text:
    COMMONWEALTH v. Emmett MULDOON.
    15-P-580
    Appeals Court of Massachusetts.
    Entered: June 25, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 1996, the defendant pleaded guilty to indictments that charged aggravated rape, armed home invasion, burglary with assault on an occupant, armed robbery, and assault and battery by means of a dangerous weapon. On February 18, 2014, almost eighteen years later, the defendant moved to withdraw his guilty pleas and for an evidentiary hearing. He argued that his pleas were entered neither knowingly nor voluntarily as a result of his attorney's ineffectiveness and that the indictments charging armed home invasion and what he labels unarmed burglary must be vacated because the evidence does not support either charge. The judge, who was not the plea judge, denied the motion without a hearing in a written memorandum of decision. The defendant appealed and moved for reconsideration; the motion judge denied the latter motion. The defendant's appeal from the denial of the motion for reconsideration has been consolidated with his appeal from the denial of the original motion.

Background. We briefly summarize the evidence presented at the plea hearing and before the grand jury, reserving certain details for discussion with the issues raised. Sometime before 1:15 A.M. on May 15, 1995, the defendant used tin snips to cut a screen and enter a first-floor Quincy apartment in which three young women lived. Once inside, the defendant took a bottle of beer from the refrigerator and went into the victim's bedroom. He slashed at least five pairs of the victim's underwear and drank the bottle of beer, remaining in her room for some period of time in the dark.

The victim returned home from work and, after talking to her boy friend on the telephone for about twenty minutes, went into her bedroom around 1:30 A.M. Before she could reach the light switch, the defendant grabbed her from behind, put his hand over her nose and mouth, and put a knife to her throat. The victim grabbed the knife and recognized it as one from her kitchen. She acceded to the defendant's exhortations to let go of the weapon. Over the course of approximately the next thirty minutes, the defendant bound the victim's hands and physically assaulted her as he raped her twice anally, twice vaginally and once orally. The victim heard the knife drop and was able to grab it as she struggled with the defendant, stabbing him at least twice. The defendant punched her in the face; she could hear bones crunching. She continued to hold onto the knife even as it slipped and sliced into her hand. She managed to get to the bedroom door, open it, and run screaming into the hallway.

A roommate came out of another bedroom and saw the defendant in the hallway with his pants down around his knees. There was a shattering and crashing of glass; the defendant had fled through the victim's bedroom window.

The police arrived at the scene. There was a trail of blood on the floor of the apartment and in the victim's bedroom, blood on the bed, an empty beer bottle, and a knife on the floor. At the spot where the roommate had seen the defendant with his pants around his knees, police found a wallet containing the defendant's driver's license.

The victim's face was beaten so badly it looked like she "didn't have a nose." She was hospitalized and underwent major surgery to her right hand, which she could not use for five months.

Within an hour, police found and arrested the defendant at the Braintree address on his driver's license. He had a significant wound to his leg and a wound to his left wrist. In his possession were the victim's paycheck and $291 he had stolen from her. He told police, "I fucked up," and "I only went in for the money. I had to punch her to get out."

Discussion. A guilty plea can be withdrawn only if "it appears that justice may not have been done." Commonwealth v. DeMarco, 387 Mass. 481, 487 (1982), quoting from Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). In the face of an adequate plea colloquy, the defendant bears the heavy burden of demonstrating that he did not knowingly and voluntarily proffer the pleas. On appeal, we can reverse a judge's determination that a defendant failed to meet that burden only where the judge abused his discretion. See, e.g., Commonwealth v. Bowen, 63 Mass. App. Ct. 579, 583-584 (2005). Here, the defendant does not challenge the colloquy, but argues instead that plea counsel's ineffectiveness and the lack of evidence on two indictments warrant relief and that the motion judge should have held an evidentiary hearing on the motion.

1. Ineffective assistance of counsel. The defendant challenges counsel's failure to investigate a defense based on the defendant's alleged impaired mental state, and counsel's failure to seek suppression of evidence seized after police made a warrantless entry onto his property and to seek suppression of the eyewitness identification.

a. Mental state. The defendant claims that counsel should have investigated an insanity defense and sought an evaluation for criminal responsibility in view of the evidence showing that, at the time of the crimes and the plea, the defendant was suffering from "organic brain impairment related to long-term alcohol use and traumatic [head] injury" and that he was in the early stages of multiple sclerosis. The evidence to which the defendant refers is largely contained in his affidavit filed in support of his motion to vacate his plea, more than eighteen years after the plea.

The affidavit recites that he was (1) struck on the head by a car when he crossed the street at the age of eight; (2) kicked in the head multiple times during a fight in 1971; (3) hit multiple times on the head during his childhood with baseballs and during ice hockey; and (4) involved in an automobile accident in 1994, and lost consciousness when an airbag deployed. Apart from the medical records related to the auto accident -- that indicate the defendant was unsure whether he lost consciousness but also that he had no loss of consciousness -- there is no record support for the defendant's claims.

There is, however, evidence to the contrary. The day after his arrest for these offenses the defendant was admitted to Bridgewater State Hospital for an evaluation. That record shows that the defendant acknowledged that he had a drinking problem and a heart problem, but he otherwise reported that he has "always been in good health" and that "he has never had any surgeries nor has he had head injuries, loss of consciousness or seizures." The report's author indicated that there was no evidence of mental illness, a description similar to that of the defendant's own therapist at the time, who described him as having no evidence of loosening associations or thought disorder. In these circumstances, the motion judge was not required to credit the defendant's self-serving affidavit that outlined multiple head injuries and "cognitive decline." See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997) ; Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 552-554 (2002).

With respect to the failure to investigate a defense based on alcohol impairment, the motion judge correctly determined that the decision on the defendant's motion to suppress effectively removed the viability of any intoxication-based defense. The suppression judge discredited the defendant's claim that he was in a blackout or "rambling" when he spoke to police within an hour of the crime, finding that he was coherent, cooperative, and able to walk steadily; he accurately described to police where his bloody clothing was hidden in the cellar; and laboratory tests at 4:30 A.M. revealed no alcohol or drugs in his system.

The defendant's additional assertion that his mental ability was impaired in 1995 because of the onset of early symptoms of multiple sclerosis is speculative where the evidence adduced by the defendant shows that the disease was not observed in him until about ten years later, in 2005.

To the extent the defendant also argues that counsel was ineffective for failing to raise the defendant's purported mental impairment at sentencing, we reject the argument given the lack of any credible evidence that such impairment existed but for his history of alcoholism, which counsel ably presented. That counsel was effective may be inferred from the imposition of a sentence that was at least fifteen years less than the sentences three different judges had indicated they were likely to impose in earlier plea negotiations, and was also less than that recommended by the prosecutor.

b. Police entry on property. Next, the defendant argues that counsel was ineffective for failing to challenge, as part of his motion to suppress, the police entry into his home's breezeway. To succeed the defendant must show both that the argument would likely have been successful and that the failure to pursue it deprived him of an otherwise substantial ground of defense. Commonwealth v. Morin, 478 Mass. 415, 424 (2017).

According to the defendant, the covered opening between the side of his home and the detached garage was entitled to protection under the Fourth Amendment to the United States Constitution and the police entry into that area to knock on the kitchen door was without justification. The argument turns on the defendant's description of the breezeway as a closed space. His affidavit, however, cannot overcome the evidence that depicts the area with an open, but covered, walkway, without doors or other recognizable barriers, through which the exterior side door to the house was accessed, and to which the public was invited.

Specifically, the 2004 photograph supplied by the defendant, while not entirely clear, appears to depict an open, covered walkway between the garage and the house and does not show the presence of a door. Police testimony from the motion to suppress hearing was consistent with this description. The testimony repeatedly indicated that the officers walked up the driveway, directly to the side door in the breezeway, knocked, and were admitted through that side door directly into the kitchen. Apart from the defendant's affidavit, there is no suggestion that a door or other enclosure secured the area between the garage and the house from access or observation by visitors or passersby.

Rather, the opening between the garage and house was "one that a visitor would naturally expect to pass through to gain access to the [side] door," and for this reason, it would not, contrary to the defendant's argument on appeal, "be part of the 'curtilage' entitled to Fourth Amendment protection." Commonwealth v. Pietrass, 392 Mass. 892, 901 (1984). Contrast Commonwealth v. Hurd, 51 Mass. App. Ct. 12, 16 (2001) ("[T]the object that was the subject of observations [an animal cage] was not in the driveway, but rather in a partially fenced-in back yard. In that location, it was not visible from the public street or even from the front, porch or shed doors"). Thus, as the motion judge concluded, the police in this case were permitted to approach the side door of the home and knock, "precisely because that is 'no more than any private citizen might do.' " Florida v. Jardines, 569 U.S. 1, 8 (2013), quoting from Kentucky v. King, 563 U.S. 452, 469 (2011).

c. Identification evidence. Also unavailing is the defendant's third claim -- that counsel should have sought to suppress the identification by the victim and her roommate of the defendant's picture on his driver's license that police found in the victim's apartment moments after the attack and displayed to each witness. Even if we assume that showing the defendant's driver's license to the victim and eyewitness was the equivalent of a showup or one-on-one identification procedure, because it was conducted within about an hour of the reported violent crime when the suspect was still at large, it was not "so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] due process of law." Commonwealth v. Dew, 478 Mass. 304, 308 (2017) (good reason for showup thirty minutes after robbery at knifepoint, where police tracked suspect to nearby apartment). See Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712 (2018) ("For constitutional purposes, a one-photograph identification is the equivalent of an in-person, one-on-one identification [often referred to as a 'showup']").

2. Sufficiency of indictments. a. Armed home invasion. The motion judge correctly rejected the defendant's claim that the evidence failed to prove that he was armed when he entered the apartment, where the evidence showed he had used tin snips to cut a screen to enter the residence. Commonwealth v. Ruiz, 426 Mass. 391, 392-394 (1998).

b. Burglary with assault on an occupant. Indictment number 10091 (091) charged burglary with assault on an occupant under G. L. c. 266, § 14, but the defendant claims the crime to which he pleaded guilty in relation to this indictment was unarmed burglary under G. L. c. 266, § 15. The defendant's assertion that he pleaded guilty to unarmed burglary appears to stem from the twice mistaken characterization by the clerk during the plea colloquy that the indictment charged unarmed burglary. While we recognize that a defendant's knowledge of the crime charged should be apparent from the plea colloquy and that the inquiry in this case presents a closer question than need be, we nevertheless conclude that the defendant understood he was pleading guilty to burglary with assault on an occupant and not unarmed burglary. See Commonwealth v. Canty, 466 Mass. 535, 549 (2013).

The body of indictment 091 tracked that portion of G. L. c. 266, § 14, that criminalizes an assault on an occupant, stating the defendant "did break and enter in the night time the dwelling house ... with intent therein to commit felony and did make an actual assault on a person lawfully therein." The reverse side of the indictment also correctly recited the applicable statute, G. L. c. 266, § 14. In the upper left corner of the reverse side, however, the letters "unar burg" had been typed.

The law is clear, and was clear long before the defendant pleaded guilty in 1996, that the text in the body of the indictment dictates the crime charged. See, e.g., Commonwealth v. Brown, 116 Mass. 339, 340 (1874) ; Commonwealth v. McClaine, 367 Mass. 559, 560 (1975). In those situations where there is "a discordance between the caption and the text in the body of the indictment, the text would govern and supersede the caption...." Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 459, S.C., 430 Mass. 517 (1999). Here, the truncated "unarm burg" phrase barely qualifies as part of the caption and certainly cannot be viewed as part of the text in the body of the indictment on the opposite side of the document. It was therefore abundantly clear that the indictment charged burglary with assault on an occupant, and we are convinced that the defendant, who was represented by counsel, understood that point. See Commonwealth v. Fernandes, 430 Mass. at 519-520.

Furthermore, before the plea, the victim testified to the events in question, and the judge engaged the defendant in the following colloquy during plea hearing:

THE COURT : "[D]o you understand that you have been charged with five separate offenses?"
THE DEFENDANT : "Yes, I do."
THE COURT : "Did your attorney tell you the various elements of those offenses that [would] have to be proven at a trial of this case?"
THE DEFENDANT : "Yes."
THE COURT : "Did your attorney advise you of the evidence that the Commonwealth had against you relating to those charges?"
THE DEFENDANT : "Yes, he has."
THE COURT : "So, you were fully informed of the nature of the charges, meaning all the elements, as well as the evidence that the Commonwealth had against you before this hearing?" (emphases added)
THE DEFENDANT : "Yes, your honor."

The defendant's affirmative responses during this exchange signaled that he had discussed the charges with his attorney before the plea hearing, and that his attorney had explained the elements of those charges and the relevant evidence. Because indictment 091 cannot reasonably be mistaken for one that charges unarmed burglary for the reasons discussed above, this discussion, which preceded the clerk's mistaken characterization of the crime, would have alerted the defendant to the fact that he was charged with burglary with assault on an occupant. That discussion, together with his subsequent admission to facts that established that offense, support the conclusion that he knew he was pleading guilty to burglary with assault on an occupant. See Commonwealth v. Canty, 466 Mass. at 549 (2013).

Similarly telling is the defendant's failure to raise the argument for more than eighteen years and the failure to provide an affidavit from plea counsel in support of the defendant's assertion that he thought he was pleading guilty to unarmed burglary. See Commonwealth v. Thurston, 53 Mass. App. Ct. at 551.

3. Evidentiary hearing. Finally, we conclude that the judge did not abuse his discretion in denying the defendant's motion for new trial without an evidentiary hearing, because the motion and affidavits raised no substantial issue. See Commonwealth v. McWilliams, 473 Mass. 606, 622 (2016).

Orders denying motion to withdraw guilty pleas and denying motion for reconsideration affirmed.

      During the grand jury proceedings that took place only sixteen days after the event, a police officer testified that he had gone to the side door and rung a doorbell, suggesting that that door was indeed one visitors were expected to use. The 2004 photograph offered by the defendant is consistent in that it depicts a house number next to both the front door and the side door.

      The relevant portion of G. L. c. 266, § 15, reads, "Whoever breaks and enters a dwelling house in the night time, with the intent [to commit a felony] ... , the offender not being armed, nor arming himself in such house, with a dangerous weapon, nor making an assault upon a person lawfully therein, shall be punished ..." (emphases added).

      The motion judge found that the defendant pleaded to unarmed burglary, but ruled that there was no prejudice. We disagree with that analysis. Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (we may rely on grounds different from the motion judge in affirming the lower court ruling).

      The motion judge referred to the back side of the indictment as a "docket sheet."


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Donna RASSULO.
    17-P-920
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Donna Rassulo, was convicted of operating a motor vehicle while under the influence of alcohol (OUI), and negligent operation of a motor vehicle. In a separate proceeding after the jury trial, the judge found that the defendant had been convicted of OUI twice before; that is, the judge found her guilty of committing a third offense OUI. The defendant appeals only the OUI conviction, arguing that there was insufficient evidence to support it, and that the jury ignored the "extremely credible" evidence of two defense witnesses. We affirm.

When a defendant challenges the sufficiency of the evidence on appeal, we apply the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). To support a conviction of operating a motor vehicle while under the influence of alcohol, the evidence and resulting inferences must be "of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 218 (2006), quoting from Latimore, supra at 677.

"There are three elements to the crime of operating under the influence of alcohol under G. L. c. 90, § 24 : (1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol." Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). "Proof of operating under the influence on a public way may 'rest entirely on circumstantial evidence.' " Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010), quoting from Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006).

The evidence offered at trial that this defendant was operating her vehicle while under the influence of alcohol was strong. An experienced, uniformed police officer testified that, on December 7, 2014, he was sitting in a police cruiser monitoring traffic at a busy intersection in the business district of West Concord. At approximately 5:30 P.M. , he heard "a loud crash and screeching tires." He looked to his left and saw a vehicle drive up and over a sidewalk, "heading pretty much directly at the gas station pumps in the gas station in front of that." When the car was approximately seventeen feet from the pumps, it changed direction and made "an abrupt turn back, accelerating back to Main Street towards the proper lane of travel" where it should have been traveling. Back in the street, it "continued straight across and struck another curbing" and then continued to travel down the road, before parking in a marked parking space, but "kind of awkwardly caddy-cornered and half of the vehicle was in the roadway." The roads in question are maintained by the town of Concord.

The officer pulled his cruiser behind the vehicle and discovered that the defendant was the operator. He also detected a strong odor of an alcoholic beverage coming directly from the defendant's breath. The defendant then failed attempts at performing three different field sobriety tests and was unsteady on her feet. Her speech was slurred; her eyes were glassy and bloodshot, and she admitted to consuming alcohol half an hour before the accident.

The defendant's mechanic testified that he spoke with the defendant during the week prior to December 9, 2014, about a steering problem she was having with her car, and that on December 23, 2014, he repaired a broken left tie rod and aligned the defendant's car. The defendant's daughter testified that she was a passenger in the vehicle and had experienced no concerns about her mother's driving.

Nonetheless, "[t]he weight and credibility of the evidence is the province of the jury." Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). Reviewing all of the evidence in the light most favorable to the Commonwealth, as we must, see Commonwealth v. Lawson, 475 Mass. 806, 816 (2016), we are satisfied that the evidence was sufficient to support the defendant's conviction. Compare Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) ("In the light most favorable to the Commonwealth, the defendant exhibited classic symptoms of alcohol intoxication: her eyes were bloodshot and glassy; an odor of alcohol emanated from her person; her speech was slurred; she admitted to drinking three beers; she parked her car 'crooked[ly]' or 'diagonally' across two parking spaces, contrary to instructions; she swayed and could not stand straight while being instructed on how to perform field sobriety tests; and she was unable to properly perform two out of three of the tests. From all of this, a rational jury were entitled to find the defendant guilty of OUI").

Judgments affirmed.

      The defendant was found responsible for a civil marked lanes violation, which was placed on file.

      According to the officer, during the booking process the defendant also volunteered that "alcohol consumption was a factor in the collision, as well as [an] anecdotal issue with her vehicle."

      The mechanic testified that he had a telephone conversation with the defendant the week prior to December 9, 2014, during which she told him that the "car was driving funny and not feeling comfortable to drive, kind of scary." He also testified that a broken tie rod can cause a loss of control of a car, as "one wheel goes one way and the other one stays .... Depending on how hard you step on the gas, you'll have a carnival ride."


text:
    COMMONWEALTH v. John K. PEICK.
    17-P-1092
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, John K. Peick, appeals from his conviction of operating a motor vehicle under the influence of alcohol, G. L. c. 90, § 24(1)(a )(1), fourth offense. He alleges errors by the trial judge and prosecutor, insufficient evidence to convict him of the crime, and ineffective assistance of his trial counsel. For the reasons set forth below, we affirm.

Background. 1. The Commonwealth's case. The jury were warranted in finding the following facts. On the morning of June 19, 2014, Waltham police Lieutenant Anthony Vazquez was working a construction detail on Second Avenue in Waltham. At about 9:00 A.M. , Vazquez was retrieving his safety gear from his personal vehicle when he heard a "very loud noise." The source of the noise, he observed, was a vehicle driving past him with its two passenger-side tires destroyed.

Seeing the vehicle turn into an area he knew was a dead end, Vazquez got in his personal vehicle to follow. Roughly four minutes later, he found the vehicle parked in a parking space in an industrial area. The driver, later identified as the defendant, was still in the driver's seat. Prior to approaching the defendant, Vazquez radioed for backup requesting a marked cruiser be sent to that location. Vazquez then approached and asked the defendant if he knew he was driving with two flat tires; the defendant responded that he did not. Vazquez then detected the odor of alcohol. Asked if he had been drinking, the defendant answered, "No." Vazquez then asked if there was any alcohol in the vehicle, and the defendant stated that there was some alcohol in his briefcase. Vazquez returned to the topic of the damaged tires, asking the defendant if he knew what happened. The defendant again said that he did not know, and denied being in an accident. Vazquez asked the defendant to "step around the car and observe the tires." Before the defendant got out of the vehicle, Vazquez asked him to turn off the engine. According to Vazquez, the defendant's speech was "delayed or slightly slurred," "his gait was unsteady as he walked," and "[h]e used the car to brace himself." Vazquez located in the vehicle a bottle of vodka that was about three quarters empty.

Waltham police Officer Philip O'Dowd arrived on scene a short time later. He also inquired about the damaged tires, and the defendant again denied knowing what happened. O'Dowd then asked him if he had been drinking. The defendant stated, "Yes, I had some drinks out of the bottle of vodka in my briefcase, on the way to work." Because the defendant appeared intoxicated, O'Dowd asked him to undergo a series of field sobriety tests. The defendant was unable to perform any of the tests. O'Dowd then arrested him for driving under the influence.

2. The defense. The defendant testified in his own defense. He denied drinking any alcohol during his drive from his home in North Andover to Waltham. He testified that he was driving to work when his vehicle started pulling to the right and shaking. Struggling to control the vehicle, he continued driving to work because he knew of no other safe parking place. Once parked, he claimed that he shut of the engine and decided "[he] needed to drink, to relieve the feelings [he] was having from the ride [he] just experienced." According to the defendant, he then took a bottle of vodka out of his briefcase and drank about two-thirds of it within sixty to ninety seconds. He added that he could drink that fast because he belonged to a fraternity in college. He then testified that roughly ten minutes after having parked his vehicle, a police officer, Vazquez, approached his vehicle. He theorized that driving over "construction rubble" caused the damage to his tires.

Discussion. 1. Vazquez's testimony. The defendant alleges misconduct on the prosecutor's behalf due to her use of "9:07 [ A.M. ]" in questioning Vazquez as to the time when he saw the defendant's vehicle drive by. Specifically, the defendant argues that the prosecutor deliberately provided a false timeline by asking Vazquez, "At about 9:07, do you remember anything occurring?" Vazquez answered that he was in the process of retrieving safety gear from his vehicle when he heard the defendant drive by. Relying on police reports not entered in evidence-which state that O'Dowd was dispatched to the scene at 9:07 A.M. -the defendant argues that this was misleading because it shortened the timeframe between Vazquez's first observation of the defendant's vehicle and when he found the defendant in the parking lot. This permitted a prejudicial inference that the defendant would not have had time to drink the better part of the bottle of vodka after he arrived in the parking lot and before Vazquez found him. Since trial counsel did not object to this evidence, we review the defendant's claim for a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

Here, the prosecutor's question was proper. From the record, it is apparent that the prosecutor's goal from this line of questioning was to establish that a very short period of time elapsed between Vazquez's initial observation of the defendant and when Vazquez approached him in the parking lot. After Vazquez described his actions between observing the defendant and approaching him in the parking lot, the prosecutor then asked how much time had elapsed between seeing the defendant's vehicle and finding it in the parking lot. Vazquez answered that he was not sure exactly, but "it was less than four minutes." He did not give a specific time for when he located the defendant. Thus, the exact moment when Vazquez first observed the defendant is immaterial because the pertinent part of Vazquez's testimony was that he found the defendant "less than four minutes" after observing him. To the extent that the Commonwealth and the defendant presented differing timelines, it was for the jury to decide which to credit. See Commonwealth v. Platt, 440 Mass. 396, 404 (2003). There was no error in this line of questioning.

2. Prosecutor's closing argument. The defendant next argues that during her closing argument the prosecutor argued facts not in evidence. Specifically, the defendant alleges that the prosecutor erred by suggesting that the defendant "hit a curb" or "crashed into something," causing the damage to both passenger-side tires. He also argues that the judge erred in not giving a specific curative instruction regarding those statements. As the defendant objected to the prosecutor's statements, we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (explaining prejudicial error).

A closing argument must be based on the evidence and the fair inferences drawn from it. Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). See generally Mass. G. Evid. § 1113(b)(2) (2018). Remarks made during closing argument should be considered within the context of the entire argument, the evidence presented during the trial, and the judge's instructions to the jury. See Commonwealth v. North, 52 Mass. App. Ct. 603, 610-611 (2001).

Here, the prosecutor's argument was properly based on the evidence adduced at trial that showed both passenger-side tires of the defendant's vehicle were shredded down to the metal wheels. At the scene, the defendant three times denied to officers knowing how his tires got that way. This conflicted with the defendant's testimony at trial, where he opined that he might have run over some construction rubble on his drive to work and that he knew something was wrong with his car, but chose to keep driving until he found a safe place to stop. The undisputed physical evidence-two shredded tires-permitted the inference that the defendant hit something while driving. A prosecutor may "argue[ ] reasonable inferences drawn from the facts." Commonwealth v. Howard, 479 Mass. 52, 64 n.9 (2018). The prosecutor was also allowed to point out that it was unlikely construction rubble could have caused that amount of damage to the tires. See Commonwealth v. Jefferson, 461 Mass. 821, 836 (2012) (not improper for prosecutor to argue that firearm thrown from speeding vehicle onto paved walkway might be damaged, as argument was grounded in "common sense, not expertise"). In addition, the prosecutor was entitled to respond to defense counsel's closing argument, in which he argued that there was "no evidence that the car hit anything." See Commonwealth v. LeFave, 407 Mass. 927, 939 (1990) (arguments by defense counsel "may justify a particular rebuttal from the prosecutor") (quotation omitted); Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) (prosecutor entitled to respond to arguments made by defendant).

The defendant also argues that the trial judge erred in not giving a specific curative jury instruction regarding the prosecutor's arguments. The judge, after defense counsel objected to the prosecutor's closing, assured counsel that he would give a curative instruction, which he then did. After defense counsel asked the judge to note his objection, the judge asked what else defense counsel would like him to do. Defense counsel requested an instruction that the jury should not speculate, which the judge also gave. Defense counsel did not request any further instructions. There was no error. The judge's instructions clearly set out that closing arguments are not evidence, that the jury were not to speculate and were to weigh only the evidence admitted at trial, and that the jury had to find that the Commonwealth had proved each element of the offense beyond a reasonable doubt. "[Jurors] are presumed to follow the judge's instructions." Commonwealth v. Maynard, 436 Mass. 558, 570-571 (2002).

3. Sufficiency of the evidence. The defendant also argues that the Commonwealth did not present sufficient evidence to support the jury's guilty verdict. In reviewing sufficiency claims, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth, "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).

To establish guilt under G. L. c. 90, § 24(1)(a )(1), the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of intoxicating liquor. Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 728 (2016). Here, there was sufficient evidence presented for the jury to conclude, beyond a reasonable doubt, that the defendant operated his vehicle while under the influence of alcohol. Specifically, the three police witnesses provided the following testimony: (1) the defendant had an odor of alcohol emanating from him, (2) the defendant's lack of knowledge that he had been driving on two shredded tires, (3) the defendant's denial of-and subsequent admission to-drinking alcohol "on the way to work," (4) the vodka bottle found about three-quarters empty, (5) the defendant's glassy eyes, dazed demeanor, and inability to walk without supporting himself on his vehicle, and (6) the defendant's inability to perform any of the three field sobriety tests. Taken together, this evidence was sufficient to prove a violation of G. L. c. 90, § 24(1)(a )(1). See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (detailing classic indicia of alcohol intoxication).

Furthermore, the defendant's claim that the evidence presented was insufficient to support the jury's verdict is largely based on the assumption that the jury should have credited his version of events and discredited that of the police officers. The jury were well within their bounds to do the opposite. "In considering whether the jury could find the existence of each element of the crime charged, we do not weigh the supporting evidence against conflicting evidence." Commonwealth v. Merry, 453 Mass. 653, 660 (2009). Jurors are entitled to believe or discount any or all of the evidence they hear, and can credit or discredit any witness's testimony. See id. at 661.

4. Ineffective assistance. Finally, the defendant argues that his trial counsel provided him with ineffective assistance. Specifically, the defendant states that counsel (1) failed to object to the prosecutor's use of the "9:07" A.M. timeline or impeach Vazquez on that subject; (2) failed to object to the lack of a specific curative instruction concerning the prosecutor's closing argument, or otherwise attempt to correct the prosecutor's alleged misconduct; and (3) failed to argue in closing that there was no evidence that the defendant was impaired while driving.

We first note that the defendant's claim of ineffective assistance is before us as part of his direct appeal. An ineffective assistance claim asserted in this manner-"made on the trial record alone"-is in its "weakest form" because "it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Only in an "exceptional" case will this court review an ineffective assistance claim on direct appeal, and that "narrow" exception occurs only where "the factual basis of the [ineffective assistance] claim appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006) (quotations omitted). Here, based on the record before us, we conclude that there was nothing manifestly unreasonable about counsel's performance during the course of the trial.

Judgment affirmed.

      Likewise, the prosecutor did not commit error in arguing that the defendant drove unsafely. This too was a proper response to defense counsel's argument that there was no evidence the defendant drove improperly. Furthermore, the prosecutor correctly noted that the Commonwealth did not need to prove the defendant drove unsafely; it only needed to prove that he drove under the influence of alcohol, which is what the prosecutor argued.

      The judge instructed the jury, "[T]he closing arguments are not a place you can find new evidence; they're just merely to consider the contentions of the parties on how you ought to consider the evidence that you did hear."

      At trial, the defendant stipulated to this element.

      The preferred vehicle for ineffective assistance claims is a motion for a new trial, "where an appropriate factual record can be developed." Commonwealth v. Diaz, 448 Mass. 286, 289 (2007).


text:
    COMMONWEALTH v. Jamie JENSEN.
    17-P-739
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant Jamie Jensen appeals from her convictions for disorderly conduct, G. L. c. 272, § 53, resisting arrest, G. L. c. 268, § 32B, assault, G. L. c. 265, § 13A, and assault and battery on a police officer, G. L. c. 265, § 13D. On appeal, she argues that her convictions for disorderly conduct and resisting arrest were unsupported by legally sufficient evidence, and that improper questions by the prosecutor and the erroneous admission of a police dashboard camera videotape (dash cam video) warrant a new trial. We hold that the challenged convictions were supported by sufficient evidence but remand the case for a new trial on all counts.

Background. Jensen was driving her daughter Maisy down Boston Street in Springfield when she collided with Keith Gordon's pickup truck. It is disputed who caused the accident, which occurred near four police cadets who were outside their jurisdiction. Gordon noticed the cadets, drove up to them, and told them about the accident. One, Kenneth Baer, instructed Gordon to enter a nearby gas station while Baer called the Wilbraham police department. During this conversation, Jensen exited her vehicle and walked up to the cadets. At trial, Baer testified that he instructed Jensen to enter the same parking lot; Jensen testified that he did not so instruct her. Baer also testified that, at this time, Jensen was "very loud" and was "screaming at some point, saying 'He fucking hit me'-this and that-things of that nature."

After these exchanges, Gordon pulled into the nearby gas station to wait for the Wilbraham officers, while Jensen continued down Boston Street. Jensen returned to the gas station several minutes later, by which point the Wilbraham police had arrived, including Officer Joseph Brewer. It was about 5:00 P.M. and the gas station was busy, with patrons coming and going. Brewer testified that he was uniformed.

The witnesses disagreed about what happened next. Gordon and Brewer testified that Jensen exited her vehicle, began swearing at Gordon, and ran at him with a cocked right fist. Brewer then restrained her, spun her towards her vehicle, and, according to Brewer, told her that she was under arrest. Brewer further testified that she continued to struggle while pinned against the vehicle, and eventually, after warning her that he would pepper spray her if she did not comply, Brewer pepper sprayed her. He then cuffed her.

According to Jensen, after she exited her vehicle, Brewer approached her and told her that Gordon had reported a hit and run. She looked at Gordon and called him a "fucking asshole," and turned back towards her car to retrieve her license and registration. At this point, Brewer grabbed her arm tightly, she "swayed [her] other hand back," and Brewer "flung [her] on the car." He then slammed her against the car, pressed his knee into her back, cuffed her, told her that he would pepper spray her if she did not stop screaming, and subsequently pepper sprayed her. He sprayed her from a distance of at most a foot, when the instructions define the optimal range as between six and twelve feet. It caused Jensen to collapse, and resulted in a temporary inability to see, a feeling of restricted breathing, pain in her eyes that lasted three days, and corneal abrasions that lasted a week and required antibiotic ointment. According to Jensen, Brewer's act of flinging her onto the car tore her rotator cuff and caused her a lot of pain.

At trial, the Commonwealth introduced two videos into evidence. One, a gas station security video that lacked audio, depicted the events that occurred after Jensen exited her vehicle in the gas station, and also showed members of the public entering and exiting the gas station around the time these events occurred. The other, which was admitted over Jensen's objection, was Brewer's dash cam video; it began after Jensen had already been pepper sprayed and cuffed. This video does not capture any images of Jensen, but contains several minutes of audio of her swearing at Brewer and expressing substantial discomfort from the pepper spray.

Two other sequences of events at trial are relevant to this appeal. First, the prosecutor, an experienced attorney, attempted to elicit testimony from three different witnesses concerning Jensen's civil responsibility for the accident. Each time defense counsel promptly noted her objections. When the prosecutor first attempted to elicit this information from Gordon, the judge sustained defense counsel's objection, stating that this information is "[t]otally irrelevant." The judge also sustained defense counsel's objection when the prosecutor later asked Maisy whether insurance had paid a claim filed by her mother. Finally, the prosecutor asked Jensen whether she had filed a claim and whether she had been found responsible, after which the judge told him, "You'd better knock it off." Because defense counsel and the trial judge promptly intervened, no witness ever testified whether Jensen's insurance had paid for the costs of the accident or whether she had been found responsible.

The second sequence of events occurred during the prosecutor's cross-examination of Jensen, in which he asked her to comment on the credibility of the two police officer witnesses. The line of questioning, which was not objected to at trial, went as follows:

Q.: "And you heard the-Officer Baer testify and you stated he was lying, correct?"
A.: (No audible reply.)
Q.: "He was the one that told you to pull into the Shell Gas Station."
A.: "The Palmer police officer?"
Q.: "Yes."
A.: "He never told me to pull into the Shell Gas Station."
Q.: "So then next you heard Officer Brewer and you heard his testimony, correct?"
A.: "Yes."
Q.: "And a lot of his testimony was inaccurate, too, based on your testimony, correct?"
A.: "I'm only telling my story."

Discussion. 1. Sufficiency of the evidence. In assessing the sufficiency of the evidence, we consider whether the evidence, viewed in the light most favorable to the Commonwealth, could satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).

a. Disorderly conduct. To be guilty of disorderly conduct, a person must, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... engage[ ] in fighting or threatening, or in violent or tumultuous behavior; or ... create[ ] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Commonwealth v. Chou, 433 Mass. 229, 232 (2001). On appeal, Jensen argues that the Commonwealth failed to establish the "public" element of the crime because it presented no evidence that the public was affected by Jensen's behavior.

Jensen's argument misstates the law. The Commonwealth need not establish that Jensen's conduct affected the public, but only that her conduct "affect[ed] or [was] likely to affect persons in a place to which the public or a substantial group has access." Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003), quoting from Commonwealth v. A Juvenile, 368 Mass. 580, 586 (1975). For instance, in Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), we held that the Commonwealth presented sufficient evidence of the public nature of the offense when the relevant conduct occurred in a motel parking lot that was a near a restaurant, shopping mall, and movie theater because, in those circumstances, "people could have seen or heard the defendant from any place of public access, such as a nearby sidewalk, publicly used path or road, shopping area or other neighborhood facility." Id. at 725, quoting from Mulvey, supra at 584. The dispositive fact was that people "could have seen or heard the defendant," not that anyone saw or heard him. Ibid.

Here, the Commonwealth presented evidence that the relevant events took place at around 5:00 P.M. in a busy gas station from which individuals were coming and going. Viewed in the light most favorable to the Commonwealth, this evidence establishes that the public likely could have been affected by Jensen's conduct.

b. Resisting arrest. A person is guilty of resisting arrest if, absent a defense, "he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor ... by ... using ... physical force or violence against the police officer." G. L. c. 268, § 32B(a ), inserted by St. 1995, c. 276.

Jensen first argues that the Commonwealth failed to present sufficient evidence that she knew she was under arrest. "An arrest occurs where there is [1] 'an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.' " Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting from Commonwealth v. Cook, 419 Mass. 192, 198 (1994). "Whether a defendant understood that he was being arrested is determined with reference to an objective standard, what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes." Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 127 (2008) (quotation omitted), S.C., 457 Mass. 102 (2010). Viewed in the light most favorable to the Commonwealth, the arrest occurred when Brewer, in uniform, restrained Jensen, pinned her against the car, and told her she was under arrest. According to Brewer, Jensen continued to resist after this point. The jury were entitled to conclude in these circumstances that a reasonable person in Jensen's shoes would know she was under arrest, which she resisted. The Commonwealth thus presented sufficient evidence that Jensen knew she was under arrest.

Next, Jensen argues that the Commonwealth failed to present sufficient evidence that her acts were not done in self-defense, which is a defense to a charge of resisting arrest. See Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 448 (2005). If, drawing all reasonable inferences in favor of the defendant, there is sufficient evidence to raise the issue of self-defense, the burden shifts to the Commonwealth to prove beyond a reasonable doubt that the defendant's acts were not done in self-defense. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004). A person may use force in self-defense only if the police used excessive or unnecessary force to effectuate the arrest. See id. at 652. Jensen concedes that she used force against Brewer, but argues that it was justified because Brewer's use of force against her was excessive or unnecessary. While her testimony sufficed to place the burden on the Commonwealth to prove beyond a reasonable doubt that her acts were not in self-defense, Brewer's testimony, viewed in the light most favorable to the Commonwealth, supports a conclusion beyond a reasonable doubt that his acts of restraining Jensen and pinning her against the vehicle were neither excessive nor unnecessary. (Because there was no evidence that Jensen resisted arrest in response to Brewer pepper spraying her, we need not and do not decide whether his use of pepper spray was excessive or unnecessary.) Therefore, the Commonwealth introduced sufficient evidence that Jensen did not act in self-defense.

2. Trial errors. a. Prosecutor's questions regarding Jensen's civil liability for the accident. Jensen argues, and the Commonwealth properly concedes, that the prosecutor's questions regarding Jensen's civil responsibility for the accident, after the judge properly sustained defense counsel's objections and repeatedly instructed the prosecutor not to ask these questions, were inappropriate. The Commonwealth argues, however, that these questions were not prejudicial because no witness testified that Jensen had been found responsible for the accident and because the judge gave the standard jury instruction that questions are not evidence.

The Commonwealth is wrong-the questions themselves were prejudicial. Despite unequivocally being told not to ask the questions, which suggested to the jury that fault for the accident was a relevant consideration, the prosecutor did so three times. The frequency of these questions drew the jury's attention to them and suggested that they were relevant when they were not. Even though the judge's instruction might have had some mitigating effect, it could not have eliminated prejudice from the questions in these circumstances.

b. Prosecutor's cross-examination of Jensen regarding the officers' credibility. Jensen next argues, and again the Commonwealth properly concedes, that the prosecutor acted improperly in requesting Jensen to comment on the credibility of Officers Baer and Brewer. The Commonwealth argues that there were too few of these unobjected-to questions to cause a substantial risk of a miscarriage of justice.

It is settled law that "a witness cannot be asked to assess the credibility of his testimony or that of other witnesses." Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). This is because questions regarding witnesses' relative credibility imply to the jury that differences between the witnesses' testimony can only be the result of lying, and "[s]uch implication is heightened when a prosecutor attempts to pose questions that require a defendant-witness in a criminal case to comment ... on the veracity of a police officer." Commonwealth v. Ward, 15 Mass. App. Ct. 400, 402 (1983). The prejudice from this implication is even worse when the prosecutor asks the defendant to comment on the credibility of multiple police witnesses, and when the case is largely a credibility contest between those witnesses and the defendant.

The Commonwealth is correct that we have declined to order a new trial when the prosecutor asked relatively few of these improper questions. See, e.g., Ward, supra (one improper question did not result in prejudicial error); Commonwealth v. Flanagan, 20 Mass. App. Ct. 472, 477-478 (1985) (four improper questions did not result in reversible error). However, our vacatur of the convictions is based on the cumulative effect of various instances of prejudice, and it is undeniable that these questions prejudiced Jensen. Indeed, the prosecutor in closing emphasized that Jensen's theme of the case was that "[t]he cops are lying."

c. Admission of the dash cam video. Finally, Jensen argues that the trial judge erred in admitting Officer Brewer's dash cam video over her objection. According to Jensen, the video lacked relevance, and any probative value the video might have offered was substantially outweighed by unfair prejudice resulting from the video's depiction of her behavior shortly after being pepper sprayed. In its brief, the Commonwealth argued that the video's depiction of Jensen's "loud and abrasive language" was relevant to establish Jensen's disorderly conduct, and that the video also showed that this conduct occurred in a "highly public environment." At oral argument, the Commonwealth conceded, correctly, that Jensen's cursing at Brewer after he pepper sprayed her would not constitute disorderly conduct. We review this issue for abuse of discretion. See Commonwealth v. Spencer, 465 Mass. 32, 52 (2013).

Even under this deferential standard, we conclude that the trial judge erred in admitting the video. Its probative value was minimal at best. As the Commonwealth concedes, the disorderly conduct charge was based on acts that occurred before the dash cam video began. Jensen's swearing at the person who pepper sprayed her is hardly evidence of prior disorderly conduct, and, to the extent it is, this would be through an impermissible inference that Jensen is a volatile person. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014) (subsequent bad acts are inadmissible to show bad character or propensity to commit crimes charged). Moreover, the Commonwealth also introduced the gas station's security camera video, which showed that the gas station was a public place. The marginal probative value of the dash cam video to the publicity element was trivial.

In addition to the obvious danger that the jury would draw an impermissible character or propensity inference, the video could have confused the jury about which behavior formed the basis of the disorderly conduct charge. Both other potential incidents-Jensen walking up the street towards Gordon and Baer while swearing and yelling at Gordon, and her swearing at Gordon and running at him with a cocked right fist-involve conduct very similar to that which the video depicted. Since the judge never told the jury that the videotaped conduct could not form the basis of a disorderly conduct conviction, the jury could have erroneously concluded that it did. The risk is especially great here, where the witnesses disputed whether the charged conduct occurred, and going with the video would have allowed the jury to avoid having to resolve a credibility conflict. In these circumstances, it was an abuse of discretion for the judge to admit this unfairly prejudicial video.

d. Cumulative effects of prejudice. It is appropriate to consider the cumulative prejudicial effect of different errors. See Commonwealth v. Gonzalez, 28 Mass. App. Ct. 906, 906 (1989). Here, two of the three errors were objected to at trial, and each of them was prejudicial in its own right. Taken together, their prejudice warrants a new trial.

Conclusion. The judgments are vacated and the verdicts are set aside. The case is remanded to the trial court for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      We note that defense counsel did not request a limiting instruction as an alternative to excluding the video.


text:
    COMMONWEALTH v. Angel M. GONZALEZ.
    17-P-1240
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On appeal from his conviction of assault and battery against his wife, see G. L. c. 265, § 13M(a ), the defendant claims error in the admission of testimony by a police officer relating statements made by the victim to him. The question is largely controlled by the analysis in Commonwealth v. Galicia, 447 Mass. 737, 745-746 (2006), which compels us to reverse.

The victim did not testify at trial. The Commonwealth instead sought to introduce her description of the defendant's alleged assault against her through the testimony of Officer Christopher Atchue, who responded to a 911 call and interviewed the victim at her apartment shortly thereafter. As the Commonwealth recognizes, the victim's statements to Officer Atchue were hearsay, and were admissible only under an exception to the hearsay rule. Moreover, even if admissible under a hearsay exception, they could not be admitted if they would violate the defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution. See Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011). "The confrontation clause bars the admission of testimonial out-of-court statements by a declarant who does not appear at trial...." Commonwealth v. Simon, 456 Mass. 280, 296 (2010). A statement is testimonial where there is no ongoing emergency and the primary purpose of the interrogation is to create an out-of-court substitute for trial testimony. See Beatrice, supra at 259-260. Assuming, without deciding, that the victim's statements to Officer Atchue fell within the excited utterance exception to the hearsay rule, the statements were nonetheless inadmissible under the confrontation clause.

Following a 911 call, Officer Atchue and his partner were dispatched to the apartment where the victim and the defendant lived. Officer Atchue testified that when he arrived at the scene the victim was standing in the doorway at the front entrance of the apartment complex and was joined shortly thereafter by the defendant. The officers did not observe the parties in the midst of any physical altercation and the "house was fairly orderly." Though Officer Atchue testified that the victim was "very disheveled, upset" and "crying hysterically," that does not equate to a conclusion that the primary purpose of her statements was to "enable police to meet an ongoing emergency." See Galicia, supra at 739, quoting from Davis v. Washington, 126 S. Ct. 2266, 2273 (2006). The victim's statements indicated that the incident had happened in the past and was not an ongoing event. The defendant was unarmed, was not behaving dangerously, and was cooperating with the officers by answering their questions. Moreover, when Officer Atchue offered to have an ambulance respond to the scene, the victim declined medical treatment and declined any protective orders, electing to stay at the apartment. The statements the victim made to Officer Atchue at the scene were in response to a formal effort to investigate a crime and, thus, "fall squarely within the purview of 'testimonial' statements precluded from admission by the Sixth Amendment absent unavailability of the witness and prior opportunity for the defendant to cross-examine her." Id. at 746.

Because the defendant objected to the admission of the victim's statements on constitutional grounds, we consider whether the admission of the evidence was "harmless beyond a reasonable doubt." Commonwealth v. Perrot, 407 Mass. 539, 548 (1990). Whether an error is harmless depends on whether the "erroneously admitted evidence was 'merely cumulative' of evidence properly before the jury." Id. at 549, quoting from Commonwealth v. Sinnott, 399 Mass. 863, 872 n.8 (1987). In other words, "[t]he essential question is whether the error had, or might have had, an effect on the jury and whether the error contributed to or might have contributed to the verdicts." Id. at 549.

The crux of the Commonwealth's case rested on Officer Atchue's hearsay testimony from the victim. Though the Commonwealth presented testimony from Officer Atchue regarding his observations of the victim's demeanor and injuries, along with photographs taken of those injuries, without the victim's statements there was no direct evidence that the defendant was the cause of those injuries. The defendant strenuously denied - - both in his initial statements to police and in his testimony at trial -- that he was involved in any physical altercation with the victim that night. To be sure, the defendant's statements concerning the cause of the victim's injuries were to some extent implausible, and the circumstantial evidence might well alone have been sufficient to support a conviction. However, we cannot say that the victim's statements to Officer Atchue at the scene did not contribute to the verdict.

Judgment reversed.

Verdict set aside.

      That was the second time that evening that police responded to the apartment. Approximately an hour before Officer Atchue and his partner were dispatched to the apartment, another set of officers on another shift had responded to the same apartment. At that time, the victim did not accuse the defendant of any misconduct.

      At oral argument, the Commonwealth sought to distinguish Galicia on the ground that (unlike the responding officers in Galicia ), Officer Atchue and his partner were not relayed information from the 911 call regarding the nature of the incident before arriving at the scene. However, there is no indication in Galicia that the responding officers were relayed any information from the 911 operator as to the nature of the incident. Accordingly, the factual distinction fails. While the Commonwealth was candid at oral argument in acknowledging uncertainty about the factual distinction, we are without authority to adopt the Commonwealth's alternative suggestion that we decline to follow Galicia if its suggested factual distinction turned out to be unsupported. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 484-486 (2003).

      We note that, unlike the circumstances in Commonwealth v. Galicia, supra, no transcript, recording, or other description of the content of the 911 call was offered in evidence. Such evidence, if available, would likely be admissible in any retrial. See Commonwealth v. Galicia, supra at 744-745.


text:
    Charles NORTHRUP & others v. NATIONAL AMUSEMENTS, INC., & others.
    17-P-485
    Appeals Court of Massachusetts.
    Entered: June 28, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Maryellen C. Northrup; Adam C. Northrup, a minor, by his father and next friend, Charles Northrup; and Lydia C. Northrup, a minor, by her father and next friend, Charles Northrup.

      NAI Entertainment Holdings, LLC, and Showcase Cinemas.

   Charles Northrup was in the parking lot of the Showcase theater in Woburn when he was suddenly stabbed by a person suffering from mental illness. Northrup, and his wife and children, then brought this negligence action against the theater and its parent companies, alleging that their failure to provide police details on the theater premises proximately caused Northrup's injuries. A Superior Court judge allowed the defendants' motion for summary judgment, concluding that the stabbing was not reasonably foreseeable, and the plaintiffs appeal. We affirm.

Background. We summarize the undisputed facts, reserving certain details for later discussion.

1. The stabbing. Shortly before 10:00 P.M. on Tuesday, September 6, 2011, Northrup pulled into the theater parking lot with plans to meet a friend for a movie. After parking along the east side of the theater, Northrup sat in his vehicle with the engine running and smoked a cigarette. There was no security presence in the parking lot.

Chantha Chau, who had parked his own vehicle in the adjacent hotel parking lot, approached Northrup and motioned through the window, indicating that he wanted a cigarette. As Northrup leaned to retrieve one, Chau suddenly stabbed him in the neck through the partially opened window. Northrup managed to escape out the front passenger door, but Chau pursued him and stabbed him again, this time in the stomach. Northrup sought refuge inside the theater, as Chau drove away in Northrup's vehicle. Surveillance video showed that the encounters inside and outside the vehicle lasted four and six seconds, respectively.

Several months later Chau was indicted on multiple charges relating to the stabbing and the theft of Northrup's vehicle. After a jury-waived trial, a Superior Court judge found Chau guilty of the charges. The judge found that, although the evidence was "overwhelming" that "Chau suffers from a mental disease or defect, either schizophrenia or a psychosis not otherwise specified," the Commonwealth had still met its burden of proving that he was criminally responsible for his actions.

2. Prior incidents at the theater. In the three years preceding the stabbing, there were thirty police reports arising from incidents at the theater, three of which resulted in arrests. Only one referred to violence against a person: a woman reported (in 2010) that she had been sexually assaulted inside the theater sometime in the 1970s. Otherwise, the majority of the reports involved property crimes -- primarily vehicle break-ins and thefts of personal items -- while the remainder involved public intoxication, domestic incidents (verbal disputes and incidental violation of a restraining order), discovery of a missing person, harassing telephone calls, a disturbance (youths breaking bottles), and indecent exposure.

The theater also generated seventy-one internal incident reports during the three-year look-back period. Many of those incidents concerned noncriminal activity, such as accidental injuries to patrons. Four reports referred to violence against a person; most pertinent is a report of an altercation that occurred in February of 2011 between two groups of juveniles. As reflected in that report, a woman called the theater claiming that her sons attended a movie the previous night and had rocks thrown at them as they were leaving. She further claimed that a fight "ensued when kids surrounded [her sons'] car," punches were thrown, and "[o]ne of the kids ... pulled out [a] knife." The woman said her sons "were fine" and, when offered free movie passes, "seemed more excited about getting those than talking about her sons anymore."

Discussion. We review the allowance of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. See Belizaire v. Furr, 88 Mass. App. Ct. 299, 300 (2015). To prevail on a negligence claim, the plaintiffs must prove the existence of a legal duty owed to them by the defendants, a breach of that duty, and injury proximately caused by the breach. See Petrell v. Shaw, 453 Mass. 377, 385 (2009). Summary judgment for the defendants is appropriate if they can show that the plaintiffs have "no reasonable expectation of proving an essential element of [their] case at trial." Id. at 381.

"As a general rule, a landowner does not owe a duty to take affirmative steps to protect against dangerous or unlawful acts of third persons." Belizaire, 88 Mass. App. Ct. at 304, quoting from Luoni v. Berube, 431 Mass. 729, 731 (2000). See Whittaker v. Saraceno, 418 Mass. 196, 197 (1994) ("A landlord ... is not a guarantor of the safety of persons in a building's common area"). In "exceptional" circumstances, however, "[l]andlords may be liable for ignoring criminal activities that occur on [their] premises and were known or should have been known to them." Belizaire, 88 Mass. App. Ct. at 304, quoting from Griffiths v. Campbell, 425 Mass. 31, 34 (1997). Specifically, where, as here, the crime involves violence against a person, liability may attach "in the rare cases 'in which a person legally on the premises is attacked, and the owner or landlord knew of or should have known of both ... previous attacks ... and the potential for a recurrence based on a failure to take measures to make the premises safer.' " Ibid., quoting from Griffiths, 425 Mass. at 35. In other words the attack must have been reasonably foreseeable. See Toney v. Zarynoff's, Inc., 52 Mass. App. Ct. 554, 559 (2001) ("The plaintiffs bore the burden of proving that the risk of harm against which the landowner ... could have taken reasonable preventive steps was reasonably foreseeable").

While questions of foreseeability are ordinarily for the jury, a judge may decide them as a matter of law "where the harm suffered, although within the range of human experience, is sufficiently remote in everyday life as not to require special precautions for the protection of patrons." Westerback v. Harold F. LeClair Co., 50 Mass. App. Ct. 144, 146 (2000). "Notions about what should be foreseen ... are very much interwoven with our feelings about fair and just limits to legal responsibility." Whittaker, 418 Mass. at 198 (quotation omitted). The "outer limits" of reasonable foreseeability are therefore appropriate to resolve on summary judgment and, indeed, "have been long defined by judges." McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 9 (1995).

Applying these principles here, we conclude that summary judgment was properly granted for the defendants. Though there is evidence in the record of nonviolent crimes, mainly property crimes, occurring on the theater premises, there is no evidence of prior stabbings or similar violent incidents. The only incident involving a deadly weapon -- the fight between the two groups of juveniles -- was never reported to the police, nor even was it reported to the theater on the night it occurred. In any event, we do not think that one alleged incident of a fight between youths supports a finding that the defendants should have reasonably foreseen the sudden and unprovoked act of violence committed by Chau.

Our conclusion comports with a settled line of case law. Particularly instructive is Luisi v. Foodmaster Supermkts., Inc., 50 Mass. App. Ct. 575, 576 (2000), in which the plaintiff brought a claim of inadequate security after she was stabbed by a mentally ill person while shopping at a grocery store. In support of her claim, the plaintiff proffered evidence of previous violent incidents inside the store -- fistfights between customers, a beating of the store manager by a mentally ill person, and a threat made to one of the cashiers -- as well as evidence that a number of armed robberies, property crimes, and assaults had occurred in the parking lot and vicinity of the mall in which the store was located. Id. at 577. Despite this proffered evidence, we held that the defendants were entitled to summary judgment because "no reasonable preventive measures taken by the defendants could have prevented the sudden and unprovoked attack on the plaintiff." Id. at 579.

Other cases similarly hold that a landowner or landlord cannot be held liable for an attack by a third party absent evidence of prior similar incidents occurring on the premises. See Foley v. Boston Hous. Authy., 407 Mass. 640, 645 (1990) (attack by plaintiff's coworker not foreseeable where there was no evidence of threats made against plaintiff by other employees, though there was a history of threats made by tenants, and only other employee assault occurred two years prior and off employer's premises); Whittaker, 418 Mass. at 200 (attack inside office building not foreseeable where, despite incidents of property crime in parking lot, there was no evidence of crime in the building and "no evidence that physical attacks had occurred in the office park"); Griffiths, 425 Mass. at 35 (murder of police officer during drug raid not foreseeable even though landlord knew of drug activity on premises and prior drug raid, where "plaintiff did not offer any evidence of prior shootings"); Belizaire, 88 Mass. App. Ct. at 305 (shooting not foreseeable where, despite evidence of prior drug activity, "[t]here was no evidence of prior shootings or similar violent incidents on the property"). In each of these cases, the court resolved the foreseeability issue as a matter of law, concluding that the defendant was entitled either to summary judgment or to judgment notwithstanding the verdict.

Unable to establish that similar violent incidents previously occurred at the theater, the plaintiffs seek to create a triable issue by pointing to evidence of prior criminal activity at the adjacent hotel and sports bar. It is undisputed, however, that the majority of the incidents occurred inside the hotel and bar, and, according to the Woburn police chief, the activity never "leaked" to the theater, which has a separate parking lot. Rather, he explained, "[t]he only place anything leaked ... [was] to the back of the parking lot of the hotel that was pretty self-contained." Given his testimony, and the absence of any other evidence showing that these incidents had any spillover effect, we have no basis to conclude that the defendants "should have known of" them. Griffiths, 425 Mass. at 35. Cf. Foley, 407 Mass. at 645 (prior assault did not support finding of foreseeability where it occurred "off the premises").

Even were we to conclude otherwise, the criminal activity at the hotel and bar would not create a triable issue on foreseeability. During the three-year look-back period, there were seventy-five reported incidents at the hotel and bar, sixteen resulting in arrests. The majority involved nonviolent offenses, primarily property crimes. There were about a dozen incidents that might be considered crimes against a person, most of which involved simple assault between parties known to each other or between bar patrons. Only two reports referred to the possible use of a dangerous weapon, and both were unsubstantiated. Like the incidents at the theater, these incidents were too dissimilar in kind, or the reports too inconclusive, to support a finding that the defendants should have foreseen Chau's random act of violence.

The plaintiffs also claim that an affidavit they submitted from a security expert was enough to send the case to the jury. We disagree. The expert opines, in conclusory terms, that the prior incidents at and around the theater -- most significantly, the fight between the two groups of juveniles -- made it "reasonable to have anticipated a violent event occurring on the property." This opinion runs counter to the cases discussed above, which again resolve foreseeability as a question of law. As the Supreme Judicial Court stated in Griffiths, 425 Mass. at 35-36, "[t]here must be limits to the scope or definition of reasonable foreseeability based on considerations of policy and pragmatic judgment" (quotation omitted). The court therefore held that the defendants were entitled to judgment notwithstanding the verdict despite testimony from the plaintiff's expert that the defendants violated their duty of care by not taking reasonable steps to prevent illegal activity on the premises. See id. at 32-33. Cf. Toney, 52 Mass. App. Ct. at 559 (stating in dicta that, although plaintiff "presented expert testimony that no reasonable security measures were in place at the time of the incident," "it [was] unlikely that the defendants could have reasonably anticipated ... or that any reasonable security measures would have prevented [the] precipitous and senseless act of violence"). We likewise conclude that the expert affidavit in this case did not preclude the entry of summary judgment for the defendants.

Finally, the plaintiffs argue that the existence or absence of prior crimes is not conclusive of the question of foreseeability. But while that is true as a general proposition, see Whittaker, 418 Mass. at 199, the plaintiffs have pointed to no other evidence -- such as an admission, see Mullins, 389 Mass. at 55, or actual knowledge that the assailant was armed, see Flood, 416 Mass. at 73 -- suggesting that Chau's crime was reasonably foreseeable. Instead, the plaintiffs claim that, irrespective of any prior crimes, the defendants should be held liable if they could have reasonably foreseen that eliminating police details would place theater patrons "at a greater risk of being victimized." This exceedingly broad formulation, which comes close to strict liability, finds no support in the case law. "The possibility of criminal conduct occurring is present in almost every aspect of daily life. In that sense the possibility of a violent attack is always able to be foreseen." Whittaker, 418 Mass. at 200. For this reason we should "not place the burden of all harm caused by random violent criminal conduct on the owner of the property where the harmful act occurred, without proof that the landowner knew or had reason to know of a threat to the safety of persons lawfully on the premises against which the landowner could have taken reasonable preventive steps." Ibid. Here, Chau's sudden and unprovoked attack on Northrup was not within the scope of foreseeable risk as a matter of law. The defendants were therefore entitled to summary judgment.

Judgment affirmed.

      Throughout this opinion "Northrup" refers to Charles Northrup.

      In 2008 or 2009, the defendants decided to employ police details at the theater on Fridays, Saturdays, and Sundays only. Previously, police details were on the premises seven nights per week.

      The other three incidents were as follows: (1) two female patrons were involved in a fistfight, causing a detail officer to intervene; (2) a group of girls harassed and threw a cellular telephone at another girl and were escorted out of the theater; and (3) a special needs child became out of control and pulled the hair of another child.

      Although Luisi framed the issue as one of proximate cause, its analysis still turned on whether the attack was reasonably foreseeable. See 50 Mass. App. Ct. at 577-579. See also Whittaker, 418 Mass. at 198 ("The word 'foreseeable' has been used to define both the limits of a duty of care and the limits of proximate cause").

      The cases cited by the plaintiffs are not to the contrary. Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788 (1988), concerned the higher duty of care applicable to common carriers, see id. at 790, and the plaintiff there offered evidence that "[t]he [bus] terminal was in an active area for crimes against the person" and that "[t]here had been robberies ... and assaults in the terminal." Id. at 792. Similarly, Mullins v. Pine Manor College, 389 Mass. 47 (1983), concerned "the distinctive relationship between colleges and their students," id. at 56, and there was evidence that the college had actually foreseen the risk of rape on the campus. See id. at 55. And in both Flood v. Southland Corp., 416 Mass. 62, 73 (1993), and Silva v. Showcase Cinemas Concessions, Inc., 736 F.2d 810, 812 (1st Cir. 1984), the defendants had actual knowledge of facts indicating that violence might be imminent, yet took no steps to prevent it. Even then, the court in Silva characterized the foreseeability question as "a very close one." 736 F.2d at 812.

      In the first incident, which occurred in May of 2010, the injured party initially told police he had been stabbed, but later recanted and said he had fallen while walking home. The second incident, which occurred in August of 2010, involved the possible brandishing of a knife during a fight between parties who appeared to know each other; the police were unable to locate any victims or suspects.

      The defendants moved to strike the affidavit as untimely, but the judge took no action on the motion, explaining that the affidavit "would not alter the outcome."

      The plaintiffs' other miscellaneous contentions "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    Samir TANIOS v. DEPARTMENT OF TRANSITIONAL ASSISTANCE.
    17-P-1447
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Samir Tanios applied for benefits under the Supplemental Nutrition Assistance Program (SNAP). The Department of Transitional Assistance (department) denied his application on the ground that Tanios did not meet minimum noncitizen residency requirements. Tanios appealed and the department held a fair hearing, after which a hearing officer affirmed that Tanios did not qualify for benefits. Tanios challenged the department's decision by filing an action in the Superior Court pursuant to G. L. c. 30A. A Superior Court judge dismissed Tanios's complaint and, later, denied Tanios's postjudgment motion. We dismiss the appeal from the judgment and affirm the order denying the postjudgment motion.

We first observe that Bahig Bishay purportedly is acting on Tanios's behalf in this matter. Bishay, who is not a licensed attorney, may not do so. See G. L. c. 221, § 41 (criminal penalties for unauthorized practice of law); G. L. c. 221, § 46A (only licensed attorney in good standing may practice law); Burnham v. Justices of the Superior Ct., 439 Mass. 1018, 1018 (2003) (petition properly dismissed where party purportedly represented by nonattorney). Ordinarily, we would strike Bishay's filings, which would, in turn, result in the summary dismissal of the appeal. However, in this case a Superior Court judge, for reasons unexplained on the record before us, allowed Bishay to "represent" Tanios below. Based on that order, we provisionally accepted Bishay's filings. In these unusual circumstances, we believe justice would be better served by allowing Tanios's appeal to proceed in the usual course.

We also must clarify what is before us. The Superior Court docket reflects that judgment entered on June 28, 2017. For present purposes we assume, as the department concedes, that because the department is a party, Tanios had sixty days from the entry of judgment to notice an appeal. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). Tanios did not notice an appeal within that time. Instead, Bishay filed a notice of appeal on October 10, 2017, more than six weeks late. Bishay nonetheless argues that the notice was timely because, after judgment entered, Bishay, on Tanios's behalf, served a postjudgment motion to "correct findings of fact" and "apply governing law."

Certain postjudgment motions (e.g., Mass.R.Civ.P. 59, 365 Mass. 827 [1974]; Mass.R.Civ.P. 60, 365 Mass. 828 [1974] ), if served not later than ten days after judgment enters, suspend the time in which a notice of appeal must be filed until a judge has ruled on that motion. See Mass.R.A.P. 4(a). Bishay purportedly served the postjudgment motion on July 21, 2017, or about two weeks late. The judge denied the postjudgment motion on September 12, 2017. Thus, although "the appeal from the denial of the motion ... was timely as to the order denying the motion, that appeal did not necessarily bring up the underlying judgment." Muir v. Hall, 37 Mass. App. Ct. 38, 40 (1994). See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 186-188 (1995).

In short, the only question that we would be able to properly consider in this appeal is whether the judge abused her discretion by denying the postjudgment motion, which we treat as being made under rule 60(b). See Piedra, supra at 188 n.4. See also Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433-435 (1979) ; Charles Choate Memorial Hosp. v. Commissioner of Pub. Welfare, 13 Mass. App. Ct. 1080, 1080 (1982) (motion for relief from judgment is not substitute for direct appeal). However, in the appellant's brief, neither Bishay nor Tanios makes any argument that the judge abused her discretion by denying the postjudgment motion. Accordingly, we deem any such claim waived. See Missett v. Cardinal Cushing High Sch., 43 Mass. App. Ct. 5, 6 n.3 (1997).

Were we to consider the question, Tanios would fare no better. Beyond re-raising claims previously argued and rejected, Bishay argued in the postjudgment motion-but not here-that Tanios was improperly denied an opportunity at the fair hearing to present evidence that he was "disabled" as defined in 106 Code Mass. Regs. § 361.210 (2013). On the contrary, the record fully supports the judge's observation that Bishay, purportedly acting as Tanios's representative, made no attempt to present such evidence, and that Bishay instead "clearly restricted [Tanios's] appeal to a constitutional challenge of [the department's] denial of SNAP benefits to the petitioner because he was disqualified as an eligible noncitizen.... The petitioner was given the opportunity to present evidence and legal argument. There was no undisclosed procedural irregularity." The judge's well-supported ruling cannot be deemed an abuse of discretion.

So much of Tanios's appeal as purports to be from the judgment is dismissed. The order denying Tanios's postjudgment motion, entered September 12, 2017, is affirmed.

So ordered.

Appeal dismissed; order affirmed.

      We also take judicial notice that Bishay is himself subject to a vexatious litigant order, that is, Bishay and his wife are enjoined "from filing any action in any Massachusetts State court without the prior approval of a regional administrative judge." Bishay v. Land Ct. Dept. of the Trial Ct., 477 Mass. 1032, 1032 (2017).

      We need not consider Bishay's unsupported assertion that Bishay did not receive notice of the judgment until July 11, 2017. Even if we credited Bishay's assertion, the date that Bishay actually received notice would not be relevant to the question presented. See Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 138 (2008) (time in which to notice appeal "runs not from ... the time the parties receive notice" of judgment or order but "from the date of entry" [quotation omitted] ). See also BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001) ("[W]e do not find excusable neglect in the simple case of reliance by the parties on the clerk's duty to send notice of orders where they had neglected their obligation to check the docket entries periodically" [quotation omitted] ).

      Even had there been a timely appeal of the judgment, the equal protection argument proffered by Tanios would be unavailing. See Doe v. Commissioner of Transitional Assistance, 437 Mass. 521, 528-535 (2002). Contrast Finch v. Commonwealth Health Ins. Connector Authy., 461 Mass. 232, 245-249 (2012).