text:
    COMMONWEALTH v. Cortney STREET.
    16-P-491
    Appeals Court of Massachusetts.
    Entered: February 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Cortney Street, was found guilty of operating while under the influence of intoxicating liquor (and with a blood alcohol level of .08 percent or greater), and negligent operation of a motor vehicle. On appeal, the defendant argues that the motion judge erred in failing to suppress as involuntary all of her statements made to the police. The defendant also argues that she was erroneously denied a meaningful opportunity to cross-examine the Commonwealth's expert at trial. Finally, the defendant argues that she received ineffective assistance of counsel. We affirm.

Background. At approximately 2:00 A.M. on April 4, 2014, Officers Orlando, Bizarro, and Rei of the New Bedford police department were dispatched to the scene of a roll-over automobile accident. The wheels of the overturned vehicle, which was later determined to be registered to the defendant, were still spinning when the officers arrived at the scene of the accident. A downed light pole was located near the vehicle.

After finding no one in the passenger compartment of the vehicle, Officer Orlando approached a woman who later identified herself as the defendant, Cortney Street. She was standing approximately ten feet from the crashed vehicle, had no shoes on, and was shaking and crying. The defendant had no visible injuries and, although she was upset, she was coherent. The defendant made statements to Officer Orlando, discussed infra, indicating that she was the operator of the crashed vehicle. An odor of alcohol emanated from her breath, and she had glassy, bloodshot eyes. Based on his interaction with the defendant, Officer Orlando concluded that she was intoxicated.

The defendant was subsequently transported to the hospital for medical evaluation. The defendant's blood was drawn after her arrival at the hospital. A forensic scientist from the office of alcohol testing testified, based on her reading of the defendant's medical records admitted in evidence, that the defendant's blood alcohol concentration was above .14 percent when her blood was drawn at the hospital, shortly after the accident.

Discussion. 1. Motion to suppress. The defendant argues that the motion judge erred by failing to suppress all of the defendant's statements relating to her operation of the crashed vehicle on the basis that they were involuntary. The motion judge suppressed the defendant's response to Officer Orlando's leading question about whether she had too much to drink that night after concluding that it was involuntary. No other statements made by the defendant during her interaction with Officer Orlando were suppressed.

a. The defendant's statement identifying herself as Cortney Street. After arriving on the scene of the accident, Officer Orlando spoke with the defendant, who identified herself as Cortney Street. The defendant argues that the judge erred in failing to suppress this statement.

Even if we were to assume that this statement should have been suppressed as involuntary, we conclude that its admission in evidence was harmless beyond a reasonable doubt. See Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). At trial, Officer Rei identified the defendant as the person with whom Officer Orlando was speaking after the accident. Moreover, the defendant's medical records, which twice refer to the defendant as the driver of a vehicle involved in a roll-over accident after striking a pole, were introduced in evidence. The registration of the overturned vehicle, which bore the defendant's name, was also admitted in evidence at trial. See Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 439 (2002) (stating that defendant's status as registered owner of vehicle involved in accident circumstantial evidence of defendant's operation of vehicle). In sum, the defendant's statement to Officer Orlando as to her identity was harmless beyond a reasonable doubt due to the additional evidence identifying the defendant as the operator of the vehicle. See Commonwealth v. Neves, 474 Mass. 355, 366 (2016).

b. The defendant's statement regarding her driving route. Officer Orlando testified at trial that the defendant informed him that she had been driving from a local club to her boy friend's home when the accident occurred. This statement was not elicited during the hearing on the motion to suppress and no argument was made at the time of the hearing that this statement should be suppressed. The testimony of Officer Orlando concerning this statement was not objected to at trial. The defendant argues for the first time on appeal that this statement was improperly admitted at trial.

Because the issue was not brought to the judge's attention during the hearing on the motion to suppress and because there was no objection to it at trial, we review to determine whether the admission of the statement in evidence gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1965).

The statement was incriminatory only to the extent that it constituted evidence that the defendant operated the vehicle; the defendant did not state that she had been drinking at the club and did not comment on the manner in which she was driving the vehicle at the time of the accident. As previously discussed, additional evidence, apart from this statement, was admitted indicating that the defendant was the operator of the vehicle. The admission of this statement in evidence did not create a substantial risk of a miscarriage of justice.

2. Cross-examination of the Commonwealth's expert. The defendant further argues that she did not have a meaningful opportunity to cross-examine the Commonwealth's expert witness on the basis that the witness could not comment on the blood-drawing procedures employed by the hospital staff who treated the defendant on the night of the accident.

An expert witness may base her opinion on facts or data not in evidence if the facts or data are independently admissible in evidence and are a permissible basis for an expert to consider in formulating an opinion. See Commonwealth v. Waite, 422 Mass. 792, 803 (1996). See also Mass. G. Evid. § 703 (2017).

Here, the Commonwealth's expert witness opined that the defendant's blood alcohol content was above .14 percent when her blood was drawn following her transportation to the hospital. The expert's opinion was properly based on her reading of the defendant's hospital records, which were later admitted as an exhibit pursuant to G. L. c. 233, § 79. See Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 673-678 (2011). The defendant took full advantage on cross-examination of the expert's lack of knowledge as it related to the blood-drawing procedures employed by staff at the treating hospital. There was no error.

3. Ineffective assistance of counsel. The defendant further argues that defense counsel was ineffective based on his failure to (1) seek suppression of Officer Rei's prior identification of the defendant made during an earlier motion to suppress proceeding; (2) object to Officer Rei's in-court identification of the defendant at trial; and (3) pursue a humane practice instruction at trial.

A defendant alleging ineffective assistance must establish (1) "serious incompetency, inefficiency, or inattention of counsel-behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and (2) the resulting deprivation of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant raises her claims of ineffective assistance of counsel on direct appeal, which constitutes the "weakest form of such a challenge 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). See Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 552 (2006) ("While we could speculate about defense counsel's rationale for proceeding the way he did, the proper mechanism for advancing the defendant's ineffective assistance claim is through a motion for a new trial ...").

Viewing defense counsel's strategy in the abstract, it may seem as if the defendant would have benefited by preventing Officer Rei from identifying the defendant at trial. However, Officer Rei's identification of the defendant was equivocal at the prior hearing on the motion to suppress. Defense counsel, presuming that Officer Rei would again equivocate, may have believed that an equivocal identification by Officer Rei at trial would add an additional layer of doubt as to the defendant's identity. When Officer Rei did not equivocate in his identification of the defendant at trial, defense counsel cross-examined him using his prior, imprecise identification made during the hearing on the motion to suppress. We cannot say, in hindsight, that defense counsel's decision to allow Officer Rei to identify the defendant constituted ineffective assistance of counsel. ,

Even if we were to assume that the first prong of Saferian had been met, significant evidence apart from Officer Rei's identification, including the defendant's hospital records and vehicle registration, was admitted indicating that the defendant was the operator of the motor vehicle involved in the accident. Although the identification testimony potentially bolstered the other evidence, it did not deprive the defendant of an otherwise available, substantial ground of defense where other significant evidence of operation was admitted at trial.

The same may be said of the defendant's statements indicating that she was operating the vehicle at the time of the accident. Although counsel did not request a humane practice instruction as to the defendant's statements about operating the crashed vehicle, the medical records and registration put in evidence independently showed that the defendant was the operator of the vehicle. Additionally, the record before us indicates that the voluntariness of the defendant's statements was not a live issue at trial. In fact, defense counsel made use of his client's statements after the accident to bolster his closing argument. The defendant was thus not deprived of a substantial ground of defense based on the lack of a humane practice instruction. See Commonwealth v. Wadlington, 467 Mass. 192, 200 n.12 (2014).

Based on the record before us, which does not include an affidavit from the defendant's trial counsel, we cannot say that his failure to seek suppression of Officer Rei's prior identification or to object to his in-court identification at trial, as well as counsel's failure to request a humane practice instruction, constituted ineffective assistance of counsel.

Judgments affirmed.

      At trial, Officer Orlando was unable to identify the defendant as the woman with whom he spoke. At trial, Officer Rei identified the woman with whom Officer Orlando spoke as the defendant.

      The defendant does not argue that the statements were elicited in violation of the defendant's Miranda rights.

      This statement appears to have been in the police report related to the defendant's arrest.

      In coming to this conclusion, we note that we do not have the benefit of an affidavit or the testimony of trial counsel as to his trial strategy because the defendant's claim of ineffective assistance is raised for the first time on direct appeal. See Peloquin, 437 Mass. at 210 n.5.

      It is not necessary for us to decide whether this identification falls within the scope of the "good reason" exception, as discussed in Commonwealth v. Dew, 478 Mass. 304, 313 (2017), for the above stated reasons.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Johnny JOACINE.
    17-P-278
    Appeals Court of Massachusetts.
    Entered: February 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion to withdraw his guilty pleas and for a new trial, brought pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011). He argues that he should have been permitted to withdraw his 2009 guilty pleas because his plea counsel was ineffective in failing to provide accurate advice regarding the immigration consequences of his pleas. The defendant also appeals from the denial of his motion to reconsider the denial of his initial motion. We vacate the order denying the initial motion and remand the case for further proceedings.

Background. The defendant, a citizen of Haiti and a lawful permanent resident of the United States, was indicted on March 13, 2009, for assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A ; and assault with intent to rob, G. L. c. 265, § 20, both arising from an attempted robbery. At the plea colloquy held on September 21, 2009, the judge told the defendant that if his guilty pleas were accepted, the judge would "place [him] on probation, eighteen months' suspended sentence, and then [he'd] have probation, where [he] could possibly go to [S]tate prison if [he] violate[d] it." The judge then asked the defendant if he still wished to go ahead with his plea, and the defendant said that he did. The judge accepted the pleas and sentenced the defendant on the first count to eighteen months in the house of correction, suspended during a three-year term of probation, and on the second count to a concurrent three-year term of probation.

Based on the sentences actually imposed, the conviction of assault and battery by means of a dangerous weapon offense was an "aggravated felony," providing a basis under Federal law for removal (i.e., deportation) from the United States. In 2015, while the defendant was returning from a trip to Haiti, U.S. Customs and Border Protection officials stopped him and initiated removal proceedings.

In 2016, the defendant filed a motion to withdraw his plea and for a new trial, pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). At an evidentiary hearing, the motion judge (who had not been the plea judge) accepted in evidence (1) the recording of the defendant's 2009 plea colloquy; (2) affidavits from the defendant, his step-mother, and the defendant's plea counsel, and (3) testimony by the prosecutor who had represented the Commonwealth at the 2009 plea hearing.

The defendant's affidavit stated that plea counsel "never spoke to [him] about the immigration consequences," and that "[i]f [he] had known that [he] was giving up [his] life in the United States by signing this plea agreement, [he] would have taken [his] chances and gone to trial." Plea counsel's affidavit, on the other hand, stated that he had advised the defendant of the "very generous offer of probation and a suspended 18 month jail sentence which would likely result in deportation" (emphasis supplied). Plea counsel further stated that "every time" he met with the defendant in court, he informed the defendant of "the potential of a deportation hearing and deportation if he plead[ed] guilty to the indictments, or if he went to trial and lost, then he could expect a maximum of 20 years in [State] prison with a certainty of deportation based on his convictions" (emphasis supplied).

The judge issued findings of fact crediting counsel's statements over the defendant's. He ruled that counsel's advice had not been deficient and, thus, without reaching the question whether the defendant had been prejudiced by that advice, denied the defendant's motion. The judge also denied the defendant's subsequent motion to reconsider. This appeal followed.

Discussion. "A postsentence motion to withdraw a plea is treated as a motion for a new trial." Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review a judge's decision denying such a motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In addition, we review an ineffective assistance of counsel claim under the two-prong analysis set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Removal from the United States of a noncitizen who is convicted of an aggravated felony is "practically inevitable," Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 398 (2012), quoting from Padilla, 559 U.S. at 364, or "presumptively mandatory." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 725 (2012), quoting from Padilla, supra at 369. Accordingly, counsel "was obligated to provide to his client, in language that the client could comprehend, the information that presumptively mandatory deportation would have been the legal consequence of pleading guilty. Stated differently, counsel needed to convey that, if Federal authorities apprehended the defendant, deportation would be practically inevitable." Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014).

Here, counsel advised that a plea carried "a high probability" of, or "would likely result" in, deportation. Significantly, however, counsel also advised the defendant of "the potential of a deportation hearing and deportation" if he pleaded guilty, whereas if he went to trial and was convicted, he faced "a certainty of deportation." This contrasting advice, although rendered prior to Padilla, was misleading, in that the defendant's pleading guilty to a charge that he knew would result in an eighteen-month suspended sentence made deportation no less likely than had he gone to trial and been convicted. Although the Supreme Judicial Court has "not dictate[d] the precise language that must be employed, as each case will present different circumstances," DeJesus, 468 Mass. at 181 n.5, we conclude that plea counsel's advice here, although rendered prior to Padilla, was deficient, failing the first prong of Saferian, 366 Mass. at 96.

The remaining question is whether the defendant was prejudiced by the deficient advice. See ibid. The Supreme Judicial Court has explained the defendant's "substantial burden" in these circumstances, requiring one of three showings:

"(1) he had an 'available, substantial ground of defence,' that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty."

Clarke, 460 Mass. at 47-48 (quotations and footnote omitted).

In this case, while an evidentiary hearing was held, because the motion judge concluded that defense counsel's advice was sufficient, he did not reach the question of prejudice. It now remains for the judge to resolve that issue, and in doing so, to take such additional relevant evidence regarding prejudice as the parties may offer. See Commonwealth v. Lavrinenko, 473 Mass. 42, 43 (2015).

Conclusion. The order denying the motion to withdraw the guilty pleas is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      Because of our disposition, we do not separately consider or act on the denial of the defendant's motion for reconsideration.

      The plea hearing was recorded but never transcribed. The recordings are part of the record.

      Defense counsel orally clarified that the probation term would be three years.

      "An aggravated felony, according to 8 U.S.C. § 1101(a)(43)(F) (2006), includes a crime of violence for which one is sentenced to at least one year of imprisonment." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 397 (2012) (footnote omitted). See United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000) ("an aggravated felony is defined by the sentence actually imposed," citing United States v. Graham, 169 F.3d 787, 790-791 [3rd Cir.], cert. denied, 528 U.S. 845 [1999] ). We need not decide whether a conviction of assault with intent to rob that resulted in a sentence of straight probation qualifies as an aggravated felony. But see Guzman-Bera, 216 F.3d at 1021, quoting from United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999) ("[W]hen a court does not order a period of incarceration and then suspend it, but instead imposes probation directly, the conviction is not an 'aggravated felony' ").

      Any noncitizen convicted of an "aggravated felony" is deportable, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), and "shall, upon the order of the Attorney General, be removed." 8 U.S.C. § 1227(a).

      At the time of the hearing, the defendant was in Federal custody based on the pending removal proceedings and was not present. The defendant's removal was ordered by a judge of the United States Immigration Court on March 17, 2016.

      The motion judge did not reference the step-mother's affidavit in his decision.

      Plea counsel had retired and relocated out of State; the judge agreed to accept his affidavit in lieu of live testimony.

      The judge invited defense counsel to have the prosecutor sworn, which defense counsel declined.

      Counsel also stated that his practice was to discuss immigration consequences with his clients, and to inform them that "they may be deported if they are found guilty or enter a plea to an aggravated felony." We note that when counsel advised the defendant in 2009, he did not have the benefit of Padilla, decided in 2010. Nonetheless, Padilla is to be applied retroactively to criminal convictions obtained after April 1, 1997. See Commonwealth v. Sylvain, 466 Mass. 422, 423-424 (2013).

      Although the plea judge properly administered the immigration warning required by G. L. c. 278, § 29D, and the motion judge found that the defendant had signed a plea form notifying him of deportation as a possible consequence, such warnings are, as the judge recognized, "not an adequate substitute for defense counsel's professional obligation to advise [his] client of the likelihood of specific and dire immigration consequences that might result from such a plea." DeJesus, 468 Mass. at 177 n.3, quoting from Clarke, 460 Mass. at 48 n.20.


text:
    COMMONWEALTH v. Parveen KAPOOR.
    17-P-657
    Appeals Court of Massachusetts.
    Entered: February 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Cambridge Division of the District Court Department, the defendant, Parveen Kapoor, was found guilty of operating a motor vehicle while under the influence of alcohol, in violation of G. L. c. 90, § 24(1)(a )(1). His appeal arises from the denial of his motion for new trial. The defendant maintains two arguments on appeal: (1) the prosecutor's closing argument at trial misstated the law regarding "operation"; and (2) the defendant was provided ineffective assistance of counsel because his trial counsel failed to object to the prosecutor's closing argument. We affirm.

Discussion. a. Prosecutor's closing argument. We determine whether a prosecutor's statements made during closing argument require a new trial by considering (i) whether the defendant objected to the argument; (ii) whether the error concerned collateral issues or went to the heart of the case; (iii) whether the judge's instruction would have mitigated the mistake; and (iv) whether the error could have made a difference in the jury's conclusions. See Commonwealth v. Kozec, 399 Mass. 514, 518 (1987). Because the defendant did not object to the prosecutor's closing argument at trial, our review is limited to whether an error created a substantial risk of a miscarriage of justice. See Commonwealth v. Cavallaro, 25 Mass. App. Ct. 605, 610 (1988). In considering the law, the evidence presented at trial, and the challenged statement on appeal, we conclude that no such risk is present.

The challenged portion of the prosecutor's closing argument is as follows:

"This is someone behind the wheel of a running motor vehicle. Even by his own testimony he says that he would have had to open the door-so manipulate the handle-open the door to get inside. Close the door again where he is sitting behind a running motor vehicle. That right there is operation under the law. That right there shows that I meet my burden and that the defendant should be found guilty."

Error (if any) in the prosecutor's statement regarding operation did not rise to the level of a substantial risk. Not only did the judge instruct the jury after closing arguments that they "must apply the law as [the judge] give[s] it to [them], to the facts as [they] determine them to be, in order to decide whether the Commonwealth has proved the defendant guilty of the charge," the judge additionally provided the jury with the usual caveat that "closing arguments of the attorneys are not a substitute for the evidence. They are only intended to assist you in understanding the evidence and the contention of the parties." Moreover, the judge provided the jury, after closing arguments, with the appropriate law regarding operation:

"A person operates a motor vehicle not only while doing all of the well-known things that drivers do as they travel on the street or highway, but also when doing any act which directly tends to set the vehicle in motion. The law is that a person is operating a motor vehicle whenever he is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle, like the gear shift or the ignition, which alone or in sequence will set the vehicle in motion."

As a reviewing court, we presume "[a] certain measure of jury sophistication," Commonwealth v. Kozec, supra at 517, and that the jury will follow the judge's instructions. Commonwealth v. Pope, 406 Mass. 581, 588 (1990). Nothing in the record here indicates that the jury did not follow the judge's instructions. After review of the evidence presented at trial, the jury could have rationally found that the defendant operated the vehicle in violation of G. L. c. 90, § 24(1)(a )(1). Sufficient evidence, including testimony from Alexandra O'Neill and Belmont police Officer Michael Pelrine, was presented to the jury at trial. Alexandra O'Neill testified that she observed the defendant open the driver's side door, get into the vehicle alone, start the engine, pull away from the curb, and then stop the vehicle after driving a few feet and fall asleep behind the wheel. Officer Pelrine testified that he observed the defendant in the driver's seat of a parked vehicle with the vehicle's engine running and headlights on. Such evidence was sufficient to support the jury's finding that the defendant operated the vehicle. See Commonwealth v. Plowman, 28 Mass. App. Ct. 230, 234 (1990) (While "evidence that an intoxicated person was observed sleeping in the driver's seat of a parked vehicle, with keys in the ignition and the engine running, by itself, does not mandate a finding of 'operation' under G. L. c. 90, § 24" [emphasis supplied; other emphasis omitted], such evidence is sufficient to support such a finding when viewed in the light most favorable to the Commonwealth).

b. Ineffective assistance of counsel. The defendant next argues that he received ineffective assistance because his trial counsel failed to object to the prosecutor's closing argument. A defendant asserting a claim for ineffective assistance of counsel must show that his counsel's conduct fell " 'below that which might be expected from an ordinary fallible lawyer' and prejudices the defendant by depriving him 'of an otherwise available, substantial ground of defence.' " Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because we have concluded that the prosecutor's closing argument regarding the meaning of operation did not cause a substantial risk of a miscarriage of justice, it also follows that the defendant is unable to show that it "likely deprived the defendant of an otherwise available, substantial ground of defence." Saferian, supra. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994) ("[I]f an omission of counsel does not present a substantial risk of a miscarriage of justice in a situation such as this, there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitutions").

Order denying motion for new trial affirmed.

      To the extent that we have not specifically addressed other points made by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    TOWN OF HULL v. Gail R. KANSKY.
    16-P-1689
    Appeals Court of Massachusetts.
    Entered: February 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In August, 2012, the plaintiff, town of Hull, filed an action in Housing Court seeking to permanently enjoin the defendant, Gail R. Kansky, from excessively feeding birds at her residential property. The two-count complaint alleged that Kansky's bird feeding violated provisions of the State sanitary code and town by-law, and created and maintained a public nuisance. After a two-day bench trial the judge entered a permanent injunction, enjoining Kansky and family members from feeding wild birds or fowl from her premises using any bird feeder or similar device or by hand. Kansky appeals from the judgment. The only question now before us is whether the trial judge properly denied Kansky's jury trial demand. We affirm.

Article 15 of the Massachusetts Declaration of Rights provides a right to a jury trial "[i]n all controversies concerning property, and in all suits between two or more persons." The present matter-an action in equity by a municipality to enjoin a public nuisance-does not involve a suit between two or more persons within the meaning of art. 15. Compare Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988) (motor vehicle infraction). Likewise, and despite Kansky's assertion that the order entered infringes on her right to "feed[ ] and enjoy[ ] wildlife," this matter does not involve a controversy concerning "property" within the meaning of art. 15. See and compare Attorney Gen. v. Jamaica Pond Aqueduct Corp., 133 Mass. 361, 363 (1882) (allegation that draining of pond would "create a public nuisance" brought the case "within the established principle that the court has jurisdiction in equity to restrain and prevent nuisances"); Chase v. Proprietors of Revere House, 232 Mass. 88, 99 (1919) (house of prostitution; "The jurisdiction of a court of equity over nuisances had been recognized and established before the adoption of our Constitution, and the remedy being purely equitable, ... the motion for a jury trial [was] denied rightly"); Commonwealth v. Ferreri, 30 Mass. App. Ct. 966, 968 (1991) (where order entered compelling defendant to "forthwith" remove his dogs from his property, defendant had no jury trial right). Cf. Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 423 (2002) (in "the absence of statutory authority," owner may not recover money damages on "loss of consortium claims related to the death of the sheep").

Nor are we convinced that there exists an "analogous civil proceeding[ ] ... at common law which required a jury trial." Mongardi, 26 Mass. App. Ct. at 8. On the contrary, as the foregoing authorities demonstrate, it has long been understood that "an injunction against the future maintenance of a public nuisance may properly be entered without the involvement of a jury." Commonwealth v. United Food Corp., 374 Mass. 765, 778 (1978). Compare Parker v. Simpson, 180 Mass. 334, 355 (1902) (master ordered defendant in estate proceedings to pay money damages; despite contested factual questions matter was "[b]oth as to subject matter and the remedy sought ... well within chancery jurisdiction" and defendant had no absolute right to a jury trial). The present matter, as noted, is in essence an action by a municipality to prospectively enjoin a public nuisance. As such, and notwithstanding that contested issues existed below as to whether Kansky's acts in fact created a public nuisance, this matter is a proceeding well within equity jurisdiction as it existed when the Commonwealth adopted its Constitution and that, therefore, may be resolved "without the involvement of a jury." United Food Corp., 374 Mass. at 778.

The authorities cited by Kansky are not to the contrary. Unlike in the matters cited, the town here made no demand for money damages or such other relief as might have been available at common law, and no such remedy entered. Nor can we conclude on the record provided that the judge's considered decision to reject Kansky's jury trial demand was so idiosyncratic, arbitrary, or capricious as to constitute an abuse of discretion. See G. L. c. 185C, § 21, inserted by St. 1978, c. 478, § 92 ("All cases in the housing court department ... shall be heard and determined by a justice ... sitting without jury, except that in all cases where a jury trial is required by the constitution of the commonwealth or of the United States and the defendant has not waived his rights to a trial by jury, the cause shall be forthwith tried ... before a jury" [emphases supplied] ).

To the extent made, we need not consider Kansky's "takings" argument; the record before us fails to demonstrate she raised it below. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). To the extent we have not specifically commented on Kansky's remaining arguments, we have considered them and have found them to be without merit.

Judgment affirmed.

      See Brayton v. Fall River, 113 Mass. 218, 230 (1873) (private action at law for money damages arising from defendant's acts that reduced water depth at plaintiff's wharf, rendering plaintiff's use of wharf difficult or impossible); Sawyer v. State Bd. of Health, 125 Mass. 182, 189, 192 (1878) (statute provided for jury review on appeal of order imposing conditions on assignment of slaughterhouse); Powers v. Raymond, 137 Mass. 483, 486 (1884) (debt collection matter; "The rights sought to be determined and enforced are essentially legal"); Carleton v. Rugg, 149 Mass. 550, 557-558 (1889) (court did not decide whether property owners had jury trial right in action by private persons to abate alleged nuisance from illegal sale of alcohol where operative facts admitted); Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 222 (1994) (article 15 guarantees jury trial in "all ... cases and controversies ... unless the case was one in which a court of equity in either England or Massachusetts would have exercised jurisdiction in 1780" [emphasis supplied] ); New Bedford Hous. Authy. v. Olan, 435 Mass. 364, 371 (2001) ("the right to trial by jury generally does not extend" to actions in equity).


text:
    Carlos J. HERNANDEZ-CASTRO v. Kathleen M. O'NEILL.
    17-P-624
    Appeals Court of Massachusetts.
    Entered: February 21, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Kathleen M. O'Neill (mother), the former wife of Carlos J. Hernandez-Castro (father), appeals from a judgment of the Probate and Family Court that reduced the father's weekly child support obligation from $200 to $125 following a pretrial hearing. We vacate the judgment and remand for further proceedings consistent with this memorandum and order.

Background. The parties were divorced in August of 2013, pursuant to a judgment of divorce nisi incorporating their separation agreement. The separation agreement provided that the mother would have primary physical custody of the parties' minor child and the father would pay $200 in weekly child support to the mother.

In November of 2015, the father filed a unified complaint for modification with motion for temporary orders (father's complaint) pursuant to Probate and Family Court Standing Order 3-11, requesting a reduction in child support. The Probate and Family Court thereafter issued a summons and notice (summons) requiring the parties to appear on December 22, 2015, for a hearing on the father's complaint. The summons further provided that "the matter may, with the agreement of the parties, go to judgment." Following the hearing on December 22, 2015, the father's motion for temporary orders was denied without prejudice and the matter was consolidated with "all other matters for review/return on June 29, 2016." The mother thereafter filed a counterclaim for modification (mother's counterclaim) seeking to modify the terms of the father's visitation with the child.

On June 29, 2016, the parties appeared for a pretrial conference on the father's complaint and the mother's counterclaim. The father was self-represented and the mother was represented by counsel. The mother's counsel submitted a pretrial conference memorandum reserving the right to conduct further discovery absent an agreement by the parties. The mother's counsel also informed the judge that the parties had been unable to reach an agreement regarding their respective requests for modification, and that they would "likely need to get a trial date." The judge proceeded to ask the father several questions about his living situation, his relationship with the child, and his current financial circumstances. The judge also asked the mother's counsel to specify the parenting plan changes sought by the mother, and her "position" on the child support issue. The judge then stated that she would "take a look at the child support piece" and would "take it under advisement," and further directed the parties to take a recess to resolve the parenting plan issues. The parties ultimately settled the parenting plan dispute later that day. The judge then entered a judgment (modification judgment), dated June 29, 2016, on the father's complaint for modification, reducing his weekly child support obligation to $125, and ordering him to pay additional child support equivalent to thirty percent of any income or benefits he earned in excess of $20,000 per year. The present appeal followed.

Discussion. The mother claims that the modification judgment was in error, because she did not receive adequate notice that the judge intended to treat the pretrial conference as a trial and was therefore deprived of due process. We agree.

"Due process fundamentally requires 'notice and the opportunity to be heard at a meaningful time and in a meaningful manner.' " Spenlinhauer v. Spencer Press, Inc., 81 Mass. App. Ct. 56, 65 (2011), quoting from Matter of Angela, 445 Mass. 55, 62 (2005). "Whether a case shall ... proceed to trial is within the sound discretion of the judge," Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984) ; however, the parties must receive "adequate notice" of the trial to satisfy the requirements of due process. Adoption of Zev, 73 Mass. App. Ct. 905, 906 (2009). Here, the parties were not informed prior to the June 29, 2016, pretrial conference that the case was subject to immediate trial that day. Cf. Beninati, supra (proceeding to trial at pretrial conference not an abuse of discretion where pretrial notice advised that case was subject to immediate trial that day); Griffith v. Griffith, 24 Mass. App. Ct. 943, 944 (1987) (same). Moreover, once the parties appeared at the pretrial conference, the judge did not inform them that the case could go to judgment that day, nor did her conduct suggest that she was treating the pretrial conference as an evidentiary hearing. To the extent that the judge might have relied on the language in the summons, which stated that "the matter may, with the agreement of the parties, go to judgment," the wife's counsel clearly indicated at the pretrial conference that the parties were not in agreement and likely required a trial. Accordingly, under the circumstances, we cannot say that the mother was given the "opportunity to be heard" in a "meaningful manner" with respect to the father's request for a reduction in child support. Spenlinhauer, supra. Accordingly, the judgment must be vacated, and the matter remanded to the Probate and Family Court.

Conclusion. The modification judgment, dated June 29, 2016, reducing the father's weekly child support obligation to $125, is vacated, and the matter is remanded for further proceedings on the father's complaint for modification filed on November 6, 2015, consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      In an effort to streamline the modification process, the Probate and Family Court implemented a "Modification Pilot Program for IV-D Cases" with procedures outlined in Standing Order 3-11. The "procedures apply to all IV-D cases filed in the Probate and Family Court ... that involve a request for modification of child and/or medical support only" and "do not apply to complaints for modification that seek a change in custody and/or visitation, nor can these procedures be used to address the issues of custody and/or visitation." Standing Order 3-11(A). "A unified, one-page form that combines a complaint for modification and motion for temporary orders for child or medical support only may be filed. The unified complaint and temporary motion form will be accompanied by a summons establishing a hearing date on the return day. The hearing date will be set by the Court when issuing the summons." Standing Order 3-11(B).

      The father also filed six separate complaints for contempt in December of 2015; however, he later agreed to dismiss them.

      The parties submitted a stipulation agreeing to certain changes to the parenting plan, which was incorporated into a judgment dated June 29, 2016.

      The modification judgment was not accompanied by any findings of fact.

      The judge characterized the proceeding as a "pretrial conference" and no witnesses or exhibits were presented.

      Moreover, the summons pertained specifically to the hearing on December 22, 2015, and there was no equivalent language in the subsequent notice for the hearing on June 29, 2016.

      The father's support obligation of $125 per week (in effect per the reduction ordered by the judge) shall remain in effect as a temporary order pending the further hearing and entry of judgment on remand.


text:
    ADOPTION OF FERN.
    17-P-1077
    Appeals Court of Massachusetts.
    Entered: February 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   A judge of the Juvenile Court terminated the father's parental rights to the child and declined to order posttermination and postadoption visitation. The father does not appeal from the termination of his parental rights but argues, for the first time on appeal, that the judge abused her discretion in declining to order posttermination and postadoption visitation. Even assuming this issue is properly before us, it fails on the merits.

A judge has the discretion to order posttermination and postadoption visitation when it is in the child's best interests. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016). The purpose of such visitation generally is "to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Adoption of Vito, 431 Mass. 550, 565 (2000). As such, a judge generally does not abuse her discretion when declining to grant visitation rights to a parent who has no bond with his child. See Adoption of Douglas, 473 Mass. at 1028.

Here, the father concedes that he has seen the child only once since a few days after her birth (in December, 2015) and that they have no bond. He nonetheless argues that the judge should have ordered visitation due to the particular family dynamics of this case: the preadoptive parents are the child's maternal aunt and uncle, the child's older siblings are scheduled to be adopted by the father's parents, and the child's mother has an open adoption agreement that allows her three postadoption visits per year. However, adoptive parents are presumed to act in the child's best interests in deciding whether to allow visitation between the child and the biological parent, and the judge had no reason to question that presumption in this case. See Adoption of Ilona, 459 Mass. 53, 66 (2011).

Next, the father argues that the judge abused her discretion by failing to consider that the Department of Children and Families (DCF) violated its own regulations by not offering him visitation while he was incarcerated for three months. Passing on the question whether DCF violated its own regulations, the fact remains that the father attended only one visit while he was not incarcerated. The father's argument, that the visits offered by DCF were insufficiently frequent to allow him to form a bond, fails because, as the judge found, the father did not attend the visits he was offered. The judge did not abuse her discretion.

Finally, the father argues that the judge required him to satisfy an impermissibly stringent standard of proof by stating that "the Court does not find that it has been established, by clear and convincing evidence, that an order of visitation is required to serve the best interest of the child." While the judge may have incorrectly articulated the standard of proof, this does not necessitate a remand where, as here, "the underlying subsidiary factual findings amply support the judge's determination that ... there was no significant existing bond with the biological parent." Adoption of Douglas, 473 Mass. at 1029 n.12 (quotation omitted). There can be no prejudice where the father conceded this very point.

Decree affirmed.

      The mother stipulated to the termination of her parental rights, and she is not involved in this appeal.

      The judge found that "[o]n April 27, 2016, Father participated in his first and only visit with" the child.


text:
    COMMONWEALTH v. Ryan TAYLOR.
    16-P-1018
    Appeals Court of Massachusetts.
    Entered: February 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Ryan Taylor, appeals from his assault and battery conviction arguing that the judge erred in denying his motion to dismiss that charge because the criminal complaint application lacked probable cause and evidence outside of the application was considered. We affirm.

The following facts are relevant to the defendant's appeal. On October 12, 2013, the police responded to a report of shoplifting and assault and battery at a store in Everett. An officer spoke with the store manager, who stated that a group of two black women and one black man had stolen a pair of shoes worth $325. When the store manager tried to stop them in the store, the man pushed him and they fled. When the store manager approached the group outside of the store, attempting to prevent the theft, they told him to stay from their car. The man then punched the store manager in the face, knocking him down, and the group fled in a blue Ford Explorer. The store manager provided the police with the vehicle's license plate number and photographs (photos) of the incident. The police determined that the Ford Explorer was rented, and the rental company provided them with the defendant's name and date of birth. The police used that information to obtain a photo of the defendant from the Registry of Motor Vehicles (RMV), which they later showed to the store manager as part of a photo array. The store manager was unable to identify the defendant as the person who punched him. Nevertheless, the police believed they had enough information to charge the defendant, based on a conversation with an assistant district attorney. A clerk-magistrate found that the criminal complaint application established probable cause, and a complaint issued, charging the defendant with assault and battery.

At the hearings on the defendant's motion to dismiss the charges, both parties asked the judge to consider information outside the criminal complaint application. The defendant asked the judge to consider statements made by the store manager, who, after the defendant's arraignment, met with prosecutors and told them that they had charged the wrong person and that a different person, whom he named, had punched him. In turn, the Commonwealth stated that it had the RMV photo of the defendant, as well as the photos given to the police by the store manager, from which the judge could infer that the defendant was the person who punched the store manager. The judge requested copies of the photos, which the prosecution provided. In his margin endorsement denying the defendant's motion, the judge stated that his decision was based in part on his "review of the still pictures," which were not included in the criminal complaint application.

We review the judge's ruling for an abuse of discretion. An abuse of discretion occurs where a judge has "made 'a clear error of judgment in weighing' the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted).

"After the issuance of a [criminal] complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate (or judge), see Commonwealth v. McCarthy, 385 Mass. 160 (1982), for a violation of the integrity of the proceeding, see Commonwealth v. O'Dell, 392 Mass. 445 (1984), or for any other challenge to the validity of the complaint." Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). Generally, a motion to dismiss a criminal complaint for lack of probable cause is decided from the "four corners" of the complaint application. Commonwealth v. Bell, 83 Mass. App. Ct. 61, 62 (2013). On the other hand, with the consent of the parties, the judge may consider the sufficiency of the evidence, as opposed to the issue of probable cause, in advance of trial. See Commonwealth v. L. A. L. Corp., 400 Mass. 737, 739 (1987), quoting from Commonwealth v. Hare, 361 Mass. 263, 270 (1972) ("Nothing we hold today prevents the parties from testing the sufficiency of the evidence by stipulation or by some other proceeding, agreeable to the parties, which avoids a long and costly trial"). Whether to entertain such a motion to dismiss is within the discretion of the judge. See Commonwealth v. Clark, 393 Mass. 361, 365 (1984).

Here, the motion to dismiss was limited to the issue of probable cause. Although they purported to argue within the four corners of the criminal complaint application, both parties urged the judge to consider evidence outside the application. The defendant argued that there was no probable cause to believe that the defendant was the person who assaulted the store manager, in part due to the store manager's statement to prosecutors that the defendant was the "wrong guy" and his inability to identify the defendant based on his RMV photo. In response, the prosecutor argued, "[S]ince you are hearing information outside those four corners today, since you[']re hearing information about what the [store manager] may or may not have said six months ago, you should also hear that we have the photographs taken as described by [c]ounsel outside the store that do confirm that it is the defendant before you." The judge then asked the prosecutor to provide copies of the photos, which the judge relied on in making his decision. Because the defendant also intended to rely on information outside the application, and because he did not object to the Commonwealth's offering, we cannot say that the judge abused his discretion in considering the photos as he did.

Judgment affirmed.

      The complaint also charged the defendant with larceny and a second count of assault and battery; the defendant was found not guilty of these two charges.


text:
    H & R BLOCK EASTERN ENTERPRISES, INC. v. Debra FELDMAN.
    17-P-860
    Appeals Court of Massachusetts.
    Entered: February 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Debra Feldman, appeals from a judgment confirming a partial arbitration award. Relevant here, the confirmation of that award enjoined Feldman, formerly employed by the plaintiff, H & R Block Eastern Enterprises, Inc. (H & R Block), to prepare tax returns, from soliciting business from or providing tax preparation services to certain H & R Block clients through August 30, 2018. We affirm.

The relevant facts are set forth in the arbitrator's partial award and summarized in the motion judge's decisional memorandum, so we do not set them forth in detail here. The case involves H & R Block's efforts to enforce restrictive covenants contained in Feldman's October, 2013, employment contract (2013 agreement). Those restrictive covenants prevented Feldman, for two years after she left H & R Block, from providing tax preparation services to, or soliciting, "Company Clients" of H & R Block. "Company Clients" was a defined term-essentially, customers whom Feldman serviced during the term of the 2013 agreement or in the year prior to its effective date. The covenants are not a general noncompetition clause and so do not prevent Feldman from providing tax preparation services in her geographic area. Instead they limit the clients she may solicit or serve by making her former H & R Block clients off-limits. The arbitrator found that Feldman had violated the covenants with respect to "Company Clients" and the motion judge entered the injunction at issue.

Review by the courts of an arbitration award is very limited. With only very limited exceptions we are bound by the arbitrator's factual findings and legal conclusions. See 9 U.S.C. § 10(a) (2012) ; United Paperworkers Intl. Union v. Misco, Inc., 484 U.S. 29, 38 (1987) ("[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision").

Feldman's primary argument is that the restrictive covenants in her 2013 agreement were superseded. Her theory is that in April, 2014, she terminated her employment under the 2013 agreement, and thereafter entered into a new employment arrangement (until November, 2014), again with H & R Block. Feldman claims that her new, post-April, 2014, arrangement was governed by H & R Block's "pre-season" offer letter, which did not explicitly restate the restrictive covenants of the 2013 agreement. In other words, Feldman invokes the so-called "material change" doctrine drawn from F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968), arguing that her continued employment with the same employer, but allegedly with markedly different job duties and terms, obviated the terms of the 2013 agreement. Based on that premise Feldman suggests that the arbitrator's decision can be overturned, because his alleged failure to properly apply Bartlett Tree contravenes the agreement's plain language and disregards applicable law. See Cytyc Corp. v. Deka Prods. Ltd. Partnership, 439 F.3d 27, 33 (1st Cir. 2006) (under Federal Arbitration Act an award may, in rare cases, be set aside where it "contravenes the plain language of the applicable contract" or "it is clear from the record that the arbitrators cavalierly disregarded applicable law").

The defendant's argument is unavailing. The arbitrator considered Feldman's "material change" argument and rejected it, and given our limited scope of review that decision will not be overturned. The arbitrator's written decision addresses the applicable law, including Bartlett Tree. The decision evidences careful attention and thought. As noted, under the applicable standard of review, we will not overturn an award as "long as the arbitrator is even arguably construing or applying the contract." Mercy Hosp., Inc. v. Massachusetts Nurses Assn., 429 F.3d 338, 343 (1st Cir. 2005) (quotation omitted). Particularly given that the restrictive covenants in Feldman's 2013 agreement explicitly extended for two years after termination, that the agreement contained an explicit survival clause, that Feldman did not sign a new agreement for the post-April, 2014, time frame, and that the "pre-season" offer letter in any event contained no language modifying or waiving any terms in the 2013 agreement, the arbitrator's contractual interpretation is at the very least arguable. As such, the award must stand. See ibid. See also Cytyc Corp., supra.

Most of Feldman's remaining arguments, including her assertions that both the arbitrator and H & R Block engaged in misconduct and fraud, were carefully considered and rejected by the motion judge in his confirmation of the arbitrator's final award. We have little to add to the judge's observations, which we endorse, and need not comment further. As a result we need not address H & R Block's argument that Feldman waived her right to challenge the arbitral award. The non-record materials Feldman now proffers (including the purported July, 2017, email) were not before the motion judge or arbitrator; therefore, they are not properly before us, and we do not consider them. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Delisle v. Commonwealth, 416 Mass. 359, 361 n.2 (1993). Neither do we consider arguments that Feldman raises here for the first time. Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

Judgment affirmed.

      Under the 2013 agreement, the restricted period could be tolled if Feldman was in violation of the covenants or in litigation with respect to same. As the arbitrator found the defendant was in violation of the 2013 agreement for the 2015 and 2016 tax seasons, the arbitrator concluded that the defendant should be enjoined from providing services to "Company Clients" for two years from the issuance of his order, resulting in an order enjoining the defendant through August 30, 2018.

      The 2013 agreement provides that any arbitration will be governed by the Federal Arbitration Act, and also provides that the parties can confirm the award in any court of competent jurisdiction. We accordingly look to Federal law for the standard of review. See McInnes v. LPL Financial, LLC, 466 Mass. 256, 262 (2013).

      The arbitrator specifically cited to Bartlett Tree, considered the parties' thirteen-year working relationship in detail, and specifically found that Feldman "had the same duties and performed the same work" both before and after April 16, 2014. From this careful consideration the arbitrator concluded that "there was no 'material change' in the employment relationship between" Feldman and H & R Block, that is, that the parties did not intend to create a new contract, and that the restrictive covenants contained in the 2013 agreement therefore remained in effect.


text:
    Bertha Irene FABRIZI v. Michael Stefano FABRIZI.
    16-P-1629
    Appeals Court of Massachusetts.
    Entered: February 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Michael Stefano Fabrizi (Michael), appeals from a Probate and Family Court amended judgment of divorce nisi. He contends that the judge abused his discretion by (1) proceeding to trial on the date when the case was scheduled for a pretrial conference and (2) denying his motion requesting that his former wife, Bertha Irene Fabrizi (Bertha), pay his attorney's fees. He also challenges the division of assets. We affirm.

1. The trial. On January 7, 2016, a notice and order was sent to each party informing them that a pretrial conference had been scheduled for July 20, 2016. It also ordered that all parties and any lawyers shall meet and talk in person at least one week before the day of the pretrial conference and required the parties (or their lawyers) to submit a written memorandum to the court three days before the day of the pretrial conference. The order further specified that "[t]he Court may order the case to immediate trial on the date of the pre-trial conference if the Court determines at the pre-trial conference that ... one party, by failure to appear at the pre-trial conference or otherwise, will not present a case ..." (emphasis in original).

Michael neither met with Bertha nor filed a memorandum. The pretrial conference was held on July 20, 2016, as scheduled. Before the hearing began, the parties met with a conciliator at the courthouse. This meeting became contentious, and Michael walked out of the room and toward the elevators. Bertha reminded Michael that he needed to appear at the pretrial conference. At the elevators, the courtroom clerk likewise told Michael that his presence was mandatory, and, if he chose to leave, the judge could go forward without him. Michael said that was "fine" and left the courthouse. The judge was informed of the circumstances by the wife's attorney and the clerk. He then held a brief trial and subsequently entered judgment.

Contrary to Michael's assertion, the judge did not abuse his discretion by ordering the case to an immediate trial. Michael was aware that the case would proceed in his absence and knew that his rights were at stake when he left the courthouse. Having chosen to leave-with full knowledge of the consequences-Michael's claim that the judge abused his discretion rings hollow.

2. Attorney's fees. We discern no merit to Michael's claim that the judge should have ordered Bertha to pay his attorney's fees. Michael does not point to any facts or circumstances that would permit us to conclude that the judge abused his discretion by denying his request. The thrust of Michael's argument is that Rule 406 of the Supplemental Rules of the Probate and Family Court (2012), which permits a judge to award attorney's fees, should be revised or repealed. Even if we had the authority to modify the rule, Michael has not provided us with a sound basis for doing so.

3. Division of assets. Michael challenges the division of assets in two respects: first, he claims that the judge erred by awarding Bertha certain retirement funds that she earned over the course of the marriage; and second, he asserts that the distribution of the proceeds from the sale of the marital home was disproportionate because the judge took into account his withdrawal of $150,000 in funds from the equity of the marital home.

"In a divorce action, a judge must fairly consider the relevant factors outlined in G. L. c. 208, § 34, when dividing marital property. The division must be an honest exercise of judicial discretion ...." Kelcourse v. Kelcourse, 87 Mass. App. Ct. 33, 36 (2015). A judge may consider the contribution of each party to acquiring or developing specific assets, along with the length of marriage, the ages of the parties, and sources of income. See G. L. c. 208, § 34.

We discern no error in the judge's division of assets. Bertha was entitled to retain the modest retirement funds she had earned through her employment. She was the sole contributor to the funds in question, and they were held in her name only.

Similarly, the judge's division of the proceeds from the sale of the marital home was fair and reasonable. The judge's order provided that, in the event the marital home was not lost to foreclosure, Bertha was to take all reasonable measures to sell the home within two years of the date of entry of the divorce judgment, and pay Michael one-half of the net proceeds. The order defined "net proceeds" as follows:

"Net proceeds shall constitute the funds remaining after all costs incurred to pay off any existing mortgages, liens, encumbrances and all costs of closing including any real estate commissions, attorney's fees, state stamp fees and recording fees. This distribution of half of the net proceeds from the sale of the marital real estate to the defendant takes into consideration the retention of the defined benefit and defined contribution plans by [Bertha] and the conduct of [Michael] during the marriage of withdrawing $150,000.00 in funds from the equity of the marital home in the form of a real estate equity line, which funds were substantially utilized unilaterally by [Michael] and are currently a burden on the marital real estate."

Michael does not deny that he withdrew $150,000 in funds from the equity of the marital home. Rather, he claims that he used the funds to pay bills incurred by the family and, therefore, the judge abused his discretion by considering Michael's use of those funds to be "unilateral" and adjusting the distribution of his share of the proceeds from the sale of the marital home accordingly. He also claims that Bertha retained $5,000 from the equity line, a fact the judge ignored in his ruling.

There was no abuse of discretion. As with his other claims, Michael relies only on his own bare factual assertions to support his argument. The judge was not provided with any evidence regarding the nature of Michael's use of the funds. Based on the evidence before him, the judge's rulings were fully supported.

Amended judgment affirmed.

      The original judgment contained provisions for custody and support of one of the children. The amended judgment struck those provisions after the judge became aware that the child was emancipated. The arguments raised by the husband concerning errors as to custody and support are, therefore, moot.

      Michael appeared pro se, and Bertha was represented by counsel.

      We recognize that when dividing the marital estate, "a judge must make findings indicating that he has considered all factors relevant under [G. L. c. 208,] § 34, and has not considered any irrelevant factors." Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 542 (2011), quoting from Bowring v. Reid, 399 Mass. 265, 267 (1987). In this case the judge did not make any subsidiary findings. However, we have reviewed the judgment carefully, and it appears clear from the award that the judge gave appropriate weight to each factor.


text:
    Joseph R. WHITE & another v. RIDGE CLUB COMMUNITY ASSOCIATION, INC., & others.
    17-P-217
    Appeals Court of Massachusetts.
    Entered: February 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Patricia A. White.

      Lee S. MacPhee, Richard Depew, John Burns, Judy Lynch, Robert Cappadona, Robert Walters, and James Giarrusso, in their capacity as directors of the Ridge Club Community Association, Inc.

   The plaintiffs, Joseph R. and Patricia A. White, appeal from a Superior Court judgment allowing the defendants' motion for summary judgment on count I of the plaintiffs' verified complaint. Concluding that the governing documents of the Ridge Club Community Association (association) allow an amendment to its master declaration (declaration) to be approved by written consent from three-fourths of its members (if also approved by the declarant and three-fifths of the association board), we affirm.

1. Standard of review. "We review a grant of summary judgment de novo." Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (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 (2015), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

2. Contract interpretation. The declaration of the association, with its articles of organization and by-laws, is a contract among its members and the corporation. See Brigade Leveraged Capital Structures Fund Ltd. v. PIMCO Income Strategy Fund, 466 Mass. 368, 373-374 (2013) (Brigade ). Its construction is a question of law, Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017), and is interpreted "according to traditional principles of contract law." Brigade, supra at 374, citing General Convention of New Jerusalem in the U.S. of America, Inc. v. MacKenzie, 449 Mass. 832, 835 (2007) (MacKenzie ). "The words of a contract must be considered in the context of the entire contract rather than in isolation," and "[w]hen the words of a contract are clear, they must be construed in their usual and ordinary sense." Brigade, supra, quoting from MacKenzie, supra. Similarly, "every word is to be given force so far as practicable," Beninati v. Borghi, 90 Mass. App. Ct. 556, 563 (2016), quoting from MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873 (1981), to avoid rendering any "part useless or inexplicable." First Specialty Ins. Corp. v. Pilgrim Ins. Co., 83 Mass. App. Ct. 812, 819 (2013), quoting from Worcester Mut. Ins. Co. v. Marnell, 398 Mass. 240, 245 (1986).

Reading the declaration and the by-laws together in this case, §§ 3.10 and 3.11 of the by-laws cannot apply in the context of an amendment to the declaration without rendering part of § 6.01(A) of the declaration meaningless. The by-laws require only a simple majority vote of those present for actions at a meeting, while demanding unanimous approval in writing for actions taken without a meeting. Section 6.01(A) of the declaration, however, requires three-fourths approval by the membership to amend the declaration-whether by vote or by written consent. Requiring unanimous approval in writing, by applying § 3.11 of the by-laws outside its normal context, to amend the declaration without a meeting thereby disregards the plainly-provided procedure in § 6.01(A) of the declaration. Such an interpretation would render the by-laws inconsistent with the declaration in violation of § 4.01 of the declaration.

In contrast, our interpretation does not make the by-law provisions meaningless. Construing § 6.01(A) to permit the three-fourths written consent process explicitly laid out there leaves §§ 3.10 and 3.11 of the by-laws to govern the use of the authority placed in the association to, inter alia, operate the common areas, pay taxes, provide services to the community, and obtain insurance. It is also the most practical construction, given that convening a meeting at which three-fourths of the membership was present or obtaining the affirmative written consent of every member in the association would be rather difficult. Cf. Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697, 703 (2018) (by-law requirements that made suit against developers "effectively impossible" violated public policy).

The motion judge, therefore, properly interpreted the declaration and the by-laws, and allowed summary judgment in favor of the defendants on count I. To the extent the association otherwise failed to comply with the declaration and the by-laws in conducting the process, such issues were rendered moot by the amendment's failure. See Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631, 634 (2015) (litigation concerning challenged certificate, made inoperative by subsequent decision that precluded alleged harm, would require adjudication of hypothetical dispute; litigation was therefore moot). We accordingly do not address them.

Judgment affirmed.

      The judge ordered the entry of judgment for the plaintiffs on the other counts of the complaint. The defendants have not cross-appealed.

      Under the plaintiffs' argument, § 3.10 of the by-laws would similarly apply to the amendment process, but this would negate the supermajority requirement of § 6.01(A) of the declaration. Section 3.10 requires a simple majority to act on a vote "except where a different vote is required by law, the Articles of Organization, or these By-laws" (emphasis supplied). Section 3.10 provides no exception for where a different vote is required by the declaration, thus demonstrating that the drafters intended the procedures set forth in the declaration to control the amendment process.


text:
    COMMONWEALTH v. Douglas C. CAMPBELL.
    17-P-321
    Appeals Court of Massachusetts.
    Entered: February 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Douglas Campbell, appeals from the judgments after his convictions by a Superior Court jury, of two counts of forcible rape of a child, G. L. c. 265, § 22A ; one count of aggravated rape of a child, G. L. c. 265, § 23A ; and two counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. On appeal, the defendant maintains that the judge abused his discretion in admitting prior bad acts evidence and that the prosecutor made improper remarks in her opening statement and closing argument. We affirm.

The defendant was indicted on multiple counts of assault on, and rape of, his fiancée's daughter, whom we shall call Casey, while she was between the ages of eleven and thirteen. After the defendant's first trial resulted in a hung jury, the defendant was retried. The same judge presided over both trials.

1. Prior bad act evidence. On appeal, the defendant maintains that the prior bad acts were inadmissible. As the defendant's objection was preserved, we review for error, and in the presence of error, for prejudicial error. Commonwealth v. Crayton, 470 Mass. 228, 252 (2014).

Prior to the first trial, the Commonwealth moved in limine to admit twelve prior bad acts, while the defendant moved to exclude all such evidence. Many of the acts involved the defendant's treatment of both Casey and her mother. The judge carefully parsed the evidence, conducted a voir dire of Casey, and decided to admit eight of the twelve acts. At the second trial, these acts were again admitted, over the defendant's objection.

Evidence of a defendant's prior bad acts is generally inadmissible if proffered "for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Id. at 249. See Mass. G. Evid. § 404(b) (2017). However, this evidence may be admissible "for some other purpose, for instance 'to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.' " Crayton, supra, quoting from Commonwealth v. Walker, 460 Mass. 590, 613 (2011). Despite any potential relevance, "the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Ibid. This determination is left "to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error.' " Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting from Commonwealth v. Fordham, 417 Mass. 10, 23 (1994).

The judge did not abuse his discretion. He carefully weighed the probative value of the evidence against its potential for prejudice and excluded some of the requested testimony. The judge admitted only those acts that Casey witnessed, reasoning that the probative value of revealing Casey's state of mind, and contextualizing the defendant's relationship with Casey, outweighed the potential prejudice to the defendant. Testimony that the defendant repeatedly verbally and physically abused both Casey and her mother was relevant to show the reasonableness of Casey's fear of the defendant and to explain her delay in reporting the sexual abuse, as was the fact that she came forward once he was incarcerated on unrelated charges. See Commonwealth v. McKinnon, 35 Mass. App. Ct. 398, 404-405 (1993) (evidence of defendant's abusive behavior was admissible to show victim's fear for herself and her mother, helping to explain her delay in reporting rape). In addition, evidence of the defendant's behavior toward Casey was properly admitted to establish the nature of their relationship. See Commonwealth v. Morris, 82 Mass. App. Ct. 427, 440-442 (2012), quoting from Commonwealth v. DeMarco, 444 Mass. 678, 682 (2005) (evidence that defendant called victim "vulgar names and threatened her" was admissible to "establish[ ] the defendant's pattern of disrespect and hostility toward the victim that continued until the day he raped her").

Finally, the judge's numerous limiting instructions to the jury minimized the risk of unfair prejudice to the defendant. See Commonwealth v. McGeoghean, 412 Mass. 839, 842 (1992) (A limiting instruction "tends to offset any improper prejudicial effect of evidence that might be thought to show the defendant's bad character or propensity for violent acts and focuses the jury's attention on the proper application of the evidence").

Contrary to the defendant's assertion, this case is distinguishable from Commonwealth v. Dwyer, 448 Mass. 122 (2006). In Dwyer, the prosecutor elicited a significant amount of detailed testimony regarding seven distinct incidents of sexual abuse that allegedly occurred before the operative period in the indictments. See id. at 128. The Supreme Judicial Court found that although "some evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim," the amount of uncharged conduct presented at trial overwhelmed the evidence of charged conduct. Id. at 128-129. Conversely, the prior bad acts testimony in this case was primarily limited to conduct falling within the indictment range and did not "divert the jury's attention from the charged acts." Id. at 129.

2. Opening statement and closing argument. The defendant takes issue with numerous parts of the prosecutor's opening statement and closing argument. As the defendant did not object at trial, we review to determine whether these statements amounted to error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 171 (2017).

a. Opening statement. The defendant maintains that the prosecutor improperly evoked the jury's sympathy when she referred to the defendant as Casey's "father figure," and stated that Casey had been "downstairs folding laundry, something she always did as a [twelve] year old in middle school" when she was raped. The prosecutor is entitled to state "anything that [she] expects to be able to prove by evidence," so long as this expectation is "reasonable and grounded in good faith." Commonwealth v. Fazio, 375 Mass. 451, 454, 456 (1978). Casey later testified to the defendant's parent-like role in her life and the sexual assault that occurred while she was folding laundry.

b. Closing argument. For the reasons mentioned above, the prosecutor's argument that the defendant abused his role as Casey's caregiver was appropriately drawn from the evidence. See Commonwealth v. Murchison, 418 Mass. 58, 59 (1994) (counsel may argue reasonable inferences drawn from evidence). Nor did the argument constitute an improper appeal to sympathy or prejudice. The prosecutor was permitted to argue that the defendant took advantage of his role to obtain access to, and exert control over, Casey.

Taken in context, the prosecutor's statement that Casey had cried on the witness stand did not impermissibly suggest that she was entitled to greater credibility because she was willing to endure the hardships of testifying. Contrast Commonwealth v. Dirgo, 474 Mass. 1012, 1013-1014 (2016). Rather, the prosecutor asked the jury to recall Casey's demeanor, and to consider it when deciding whether or not to believe her testimony. The defendant had challenged Casey's credibility; this statement was permissible rebuttal. See Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999) ("A prosecutor can address, in a closing argument, a witness's demeanor, ... and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs").

Error in the prosecutor's reference to living in a "house of horrors," was cured by the judge's instruction to disregard this characterization and to consider only how Casey's environment affected her state of mind. See Commonwealth v. Fritz, 472 Mass. 341, 352 (2015), quoting from Commonwealth v. Frank, 433 Mass. 185, 196 (2001) ("[T]he jury are to be given a measure of sophistication in sorting out excessive claims made in closing argument").

Judgments affirmed.

      He was acquitted of one count of aggravated rape of a child.

      Casey was permitted to testify that the defendant was incarcerated when she disclosed the abuse. In order to reduce speculation as to the reasons for the defendant's incarceration, the judge read a stipulation to the jury, stating that the defendant served "six months in the [h]ouse of [c]orrection for motor vehicle offenses totally unrelated in any manner to this case." The judge excluded evidence of the defendant's physical abuse of their dog. Additionally, the prosecutor was not allowed to elicit testimony about the specific names the defendant called Casey's mother, but only that the defendant frequently called her mother derogatory names in Casey's presence.


text:
    ADOPTION OF GISELLE.
    17-P-778
    Appeals Court of Massachusetts.
    Entered: February 23, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   Following a trial, a Juvenile Court judge found that Giselle's parents were unfit to parent her and issued decrees dispensing with their rights to consent to her adoption. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. On appeal, the mother claims the evidence did not support the judge's conclusions that she was an unfit parent and that termination of her parental rights was in Giselle's best interests. The father's principal claims are that the judge relied on inadmissible privileged communications between the mother and her domestic violence counselor in concluding that the father was unfit, and exceeded her authority in denying posttermination visitation between the father and Giselle. We affirm.

In a comprehensive written decision, the judge made 247 factual findings. We need not repeat them in detail, as neither parent claims the findings were clearly erroneous. It suffices to say there was substantial evidence that each parent suffered from mental health problems and drug addiction. In addition, the relationship between the mother and father was marked by verbal, emotional, and physical abuse. Giselle, who was born addicted to methadone due to her mother's treatment for heroin addiction, has resided with her maternal grandparents since birth in a preadoptive placement. She continues to thrive in that environment. She was three years old at the time of trial.

Discussion. The central questions in a case to terminate parental rights are whether the parent is unfit and whether termination is in the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 59 (2011). The judge's findings on these issues must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "We give substantial deference to [the] judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, supra.

1. The mother's appeal. The mother claims that the judge ignored a positive trend in her behavior, that the Department of Children and Families (DCF) did not make reasonable efforts to assist her, and that termination of her parental rights was an abuse of discretion. We disagree. A parent is unfit when she places the child at a serious risk of "abuse, neglect, or other activity harmful to" the child. Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). We consider the "parent's character, temperament, conduct, and capacity to provide for the child." Adoption of Mary, 414 Mass. 705, 711 (1993).

The judge's undisputed findings establish by clear and convincing evidence that the relationship between the mother and father was abusive and violent. Violence in the home adversely impacts a child, and its presence weighs heavily in determinations of parental fitness and a child's best interests. See Custody of Vaughn, 422 Mass. 590, 595 (1996) ; Adoption of Ilona, supra at 62. Here, despite the "toxic" nature of the parents' relationship, the mother was unable to separate from the father. The evidence showed that the mother repeatedly left and then reconciled with the father. We agree with the judge's conclusion that this conduct posed a risk to the mother's recovery from drug addiction, and also to Giselle's welfare.

Although the judge credited the mother's testimony that she was no longer using heroin, the mother failed to provide urine screens to her assigned social worker and failed to provide complete releases for her treatment facilities, precluding an accurate assessment of her sobriety. Where the mother prevented DCF from accessing this information, the judge was permitted to draw a negative inference. Care & Protection of Vieri, 92 Mass. App. Ct. 402, 406-407 (2017).

It was also undisputed that the mother did not have stable housing. The parents were evicted from their residence in 2013. They left another apartment in 2014 because the landlord was seeking to evict them, and in 2015 the mother lived with various friends and refused to provide DCF with a consistent address. Although the mother testified that she was actively looking for an apartment, at the time of trial she had resumed living with the paternal grandmother. This inability to provide stable housing for Giselle was a factor that supported a finding of unfitness and termination of her parental rights. See Petition of the Dept. of Pub. Welfare to Dispense with Consent of Adoption, 383 Mass. 573, 591-592 (1981).

We are not persuaded by the mother's claim that DCF did not make reasonable efforts to promote reunification. "[A] parent must raise a claim of inadequate services in a timely manner so that reasonable accommodations may be made." Adoption of Gregory, 434 Mass. 117, 124 (2001). "Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances." Adoption of Mary, supra at 712. Were we to reach the issue, however, there was ample evidence that the mother's volatile and abusive relationship with the father persisted for years, despite her participation in multiple services to address her parental deficiencies. "In these circumstances, where the [mother] has had ample opportunity to achieve fitness as a parent but has failed to follow through, it is only fair to [Giselle] to say, at some point, 'enough.' " Adoption of Nancy, 443 Mass. 512, 517 (2005).

2. The father's appeal. a. Privileged communication. On February 24, 2015, Dale Brown, a domestic violence victims' counselor, and Sandra Botelho, the mother's assigned DCF social worker, met with the mother for a "case consultation." At trial, over the mother's objection, Brown testified that the mother asked "to be placed in a domestic violence shelter and also discussed getting a restraining order," because the father's behavior "was out of control." On appeal, the father claims that the judge erred in admitting that testimony because it was privileged pursuant to G. L. c. 233, § 20K.

The argument is unavailing. Passing on whether the father has standing to object on the basis of a privilege held by the mother, and whether he waived the argument by failing to raise a timely objection at trial, we discern no prejudice to the father because there was ample other evidence of his domestic violence. The police responded to reports of violence between the parents fourteen times. There was evidence that the father threw the mother down a flight of stairs. In October, 2014, the mother reported that she had left the father because he was verbally aggressive and had pushed her. The following month she reported that the aggression was increasing. In April, 2016, the mother was granted an abuse prevention order against the father after she asserted that father had placed her in fear of imminent serious physical harm on multiple occasions over the preceding three years. Thus, even if the challenged testimony had been excluded, there was compelling evidence that the mother was a victim of the father's domestic violence. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). When considered together with the father's mental health problems and long history of substance abuse, the evidence of the father's parental unfitness was clear and convincing. Accordingly, we discern no abuse of discretion in the termination of his parental rights.

b. Postadoption visitation. "Once it is established that a parent is unfit, the decision whether to grant postadoption or [posttermination] visits must be left to the sound discretion of the trial judge." Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003) (quotation omitted). The father claims that the judge abused her discretion when she concluded that "posttermination/post-adoption visitation between [Giselle] and [the f]ather is not in the child's best interest." We disagree. "An order for ... visitation is not warranted in the absence of a finding that a significant bond exists between the child and a biological parent and 'that continued contact is currently in the best interests of the child.' " Adoption of John, 53 Mass. App. Ct. 431, 439 (2001), quoting from Adoption of Vito, 431 Mass. 550, 563-564 (2000). Here, the judge's conclusion that no such bond existed was supported by the evidence. The father only engaged in limited visitation when it was made available to him. Moreover, "his persistent anger and hostility towards the maternal grandparents undermine[d] his capability to provide a safe environment for [Giselle]." In light of this evidence and father's longstanding struggles with anger management and substance abuse, the judge acted within her discretion in concluding that posttermination visitation was not in Giselle's best interest.

Decrees affirmed.

      "A domestic violence victims' counselor shall not disclose [a] confidential communication without the prior written consent of the victim.... Such confidential communication shall not be subject to discovery in any civil, legislative or administrative proceeding without the prior written consent of the victim...." G. L. c. 233, § 20K, inserted by St. 1986, c. 492.

      The challenged testimony is merely cumulative of the mother's own signed statements in the abuse prevention order, which were admitted in evidence.


text:
    COMMONWEALTH v. RAFE R., a Juvenile.
    16-P-1640
    Appeals Court of Massachusetts.
    Entered: February 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a judge of the Juvenile Court denied his motion to suppress, a different judge found the juvenile guilty as a youthful offender on a charge of carrying a firearm without a license ( G. L. c. 269, § 10 [a ] ) and delinquent on a charge of trespassing ( G. L. c. 266, § 120 ). On appeal, the juvenile argues that the motion judge erred in denying his motion to suppress the gun he was charged with possessing on grounds that (1) several of the judge's findings were erroneous, and (2) the stop during which the gun was found was not justified by reasonable suspicion of criminal conduct.

"In reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Keefner, 461 Mass. 507, 515 (2012), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "[T]he clear error standard is a 'very limited form of review,' " wherein we defer to the resolution of conflicting evidence by the motion judge who heard the testimony and observed the witnesses. Commonwealth v. Sanna, 424 Mass. 92, 97 (1997), quoting from Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). "We make an independent determination of the correctness of the judge's application of constitutional principles." Commonwealth v. Cassino, 474 Mass. 85, 88 (2016) (quotation omitted).

Facts. On March 6, 2015, the police were alerted to a 9:27 P.M. ShotSpotter activation in the area of 51 Forest Street in the Roxbury section of Boston. Two members of the Boston police department youth violence strike force were patrolling the area in an unmarked police cruiser. Because other police officers had already responded to the Forest Street location, at approximately 9:40 P.M. , the two youth violence strike force officers responded to Dudley Street in an area approximately 100 to 150 yards from Forest Street. The officers were familiar with this location as a high-crime area with gang activity and gun violence.

There, they observed three young men walking in the middle of the street, approximately one to one and one-half blocks from where the ShotSpotter was activated. The police officers then drove their cruiser up to the three men and asked, "What's up?" One of the young men approached the cruiser, while the other two, including the juvenile, continued walking away from the vehicle. One of the officers then got out of the cruiser and walked towards the juvenile and the other man saying, "What's up? What's going on?" As the officer got closer to the two men, they "simultaneously grabbed their left waistband[s] and started running." The officers then pursued both men, ordering them to show their hands, and eventually stopped them.

Discussion. 1. Erroneous findings. The juvenile contends that the judge made several clearly erroneous findings that were critical to her determination of reasonable suspicion. We review the juvenile's claim in light of the entire record. See Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 781 (2016) (findings are "clearly erroneous" when, although there is record support, reviewing court is left with "definite and firm conviction that a mistake has been committed" [quotation omitted] ).

The juvenile's first claim is that the judge found that the police first located the juvenile at 9:40 P.M. , when the evidence was 9:46 P.M. This six-minute discrepancy does not constitute a clearly erroneous fact, particularly where the judge prefaced her finding with the word "approximately" before the time. Although a lengthy delay between the time of the ShotSpotter activation and the location of the juvenile is a factor to be considered in a reasonable suspicion analysis, this six-minute difference does not alter the calculus here. The evidence supports the judge's finding that the juvenile was located within a relatively short time after the ShotStopper alert.

The juvenile's next claim is that the judge erroneously termed the location of the stop as a "high crime area with gang activity and gun violence" without any evidentiary support. Contrary to this claim, the police officers testified that they were familiar with the area because they patrolled it due to the high incidence of gun-related violence and that rival gangs congregated in the area. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 435 (2015) (high crime area is factual determination and can be based on "locations where firearms offenses are common, or where rival gang activity occurs").

Lastly, the juvenile claims that the judge's consideration of the officers' experience was erroneous as there was no evidence on this point. To the contrary, one of the officers testified that after the juvenile and a codefendant grabbed their waistbands, he followed them because, based on his "training and experience, characteristics of an armed gunman, [and] the nature of the call, [he] believed they might have been in possession of a firearm." That officer's experience included working for three years with the youth violence strike force, which primarily responds to incidents of gun violence. This experience permitted the officer to draw the conclusion that the juvenile's waistband grab suggested that he had a weapon. This conclusion is also supported by decisional law. See, e.g., Commonwealth v. Sykes, 449 Mass. 308, 314-315 (2007) ; Commonwealth v. Resende, 474 Mass. 455, 461 (2016). Thus, the judge's findings were supported by the evidence and reasonable inferences therefrom. See Commonwealth v. Kennedy, 426 Mass. 703, 707 (1998).

2. Reasonable suspicion. The juvenile argues that the police did not have reasonable suspicion to believe that he was engaged in criminal conduct in order to justify a threshold inquiry. We note that the initial approach to the juvenile and the inquiry, "What's up?" did not constitute a seizure. See, e.g., Commonwealth v. Stoute, 422 Mass. 782, 786 (1996) ; Commonwealth v. Lopez, 451 Mass. 608, 611 (2008). Although the police officer followed the juvenile and continued to attempt to talk to him, the officer did not impede the juvenile's movements, nor did he give the juvenile any commands. Compare Commonwealth v. Barros, 435 Mass. 171, 176 (2001) (after defendant ignored police request to speak with him, officer walked up to defendant, pointed at him and said, "Hey you. I wanna talk to you. Come here"); Commonwealth v. Evans, 87 Mass. App. Ct. 687, 691-692 (2015) (although police car pulling up alongside defendant did not constitute seizure, stop occurred when officers walked up to him, asked him to identify himself, where he was going, what he was doing, and what was in his mouth).

The stop occurred when the officers ordered the juvenile to show his hands and then pursued him. At that point, the police knew that there had been a ShotStopper alert about twenty minutes earlier in that area, that the area was one of high crime, and that when they attempted to speak with the juvenile, the juvenile grabbed his waist, consistent with someone who was armed, and fled. Under these circumstances, the motion judge properly found that the investigatory stop was constitutionally justified because the facts demonstrated reasonable suspicion that the juvenile seized was carrying a firearm. See, e.g., Commonwealth v. DePeiza, 449 Mass. 367, 373 (2007) ; Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 582-583 (2009). There was no error.

Judgment affirmed.

Adjudication of delinquency affirmed.

      The facts are taken from the motion judge's findings, dictated from the bench, supplemented by undisputed evidence implicitly credited by the motion judge.

      A ShotSpotter is a device designed to detect gunshots.