text:
    DEUTSCHE BANK TRUST COMPANY AMERICAS, Trustee, v. Jaime DOMINGUEZ & others.
    17-P-630
    Appeals Court of Massachusetts.
    Entered: May 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of Residential Accredit Loans, Inc. 2007-Q76.

      Rosa Dominguez, Janisette Dominguez, and Yadeline Dominguez.

   Deutsche Bank Trust Company Americas, trustee of Residential Accredit Loans, Inc. (Deutsche Bank), appeals from an order for final judgment awarding possession of certain real property to the defendants (Dominguez) and from the denial of its motion for summary judgment on the defendants' two counterclaims. Because the order for final judgment was based on an error of law, we reverse.

Background. In 2007, Jamie Dominguez purchased a property located in Springfield, securing a loan from GN Mortgage, LLC, and granting a mortgage to Mortgage Electronic Registration Systems (MERS) as nominee for the lender. In 2010, MERS assigned the mortgage to Deutsche Bank. Dominguez subsequently defaulted on his loan obligation.

Deutsche Bank foreclosed on the property and purchased the property at a foreclosure sale on January 24, 2012. Thereafter, on June 1, 2012, Deutsche Bank served upon the defendants a notice to quit, and commenced a summary process action in Housing Court. Dominguez filed a timely answer claiming that Deutsche Bank had acquired the mortgage in violation of the trust's governing pooling and service agreement (PSA), making its foreclosure invalid. Dominguez also asserted counterclaims seeking (1) declaratory judgment for superior possession and (2) quiet title pursuant to G. L. c. 240, § 6.

In April, 2013, Dominguez moved for summary judgment on Deutsche Bank's summary process claim contending that Deutsche Bank lacked superior right to possession of the property and therefore lacked standing to evict him. Specifically, Dominguez argued that pursuant to the PSA governing the trust for which Deutsche Bank served as trustee, his mortgage had to be transferred by the closing date as defined in the trust, namely May 30, 2007. Since the mortgage was not transferred to the trust until September 27, 2010, Dominguez claims the assignment was void under New York law and the subsequent foreclosure was invalid. The court adopted Dominguez's argument, and his motion for summary judgment on Deutsche Bank's summary process claim was allowed on April 30, 2014. The Housing Court judge was then designated as a Superior Court judge to handle Dominguez's remaining counterclaims. Deutsche Bank moved for summary judgment on both of Dominguez's counterclaims in April, 2015, and Dominguez filed a separate motion for summary judgment on his counterclaim to quiet title.

On November 21, 2016, an "order for final judgment" entered allowing Dominguez's claim for possession and denying Deutsche Bank's motion for summary judgment on Dominguez's counterclaims. The order further stated, "[T]his [order] represents final adjudication on the legal claims before the court in this matter." Deutsche Bank filed a timely appeal from the order for final judgment.

Discussion. 1. Summary process. The judge's allowance of summary judgment in Dominguez's favor on Deutsche Bank's summary process claim must be reversed. This case is controlled by U.S. Bank Natl. Assn. v. Bolling, 90 Mass. App. Ct. 154 (2016), and Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827, 832 & n.10 (2017). In Bolling and Strawbridge, this court held that a borrower, who was not a party to the PSA, lacked standing to challenge the validity of the assignment, because such a defect would render the assignment merely voidable at the election of one of the parties to the PSA (rather than void). Bolling at 156-157. Like the mortgagor in Bolling, Dominguez did not have standing to assert the alleged violation of the PSA upon which the judgment awarding him possession was premised.

2. Counterclaims. Count one of Dominguez's counterclaim seeks a declaratory judgment invalidating the foreclosure due to the invalid assignment of the mortgage to the trust. As discussed above, Dominguez lacks standing to raise the validity of the assignment; his declaratory judgment claim fails as a matter of law. Deutsche Bank is entitled to judgment on count one of the counterclaim. A declaration on count one that Dominguez lacks standing to pursue the claim shall enter.

Likewise, Deutsche Bank is entitled to judgment on count two of the counterclaim seeking to quiet title pursuant to G. L. c. 240, § 6. Under G. L. c. 240, § 6, an action to quiet title cannot be sustained unless the moving party can show actual possession and legal title to the property. Bevilacqua v. Rodriguez, 460 Mass. 762, 767 & n.5 (2011). Since Dominguez lacked standing to challenge the assignment, the foreclosure was valid and gave Deutsche Bank legal title to the property.

Conclusion. The order for final judgment is reversed, and judgment awarding possession to Deutsche Bank shall enter. On count one of the counterclaims, judgment shall enter in favor of Deutsch Bank, declaring that Dominguez lacks standing to pursue the claim; judgment shall also enter for Deutsche Bank on count two of the counterclaims.

So ordered.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Aaron MELLO.
    17-P-1245
    Appeals Court of Massachusetts.
    Entered: May 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On January 11, 2016, law enforcement officers seized drugs and other evidence during the execution of a search warrant at 229 Stafford Road, second floor, in Fall River. On January 21, 2016, the defendant, Aaron Mello, was indicted on charges of unlawful possession of heroin with intent to distribute, subsequent offense, and unlawful possession of methadone with intent to distribute, subsequent offense. The defendant filed a motion to suppress the evidence, claiming, among other things, that "[t]he affidavit in support of the search warrant fails to provide sufficient nexus between drug selling activity and the defendant's residence to establish probable cause to search the residence." The motion judge held a nonevidentiary hearing in the Superior Court, and subsequently issued a memorandum of decision and order allowing the motion to suppress on the basis that "the affidavit fails to provide a sufficient nexus of narcotics-related activity to the defendant's apartment." A single justice of the Supreme Judicial Court allowed the Commonwealth's application for leave to file this interlocutory appeal pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). For the reasons delineated infra, we reverse.

Legal standards. Our analysis of the sufficiency of a search warrant application begins and ends with the "four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (citation omitted). In this regard, "we determine whether, based on the affidavit in its entirety, the magistrate had a substantial basis to conclude that a crime had been committed, ... and that the items described in the warrant were related to the criminal activity and probably in the place to be searched." Id. at 298. See Commonwealth v. Donahue, 430 Mass. 710, 712 (2000) (in reviewing nexus, appellate court determines whether affidavit supporting search warrant application "provide[s] a substantial basis for concluding that evidence connected to the crime will be found on the specified premises"). In conducting this analysis, we recognize that because "special protections are extended to a person's home under both the Federal and State Constitutions," a magistrate may not "reasonably infer that drugs are being stored in a home based solely on the fact 'that the defendant lives there.' " Commonwealth v. Escalera, 462 Mass. 636, 643 (2012), quoting from Commonwealth v. Pina, 453 Mass. 438, 441 (2009). Rather, the police must provide "particularized information" that " 'would permit a reasonable inference that the defendant likely kept a supply of drugs' in the home."Ibid. (citation omitted). Insofar as every case presents unique facts and circumstances, "[n]o bright-line rule can establish whether there is a nexus between suspected drug dealing and a defendant's home. Police may rely on a variety of investigatory sources in making the necessary showing, including police surveillance and statements from credible informants." Ibid. Finally, affidavits for search warrants should be interpreted "in a commonsense and realistic fashion," and "read as a whole, not parsed, severed, and subjected to hypercritical analysis." Donahue, supra (citations omitted).

Discussion. In the present case, the motion judge determined that the affidavit failed to establish a sufficient nexus between the drug dealing activity and the defendant's apartment because there is "no indication that [the informant] purchased anything from [the defendant] from inside [the] apartment," and "[t]he information provided by the [informant] establishes that the defendant sells heroin, but it fails to provide that the defendant actually stores heroin at 229 Stafford Rd., Apt. 2." We disagree.

The affidavit delineated information from a confidential informant, which Detective Luis Duarte had obtained "[w]ithin the last 72 hours." The information included the following: (1) the defendant, who goes by the street name "Slim," lives at 229 Stafford Road, second floor; (2) the defendant "regularly sells heroin from out of his address at 229 Stafford Rd."; (3) the defendant "would sell heroin either from his apartment or meet parties out on the street"; (4) the informant had purchased heroin from the defendant "on several separate occasions in the recent past"; (5) whenever the informant "would purchase heroin from [the defendant], [the informant] would either meet [the defendant] at his address or a prearranged location"; and (6) the informant carried out a controlled buy in which he entered the defendant's apartment building and "was met by [the defendant] outside of the 2nd floor apartment," at which time the defendant sold him the agreed upon amount of heroin.

The particularized information delineated above was more than sufficient to permit a reasonable inference that the defendant likely kept a supply of drugs in the home. See Escalera, 462 Mass. at 644 ("A single observation of a suspect leaving his home for a drug deal may also support an inference that drugs will be found in the home where it is coupled with other information, such as statements from credible informants"). See also Cypher, Criminal Practice and Procedure § 5.70 (4th ed. 2014). Not only did the informant state that the defendant "regularly sells heroin from out of his address," but the informant also indicated that he had purchased heroin from the defendant on multiple occasions in the recent past, and that to effectuate these purchases, the informant would meet the defendant at either his address or a prearranged location. Combined with the informant's subsequent controlled buy, wherein he met the defendant outside of the second-floor apartment at which time the defendant "sold [the informant] the agreed upon amount of heroin," it was reasonable to infer that drugs were likely kept in the defendant's apartment. Precedent supports our determination. See Commonwealth v. Young, 77 Mass. App. Ct. 381, 385-388 (2010) (affidavit in support of search warrant, which described police observation of defendant's routine of walking directly from his apartment to point of drug sale and returning to his apartment immediately thereafter, furnished sufficient nexus between defendant's drug sales and his apartment to justify search of his residence). Contrast Commonwealth v. Medina, 453 Mass. 1011, 1011 (2009) (affidavit establishing only that defendant drove from his apartment to drug sale and thereafter returned directly to his apartment "lacks the requisite nexus"). To hold otherwise would require a hypertechnical analysis and a parsing of the affidavit, which we are compelled to reject. See Donahue, 430 Mass. at 712. See also Commonwealth v. Perez, 90 Mass. App. Ct. 548, 551 (2016), quoting from Brinegar v. United States, 338 U.S. 160, 175 (1949) ("In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act").

Order allowing motion to suppress reversed.

      The search warrant return reflects the seizure of, among other items, $4,829 in cash, 500 glassine bags of heroin, and 113 methadone pills.

      The defendant also argued in his motion to suppress that the search warrant affidavit failed to state grounds establishing the informant's basis of knowledge and veracity. See Commonwealth v. Upton, 394 Mass. 363, 374-375 (1985). The motion judge disagreed. In view of the informant's prior purchases of narcotics from the defendant at the apartment and prearranged locations, along with the controlled buy from the defendant discussed infra, we agree that the affidavit satisfied both prongs of the Aguilar-Spinelli test. See generally Aguilar v. Texas, 378 U.S. 108 (1964) ; Spinelli v. United States, 393 U.S. 410 (1969). The defendant does not argue to the contrary in his brief.

      The affidavit also described the experience and training of Detective Duarte, who had conducted and been part of numerous drug arrests, and who had been a police officer for more than eight years.

      After making the controlled buy, the informant brought the heroin back to Detective Duarte's vehicle. The heroin was logged as evidence at the police station.

      We are unpersuaded by the defendant's attempt to distinguish Young from the present case. Here, the nexus to the apartment is stronger than that in Young in view of (1) the informant's statement that the defendant "regularly sells heroin from out of his address," and (2) the controlled buy where the informant met the defendant "outside of the 2nd floor apartment" at which time the defendant sold him the drugs. There was no such direct indication in Young that the defendant sold drugs out of or at the threshold of his residence. See Young, supra at 386-387.

      The defendant also moved to suppress the fruits of the search and seizure on the basis that the police violated the "Knock and Announce requirement of the search warrant." He contends that if this panel reverses the order on the issue of nexus, he is entitled to an evidentiary hearing. The Commonwealth agreed at oral argument that the defendant would be entitled to such a hearing. Accordingly, the defendant may seek this hearing.


text:
    COMMONWEALTH v. Yoffique STAPLETON.
    17-P-452
    Appeals Court of Massachusetts.
    Entered: May 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in District Court, the defendant was convicted of assault and battery on a correctional facility employee. On appeal, he challenges the sufficiency of the evidence. We affirm.

Background. At the time of the incident, the defendant was an inmate at the Plymouth County Correctional Facility (facility). On November 27, 2015, the defendant, together with other inmates, staged a protest by refusing to enter their cells. After correctional officers responded to the protest, the other inmates relented, one by one, leaving only the defendant in the common area. According to the testimony of two of the correctional officers who sought to escort the defendant back to his cell, the defendant punched one of them in the face with his fist.

During the direct testimony of the first officer, the Commonwealth offered in evidence a video recording of the incident made by the facility's closed circuit surveillance system. Both officers were shown the video recording, and were questioned about its contents. They both acknowledged that what the video recording appeared to show was somewhat at odds with their initial testimony about the specifics of how the incident unfolded, and they accordingly modified their testimony in some respects. For example, both officers initially testified that the altercation with the defendant had occurred a considerable distance from his cell, but once shown the video footage, they acknowledged that the incident occurred at the cell door's threshold.

While the recording confirms the officers' testimony that the defendant initially cooperated with their direct request that he go back to his cell, they testified that he then resisted completing the task. According to them, at that point an order was given to take the defendant to the ground, and the defendant threw his punch before the order fully was executed. Because of the lighting at the threshold of the cell and other factors, it is difficult for a viewer of the video recording to make out exactly what took place there. At one point, the defendant can be seen rapidly exiting the cell, although it is not clear from the recording itself whether he did this on his own or was being pushed or pulled from the cell. The video then shows several officers tackling, scuffling with, and restraining the defendant outside of the cell. The officers made no claim in their testimony that the recording itself showed the defendant throwing a punch, but they both continued to maintain that this occurred.

The defendant testified that he was cooperatively returning to his cell and never threw a punch. According to him, the officers began assaulting him because he was "talking trash." In his closing, defense counsel argued that the video recording conclusively demonstrated that the incident could not have unfolded as the officers maintained and that it failed to show that any punch occurred. As revealed by comments he made from the bench, the judge ultimately found the video recording "unhelpful," and he credited the officers' testimony that the defendant struck one of them with his fist.

Discussion. The officers' testimony that the defendant punched one of them, if credited, plainly was sufficient to establish the elements of assault and battery on an employee of a correctional facility. See Commonwealth v. Burke, 390 Mass. 480, 482-483 (1983) (setting forth elements of assault and battery). Moreover, as the defendant acknowledges, "making judgments about witness credibility and the weight of witness testimony is the function of the [fact finder]." Commonwealth v. Celester, 473 Mass. 553, 562 (2016). Nevertheless, the defendant maintains that this is an instance where "an appellate court is in a position equal to that of the [fact finder] to consider" exculpatory evidence "in the form of documents, photographs, or other physically-verifiable items." Commonwealth v. Vaughn, 23 Mass. App. Ct. 40, 43 (1986). However, for us to override the judge's credibility determinations based on the video recording, we would have to determine that its exculpatory value was "so overwhelming that no rational [fact finder] could conclude that the defendant was guilty." Commonwealth v. O'Laughlin, 446 Mass. 188, 204 (2006). As we cannot draw that conclusion, we are constrained to affirm.

Certainly, the video recording provided the defendant extensive fodder for cross-examination and argument. Indeed, even after the officers corrected their testimony once they were shown the recording, it remains difficult to square their testimony about exactly how the incident unfolded with what the footage appears to show. At the same time, however, whether the officers' stated recollection of the events is accurate in all respects is not itself determinative. Rather, the key issue is whether the video recording provided "overwhelming" evidence that precluded the judge from crediting the officers' testimony that the defendant struck one of them in the face. As noted, little can be discerned from the video recording regarding the climactic events that occurred at the threshold of the defendant's cell. Therefore, to the extent that the defendant asks us to draw our own conclusions regarding what the video recording shows, "[t]his does not aid his cause." Commonwealth v. Caruso, 85 Mass. App. Ct. 24, 34 n.13 (2014).

In sum, the video recording-when viewed on its own or together with the defendant's testimony and any other evidence in the defendant's favor-does not provide such overwhelming proof that the punch never occurred as to preclude the judge from crediting the officers' testimony that it did. Viewing the evidence in the light most favorable to the Commonwealth, we conclude that the judge could find, beyond a reasonable doubt, that the Commonwealth proved the elements of assault and battery on an employee of a correctional facility. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

Judgment affirmed.

      According to the defendant's testimony, the inmates were protesting the lack of running water at the facility that day.

      The exhibit was not included in the appellate record, but we requested it from the District Court. The court informed us that the exhibit had been lost, but it provided a copy of a video recording that the Department of Correction had provided to the Commonwealth. The parties have stipulated that the relevant portion of what was provided to us is the same as what the judge saw.

      The defense was that the defendant never punched the officer, not that the punch somehow was justified. The details of exactly how the altercation unfolded are therefore of limited relevance.

      In fact, although not mentioned by either party, the video recording appears to show a punch being thrown while the defendant is being taken to the ground outside of his cell. It is difficult to discern from the melee shown on the recording whether it was the defendant or one of the officers who threw that punch.


text:
    COMMONWEALTH v. Francis C. ROCHE, Jr.
    15-P-1153
    Appeals Court of Massachusetts.
    Entered: May 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Francis C. Roche, Jr., appeals from his conviction of operating a motor vehicle while under the influence of intoxicating liquor (fifth offense) and from the denial of his motion for new trial. On appeal, the defendant argues that (1) the admission in evidence of certain documents pertaining to the prior convictions was error creating a substantial risk of a miscarriage of justice; and (2) he received the ineffective assistance of counsel. We affirm.

Background. In March, 2015, in a bifurcated jury trial, the defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI) (fifth offense), in violation of G. L. c. 90, § 24(1)(a )(1), and operating a motor vehicle after license suspension, in violation of G. L. c. 90, § 23. During the subsequent offense trial, which was heard by the same jury that had convicted the defendant of the underlying offense, the Commonwealth sought to prove that the defendant had committed at least four prior offenses: one in 1982, one in 1989, and two in 1990. The only evidence of the 1982 offense was a record from the Registry of Motor Vehicles (RMV), which had an entry of "DWI ALCOHOL PROGRAM WESTBOROUGH R CONVERSION," next to a "FINDING DATE" of October 27, 1982. The other three offenses (one in 1989 and two in 1990) in the RMV record set forth separate conviction dates for each offense. The Commonwealth also introduced docket sheets from the Westborough District Court and records from the Worcester County sheriff's department pertaining to the two 1990 offenses. These documents designated the defendant's OUI convictions in March, 1990, and May, 1990, as third and fourth offenses, respectively. The defendant filed a motion for new trial challenging his conviction of the subsequent offense portion of the OUI charge. After an evidentiary hearing, the judge denied the defendant's motion. This appeal followed.

1. Proof of prior offenses. a. Prima facie case for 1982 conviction. The defendant argues that the RMV record that was introduced to prove the 1982 offense was not prima facie evidence because it did not "even identify a court associated with the 1982 entry; it only says 'conversion'-another unexplained term." The entry for the 1982 offense bears an "R," while the other entries have a "G" beside them. The defendant asserts that the document was "riddled with codes and acronyms that were not explained to the jury," and that the "undefined terms do not have a 'usual and accepted meaning' [that] the jurors could have understood based on their common knowledge." The crux of the issue is whether the terms provided in the RMV record were sufficient for the jury to find, beyond a reasonable doubt, that the defendant was convicted and/or assigned to an alcohol program as the result of an OUI offense in 1982. We conclude that they were.

Jurors may "draw reasonable inferences from the evidence; they are not permitted to engage in speculation or conjecture as to the meaning of unexplained technical phrases and notations." Commonwealth v. Scott, 464 Mass. 355, 362 (2013). The defendant relies on Scott in arguing that the terms provided in the RMV records here are insufficient for the jury to have drawn a reasonable inference. In Scott, the court concluded that medical records containing unexplained technical phrases such as "grade II hepatic laceration" required the jury to speculate as to their meaning. Id. at 362-364. Here, in contrast, the jury could reasonably infer from the notation "alcohol program" that the defendant was assigned to an alcohol program. The jury could also reasonably infer from the term "DWI" preceding "alcohol program," that such assignment was for a "like offense," as required under G. L. c. 90, § 24(1)(a )(1), as it was reasonable for the jury to infer that DWI, in this context, referred to driving while intoxicated. The terms were not so technical as to leave the jury to speculate.

The defendant's argument that the RMV record "provides no evidence of any adjudication or assignment in 1982" because it does not identify a court likewise fails. Appearing on the certified copy of the defendant's RMV record is a "Finding Date" of October 27, 1982, following the notation "DWI Alcohol Program Westborough R." A "finding date" is the date on which a court, or RMV hearing officer, finds an individual guilty, or responsible, for a specific offense. See Commonwealth v. Deramo, 436 Mass. 40, 46 (2002). The RMV record indicates that as a result of the DWI finding on October 27, 1982, the defendant was required to enter an alcohol program. In addition, Westborough is listed following the notation for the alcohol program. The entry on the RMV record for the defendant's 1982 offense satisfies the Commonwealth's burden to prove that the defendant was assigned to an alcohol program in 1982 due to a like offense.

b. Designation of 1990 convictions. The defendant argues that the admission of documents that incorrectly designated two prior offenses was error which created a substantial risk of a miscarriage of justice and that trial counsel's failure to object to such admission was manifestly unreasonable. Where a party argues an unpreserved issue on appeal, we examine the issue for a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We determine whether the wrongly admitted evidence caused or materially influenced the verdict of guilt. Ibid. "For that purpose we ... measure the error in the totality of the evidence and determine whether the properly admitted evidence independently permitted a finding of guilt beyond a reasonable doubt." Commonwealth v. Mendes, 75 Mass. App. Ct. 390, 396 (2009). The defendant submits that there was a substantial risk of a miscarriage of justice in two ways: first, absent the incorrect documents entered in evidence, the Commonwealth's "residual evidence [was] insufficient to sustain the verdict"; and second, the jury heavily relied on the incorrect documents as evidenced by the jury's question.

There is no error in the judge's conclusion that any correction to the documents identifying the offenses as third and fourth, rather than second, would not have "played an important role in the jury's deliberations and conclusions." The jury had certified copies of the RMV records that provided the dates of each offense. The jury could have examined the RMV records and counted four prior convictions and/or assignments: (1) the defendant's 1982 offense, which occurred on August 19, 1982, and resulted in an assignment to a "DWI alcohol program"; (2) the defendant's 1989 offense, which occurred on January 12, 1989, and resulted in another assignment to a "DWI alcohol program"; (3) the defendant's March, 1990, offense, which occurred on March 31, 1990, and resulted in a "DWI" conviction; and (4) the defendant's May, 1990, offense, which occurred on May 27, 1990, and resulted in another "DWI" conviction.

During their deliberations, the jury asked whether "it's 5 total convictions (including alcohol treatment programs) or 5 criminal convictions?" and also whether they were missing some paperwork for 1999. The jury's questions during deliberations did not, as the defendant argues, suggest that the jury relied on the incorrectly designated documents in finding the defendant guilty of a fifth offense. The judge answered the first question as follows: "Let me re-instruct you ... [with] what I said before. The word conviction refers to the entry of a guilty verdict by a jury or a guilty finding by a judge. A prior conviction may also be shown by proving that the same Defendant was previously assigned by a court to an alcohol or controlled substance education treatment or rehabilitation program and that the program assignment was made because it was of a like offense." This instruction is an accurate statement of the law. See Instruction 2.540 of the Criminal Model Jury Instructions for Use in the District Court (rev. May, 2011). In considering the strength of the case, the judge correctly found that the Commonwealth would have satisfied its burden of proving four prior convictions and/or assignments even if the Westborough docket sheets and Worcester jail records were removed from evidence or corrected.

2. Ineffective assistance of counsel. The two prongs of the analysis for ineffective assistance of counsel are well known: (1) "behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," that (2) "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We review counsel's decisions at the time they were made, rather than on the basis of hindsight. See Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015).

The motion judge determined that the defendant did not satisfy either prong of the test. We review that decision "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Because the motion judge was also the trial judge, we accord his decision "special deference." Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).

a. Failure to investigate. The defendant argues that trial counsel provided ineffective assistance of counsel because he failed to investigate the defendant's prior offenses and that such failure deprived him of an "otherwise available, substantial ground of defence." Saferian, 366 Mass. at 96. Setting aside the first prong of the test, as discussed earlier, any failure to investigate did not deprive the defendant of an "otherwise available, substantial ground of defence." Ibid. The defendant relies on the argument that "[i]f counsel had prepared and identified the errors, he could have argued that the dockets were 'not competent evidence [of third and fourth offenses] to be laid before the jury,' " and that "[a]t best, [the dockets were] evidence of two second offense convictions." However, the judge concluded that such additional preparation and argument "would not have yielded any change in the number of prior offenses." We agree. Regardless of how the Westborough docket sheets or the Worcester jail records labeled the offenses, the defendant still had four prior convictions and/or assignments to alcohol treatment programs. It is the total number of prior offenses which is significant, rather than the labels placed on them. Consequently, even if trial counsel should have investigated this discrepancy, that omission did not deprive the defendant of a defense.

b. Counsel's trial strategy. The defendant argues that it was manifestly unreasonable for trial counsel to incorrectly argue to the jury that the defendant's two 1990 offenses counted as a single conviction. Yet, the defendant testified to his understanding that the two offenses were merged. Indeed, both charges were disposed of on the same date. We cannot say that it was manifestly unreasonable to pursue this theory. Based largely on the motion judge's criticism of trial counsel, the defendant complains about his trial counsel's overall deficient performance. Given the state of the evidence, showing four predicate offenses, the defendant failed to establish that his trial counsel's strategy and performance affected the outcome. See Commonwealth v. Fisher, 433 Mass. 340, 354 (2001), quoting from Commonwealth v. Scott, 428 Mass. 362, 369 (1998) ("[A] list of subjective critiques of defense counsel's decisions, absent a showing that errors likely affected the jury's conclusions, is insufficient to support an ineffective assistance of counsel claim").

Judgment affirmed.

Order denying motion for new trial affirmed.

      The defendant makes no arguments concerning his conviction of the underlying offense.

      The defendant has not raised any issues concerning his conviction of driving with a suspended license.

      The defendant filed a motion for new trial in the Worcester District Court, requesting that court to change the June, 1990, Westborough docket sheets to reflect that his March, 1990, and May, 1990, OUIs were only second offenses. The motion was allowed in that court. The motion judge in the Worcester District Court found that, at the time of the pleas for the two OUI offenses in 1990, the defendant had "two prior OUI convictions but only one prior OUI within 6 years [of the] offense dates." Thus, pursuant to the law in effect at that time, the two OUIs were disposed of incorrectly and both "should have been asserted as no more than a 'Second Offense.' "

      That the motion judge did not credit the defendant's testimony on this point does not detract from the fact that it was a theory with some record support.


text:
    Mahir M. KANAAN v. Nasser EL-MALLAH.
    17-P-843
    Appeals Court of Massachusetts.
    Entered: May 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Nasser El-Mallah, appeals from a Superior Court judgment in favor of the plaintiff, Mahir M. Kanaan, following a jury-waived trial. He contends that the plaintiff's claim for breach of contract is barred by the statute of limitations, G. L. c. 260, § 2. Discerning no error in the trial judge's legal or factual conclusions that the suit is not foreclosed by the statute of limitations, we affirm.

1. Standard of review. "In reviewing a matter where[ ] the trial judge was the finder of fact, the findings of fact ... are accepted unless they are clearly erroneous and we review the judge's legal conclusions de novo." CMJ Mgmt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 277 n.2 (2017), quoting from Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014). "[W]e are bound by a judge's findings of fact that are supported by the evidence, including all inferences that may reasonably be drawn from the evidence." White v. Hartigan, 464 Mass. 400, 414 (2013), quoting from Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005). Due regard, moreover, "shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." White, supra, quoting from Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).

2. Discussion. The statute of limitations, G. L. c. 260, § 2, bars claims for breach of contract commenced six years after the cause of action accrues, see OneBeacon America Ins. Co. v. Narragansett Elec. Co., 87 Mass. App. Ct. 417, 425 (2015), which generally occurs "at the time of the breach." Zelby Holdings, Inc. v. VideogeniX, Inc., 92 Mass. App. Ct. 86, 90 (2017). Under the Massachusetts discovery rule, however, "a claim accrues and the statute of limitations clock commences when a plaintiff knows, or reasonably should have known, 'that she has been harmed or may have been harmed by the defendant's conduct.' " Evans v. Lorillard Tobacco Co., 465 Mass. 411, 449 (2013), quoting from Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206 (1990). Usually, this happens when a plaintiff is "informed of facts that would suggest to a reasonably prudent person in the same position" that such harm has occurred and was caused by the defendant's conduct. Commonwealth v. Tradition (N. America) Inc., 91 Mass. App. Ct. 63, 71 (2017). Here, the trial judge could find that the plaintiff did not know, nor reasonably could have known, that the defendant was capable of repaying the loan until after the plaintiff's visit in April, 2011. See White, 464 Mass. at 414 ; Evans, 465 Mass. at 449.

The judge found that the contract required repayment only when the defendant was financially able to do so. Anesthesiologists in the United States earn significantly more than they do in Saudi Arabia. The Saudi Arabian plaintiff, however, was unaware of this and had no reason to believe otherwise, especially based on the defendant's repeated misrepresentations of financial hardship. It was objectively reasonable to take the defendant's word without further investigation, see Evans, 465 Mass. at 449, given that the loan was ostensibly made in good faith between family members accustomed to helping one another in this fashion. See Tradition (N. America) Inc., 91 Mass. App. Ct. at 71. See also Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 176 (2013), quoting from Poznik v. Massachusetts Med. Professional Ins. Assn., 417 Mass. 48, 52 (1994) (permitting reasonable inferences from "the nature of the transaction, the character of the parties and their activities, and whether the transaction was motivated by business or personal reasons").

Whether the plaintiff's March 12, 2001, letter constituted a demand letter is immaterial. The trial judge found that the contract did not contemplate payment on demand, but rather required payment only when the defendant was financially able to pay. This finding followed the plaintiff's testimony, and the trial judge was entitled to find the plaintiff credible. See White, 464 Mass. at 414. Similarly immaterial is whether the contract contemplated installment payments; the judge credited the plaintiff's testimony that he had no knowledge of the breach until April, 2011. Accordingly, the claim accrued then under G. L. c. 260, § 2. See Tradition (N. America) Inc., 91 Mass. App. Ct. at 71.

Moreover, we discern no error in the trial judge's finding that the fraudulent concealment doctrine requires the same result. Codified in G. L. c. 260, § 12, the statute provides, "If a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action by the person so entitled shall be excluded in determining the time limited for the commencement of the action." See Hays v. Ellrich, 471 Mass. 592, 601-602 (2015). The trial judge found that the defendant's repeated misrepresentations as to his financial ability to repay the loan concealed his breach of contract until the plaintiff discovered otherwise in April, 2011. Section 12 thereby operates to toll the accrual of the plaintiff's cause of action until April, 2011.

Under either theory, the statute of limitations pursuant to G. L. c. 260, § 2, did not commence to run until the plaintiff first became aware of the defendant's ability to repay the loan in April, 2011. The action, commenced in 2015, was properly brought within the six-year period from the date the cause of action accrued.

Judgment affirmed.

      During that visit to the defendant's home, the plaintiff observed that the defendant clearly enjoyed financial security and an affluent lifestyle, owning an expensive house and several expensive cars.

      On appeal, the parties do not dispute the existence of a valid contract or that payment was not required until the defendant was financially able to repay at least some portion of the loan.


text:
    Pamela SANSOUCIE v. John M. CLINTON & others.
    17-P-882
    Appeals Court of Massachusetts.
    Entered: May 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      As personal representative of the Estate of Gail M. Fournier.

      East Cambridge Savings Bank, Fidelity Investments, Liberty Bay Credit Union, and Santander Bank, as trustees.

   The defendant, John M. Clinton (defendant), appeals from a jury verdict against him for just over $1 million. The claims against him arose out of his actions with respect to the estate of his father, John P. Clinton (father), and included claims for (1) unlawful interference with an expected gift, (2) undue influence, and (3) conversion. We affirm.

1. Background. We set forth the material facts as the jury reasonably could have found them. The plaintiff's decedent, Gail M. Fournier, was the father's companion and girl friend for thirty-eight years, until the father died in May of 2014. Fournier was not the defendant's mother. For years prior to his death, the father expressed his desire to divide his estate between Fournier and the defendant. He took a number of actions toward that end. For example, the father held a number of bank accounts and investment accounts, and he named Fournier, the defendant, or both as beneficiaries or joint tenants on these various accounts. In addition, after meeting with his lawyer in September of 2013, on October 10, 2013, the father executed a will dividing his estate, essentially fifty-fifty, between Fournier and the defendant (other than tangible personal property, which was entirely assigned to Fournier).

The trial focused on a series of events that began in October, 2013. The father's health had been in gradual but serious decline for many years, beginning with a stroke in 2005. From 2005 to October, 2013, Fournier was his primary caregiver, and by October of 2013 the father was not capable of caring for himself. The defendant did not live with the father during this time, and saw him only occasionally.

On October 14, 2013, about five days after the father executed his first will, Fournier was diagnosed with Stage IV pancreatic cancer. Unable to continue to care for the father, Fournier contacted the defendant and asked him to take over the father's care. At that time Fournier also gave the defendant the financial records regarding the father's various accounts. Shortly thereafter, on October 29, 2013, the father executed a new power of attorney appointing the defendant.

Over the following weeks, from October through November 11, 2013, the defendant eliminated Fournier as a beneficiary on all accounts where she was so named. The defendant also removed the entire amount ($719,960.69), from a Liberty Bay Credit Union (Liberty Bay) account on which both he and Fournier were joint tenants along with his father-and transferred that amount to a new account in his name and his father's name, only. From the evidence, the jury could reasonably find that the father knew of some of these transfers in advance, but not others. For example, the father had accounts at Fidelity Investments for which Fournier and the defendant were designated beneficiaries; the father issued the direction to remove Fournier as a beneficiary of the Fidelity accounts, and he did so in person, at Fidelity's offices in Burlington. However, there was evidence that the father did not know in advance of the defendant's actions with other accounts-for example, the Liberty Bay account.

During this period the defendant also arranged for a new attorney, to assist in the preparation of a new will. On November 8, 2013, the father executed a new will that left his entire estate to the defendant.

Fournier brought this suit in August, 2014, after the father died in May of that year. As indicated, the complaint contained claims, inter alia, for: (1) unlawful interference with an expected gift, (2) undue influence, and (3) conversion. After a five-day jury trial, the jury answered special interrogatories in which they found separately for Fournier on each of the three claims. The jury also answered a single special interrogatory on damages, which did not differentiate between the three claims, and awarded the plaintiff $1,039,807.62. The defendant appeals, inter alia, the denial of his motions for directed verdict and for judgment notwithstanding the verdict (JNOV).

2. Discussion. The defendant asserts a variety of errors, but to succeed on this appeal the defendant must successfully attack the verdict on each of the three counts. If any one of the counts survives the defendant's arguments, the judgment stands. Here we only need address the claim for unlawful interference with an expected gift, as the defendant has raised no meritorious challenge to the verdict as to that count.

We review a denial of a JNOV motion de novo. See Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004) (reviewing court applies same standard as motion judge). The question is whether " 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn' in favor of the nonmoving party." Ibid., quoting from Poirier v. Plymouth, 374 Mass. 206, 212 (1978). In so reviewing we do not reweigh the evidence; our job is to determine whether a reasonable jury could have reached the result challenged. Poirier, 374 Mass. at 213.

Massachusetts law recognizes a claim for unlawful interference with an expected gift, upon proof of the following elements: (1) the defendant must intentionally interfere with the plaintiff's expectancy in an unlawful way, (2) the plaintiff must have a legally protected interest, and (3) "[t]he plaintiff must show that the defendant's interference acted continuously on the donor until the time the expectancy would have been realized." Labonte v. Giordano, 426 Mass. 319, 320-321 (1997). Here the plaintiff's theory was that Fournier had legally protected interests because she was a named beneficiary (or in some instances, joint tenant) of the will and the various bank accounts, and that the defendant unlawfully interfered with those expectations through breaches of fiduciary duty or undue influence that continued until the father's death.

The defendant asserts (1) that there was insufficient evidence of undue influence, (2) that there was insufficient evidence that the defendant's interference operated continuously until the father's death, and (3) that the cause of action should not have been recognized because the plaintiff had "other available remedies." There was no error.

As to whether the plaintiff proved that the defendant interfered unlawfully, there was sufficient evidence for the jury to so find. "Unlawful" interference includes actions, inter alia, that constitute undue influence or breaches of fiduciary duty. See Labonte, 426 Mass. at 321 n.4. Here the defendant was a fiduciary-he had his father's durable power of attorney to conduct all affairs, including all finances. See Cleary v. Cleary, 427 Mass. 286, 295-296 (1998) ; Matter of the Estate of Sharis, 83 Mass. App. Ct. 839, 842 (2013). He used that power of attorney for his own benefit, inter alia, by removing Fournier as a beneficiary of multiple accounts and by transferring all the money out of the Liberty Bay joint account.

The defendant argues that the father knew he was taking these actions in advance, and that he was acting at the father's direction. The evidence on that point was in sharp conflict, however; Fournier testified that she was the one who told the father of the transfers from the Liberty Bay account, and that the father did not know of the transfers and was upset by Fournier's news. The conflict was for the jury to decide.

In any event, there was sufficient evidence for the jury to find that even if the father knew of all of the defendant's actions, the defendant had exerted undue influence. The father was infirm, unable to care for himself, and dependent upon the defendant for decisions as to his care. There was evidence the father was suffering from dementia. Furthermore, the evidence showed that there was an abrupt change in the planned disposition of the father's estate immediately after the defendant gained power of attorney. From the facts adduced at trial the jury could determine that the father had chosen a particular course for the disposition of his estate, but that his will had been overborne by the defendant once the father was placed in the defendant's care and the defendant was given power of attorney. See Matter of the Estate of Sharis, 83 Mass. App. Ct. at 845 ("In many instances a finding of undue influence rests largely on circumstantial evidence, since direct evidence of such influence is often difficult to establish" [quotation omitted] ).

There also was sufficient evidence to find that the defendant's undue influence continued until the father's death. The defendant held the power of attorney throughout the period from October of 2013 until the father's death, and he was responsible for making the decisions as to the father's care. There was evidence that the father's health and mental state continued to decline throughout this time. While there was also evidence-notably, the independent investigation provoked by the father's comment that the defendant was stealing from him-that could have been taken to demonstrate that the father was not continuously influenced, that was for the jury to decide on all the evidence. We cannot say that the defendant's undue influence was interrupted as a matter of law.

Finally, there is no merit to the defendant's contention that the unlawful interference claim fails because the plaintiff had another remedy available through the Probate and Family Court. To the contrary, the plaintiff's tort claim was entirely proper. Nothing in Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 21 (2006), suggests otherwise.

Since there was sufficient evidence for the jury to find for the plaintiff on the count for unlawful interference with an expected gift, the judgment must be affirmed. The damages award did not differentiate between the three counts, and the defendant has raised no objection as to the form of the special interrogatory on damages. Since here the verdict on the unlawful interference claim is sufficient to sustain the damages award, we need not address the defendant's arguments that attack the verdicts on either of the other two counts. ,

Judgment affirmed.

Order denying motion for judgment notwithstanding the verdict affirmed.

      The father's only other child, a daughter, died in 2010.

      The defendant also suggests, in a single phrase, that Fournier did not have a sufficient expectancy interest to be protected by a claim for unlawful interference. The statement is insufficient to preserve the argument, see, e.g., Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011), but in any event, Fournier satisfied this element given her status as named beneficiary of the original will and named beneficiary or joint tenant of the various accounts. See Monach v. Koslowski, 322 Mass. 466, 469 (1948) (plaintiff was named beneficiary of will).

      The defendant frames his argument as a failure to prove "undue influence." However, a person can commit "unlawful" interference by means other than undue influence-for example, by breaching a fiduciary duty. We understand the defendant to be arguing that the plaintiff failed to show any "unlawful" actions.

      We note that as to the conversion count the defendant was a joint tenant of the Liberty Bay account, which he was accused of converting. There is a serious question as to whether a joint tenant can be found to convert funds in an account to which they are a joint tenant. We need not decide the issue, because the jury's verdict is independently supported by the verdict on the unlawful interference count. But see Heffernan v. WollastonCredit Union, 30 Mass. App. Ct. 171, 177 (1991) ("A party to a Massachusetts joint bank account ... has the right to withdraw all the funds in a joint account, or any portion of them").

      The defendant's claim that the judge erred in excluding testimony of Helene Clinton (father's former wife) as to the father's relationship with Fournier is without merit. There was no offer of proof from which this argument could be evaluated. See Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979).

      The plaintiff's request for appellate attorney's fees and costs is denied.


text:
    COMMONWEALTH v. David Lee SELLERS.
    16-P-1198
    Appeals Court of Massachusetts.
    Entered: May 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his second motion for new trial. He claims that (1) the admission of certain testimony from a criminalist created a substantial risk of a miscarriage of justice, and (2) his appellate counsel was ineffective for failing to raise the first issue on direct appeal. We affirm.

Discussion. We review a motion for new trial, filed pursuant to Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), for abuse of discretion. See Commonwealth v. Acevedo, 446 Mass. 435, 441-442 (2006). "Reversal for abuse of discretion is particularly rare where[,] [as here,] the judge acting on the motion was also the trial judge." Ibid., quoting from Commonwealth v. Lucien, 440 Mass. 658, 670 (2004).

1. Criminalist's testimony. The defendant argues that the trial judge erroneously allowed inadmissible testimony from Boston police department criminalist Christine Stevens regarding her reexamination of a vaginal smear slide prepared from swabs taken from the victim. The defendant contends that this testimony was inadmissible on two grounds: (1) Stevens could not account for the chain of custody of that slide; and (2) Stevens's testimony regarding the original testing done by a different criminalist was hearsay.

With respect to the hearsay claim, we agree with the Commonwealth that the defendant did, in fact, raise this claim on direct appeal in a supplemental brief he was permitted to file, in addition to the brief filed by his appellate counsel. Further, this court did pass upon that claim and found it to have no merit. Therefore, the defendant is precluded from raising the same claim again. See Commonwealth v. Williams, 431 Mass. 71, 74 (2000).

With respect to the chain of custody claim, we agree with the motion judge that the defendant did not raise it in his direct appeal or in his first motion for new trial and has therefore waived it. See Mass.R.Crim.P. 30(c)(2). Waiver, however, does not mean that the issue is precluded, but rather that the claims are reviewed for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002). An analysis under the substantial risk standard begins with a determination as to whether or not there was an error. See id. at 298.

The defendant alleges that there was no evidence linking the slide that was examined by Stevens to the swabs taken from the victim. The record, however, shows that in 2001 a sexual assault kit was performed on the victim at the hospital and, as part of that kit examination, two vaginal smear slides were prepared. The kit was transported from the hospital to the Boston police crime laboratory. The front of the kit included the details of the collection from the victim and the kit number The slides were examined by criminalist Susan Flaherty under the supervision of Stevens. Four years later, Stevens received the same kit from storage, broke the seal on it, and removed one of the vaginal smear slides, which bore the case number. This was sufficient to establish a chain of custody for the vaginal smear slide. See Irwin v. Ware, 392 Mass. 745, 750-751 (1984) (there must be some specific evidence linking biological sample to relevant individual to establish proper chain of custody).

To the extent the defendant alleges that Stevens failed to make entries on a tracking sheet regarding the movement of the vaginal smear slide once it was in her custody, any "[a]lleged defects in the chain of custody usually go to the weight of the evidence and not its admissibility." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230 (1992). See Mass. G. Evid. § 402 (2018). Because there was no error, it follows that there could be no substantial risk of a miscarriage of justice.

2. Ineffective assistance of appellate counsel. The defendant claims his appellate counsel was ineffective in failing to raise the chain of custody and hearsay issues with respect to Stevens's testimony. The defendant's burden is the same as in a claim for ineffective assistance of trial counsel. See Breese v. Commonwealth, 415 Mass. 249, 252 (1993). He must show that "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-and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid., quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

As there was no substantial risk of a miscarriage of justice arising out of the criminalist's testimony, it follows that the defendant's argument that appellate counsel was ineffective for failing to raise the issue, fails. See Randolph, 438 Mass. at 296 ("[W]hen a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel[,] ... ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not").

Order denying second motion for new trial affirmed.

      The Commonwealth asks that we take judicial notice of the trial transcripts that were submitted to this court when the defendant filed his direct appeal. The defendant makes no objection to the Commonwealth's request and, in fact, relies on those transcripts to support his own briefs. We therefore take judicial notice of those transcripts. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) ("[A] judge may take judicial notice of the court's records in a related action"); Mass. G. Evid. § 201 (2018).


text:
    TOWN OF WINTHROP v. WINTHROP POLICE BROTHERHOOD LOCAL 421.
    17-P-785
    Appeals Court of Massachusetts.
    Entered: May 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is an appeal from a Superior Court judgment vacating an arbitrator's award reinstating a Winthrop police officer, Ferruccio Romeo, who was terminated for submitting a request to be paid for a special detail that he allegedly did not perform. The detail consisted of an eight-hour shift monitoring traffic at a pump station in the town of Winthrop (town). Romero worked the pump station detail (detail), but he was not physically present at the pump station during most of the shift. Instead, he was at the town hall negotiating a contract on behalf of the Winthrop Police Brotherhood Local 421 (union). The arbitrator found that Romeo did not act dishonestly in requesting payment for the detail because Romeo had understood that the detail was mobile and, as a result, his physical presence was not required as long as he was available to respond to any incident. The arbitrator further found that Romeo did not lie to the Winthrop police chief (chief) during the chief's investigation or when testifying at the town's due process hearing. Accordingly, the arbitrator ruled that the town lacked just cause to terminate Romeo and ordered Romeo's reinstatement with back pay.

The town filed a complaint in Superior Court to vacate the arbitrator's award. The union filed motions to confirm the award and for attorney's fees. In response, the town filed a cross motion to vacate the arbitrator's award. A judge allowed the town's motion and denied the union's motions. Judgment entered vacating the arbitrator's award. Because no underlying misconduct by Romeo was found by the arbitrator, we conclude that the judge erred in determining that the arbitrator's award violates public policy, and we are constrained to reverse. See Boston v. Boston Police Patrolmen's Assn., 477 Mass. 434, 435, 445 (2017) (Boston Police Patrolmen's Assn. ).

Background. On November 24, 2014, Romeo signed up to work a special detail at the town's pump station. The purpose of the detail was to provide traffic control in connection with a beach nourishment project funded by the Massachusetts Department of Conservation and Recreation (DCR). The project involved the movement of sand and rocks to Winthrop beach. The detail ran from 7 A.M. until 3 P.M. , and the detail officer was to receive a one-hour lunch break and bathroom breaks as needed. The detail officer was required to sign in at 7:00 A.M. and report to the DCR office, but the officer was not required to be present at the pump station until 9:00 A.M. , after which the officer was permitted to drive along the truck route between the pumping station and the beach as long as the police radio was on and the officer was available to respond to any incident.

On the morning of November 24, 2014, Romeo, dressed in his police uniform, reported to the police station around 7:30 A.M. , after which he drove a police cruiser to the pump station. He returned to the police station around 9:30 A.M. , and then went to the town hall where he engaged in a negotiation session on behalf of the union from about 10:00 A.M. until 2:30 P.M. That day, Romeo submitted a request to be paid for eight hours of work on the detail.

The next day, the chief, who was present at the negotiation session the day before, noticed that Romeo had submitted a slip for eight hours for working the detail the day before. On December 1, 2014, the chief questioned Romeo as to how he could have been working the detail on November 24, 2014, when he was at town hall negotiating on behalf of the union. Romeo responded that it was his understanding from speaking with two DCR employees that the detail was a "floating" or mobile detail that did not require him to remain on-site. After speaking with the two DCR employees and other Winthrop police officers, all of whom expressed their belief that the detail was a stationary detail that required the officer to be physically present, the chief concluded that Romeo had submitted a false time slip and had lied during the chief's investigation with respect to the duties and responsibilities of the detail. The chief placed Romeo on administrative leave pending the outcome of an internal investigation regarding the detail.

On December 18, 2014, the town held a due process hearing to consider Romeo's actions. Following the hearing, on January 9, 2015, the town manager discharged Romeo for committing a dishonest act and for untruthfulness. Romeo filed a grievance to challenge his dismissal, and ultimately the matter was submitted to arbitration. The parties agreed to submit the following questions to the arbitrator: (1) "Was there just cause for the termination of Officer Ferruccio Romeo?" and (2) "If not, what shall be the remedy?"

The arbitration hearing spanned the course of four nonconsecutive days during which Romeo, the chief, a police sergeant, and a DCR employee testified. In addition, the arbitrator considered the testimony that had been presented at the town's due process hearing. The arbitrator found that Romeo was working the pump station detail on November 24, 2014, even though he was negotiating at town hall during part of that detail, because Romeo was "available" the entire detail shift; but that he should have asked for or received permission to work the detail from the town hall. Despite this failure on Romeo's part, the arbitrator found that Romeo had not been dishonest because Romeo "acted on his belief that he could use the [t]own [h]all as his base from which he could execute the detail." The arbitrator also found that Romeo did not lie to the chief when he conveyed his understanding based on conversations with DCR employees that the detail was a floating detail or during his testimony at the due process hearing. The arbitrator concluded that there was no just cause to terminate Romeo, that Romeo be given a letter of warning for failing to receive prior authorization to work the detail from an alternate location, and that Romeo be made whole for all lost wages and benefits.

A Superior Court judge concluded otherwise when she vacated the arbitration award. The judge determined that Romeo's actions violate "a well-defined, dominant public policy that dishonesty by police officers will not be tolerated," such that "the decision to reinstate him would offend public policy." While noting that Romeo "is not the first police officer to make a billing error," the judge stated that Romeo's termination "is warranted because of his dishonesty, compounded by his unwillingness to take responsibility for disobeying the [d]etail's rules." The judge observed that the award ordering Romeo's reinstatement "appears to invite, if not encourage, double billing from public funds for doing details at which [officers] are intentionally not even present." She also concluded that, despite the limited circumstances in which an arbitrator's award can be vacated, the award reinstating Romeo must be vacated because the arbitrator had failed to articulate the reasons why he credited Romeo's "erroneous belief" that he could perform the detail duties from an unapproved location.

Discussion. a. The arbitration award. The union's primary argument is that the judge erred in vacating the arbitrator's award on public policy grounds because, in light of the arbitrator's finding that Romeo did work the detail and did not lie, Romeo's reinstatement did not violate public policy. We agree.

The outcome here is controlled in all material respects by Boston Police Patrolmen's Assn., in which the Supreme Judicial Court held that the public policy exception cannot bar a police officer's reinstatement where "the arbitrator found that [the officer] acted reasonably and truthfully." Id. at 443. Here, as in that case, the arbitrator's award does not violate the well-defined public policy requiring honesty in police officers because the arbitrator found that Romeo was not dishonest. The result we reach may have been different had the chief or DCR outlined the parameters of the detail or expressly stated that the detail required the officer's physical presence the entire time, but they did not. Nonetheless, where, as here, the arbitrator found no underlying misconduct, the award ordering reinstatement must be affirmed.

b. Attorney's fees. The judge also denied the union's motion for reimbursement of its attorney's fees. The union contends that it was entitled to fees and costs under G. L. c. 231, § 6F, because the town "knowingly drafted a complaint that ignored the Arbitrator's conclusions." On appeal, the union asks us to vacate the judge's order denying its request for attorney's fees and remand the issue for further consideration. We decline to do so.

Conclusion. The judgment vacating the arbitrator's award is vacated and a new judgment shall enter affirming the arbitrator's award.

So ordered.

      Romeo was the union president and had held that position for eleven years.

      As described by the arbitrator in his findings, the town manager drew the following conclusions: "1. .... During the time that you billed for [the] detail [on November 24, 2014], you were not present at the detail. Billing for services rendered without being present constitutes unacceptable judgment[,] fraud, and conduct unbecoming a police officer. 2. The above referenced conduct constitutes a dishonest act which is contrary to the trust that citizens put in public safety officers. 3. You specifically stated that the engineers from the [DCR] stated to you that it was unnecessary for you to be physically present at the detail. Your statement was specifically contradicted by the DCR resident engineer as was well as the DCR inspector. Your assertion that you didn't have to be present at the detail was also specifically contradicted by other members of the Police Department. 4. Your statements during the disciplinary investigation and the hearing were untruthful .... 5. The above referenced conduct violates the rules and regulations of the Department, specifically ... integrity, ... personal behavior, and ... conduct unbecoming an officer."

      The judge stated: "Clearly to save his job, Officer Romeo apparently believed he had to come up with some excuse for his behavior. Creating an erroneous and unfounded 'belief' [that he could work the detail without being present] apparently was his excuse." The judge discredited the statements made by Romeo, who is a member of the Massachusetts Bar, to the point that she sent a copy of her memorandum of decision and order to the Board of Bar Overseers for investigation into whether he violated the Massachusetts Rules of Professional Conduct.

      The union also contends that the judge misapplied the law and improperly found additional facts. In light of our conclusion that the judge improperly vacated the arbitrator's award on public policy grounds, we need not reach these arguments.


text:
    COMMONWEALTH v. Angel RIVERA.
    17-P-1047
    Appeals Court of Massachusetts.
    Entered: May 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant has been charged with possession of heroin with intent to distribute, G. L. c. 94C, § 32(a ). Following an evidentiary hearing, a District Court judge allowed the defendant's motion to suppress heroin seized from his backpack following a traffic stop. The Commonwealth's application to pursue an interlocutory appeal was allowed by a single justice of the Supreme Judicial Court, who reported the matter to this court. See G. L. c. 278, § 28E ; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Commonwealth's principal argument on appeal is that the heroin was seized pursuant to a valid consent search and therefore it was error to suppress the fruits of the search. For the reasons that follow, we reverse and remand for further proceedings.

Background. We summarize the pertinent facts from the judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted suppression hearing testimony that the judge explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). At approximately 5:45 P.M. on August 20, 2016, Massachusetts State police Trooper Gerald Perwak observed the defendant operating a motor scooter on Walnut Street in Springfield. Trooper Perwak's attention was drawn to the motor scooter because its speed exceeded twenty miles per hour and it was traveling in the middle of the lane-both traffic violations for such vehicles. Trooper Perwak followed the motor scooter as it turned into a Burger King parking lot, activated his cruiser's blue lights, and pulled up behind the scooter when it stopped. Trooper Perwak approached the defendant and asked for an operator's license, permit, or other form of personal identification. The defendant was unable to produce any, but gave the trooper his name and assisted him in locating the motor scooter's vehicle identification number.

Trooper Perwak directed the defendant to remove the backpack that he was wearing and inquired about its contents. The defendant responded "money." Trooper Perwak asked the defendant if he could "look inside [the] backpack." Trooper Perwak testified that the defendant responded by nodding his head and saying "yeah." The search of the backpack revealed over 200 bags of suspected heroin.

The defendant testified at the hearing and denied that he consented to a search of his backpack. The judge did not resolve this conflict in the evidence. He concluded that although there was a "clear basis to make a motor vehicle stop for the observed infractions, ... [there was] no probable cause to request to search the backpack[,] [n]o exigent circumstances[,] ... [and] no suggestion that ... the [t]rooper had any fear for his safety."

Discussion. We review the judge's decision under familiar standards, and accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). However, we "make an independent determination of the correctness of the judge's application of constitutional principles to the facts." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

There is no question that Trooper Perwak's initial stop of the defendant was valid. "Where the police have observed a traffic violation, they are warranted in stopping a vehicle." Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting from Commonwealth v. Santana, 420 Mass. 205, 207 (1995). Here, Trooper Perwak observed the defendant driving his motor scooter in the middle of the lane in excess of twenty miles per hour in violation of G. L. c. 90, § 1E. The judge correctly concluded that "[t]here was a clear basis to make a motor vehicle stop for the observed infractions." The defendant does not claim otherwise.

Rather, the defendant argued at the suppression hearing that the trooper unlawfully extended that routine traffic stop by inquiring about the contents of the backpack. We disagree. In the course of a traffic stop, "[i]f the driver produces a valid license and registration, there is ordinarily no reason for an officer to probe further. The officer should give the driver a citation for the traffic offense and then permit the vehicle to proceed on its way." Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 471 (1996). Here, however, the defendant did not produce a valid license or registration. Therefore, the trooper was entitled to prolong the roadside investigation to confirm the defendant's identity, to ensure that the defendant was properly licensed, and to verify the scooter's registration. See Commonwealth v. Ciaramitaro, 51 Mass. App. Ct. 638, 643-644 (2001) (officer's "efforts to confirm the validity of the defendant's driver's license and registration" may permissibly extend length of traffic stop). See also G. L. c. 90, § 1E ("A motorized scooter shall not be operated on any way by a person not possessing a valid driver's license or learner's permit").

Having concluded that the traffic stop was lawfully extended to confirm the defendant's identity and his right to operate the motor scooter on a public way, we next examine whether, during the prolonged traffic stop, the trooper was permitted to request consent to search the backpack. "General questioning unrelated to the reason for a police encounter does not 'convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.' " Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 372 n.13 (2010), quoting from Arizona v. Johnson, 555 U.S. 323, 333 (2009). Here, Trooper Perwak's questions about the backpack came soon after his initial contact with the defendant and before the defendant's identity and right to operate the motor scooter had been confirmed. When Trooper Perwak asked the defendant about the contents of his backpack and the defendant responded "money," Trooper Perwak immediately followed up with a second question-"[c]an I look inside your backpack?" Nothing in the record suggests that the duration of the stop was extended by Trooper Perwak's questions related to the backpack or that the backpack search caused any significant delay.

It is well settled that "[t]he police require neither probable cause nor reasonable suspicion to ask an individual to give consent to a search." Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 11-3[b] (2017). See Commonwealth v. Rodriguez, 456 Mass. 578, 588 (2010), quoting from Commonwealth v. Mubdi, 456 Mass. 385, 389 (2010) (Commonwealth has burden of proving "probable cause, reasonable suspicion, or consent to search" to justify search [emphasis supplied] ). Therefore, to the extent that the order allowing the motion to suppress was based upon the judge's conclusion that "the court finds no probable cause to request to search the backpack," it was error. No predicate was required to ask for consent.

Conclusion. The judge did not resolve the conflict in the evidence as to whether the defendant gave his consent to search the backpack. Therefore, the order allowing the motion to suppress for failure to establish probable cause or reasonable suspicion to request consent to search the defendant's backpack is reversed, and the case is remanded for resolution of that issue and such further proceedings as may be necessary.

So ordered.

      "A motorized scooter shall not be operated on any way ... at a speed in excess of 20 miles per hour.... [A] scooter operator shall keep to the right side of the road at all times." G. L. c. 90, § 1E, inserted by St. 2004, c. 396, § 3.

      "Other points, relied on by the defendant[ ], but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

      In light of his ruling, the judge did not address the portion of the motion seeking to suppress the defendant's statements. We note that, prior to the hearing, the judge determined that the scope of the hearing was limited to "the stop and any statements made at that point," rather than statements the defendant later made at the police station.


text:
    COMMONWEALTH v. Yusuf Ibn QADIR.
    16-P-1122
    Appeals Court of Massachusetts.
    Entered: May 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Yusuf Ibn Qadir, was convicted of possession of a firearm without a license, possession of ammunition without a license, and unlawful storage of a firearm. On appeal the defendant challenges the denials of both his motion to suppress and his motion for required findings of not guilty. We affirm.

1. Motion to suppress. a. Facts. We summarize the facts found by the motion judge after the evidentiary hearing. "[W]e are bound by a judge's subsidiary findings of fact absent clear error." Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005). The judge specifically credited the testimony of the four Springfield police officers who testified at the hearing.

On July 1, 2015, Springfield police officers were dispatched to a residence based on a report of a fight there, involving seven or eight people. As he approached, Officer Chad Joseph observed people running through the front door of the residence and also saw neighbors pointing towards the residence. Joseph was familiar with the location based on a number of prior incidents involving drug violations and domestic abuse.

In front of the residence, Joseph observed a woman who was bleeding from the mouth. Joseph spoke to her and noticed that she was shaking, frantic, and her speech was difficult to understand. She stated that "they beat me up" and pointed to the residence. At this time, backup had arrived, and at least four officers approached the residence. As they stood outside the residence, the officers could hear people running upstairs. The officers knocked on the front door and when it was opened, the officers stated their intention to enter the home and conduct a protective sweep; they did not seek nor were they given consent to enter.

Several officers then entered the residence and proceeded to conduct a protective sweep of the entire house in search of other injured parties or assailants. Joseph went to the second floor with Officers Williams and Dyer. The officers approached a door at the top of the stairs that was closed and locked. They heard footsteps behind the door and what sounded like an item being dragged across the floor. After knocking and announcing themselves several times, the officers ordered that the door be opened upon threat of kicking it down.

Following these repeated commands, the defendant opened the door. Joseph secured the defendant and removed him from the residence pending completion of the protective sweep. Williams and Dyer then entered the room, which appeared to be a bedroom; no people were found in the room. Williams then opened a closet door in the room and in the closet the officers immediately saw a large plastic cooler with the lid open. Inside the cooler were unsecured handguns, a stun gun, and more than 1,000 rounds of ammunition. Subsequent investigation revealed that the defendant and his brother, Munir Qadir, shared the bedroom, and neither was authorized to possess ammunition, firearms, or stun guns.

The judge denied the defendant's motion to suppress, finding that the emergency aid exception to the warrant requirement applied.

b. Discussion. The defendant maintains that the judge erred in denying his motion to suppress evidence from the warrantless search because the officers were not confronting a situation that came within the emergency aid exception. For the following reasons, we affirm.

The emergency aid exception to the warrant requirement "applies when the purpose of the police entry is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property." Commonwealth v. Snell, 428 Mass. 766, 774, cert. denied, 527 U.S. 1010 (1999), quoting from Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 (1990). This exception requires (1) the presence of "objectively reasonable grounds to believe that an emergency exists" and (2) that "the conduct of the police following the entry [is] reasonable under the circumstances, which here means that the protective sweep must be limited in scope to its purpose-a search for victims or suspects." Commonwealth v. Peters, 453 Mass. 818, 823 (2009).

"[T]he burden of proof is on the Commonwealth to show that the warrantless entry falls within the exception [to the warrant requirement] and that there were reasonable grounds for the ... police to believe (an objective standard) that an emergency existed." Bates, supra at 219-220. The officers are not required to be certain that a person's life is in danger or to know the precise nature of a person's injuries, nor are they required to have probable cause to believe that a crime has been committed. See Commonwealth v. Entwistle, 463 Mass. 205, 214 (2012). "It suffices that there are objectively reasonable grounds to believe that emergency aid might be needed." Ibid.

Here, the judge found that there were objectively reasonable grounds to believe that an emergency existed. We agree. The officers were familiar with the residence because of prior domestic abuse and drug issues. Upon arriving, the officers observed an injured female who was unable to provide detailed information apart from indicating that her assailant(s) were inside the residence. The officers also saw several people flee into the residence as the police arrived, and neighbors were pointing to the residence. Under these circumstances, it was reasonable for the officers to believe that an emergency existed inside the residence and to enter for the purpose of locating additional injured parties or to quell further violence inside. See ibid., quoting from Michigan v. Fisher, 558 U.S. 45, 49 (2009) (" 'Officers do not need ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception.' ... It suffices that there are objectively reasonable grounds to believe that emergency aid might be needed").

Having concluded that the entry was justified, we turn to the second requirement of the emergency aid exception: that the conduct of the police following the entry must be reasonable in the circumstances, which here means a search for possible victims and assailants. See Peters, supra. Contrary to the defendant's contention, there was no evidence to suggest that the police used the perceived emergency as a pretext to conduct a search of the premises. Once inside the residence, the scope of the sweep was reasonable as it was limited to areas where a person could be located and was brief in duration. See id. at 824 ("The protective sweep was limited in scope to a cursory inspection for a [perpetrator] or victim, and reflected the officers' lawful purpose in entering the house and conducting the sweep"). Upon opening the closet door in furtherance of this lawful purpose the officers observed handguns, a stun gun, and multiple rounds of ammunition in plain view. The defendant's motion to suppress was properly denied.

2. Motion for required findings of not guilty. The defendant next argues that the judge erred in denying his motion for required findings of not guilty because there was insufficient evidence that the defendant had constructive possession of the firearms and ammunition found in the closet, and insufficient evidence of unlawful storage of a firearm. We disagree.

In determining the sufficiency of the evidence at trial, we apply the standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), that is, when the evidence is viewed in the light most favorable to the Commonwealth, "whether any rational fact finder could have found all essential elements of the crime beyond a reasonable doubt." Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 839 (2012).

a. Constructive possession of firearms and ammunition. There was sufficient evidence to support the convictions of the crimes of possession of firearms and ammunition without a license beyond a reasonable doubt. Because the incriminating evidence was found in the bedroom closet, and not on the defendant himself, the Commonwealth had to prove that the defendant had constructive possession of the items. See Commonwealth v. Boria, 440 Mass. 416, 418 (2003).

To prove constructive possession, the Commonwealth must show "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984). While the defendant's presence in the residence, by itself, is insufficient to prove "the requisite knowledge, power, or intention to exercise control over the [firearms and ammunition], presence, supplemented by other incriminating evidence, 'will serve to tip the scale in favor of sufficiency.' " See id. at 410, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). See Commonwealth v. Gonzalez, 452 Mass. 142, 146-150 (2008).

Here, not only was the defendant present in the residence at the time the officers conducted the protective sweep, but a reasonable fact finder could conclude that the defendant ran to the bedroom to hide the firearms and ammunition in the closet before the officers approached. See Commonwealth v. Pimentel, 73 Mass. App. Ct. 777, 785 (2009) ("scurrying sounds" could support inference that someone hid contraband). The defendant refused to open the locked door, despite numerous requests from the officers. See Commonwealth v. McIntosh, 78 Mass. App. Ct. 37, 42 (2010) (sufficient evidence of intent to control firearm where presence was supplemented by evidence that defendant ran to bedroom and proceeded directly to location under mattress where firearm was found).

The defendant contends that it was his brother's bedroom in which the firearms were found and emphasizes that there was no clothing or other identifying evidence found in the bedroom that linked that room to him. The defendant cites Commonwealth v. Frongillo (No.1), 66 Mass. App. Ct. 677, 681 (2006), as support for his contention. The facts in Frongillo are distinguishable. Here, unlike in Frongillo, the defendant was present at the residence-and in the room-where the firearms were located. There was evidence from which the jury could infer that he fled to that room, locked the door, and dragged a cooler containing the firearms to the closet. The defendant also ignores that constructive possession may be joint. See, e.g., Commonwealth v. Acosta, 416 Mass. 279, 284 (1993).

b. Unlawful storage of firearms. The defendant argues that there was insufficient evidence that he was the owner or authorized user of the firearms or ammunition, which proof was required for a conviction. However, the statute does not impose such a requirement, and the judge instructed the jury in accordance with the statute. See Instruction 7.630 of the Criminal Model Jury Instructions for Use in the District Court (2014) (Commonwealth must prove that [1] defendant stored or kept firearm, [2] defendant was not carrying firearm or did not have it under his immediate control, and [3] firearm was not secured). "Whether a particular gun is under a defendant's control 'will depend on the facts and circumstances of any given case.' " Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 172 (2013), quoting from Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 320 (2011). There was sufficient evidence for the jury to conclude that the defendant was guilty of the crimes charged.

Judgments affirmed.

      Four of the officers who testified at the evidentiary hearing on the motion to suppress also testified at trial. At trial, two additional police officers testified, and one fingerprint expert from the police department also testified. (There was no fingerprint evidence presented at trial.) A woman who had been present was also a witness. For our analysis, it is not necessary to summarize the evidence presented at trial because it does not differ significantly from the evidence presented at the motion hearing.

      General Laws c. 140, § 131L(a ), inserted by St. 1998, c. 180, § 47, states: "It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user."