author: DITKOFF, J.

text:
    COMMONWEALTH v. Richard L. GILBERT.
    No. 17-P-967.
    Appeals Court of Massachusetts, Worcester..
    Argued May 10, 2018 Decided October 3, 2018
    Edward C. Gauthier, IV, Greenfield, for the defendant.
    Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.
    Present: Trainor, Ditkoff, & Wendlandt, JJ.
   DITKOFF, J.

Based on a long and brutal series of rapes and assaults on a single victim, the defendant, Richard L. Gilbert, pleaded guilty to multiple crimes, including eleven indictments for aggravated rape, in a plea without an agreement regarding disposition. Concluding that multiple counts of aggravated rape may be premised on a single aggravating factor, we reject the defendant's claim that three of his aggravated rape convictions and eight of his convictions of lesser offenses must be vacated. Further finding no ineffectiveness in plea counsel's lengthy sentencing argument or his advice to the defendant, we affirm the Superior Court order on the defendant's motion for postconviction relief.

1. Background. At approximately 9 P.M. on June 26, 2002, the victim, a thirty-eight year old woman, arrived home alone to the apartment in Worcester that she shared with her two school-aged children. She encountered the defendant outside her apartment and exchanged cursory greetings with him before turning to her apartment. As she unlocked the door, the defendant pushed the victim inside and grabbed her face to cover her mouth as she screamed. He threw her face first onto the floor and told her to unbutton and unzip the shorts she was wearing, then pulled them down with her underpants. He repeatedly threatened her "to just do what he said," and not to scream. He said he "would hurt her," but that it "would be over in a minute."

The defendant tried to enter the victim's vagina and rectum but was unable to do so. He then performed oral sex on her and digitally penetrated her vagina and rectum. The victim begged the defendant to let her go, falsely telling him her children would be home at any moment. The defendant did not stop; instead, he lifted her off the floor, told her they were leaving the apartment, took her keys, and carried her across the hallway to a second apartment, where the defendant's parents lived. The door was locked, and he was unable to enter despite kicking and banging on the door. He told her, "We're going back to your place," and said, "If you make any noise, I'll snap your neck."

The defendant reentered her apartment with the victim and made her get on the floor. He grabbed some clothing and used it to gag and bind the victim with her hands behind her back, then took the victim out a back door to another hallway. They entered his parents' apartment through an unlocked back door. Once inside, he took the victim to a room with a mattress on the floor and told her to lie down. The defendant rubbed lotion and cream all over her body, then alternated between penetrating the victim vaginally and performing oral sex on her. He also forced her to perform oral sex on him. The defendant then turned the victim on her stomach, gagged her mouth, and hog-tied her hands and feet together. He carried her to a different bed in another room, then went inside a bathroom and returned with a hypodermic needle. Showing it to the victim, he said, "This is what drugs do to you. I'm a product of my environment.... It's almost over." The defendant took the hog-tied victim into the bathroom and put her on her hands and knees, then penetrated her anally until she screamed in pain. He stopped, then penetrated her vaginally and forced her to perform oral sex on him.

The defendant prepared the needle for the victim, giving her an option: injection into her arm or into her neck. The victim begged the defendant not to inject her at all; nevertheless, he injected the needle into her buttocks and told her it was liquid valium. He shaved her pubic area and lathered her body with cream before vaginally raping her again and forcing her to masturbate herself. The defendant prepared another needle and injected the victim a second time into her foot. He put the victim on all fours and penetrated her from behind, then orally, ejaculating into her mouth. He made the victim wash her mouth out, telling her she was rinsing away evidence.

As the defendant prepared a third needle, the victim said she "didn't feel right"; she was shaking, her mouth was dry, and she was experiencing heart palpitations. He replied, "[T]hat's what was supposed to happen," and injected her a third time, telling the victim "this was dinner and dancing." He also said to "never forgive him and what he did was a horrible thing," and that he had "added time because he had kidnapped her from her apartment." Then he vaginally raped her again.

At this point the defendant untied the victim, letting her put on a pair of his jeans while he made a telephone call. On the telephone, the defendant said he had blacked out and awakened with someone he had taken against her will, but that it was too late to turn back now. He made the victim say hello to whomever he was talking to before hanging up. After the call, the defendant ordered her to undress again and made her perform oral sex on him. He also penetrated her from behind and vaginally while on her back.

The defendant told her to get dressed, tied her hands and feet, gagged her mouth with a sock, and hog-tied the victim again with her hands behind her back. The defendant said he "would give her [ten] minutes," then telephoned for a taxicab for himself. After he left, the victim was able to untie herself and unlock the door, leaving the apartment in terror and running out into the street and to a Dunkin' Donuts where she begged for help. It had been approximately two and one-half hours since the ordeal began.

Worcester police and an ambulance responded, and the victim gave police a detailed description of her assailant. At the hospital, a rape kit produced seminal fluid from vaginal, rectal, and oral swabs taken from the victim. Her blood tested positive for cocaine metabolites, and a physical examination showed bruises on the victim's wrists, ankles, arms, posterior, and back. Among other evidence, investigators recovered fingerprints matching the victim's at the defendant's parents' apartment and corroborated other details from the victim's account. The next day she identified the defendant as the perpetrator from a ten-person photographic array.

The defendant was arrested on June 28, 2002. A Worcester County grand jury returned indictments on September 13, 2002, charging him with one count of aggravated kidnapping, G. L. c. 265, § 26 ; eleven counts of aggravated rape, G. L. c. 265, § 22 (a ) ; one count of indecent assault and battery, G. L. c. 265, § 13H ; one count of assault with the intent to rape, G. L. c. 265, § 24 ; three counts of drugging a person for the purpose of sexual intercourse, G. L. c. 272, § 3 ; six counts of assault and battery by means of a dangerous weapon (three with the needle and three with the gag), G. L. c. 265, § 15A (b ) ; one count of assault and battery, G. L. c. 265, § 13A ; one count of burglary, G. L. c. 266, § 14 ; and one count of threatening to commit a crime, G. L. c. 275, § 2.

At a plea hearing on March 10, 2003, the defendant admitted to the facts above, and pleaded guilty to all charges after a thorough colloquy. The judge (plea judge) heard recommendations from the Commonwealth and defense counsel, and heard from the defendant himself, before sentencing the defendant to various concurrent sentences, with lead sentences of thirty-five to sixty years for the aggravated rapes. Following other postconviction proceedings, the defendant filed a motion to withdraw his guilty pleas and for resentencing on December 13, 2016. A Superior Court judge (motion judge) denied the motion on May 25, 2017, and this appeal followed.

2. Standard of review. "A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 39, 23 N.E.3d 127 (2015), quoting Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009). We accept the facts found by the motion judge if supported by the evidence and review a decision on such a motion "to determine whether the judge abused [his] discretion or committed a significant error of law." Commonwealth v. Resende, 475 Mass. 1, 12, 54 N.E.3d 521 (2016). "A judge has discretion to allow a defendant's motion to withdraw his guilty pleas 'at any time if it appears that justice may not have been done,' " Commonwealth v. Roberts, 472 Mass. 355, 360, 34 N.E.3d 716 (2015), quoting rule 30 (b), including if the plea was not voluntary or intelligent. See Ubeira-Gonzalez, supra at 41, 23 N.E.3d 127. The defendant bears the burden of proof on a motion to withdraw a guilty plea and must "prove facts that are 'neither agreed upon nor apparent on the face of the record.' " Id., quoting Commonwealth v. Comita, 441 Mass. 86, 93, 803 N.E.2d 700 (2004).

3. Aggravated rape and separate convictions. The defendant argues that his convictions of aggravated kidnapping, burglary, and six counts of assault and battery by means of a dangerous weapon are duplicative as predicate offenses for eight of the aggravated rape convictions. He further argues that the remaining three aggravated rape convictions must be reduced to rape convictions for want of additional predicate offenses. These arguments depend on the propositions that each aggravated rape must have a separate predicate offense and that the only available predicate offenses are those that were charged. We disagree with both of those propositions.

A conviction of aggravated rape under G. L. c. 265, § 22 (a ), requires that the rape be aggravated by serious bodily injury, or being committed by a joint enterprise, or being "committed during the commission or attempted commission" of a specified aggravating offense. Here, the Commonwealth does not argue that there was a joint enterprise or serious bodily injury within the meaning of the statute, so each aggravated rape must be supported by the commission of an aggravating offense. Considering "the entire sequence of events," Commonwealth v. Thomas, 89 Mass. App. Ct. 422, 429, 50 N.E.3d 453 (2016), the key inquiry is "whether the aggravating acts" and the intercourse occurred during "one continuous course of criminal conduct directed at the victim." Id., quoting Commonwealth v. McCourt, 438 Mass. 486, 496, 781 N.E.2d 808 (2003). "Sexual intercourse is defined as penetration of the victim," Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 659, 966 N.E.2d 840 (2012), quoting Commonwealth v. Lopez, 433 Mass. 722, 726, 745 N.E.2d 961 (2001), and separate acts of penetration during the same criminal episode may be charged as separate rapes. See Commonwealth v. Vega, 36 Mass. App. Ct. 635, 636-637, 640, 634 N.E.2d 149 (1994) (defendant convicted of three counts of rape based on two incidents of vaginal penetration and one incident of anal penetration).

General Laws c. 265, § 22 (a ), is intended "to protect victims of violent sex offenders, by punishing more severely perpetrators ... who commit other felonies against the victim in addition to the rape." McCourt, 438 Mass. at 495, 781 N.E.2d 808. The Legislature chose the flexible term "committed during" in describing the relationship between the rape and the predicate offense. See id. at 493, 781 N.E.2d 808 (terms "committed with" and "committed during" in § 22 [a ] evinced legislative "intent to avoid a limiting temporal distinction" between rape and aggravating factors). Thus, "[t]he critical point is ... whether the rape victim ... was subjected to other felonious conduct ... during the same criminal episode," Commonwealth v. Brown, 66 Mass. App. Ct. 237, 243, 846 N.E.2d 782 (2006), quoting McCourt, supra at 495, 781 N.E.2d 808, and not whether each act of rape corresponds to a discrete aggravating offense.

For example, on the defendant's view, a person who raped a single victim ten separate times during a single act of kidnapping could be charged with only one count of aggravated rape. Not only would it be impossible for a jury to logically distinguish which rape was aggravated by the kidnapping, the sentences would not match the severity of the crimes. The second through tenth rapes would have been no less terrifying or harmful to the victim, and each would have occurred during the commission of a kidnapping. Thus, even though every element under G. L. c. 265, § 22 (a ), would have been established ten separate times, the perpetrator could be punished for aggravated rape only once. The Legislature did not intend such anomalous results. See McCourt, 438 Mass. at 493, 781 N.E.2d 808.

Moreover, this case is not the first instance where a single aggravating factor supports multiple convictions under G. L. c. 265, § 22. See, e.g., Commonwealth v. Pearson, 87 Mass. App. Ct. 720, 721 & n.1, 34 N.E.3d 1257 (2015) (affirming convictions of five counts of aggravated rape supported by four predicate kidnappings); Commonwealth v. Coleman, 30 Mass. App. Ct. 229, 234, 567 N.E.2d 956 (1991) (jury could have found defendant perpetrated "at least two rapes as part of a joint venture and that the essential elements of G. L. c. 265, § 22 [a ], had been established"); Commonwealth v. Madyun, 17 Mass. App. Ct. 965, 965, 458 N.E.2d 745 (1983) (affirming conviction of four counts of aggravated rape predicated on one count of armed robbery).

The record here shows at least sixteen penetrations that occurred during the commission of multiple kidnappings, multiple acts of burglary, and multiple assaults and batteries by means of a dangerous weapon -- all aggravating offenses enumerated under G. L. c. 265, § 22 (a ). As recognized above, because each aggravating factor may support multiple aggravated rape convictions, the facts admitted to at the plea colloquy establish (at least) eleven aggravated rapes.

We also conclude that there were no duplicative convictions to warrant the withdrawal of the defendant's guilty pleas to any of the lesser offenses. Convictions of aggravated rape and of a charged predicate crime may stand so long as there are aggravating factors beyond the charged predicate offense. See Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 347, 891 N.E.2d 708 (2008) (aggravated rape conviction not duplicative of kidnapping conviction where jury found two additional aggravating factors). Contrast Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 632 n.1, 792 N.E.2d 657 (2003) (vacating duplicative kidnapping conviction wholly included in aggravated rape conviction). Cf. Commonwealth v. Rivera, 464 Mass. 56, 81, 981 N.E.2d 171, cert. denied, 570 U.S. 907, 133 S.Ct. 2828, 186 L.Ed.2d 888 (2013) ("Where, as here, the jury identify an uncharged crime ... as the predicate felony, there is no risk of a duplicative conviction or sentence on that crime"). Given the number and the ongoing nature of the offenses committed throughout the assault here, the facts admitted to at the plea colloquy supported a conclusion that each aggravated rape conviction was supported by an uncharged aggravating offense. See id. Cf. McCourt, 438 Mass. at 493, 496, 781 N.E.2d 808 (statute defining aggravated rape is sufficiently broad to predicate conviction on assault either preceding or following rape); Brown, 66 Mass. App. Ct. at 243, 846 N.E.2d 782 ("the offense of aggravated rape also may encompass a confinement of the victim that takes place after the rape itself, but during the same criminal episode").

4. Ineffective assistance of counsel at sentencing. "Ineffective assistance of counsel requires 'behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,' which 'likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.' " Ubeira-Gonzalez, 87 Mass. App. Ct. at 44, 23 N.E.3d 127, quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). "[S]entencing is a critical stage of the criminal proceeding at which [the defendant] is entitled to the effective assistance of counsel." Commonwealth v. Lykus, 406 Mass. 135, 145, 546 N.E.2d 159 (1989), quoting Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). When making a claim of ineffective assistance of counsel at sentencing, the defendant has the burden of showing "that he would have received a lighter sentence had his counsel conducted himself any differently at sentencing." Commonwealth v. Fanelli, 412 Mass. 497, 503, 590 N.E.2d 186 (1992). Accord Commonwealth v. Giannopoulos, 34 Mass. App. Ct. 937, 938, 612 N.E.2d 1202 (1993), quoting Commonwealth v. Mamay, 407 Mass. 412, 425, 553 N.E.2d 945 (1990) ("In the absence of a showing that a different result might have been attained, we cannot say that counsel's performance was ineffective"). In reviewing plea counsel's tactical decisions during the sentencing hearing, we consider whether counsel's tactics were "manifestly unreasonable." Commonwealth v. Kolenovic, 478 Mass. 189, 193, 84 N.E.3d 781 (2017), quoting Commonwealth v. Degro, 432 Mass. 319, 332, 733 N.E.2d 1024 (2000).

Here, defense counsel offered a lengthy, detailed sentencing argument, taking up more than nine pages of transcript, nearly three times as long as the prosecutor's argument. Contrast Lykus, 406 Mass. at 138, 144-146, 546 N.E.2d 159 (counsel's five-sentence argument at sentencing was ineffective); Commonwealth v. Cameron, 31 Mass. App. Ct. 928, 930, 577 N.E.2d 1016 (1991) (sentencing argument consisting solely of "we place ourselves at the mercy of the court" was ineffective). Counsel recounted the physical abuse the defendant suffered from his father and the sexual abuse the defendant suffered as a child, and suggested these were the causes of the defendant's anger issues. He argued that the crimes were the product of the defendant's problems with drug use. He stated that the defendant had no prior history of sexual offense. He stressed the defendant's loving relationship with his daughter. Finally, he suggested that the judge need not give a lengthy sentence, because the defendant would be subject to community parole supervision for life and to commitment as a sexually dangerous person, "unless the [prosecutors] have an extremely good reason for not doing so, such as remarkable improvement by him during his jail term." Counsel argued that these last two factors meant that, if the defendant were ever released, "he's simply not at that point where he would be a danger to society." Contrast Osborne v. Commonwealth, 378 Mass. 104, 113, 389 N.E.2d 981 (1979) (counsel failed to present any mitigating factors other than defendant's alcohol use but instead prayed for victim).

Counsel also presented the judge with a sexual offender evaluation of the defendant reinforcing these themes. It stated that the defendant "takes full responsibility for the sexual assault against his victim" and that the defendant asserted he had not committed any other rape (charged or uncharged). The evaluation recounted the physical abuse from his father and the sexual abuse that the defendant suffered as a child. The evaluation described the defendant's problems with drug use. The evaluation described the defendant's noncriminal sexual interests and his lengthy relationship with the mother of his daughter. Finally, the evaluation concluded that the defendant had a "[h]igh moderate level of risk to re-offend" and a "[l]ow to [m]oderate risk to reoffend sexually," and made numerous recommendations to reduce those risks.

There was, no doubt, some risk in counsel's tactic of exposing the horrors of the defendant's childhood and in arguing that the possibility of commitment as a sexually dangerous person permitted a shorter sentence. In light of the horrific nature of the crimes, however, we cannot say that this strategy was manifestly unreasonable -- or even unsuccessful. See Commonwealth v. Caputo, 439 Mass. 153, 169-170, 786 N.E.2d 352 (2003) (where judge was aware of mitigating factors, "defense counsel's decision to offer a brief explanation of the defendant's situation was not unreasonable"). See also Commonwealth v. Wilson, 443 Mass. 122, 140, 819 N.E.2d 919 (2004) (counsel not ineffective where "the brutality of the murders and the defendant's criminal history would have overshadowed" mitigating factor).

Similarly, we see no ineffectiveness in counsel's failure to produce additional mitigating evidence. As stated, counsel presented considerable mitigating information, such as the defendant's childhood, his lack of previous sexual offenses, his remorse, and his loving relationship with his daughter. With his postconviction motion, the defendant submitted numerous letters that he suggests could have been presented at sentencing. Much of the content of those letters, however, recounts the defendant's commendable progress in the years since sentencing, and thus was unavailable to plea counsel. The information that would have been available at sentencing discussed the defendant's childhood, problems with drug use and anger, and loving relationship with his daughter and his siblings. As these mitigating factors were all brought to the plea judge's attention, the defendant has not shown that he would have received a lighter sentence if counsel had acted differently. See Mamay, 407 Mass. at 425, 553 N.E.2d 945 ("the judge was exposed to a number of potential mitigating factors"); Giannopoulos, 34 Mass. App. Ct. at 938, 612 N.E.2d 1202 (defendant failed to show that, "had [testimony] been offered, [it] would have made a significant difference in the result"). Contrast Lykus, 406 Mass. at 144-145, 546 N.E.2d 159 (counsel ineffective where, inter alia, he failed to present evidence of four mitigating factors). Accordingly, the defendant has failed to show that counsel was ineffective at sentencing.

5. Ineffective assistance of counsel in advice regarding plea. Where, as here, "a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Commonwealth v. Pike, 53 Mass. App. Ct. 757, 762, 762 N.E.2d 874 (2002), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In this regard, the absence of an affidavit from plea counsel, without a description of unsuccessful attempts to secure such an affidavit, is conspicuous. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640-641, 863 N.E.2d 978 (2007). Contrast Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551, 18 N.E.3d 694 (2014) (defendant may defeat adverse inference from absence of plea counsel affidavit by filing "affidavits attesting to plea counsel's lack of cooperation"). Instead, the defendant's claims of ineffectiveness prior to the sentencing are supported only by his own affidavit and the fact that plea counsel was suspended indefinitely from the practice of law five years after the plea. The defendant has failed to meet his burden of showing ineffective assistance of counsel.

First, the defendant has failed to demonstrate that any conduct by counsel rendered his plea unintelligent or involuntary. See Ubeira-Gonzalez, 87 Mass. App. Ct. at 41, 23 N.E.3d 127. The plea judge informed the defendant twice that he faced no less than twenty-five years in State prison for kidnapping and sexual assault, and likewise informed him of the maximum sentences attached to the other charged offenses. The defendant repeatedly affirmed his understanding of the charges and the consequences he faced in pleading guilty. He affirmed that defense counsel had described the elements of the charged offenses, fully discussed the case and the consequences with him, and explained the defendant's options available through trial. Moreover, the defendant affirmed that no one, including his attorney, had forced, threatened, or otherwise induced him to plead guilty. See Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 474-475, 88 N.E.3d 880 (2017) (rejecting ineffectiveness claim where defendant stated he understood sentencing and made guilty plea without pressure or coercion). The motion judge was not required to credit any claims to the contrary in the defendant's self-serving affidavit. See Commonwealth v. McWilliams, 473 Mass. 606, 621, 45 N.E.3d 94 (2016). Accord Commonwealth v. Lys, 91 Mass. App. Ct. 718, 722, 80 N.E.3d 347 (2017) ("the absence of an affidavit from the defendant's plea counsel without an explanation why such an affidavit could not be obtained is a negative factor in the assessment of the credibility of the affidavit submitted by the defendant"); Ubeira-Gonzalez, supra at 41, 23 N.E.3d 127 (defendant's "own self-serving affidavits" insufficient to support motion to withdraw guilty pleas). Without credible evidence otherwise, the defendant's statements at colloquy are conclusive of the validity of his guilty pleas. See Bolton, supra (defendant's sworn statements at colloquy determinative over self-serving affidavits on motion to withdraw guilty plea).

The defendant's remaining claims on the basis of plea counsel's conduct are unpersuasive for the same reason. See Commonwealth v. Yardley Y., 464 Mass. 223, 231, 982 N.E.2d 488 (2013) (affidavits inadequate to support defendant's assertions on motion to withdraw plea). There is no credible evidence to establish anything "manifestly unreasonable" about counsel's advice in this case. Commonwealth v. Lang, 473 Mass. 1, 14, 38 N.E.3d 262 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442, 845 N.E.2d 274 (2006). To the contrary, it was indisputable that the defendant was guilty of the assault described at sentencing, and the defendant gave his express approval of counsel's representation. See Bolton, 92 Mass. App. Ct. at 474-475, 88 N.E.3d 880. Given the severity of the charges and the strength of the Commonwealth's case, there is nothing beyond his own affidavit to suggest the defendant would not have pleaded guilty but for counsel's conduct. See Pike, 53 Mass. App. Ct. at 762-763, 762 N.E.2d 874. The defendant failed to raise a "substantial issue" on the matter and is not entitled to an evidentiary hearing. Bolton, supra at 475 n.8, 88 N.E.3d 880. Accordingly, the defendant is not entitled to withdraw any of his guilty pleas; nor is he entitled to resentencing for his convictions.

6. Conclusion. The order denying the defendant's motion to withdraw his guilty pleas and for resentencing is affirmed.

So ordered.

      The sentences included community parole supervision for life, pursuant to G. L. c. 265, § 45. That portion of the sentences was vacated after the Supreme Judicial Court struck down community parole supervision for life as set forth in § 45 as an unconstitutional violation of the separation of powers doctrine. See Commonwealth v. Cole, 468 Mass. 294, 295, 308-309, 10 N.E.3d 1081 (2014).

      In relevant part, G. L. c. 265, § 22 (a ), provides:
      "Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse [1] results in or is committed with acts resulting in serious bodily injury, or [2] is committed by a joint enterprise, or [3] is committed during the commission or attempted commission of an offense defined in [G. L. c. 265, §§ 15A, 15B, 17, 19, or 26 ], [G. L. c. 266, §§ 14, 15, 16, 17, or 18,] or [G. L. c. 269, § 10,] shall be punished ...."

      The felony-murder rule likewise "applies to killings that occur 'in the commission of' the underlying felony," McCourt, supra at 494, 781 N.E.2d 808, quoting G. L. c. 265, § 1, so that a single felony may support multiple murder convictions. See, e.g., Commonwealth v. Rakes, 478 Mass. 22, 23, 33, 82 N.E.3d 403 (2017) (two murder convictions predicated on single felony of armed robbery).

      The defendant's aggravating offenses in this case include numerous acts that were not charged in the indictments. (For example, a second burglary occurred when the defendant reentered the victim's apartment to bind and gag her, and the initial confinement in the victim's apartment and subsequent asportation and confinement in the second apartment were separate acts of kidnapping [among others].) An aggravated crime may be supported by an uncharged predicate. See Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 110-111, 735 N.E.2d 395 (2000), cert. denied, 532 U.S. 1030, 121 S.Ct. 1981, 149 L.Ed.2d 772 (2001) (aggravated rape could have been predicated on separate, uncharged kidnapping, but judge failed to so instruct jury). Cf. Commonwealth v. Phap Buth, 480 Mass. 113, 119, 101 N.E.3d 925 (2018), quoting Commonwealth v. Stokes, 460 Mass. 311, 315, 951 N.E.2d 48 (2011) ("the felony on which a charge of felony-murder is premised may be uncharged, so long as the evidence supports it").

      Counsel was disciplined for misconduct relating to several civil matters. This misconduct was unrelated to counsel's representation of the defendant and had no bearing on counsel's conduct in this matter; neither does it demonstrate any prejudice as a result. See Commonwealth v. McGuire, 421 Mass. 236, 238-240, 656 N.E.2d 895 (1995). Cf. Commonwealth v. Dahl, 430 Mass. 813, 818, 724 N.E.2d 300 (2000) (no prejudice resulted from other demands on counsel's time).


source: Caselaw Access Project

license: Public Domain

text:
    Derrick Martins OLIVEIRA v. The COMMERCE INSURANCE COMPANY.
    No. 17-P-757
    Appeals Court of Massachusetts, Suffolk.
    Argued March 9, 2018 Decided October 23, 2018
    Brad W. Greenberg, Brookline, for the plaintiff.
    John P. Donohue, Worcester, for the defendant.
    Present: Trainor, Meade, Lemire, Ditkoff, & McDonough, JJ.

      This case was initially heard by a panel comprised of Justices Lemire, Ditkoff, and McDonough. After circulation of a majority and a dissenting opinion to the other justices of the Appeals Court, the panel was expanded to include Justices Trainor and Meade. See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, 617 N.E.2d 1023 (1993).

   DITKOFF, J.

The plaintiff, Derrick Martins Oliveira, filed suit against the insurer, The Commerce Insurance Company, to obtain coverage as a "household member" under an insurance policy held by the mother and stepfather of his long-term partner, with whom he has a child. To resolve this dispute, we must confront the question whether the phrase "related by blood," in its usual and ordinary sense, reaches two persons with no blood relationship with each other whatsoever, but who each have a blood relationship with a third person. Concluding that the Superior Court judge correctly determined that two persons without a blood relationship with each other are not "related by blood," in the common understanding of the term, we affirm the summary judgment for the insurer.

1. Background. Since 2012, the plaintiff has lived with his long-term partner in a single-family unit with her mother and stepfather. The plaintiff is not married to his partner, but they have a minor son together.

On July 18, 2014, the plaintiff was injured in a serious single-automobile accident while a passenger in a vehicle owned and operated by a third party. The plaintiff sustained fractures to his spine and ribs, tore ligaments in his knee, and suffered substantial lacerations and scarring on his scalp. He was hospitalized for four days, required long-term disability, and incurred medical bills in excess of $40,000. The driver was insured under her own policy, and the plaintiff accepted a settlement with the driver and the driver's insurer to the full extent of that policy, $100,000.

The insurance company here provided coverage for the two vehicles used by the residents of the plaintiff's home under a policy issued to his partner's mother and stepfather (policyholders). The policy provided, inter alia, $250,000 of coverage per person in underinsured motorist (UIM) coverage for "damages for bodily injury to people injured or killed as a result of certain accidents caused by someone who does not have enough insurance." The policy for UIM coverage included coverage for:

"1. You, while occupying your auto, while occupying an auto you do not own, or if injured as a pedestrian.
"2. Any household member, while occupying your auto, while occupying an auto not owned by you, or if injured as a pedestrian. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for any household member who has a Massachusetts auto policy of his or her own or who is covered by a Massachusetts auto policy of another household member providing underinsured auto insurance with higher limits."

The policy also included a definition for "household member":

"9. Household Member- means anyone living in your household who is related to you by blood, marriage or adoption. This includes wards, step-children or foster children."

The plaintiff claimed coverage under the policy as a "household member" of the policyholders. The insurer denied the claim, contending that the plaintiff was not eligible for coverage because he did not "meet the definition of a 'household member' " under the policy. In response, the plaintiff filed a complaint in Superior Court, alleging breach of contract and seeking a judgment declaring that the plaintiff was a "household member" under the policy and, as such, was eligible for coverage. On cross-motions for summary judgment, the plaintiff argued that he was related by blood to the policyholders through his biological son and therefore entitled to coverage as a "household member." After a hearing, a judge denied the plaintiff's motion and granted the insurer's motion. The judge found that the plaintiff was not related by blood to either policyholder, and thus he was not a "household member" and was not entitled to UIM coverage under the policy. This appeal followed.

2. Discussion. "We review a grant of summary judgment de novo." Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253, 28 N.E.3d 416 (2015). On appeal, the issue is "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Here, there is no dispute concerning the material facts, but only concerning the proper construction of the insurance policy.

Our task is to "construe the words of the policy in their usual and ordinary sense." Mahoney v. American Auto. Ins. Co., 83 Mass. App. Ct. 677, 679, 989 N.E.2d 503 (2013), quoting Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 280, 675 N.E.2d 1161 (1997). Because "the language of the policy is determined by the insurance commissioner," construction of the policy language "is exempt from the usual construction against the drafter; rather, it is interpreted in its ordinary sense." Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396, 399, 892 N.E.2d 759 (2008), citing Chenard v. Commerce Ins. Co., 440 Mass. 444, 445-446, 799 N.E.2d 108 (2003).

In its usual and ordinary sense, the phrase "related by blood" denotes a genetic relationship between the two persons asserted to be related. See Black's Law Dictionary 1402 (9th ed. 2009) (defining "blood relative" as "[o]ne who shares an ancestor with another"). See also Allstate Ins. v. Shelton, 105 F.3d 514, 516-517 (9th Cir. 1997) ("resident relative" requires relationship of blood or affinity; where unmarried partners were living together, child of one partner was not relative of other partner); Remington v. Aetna Cas. & Sur. Co., 35 Conn. App. Ct. 581, 587, 646 A.2d 266 (1994) (stepson related by affinity but not by blood); People v. Zajaczkowski, 493 Mich. 6, 14, 825 N.W.2d 554 (2012) (where deoxyribonucleic acid test established that defendant and victim "do not share a relationship arising by descent from a common ancestor," they were not related by blood); Lewis v. Farmers Ins. Exch., 315 Mich. Ct. App. 202, 217, 888 N.W.2d 916 (2016) (automobile insurance policy covering person related "by blood, marriage or adoption" did not reach person whose aunt married insured's uncle). Cf. State Farm Mut. Auto. Ins. Co. v. Boyd, 377 F.Supp.2d 511, 514-515 (D.S.C. 2005) (former foster child of insured's brother not related "by blood, marriage or adoption").

Here, there is no genetic relationship between the plaintiff and the policyholders; rather the plaintiff relies on the fact that both the plaintiff and one of the policyholders have a genetic relationship with the plaintiff's child. The policy, however, covers (for UIM purposes) a person "related to you [the policyholder] by blood, marriage or adoption," not someone "who is related by blood to someone you are related to by blood." Indeed, in the only case we have found to address this precise issue, Holi v. AIG Haw. Ins. Co., 113 Hawai'i 196, 197, 206, 150 P.3d 845 (Ct. App. 2007), the Hawaii Court of Appeals affirmed a lower court's ruling that UIM benefits were not available to a person who lived in the policyholders' household and had a child with the policyholders' daughter, who was not married to the injured person at the time of the accident. The lower court had held that, because the injured person there a lacked a common ancestor with the policyholders, he was not related by blood to the policyholders and, therefore, he was not entitled to UIM coverage. Id. at 206, 150 P.3d 845. The injured person failed even to challenge this ruling on appeal. Id.

Here, the plaintiff requests an expansive definition of "related by blood." The policy language, however, by specifically adding "wards, step-children or foster children" to the persons included in "household member," makes evident that the meaning of "related ... by blood, marriage or adoption" is not suited to further expansion beyond its usual and ordinary meaning. Otherwise, there would be no need to add those persons to the definition of "household member." See Balles v. Babcock Power Inc., 476 Mass. 565, 575 n.17, 70 N.E.3d 905 (2017) (contract should be interpreted not to render any provision superfluous).

We are, nonetheless, given some pause by Turner v. Lewis, 434 Mass. 331, 749 N.E.2d 122 (2001). In Turner, the Supreme Judicial Court faced a complaint for an abuse prevention order sought by the paternal grandmother of a child against the mother, who had never married the child's father. Id. at 331-332, 749 N.E.2d 122. The grandmother had custody of the child and, when the grandmother failed to produce the child at the mother's demand, the mother attacked the grandmother and threatened her with more violence. Id. The Supreme Judicial Court held that "related by blood," as used in G. L. c. 209A, § 1, was broad enough to include the relationship between the grandmother and the mother, and thus the grandmother could seek an abuse prevention order. Turner, supra at 334, 749 N.E.2d 122.

The reasoning of Turner, however, is not applicable here. The court in Turner was not applying the usual and ordinary meaning of the term "related by blood," but rather interpreting legislative language in light of the Legislature's intent "to broaden the definition of persons eligible to seek protection from abuse and domestic violence beyond the 'family' and to also include other persons having some 'family-like' connection." Turner, 434 Mass. at 334, 749 N.E.2d 122, quoting Kindregan & Inker, Family Law and Practice § 57.5 (2d ed. 1996). Noting the "importance of 'giv[ing] broad meaning to the words "related by blood," ' and considering 'whether the relationship puts the parties into contact with one another, even though they might not otherwise seek or wish for such contact,' " the court found the grandmother eligible to seek protection. Turner, supra, quoting Guidelines for Judicial Practice: Abuse Prevention Proceedings § 3:02 commentary (Dec. 2000). This was not because that result tracked the usual and ordinary meaning of "related by blood," but because "[t]he relationship [t]here meets the definition of 'family,' carrying with it all the risks and problems inherent in domestic violence." Turner, supra at 336, 749 N.E.2d 122.

Nor is Turner an outlier in this regard. In Silva v. Carmel, 468 Mass. 18, 23, 7 N.E.3d 1096 (2014), when considering the meaning of persons "residing together in the same household," G. L. c. 209A, § 1, the Supreme Judicial Court again departed from the usual and ordinary meaning of that term in favor of implementing the Legislature's intent. As the court explained, the term "must be interpreted in the context of the statute's other definitions of '[f]amily or household members.' " Silva, supra. Finding again that "the statute's purpose[ is] to prevent violence in the family setting" and recognizing that the parties there -- who shared a household in a State-licensed facility for the developmentally disabled -- were "not in a family-like relationship with each other," the court declined to extend the protections of G. L. c. 209A. Silva, 468 Mass. at 23, 24, 7 N.E.3d 1096.

By comparison to the Supreme Judicial Court's careful interpretations in Turner and Silva, the plaintiff's construction of "related by blood" is breathtaking in its breadth and yet remarkably disconnected to the asserted policy goal of covering a broad range of family relationships. Under the plaintiff's theory, any two persons with a common blood relative are themselves related by blood. Thus, a person with a niece is a blood relative of his or her brother-in-law's parents (and grandparents and, for that matter, any genetic relatives). Indeed, a couple with a biological child would be surprised to find themselves to be blood relatives.

Nonetheless, the plaintiff's construction is surprisingly narrow. Had the plaintiff and his partner been a same-sex couple using an unrelated egg donor, the plaintiff would not be covered. Were the plaintiff and his partner raising a child adopted by his partner, the policyholder's daughter, the plaintiff would not be covered. Had the plaintiff been injured before the birth of the child, the plaintiff would not be covered. The plaintiff's construction places value on one particular flavor of family relationship, to the exclusion of many others.

Nor is it an answer to suggest (which the plaintiff does not) that the meaning of "related by blood" might someday be extended by judicial fiat to persons who lack even a biological relationship with a common third person. In the G. L. c. 209A context, every plaintiff promptly sees a judge, who is well qualified to make a case-by-case determination. Even where the plaintiff lacks the necessary relationship under G. L. c. 209A, § 1, there is value to having the plaintiff come to the court house and become aware of the resources available to a victim of abuse. By contrast, individuals need to know whether they are covered by another individual's policy to determine whether they should obtain their own insurance, and insurance companies need to know who is covered to determine the proper premium and how to process claims. In the insurance context, waiting until an accident and subsequent case-by-case determination of coverage by a judge is not an adequate solution.

Here, we are not interpreting legislative language in an attempt to best effectuate the intent of the Legislature. Instead, we are bound to apply the usual and ordinary meaning of the words "related by blood." Those words denote a genetic relationship, and it is undisputed that the plaintiff has none with either of the policyholders. Because the Superior Court judge correctly concluded, based on the undisputed facts, that the plaintiff was not "related by blood" to the policyholders in the usual and ordinary sense of those words, the judge properly granted summary judgment to the insurer.

Judgment affirmed.

In Turner v. Lewis, 434 Mass. 331, 334, 749 N.E.2d 122 (2001), the Supreme Judicial Court concluded that two individuals who were in the identical material relation to one another as are Derrick Martins Oliveira and his biological son's maternal grandmother are "related by blood," as that phrase is read broadly to advance the protection of domestic abuse victims under G. L. c. 209A. Contrary to what the majority now holds, the same essential rules apply to the interpretation of that very same phrase in the insurance policy, and the statutory phrase from which it arises ("resident relative"), to advance the protection of victims of underinsured intoxicated (and otherwise negligent) drivers who seek compensation for injuries through automobile underinsurance coverage. G. L. c. 175, § 113L (5). The same result, therefore, should follow.

In Massachusetts, automobile insurance is both a statutory and policy driven creature. Every edition of the standard Massachusetts automobile insurance policy must comply with all applicable statutory provisions and be in a form approved by the Commissioner of Insurance (Commissioner). See G. L. c. 175, §§ 2B, 113A. At the end of the day, however, it is the underlying statutory scheme that controls, for while the Commissioner decides what the terms of a standard policy will be, and his or her interpretation of the relevant statutes is entitled to deference, that interpretation cannot stand if it is in conflict with the relevant statutes. See Colby v. Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806, 652 N.E.2d 128 (1995). I thus begin by looking at the policy and statute at issue in this appeal.

At the time of the accident, Oliveira resided as part of a single-family unit with his fiancée, their biological son (child), and the fiancée's biological mother (grandmother) and stepfather (step-grandfather). There were two motor vehicles in the household, both insured under the policy issued by The Commerce Insurance Company (Commerce) to the grandmother and step-grandfather. Neither of the vehicles was involved in the accident, but the policy also included, in pertinent part, $250,000 per person in underinsured motorist (UIM) coverage. According to the policy, UIM coverage "will pay damages for bodily injury to people injured or killed as a result of certain accidents caused by someone who does not have enough insurance." The "people" who qualify for UIM coverage are identified in the policy and include the following:

"1. You, while occupying your auto, while occupying an auto you do not own, or if injured as a pedestrian.
"2. Any household member, while occupying your auto, while occupying an auto not owned by you, or if injured as a pedestrian. If there are two or more policies which provide coverage at the same limits, we will only pay our proportionate share. We will not pay damages to or for any household member who has a Massachusetts auto policy of his or her own or who is covered by a Massachusetts auto policy of another household member providing underinsured auto insurance with higher limits." (Emphasis omitted.)

The terms "you" and "your" are defined in the policy as the person(s) to whom the policy is issued, as identified on the coverage selections page. In this case, "you" and "your" referred to the grandmother and step-grandfather. The term "household member," meanwhile, is defined as "anyone living in your household who is related to you by blood, marriage or adoption. This includes wards, step-children or foster children."

Under G. L. c. 175, § 113L (2), insurers in Massachusetts are required to make UIM coverage available for purchase at the option of the policyholder. The grandmother and step-grandfather exercised that option when they purchased the policy from Commerce. In terms of who is eligible for UIM coverage, the statute, unlike the policy, does not use the phrase "household member." Instead, the statute provides, in pertinent part, that someone in Oliveira's position is eligible for UIM coverage "from the policy of a resident relative" (emphasis supplied). G. L. c. 175, § 113L (5). The statute does not define the phrase "resident relative." Nor does it define the word "relative," which is the portion of "resident relative" that is relevant here.

"When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." (Emphasis supplied.) Modica v. Sheriff of Suffolk County, 477 Mass. 102, 104, 74 N.E.3d 1233 (2017) (quotation omitted). The word "relative" is commonly understood to refer to a person related with another by blood or marriage. See Andrade v. Aetna Life & Cas. Co., 35 Mass. App. Ct. 175, 178, 617 N.E.2d 1015 (1993), quoting Black's Law Dictionary 1289 (6th ed. 1990) (" '[R]elative' has been defined as 'a person connected with another by blood or affinity' "); Merriam-Webster's Collegiate Dictionary 1050 (11th ed.

2005) (defining "relative" as "a person connected with another by blood or affinity"). As previously noted, the policy defines the phrase "household member" as anyone living in the same household as a policyholder who is related to the policyholder by, among other things, blood or marriage. As an initial matter, therefore, the policy approved by the Commissioner appears consistent with the statute, at least to the extent relevant to the issue before us. See Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396, 401, 892 N.E.2d 759 (2008) (concluding that "household member" in insurance policy is consistent with "resident relative" in G. L. c. 175, § 113L [5], as "policy provides coverage for a wide range of relatives who are living in the household"). At the same time, however, this only leaves the court spinning in a circle, since the statute, like the policy, does not define "related by blood."

Which brings us to Turner, the only case in Massachusetts to consider, under any circumstances, the scope of the phrase "related by blood." There, a grandmother, who had custody of her biological son's ten year old biological child, sought a civil abuse prevention order against the child's biological mother. Turner, 434 Mass. at 331-332, 749 N.E.2d 122. To qualify for protection under G. L. c. 209A, the grandmother had to be "related by blood, marriage or household membership" to the mother. Id. at 332, 749 N.E.2d 122. The mother was neither married to the son nor a member of the same household as the grandmother. Id. at 331, 749 N.E.2d 122. The issue, therefore, was whether the grandmother and mother were "related by blood." Id. at 333, 749 N.E.2d 122. The Supreme Judicial Court concluded that they were, id. at 334, 749 N.E.2d 122, rejecting the narrow dictionary definition of the phrase embraced here by the majority. Again, it is difficult to fathom how the result could possibly be different here, since the "relationship" at issue is materially identical.

To reach that seemingly incongruous conclusion, the majority suggests that different rules apply to the interpretation of the language of the insurance policy at issue here than applied when it came to the same language in the statute at issue in Turner. Specifically, the majority suggests that here the court is necessarily restricted to construing the usual and ordinary sense of the phrase "related by blood," while in Turner, the Supreme Judicial Court construed that same phrase in light of the Legislature's intent in enacting the domestic abuse prevention statute -- not in its usual and ordinary sense. With all due respect, however, the majority's suggestion is faulty on more than one level.

First, the court in Turner did not fail to consider the usual and ordinary sense of the phrase "related by blood." The court detailed the interpretive rules it was applying at the outset of its analysis: "When statutory language is clear and unambiguous, the statute must be given its plain meaning. When the language is less clear, we must interpret the statute according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" (emphasis supplied). Turner, 434 Mass. at 333, 749 N.E.2d 122 (citations and quotations omitted). And, of course, the court ultimately went on to apply the phrase in a fairly literal manner, when it concluded that the "paternal grandmother, through her son, is 'related by blood' to the child. Likewise, the child and her mother are 'related by blood.' Thus, the child is 'related by blood' to both parties, making the mother and grandmother 'related by blood' through that child." Id. at 334, 749 N.E.2d 122.

Moreover, it is simply wrong to suggest, as the majority effectively does, that, unlike in Turner, the court is required to view the usual and ordinary sense of the phrase "related by blood" in a vacuum, without considering the underlying statute and its purpose. "We must construe the words of the policy according to the fair meaning of the language used, as applied to the subject matter, as long as the statutory language or legislative policy of G. L. c. 175, § 113L, is not contravened. This is true whether the language of [the] policy is considered ambiguous or explicit." (Emphasis supplied.) Manning v. Fireman's Fund Am. Ins. Cos., 397 Mass. 38, 40, 489 N.E.2d 700 (1986) (citations and quotation omitted). See Massachusetts Insurers Insolvency Fund v. Premier Ins. Co., 449 Mass. 422, 426-427, 869 N.E.2d 576 (2007) (terms of standard automobile insurance policy must be construed "according to the fair meaning of the language used, as applied to the subject matter" [quotation omitted], and in overall context of statutory insurance scheme). To that end, I find the analysis the court undertook in Turner to be both highly instructive and applicable in this case.

The court in Turner, 434 Mass. at 334, 749 N.E.2d 122, first noted that "[i]nterpreting the term 'related by blood' to include the relationship between the grandmother and the mother would be consistent with the Legislature's purpose in enacting c. 209A." Specifically, the court noted that the enactment of c. 209A "reflected [a] significant decision by the legislature ... to broaden the definition of persons eligible to seek protection from abuse and domestic violence." Id. (quotation omitted). The same is true with respect to the statute that governs UIM coverage. As the Supreme Judicial Court has acknowledged, G. L. c. 175, § 113L, "was enacted with the broad objective of ensuring that victims of automobile accidents would be adequately compensated for their injuries when the accidents are caused by the negligence of ... motorists with insufficient or no liability coverage." Gleed v. Aetna Cas. & Sur. Co., 418 Mass. 503, 508, 637 N.E.2d 224 (1994) (quotation omitted). As in Turner, therefore, the court must "bear in mind the importance of giv[ing] broad meaning to the words 'related by blood.' " Turner, supra (quotation omitted).

The court in Turner, 434 Mass. at 334-335, 749 N.E.2d 122, also took "judicial notice of the social reality that the concept of 'family' is varied and evolving and that, as a result, different types of 'family' members will be forced into potentially unwanted contact with one another. The recent increases in both single parent and grandparent headed households are two examples of this trend." Further, the court concluded that "[t]hese trends require that [d]omestic violence statutes [such as G. L. c. 209A] offer coverage to a wide range of extended family relationships to fully reflect the reality of American family life." Id. at 336, 749 N.E.2d 122 (quotation omitted). The Supreme Judicial Court again took notice of this evolving trend two years later, when, in a different context, it stated: "The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. Massachusetts has responded supportively to the changing realities of the American family and has moved vigorously to strengthen the modern family in its many variations." Goodridge v. Department of Pub. Health, 440 Mass. 309, 334, 798 N.E.2d 941 (2003) (quotations and citations omitted). To these "changing realities" of the modern American family, the majority turns a blind eye, thereby limiting UIM coverage to accident victims belonging to conventional families -- to the exclusion of Oliveira, an unmarried parent and household member victimized by an underinsured intoxicated driver. As it happens, one of the areas in which the Supreme Judicial Court has responded supportively to these changing realities is in the context of UIM coverage and the scope of the phrase "household member." In Vaiarella v. Hanover Ins. Co., 409 Mass. 523, 526-527, 567 N.E.2d 916 (1991), the court recognized, "as have courts in other jurisdictions, that, because modern society presents an almost infinite variety of possible domestic situations and living arrangements, the term 'household member' can have no precise or inflexible meaning." The analysis, therefore, "necessarily must proceed on a case-by-case basis." Id. at 527, 567 N.E.2d 916.

Disregarding Vaiarella's admonition of flexibility in defining "household member," as well as Turner's broad definition of "related by blood," the majority opts instead for inflexibility and conventionality.

In doing so, the majority spends a fair amount of time conjuring up what it terms "breathtakingly broad" or "surprisingly narrow" coverage scenarios that might follow if Oliveira is considered to be related by blood to his child's maternal grandmother. Engaging in such reductio ad absurdum can prove to be a risky venture. As suggested in Vaiarella, consideration of other coverage scenarios is best left for determination on a case-by-case basis, with more fully formed facts and records. With that said, I do not find the prospect of Oliveira qualifying for UIM coverage because he is considered to be related by blood to his child's maternal grandmother, with whom he resides, to be more breathtakingly broad than, for example, a person qualifying for UIM coverage under the policy issued to his or her third cousin, with whom he or she happens to reside. As the majority would have it, the phrase "related by blood" is more than flexible enough to allow for the latter, but not the former.

This is not to say that -- divorced from advancing a legislative policy -- there is not some appeal to the majority's holding. Understood in a vacuum, the phrase "related by blood" does seem to imply that two people must share a common bloodline, which is only possible if they are both descended from a common ancestor. Indeed, the phrase "blood relative" has been defined just so. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/blood 20relative [https://perma.cc/5MUR-CY6U] ("blood relative" is "someone who has the same parents or ancestors as another person"); Black's Law Dictionary 1402 (9th ed. 2009) ("blood relative" is "[o]ne who shares an ancestor with another"). Of course, there is also a certain commonsense appeal to the notion that the biological father of a child is related, or, to use the language of the statute at issue here, a "relative" of, the maternal biological grandmother of the child, even if the father is not married to the biological mother of the child. Or, to put it in the same terms as the majority, I think that an objectively reasonable person in Oliveira's position "would be surprised to find" himself to not be related to his child's maternal grandmother, just because he is not married to the child's mother. The result seems even more surprising given that Oliveira resided in the same household and formed what can only be considered a "family," with, among others, the child, the child's mother, and the child's maternal grandmother. In any event, this certainly militates in favor of coverage. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 225, 950 N.E.2d 853 (2011) (when court interprets standard automobile policy, it considers "what an objectively reasonable insured, reading the relevant policy language, would expect to be covered" [quotation omitted] ).

One final point merits discussion. The majority's holding extends beyond Oliveira and victims similarly situated. On the record before the court, it can readily be inferred that the severe injuries Oliveira suffered in the accident have had a significant derivative impact, financially or otherwise, on his family, and, thus, his child, the policyholder's grandson, thus giving rise to a claim for loss of parental society. According to the policy, UIM coverage is only available for "[a]nyone else for damages he or she is entitled to recover because of injury to a person covered under this Part." In other words, UIM coverage would only be available to the child if, once again, Oliveira himself qualifies as a "household member." Over thirty years ago, the Supreme Judicial Court declared, "[o]urs is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy." Powers v. Wilkinson, 399 Mass. 650, 661, 506 N.E.2d 842 (1987) (overruling traditional rule of judicial construction and holding that "the word 'issue,' absent clear expressions of a contrary intent, must be construed to include all biological descendants," including those born out of wedlock). See Goodridge, 440 Mass. at 334, 798 N.E.2d 941 (Massachusetts has "repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth"). It would seem anomalous, therefore, that coverage for the child's loss also could be denied merely because his father and mother did yet not marry -- as recently as a day or hours before the accident.

In this case, Oliveira and his child are "related by blood." Likewise, the maternal grandmother, through her daughter, Oliveira's fiancée, is "related by blood" to the child. Thus, the child is "related by blood" to both the maternal grandmother and Oliveira. And, as was the case in Turner, this makes Oliveira and the grandmother "related by blood" through that child. I consider this to be the fair meaning of the language used in the policy, as applied to the subject matter, consistent with the statutory language and legislative policy of G. L. c. 175, § 113L. As such, I would reverse the judgment, allow Oliveira's motion for summary judgment, deny Commerce's motion for summary judgment, and declare that Oliveira qualifies as a "household member" under the policy issued by Commerce to the grandmother and step-grandfather.

      There seems to be no dispute, at least for summary judgment purposes, that this was insufficient to compensate the plaintiff for the accident.

      The plaintiff was listed with his partner and her stepfather on the coverage selections page of the policy as operators of the two vehicles kept at the residence. Being listed as an operator, however, does not qualify the plaintiff for UIM coverage under the policy. See Kanamaru v. Holyoke Mut. Ins. Co., 72 Mass. App. Ct. 396, 400-401, 892 N.E.2d 759 (2008).

      The plaintiff conceded he was not related by marriage or adoption to the policyholders.

      The plaintiff makes no claim that the language chosen by the Commissioner of Insurance (Commissioner) fails to accord with G. L. c. 175, § 113L. In any event, "the Commissioner of Insurance ... decides what the terms of a standard policy will be, and the commissioner's interpretation of the relevant statutes, although not controlling, is entitled to deference." Colby v. Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806, 652 N.E.2d 128 (1995) (citations omitted). The Commissioner's language reflects a reasonable interpretation of "resident relative," G. L. c. 175, § 113L (5), as we have previously held. Kanamaru, 72 Mass. App. Ct. at 401, 892 N.E.2d 759.

      The plaintiff's complaint in Holi requested a judgment declaring that that he was "related by blood" to the policyholders. Holi, 113 Hawai'i at 198, 150 P.3d 845. In the plaintiff's opposition to the insurance company's motion to dismiss, he failed to argue that he was related by blood. Id. at 199, 150 P.3d 845. The lower court, nonetheless, addressed the issue and determined that the plaintiff was not related by blood. Id. at 200, 150 P.3d 845.

      According to Oliveira's sworn answer to an interrogatory, which is not disputed anywhere in the record before us, he was the victim of an act of an intoxicated driver. The driver of the vehicle in which he was a passenger was "highly intoxicated" and crashed the vehicle into a diesel fuel pump at a fire station in Charlestown. At least in this case, therefore, a broad reading of the phrase "related by blood" also would be consistent with the legislative policy of protecting and compensating victims of intoxicated drivers; a policy that, most notably, has prompted the Supreme Judicial Court to take a broad view of the common law of negligence in "dram shop liability" cases. See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 155-162, 496 N.E.2d 141 (1986) ; Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 10-12, 453 N.E.2d 430 (1983) ; Cimino v. Milford Keg, Inc., 385 Mass. 323, 327, 431 N.E.2d 920 (1982) ; Adamian v. Three Sons, Inc., 353 Mass. 498, 500-501, 233 N.E.2d 18 (1968).

      The policy at issue in this case is the 2008 edition. Thus, the broad definition of "related by blood" enunciated in Turner, 434 Mass. at 334, 749 N.E.2d 122, preceded by roughly seven years the Commissioner's promulgation of the policy using the same phrase.

      UIM coverage was made optional by St. 1988, c. 273, § 46. See Smart v. Safety Ins. Co., 419 Mass. 144, 148, 643 N.E.2d 435 (1994).

      General Laws c. 175, § 113L (5), also provides (1) that the person seeking coverage cannot be a "named insured" on another policy providing UIM coverage, (2) that the person may only recover from the policy of a resident relative providing the highest limits of UIM coverage, and (3) if there are two or more such policies providing the same limits of UIM coverage, a pro rata contribution will be made from each. None of these provisions are in dispute in this case.

      Commerce originally argued that Oliveira did not reside or live in the same household as the grandmother, but conceded that fact for purposes of summary judgment.

      The majority suggests that it unearthed one case that addressed the "precise" issue now before the court, Holi v. AIG Haw. Ins. Co., 113 Hawai'i 196, 150 P.3d 845 (Ct. App. 2007). While the plaintiff's complaint in Holi, made the same "related by blood" argument that Oliveira makes here, the plaintiff, for unspecified reasons, did not raise that argument in his opposition to the insurance company's motion to dismiss, nor did he raise it on appeal. See id. at 198, 199, 206, 150 P.3d 845. As the issue was uncontested at both the trial and appellate levels, the Holi case, therefore, did not exactly "address" the issue.

      At the very least, the holding in Turner would suggest that the phrase "related by blood" is ambiguous. See James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669, 88 N.E.3d 1133 (2018) ("[L]anguage is ambiguous if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one" [quotation omitted] ). In fact, the Turner court seems to have conclusively established as much, by effectively having found the phrase "related by blood" to be "less clear." See Turner, 434 Mass. at 333, 749 N.E.2d 122.

      While Gleed involved a policy issued at the time that UIM coverage was compulsory, see note 3, supra, the same broad objective is still evident now that the coverage is optional. In fact, the court noted in Gleed, 418 Mass. at 508 n.4, 637 N.E.2d 224, that, notwithstanding the change in the statute, which had already occurred, its decision would have been the same.

      As G. L. c. 175, § 113L(5), is a civil, not a criminal, statute, the rule of lenity does not apply and the policy's phrase "related by blood" and statutory word "relative" do not have to be construed narrowly. See Commonwealth v. Dayton, 477 Mass. 224, 226, 75 N.E.3d 600 (2017) ("[W]here the language of a criminal statute plausibly can be found ambiguous, the rule of lenity requires that the defendant receive the benefit of the ambiguity").

      This court previously noted in Kanamaru, 72 Mass. App. Ct. at 401-402, 892 N.E.2d 759, that the "language [in Vaiarella ] implying flexible construction of the household member provision ... arose in the context of determining which relatives actually resided in a household. It does not alter the plain meaning of the definition of 'relative' as outlined in the policy." There was no dispute in Kanamaru, however, that the plaintiff did not qualify as a "relative." He was seeking coverage under his roommate's policy and admitted they were not related by blood, marriage, or adoption, and that he was not a ward, stepchild, or foster child of his roommate. See id. at 401, 892 N.E.2d 759. As such, I consider the court's discussion in Kanamaru of Vaiarella and the word "relative" to be dicta. I view the language in Vaiarella implying flexible construction of the phrase "household member" as being equally applicable to the "resident" and "relative" aspects of that phrase.

      "Ancestor" is defined as "one from whom a person is descended and who is usu[ally] more remote in the line of descent than a grandparent." Merriam-Webster's Collegiate Dictionary 46 (11th ed. 2005). See Black's Law Dictionary 100 (9th ed. 2009) ("common ancestor" means a "person to whom the ancestry of two or more persons is traced").

      There is no mention in the record of whether a claim for loss of society has yet been pursued on the child's behalf against the intoxicated driver or against the UIM coverage under the policy at issue.


author: Hoffman, P.J.

text:
    Stuart HINERMAN, Plaintiff-Appellee v. The GRILL ON TWENTY FIRST, LLC, et al., Defendants-Appellants
    No. 17-CA-82
    Court of Appeals of Ohio, Fifth District, Licking County.
    DATE OF JUDGMENT ENTRY: May 11, 2018
    JONATHAN A. VELEY, 2034 Cherry Valley Road, Newark, Ohio 43055, For Plaintiff-Appellee:
    STEPHEN B. WILSON, 35 South Park Place, Suite 150, Newark, Ohio 43055, For Defendants-Appellants:
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.
   Hoffman, P.J.

{¶ 1} Appellants The Grill on Twenty First, LLC; Twenty First Street Properties, LLC; and Eric E. Mason appeal the judgment entered by the Licking County Common Pleas Court ordering a former attorney for Appellants to answer questions posed in a deposition by Appellee Stuart Hinerman.

STATEMENT OF THE FACTS AND CASE

{¶ 2} Appellee is a member in the limited liability companies The Grill on Twenty First and Twenty First Properties, Appellants in this case. Appellant Mason and Appellee agreed to go into business together operating a restaurant previously owned and operated by Appellee.

{¶ 3} At the time they were discussing the new venture, Mason was represented by Attorney Adam Vernau, who was a member of the Newark law firm of Morrow, Gordon & Byrd. Mason notified Hinerman he had contacted Vernau to draft the operating agreements governing the new corporations. Hinerman was already a client of another attorney at the same law firm, and agreed to have Vernau prepare the agreements.

{¶ 4} On December 20, 2006, Hinerman met with Vernau at the law firm's office and signed operating agreements with respect to both companies. The Grill on Twenty First, LLC was organized to operate the restaurant business, while Twenty First Street Properties, LLC was organized to own and manage the real estate on which the restaurant was located.

{¶ 5} Appellee filed the instant case on December 7, 2015, seeking damages for breach of contract and breach of fiduciary duty, as well as an accounting from Appellants. Appellants filed a counterclaim against Appellee for breach of contract.

{¶ 6} A deposition of Attorney Adam Vernau was scheduled for June 15, 2017. On the day of the deposition, Appellant Mason asserted all communications between himself and Vernau regarding the preparation of the operating agreements for the two companies were privileged. The deposition was cut short due to Appellant Mason's objections. Appellee sought a ruling from the court on the issue of whether attorney-client privilege could be invoked.

{¶ 7} After an evidentiary hearing on the issue of attorney-client privilege, the court allowed the parties to supplement the record with affidavits from any person who testified at the hearing, as well as an affidavit from Vernau. The court found the joint representation exception to the attorney-client privilege was demonstrated by the evidence, and ordered Vernau to answer questions as to whether either party gave special instructions when drafting the contract regarding the division of losses from the company and the liability of Hinerman and Mason, and to answer the question as to whether he drafted any contracts which are the subject of the dispute of this case.

{¶ 8} It is from this October 3, 2017 judgment Appellants prosecute their appeal, assigning as error:

THE TRIAL COURT ERRED IN FINDING THERE WAS JOINT REPRESENTATION BETWEEN PLAINTIFF-APPELLEE, DEFENDANT-APPELLANT AND ATTORNEY ADAM VERNAU AND IN ENTERING A DISCOVERY ORDER THAT BREACHES THE CONFIDENTIALITY GUARANTEED BY THE ATTORNEY-CLIENT PRIVILEGE.

{¶ 9} Generally, discovery orders are not immediately appealable. Walters v. Enrichment Center of Wishing Well, Inc., 78 Ohio St.3d 118, 676 N.E.2d 890 (1997). However, if the judgment orders a party to disclose allegedly privileged material, it is appealable pursuant to R.C. 2505.02(A)(3) and (B)(4). Northeast Professional Home Care, Inc. v. Advantage Home Health Servs., Inc., 188 Ohio App.3d 704, 936 N.E.2d 964, 2010-Ohio-1640 at ¶ 34.

{¶ 10} {¶ 15} "The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Swidler & Berlin v. United States , 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). In Jackson v. Greger , 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, the court stated, " R.C. 2317.02(A) provides a testimonial privilege-i.e., it prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney's advice to a client. A testimonial privilege applies not only to prohibit testimony at trial, but also to protect the sought-after communications during the discovery process." Id. 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487 at ¶ 7, fn. 1.

{¶ 11} There are a number of well-established exceptions to the attorney-client privilege. Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. , 127 Ohio St.3d 161, 937 N.E.2d 533, 2010-Ohio-4469, ¶ 24-43. One such exception is the joint representation exception:

In addition, Ohio courts have applied the common-law joint-representation exception to the attorney-client privilege, which provides that a client of an attorney cannot invoke the privilege in litigation against a co-client. See, e.g., Emley v. Selepchak (1945), 76 Ohio App. 257, 262, 31 O.O. 558, 63 N.E.2d 919, quoting 8 Wigmore on Evidence (3d Ed.1940), Section 2312 ("Another exception * * * is 'when the same attorney acts for two parties having a common interest, and each party communicates with him. Here the communications are clearly privileged from disclosure at the instance of a third person. Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other * * *.' " [Emphasis sic] ); Netzley v. Nationwide Mut. Ins. Co. (1971), 34 Ohio App.2d 65, 78, 63 O.O.2d 127, 296 N.E.2d 550 (following Emley ); see also Weissenberger's Ohio Evidence Treatise (2009) 246-247, Section 501.8 ("A similar exception applies when an action arises between parties who were previously co-clients within an attorney-client relationship"). Id. at ¶ 32.

{¶ 12} "Whether an attorney-client relationship exists is not governed solely by whether the person to whom advice is given or for whom service is rendered pays the attorney who gives the advice or renders the service." Lillback v. Metro. Life Ins. Co., 94 Ohio App.3d 100, 108-09, 640 N.E.2d 250, 256 (2nd Dist. Montgomery 1994). The test for determining the existence of an attorney-client relationship is both subjective and objective; it is a question of both what the putative client believed and whether or not that belief was reasonable based on the surrounding circumstances. Stuffleben v. Cowden , 8th Dist. Cuyahoga No. 82537, 2003-Ohio-6334, 2003 WL 22805065, ¶ 22.

{¶ 13} The trial court found the joint representation exception existed in this case. The court found Appellee had an honest belief the former attorney was employed by both himself and Appellants, and this belief was reasonable based on the surrounding circumstances. The court further concluded the parties had a common interest when hiring the former attorney. Appellant argues the court erred in finding Vernau jointly represented both Mason and Hinerman in the drafting the agreements surrounding the establishment of the two limited liability companies at issue.

{¶ 14} Although issues surrounding an assertion of privilege are generally subject to de novo review, with respect to questions of fact, an appellate court must determine whether the trial court abused its discretion. MA Equip. Leasing I, L.L.C. v. Tilton , 2012-Ohio-4668, 980 N.E.2d 1072, ¶ 18. Accordingly, we review the trial court's determination of factual issues, including the existence of an attorney-client relationship between Appellee and counsel retained by Appellant Mason, for an abuse of discretion. Id.

{¶ 15} In his affidavit, Appellee avers as follows:

2. Prior to my involvement with the Defendant Eric Mason and in the businesses known as The Grill on Twenty First, LLC and Twenty First Street Properties, LLC, I was a client of Morrow, Gordon & Byrd, a Newark, Ohio law firm.
3. When Defendant Eric Mason and I had decided to go into business together, Eric Mason told me that he had found Adam Vernau, an attorney at Morrow, Gordon & Byrd, to draft our operating agreements for both of us.
4. I readily agreed to have Adam Vernau prepare our agreements because I was already a client of Morrow, Gordon & Byrd.
5. Adam Vernau prepared the operating agreements at issue in this case.
6. Adam Vernau never advised me that he was representing Eric Mason only and he never advised me that I should consult my own lawyer if I wanted to be represented.
7. I thought Adam Vernau was representing both me and Eric Mason jointly.
8. Eric Mason and I both shared a common interest in having our operating agreements drawn up to reflect the terms that we had agreed upon.

{¶ 16} Adam Vernau averred in his affidavit filed subsequent to the evidentiary hearing, "In regard to creating the new limited liability companies, including the preparation of the operating agreements, my client was Eric E. Mason." However, in his testimony at the original deposition which gave rise to the initial question of attorney-client privilege, he testified the client would have been the LLCs, and the members, so "I guess, Eric, Stu and there's two LLCs, is my recollection." Deposition of Adam Vernau, p.6. He further testified he thinks as a matter of law he represented Appellee, but his interaction with him was limited. Deposition of Adam Vernau, p. 16.

{¶ 17} The trial court did not abuse its discretion in finding Appellee believed Vernau represented himself and Mason jointly. His affidavit provided direct evidence as to his belief. The court further did not abuse its discretion in finding Appellee's belief of joint representation to be reasonable. Appellee was already a client of the law firm when Mason came to him and suggested Vernau draw up the operating agreements. His affidavit recites he was never advised by Vernau he was representing Mason only. He and Mason shared a common interest in the operating agreements which created their limited liability companies for their joint business venture. Further, Vernau acknowledged while most of his interaction was with Mason, he believed his clients legally were both Mason and Appellee, as well as the two limited liability companies.

{¶ 18} Because the court did not abuse its discretion in finding joint representation based upon the evidence before it, the trial court did not err in finding the attorney-client privilege inapplicable based on the joint representation exception.

{¶ 19} The assignment of error is overruled.

{¶ 20} The judgment of the Licking County Common Pleas Court is affirmed.

Delaney, J. and Wise, Earle, J. concur