author: LEMIRE, J.

text:
    Robert JANOCHA'S CASE.
    No. 16-P-1181
    Appeals Court of Massachusetts, Suffolk..
    November 2, 2017 May 2, 2018
    Jonathan D. Hacker, of the District of Columbia (John J. Canniff, III, also present) for ACE American Insurance Company.
    Douglas S. Martland, Assistant Attorney General, for Workers' Compensation Trust Fund.
    Robert H. Barry, Jr., North Andover, for the employee.
    Rachel J. Eisenhaure, Boston, for Self-Insurance Institute of America, Inc., amicus curiae, submitted a brief.
    Present: Neyman, Henry, & Lemire, JJ.
   LEMIRE, J.

This is an appeal by ACE American Insurance Company (ACE), from a decision of the reviewing board (board) of the Department of Industrial Accidents (department). The board held that ACE, rather than the Workers' Compensation Trust Fund (trust fund), was responsible for the continued payment of compensation benefits to Robert Janocha (employee) because G. L. c. 152, § 25A(2)(c ), of the Workers' Compensation Act (act), G. L. c. 152, as amended, requires ACE as a reinsurer to pay benefits in the event of exhaustion of a self-insurer's surety bond. We affirm.

Factual and procedural background. All parties agree that there are no material facts in dispute. The employee worked for Malden Mills Industries, Inc. (employer), until the date of his workplace injury. The employee's injury resulted in permanent and total incapacity for work, and the employee is entitled to benefits under the act.

On the date of the employee's injury, the employer was an approved self-insurer pursuant to G. L. c. 152, § 25A(2). In accordance with § 25A(2)(b ), the employer also held a surety bond in the amount of $2.4 million with Safeco Insurance Company of America (Safeco or bond holder). In addition, the employer maintained a reinsurance policy with ACE in accordance with § 25A(2)(c ). The reinsurance policy between the employer and ACE contained a retention provision in the amount of $400,000. All terms of the bond and the reinsurance policy were approved by the department in accordance with § 25A(2) during initial approval and after every yearly review.

From the employee's date of injury until the employer's bankruptcy in 2007, the employer as the self-insurer issued direct benefit payments to the employee. Following the employer's insolvency, the bond holder issued direct benefit payments to the employee. In 2012, the $2.4 million bond became exhausted and payments to the employee ceased. On the date of exhaustion, and on the date of oral argument, the employee had not reached the $400,000 retention floor contained within the reinsurance contract. Upon the exhaustion of the bond, the employee filed a claim with the department against ACE for resumption of benefits. After a full evidentiary hearing, the administrative judge ruled that once the employer's bond was exhausted, the employer became "uninsured in violation of [the statute]" under the provisions of G. L. c. 152, § 65(2)(e ), as amended by St. 1991, c. 398, § 85. The administrative judge concluded that this interpretation of the act made the trust fund the "responsible party for providing workers' compensation benefits" and that ACE was not required to make payments until the employee's benefits reached the $400,000 retention amount. The trust fund appealed to the board.

The board reversed the administrative judge, interpreting § 65(2)(e ) to apply only where an employer is uninsured "on the date ... of injury." Accordingly, the board ordered ACE to make direct payments to the employee upon the exhaustion of the bond, and to reimburse the trust fund for any payments it had made that were not covered by reimbursement from Safeco. The board also ruled that § 25A(2)(c ) required ACE to pay the employee's benefits because in the event of bond exhaustion, the reinsurer must act as a "further guarantee of a self-insurer's ability to pay the [employee's] benefits" (emphasis added). Relying on Insurance Co. of the State of Pa. v. Great Northern Ins. Co., 473 Mass. 745, 750, 45 N.E.3d 1283 (2016) ( Great Northern ), the board also voided the $400,000 retention provision as a matter of law because it is in direct conflict with ACE's "statutory obligation to assure that benefits are received by the employee." ACE appealed the board's decision to this court pursuant to G. L. c. 152, § 12(2).

Standard of review. We review the board's decision in accordance with the standards set forth in G. L. c. 30A, § 14(7)(a )-(d ), (f ), and (g ). See Scheffler's Case, 419 Mass. 251, 257-258, 643 N.E.2d 1023 (1994). "The board, as the agency charged with administering the workers' compensation law, is entitled to substantial deference in its reasonable interpretation of the statute." Sikorski's Case, 455 Mass. 477, 480, 918 N.E.2d 30 (2009). However, this principle is one of deference, not abdication, and "ultimately the duty of statutory interpretation is for the courts." Carpenter's Case, 456 Mass. 436, 439, 923 N.E.2d 1026 (2010) (quotation omitted).

Discussion. 1. Trust fund's liability. General Laws c. 152, § 65, establishes the trust fund as a State administered fund that compensates injured employees and reimburses insurers for payment of benefits under statutorily defined circumstances. ACE contends that nothing in § 65(2)(e ), or the act as a whole, supports the board's interpretation that "uninsured in violation of [the act]" means uninsured on the date of injury. After an independent review of the text, structure, and purpose of the act, we agree with the board's interpretation of § 65(2)(e ).

"[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Scheffler's Case, 419 Mass. at 255, 643 N.E.2d 1023, quoting from Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975). Additionally, the act must be analyzed "as a whole ... so that the various portions taken together shall constitute a harmonious and consistent legislative enactment." Spaniol's Case, 466 Mass. 102, 107, 992 N.E.2d 1028 (2013), quoting from Price v. Railway Express Agency, Inc., 322 Mass. 476, 480, 78 N.E.2d 13 (1948).

Section 65(2)(e ) conditions payment of benefits by the trust fund to a qualifying employee whose employer is "uninsured in violation of this chapter." While the act contains an extensive list of definitions, nothing in the chapter expressly defines the word "uninsured," and § 65(2)(e ) does not specifically identify the applicable operative date of the employer's uninsured status. Despite the absence of a definition connecting the employer's uninsured status to the date of the employee's injury, viewing the statute as a whole, it is clear that the date of injury is essential to determining who is eligible to receive benefits as well as who is obligated to pay them. Because § 65(2) is the sole source of the trust fund's obligation to pay workers' compensation benefits, examining the provisions that surround § 65(2)(e ) provides clarity as to whether 'uninsured' implicitly means uninsured on the date of injury. See People for the Ethical Treatment of Animals, Inc. v. Department of Agric. Resources, 477 Mass. 280, 287-288, 76 N.E.3d 227 (2017), quoting from Kenney v. Building Commr. of Melrose, 315 Mass. 291, 295, 52 N.E.2d 683 (1943) ("A general term in a statute or ordinance takes meaning from the setting in which it is employed").

We begin with § 65(2)(a )-(b ). Section 65(2)(a ) refers to § 34B and § 65(2)(b ) refers to § 35C. This court has concluded that both of those cross-referenced sections expressly look to the date of workplace injury when considering the insurer or self-insurer's right to reimbursement from the trust fund for benefits paid to employees under these provisions. See, e.g., Beatty's Case, 84 Mass. App. Ct. 565, 568, 998 N.E.2d 1032 (2013) (" Section 34B [c ] goes on to narrow the right to reimbursement by the date of injury").

The date of injury is also implicitly important for other cross-referenced provisions in § 65(2). Section 65(2)(c ), (f ), and (g ), by means of § 37, § 26, and § 37A, respectively, authorizes certain reimbursements from the trust fund to the insurer or self-insurer for payments to an employee who has suffered a personal injury "arising out of and in the course of his employment." G. L. c. 152, § 26. A plain and ordinary reading of the "arising out of" condition, which is contained in § 26, § 37, and § 37A, imparts a meaning that the date of the employee's injury is an essential factor to be considered in determining reimbursements from the trust fund to the insurer or self-insurer. See Pearson's Case, 341 Mass. 576, 576-577, 170 N.E.2d 917 (1960) (interpreting "arising out of" necessarily requires examining the employee's "place of employment at the time of ... injury"). A contrary interpretation of "arising out of" leads to the absurd result that an employee injured outside the course of employment on the date of injury would still be entitled to benefits under the act. See Caswell's Case, 305 Mass. 500, 502-503, 26 N.E.2d 328 (1940).

Here, the relevant surrounding provisions all strongly suggest imparting the temporal restriction into § 65(2)(e ). Thus, the board's interpretation that "uninsured in violation of [the statute]" means uninsured on the "date of ... injury" is not reading additional language into the text but, instead, constitutes a reasonable interpretation of § 65(2)(e ) consistent with § 65(2) and the act as a whole. See Franklin Office Park Realty Corp. v. Commissioner of the Dept. of Envtl. Protection, 466 Mass. 454, 462, 995 N.E.2d 785 (2013) ("Words grouped together in a statute must be read in harmony").

Even aside from the express language of the statute, the system of workers' compensation has long been interpreted to rest on the principle that "[a]n insurer is not responsible unless the period covered by its policy includes the time of the injury." Crowley's Case, 287 Mass. 367, 371, 191 N.E. 668 (1934) (quotation omitted). See Brophy's Case, 327 Mass. 557, 559, 99 N.E.2d 922 (1951) ("One of the most vital factors in determining to whom and by whom compensation is to be paid under the statute is the date on which the injury occurs"). While an explicit legislative mandate would be preferable, the structure, history, and purpose of § 65(2)(e ) clearly show that "uninsured" status must be determined on the date of injury. To separate "uninsured" from the date of injury is inconsistent with the purpose of the statute. The board's interpretation of G. L. c. 152, § 65(2)(e ), which reads "date of injury" as an implied term of § 65(2)(e ), is necessary to assure that the distribution of benefits from the trust fund will be in harmony with the provisions of § 65(2) and, thus, is entitled to deference. See generally Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267, 280, 867 N.E.2d 350 (2007). Here, it is undisputed that the employer qualified as a self-insurer on the date of the employee's injury, and therefore was not uninsured on that date, and in fact paid benefits until it went bankrupt some two years later. Therefore, the trust fund has no obligation under § 65(2)(e ) to pay compensation benefits to the employee.

2. ACE's liability. Having determined that the trust fund is not liable to pay the employee's benefits, we now examine ACE's statutory obligation. "In order to promote the health, safety and welfare of employees," § 25A of the act, inserted by St. 1943, c. 529, § 7, requires every employer operating within the jurisdiction of Massachusetts to obtain workers' compensation insurance in one of two ways: employers may either purchase insurance, pursuant to § 25A(1), or, as here, they may apply to become self-insurers who pay benefits to injured employees directly, pursuant to § 25A(2).

In order to receive or maintain licensure as a self-insurer, the department requires the employer to keep either a bond or surety running to the Commonwealth for the benefit and security of the employees in accordance with § 25A(2)(a ) or (b ). In addition, § 25A(2)(c ) requires the employer acting as a self-insurer to purchase reinsurance in such amount and form as the department may approve. Section 25A(2)(c ), which we have set out in the margin (see note 6, supra ), forms the background for the reinsurance policy between the employee and ACE.

Section 25A, like every part of the act, must be given an interpretation that protects the rights of employees because the act's exclusivity provision often makes the act the only avenue for financial compensation for the impairment of an injured worker's earning capacity. See Walker's Case, 443 Mass. 157, 161, 819 N.E.2d 595 (2004). The act as a whole "is a remedial statute and should be given a broad interpretation, viewed in light of its purpose and to 'promote the accomplishment of its beneficent design.' " Neff v. Commissioner of the Dept. of Industrial Accs., 421 Mass. 70, 73, 653 N.E.2d 556 (1995), quoting from Young v. Duncan, 218 Mass. 346, 349, 106 N.E. 1 (1914). ACE argues that despite the beneficent design of the act as a whole, the reinsurance requirement of § 25A(2)(c ) was not intended as a protection for the injured employee in the event of the self-insurer's inability to continue paying benefits but, instead, as a protection for the employer from "extraordinary losses or losses caused by one disaster." See note 6, supra. We disagree.

The language of § 25A(2)(c ) specifically provides that reinsurance shall further guarantee the self-insured's ability to pay benefits to injured employees. To the extent the statute is concerned about a self-insurer incurring extraordinary losses, it is in the context of ensuring that a self-insured will continue to be able to pay benefits to injured employees in the event of such losses. A review of the legislative history of § 25A shows that any argument that the statute is concerned about the success of the self-insurer separate and apart from its ability to pay benefits to injured employees is specious.

Section 25A was added to G. L. c. 152 in 1943 to require every employer to cover workplace injuries through insurance or self-insurance, replacing an elective system. See St. 1943, c. 529, § 7. See also New England Survey Sys., Inc. v. Department of Industrial Accs., 89 Mass. App. Ct. 631, 635, 53 N.E.3d 675 (2016). The 1943 legislation also created a reinsurance provision, G. L. c. 152, § 25A(2)(c ), which applied to self-insurers in the discretion of the department. See St. 1943, c. 529, § 7 ("As a further guarantee of a self-insurer's ability to pay the benefits provided for by this chapter to injured employees, the department may require that a self-insurer reinsure his compensation risk against catastrophe" [emphasis added] ).

Five years later, § 25A(2)(c ) was amended to add what is now a second paragraph. That amendment expressly extended the department's regulatory authority beyond solely the self-insurer to the reinsurer as well. See St. 1948, c. 176. The section was again amended in 1949 to add new language to the second paragraph. The 1949 amendment requires reinsurance proceeds to be used exclusively for the benefit of injured employees by precluding creditors from attaching the reinsurance proceeds, and making the use of "any money received by a self-insurer ... subject to the approval of the [department]." St. 1949, c. 441, § 4.

These amendments demonstrate that the Legislature's purpose in fashioning the workers' compensation reinsurance provision was the protection of injured employees. If the primary purpose of § 25A(2)(c ) were to protect the employer rather than the employee, the Legislature would have permitted creditors to attach reinsurance proceeds like any other corporate asset rather than allow department regulation of reinsurers once an employer becomes insolvent.

The 1949 amendment to § 25A(2)(c ) additionally made reinsurance mandatory for self-insurers; previously, this had been left to the discretion of the department. Making reinsurance mandatory, instead of merely at the discretion of the department, shows that the phrase "further guarantee of [the] ability to pay ... benefits" in § 25A(2)(c ) is controlling because even self-insurers with a low risk of catastrophic injuries to their workers were required to obtain reinsurance.

In sum, the amendments to § 25A(2)(c ), which has remained largely unchanged since 1949, demonstrate a clear legislative intent to continually strengthen the reinsurance requirement not for the employer's protection from "extraordinary losses or losses caused by one disaster," but primarily to "further guarantee [payment of] benefits ... to injured employees."

Reading these amendments in light of the broad public policy to provide compensation for injured workers, we agree with the board's interpretation that the "further guarantee" clause of § 25A(2)(c ) requires the reinsurer to pay benefits to employees in the event the self-insurer becomes insolvent and the bond becomes exhausted, avoiding an otherwise inevitable gap in coverage. See New England Survey Sys., Inc., 89 Mass. App. Ct. at 635, 53 N.E.3d 675 ("The fundamental aim of public policy in the area of workers' compensation is to provide relief to injured workers and their families and remedy the deprivation of wages that results from their injuries").

ACE contends that despite this statutory obligation, the insurance policy's retention provision precludes ACE's payment of benefits to the employee until the $400,000 amount is reached. However, a party is unable to contract away its statutory obligation, and we routinely void provisions that run contrary to the law.

This is especially true in the instant context because "[w]orkers' compensation insurance is a creature of statute, and all workers' compensation insurance policies must be interpreted to comply with applicable statutes and regulations governing workers' compensation." Great Northern, 473 Mass. at 750, 45 N.E.3d 1283. See Frost v. David C. Wells Ins. Agency, Inc., 14 Mass. App. Ct. 305, 307, 438 N.E.2d 1086 (1982). Simply put, ACE entered into a reinsurance policy between itself and the employer with full knowledge that the act required ACE to "further guarantee" payment of compensation to the employee. Accordingly, the instant retention provision is null and void, and ACE must assume its obligation to pay benefits to the employee under § 25A(2)(c ).

Decision of the reviewing board affirmed.

      In 2006, the department approved the employer's application to reduce the bond amount from $4.3 million to $2.4 million. The process by which the bond became exhausted is not material to our decision.

      Although referred to as an "excess policy" in ACE's brief, no party disputes that the policy at issue is a reinsurance contract as required by G. L. c. 152, § 25A(2)(c ).

      The retention provision requires ACE to indemnify the employer for covered losses once the retention floor of $400,000 per qualifying accident is reached. The plain language of G. L. c. 152, § 25A(4)(e ), precludes interpreting the retention provision as a deductible, and the employee's argument to the contrary is unavailing.

      The employee is not entitled to any recovery under the Massachusetts Insurers Insolvency Fund because a self-insurer is not an insurer under the definition provided by G. L. c. 175D, § 1. See Ulwick v. Massachusetts Insurers Insolvency Fund, 418 Mass. 486, 490, 637 N.E.2d 209 (1994). See also Massachusetts Care Self-Ins. Group, Inc. v. Massachusetts Insurers Insolvency Fund, 458 Mass. 268, 272, 937 N.E.2d 939 (2010).

      General Laws c. 152, § 11C, provides the department with jurisdictional authority to interpret questions of law related to the act.

      General Laws c. 152, § 25A(2)(c ), as appearing in St. 1949, c. 441, § 4, provides in full:
      "As a further guarantee of a self-insurer's ability to pay the benefits provided for by this chapter to injured employees, every self-insurer shall make arrangements satisfactory to the department, by reinsurance, to protect it from extraordinary losses or losses caused by one disaster."

      Safeco was a party to the proceedings before the administrative judge and the board. During the pendency of the instant appeal, the parties stipulated to dismissal with prejudice as to Safeco pursuant to Mass.R.A.P. 29(b), as amended, 378 Mass. 943 (1979).

      We acknowledge that date of injury is only "[o]ne of the most vital factors in determining to whom and by whom compensation is to be paid under the statute." Brophy's Case, 327 Mass. at 559, 99 N.E.2d 922. In the instant case, no other factor is relevant to our interpretation of § 65(2)(e ).

      We acknowledge the amicus brief of the Self-Insurance Institute of America, Inc., and its argument that the board's interpretation may result in an increase in premiums charged for excess workers' compensation insurance. However, the "pay-as-you-go" nature of the act, which funds the trust fund through annual assessments based on anticipated payments, suggests that the burden on self-insurers in the Commonwealth will be minimal. See Markos-Waiswilos v. Salem Hosp., 67 Mass. App. Ct. 904, 905-906, 857 N.E.2d 501 (2006). Interpreting "uninsured" to mean "uninsured at date of injury" avoids decades-old claims against the trust fund that could require the trust fund to obtain supplemental funding from employers. Thus, all participating employers may benefit under this reading because they avoid increased payments into the trust fund as a result of retroactive claims that become ripe only when a bond is exhausted. See Beatty's Case, 84 Mass. App. Ct. at 571-572, 998 N.E.2d 1032.

      The 1949 amendment provides, in pertinent part:
      "[N]o ... money [received by a self-insurer under the reinsurance provision] shall be assignable or subject to attachment or be liable in any way for the debt of the self-insurer unless incurred under this chapter."
      St. 1949, c. 441, § 4.

      Because of the unique nature of the act, other cases in which Massachusetts courts have refused to void insurance retention policies are inapplicable. Compare Great Northern, 473 Mass. at 750-751, 45 N.E.3d 1283 (nullifying policy provision in context of workers' compensation insurance) with Vickodil v. Lexington Ins. Co., 412 Mass. 132, 587 N.E.2d 777 (1992) (motor vehicle liability insurance); Massachusetts Bay Transp. Authy. v. Allianz Ins. Co., 413 Mass. 473, 479-480, 597 N.E.2d 439 (1992) (liability insurance); and Allmerica Financial Corp. v. Certain Underwriters at Lloyd's, London, 449 Mass. 621, 623, 871 N.E.2d 418 (2007) (professional services liability insurance).


source: Caselaw Access Project

author: GREEN, C.J.

license: Public Domain

text:
    Anthony DELUCIA v. Robert G. KFOURY, trustee.
    No. 17-P-609
    Appeals Court of Massachusetts, Bristol..
    Argued February 5, 2018 Decided April 25, 2018
    Bruce A. Assad (Robert M. Novack, Fall River, also present) for the defendant.
    Robert E. McLaughlin, Jr., Boston, for the plaintiff.
    Present: Green, C.J., Henry, & Singh, JJ.

      Of the RKG Realty Trust.

   GREEN, C.J.

In 2002, the Legislature rewrote G. L. c. 184, § 15, the so-called "lis pendens statute." See St. 2002, c. 496, § 2. Among other changes, the amended statute provided a procedural mechanism for a party aggrieved by approval of a memorandum of lis pendens to file a special motion to dismiss the action giving rise to the lis pendens if the action is frivolous. See G. L. c. 184, § 15(c ) ; Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73, 81-82, 836 N.E.2d 1123 (2005). In turn, under G. L. c. 184, § 15(d ), "[a]ny party aggrieved by a ruling under [ § 15 ](c ) or by the denial of an ex parte motion for a lis pendens, may appeal pursuant to the first or second paragraphs of section 118 of chapter 231." The present case illustrates a trap for the unwary lurking in the interplay between the two statutes, operating in conjunction with the rules governing the practice of the single justice of this court. The defendant in the present case sought, by special motion, to dismiss the plaintiff's complaint, and then (after denial of his special motion) sought review of that denial by a single justice of this court by filing a petition under the first paragraph of G. L. c. 231, § 118. Upon denial of relief (because the single justice is without authority to dismiss a complaint), the defendant filed in the Superior Court a notice of appeal pursuant to the second paragraph of § 118. Because more than thirty days had passed since the underlying order denying his special motion to dismiss, the defendant first requested, and obtained, an order from a judge of the Superior Court for an enlargement of time to file the notice of appeal. Unfortunately for the defendant, however, the Superior Court judge was without authority to enlarge the time for appeal, and his order purporting to do so was a nullity. We are thus constrained to dismiss the appeal, as we are without jurisdiction to entertain it.

Background. By complaint filed in the Superior Court, the plaintiff asserted claims for breach of contract, breach of fiduciary duty, and specific performance, arising out of a joint venture between the plaintiff and the defendant for development of property in Fall River owned by the defendant. The plaintiff also filed an ex-parte motion for a memorandum of lis pendens, which the judge allowed. The defendant moved to dissolve the memorandum of lis pendens and filed a special motion to dismiss the complaint pursuant G. L. c. 184, § 15(c ). On January 31, 2017, the judge denied the defendant's motions. By petition filed on March 1, 2017, within the thirty-day period prescribed by G. L. c. 231, § 118, first par., the defendant then sought interlocutory relief before a single justice of this court. On March 2, 2017, that petition was denied, by reason of a lack of authority by the single justice to grant the requested relief, and the case was closed. See Mass.R.A.P. 15(c), 365 Mass. 859 (1974) ("a single justice may not dismiss or otherwise determine an appeal or other proceeding").

On March 22, 2017, the defendant filed a motion for reconsideration by the single justice, in which he asked the single justice to refer the case to a full panel of this court for consideration. On March 24, 2017, before any action had been taken on the motion for reconsideration, the defendant filed in the Superior Court a motion for an enlargement of time to file a notice of appeal to a panel of the Appeals Court. A judge of the Superior Court allowed the defendant's motion for enlargement and, on March 30, 2017, the docket of the single justice matter recorded an entry observing that "[a] review of the trial court docket shows that the petitioner's motion to file a late notice of appeal to a panel of the Appeals Court was allowed; accordingly, no action is necessary." On April 4, 2017, the defendant filed in the Superior Court a notice of appeal under G. L. c. 231, § 118, second par. At oral argument, we raised the question of timeliness of the defendant's appeal, and invited the parties to submit supplemental memoranda addressing the question.

Discussion. As the single justice correctly observed, he was without authority to dismiss the plaintiff's complaint, by virtue of the provisions of Mass.R.A.P. 15(c). See also Pemberton v. Pemberton, 9 Mass. App. Ct. 809, 809, 411 N.E.2d 1303 (1980) ("[The] power to render any judgment and to make any order that ought to have been made open the whole case ... rest[s] solely with a panel of [t]hree justices who constitute a quorum to decide all matters required to be heard by the appeals court") (internal quotation marks omitted).

We are unpersuaded by the defendant's contention that G. L. c. 184, § 15(d ), should be construed to override the limitation on the authority of the single justice, in order to give effect to a legislative intent to provide an avenue for an "expedited dissolution of an unjustified memorandum of lis pendens." Galipault v. Wash Rock Investments, LLC, supra at 74, 836 N.E.2d 1123. As a threshold matter, the limitation on the authority of the single justice imposed by Mass.R.A.P. 15(c) does not render the right of appeal from a ruling under G. L. c. 184, § 15(c ), either illusory or a nullity; the single justice is empowered to grant relief from any order allowing a special motion to dismiss a complaint pursuant to the statute. The defendant is also incorrect in his assertion that the Legislature must have intended to allow the single justice to reverse an order denying a special motion to dismiss, in order to avoid the longer time period ordinarily required to pursue a panel appeal; nothing in G. L. c. 184, § 15, says explicitly, or otherwise suggests, that an order of the single justice directing dismissal of a complaint shall be final, or could not thereafter be appealed to the full court.

Having determined that the single justice correctly determined that he was without authority to dismiss the complaint, we turn to the question of the timeliness of the present appeal. General Laws c. 231, § 118, second par., as amended through St. 1987, c. 208, § 2, prescribes a thirty-day appeal period. The defendant's notice of appeal from the order denying his special motion to dismiss and dissolution of a lis pendens was filed over a month after the thirty-day appeal period had expired. The appeal period, set by statute, cannot be enlarged. See Morales v. Appeals Court, 427 Mass. 1009, 1010, 696 N.E.2d 509 (1998), quoting from Friedman v. Board of Registration in Medicine, 414 Mass. 663, 665, 609 N.E.2d 1223 (1993) ("[A] statutory appeal period ... cannot be overridden by a contrary rule of court when the manner and time for effective filing of an appeal are delineated in the statute"). See also, Manousos v. Sarkis, 382 Mass. 317, 322, 416 N.E.2d 179 (1981) ; McGrath v. McGrath, 65 Mass. App. Ct. 670, 671, 843 N.E.2d 100 (2006) ; Ben v. Schultz, 47 Mass. App. Ct. 808, 814-815, 716 N.E.2d 681 (1999). A timely notice of appeal is a jurisdictional prerequisite to our authority to consider any matter on appeal. Because the trial court lacked the authority to permit the enlargement of time for filing the notice of appeal pursuant to G. L. c. 231, § 118, the order purporting to do so was a nullity. The notice of appeal was untimely, and we accordingly dismiss the appeal.

As we observed in the introduction, the operation of the lis pendens statute, together with the statute governing interlocutory appeals and the rule governing the single justice practice, can combine in circumstances such as those in the present case to create a trap for the unwary. Such a possibility does not, however, confer jurisdiction where none exists. In any event, the consequences here are not as harsh as those present in circumstances where a party by procedural misstep loses the right to an adjudication on the merits; the defendant remains entitled to assert in the Superior Court all grounds on which he contends he should prevail. Moreover, though we are without jurisdiction to consider the merits of the present appeal, our review of the record and the arguments made in the respective parties' briefs persuades us that the Superior Court judge committed no abuse of discretion in denying the special motion to dismiss; as set forth in the complaint, the plaintiff has asserted a colorable claim that the defendant acted in bad faith to deprive the plaintiff of an interest in real property, after the plaintiff had exercised considerable efforts and brought about considerable value in reliance on the parties' joint venture agreement. Whether the plaintiff is successful in establishing that claim in further proceedings in the Superior Court remains to be seen. Conclusion. For the foregoing reasons, the appeal is dismissed as untimely.

So ordered.

      Pursuant to the joint venture agreement, the plaintiff was to recruit potential tenants for the property, and the property was to be transferred to a limited liability company between the parties upon consummation of a lease with a suitable tenant. The property was then to be marketed for sale, with ninety percent of any value above an established base price to be allocated to the plaintiff. According to the allegations in the complaint (which for purposes of the motion to dismiss and lis pendens we accept as true), the plaintiff negotiated favorable terms of a lease with Cumberland Farms, and presented the lease to the defendant toward the end of the term established by the joint venture agreement, only to have the defendant, in bad faith, delay acceptance of the lease in order to enter the lease with Cumberland Farms on his own, free of any obligation to share profits with the plaintiff.

      DeLucia v. Kfoury, Appeals Court, No. 2017-J-0090 (March 2, 2017).

      In that regard, the limitation on the authority of the single justice operates in much the same manner as in the circumstance of an appeal claiming that a trial court judge erred in denying a motion to dismiss a complaint, or a motion for summary judgment, on any other basis. Of course, in appropriate cases the single justice may, as a matter of discretion, refer a case for panel consideration. See, e.g., CUNA Mut. Ins. Soc. v. Attorney Gen., 380 Mass. 539, 540, 404 N.E.2d 1219 (1980).

      "A party aggrieved by an interlocutory order ... may appeal ... to the appeals court. ... An appeal ... shall be taken within thirty days of the date of the entry of the interlocutory order." G. L. c. 231, § 118, second par.

      The trial court judge perhaps mistakenly enlarged the time for filing the notice of appeal pursuant to Mass.R.A.P. 4(c), as amended by 378 Mass. 928 (1979) ("Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal"). Where a statute prescribes a deadline, the statute controls.

      Indeed, it appears from the docket entry on the defendant's motion for reconsideration that the single justice may have declined to act on the request for referral of the defendant's appeal for panel consideration based upon the belief that the Superior Court order allowing an enlargement of time to file a notice of appeal rendered such a referral unnecessary. In appropriate circumstances where a party seeks review by the single justice under the first paragraph of § 118 from the denial of a special motion to dismiss, and where the single justice believes the appeal may have merit, the single justice may refer the appeal for panel consideration (thereby rescuing the party from the procedural misstep), rather than dismissing the petition. As we discuss below, the present appeal does not appear to us to present such circumstances.

      In the exercise of our discretion, we decline the plaintiff's request for an award of appellate attorney's fees.


author: ENGLANDER, J.

text:
    COMMONWEALTH v. Jose HERNANDEZ.
    No. 17-P-377
    Appeals Court of Massachusetts, Essex..
    Argued January 3, 2018 Decided April 27, 2018
    Carmine P. Lepore, for the defendant.
    Ronald DeRosa, Assistant District Attorney, for the Commonwealth.
    Present: Wolohojian, Milkey, & Englander, JJ.
   ENGLANDER, J.

This case presents the question whether the defendant's coinhabitant could validly consent to a warrantless search of a closed, unlocked suitcase located in a common closet of a bedroom she shared with the defendant. A warrantless search of the suitcase yielded a gun, which was the basis of the defendant's convictions. A District Court judge ruled that the coinhabitant's consent was valid as to the suitcase, and that the seizure of the firearm was therefore lawful. We affirm.

1. Background. a. Incident. On February 3, 2015, at 11:00 A.M. , Lynn police Officer William Stilwell responded to a call of a domestic threat at the defendant's apartment, and was met by Flor Prudencio, the victim. Prudencio shared the one-bedroom apartment with the defendant and their three children. The couple had lived there for three years. The three children were present when Officer Stilwell spoke with Prudencio, but the defendant was at work. Prudencio advised that the defendant would return in the late afternoon.

Prudencio reported that approximately three weeks earlier, she and the defendant had had an argument about the custody of the children. During the argument, the defendant told Prudencio that "if he wasn't able to see the children ... he would shoot her and kill her." Prudencio went on to tell the officer that she was concerned because the defendant had access to a firearm. Prudencio then brought the officer into the apartment's only bedroom, which she shared with the defendant and the children. The bedroom had two beds and a single closet. Prudencio opened the closet door. Inside were men's and women's clothes, bags on the floor, and children's items; some of the items were Prudencio's.

After opening the closet door, Prudencio pointed to a suitcase on the top shelf of the closet, about five feet up; she stated that the defendant's firearm was located in the suitcase. Officer Stilwell pulled the suitcase down and brought it into the kitchen.

The suitcase was not locked, and did not have a locking mechanism. Prudencio testified that the suitcase was "easy to open," not with a zipper but "something you press down on," like a clasp. It did not have a name or tag on it.

Officer Stilwell opened the suitcase in Prudencio's presence. Prudencio stated that the firearm was inside a red "Huggies" container within the suitcase. Inside the Huggies container Officer Stilwell found a loaded revolver and a "baggie" of ammunition. He confiscated the weapon "[b]ased on the domestic threat, the threat that was made that [the defendant] said that he was going to shoot her."

Prior to opening the suitcase, Officer Stilwell did not ask Prudencio to whom the suitcase belonged, nor did Prudencio state whose suitcase it was. At the suppression hearing Prudencio testified that the suitcase and the gun were the defendant's, and that she knew the defendant kept the firearm in the suitcase because on at least three prior occasions he had removed it from the suitcase, in front of her, and cleaned it.

The defendant was charged with improper storage of a firearm, in violation of G. L. c. 140, § 131L(a ) and (b ) ; illegal possession of a firearm, in violation of G. L. c. 269, § 10(h ) ; illegal possession of ammunition, in violation of G. L. c. 269, § 10(h ) ; and threatening to commit a crime, in violation of G. L. c. 275, § 2.

b. Pretrial and trial. Hernandez filed a motion to suppress all items seized from the apartment. After an evidentiary hearing where Officer Stilwell and Prudencio testified, the motion judge denied the defendant's motion, issuing written findings.

The motion judge first found "it is clear that [Officer] Stilwell entered the home ... with Prudencio's consent," and that "Prudencio had both actual and apparent authority over the apartment that she and Hernandez shared together and with their children." Regarding the search of the suitcase, the motion judge concluded that Prudencio and the defendant shared access to their home, bedroom, and closet, "as well as the contents of that closet which would include the suitcase." She specifically found that "[t]here was no evidence of any restriction upon Prudencio's access to that suitcase or what was inside."

After a jury-waived trial, the same judge found the defendant guilty on all four charges. This appeal followed.

2. Discussion. In reviewing an order on a motion to suppress, we accept the motion judge's subsidiary findings of fact, absent clear error, and then independently review the ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

In general, a search of a home without a warrant is invalid, but one exception is when the search is conducted with valid "consent." Commonwealth v. Rogers, 444 Mass. 234, 236-237, 827 N.E.2d 669 (2005). When the government claims that the search was justified by consent of a third party, rather than the defendant, the government has the burden to show that the third party actually consented through word or action, and that the third party had actual or apparent authority to consent to the search. See id. at 237-238, 827 N.E.2d 669 ; Commonwealth v. Santos, 465 Mass. 689, 694-696, 991 N.E.2d 1049 (2013).

Here, the defendant acknowledges that Prudencio actually consented orally and, moreover, that she had authority, as the defendant's coinhabitant, to consent to a search of the apartment and of the closet. But he contends, relying on Commonwealth v. Porter P., 456 Mass. 254, 923 N.E.2d 36 (2010), and Commonwealth v. Magri, 462 Mass. 360, 968 N.E.2d 876 (2012), that Prudencio's authority did not extend to the closed, unlocked suitcase. In essence, he argues that the police were required to establish that Prudencio had separate authority over each closed container in the apartment despite having common authority over the whole of the premises. Before addressing whether Porter P. and Magri provide support for the defendant's position, we briefly summarize the case law that existed before those cases were published.

The defendant's argument is at odds with the "common authority" doctrine adopted in a long line of cases beginning with United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and running through decisions of this court and Porter P. itself. In Matlock, the United States Supreme Court addressed whether a defendant's adult coinhabitant could validly consent to a search of the bedroom she shared with the defendant, and to the search of a diaper bag found in the bedroom's closet. Id. at 166-167, 94 S.Ct. 988. The Court held that she could; consent could be obtained "from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 171, 94 S.Ct. 988. The Court went on to explain that consent based on common authority did not arise from "property interest[s]," but from

"mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."

Id. at 171 n.7, 94 S.Ct. 988.

As indicated, the facts in Matlock involved a container located in the coinhabitant's bedroom, and in holding the consent valid the Supreme Court did not suggest that additional or separate authority might be required to validate the search of the container. Indeed, the Court's reasoning was that coinhabitants have "assumed the risk," vis-à-vis each other, such that any of them can permit a search of a common area, including items kept in such an area.

Matlock 's reasoning was cited approvingly by this court in Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362, 720 N.E.2d 828 (1999), in the context of a police search of an apartment based upon the consent of the defendant's coinhabitant (one Barbara), where we stated:

"They used the apartment just as an ordinary married couple would. Thus Barbara had the run of the place with presumptively lawful access to all parts of the apartment and its contents. So also she could give consent to a search to the same extent by other persons whether or not officers: where premises are jointly occupied, any occupant may consent 'in his own right' to a search, the other occupant having 'assumed the risk' of such action."

Ibid., quoting from Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988.

Other cases are in accord, finding searches reasonable on very similar facts to those at issue here. In United States v. Bass, 661 F.3d 1299, 1302-1307 (10th Cir. 2011), the defendant's coinhabitant authorized the search of the defendant's closed but unlocked "zipper bag," found in a "common area" of their home. The bag contained, among other things, the defendant's revolver. Id. at 1302. The United States Court of Appeals for the Tenth Circuit rejected the argument that the coinhabitant's consent to search the home could not extend to the closed but unlocked bag, reasoning that Matlock's "assumption of the risk" formulation extends at least to "that portion of the premises which by practice or agreement the other occupant generally uses." Id. at 1306 (quotation omitted). The court concluded that "when general authority is present, we should not look for 'metaphysical subtleties' to define the boundaries of that authority." 661 F.3d at 1306 (quotation omitted). See United States v. Fay, 410 F.3d 589, 589-590 (9th Cir. 2005) (no violation of Fourth Amendment to United States Constitution where coinhabitant consented to search of duffle bag on shelf in open laundry room). See also Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 94-97, 920 N.E.2d 45 (2010) (defendant's mother had authority to consent to search of defendant's bedroom).

The reasoning of the Matlock line of cases was adopted in Porter P., where the court stated that "[a] third party has actual authority to consent to a warrantless search of a home by the police when the third party shares common authority over the home." Porter P., 456 Mass. at 262, 923 N.E.2d 36. The court went on to quote with approval Matlock's "assumption of the risk" rationale, before distinguishing Matlock on the ground that in Porter P., the person who provided the consent to search-the director of the transitional shelter in which the defendant was staying-was not a coinhabitant, and thus not able to validly consent to a search of the defendant's room. Id. at 262, 266, 923 N.E.2d 36.

The reasoning of these cases reflects the common understanding that coinhabitants of a home have a greatly diminished expectation of privacy vis-à-vis each other, at least as to "common areas." Coinhabitants accordingly can consent to searches in areas where they have "joint access or control for most purposes." Porter P., 456 Mass. at 262, 923 N.E.2d 36, quoting from Matlock, 415 U.S. at 171 n.7, 94 S.Ct. 988.

Such joint access or control existed here. There is no question of Prudencio's authority to consent to the search of her home, her bedroom, and her closet. These were "common areas," which was readily apparent upon viewing the small apartment, and observing that Prudencio and her three children, in Noonan's words, "had the run of the place." 48 Mass. App. Ct. at 362, 720 N.E.2d 828. Nor did Prudencio's authority to consent to a search of the family closet stop at the boundary of the suitcase. In coinhabiting as he did, and leaving his gun unlocked in a closet used by all, the defendant made a "significant sacrifice of individual privacy" vis-à-vis Prudencio, and "assumed the risk" that she would access his belongings (the suitcase) or consent to a search of them. See Bass, 661 F.3d at 1305-1306.

Neither Porter P. nor Magri leads to a different result. It is true that Porter P., while it adopts Matlock's reasoning, does state, in footnote 11, that a coinhabitant's consent to search a home would not extend to a suitcase "that did not belong to the coinhabitant." Porter P., 456 Mass. at 265 n.11, 923 N.E.2d 36. That statement, however, must be read in the context of the case as a whole. Porter P. on its facts did not involve consent given by a coinhabitant. Moreover, the cases cited in footnote 11 did not involve coinhabitants with "joint access or control" over the space searched, such as in Matlock, Noonan, and Bass, but rather involved the different relationship of a homeowner and an occasional guest. We accordingly do not read footnote 11 as broadly rejecting the line of cases, cited above, that rely on Matlock's rationale to validate searches on facts very similar to those before us.

The defendant also relies upon Commonwealth v. Magri, but in Magri the defendant also was not a coinhabitant but an overnight guest, and the court ruled that his host could not consent to a search of belongings he had left at the host's home. See 462 Mass. at 366-367, 968 N.E.2d 876. While Magri cites footnote 11 of Porter P., Magri's holding depends on the reasoning that an overnight guest (unlike the coinhabitants in the cases cited above) retains an expectation of privacy in his belongings vis-à-vis his host. Id. at 366-368, 968 N.E.2d 876.

In short, when the statements from Porter P. and Magri are considered in context, we do not believe they support the defendant's position. Accordingly, the judge did not err in concluding that the defendant's coinhabitant could and did validly consent to the search of the defendant's closed but unlocked suitcase located in the common closet of their shared bedroom in their home.

Judgments affirmed.

      As the sole issue on appeal is the denial of the defendant's motion to suppress, we take the facts from the motion judge's findings, together with uncontested testimony adduced at the evidentiary hearing where the judge explicitly or implicitly credited the witness's testimony. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007).

      There were also some papers in the suitcase, which Prudencio testified were the defendant's.

      The defendant never prohibited Prudencio from going into the suitcase, nor did the defendant instruct Prudencio she could not go inside the suitcase.

      The Commonwealth also charged the defendant with reckless endangerment of a child, in violation of G. L. c. 265, § 13L. This charge was dismissed before trial upon the defendant's motion.

      The two cases cited as support in footnote 11 of Porter P. are clearly distinguishable from the facts here. In United States v. Davis, 332 F.3d 1163, 1170 (9th Cir. 2003), for example, not only was the defendant not a coinhabitant, but the contraband was not found in a common area and the consent to search was not given by anyone who shared the defendant's space. Davis actually distinguishes its facts from Matlock. 332 F.3d at 1169 n.4. The second case cited in the Porter P. footnote is United States v. Salinas-Cano, 959 F.2d 861, 863-865 (10th Cir. 1992), which also involved an "occasional" guest, and which also distinguished its facts from Matlock.

      The rule sought by the defendant would mean that a police officer voluntarily admitted to search a home by a coinhabitant must nevertheless separately ask the basis of the coinhabitant's authority before opening any additional compartments or containers in the home. The Supreme Judicial Court criticized such a rule as impractical, in the analogous context of a warrantless search of an automobile based upon probable cause:
      "The defendant's interpretation of art. 14 would force the police in every motor vehicle search that turned up a closed container to impound and secure the vehicle while a warrant was obtained, United States v. Ross, [456 U.S. 798,] 821 n.28, 102 S.Ct. 2157, 72 L.Ed.2d 572 [1982], not an unobtrusive procedure from the point of view of the defendant's privacy. Such a rule would unnecessarily burden the police and criminal justice system, while providing defendants with insignificant protections against privacy intrusions."
      Commonwealth v. Cast, 407 Mass. 891, 908, 556 N.E.2d 69 (1990). See United States v. Melgar, 227 F.3d 1038, 1039-1040, 1042 (7th Cir. 2000) (consent to search hotel room extended to closed purse found under mattress; "[a] contrary rule would ... mean [the police] could never search closed containers within a dwelling [including hotel rooms] without asking the person whose consent is being given ex ante about every item they might encounter").


author: MILKEY, J.

text:
    COMMONWEALTH v. John O'NEAL.
    No. 17-P-1027
    Appeals Court of Massachusetts, Essex..
    Argued March 7, 2018 Decided May 2, 2018
    Kathleen D. Mulligan for the defendant.
    Catherine L. Semel, Assistant District Attorney, for the Commonwealth.
    Present: Milkey, Blake, & Desmond, JJ.
   MILKEY, J.

A District Court jury convicted the defendant of assault and battery by means of a dangerous weapon (ABDW), a shod foot. The conviction was based on testimony that while the defendant was being transported at the police station in a device known as a "restraint chair," he kicked a Lynn police officer in the stomach. Before us now are the defendant's direct appeal and his appeal of the denial of his motion for a new trial (which have been consolidated). The defendant argues that new trial is warranted on three grounds: 1) the Commonwealth's failure to preserve and disclose a video surveillance recording of the incident, 2) ineffectiveness of trial counsel in failing to request a copy of the Lynn police department's policy on the use of restraint chairs, and 3) insufficient evidence to convict the defendant of ABDW based on reckless conduct, one of the two theories on which the case went to the jury. For the reasons that follow, we conclude that the defendant is entitled to a new trial. We therefore vacate the judgment and set aside the verdict.

Background. 1. The incident. At approximately 9:30 P.M. on August 24, 2012, Lynn police officers responded to reports of a disturbance outside a bar in Lynn. There, the police found the defendant in the aftermath of what appeared to be a bicycle accident. He was yelling at others at the scene, and was unsteady on his feet, he smelled of alcohol, and he had slurred speech. Concluding that the defendant was intoxicated, the officers placed him into protective custody, handcuffed his hands behind his back, and transported him to the police station in the back of their cruiser. Once at the station garage, the defendant was unwilling or unable to get out of the cruiser. The officers therefore pulled him out of the vehicle, and placed him on the ground after he could not, or would not, stand.

At that point, the officers radioed their supervisors inside the station for assistance, and they were brought a restraint chair to transport the defendant to the booking area. A restraint chair is designed to immobilize unruly detainees. It has a seat that is tilted so that when the chair itself otherwise is upright, the person sitting on it is lying back at an angle with his knees elevated above his hips. The chair has straps to be used to hold in place a detainee's wrists, ankles, lap and shoulders. In this instance, however, the officers did not use the available straps to secure the defendant in the restraint chair. Instead, after placing him in the chair with his hands handcuffed behind his back, they left him that way for the trip into the station. According to the defendant, who testified at trial, this meant that his entire weight fell on his handcuffed wrists, causing him "excruciating pain." He further testified that this in turn caused him to writhe around in the chair as he sought to relieve the pressure off his wrists. Without the defendant strapped in, the police held him down in the chair using their hands, causing further pressure on his handcuffed wrists.

The failure of the police to secure the defendant in the restraint chair appears to be at odds with a written policy that emerged only in postconviction discovery. That policy set forth various procedures and requires "that all [police] personnel adhere strictly to [its] procedures." The policy also requires that after initially placing a detainee in the restraint chair, "[t]he attached recommended manufacturer procedures for properly restraining a detainee in the [chair] should then be followed." Under those procedures, the police are to attach the detainee's handcuffs to the supplied "handcuff tether," and then release the defendant's arms one at a time to attach them to the arm of the chair using a wrist wrap.

At least at one point during the trip from the garage to the booking area, the defendant's foot-which the officers had not secured using the chair's straps and which, according to a police witness, was hanging off the side of the chair-impeded the movement of the chair. The officers portrayed this as a deliberate effort by the defendant to thwart his being taken into the station house; the defendant portrayed it as the involuntary result of his trying to relieve the pressure on his handcuffed wrists. In either event, it is uncontested that the police officers tilted the restraint chair back in order to keep the chair moving, with one of the officers acknowledging that the chair was "tilted back further than it already is designed to do." The tilting of the chair in this manner also appears to violate the police policy on the use of restraint chairs, which mandates that "[t]he [restraint chair] and detainee shall remain in a seated upright position at all times while a detainee is restrained in the [chair], and should at no time be positioned backward so that the detainee is positioned on their back."

The defendant described the tilting of the chair as a sudden jerking that caused him to flail in it. He admitted that his foot came into contact with one of the officers, but he characterized it as an accidental "knee-jerk reaction" to the sudden tilting of the chair. The officers described it as a distinct and deliberate kick to the officer's stomach. The officer who was struck described the kick as having been done with "quite a bit of force," and he testified that it "hurt."

The trial judge instructed the jury on the elements of ABDW (and of assault and battery as a lesser included offense) based on both intentional and reckless conduct. In addition, at the defendant's request, the judge instructed the jury on accident. Neither party objected.

2. Surveillance recordings and pretrial discovery. Unbeknownst to the defendant prior to trial, the police station was outfitted with closed circuit surveillance cameras in all of the areas through which the defendant was transported in the restraint chair. Moreover, video recordings of what transpired there automatically would have been made. However, the system was set up so that, on a ten-week cycle, recordings are automatically recorded over. As a result, video recordings not retrieved within that ten-week period effectively are destroyed.

There is a paper trail that memorializes some of the pretrial communications between the prosecutor and defense counsel, and between the prosecutor and Lynn police, regarding whether there might be a video recording of the incident. On February 10, 2014, almost one-and-one-half years after the incident, the defendant filed an assented-to motion for discovery that, inter alia, specifically sought any "surveillance video recordings showing the defendant being moved from any parking lot [or] garage to the booking area of Lynn [p]olice [d]epartment on August 24, 2012[,] at approximately 9:30 [P.M.]"

That same day, the prosecutor asked the police department for "[v]ideotape or [p]hotograph(s) related to [the] case." On May 27, 2014, the prosecutor again made a request of the department, this time requesting "[s]urveillance video" and specifically inquiring whether there was "[a]ny [b]ooking video of [the] incident[.]" The police responded to the second request: "[N]ot available." That same day, the prosecutor filed a certificate of compliance certifying that the Commonwealth had satisfied its mandatory discovery obligations pursuant to Mass.R.Crim.P. 14, as amended, 444 Mass. 1501 (2005). In that document, the prosecutor specifically certified that she had provided "[a]ny facts of an exculpatory nature" and "[a]ll other material and relevant evidence, [including] ... photographs [and] tangible objects."

Beyond what that paper trail revealed, there ended up being a factual dispute as to what the prosecutor may have told defense counsel orally about whether video recordings ever had been made. The scope and resolution of that dispute are discussed further below.

3. Video recording issues at trial. The trial was brief, with only three witnesses: two police officers and the defendant. During cross-examination, defense counsel questioned the first police witness about the manner in which the officers had requested assistance once the defendant was out of the cruiser and on the ground. In this vein, counsel asked whether those to whom the witness had radioed for assistance "[could] see [the witness] from where they[ ] [were] at[.]" The witness answered, "There are cameras, so they-you know, when we ask them to come in, they could put it up on a monitor, but they're in the [commanding officer's] office." This prompted defense counsel to ask: "So there [are] camera[ ]s right there recording?" After the witness confirmed this, defense counsel turned to other topics for questioning. Before completing her cross-examination, counsel returned to the camera issue only evanescently, soliciting testimony that confirmed that there were cameras all along the way from the garage to the booking area. There was no testimony elicited about whether any recordings were ever viewed or whether they still existed.

Before the Commonwealth began its redirect examination, both counsel requested to be heard at sidebar. Although the transcript reveals that this discussion went on for at least several minutes, only fragments of what was said were decipherable when the transcript was produced. From those fragments, we can discern that the defendant asserted that the prosecutor had told her that no video recordings ever had been made and that it was only now that she was learning otherwise. At one point, the judge's comments appear to suggest that he believed the defendant had waived claims of any discovery violations by not raising the issue prior to trial. What is missing from the transcript's memorialization of the sidebar interchanges remains profound. Most significantly, the specific relief that the defendant was requesting at that time is not at all apparent.

In any event, after the sidebar discussion concluded, the judge invited the Commonwealth to continue with redirect examination. After the testimony of that witness concluded, the Commonwealth called its remaining witness, the police officer who had been struck. On direct examination, the Commonwealth asked no questions about the recordings, and the defendant pursued no cross-examination of that witness whatsoever.

At the close of the Commonwealth's case, and at her client's specific urging, defense counsel again raised the Commonwealth's failure to disclose the prior existence of the video recordings. This time, we know the specific relief that the defendant was requesting: a mistrial. The judge denied the request based on the reasoning he expressed earlier at sidebar (which turned out to be indecipherable on appeal). Addressing the defendant directly, the judge also stated, "your attorney very intelligently preserved all of your rights on the issue."

4. Ruling on motion for a new trial. The defendant filed a motion for a new trial that was based primarily on the Commonwealth's failure to preserve and disclose the video recording of the incident. In the affidavit that she submitted in support of that motion, defense counsel averred that, in a conversation that transpired on a particular occasion prior to trial, the prosecutor specifically told her that "the booking area [was] not recorded." The prosecutor countered in her own affidavit that she never would have said this because she long had known that the booking area at the Lynn police station was video recorded, with the recordings available for only a limited period of time. She further averred that while she had no specific recollection of the conversation that she had with defense counsel, in accordance with her long-standing practice, she would have passed along exactly what the police officer had told her; namely, that a recording was "not available."

Despite the direct conflict between the affidavits as to what the prosecutor had communicated to defense counsel orally and the judge's willingness to hold an evidentiary hearing, the parties jointly foreswore that opportunity. Instead, they presented the judge with a stipulation of facts, their dueling affidavits, and a copy of the restraint chair policy. In addition, the Commonwealth appropriately made significant concessions during argument on the motion. For example, the Commonwealth acknowledged that the Lynn police had informed her that based on the placement of the video cameras, the cameras "would have captured the incident" for which the defendant was convicted. In addition, citing to Commonwealth v. Heath, 89 Mass. App. Ct. 328, 50 N.E.3d 195 (2016) (Kafker, C.J.), the Commonwealth acknowledged that it was negligent in failing to preserve and produce the video recording.

Despite its concessions, the Commonwealth argued that a new trial nevertheless was not warranted. Although the Commonwealth downplayed the materiality of the missing video recording, it focused mainly on its argument that the defendant had not shown adequate prejudice. In this regard, the Commonwealth contended that because defense counsel learned about the prior existence of the video recordings during trial, she had an opportunity to cross-examine the police witnesses about this, to argue the point in closing argument, and to request an appropriate jury instruction regarding the destruction of the video recording. In this manner, the Commonwealth maintained that it should not be held responsible for counsel's failure to pursue such remedies.

In assessing the Commonwealth's degree of culpability, the judge credited the prosecutor's affidavit that she would have told defense counsel that a video recording was "not available," not defense counsel's version that the prosecutor had stated that no such recording ever existed. Based on his knowledge of the prosecutor, who frequently appeared before him, the judge found no bad faith in her conduct. However, consistent with Heath, the judge ruled that the Commonwealth's failure to preserve and produce the video recording was negligent. The judge also concluded that "the defendant here has demonstrated the materiality of the evidence."

Nevertheless, the judge accepted the Commonwealth's arguments on prejudice. While noting that the facts here were similar to Heath, supra at 339, 50 N.E.3d 195 (in which a new trial was ordered), the judge distinguished that case on the grounds that, there, the defendant had requested and was denied an instruction on what inferences the jury could draw from the destruction of the video recording. See id. at 330, 50 N.E.3d 195. Here, by contrast, the defendant had made no such request, and had not otherwise sought to make use of the recording's destruction (i.e., through cross-examination or argument). The judge reasoned that "if a new trial were allowed, the defendant would be entitled only to those same remedies he could have had but did not seek at trial." With the defendant having passed over such remedies at trial, the judge concluded that the defendant suffered no prejudice. The defendant's only potentially available posttrial recourse, the judge suggested, would have been a claim that his trial counsel was ineffective for failing to press the issue of the destroyed recording (an argument that the defendant has declined to pursue).

As noted, the existence and content of the Lynn police department's policy on the use of restraint chairs emerged only in postconviction discovery. In pressing for a new trial, the defendant also had argued that his trial counsel was ineffective for failing to request that policy prior to trial. The judge rejected that claim. He reasoned that, even without that policy, defense counsel was able to make an issue out of the manner in which the police had used the chair, and that the policy itself would have added little force to that argument.

Discussion. 1. Failure to preserve and disclose video recording. As the parties recognize, the underlying facts in the case before us are quite similar to those at issue in Heath. Both cases involve an assault and battery on a police officer that occurred at a police station in an area where it would have been recorded, but the recording was not preserved. In Heath, we held that because the recording could have provided support for the defendant's claim that he never struck the officer, the defendant had satisfied his "initial burden to establish by means of 'concrete evidence' that the destroyed evidence was exculpatory." 89 Mass. App. Ct. at 334, 50 N.E.3d 195, quoting from Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984). We then considered "the judge's application of the balancing test that 'weigh[s] the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant.' " Id. at 335, 50 N.E.3d 195, quoting from Commonwealth v. Williams, 455 Mass. 706, 716, 919 N.E.2d 685 (2010). We concluded that, contrary to the trial judge's assessment, the Commonwealth was negligent because "the police department had a video recording of [the] alleged crime committed in its booking area, with which the defendant was charged [and] the Commonwealth should have required no further notification by the defendant to recognize the need to preserve that video evidence." Id. at 336, 50 N.E.3d 195. We also concluded that the recording plainly was material (an issue the judge did not reach). Id. at 338, 50 N.E.3d 195. Finally, we concluded that the judge erred in ruling that the defendant suffered no substantial prejudice from the judge's refusal to instruct the jury regarding the missing evidence and from the prosecutor's being allowed to argue that the jury should not speculate as to what the recording would have shown. Id. at 337-340, 50 N.E.3d 195. Accordingly, with all three considerations supporting the defendant's position, we ordered that he be granted a new trial. Id. at 339-340, 50 N.E.3d 195.

As noted, the judge in the case presently before us distinguished Heath on the ground that the defendant there had pressed the issue at trial. However, a close examination of the differences between the this case and Heath reveals that, if anything, the defendant here has a stronger case for a new trial.

Having been informed prior to trial that such a key piece of evidence had not been preserved, see id. at 330 n.4, 50 N.E.3d 195, defense counsel in Heath unsurprisingly was prepared to try to take advantage of the Commonwealth's negligence in failing to do so. Here, by contrast, defense counsel was unaware that the recording once had existed until the midst of a very brief trial. Moreover, unlike in Heath, the jury here never learned that the police had allowed the recording to be destroyed.

To be sure, counsel arguably bears some responsibility for her late appreciation that the recording once had existed. That is, a more perspicacious attorney might have sensed the ambiguity inherent in the prosecutor's terse response that a recording was "not available," and therefore done more prior to trial to inquire whether the incident had been recorded and, if so, why any such recording was not available. However, while we accept the judge's finding that the prosecutor did not act in bad faith, it remains uncontroverted that-despite the prosecutor's having been aware that a video recording of the booking area once would have existed-she never overtly called this to the defendant's attention prior to trial. Where the prosecutor failed to disclose that a recording had been made, the Commonwealth is not in a position to blame defense counsel for misconstruing the equivocal and incomplete discovery response that the Commonwealth provided.

With respect to defense counsel's conduct at trial, the Commonwealth no doubt is correct that some highly competent trial attorneys might have been able, on the spot, to appreciate that the testimony about the cameras meant that a recording of the incident once had existed and-based on the discovery response that a recording was "not available"-could have surmised that the recording in the interim had not been preserved. Then, armed with this knowledge, perhaps such counsel instantly might have been able to make effective use of this fact through cross-examination and argument, and by requesting a jury instruction on destroyed evidence. However, focusing on what a particularly able trial counsel might have accomplished fails to account for the predicament that the Commonwealth's incomplete disclosure caused here. As Justice Kaplan once observed in a case involving a broadly similar midtrial disclosure, "[t]he prosecutor's late, piecemeal, and incomplete disclosures forced on defense counsel the necessity of making difficult tactical decisions quickly in the heat of trial." Commonwealth v. Ellison, 376 Mass. 1, 25, 379 N.E.2d 560 (1978). Even though "[i]n retrospect, it may be thought that [defense] counsel did not use to maximum advantage those parts of the story he did finally secure out of the prosecutor's possession[,] ... [a] defendant should not be held to a strict standard in order to patch over the prosecution's conduct." Id. at 26-27, 379 N.E.2d 560.

While it is true that "[a] defendant assuredly has the burden of showing prejudicial consequences when seeking relief from disclosure delays by the Commonwealth[,] ... [w]e should not expect even the criminal defense adept to accommodate instantly to surprise [evidence] at the moment of trial and to rely entirely on improvised cross-examination in order to counter such possibly [critical] evidence." Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 568, 666 N.E.2d 158 (1996).

With these observations in place, we turn to the balancing test recognized in Commonwealth v. Williams, 455 Mass. at 716, 919 N.E.2d 685. While the Commonwealth exhibited no bad faith, nevertheless it was negligent both in failing to preserve the recording and in failing fully to disclose that the recording had once existed. In addition, the materiality of the missing recording plainly was established, as the judge recognized. Finally, in light of our analysis of defense counsel's conduct at trial, the defendant suffered both potential prejudice from being deprived of the recording and actual prejudice from being deprived of using the fact that the recording had been destroyed. Here, as in Heath, the defendant has shown that application of the Williams factors supports his claim for a new trial. We therefore conclude that the judge abused his discretion in denying the defendant's motion for a new trial.

2. Ineffectiveness of counsel. We need not resolve whether the defendant independently might be entitled to a new trial based on his argument that trial counsel was ineffective for failing to learn of the mandatory policy on the use of restraint chairs. Therefore, we do not decide whether-in circumstances where a defendant's entire defense was based on allegations that police misused a particular piece of equipment-the potential existence of a police policy on the use of such equipment presents an obvious area of inquiry. We do, however, note our disagreement with the judge's assessment that disclosure of the restraint chair policy could have added only marginal value to that defense. It is one thing for a jury to hear a defendant's complaints about police conduct, and quite another for them to learn that the complained-of conduct might well have violated a mandatory, written policy governing such conduct.

3. Sufficiency of evidence of reckless assault and battery. The Commonwealth presented its ABDW case based primarily on the theory that the defendant intended to kick the officer with his sneaker. Nevertheless, the jury were also instructed on ABDW based on reckless conduct. To sustain a conviction on the latter theory, the Commonwealth was required to prove beyond a reasonable doubt that a defendant intentionally committed "a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another" by means of a dangerous weapon. Commonwealth v. Burno, 396 Mass. 622, 625, 487 N.E.2d 1366 (1986).

As the defendant accurately points out, there was no evidence that the kick broke any skin or caused any bruising or other manifestations of physical harm. Nor was there any evidence that the kick necessitated any medical treatment. Based on this, the defendant argues that there was no proof that the victim suffered "physical or bodily injury," and, hence, there was insufficient evidence to support an ABDW based on reckless conduct. In turn, the defendant argues that because the evidence necessary to support a reckless ABDW was absent and the case went to the jury on both theories, he is entitled to a new trial. See Commonwealth v. Green, 420 Mass. 771, 781, 652 N.E.2d 572 (1995) ("The possibility that the verdicts were based on theories for which the Commonwealth failed to offer sufficient evidence for a rational jury to find guilt beyond a reasonable doubt necessitates our setting them aside"). But see Commonwealth v. Mistretta, 84 Mass. App. Ct. 906, 907, 995 N.E.2d 814 (2013), quoting from Commonwealth v. Santos, 440 Mass. 281, 288, 797 N.E.2d 1191 (2003) (specific unanimity instruction not required where defendant is charged with intentional and reckless assault and battery, because these are "closely related subcategories of the same crime" that "are not 'separate, distinct, and essentially unrelated ways in which the same crime can be committed' ").

In the end, for at least two reasons, we need not reach the defendant's "two theories" argument in this appeal. First, the defendant waived such an argument by not raising it before the case went to the jury. See Commonwealth v. Berry, 431 Mass. 326, 331, 727 N.E.2d 517 (2000) ("[W]hen the defendant submits a generally expressed motion for a required finding of not guilty of [an offense that can be based on multiple theories], the case may be submitted to the jury as long as one theory is supported by the evidence"). Second, the defendant raised his claim that the evidence of a reckless ABDW was insufficient only to support the vacating of his conviction, relief we have granted on other grounds.

Judgment vacated.

Verdict set aside.

Order denying motion for new trial reversed.

      The defendant testified that he was riding by the bar when patrons from the bar suddenly left it causing him to crash into the door of the building. He admitted to having had a few drinks that night at a different bar, but stated that he was not intoxicated and that what police took to be signs of intoxication had other causes. For example, he testified that his speech was slurred because he had lost a major part of his tongue as the result of a skiing accident many years before.

      The defendant testified that he was unable to get out of the cruiser because of the configuration of the seat and the fact that his hands were handcuffed behind him. The police officers interpreted his actions as deliberate.

      The defendant, who was sixty-one years old at the time of the incident, testified without contradiction that he suffered from arthritis and a number of other serious ailments.

      As noted below, the fact that the recording system existed in the relevant areas came out at trial. The further details about that system and the specifics of the discovery process were developed in the posttrial proceedings. With one notable exception discussed in detail infra, these facts are uncontested.

      Pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979), the defendant eventually sought to settle the record as to what was said during this critical sidebar interchange. However, those efforts failed because none of the participants had any specific recollection.

      The judge stated that he would have been open to such a request had it been made.

      In addition, the judge noted that, in Heath, the prosecutor had argued to the jury that they should not speculate on why there was no video, recording, something that did not occur here.

      The defendant did not argue that the Commonwealth had a duty to disclose that policy sua sponte, and we therefore have no occasion to consider that question.

      With reference to the familiar two-pronged test for ineffectiveness-Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974) -the judge stated that he was relying only on the first prong (whether counsel's conduct fell measurably below that of ordinary fallible counsel) and was not reaching the second prong (whether counsel's conduct "deprived the defendant of an otherwise available, substantial ground of defence"). However, this appears to have been a misstatement, because the judge's analysis focused largely on prejudice and did not express any definitive views on the first prong. The judge did observe that trial counsel was the defendant's third assigned attorney and that neither of his two prior attorneys had requested the police department's policy either.

      At one point, the judge referenced the prosecutor as having stated that she had told defense counsel that a video recording was "no longer available" (a phrasing that-while similar to "not available"-would have communicated that such a recording once had existed). Defense counsel accurately pointed out that the prosecutor never made that claim.

      During the hearing on the motion for a new trial, the judge commented-with reference to his own experience as a trial counsel-that "if I were trial counsel, I would at least be on notice that [the incident] was probably captured on videotape enough to request a special instruction."

      Having decided that the judge abused his discretion in denying the motion for a new trial, we need not resolve whether the judge erred in denying the requested mistrial. We also need not resolve what to do about the fact that the critical sidebar discussion of the destroyed video recording could not be recreated.

      Nothing in this opinion should be interpreted as suggesting that a violation of the policy by itself would be a defense to the charged conduct.

      The defendant points out that the United States Court of Appeals for the First Circuit has taken the unusual step of expressing its view that Mistretta was wrongly decided. See United States v. Tavares, 843 F.3d 1, 17-18 (1st Cir. 2016) ("The differences in the two forms [of ABDW,] ... intentional versus reckless, ... are substantively distinct and therefore constitute alternative elements ...").

      In any event, even if we ultimately were to agree with the defendant's insufficiency argument in toto, he potentially would face double jeopardy only with respect to an ABDW prosecution based on a recklessness theory and only at the point the Commonwealth pursued such a prosecution. See Commonwealth v. Bell, 455 Mass. 408, 419, 917 N.E.2d 740 (2009), abrogated on other grounds by Commonwealth v. LaBrie, 473 Mass. 754, 763-764, 46 N.E.3d 519 (2016).