in its application." Moses v. Dennehy, 523 F. Supp. 2d 57, 61 (D. Mass. 2007), aff'd sub nom. Josselyn v. Dennehy, 333, Fed. App. 581 (1st Cir. 2009). See Turner, supra at 89-90 (prison regulation cannot withstand constitutional scrutiny if "the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational").

We conclude that Wright asserted a plausible claim that he is entitled to relief. He alleges that the defendants arbitrarily and capriciously, and in Williams's case, vindictively, withheld materials from him. The defendants contend that the materials were all withheld in compliance with 103 Code Mass. Regs. § 481.15(2)(g) (2002), which is a constitutionally valid prison regulation. See Moses, supra at 63. Wright's claim, however, lies not with the constitutionality of the regulation, but rather with its arbitrary application as to him. "We agree that agency interpretations of their own regulations are entitled to deference. However, 'courts will not hesitate to overrule agency interpretations of rules when those interpretations are arbitrary, unreasonable, or inconsistent with the plain terms of the rule itself.' " Manor v. Superintendent, Mass. Correctional Inst., Cedar Junction, 416 Mass. 820, 824 (1994), quoting from Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478 (1976).

The defendants assert that the seizure of Wright's photographs was within their broad discretion as prison administrators. However, "[p]rison officials may not escape liability simply by declaring that deference is owed to their security determinations." Moses, supra at 61, quoting from Shaheed-Muhammad v. Dipaolo, 393 F. Supp. 2d 80, 104 (D. Mass. 2005). At the motion to dismiss stage, we are unable to give blanket deference to the defendants' exercise of discretion. It may well be that the defendants had valid reasons to withhold the challenged materials, but this is a question that must be resolved after further factual development.

2. Remaining claims. We agree with the department that it is not liable for monetary, declaratory, or injunctive relief under § 1983 or the MCRA. See Commonwealth v. ELM Med. Labs., Inc., 33 Mass. App. Ct. 71, 76-80 (1992) (Commonwealth and its agencies not subject to suit under MCRA); Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (State or State agency "cannot be sued directly in its own name regardless of the relief sought"); Poirier v. Massachusetts Dept. of Correction, 558 F.3d 92, 97 & n.6 (1st Cir. 2009) (department protected by sovereign immunity with respect to § 1983 claim for prospective injunctive relief).

We also agree that the MCRA claim against Williams was correctly dismissed. While Wright has alleged that Williams acted vindictively against him, he has not alleged that he was deprived on any rights through threats, intimidation, or coercion within the meaning of the MCRA. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994). Although Wright claims that Williams attempted to coerce him into giving up his appellate rights, he was not coerced; he proceeded to exercise those rights. Nor has Wright alleged the type of "extreme and outrageous" conduct necessary to make out a claim for intentional infliction of emotional distress. Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).

Finally, on the record before us, the defendants are not entitled to dismissal on the basis of qualified immunity. Wright alleges that the defendants randomly or maliciously withheld mail from him in violation of the department's regulations. Reasonable prison officials would have known that they could not do this. See Longval v. Commissioner of Correction, 448 Mass. 412, 418-419 (2007). If, upon further factual development, it appears that the defendants' contraband decisions complied with the department's regulations, or even presented a close question, then the defendants are free to revive their qualified immunity defense.

Conclusion. So much of the judgment as dismissed Wright's claims against the individual defendants under § 1983 is reversed. The remainder of the judgment is affirmed.

So ordered.

Reversed in part; affirmed in part.

      The plaintiff also appeals from the order denying his motion for reconsideration, for relief from judgment, or to alter or amend.

      The motion judge noted that sometime after Wright filed his amended verified complaint he was transferred to another correctional institution, effectively mooting his claims for injunctive and declaratory relief. However, Wright was transferred back to SBCC and has been there since January 1, 2017. Therefore, his claims for injunctive and declaratory relief are not moot.

      At oral argument, when asked what distinguished the two contested photographs of Wright's wife from the fourteen he was allowed to keep, counsel for the defendants responded that she was "not specifically sure." We cannot accept the defendants' suggestion that we should simply assume they properly applied the regulations.

      As noted at the outset, under rule 12(b)(6) we cannot consider the explanations given in Williams's affidavit, nor her factual assertion that certain of the contested materials were later returned to Wright (an assertion that he denied at oral argument).

      A plaintiff may obtain injunctive or declaratory relief against public officials acting in their official capacity. "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Graham, supra at 166.


text:
    COMMONWEALTH v. Luis CIRINO.
    17-P-762
    Appeals Court of Massachusetts.
    Entered: May 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury found the defendant, Luis Cirino, guilty of assault and battery (two counts), intimidation of a witness, and strangulation. On appeal, he contends that the admission of prior bad act evidence at his trial was reversible error. We affirm.

Discussion. "It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b) (2018). Relevant purposes include showing a common scheme or pattern of operation, the absence of accident or mistake, the defendant's intent or motive, see Helfant, supra at 224-225; Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), and to explain "the entire relationship" between the defendant and the victim, Commonwealth v. Young, 382 Mass. 448, 463 (1981).

" '[I]f relevant for some other purpose,' and if the probative value outweighs the risk of unfair prejudice, the judge may, in his discretion, admit evidence of a defendant's prior bad acts." Anestal, supra, quoting from Commonwealth v. McCowen, 458 Mass. 461, 478 (2010). "Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.' " McCowen, supra, quoting from Commonwealth v. Fordham, 417 Mass. 10, 23 (1994).

The defendant and the victim lived and worked together and were romantically involved. On the day of the incident, however, the defendant was not speaking to the victim. They were fighting on the way home from work when the defendant, who was driving, pushed the victim's face against the car window. He then parked the car and tried to pull the victim out by the hair. He called her "a no-good slut, dirty whore." As they wrestled on the ground beside the car, he grabbed the victim's telephone from her hands and put it in the trunk so she could not call 911. By the end of the incident the defendant had nearly torn all of the victim's clothing off of her body.

The challenged evidence concerned the defendant's relationship with the victim and prior altercations between them. The victim testified that their once happy relationship had deteriorated to the point that the defendant regularly called her "whore" and "slut." If she greeted their dogs in the morning before saying good morning to the defendant, he would refuse to speak to her for the rest of the day. After one prior argument inside a parked car, the defendant tried to physically remove her and pushed her head against the side of the car. In another argument that took place at their home, the defendant pushed some items off a home entertainment center, smashing them on the floor, and then smashed the victim's telephone in the driveway. On this occasion, she tore at his clothes and ripped his shirt.

The judge properly exercised her discretion to admit testimony about the conduct described above, and to exclude other conduct. Evidence of prior abuse or violence in a relationship may be relevant for several permissible purposes. See Commonwealth v. Jordan, 397 Mass. 489, 492 (1986) ("Evidence of the prior beatings and mistreatment of the victim was probative of the defendant's mental state and his intent at the time of the offenses"); Commonwealth v. Hunter, 416 Mass. 831, 837 (1994) (evidence of hostile relationship with victim relevant to defendant's motive); Commonwealth v. Calcagno, 31 Mass. App. Ct. 25, 28 (1991) (evidence of prior sexual abuse of victim relevant to "put the single instance of abuse charged into a comprehensible context"). Cf. Commonwealth v. Eugene, 438 Mass. 343, 348 (2003) (evidence that murder victim had obtained abuse prevention order against defendant admissible "to demonstrate the existence of a hostile relationship, as the relationship may be relevant to the defendant's motive to kill").

All of the prior bad act evidence admitted concerned the defendant's relationship with the victim, gave context to the incident for which he was charged, was probative of his intent, and showed that his actions were part of a larger pattern. We discern no error or abuse of discretion in the admission of the individual bad acts or in the judge's determination that their combined admission did not constitute "piling on" that results in the risk of unfair prejudice outweighing probative value. See Commonwealth v. Mills, 47 Mass. App. Ct. 500, 505 (1999) (noting dangers of "piled on" prior bad acts, even when acts are offered for legitimate purpose). In addition, the judge gave a powerful limiting instruction regarding how the jury could use the evidence, both at the time that the evidence was offered and during the final charge.

Judgments affirmed.

      The defendant was tried on five counts of an indictment alleging, in counts one and two, assault and battery by means of a dangerous weapon ("shod foot" and "the ground," respectively) on a pregnant person, G. L. c. 265, § 15A(c )(ii) ; in count three, intimidation of a witness, G. L. c. 268, § 13B ; in count four, assault and battery on a pregnant person, G. L. c. 265, § 13A(b )(ii) ; and, in count five, strangulation on a pregnant person, G. L. c. 265, § 15D(c )(ii). The assault and battery verdicts were returned as lesser-included offenses of counts two and four. The strangulation verdict was returned as a lesser-included offense of count five. The jury acquitted the defendant of count one.

      The victim was not permitted to testify that he would also hurt the dogs.

      Before the jury were empanelled, the judge decided the Commonwealth's motion in limine to admit prior bad act evidence. She "weighed whether the evidence the Commonwealth seeks to admit is probative and whether the probative value is outweighed by the danger of unfair prejudice." She admitted the evidence described above, but excluded one incident, in which the defendant slammed the victim against a wall and put her head through a glass window, as "being cumulative and prejudicial." She also excluded evidence that he hurt the dogs as "unduly prejudicial."


text:
    INGEM, INC. v. DIAL INFORMATION SERVICES, INC. & another.
    17-P-805
    Appeals Court of Massachusetts.
    Entered: May 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Online Buddies, Inc.

   The plaintiff appeals from the dismissal of its first amended complaint (complaint) pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and the denial of its motion for leave to file a second amended complaint. The plaintiff argues: first, that the motion to dismiss should have been denied because the plaintiff's claims were not barred by the statute of limitations; and second, that the plaintiff should have been allowed to amend the complaint by adding a plaintiff. We affirm.

We briefly summarize the facts as laid out in the complaint. The defendant Dial Information Services, Inc. (Dial) hired the plaintiff to create and develop a social networking Web site. The parties entered into a verbal agreement that the plaintiff would develop the Web site "at cost" and in return would receive twenty percent of the revenue from the Web site. This agreement was memorialized in an "Agreement/Letter of Understanding" created and signed by the plaintiff but never signed by Dial.

In August of 2001, after the Web site was complete, Dial terminated its relationship with the plaintiff and paid the plaintiff $200,000 for the costs the plaintiff incurred. From 2001 to 2006, the plaintiff attempted to obtain payment from Dial in accordance with the revenue sharing agreement it had entered into with Dial. In December of 2006, Dial advised the plaintiff that the Web site was operational but not profitable. Because Dial was not a public company, the plaintiff could not confirm that information. Sometime in 2012, however, the plaintiff learned that the Web site had, in fact, been profitable in 2006.

The plaintiff brought suit against Dial in February of 2016, alleging breach of contract, unjust enrichment, breach of fiduciary duty, and unfair trade practices. The complaint, filed in April, 2016, contained the same allegations. Upon Dial's motion, the judge dismissed the plaintiff's complaint as time barred. On appeal, the plaintiff claims that the judge erred in this determination. We review the allowance of a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6) de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We address each count of the plaintiff's complaint in turn.

The statute of limitations for breach of contract is six years. G. L. c. 260, § 2. "A cause of action for breach of contract accrues at the time of the breach. This rule is applicable even if the amount of damages is unknown at the time of the breach and even though the damages may not be sustained until later." DiGregorio v. Commonwealth, 10 Mass. App. Ct. 861, 862 (1980) (citation omitted). Since 2001, Dial has refused to pay the plaintiff any portion of the revenue generated by the Web site; in 2006, Dial made that refusal explicitly clear. Even though the plaintiff did not know what damages, if any, it was entitled to, it reasonably knew for at least ten years before filing suit that Dial was refusing to pay; yet it did not file a complaint during that time. This claim is, therefore, time barred.

The statute of limitations for unjust enrichment based in a tort claim and for breach of fiduciary duty is three years. G. L. c. 260, § 2A. Assuming (without deciding) that a fiduciary relationship existed between the parties, when a party "fraudulently conceals a cause of action" from the party to which it owes a fiduciary duty, the statute of limitations begins to run once the owed party has actual knowledge of the breach. Demoulas v. Demoulas Super Mkts, Inc., 424 Mass. 501, 519-521 (1997). The plaintiff had actual knowledge of the claimed breach no later than 2012 when it learned that the Web site was profitable but that Dial was not sharing any portion of those profits with the plaintiff. At the very latest, the plaintiff knew in 2012 that Dial was unjustly enriched by the plaintiff's work product. However, the plaintiff did not bring this suit until 2016, four years later. These claims are also, therefore, time barred.

The statute of limitations for a violation of G. L. c. 93A, § 11, is four years. G. L. c. 260, § 5A. The plaintiff argues that Dial's termination of the agreement in 2001 and misrepresentation of its profitability from 2001 to 2006 were unfair and deceptive acts. These acts took place more than four years before the plaintiff filed its complaint, so this claim, like the others, is time barred.

Because all of the claims are time barred and the complaint was properly dismissed, the judge properly denied the motion to amend the complaint by adding a plaintiff.

Corrected judgment of dismissal affirmed.

Order denying motion to file second amended complaint affirmed.

      We accept the allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008).

      The principals of Dial formed Online Buddies, Inc. to operate the Web site. For ease, we refer to both entities as Dial.

      Dial's request for appellate attorney's fees is denied.


text:
    Robert C. SACCO, special administrator, v. Donna M. CIRCOSTA.
    17-P-251
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Helyn M. Carlon.

   The special administrator of the estate of Helyn M. Carlon (administrator) appeals from portions of a judgment issued by a judge of the Probate and Family Court finding that the administrator failed to sustain his burden of proving damages on his claims of conversion and what the judge construed as a claim of unjust enrichment related to the contents of certain safe deposit boxes, and dismissing those claims. The administrator contends that the judge erred in concluding that the evidence of damages was too remote or speculative. We vacate the portions of the judgment related to those claims and remand the matter for further proceedings consistent with this memorandum and order.

Background. We recite only the facts relevant to this narrow appeal. Prior to their deaths, Helyn Carlon (Helyn) and her husband, Steven Carlon Sr. (Steven Sr.), maintained a system of bank accounts, safe deposit boxes, and hidden cash for the purpose of bequeathing their assets to their four children without paying inheritance taxes. Steven Sr. meticulously recorded the accounting for that system until his health declined in 2006. Over the next four years, Helyn assumed the role of accounting for the family's finances. However, Helyn's maintenance of the various financial records was unorganized and irregular.

As part of her estate plan, Helyn jointly owned two safe deposit boxes. The first safe deposit box was kept at Berkshire Bank and was jointly owned by Helyn; Helyn's daughter, Donna Circosta (Donna); and one of Helyn's sons, Kevin Carlon (Kevin). The second safe deposit box was kept at TD Banknorth and was also jointly owned by Helyn, Donna, and Kevin. Financial records from 2004 and 2006 reflect that both safe deposit boxes contained large amounts of cash.

In May, 2010, Helyn informed Kevin of her financial records and the locations of the family's financial assets. At that time, Helyn showed Kevin the contents of the safe deposit box kept at TD Banknorth. Kevin could not state the exact amount of money inside that safe deposit box, but testified that the twelve-by-twelve-by-six-inch inch box was "filled with cash consisting of old $100 bills." Helyn died a few months later. Following her death, a family dispute arose when each safe deposit box was discovered to be empty.

In addition to other claims, the administrator brought both an equitable and a legal claim against Donna in the Probate and Family Court alleging that Donna improperly removed cash from the safe deposit boxes. At trial, evidence showed that Donna accessed the TD Banknorth safe deposit box in the months before Helyn's death and multiple times in the days thereafter. The judge did not credit Donna's testimony that "there was nothing of value in either [safe deposit] box ... when she initially accessed them after her mother's death." The judge also found it "highly unlikely that Helyn would withdraw all the cash from these safe deposit boxes during the last months of her life." However, the judge ruled in favor of Donna on the administrator's claims related to the safe deposit boxes. Specifically, the judge found the administrator failed to meet his burden of proving "damages" as it related to the assets contained within either safe deposit box that Donna "may have removed." The administrator appeals from the portions of the judgment dismissing those claims.

Discussion. We note that the administrator brought a claim of "constructive trust" regarding the contents of the safe deposit boxes. Before proceeding with our review, we clarify that a constructive trust is an equitable remedy, not an independent cause of action. See Barry v. Covich, 332 Mass. 338, 342-343 (1955). As a remedial device, a constructive trust has no elements, but is instead a "flexible tool of equity designed to prevent unjust enrichment resulting from fraud, a violation of a fiduciary duty or confidential relationship, mistake, or other circumstances." Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 246 (2007) (quotation omitted). We interpret the administrator's claim, as did the judge below, to be a claim of unjust enrichment seeking the remedy of a constructive trust. See Powers, Inc. v. Wayside, Inc. of Falmouth, 343 Mass. 686, 694-695 (1962). "Unjust enrichment is defined as retention of money or property of another against the fundamental principles of justice or equity and good conscience." Santagate v. Tower, 64 Mass. App. Ct. 324, 329-330 (2005) (quotation omitted).

The administrator's burden was to prove by a preponderance of the evidence that Donna was "unjustly enriched by the acquisition of title to identifiable property at the expense of the claimant or in violation of the claimant's rights." Restatement (Third) of Restitution and Unjust Enrichment § 55(1), at 296 (2011). See Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 643-644 (2013). Included within this burden is the obligation of the administrator to present evidence of the total or gross amount of the defendant's gain, or a reasonable approximation thereof. See Bonina v. Sheppard, 91 Mass. App. Ct. 622, 626-627 (2017), citing Dobbs, Law of Remedies § 4.1(4), at 566 (2d ed. 1993). However, if a plaintiff's evidence cannot lead to even a reasonable approximation, the claim of unjust enrichment is merely speculative and must fail as a matter of law. See Taylor Woodrow Blitman Constr. Corp. v. Southfield Gardens Co., 534 F. Supp. 340, 347 (D. Mass. 1982).

We cannot determine from the judge's decision whether he found, as Donna argues, that the administrator failed to prove that she took the cash from the safe deposit boxes, or whether the judge found, as the administrator argues, that Donna took the cash but that the evidence was too speculative to establish the amount taken. Furthermore, if the latter, we cannot determine whether the judge took into account all of the evidence offered at trial, which might allow him, after discounting evidence that he deems too remote or speculative, to come to some reasonable approximation of the amount of cash left in the safe deposit boxes at the time of Helyn's death. We therefore remand for further findings on these issues.

In remanding the matter, we acknowledge that "measuring restitution for unjust enrichment poses special difficulties and, as such, trial judges need considerable discretion to fashion appropriate remedies." Bonina v. Sheppard, 91 Mass. App. Ct. at 626 (quotation omitted). See Restatement (Third) of Restitution and Unjust Enrichment § 55(1) comments g, h (2011). If on remand the judge determines that the administrator met his burden at trial to prove that Donna was unjustly enriched by removing property from the safe deposit boxes, including a reasonable approximation of her gain, the judge may fashion an equitable remedy, such as restitution in the form of a constructive trust, weighing the equities "based on the specific circumstances of [the] case" using his sound discretion. Bakwin v. Mardirosian, 467 Mass. 631, 639 n.9 (2014).

The administrator also brought a claim of conversion against Donna under a similar theory of recovery. Conversion is a tort claim requiring proof of damages. See Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503, 507 (1985). "While the damages may not be determined by speculation or guess, an approximate result is permissible if the evidence shows the extent of damages to be a matter of just and reasonable inference." McKenna v. Begin, 5 Mass. App. Ct. 304, 311 (1977). "A wrongdoer may not complain that damages cannot be measured precisely where he alone is responsible for the harm." Ibid. For the same reasons as stated above, remand is required for the judge to clarify the basis for his resolution of this claim.

We vacate those portions of the judgment dismissing the administrator's claims based on unjust enrichment and conversion related to the contents of the safe deposit boxes, and remand the matter for further proceedings consistent with this memorandum and order. The judgment is otherwise affirmed.

So ordered.

Vacated in part; Affirmed in part.

      For clarity, we refer to members of the Carlon family by their first names.

      Ownership of this safe deposit box was an issue at trial because discovery of documents related to this box did not occur until after trial started. Testimony and records reflected that Donna had access to this box, but records were inconclusive whether she was a joint owner. The judge's finding that Donna was a joint owner is not clearly erroneous.

      A third safe deposit box was closed by Helyn two years prior to her death and is not at issue.

      The Probate and Family Court judge was designated as a justice of the Superior Court so that all claims could be heard together.

      While there is no burden shifting, once a plaintiff has provided sufficient evidence for a judge to determine a reasonable approximation of a defendant's gain, the defendant is then free to introduce evidence tending to show that the true extent of unjust enrichment is something less.

      We highlight certain evidence adduced at trial that may be helpful in the analysis. There was evidence that the TD Banknorth safe deposit box contained $253,280 as of December of 2004. Kevin testified to the amount of cash contained within the TD Banknorth safe deposit box in May of 2010 not in numerical terms, but in descriptive terms. Bank records reflected that Helyn accessed the box only three times between the time Kevin saw the contents of that box and her death. In July, 2010, Helyn also withdrew $80,000 in cash (which had not been located at the time of trial) from a bank account, and five days later, Helyn accessed the TD Banknorth box. All parties presented evidence detailing Helyn's account withdrawals and spending habits over the years and in the period of time directly preceding her death. Lastly, the judge deemed Donna's testimony about the safe deposit boxes being empty not credible.

      When reviewing the adequacy of an equitable claim, "it is immaterial that [the plaintiff] may have also a plain, adequate, and complete remedy at law" under the same theory of recovery. Boston v. Santosuosso, 298 Mass. 175, 180 (1937). However, if a party prevails on both legal and equitable claims based on the same or similar facts, he or she is not eligible to receive double redress. See Zelby Holdings, Inc. v. VideogeniX, Inc., 92 Mass. App. Ct. 86, 93 (2017).

      Kevin was a plaintiff in the trial court, but he did not file a notice of appeal and is not a party to this appeal. Our decision does not disturb the portions of the judgment dismissing Kevin's independent claims of unjust enrichment or conversion. See Mass.R.A.P. 3(b), (c), as amended, 430 Mass. 1602 (1999). See also Group Ins. Commn. v. Labor Relations Commn., 381 Mass. 199, 206-207 (1980).

      The administrator's request for attorney's fees in connection with the appeal is denied.


text:
    Robert R. GAMBEE v. WELLS FARGO BANK, N.A., & another.
    17-P-1121
    Appeals Court of Massachusetts.
    Entered: May 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      HSBC Bank, USA, N.A.

   The plaintiff, Robert R. Gambee, appeals from a judgment that dismissed, on the defendant banks' joint motion pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), his complaint for declaratory relief. This is the latest of several actions by which Gambee has sought to set aside the 2010 foreclosure of his Nantucket property. Gambee asserts that the foreclosure was defective in various ways. The two earlier actions have both resulted in a final judgment against Gambee. Here, the judge ruled that Gambee's claims arise from the same factual nexus, and are at least functionally identical to, those Gambee raised in the earlier actions. As such, the judge ruled Gambee's present action is barred by res judicata. After review we see no error.

We review the judge's dismissal of the case de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). The doctrine of res judicata applies when "a valid, final judgment conclusive on the parties and their privies" has been entered, and it "bars further litigation of all matters that were or should have been adjudicated in the action." Heacock v. Heacock, 402 Mass. 21, 23 (1988). "Before precluding the party from relitigating an issue, 'a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.' " Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453, 457 (2006), quoting from Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). There is no question that the first and second elements are met here, so we limit our review to determining whether the identity of the cause of action in the present case is the same as the previous Gambee decisions. Specifically, we look to whether "it is derived from the same transaction or series of connected transactions." Saint Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393, 399 (1991).

Though not perfectly clear, Gambee raises several iterations of the same basic argument on appeal: the judge's invocation of res judicata was misguided in this action. Specifically, Gambee contends that his assertions, namely that the foreclosure sale was void because the seller lacked possession of the note and the mortgage, rely on newly discovered information that was unavailable to him at the time of his original challenge. He further asserts that the present action is distinct from Gambee I, where he asked the court to declare as void the assignment of his mortgage from Wells Fargo Bank, N.A. (Wells Fargo), to the entity that sold it due to noncompliance with certain formalities. Now, Gambee seeks a judicial declaration that the assignment from Wells Fargo to the selling entity never actually took place.

This appeal stems essentially from the same central set of facts as his previous actions, and there is nothing to support his assertion that his present argument is indeed based on newly discovered facts. Having thoroughly reviewed the record, we find Gambee's arguments to be unavailing and conclude, like the judge below, that his present complaint challenging the foreclosure sale was nearly identical to the claims he pressed in Gambee I. The judge properly found, therefore, that these claims were barred by res judicata.

Judgment affirmed.

      See Gambee vs. Wells Fargo Bank, N.A., Land Ct., No. 13 MISC. 477140 (KCL) (Nov. 5, 2013) (Gambee I); Gambee vs. Wells Fargo Bank, N.A., U.S. Dist. Ct., No. 13-CV-10753-GAO (D. Mass. Jan. 9, 2014), aff'd, No. 14-1164 (1st Cir. Aug. 5, 2014).

      While we need not reach the merits of this case, we note that our decision in U.S. Bank Natl. Assn. v. Bolling, 90 Mass. App. Ct. 154 (2016), is instructive on the substantive issues forwarded by Gambee.

      The premise for his particular argument regarding the foreclosure sale stemmed from a conversation Gambee had with an attorney at some point between the dismissal of Gambee I and the filing of the present action.


text:
    DISCOVER BANK v. James P. HAYES.
    17-P-1384
    Appeals Court of Massachusetts.
    Entered: May 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   James Hayes appeals from a decision and order of the Appellate Division of the District Court dismissing his appeal from an order denying his motion for relief from judgment. Discerning no error in the Appellate Division's conclusion that Hayes's appeal was not timely, we affirm.

The underlying District Court action was brought by Discover Bank (Discover) to recover an unpaid balance on Hayes's credit card account. Although we do not have Discover's complaint in the materials before us, the parties and the Appellate Division agree that Discover sought damages of $5,854.84 on Hayes's account. Discover propounded to Hayes requests for admission and interrogatories. Hayes responded to Discover's requests for admission, but not to its interrogatories. After forty-five days had passed, Discover served a final request for answers on Hayes, as required by Mass.R.Civ.P. 33(a)(3), as appearing in 436 Mass. 1401 (2002). We need not consider each party's speculation regarding the other's discovery behavior and motivation; it suffices to note that Hayes did not respond to Discover's final request within the additional time period specified in rule 33(a)(3).

Discover then filed a motion for entry of default judgment, see Mass.R.Civ.P. 33(a)(4), attaching to its motion, among other things, an affidavit attesting to Discover's compliance with the rule 33 procedures, a summary chart setting forth Discover's claimed damages, and a copy of a document titled "Account Summary." On November 2, 2015, default judgment entered in Discover's favor in the amount of $5,854.84 plus costs. A judgment dismissing Hayes's counterclaims entered on November 6, 2015.

Hayes did not notice a timely appeal from the judgments, see note 1, supra, but instead filed a motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). He did not specify in his motion under what provision of rule 60(b) he sought relief but, at hearing before a District Court judge, Hayes's counsel clarified that he was seeking relief under rule 60(b)(1), that is, for "mistake, inadvertence, surprise, or excusable neglect." In support of the motion, counsel represented that Hayes did not timely answer the interrogatories because "the interrogatories ... fell through the cracks."

We discern no error in the Appellate Division's dismissal of the appeal. Rule 4(a) of the District/Municipal Courts Rules for Appellate Division Appeal (Dist./Mun.Cts.R.App.Div. Appeal) provides that a notice of appeal "shall be filed ... within ten days after the date of the entry of the judgment in the case being appealed." The District Court docket shows that the order denying Hayes's motion for relief from judgment entered on January 14, 2016. The docket also reflects that Hayes filed his notice of appeal on January 26, 2016, two days outside the ten-day window permitted by rule 4(a). See Dist./Mun.Cts.R.App.Div. Appeal 14(a). Thus, the notice of appeal was not timely and the appeal was properly dismissed.

In any event we agree with the Appellate Division that the District Court judge did not abuse his discretion by concluding that Hayes's excuse for his failure to answer Discover's interrogatories-that they "fell through the cracks"-did not constitute an appropriate ground to set aside Hayes's default under either rule 60(b)(1) or Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974). See Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708-709 (2012). When a party asserts excusable neglect as a basis for relief from judgment, he has the burden of demonstrating "circumstances that are unique or extraordinary[, not] any kind of garden-variety oversight." Ibid., quoting from Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). Hayes failed to do so here.

Decision and order of Appellate Division dismissing appeal affirmed.

      Hayes also purportedly noticed an appeal to the Appellate Division from the underlying judgment. The Appellate Division concluded that that appeal was untimely and declined to consider it. Hayes does not challenge that conclusion here, and we deem the issue waived.

      Hayes's counsel also argued that the judgment itself was infirm because it had been entered without benefit of a contested assessment hearing to establish damages, impliedly (if not explicitly) suggesting that the judgment was void. See Mass.R.Civ.P. 60(b)(4). In light of our conclusion that the appeal was not timely, we need not reach that issue.

      There is no dispute here that the ten-day period applied to the appeal from the order denying the motion for relief from judgment.

      Even if the ten days began on January 15, 2016, the date written with the margin endorsement denying the motion, the notice of appeal was still filed one day late.

      Hayes's reliance on Dist./Mun.Cts.R.App.Div. Appeal 14(c) is misplaced. That rule provides that "[w]henever a party is required or permitted to do an act within a prescribed period after service upon ... him ... by mail, 3 days shall be added to the prescribed period." Here, however, pursuant to Dist./Mun.Cts.R.App.Div. Appeal 4(a), Hayes had ten days from entry of the order denying the motion to file his notice of appeal, not ten days from service upon him of the order. Therefore, rule 14(c) does not apply.


text:
    COMMONWEALTH v. Charles Justin AMADO.
    17-P-863
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial, a Superior Court judge found the defendant, Charles Justin Amado, guilty of conspiracy to commit murder. On appeal, the defendant contends that the evidence was insufficient to support the conviction and that the coconspirator statements introduced through Justin Bearce were improperly admitted. We affirm.

Discussion. To obtain the defendant's conviction, the Commonwealth was required to prove beyond a reasonable doubt that the defendant agreed with others to murder the victim and that he shared the intent to commit the crime. See Commonwealth v. Cantres, 405 Mass. 238, 244 (1989) ; Commonwealth v. Nee, 458 Mass. 174, 181 (2010). 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, 319 (1979).

The defendant's interview by the police and his testimony at the murder trial of the principal, Richard Forbes, were admitted in evidence in their entirety. Based on the defendant's own admissions, the evidence showed that he spoke frequently with Forbes and Bearce, usually at Bearce's house, about Forbes's plan to murder his father-in-law. Forbes asked the defendant to help, and he said he would. The plan that Forbes "mentioned most that he stuck with" was that Forbes would kill the victim while the defendant acted as a lookout on the path behind the victim's house; Bearce would provide an alibi for Forbes's wife (the victim's daughter). Forbes took the defendant to walk the path behind the victim's house, telling the defendant that the path was an "option" for entering or leaving the victim's home before or after the murder.

The defendant spoke with Chris Eid, "a big army guy," about Forbes's plan. Eid gave the defendant advice about "shooting [the victim] and getting rid of the body." Eid suggested that Forbes should use a silencer and said he could make one. Eid told the defendant, "[Y]ou should definitely ... get him out of there and get rid of [the body] no matter how you do it, ... bury him, burn him." The defendant, in turn, told Forbes not to leave the body at the murder scene. The defendant also advised Forbes that he should not shoot the victim, but should strangle him instead.

Three or four days after the murder, Forbes told the defendant that he had killed the victim. The police repeatedly asked the defendant if he knew who killed the victim, and the defendant repeatedly said he did not. According to the defendant's and Bearce's testimony, the defendant was present at Bearce's house after the murder when the defendant burned some evidence of the crime in a bonfire.

Although the defendant at various times professed that he was merely humoring Forbes, the judge was not required to credit his exculpatory gloss. In any event, his words and deeds, considered as a whole, readily permitted the inference that he had agreed to help commit the crime and shared the intent to make it happen. He told Forbes, "I got your back," accompanied Forbes to view the area around the victim's house, sought out and gave advice, and helped cover up the crime after it occurred. Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to support the conviction beyond a reasonable doubt.

The above discussion also demonstrates that the Commonwealth introduced sufficient, independent evidence to prove not just by a preponderance, but beyond a reasonable doubt, the existence of a conspiracy among the defendant, Forbes, and Bearce. Accordingly, the judge did not err in admitting Bearce's testimony concerning the out-of-court statements of the conspirators. See Commonwealth v. Winquist, 474 Mass. 517, 521 (2016) ; Mass. G. Evid. § 801(d)(2)(E) (2018).

Judgment affirmed.

      Bearce's testimony in this regard did not include any out-of-court declarations.


text:
    Paul CATALANO & others v. Patricia Ann HASSETT & another.
    17-P-1326
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Carter Catalano and Hilltop Creamery, Inc., doing business as Ice Cream Smuggler.

      Jody Hassett Sanchez.

   The plaintiffs, who leased premises owned by the defendants and operated a business known as Ice Cream Smuggler, appeal from a judgment dismissing their complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The plaintiffs allege that the defendants breached the lease by (1) refusing to honor the plaintiff's election to purchase the property, and (2) leasing the premises to a competitor. For the following reasons we affirm the judgment.

We review de novo the allowance of a motion to dismiss under rule 12(b)(6). See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "For purposes of such review, we accept[ ] as true the facts alleged in the plaintiff['s] complaint and exhibits attached thereto, and favorable inferences that reasonably can be drawn from them." Goodwin v. Lee Pub. Schs., 475 Mass. 280, 284 (2016). We need not accept as true "legal conclusions cast in the form of factual allegations." Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009). To survive a motion to dismiss, "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Iannacchino v. FordMotor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The plaintiffs first argue that the judge improperly decided the motion to dismiss without allowing the parties to conduct discovery. The argument fails. The allegations of the complaint, taken together with the documents attached thereto, provide all of the information necessary to determine that the plaintiffs' claims fail as a matter of law.

We also reject the plaintiffs' assertion that the electronic mail message (e-mail) sent by defendant Hassett to the plaintiffs on January 11, 2014, triggered the plaintiffs' right to purchase the property under paragraph twenty of the lease. That paragraph provides that if the defendants "elect to sell the property ... they shall first offer the property to" the plaintiffs. If the plaintiffs "elect to purchase the property, they must respond in writing within twenty-one days." The January 11, 2014, e-mail sent by Hassett to the plaintiffs addressed a range of topics concerning the property, including repairs and improvements to the premises, before stating that Hassett had "revisited the possible sale of the building to [the plaintiffs] with [her] financial advisors," observed that "[t]here are several factors that play into this," and concluded with the comment, "[s]o that you do not have to pay to have another unrealistic offer prepared professionally the figure I will need to have is $480,000." Contrary to the plaintiffs' claims, the January 11 e-mail did not constitute an offer or a firm intent to sell the premises; at most it expressed an interest in exploring discussions toward a possible sale.

Even were we to treat the January 11 e-mail as an offer to sell the premises within the meaning of paragraph twenty of the lease, the plaintiffs' response did not operate to exercise the option to purchase. The plaintiffs' response included a term sheet, setting forth a purchase price, a down payment, and an amount of mortgage financing to be provided by the defendants. The purchase price was more than twenty-five percent lower than the amount Hassett's e-mail had described as the amount she "would need to have." Though the complaint asserts that the plaintiffs had performed an appraisal of the property, nothing in the plaintiffs' response refers to an appraisal or, for that matter, to the provisions of paragraph twenty of the lease. The response did not state in any manner that it constituted an exercise of the right to purchase described in paragraph twenty of the lease; indeed, the term sheet began with language in bold type expressly disclaiming any such effect:

"This [t]erm [s]heet is not an offer or contract and is solely intended to set forth possible terms for the proposed transaction. It is not binding on either party and creates no legal rights duties or obligations, express or implied."

After sending that response, the plaintiffs took no further steps consistent with treating the communications as an exercise of the option until they filed their complaint in the present action. The motion judge properly dismissed the plaintiffs' claims for breach of contract and breach of the implied covenant of good faith and fair dealing.

We likewise discern no error in the motion judge's dismissal of the plaintiffs' claims for promissory estoppel or interference with advantageous business relations, for substantially the reasons stated by the motion judge in his memorandum of decision.

Judgment affirmed.

      The complaint asserted claims for declaratory relief, breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, and interference with an advantageous contractual relationship.

      We note as well that the e-mail did not conform to the provisions of the lease requiring that any offer to sell the premises must be sent by certified mail, return receipt requested.

      For example, there is no indication in the complaint that the plaintiffs pressed the defendants to select a certified appraiser in the manner contemplated by paragraph twenty.

      Following the correspondence described above, the parties engaged in negotiations toward a new lease. Those negotiations eventually broke down and, in 2016, the defendants leased the premises to one of the plaintiffs' competitors. As the motion judge observed, the on-again, off-again, course of communications toward a possible new lease, as alleged in the complaint, furnished no basis for reasonable reliance on any implicit promise that the defendants would lease the premises to the plaintiffs upon expiration of the then-current term. See Rhode Island Hosp. Trust Natl. Bank v. Varadin, 419 Mass. 841, 848 (1995). Additionally, there is no assertion in the complaint, beyond mere speculative allegations, that the defendant Sanchez acted with an improper purpose or motive to constitute an interference with an advantageous business relationship by negotiating a lease of the premises with a friend and competitor of the plaintiffs. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812 (1990).


text:
    COMMONWEALTH v. James M. FARRELL.
    17-P-124
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, James M. Farrell, was charged with operating while under the influence of alcohol, see G. L. c. 90, § 24(1)(a )(1), and negligent operation of a motor vehicle, see G. L. c. 90, § 24(2)(a ). After a jury trial, the defendant was convicted of negligent operation of a motor vehicle. On appeal, he argues that there was insufficient evidence to sustain the conviction. We affirm.

Discussion. 1. Sufficiency of the evidence. When reviewing a denial of a motion for a required finding of not guilty, we assess the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). "The Commonwealth's evidence may be entirely circumstantial, and ... the inferences a jury may draw from the evidence need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (quotations omitted). When evaluating the sufficiency of the evidence, we resolve all credibility issues in favor of the Commonwealth. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003).

To convict a defendant of negligent operation of a motor vehicle under G. L. c. 90, § 24(2)(a ), "the Commonwealth must prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). The defendant challenges only the third element, arguing that the Commonwealth failed to prove that he operated a motor vehicle in a negligent manner. We disagree.

Here, Farrell was driving a pickup truck on a poorly lit and poorly kept road at approximately 11:00 P.M. when he left the roadway and crashed into a concrete guardrail post. A responding police officer observed that Farrell had a "slight odor of alcohol" on his breath, had bloodshot and glassy eyes, and his speech was slurred. Farrell told the officer that the crash occurred when he swerved to avoid a car that was coming at him at a speed of between "80 and 100 miles an hour." Farrell admitted he had consumed one beer and two "nips." Farrell told the police that he was exhausted and had worked all day. Farrell admitted that he had been looking at his cellular telephone just prior to the crash. He also admitted that "[h]e didn't think that a beer and a nip would affect him as much as they did."

This evidence was sufficient for a rational trier of fact to find that the defendant negligently operated his vehicle. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006) (affirming based on evidence that defendant drove while intoxicated, crossed marked lanes, and nearly struck a road sign); Ross, supra at 380 (affirming based on combination of evidence of speed, location, and intoxication).

Judgment affirmed.

      Additionally, there was no error in the denial of the defendant's renewed motion for a required finding at the close of all the evidence. The Commonwealth's case did not deteriorate after the presentation of the defendant's evidence. Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006).


text:
    COMMONWEALTH v. Miguel ALVES.
    17-P-364
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury-waived trial in the District Court, of operating a motor vehicle while under the influence of alcohol. He contends that the judge committed reversible error by allowing the arresting and booking police officers to testify that the defendant was "intoxicated," "drunk," and "operating under the influence." We disagree, and affirm the conviction.

A police officer is permitted, as a lay witness, to express an opinion of a defendant's sobriety. See Commonwealth v. Canty, 466 Mass. 535, 540 (2013). Thus, an officer may offer his opinion that a driver was "drunk" or "intoxicated." Ibid., quoting from Brodin & Avery, Massachusetts Evidence § 7.2.2, at 399 (8th ed. 2007) ("Whether a person was drunk or intoxicated is also within the category of permissible summary description"). However, witnesses may not testify that a defendant is guilty or innocent of a crime. Canty, supra. Accordingly, an officer may not offer an opinion on "whether a defendant operated a vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely." Id. at 544.

The booking officer, Christopher Green, permissibly testified that, in his opinion, the defendant "appeared to be intoxicated." When asked his opinion of the defendant's sobriety, the arresting officer, Richard Gaucher, answered, "I believe he was drunk, he was operating under the influence of alcohol." The question was proper, but the second half of the answer was impermissible. See Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 605 (2013). The defendant did not object, but the prosecutor nonetheless properly redirected Gaucher's testimony, eliciting his opinion that the defendant appeared to be "drunk."

Because the defendant did not object, our review is limited to whether the single error created a substantial risk of a miscarriage of justice. Id. at 607. As in Saulnier, we discern no such risk:

"The impermissible portion of the officer's testimony was very brief, and the Commonwealth's case was very strong. In our view, it is highly unlikely that the [arresting officer]'s opinion on the ultimate issue was a decisive factor in the judge's finding. 'A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as a factfinder.' "

Ibid., quoting from Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002).

We detect no contrary indication in the judge's handling of the case. In announcing his finding, the judge noted that the defendant was "asleep or passed out at the wheel" and that he "didn't pass the [field sobriety] tests." There is no indication that the judge merely deferred to Gaucher's opinion of guilt (which was evident, in any event, from Gaucher's decision to arrest the defendant). In addition, the circumstances in which Gaucher came upon the defendant (passed out in the driver's seat, with the engine running, in the travel lane of the road) left little doubt concerning the element of operation. We discern no risk of a miscarriage of justice.

Judgment affirmed.

      None of this testimony was presented as expert testimony. The prosecutor did not ask any questions to suggest that either officer possessed "scientific, technical, or other specialized knowledge," Canty, 466 Mass. at 541, and the officers did not hold themselves out as experts.


text:
    COMMONWEALTH v. Ronald L. CARROLL, Jr.
    17-P-385
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Ronald L. Carroll, Jr., of operating a motor vehicle while under the influence of alcohol (OUI), G. L. c. 90, § 24(1)(a )(1). In this consolidated appeal from the jury's verdict and the order denying the defendant's motion for a new trial, the defendant contends that trial counsel's performance was constitutionally infirm. We affirm both the judgment and the order denying his motion for a new trial.

Discussion. 1. Motion for a new trial. a. Request for hearing. When the motion raises a substantial issue, the "better practice" is for a judge to hold an evidentiary hearing. Commonwealth v. Drayton, 473 Mass. 23, 31 (2015). The judge need not hold an evidentiary hearing if no substantial issue is raised by the motion affidavits. See Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004). The decision to hold a hearing rests within the sound discretion of the trial judge. See Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014).

Here, the defendant raises several challenges to counsel's performance which, he claims, deprived him of effective assistance of counsel. He asserts that (1) counsel's cross-examination of the Commonwealth witness elicited the only evidence on an essential element, i.e., a public way, (2) counsel failed to move to exclude evidence of his difficulty in answering questions at his booking, and (3) counsel failed to elicit evidence of the officer's mistaken belief that the defendant stored alcohol in an open container. None of these claims required the judge to take additional testimony; therefore, the judge did not abuse his discretion in deciding the defendant's claims without an evidentiary hearing. We turn now to the substance of the defendant's claims.

b. Standard of review. "[A] motion for a new trial is addressed to the sound discretion of the trial judge," Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and the judge abuses that discretion when he or she makes " 'a clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

c. Ineffective assistance of counsel. "To prevail on a motion for a new trial claiming ineffective assistance of counsel, a defendant must show that there has been a 'serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' and that counsel's poor performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Under this standard, counsel's performance was not subpar.

Contrary to the defendant's assertion, this is not a situation in which "but for defense counsel's question[ing], there was no evidence supporting one element of the crime," i.e., public way. Commonwealth v. Congdon, 68 Mass. App. Ct. 782, 784 (2007). Rather, the jury could have found a public way from the officer's direct testimony. Here, the officer testified to being on patrol and parked on the side of Main Street when he observed the defendant. The jury could have reasonably inferred from this testimony that the officer's patrol area covered Main Street and, therefore, that Main Street, where the defendant was observed driving, was a way to which the public has a right of access and thus is a public way. See Commonwealth v. Hazelton, 11 Mass. App. Ct. 899, 900 (1980). As such, counsel's tactical decision to explore the dimensions and road conditions of Main Street, in support of her defense that the defendant's driving was not impaired, did not render her performance subpar.

The defendant also attacks counsel for failing to move to exclude evidence of his difficulty in answering booking questions. However, contrary to the defendant's assertions, this was not inadmissible evidence of the defendant's postarrest silence but, rather, relevant and permissible demeanor evidence of the defendant's difficulty in articulating answers to simple pedigree questions. See Commonwealth v. Ellis, 79 Mass. App. Ct. 330, 336 (2011) (evidence that defendant was "nodding off" was not "subject to exclusion, and objection would be futile"). Counsel cannot be faulted for failing "to pursue futile" challenges to admissible evidence. Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 668 (2013).

Finally, the defendant faults counsel for failing to establish that, contrary to the toxicology reports, Rockport police believed there was alcohol in the Dunkin' Donuts cup found in the defendant's car. This evidence, however, bore no relevance to any contested issue at trial-as the judge had already found the defendant not responsible on the open container charge-and, because the contents of the cup were discovered by the police inventory of the car that ensued after the defendant's arrest, evidence that its contents contained alcohol, did not support the defense's theory that the arresting officer rushed to judgment in arresting the defendant. For all these reasons, we see no error in the judge's denial of the defendant's motion for new trial.

2. New claim of ineffective assistance. On appeal, the defendant raises for the first time an additional challenge to trial counsel's performance. Generally, a defendant is required to raise ineffective assistance claims at trial or in the defendant's motion for new trial, "and not for the first time in an appellate court," Commonwealth v. Harrington, 379 Mass. 446, 459 (1980). Even though we are not required to, we briefly address this claim. The defendant faults counsel for failing to object to the prosecutor's purported mischaracterization in closing argument of the arresting officer's testimony. The defendant asserts the prosecutor crossed the line when he argued that Officer Anderson had drawn the "conclusion that [the defendant] was operating under the influence of alcohol." We disagree.

In summation a prosecutor may argue "fair inferences that can be drawn from the evidence." Commonwealth v. Kelly, 417 Mass. 266, 270 (1994). Here, the officer testified to the observations he made of the defendant's physical appearance, performance, and demeanor that formed the officer's opinion that "[the defendant] was under the influence of alcohol" and his decision to place the defendant under arrest. While the officer did not explicitly opine that the defendant drove while under the influence of alcohol, see Commonwealth v. Canty, 466 Mass. 535, 544-545 (2013), the jury could have surmised as much from the officer's other observations and his ultimate decision to arrest the defendant. Accordingly, the prosecutor's statement was a fair characterization of the evidence. Any objection to the prosecutor's statement would have been futile, and "[t]he absence of an unmeritorious or futile objection cannot constitute ineffectiveness." Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 678 (2011).

Judgment affirmed.

Order denying motion for new trial affirmed.

      The defendant was also charged with unlicensed operation of a motor vehicle and possessing an open container of alcohol in a motor vehicle. The judge dismissed the former charge upon the request of the Commonwealth, and entered a finding of not responsible for the latter.

      From the trial record it is apparent that defense counsel pursued a defense of lack of impairment, and the questions relating to Main Street supported that defense. "That the defense strategy did not achieve an acquittal does not, in hindsight, thereby render defense counsel's strategic decision ineffective assistance of counsel." Commonwealth v. Long, 476 Mass. 526, 533 (2017).

      The officer indicated that the defendant's breath smelled of an alcoholic beverage and that the defendant had glassy eyes, stumbled on his words and could not formulate complete sentences, was unsteady on his feet, and had trouble retrieving his license.

      We also see no merit to the defendant's claim that the challenges he raises to trial counsel's performance rendered her ineffective.


text:
    COMMONWEALTH v. Travis GAGNE.
    17-P-689
    Appeals Court of Massachusetts.
    Entered: May 31, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Travis Gagne, of two counts of assault and battery on a household member ( G. L. c. 265, § 13M [a ] ), and one count of strangulation ( G. L. c. 265, § 15D [b ] ). On appeal, he contends the judge impermissibly admitted the victim's prior consistent statements, her telephone call to 911, and her medical records. We affirm.

Discussion. The defendant preserved his objections to each of the judge's rulings, so we review his claims for prejudicial error. See Commonwealth v. Hatzigiannis, 88 Mass. App. Ct. 395, 396 (2015).

1. Prior consistent statements. The defendant contends that, because he never suggested the victim's testimony was the result of a recent contrivance or bias, her prior consistent statements were impermissibly admitted. We are not persuaded.

Prior consistent statements are generally inadmissible. Commonwealth v. Rivera, 430 Mass. 91, 99 (1999). "A prior consistent statement may, however, be admitted to support the testimony of a witness who has been impeached by a suggestion that his testimony is the product of bias or contrivance." Commonwealth v. Kindell, 44 Mass. App. Ct. 200, 203 (1998). See Mass. G. Evid. § 613(b)(2) (2018). "[T]he prior consistent statement must have been made before the motive to fabricate or act out of bias arose." Kindell, supra. The decision to admit such statements is in the discretion of the trial judge. Commonwealth v. Lessieur, 472 Mass. 317, 323, cert. denied, 136 S. Ct. 418 (2015).

Here, months after the victim's initial conversations with the police, the victim recanted in an affidavit her claims that the defendant beat her. At trial, however, the victim repudiated the affidavit and, consistent with her earlier statements, she reiterated her original statements to the police.

On cross-examination, defense counsel questioned the victim regarding a recent charge of operating while under the influence and whether the charge incentivized her to curry favor with the prosecution. It was after this claim of recent bias that the judge permitted the responding officers to testify to the victim's statements on the night of her 911 telephone call.

A witness's pending criminal charges are classic sources of bias in favor of the prosecution. See Commonwealth v. DiMuro, 28 Mass. App. Ct. 223, 228 (1990). Accordingly, defense counsel's cross-examination opened the door to the admission of the prior consistent statements the victim gave to police before "the motive to act out of bias arose." Kindell, supra. There was no error.

2. 911 telephone call. We also see no merit to the defendant's hearsay challenge to the admission of the victim's 911 telephone call. Hearsay is admissible as a spontaneous utterance "if (1) there is an occurrence or event 'sufficiently startling to render inoperative the normal reflective thought processes of the observer,' and (2) if the declarant's statement was 'a spontaneous reaction to the occurrence or event and not the result of reflective thought.' " Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting from 2 McCormick on Evidence § 272, at 204 (J.W. Strong ed., 5th ed. 1999).

The 911 telephone call here satisfies both of these prongs. First, the victim's report of fleeing from an attack meets the test for a startling event. See Commonwealth v. Nunes, 430 Mass. 1, 4 (1999) ("The statement itself may be taken as proof of the exciting event"); Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 & n.13 (2008) (assault and battery a sufficiently startling event). Second, the fact that the victim was hiding in the bushes and tentative to come out from hiding when she made the telephone call shows that she was still under the influence of the startling event. See Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973) (no required time between event and statement; each case decided on its own facts).

3. Medical records. Last, the defendant claims that admission of redacted emergency medical technician (EMT) reports and hospital records relating the victim's statements as to how she got her injuries were improperly admitted. We disagree.

Pursuant to G. L. c. 233, § 79, patient records kept by hospitals under G. L. c. 111, § 70, "shall be admissible ... as evidence ... so far as such records relate to the treatment and medical history of such cases." Bouchie v. Murray, 376 Mass. 524, 527 (1978), quoting from G. L. c. 233, § 79. This statute applies to EMT reports as well as proper hospital records. See Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 726-727 (2016). Because we construe § 79"liberally," medical records are admissible "even though incidentally the facts recorded may have some bearing on the question of liability." Commonwealth v. Ackerman, 476 Mass. 1033, 1034 (2017), quoting from Commonwealth v. Dargon, 457 Mass. 387, 394 (2010). Furthermore, "fact-specific references to the reported cause of [a patient's] injuries are part of her medical history and are relevant to treatment." Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).

Here, although the medical records contained the victim's statements that she was attacked and "strangled," they were admissible. First, the cause of the victim's injuries, including that they resulted from strangulation, was admissible treatment evidence. See ibid. Furthermore, even if the cause of her injuries was inadmissible, where the victim properly testified to the nature of the attack, including that she was strangled, the admission of the challenged evidence "did not prejudice the defendant [in light of it being] merely cumulative of properly admitted evidence." Commonwealth v. Barbosa, 463 Mass. 116, 130 (2012), quoting from Commonwealth v. Wilson, 427 Mass. 336, 348 (1998). We again discern no error.

Judgments affirmed.

      The jury also acquitted the defendant of assault with intent to commit a felony (kidnapping) and assault by means of a dangerous weapon (motor vehicle).


text:
    COMMONWEALTH v. Mauro LOBO.
    17-P-846
    Appeals Court of Massachusetts.
    Entered: May 31, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial in the Superior Court, the defendant was convicted of various drug and firearm charges. The defendant's direct appeal was consolidated with his appeal from the order denying his motion for new trial. We discern no cause to disturb the judgments and affirm, addressing the defendant's claims in turn.

1. Ineffective assistance of counsel. We review the defendant's claim of ineffective assistance of counsel under the familiar two-prong Saferian test. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The trial transcript demonstrates that trial counsel stipulated to facts that the Commonwealth could, and did, prove at trial in support of a strategy to preserve for appeal the defendant's claim of error in the denial of his motion to suppress evidence. Because the evidence seized in execution of the warrant to search the defendant's residence was outcome determinative, counsel's strategic decision to pursue an appeal of the suppression issue was not manifestly unreasonable. See Commonwealth v. Morales, 453 Mass. 40, 44 (2009). The evidence seized during the execution of the search warrant, as well as the testimony and other evidence offered by the Commonwealth, overwhelmingly established the defendant's guilt beyond a reasonable doubt. In light of the overwhelming evidence of guilt based on the evidence, particularly including the evidence obtained by means of the warrant, and the fact that the procedure preserved the defendant's right to appeal the order denying the motion to suppress, see Commonwealth v. Ramsey, 466 Mass. 489, 496 n.8 (2013), counsel's stipulations did not deprive the defendant of an otherwise available, substantial ground of defense.

2. Motion to suppress. The defendant separately contends that the search warrant was not supported by probable cause. In particular, the defendant contends that the affidavit submitted in support of the application for the warrant, citing information provided by a confidential informant (CI), did not satisfy the veracity prong of the Aguilar-Spinelli test.

After reviewing the supporting affidavit of Detective Joseph King and Special Agent Peter Kelley, we conclude that the affidavit, read as a whole, contained sufficient indicia of the CI's veracity. The CI had during the immediately preceding two months provided officers with information about a number of suspected gun and drug dealers. See Commonwealth v. Alfonso A., 438 Mass. 372, 375-376 (2003) (that informant was not "an untraceable, unknown source ... weighs in favor of reliability"). The CI also had a reliable track record with the officers. The affidavit details two controlled narcotics purchases conducted by the CI, at the direction of the officers, from individuals who had been identified by the CI as drug dealers and from which the police ultimately recovered and positively field-tested illegal narcotics. , See Commonwealth v. Desper, 419 Mass. 163, 168-169 (1994) (information detailing controlled purchases of narcotics are adequate means to establish CI's reliability). Moreover, the CI's veracity was bolstered through independent police corroboration of the CI's disclosures regarding the defendant, confirming his physical description and name by reference to Registry of Motor Vehicles data, and confirming the defendant's residence through surveillance. Such corroboration by police of details given by the CI supports the conclusion that the CI was reliable in the particulars provided. See Commonwealth v. Carrasco, 405 Mass. 316, 321-322 (1989).

Judgments affirmed.

Order denying motion for new trial affirmed.

      The defendant was convicted of one count of trafficking a class B substance (cocaine) of a net weight of eighteen grams or more, but less than thirty-six grams, see G. L. c. 94C, § 32E(b )(1) ; two counts of possession of a firearm without a firearm identification (FID) card, see G. L. c. 269, § 10(h ) ; one count of possession of ammunition without an FID card, subsequent offense, see G. L. c. 269, § 10(h )(1) ; one count of possession of a firearm in commission of a felony, see G. L. c. 265, § 18B ; one count of possession of a class B substance (Oxycontin) with intent to distribute, see G. L. c. 94C, § 32A(a ) ; and one count of possession of a class D substance (marijuana) with intent to distribute, see G. L. c. 94C, § 32C(a ).

      First, we examine "whether there has been serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Saferian, 366 Mass. at 96. Second, we examine whether such behavior "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid.

      We note that the defendant did not submit an affidavit from trial counsel in support of his motion for a new trial.

      At trial, the Commonwealth produced testimony that during the execution of the search warrant of the defendant's residence, officers found two firearms, ammunition, eighteen individual plastic bags of marijuana, four plastic bags of cocaine, a number of pills later determined to be oxycodone, a digital scale, boxes of sandwich bags, acetone, $9,990 in cash, and a number of bills in the defendant's name. One of the officers also testified that based on "what was recovered at the search warrant location with the digital scale, the cutting agent, the packaging materials, and then also the statements that [the defendant] made to me, personally, that the money inside that location was received as payment for drugs sales, I would say yeah, that's what these drugs were intended for."

      See Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). Contrary to the defendant's assertion, the basis of knowledge prong of the Aguilar-Spinelli test is satisfied because the CI disclosed information based on personal observations of the defendant in possession of a firearm inside the target location. See Commonwealth v. Allen, 406 Mass. 575, 578 (1990). The defendant does not dispute the adequacy of the information furnished in the application to provide probable cause, if accepted as reliable, or the scope of the search warrant that issued.

      While the descriptions of the two controlled narcotics purchases were imperfectly articulated, it is clear from the context of the affidavit that the statements that the CI had "no contraband" following the transaction in the first buy and was searched "with negative results" in the second buy, were merely typographical errors.

      Although the affidavit did not describe with particularity the previous cooperation between the CI and the police, type of narcotics recovered, time frame of the purchases, or whether the CI provided information resulting in an arrest or conviction, such intricate details are not necessary to prove the CI's veracity, particularly where they risk disclosing the CI's identity. See Commonwealth v. Grady, 33 Mass. App. Ct. 917, 918 (1992) ("specificity ... which would trench more or less on the informant's anonymity, is not demanded").