text:
    SOLMETEX, LLC v. Al DUBE & others.
    17-P-1035
    Appeals Court of Massachusetts.
    Entered: August 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Enpress, LLC, and Apavia, LLC.

   SolmeteX, LLC (SolmeteX), a manufacturer and distributor of a device known as an amalgam separator, initiated this action against its former head of sales and marketing, Al Dube, and one of its competitors, Enpress, LLC (Enpress), asserting a variety of claims arising from the alleged misappropriation of confidential information. Two of those claims, against Dube for breach of the duty of loyalty and against Enpress for aiding and abetting said breach, were tried over several days to a jury, which returned a verdict in SolmeteX's favor, but only awarded $940 in damages. The remaining three claims, against Dube for fraud and against Enpress for unfair and deceptive trade practices (G. L. c. 93A) and breach of contract, were decided by the trial judge, responding to special questions. The judge found against SolmeteX on all claims. The parties have now filed cross appeals.

For its part, SolmeteX argues that the judge made certain evidentiary errors, provided an erroneous instruction to the jury, and, as to the claims on which he rendered verdicts, committed clear and reversible error. Dube and Enpress, meanwhile, argue that the judge should have allowed their motions for directed verdicts on the duty of loyalty claims, and that they should be awarded fees and double costs for what they suggest is a frivolous appeal. For the reasons set forth below, we affirm the judgment in its entirety and decline the requests for fees and costs.

Background. We briefly review the evidence, keeping in mind that the facts relevant to each claim are to be considered in the light most favorable to the respective prevailing party. See Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 94 n.5 (2009). We reserve discussion of certain facts for our analysis.

An amalgam separator is a device that, often as required by State regulation, is used by dental offices to isolate and remove the mercury-based material used for fillings (the amalgam) from waste water before it is discharged into the sewage system. SolmeteX is the manufacturer and distributor of one such device, known as the "Hg5." Unlike other amalgam separators on the market, the Hg5 was designed with a canister for capturing amalgam that, when full, could be removed by the dental office, mailed to a recycling facility using a special package provided by SolmeteX, and replaced with a new SolmeteX canister. By design, therefore, the Hg5 provided SolmeteX with both a marketing advantage and the potential for an ongoing revenue stream following the original sale. And due, at least in part, to this unique canister replacement and recycling feature, the Hg5 was the most widely used amalgam separator in the United States and Canada, with SolmeteX estimating that it controlled seventy-five percent of the market.

After the Hg5 had been on the market for approximately thirteen years, SolmeteX learned that Enpress was entering the market with a competing amalgam separator, the AVTMax, which included a canister replacement and recycling feature. The canister on the AVTMax was also designed to fit on the Hg5, thereby presenting an even more direct threat of competition to SolmeteX's business. At or about the same time, SolmeteX further discovered that its longtime head of sales and marketing, Dube, who recently resigned, had, while still employed at SolmeteX, been engaged in extensive communications with individuals at Enpress during the planning stages for the AVTMax. Dube, who was not subject to a noncompete agreement with SolmeteX, was hoping to be offered a job at, and even an equity interest in, Enpress, neither of which materialized. In fact, the people at Enpress had determined early on that they were not interested in hiring Dube, yet continued to lead him on and solicit information from him for several months.

During those communications, Dube provided Enpress with feedback on its testing of the AVTMax, a projected budget for the sale and marketing of the device, insight into the regulatory environment governing the disposal of amalgam, the identity of the dealers who distributed the Hg5 for SolmeteX, and certain cost and pricing information. He also surreptitiously shipped an Hg5 to Enpress, free of charge. Through all of this, however, Dube, who was not an engineer or scientist and had not been responsible for designing the Hg5, did not disclose any trade secrets or internal documents to Enpress. Moreover, the information he did disclose was, to one extent or another, publicly available or easily discovered. In fact, there was already an extensive amount of detailed information regarding the design of the Hg5 that SolmeteX had openly posted on its own Web site and in videos on a popular Internet site (youtube.com). Still further, SolmeteX, convinced that the Hg5 was not sufficiently novel, never sought to secure patent protection for the device. Consequently, anyone could purchase an Hg5, which was even available on prominent retail Internet sites like eBay and Amazon, and readily replicate it. One company, based in China, had already done exactly that. As SolmeteX's chief executive officer acknowledged at trial, Enpress did not need to talk to Dube to create the AVTMax.

When SolmeteX initiated this action, it sued not only Dube and Enpress, but also two other parties, Owen Boyd and Air Techniques, Inc. (ATI). Boyd was SolmeteX's founder and former president and chief executive officer, who was involved in designing the Hg5. He left SolmeteX a year or so before Dube and eventually came to consult with Enpress on the design of the AVTMax. It was Boyd who introduced Dube to Enpress. ATI, meanwhile, was the leading manufacturer and distributor of vacuum pumps, the device to which an amalgam separator is attached. It too sold an amalgam separator, which competed with the Hg5. While still with SolmeteX, Dube held talks with ATI about selling the Hg5 and ATI's vacuum pump together as a package. Subsequently, Dube introduced ATI to Boyd, which then led to ATI engaging in its own talks with Enpress about forming a joint venture to sell the AVTMax with its vacuum pumps. Ultimately, ATI did not go forward with either joint venture, but it did hire Dube away from SolmeteX. Prior to trial, both Boyd and ATI settled with SolmeteX.

Analysis. We address the arguments advanced on appeal, albeit not in the order presented.

1. Duty of loyalty. Dube and Enpress argue that there was insufficient evidence to warrant the jury verdicts on the duty of loyalty claims and that their motions for directed verdicts should have been allowed. In denying those motions, the trial judge acknowledged that it was a "very close question" and that SolmeteX had "just barely" done enough to justify putting the claims to the jury. We concur and conclude that the same effectively can be said for the resulting verdicts; while the evidence was far from overwhelming, there was enough for the jury to have found that Dube, aided and abetted by Enpress, breached the duty of loyalty.

"Employees occupying a position of trust and confidence owe a duty of loyalty to their employer and must protect the interests of the employer." Chelsea Indus., Inc. v. Gaffney, 389 Mass. 1, 11 (1983) (Gaffney ). Here, SolmeteX argued to the jury that Dube, aided and abetted by Enpress, violated that trust and confidence by both disclosing confidential information and actively competing with his own employer. See Gaffney, 389 Mass. at 11-12 (an executive employee is barred from actively competing with his employer during the tenure of his employment, even absent a noncompetition agreement); Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 172-173 (1991) (Augat ) (an at-will employee may plan and take active steps to go into competition with his current employer, but cannot appropriate trade secrets or other confidential information). As noted above, however, SolmeteX failed to establish that any of the information Dube disclosed during his communications with Enpress was confidential. Much of it was already in the public domain or could be easily acquired and duplicated by others. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972) (identifying the same as among the factors to be considered in assessing whether information is confidential). Much of it was also based on the general knowledge and experience Dube had acquired and developed over his many years of working in the amalgam separator industry. See id. at 839 ("[A]n employee may carry away and use general skill or knowledge acquired during the course of his employment"). In terms of timing, meanwhile, Enpress did not begin marketing the AVTMax until several months after its last communication with Dube. The jury, therefore, properly may have concluded that Dube and Enpress were not engaged in active competition with SolmeteX at the time of the subject communications.

With all of that being said, Dube did ship an Hg5 to Enpress. And while Enpress arguably could have purchased one from other available sources, it did not. Instead, it received one for free, at SolmeteX's expense. That was improper. See Augat, 409 Mass. at 173 ("[A] person may not act for his future interests at the expense of his employer by using the employer's funds or employees for personal gain"). It is apparent that the jury found as such, since they indicated on the verdict slip that the $940 damage award represented "[t]he cost of 1 Hg5 and [two] canisters." We do not see any basis for overturning that verdict.

2. Evidentiary rulings. "Whether evidence is relevant is a question addressed to the sound discretion of the trial judge. It is similarly within the judge's discretion to decide whether the probative value of the evidence outweighs the possibility that it would mislead or prejudice the jury. We will not reverse such decisions unless there is palpable error." Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006) (Carrel ) (citations and quotations omitted).

a. SolmeteX's sales and profitability. SolmeteX first argues that the trial judge erred by admitting evidence that SolmeteX's overall sales and profitability continued to grow after the AVTMax came to market. According to SolmeteX, the evidence was irrelevant because it had elected to seek to recover damages based on Enpress' ill-gotten gain (i.e., the number of AVTMaxs and replacement canisters that Enpress had sold and could reasonably be expected to sell in the future, multiplied by the average profit SolmeteX made on similar sales). Alternatively, SolmeteX argues that, even if the evidence had some probative value, it was outweighed by the possibility that it misled or prejudiced the jury -- a possibility it deems likely given the small damage award of $940. We disagree, on both accounts.

While SolmeteX objected on several occasions to the admission of the sales and profitability evidence, on others it did not. "The consequence of the failure properly to object at trial is to waive the issue on appeal." Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). In addition, the Hg5 accounted for virtually all of SolmeteX's revenue. The fact that revenue continued to grow after the AVTMax came to market, therefore, was relevant to both the general issue of harm and SolmeteX's specific assertion that every sale of an AVTMax otherwise would have been of an Hg5. See Mass. G. Evid. § 401 (2018) (evidence "is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action"). The issue also was not so complex as to have confused the jury, and, in that regard, SolmeteX was free to argue that its ongoing sales and profitability were irrelevant to the harm it purported to have suffered. Finally, SolmeteX cannot make "a plausible showing that the trier of fact might have reached a different result if the evidence had [not] been before it." DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989). As discussed above, while there was sufficient evidence that Dube, aided and abetted by Enpress, breached his duty of loyalty, any such breach was not substantial. The $940 award is more likely a product of that reality than of the jury having been misled or prejudiced by the admission of the sales and profitability evidence.

b. Owen Boyd & Air Techniques, Inc. At trial, Enpress presented, through the reading of deposition transcripts, the testimony of both Boyd and a representative of ATI as part of its defense. In response, SolmeteX requested that the jury be informed that Boyd and ATI formerly had been defendants. SolmeteX maintained that this information was relevant to an assessment of the witness's credibility and potential bias. The judge declined. SolmeteX now suggests that amounted to clear error. Again, we disagree. The potential risks and prejudice associated with admitting the evidence far outweighed any possible relevance.

First, had the jurors been informed of the bare fact that Boyd and ATI were formerly defendants, as SolmeteX requested, it is likely to have prompted unnecessary, and even unanticipated, speculation regarding why they were defendants in the first place, why that was no longer the case, and what that might mean in terms of not only Boyd's and ATI's credibility and potential bias, but also SolmeteX's credibility. Second, Boyd had, prior to testifying at the deposition that was used at trial, agreed as part of his settlement to cooperate fully with SolmeteX and testify truthfully. Yet SolmeteX did not propose to disclose that contractual obligation, or even the existence of the settlement, to the jury. It would have been misleading to withhold that information while simultaneously suggesting that Boyd was biased against SolmeteX because it had sued him. All told, therefore, the judge acted well within his discretion, and certainly did not commit clear error, when he declined to take the trial and jury down what amounted to a veritable rabbit hole.

Even if we were to deem the decision to exclude the evidence to be an error, we have substantial confidence that it did not materially affect the outcome of the trial. See Carrel, 447 Mass. at 450. It could not possibly have been lost on the jury that if Boyd and ATI were aligned with any of the parties, it was with Dube and Enpress.

3. Substantial contributing factor instruction. SolmeteX next argues that the judge erred when he declined to give a "substantial contributing factor" instruction to the jury. "The 'substantial contributing factor' test is useful in cases in which damage has multiple causes, including but not limited to cases with multiple tortfeasors in which it may be impossible to say for certain that any individual defendant's conduct was a but-for cause of the harm, even though it can be shown that the defendants, in the aggregate, caused the harm." Matsuyama v. Birnbaum, 452 Mass. 1, 30 (2008) (emphasis in original). SolmeteX fears that the jury returned such a small damage award ($940) because they concluded that Boyd was also a contributing cause of the alleged harm, but, having not been provided with the requested instruction, were unaware that they could still hold Dube and Enpress liable for the full extent of the harm SolmeteX suffered. The fear, however, is unwarranted. While there was evidence that Boyd helped Enpress to design and market the AVTMax, when he did so he was no longer employed by SolmeteX, was not subject to a noncompete agreement, and was not shown to have disclosed any of SolmeteX's confidential information. In other words, there was no evidence to suggest that he was engaged in any wrongdoing or causing any legally cognizable harm to SolmeteX when he aided Enpress. As the judge rightly concluded, there was no factual basis for a substantial contributing factor instruction.

4. The judge's verdicts. Regarding the claims tried to the judge, his findings of fact cannot be set aside unless they were clearly erroneous, and due regard must be given to the opportunity he had to assess the credibility of the witnesses. Mass.R.Civ.P. 52(a), as amended by 423 Mass. 1402 (1996). See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). The question for an appellate court is not whether we would have made the findings that he did, but whether on the entire evidence we are "left with the definite and firm conviction that a mistake has been committed." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 n.3 (2011) (quotation omitted). Given the manner in which the judge rendered his verdicts, responding (yes or no) to special questions, we are not privy to his underlying reasoning. The verdicts, however, all have support in the evidence.

a. Fraud. While Dube was engaged in his communications with Enpress, SolmeteX itself was in the process of being sold to a group led by an entity known as Gemini Investments (Gemini). As part of that transaction, Gemini required members of the senior management team at SolmeteX to sign noncompete agreements. Dube was the only one who refused to do so. On the day the transaction was scheduled to close, therefore, Gemini's managing director, James Rich, met with Dube to discuss his concerns. According to Rich, Dube provided assurances during that meeting that he was not considering either moving to another company or competing with SolmeteX, and that he intended to remain with the company. In reliance on those alleged representations, Gemini decided to stay the course and close the transaction. When Dube's communications with Enpress subsequently came to light, however, SolmeteX alleged that those representations amounted to actionable fraud. The judge disagreed. SolmeteX now argues that the verdict was contrary to the overwhelming evidence and clearly erroneous. The record suggests otherwise.

First, Dube is alleged to have made his fraudulent representations to a representative of an entity that is not a party to this action, Gemini. It is that party that is alleged to have acted in reliance thereon, by moving forward with its purchase of SolmeteX. To the extent that any fraud claim even existed, therefore, it belonged to Gemini, not SolmeteX. There is also no evidence that Gemini ever assigned such a claim to SolmeteX, if that is even possible. See Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 41-42 (2010) (discussing the bar against assigning fraud claims and questioning, but not deciding, whether it still survives). In addition, Dube disputed Rich's version of what transpired at their meeting and testified that Rich only asked him whether he had an offer from another company, to which he truthfully replied in the negative. The judge, who, unlike us, weighs the credibility of the witnesses, may have credited that testimony and concluded that there was no misrepresentation. In either case, we are not left with a definite and firm conviction that a mistake has been committed.

b. General Laws c. 93A. SolmeteX next argues that, given the jury's finding that Enpress aided and abetted a breach of fiduciary duty by Dube, the judge committed clear error when he went on to reject SolmeteX's claim against Enpress for unfair and deceptive trade practices. This need not detain us long. "A practice is unfair if it is within the penumbra of some common-law, statutory, or other established concept of unfairness; is immoral, unethical, oppressive, or unscrupulous; and causes substantial injury to other businessmen." Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 27 (1997) (citation and quotation omitted) (emphasis added). As discussed above, while there was sufficient evidence to establish that Enpress aided and abetted a breach of the duty of loyalty by Dube, neither the objectionable act itself nor the resulting damages were substantial. Thus, we are not left with a definite and firm conviction that the judge committed a mistake when he found SolmeteX failed to establish a claim under G. L. c. 93A, §§ 2 and 11.

c. Breach of contract. Lastly, SolmeteX argues that the judge committed clear error when he rejected the claim that Enpress breached a contract with Boyd by failing to pay him a royalty in exchange for the assignment of inventor's rights that he executed during the course of his consulting work on the AVTMax (inventor's assignment). SolmeteX further argues that, due to what it terms a lack of consideration, the judge should have voided the inventor's assignment altogether. SolmeteX maintains that it has the right to pursue this claim as a result of an assignment of intellectual property rights that Boyd made in favor of SolmeteX as part of the aforementioned settlement related to this litigation. Even assuming that to be true, however, there was no evidence that Enpress and Boyd ever entered into a contract whereby Enpress agreed to pay a royalty in exchange for the inventor's assignment, never mind that it breached such a contract. Once again, therefore, we have not been left with a definite and firm conviction that a mistake was committed.

5. Fees and costs. Dube and Enpress both seek sanctions against SolmeteX pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), which allows this court "to award double costs to an appellee in a civil case when the appeal is frivolous, immaterial, or intended for delay." Avery v. Steele, 414 Mass. 450, 455 (1993). "An appeal is frivolous when the law is well settled, when there can be no reasonable expectation of reversal." Ibid. While we have found SolmeteX's arguments unpersuasive, "[w]e are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases." See Symmons v. O'Keefe, 419 Mass. 288, 303 (1995). This is not such a case.

Corrected amended judgment dated May 2, 2017, affirmed.

      Apavia, LLC, a division of Enpress, also is a named defendant. We refer to them collectively as "Enpress."

      The effective judgment in this appeal is the corrected amended judgment entered on May 2, 2017.

      Mercury, at certain levels, is considered a hazardous waste for purposes of disposal.

      On the eve of trial, SolmeteX abandoned the claims that it had asserted, and litigated for several years, against Dube and Enpress for the misappropriation of trade secrets.

      In an effort to destroy evidence of his communications with Enpress, Dube did use an available software program to "clean" his work laptop personal computer.

      SolmeteX itself has surreptitiously purchased amalgam separators from its competitors for the purpose of analyzing the technology.

      None of the parties pursued posttrial motions relative to the jury verdicts.

      It is not clear why the jury included the cost of two canisters in the award, but "an element of uncertainty in their assessment is not a bar to recovery." Carlo Bianchi & Co. v. Builders' Equip. & Supplies Co., 347 Mass. 636, 646 (1964) (citation and quotation omitted).

      Dube and Enpress also argue that the duty of loyalty claims must fail because all of the alleged wrongdoing occurred before the SolmeteX business was purchased by its current owners, as explained further below. However, SolmeteX, LLC, secured a "confirmatory assignment" from the prior owner, which, while not a model of clarity, appears to cover the claims at issue.

      The judge, over the objection of Enpress, never used the words "but for," though that was the gist of the instruction he provided on causation.

      The SolmeteX business had three different owners while Dube was employed there, having first been sold by Boyd's group to Layne Christensen Company, and then to the group led by Gemini.

      "The elements of fraud consist of (1) a false representation (2) of a matter of material fact (3) with knowledge of its falsity (4) for the purpose of inducing action thereon, and (5) that the plaintiff relied upon the representation as true and acted upon it to his or her damage." Balles v. Babcock Power Inc., 476 Mass. 565, 573-574 (2017).

      Enpress sought patent protection relative to the AVTMax and, as a courtesy, listed Boyd as one of the inventors on the application. Boyd, for his part, did not believe that he had any inventor's rights.

      While the assignment of intellectual property rights from Boyd to SolmeteX is written in broad terms, it makes no mention of either the existence or assignment of such a claim for breach of contract.

      Enpress and Boyd attempted to negotiate an agreement whereby Enpress would pay Boyd a royalty for his consulting work in connection with the AVTMax. The agreement was never finalized, but Enpress did pay Boyd for that consulting work at the rate of $10,000 per month for approximately seven months.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Amanda R. STEVENS.
    17-P-1280
    Appeals Court of Massachusetts.
    Entered: August 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Amanda R. Stevens, of operating a motor vehicle under the influence of alcohol (OUI), G. L. c. 90, § 24(1)(a )(1), and child endangerment while operating under the influence, G. L. c. 90, § 24V(a ). She filed a notice of appeal from the convictions. She also subsequently moved for a new trial, asserting that an affidavit from a psychologist, obtained postconviction, constitutes newly discovered evidence because it shows that her mental health disorders, not alcohol, caused some of her behavior, and that her trial counsel was ineffective for failing to introduce evidence of these disorders. The trial judge denied the motion without a hearing, and the defendant filed a notice of appeal from that order. Addressing both her direct appeal and her appeal from the denial of her new trial motion, we affirm.

Discussion. 1. Sufficiency of the evidence. The defendant contends that the Commonwealth presented insufficient evidence of her passenger's age to support a conviction of child endangerment. We disagree.

When reviewing a sufficiency challenge, we view the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). In this case, the Commonwealth was required to establish the following: (1) the defendant operated a motor vehicle while under the influence; (2) with a child fourteen years of age or younger in the vehicle. G. L. c. 90, § 24V(a ).

After observing various indicia of intoxication, Sergeant Patrick Silva of the Reading police department arrested the defendant for OUI. In the course of the arrest, Silva also observed and spoke to the young female passenger in the defendant's vehicle. Silva observed that the passenger was between four feet and four and one-half feet tall and estimated the passenger's age to be no more than ten years old. The Commonwealth introduced no other evidence of the passenger's age in its case-in-chief.

The defendant asserts the officer's estimate of the passenger's age cannot support a finding that she was fourteen years of age or younger. We are not persuaded.

Appearance alone is insufficient to prove age, "except[, as is the case here,] where marked extremes of old age and youth are involved." Commonwealth v. Pittman, 25 Mass. App. Ct. 25, 27-28 (1987). In the passenger's youthful age group, a four year difference in age is dramatic. See Commonwealth v. O'Connell, 432 Mass. 657, 662-663 (2000) (difference between estimated age of under eleven and one-half years and statutory threshold of eighteen years sufficiently extreme to impute knowledge of age in child pornography case). Accordingly, Silva's estimate that the child was between the ages of nine and ten was sufficient to satisfy the statutory requirement that the child be fourteen years of age or younger. See id.

2. Newly discovered evidence. The defendant next asserts that the opinion of a psychologist that the defendant's poor performance of the field sobriety tests and belligerent behavior during booking were due to mental illness and not alcohol consumption is newly discovered evidence warranting a new trial. We are not convinced.

To qualify as "newly discovered," evidence must "have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial." Commonwealth v. Grace, 397 Mass. 303, 306 (1986). Here, trial counsel was apprised of defendant's mental health history and had even obtained a copy of her medical records. At trial, counsel in fact presented evidence that the defendant suffered from "anxiety attacks," and he argued that she had suffered such an attack during the traffic stop. As counsel explained in his affidavit in support of the motion for a new trial, he made a strategic decision to forgo investigating and presenting a more complete picture of the defendant's mental health history. Where the defendant's mental history was known and reasonably discoverable to counsel prior to trial, it does not constitute newly discovered evidence. See ibid.

3. Ineffective assistance of counsel. The defendant alternatively faults counsel for failing to investigate and present a more detailed picture of her mental incapacity. We see no merit to her claim.

"Counsel [i]s ineffective if his conduct f[alls] 'measurably below that which might be expected from an ordinary fallible lawyer' and 'likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Brown, 479 Mass. 163, 170 (2018), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "In regard to the latter requirement, there ought to be some showing that better work might have accomplished something material for the defense." Brown, supra, quoting from Commonwealth v. Bell, 460 Mass. 294, 303 (2011).

While the depth of the defendant's mental health history, if believed, may have shed some light on certain aspects of the defendant's performance on the field sobriety tests and her belligerent behavior during booking, it would not have explained away the other strong indicia of intoxication. Here, the officer witnessed the defendant driving erratically, smelling of an alcoholic beverage, appearing glassy-eyed, and slurring her speech. She also stumbled as she exited her vehicle, was unable to maintain balance and coordination during the field sobriety tests, and admitted to drinking before driving. Given this overwhelming evidence of intoxication, we cannot say that counsel's strategic decision, even if it was "manifestly unreasonable when made," Commonwealth v. Epps, 474 Mass. 743, 757 (2016), quoting from Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016), which we do not say that it was, prejudiced the defendant. See Commonwealth v. LaChance, 469 Mass. 854, 860 (2014), cert. denied, 136 S. Ct. 317 (2015) ("[C]laims of ineffective assistance of counsel merit a new trial only where the error may have affected the verdict"). Accordingly, the judge did not err in denying the motion on this ground.

4. Denial of motion for a new trial without a hearing. Last, we are also not persuaded by the defendant's further contention that the judge erred in denying the new trial motion without a hearing. A hearing is required only when the defendant's motion and affidavits raise a " 'substantial issue' that would require an evidentiary hearing." Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995), quoting from Commonwealth v. Licata, 412 Mass. 654, 660 (1992). For the reasons discussed above, in our view the defendant has failed to meet that burden as her motion does not raise credible claims. See DeVincent, supra at 67-68; Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004). Accordingly, we "defer to the sound discretion of the trial judge on whether [the defendant's] motion for a new trial requires an evidentiary hearing or whether it can be decided on the basis of the facts alleged in the affidavits," DeVincent, supra at 67, and conclude that the judge did not abuse his discretion in denying the motion without a hearing.

Judgments affirmed.

Order denying motion for new trial affirmed.

      The judge, sitting without a jury, found the defendant not responsible for a civil marked lanes violation.


text:
    COMMONWEALTH v. Sean MARTIN.
    17-P-60
    Appeals Court of Massachusetts.
    Entered: August 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant, Sean Martin, was convicted of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24(1)(a )(1). On appeal, the defendant claims the judge erred in (1) permitting testimony regarding his conduct during the booking process; (2) allowing the introduction of an open eighteen-pack carton of beer found in his truck during an inventory search; (3) permitting a juror who appeared to be asleep to participate in deliberations; and (4) not instructing the jury on expert testimony and consciousness of guilt. The defendant also argues the evidence was insufficient to sustain his conviction. We affirm.

Background. We summarize the facts as the jury could have found them in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Around 1:35 A.M. on April 22, 2016, Officer Mark Wilkins was on routine patrol on Greenfield Street in Deerfield when he observed a pickup truck driven by the defendant traveling sixty miles per hour in a forty-five mile per hour zone.

Wilkins stopped the vehicle, approached the defendant, and asked him for his license and registration. The defendant produced his driver's license, but after "fumbling" through some papers, could not find his registration. Wilkins observed that the defendant's speech was "thick-tongue[d]" and his eyes were "glassy and somewhat bloodshot." Wilkins also detected a "moderate odor of alcohol" coming from the car. When asked if he had been drinking, the defendant initially stated that he had not, but then admitted he had consumed one beer. Based on these observations, Wilkins asked the defendant to perform field sobriety tests, to which he consented. Wilkins administered the tests upon the arrival of his partner, Officer Jennifer Bartak. Wilkins concluded that the defendant's performance demonstrated that he was intoxicated. The defendant was arrested and transported to the police station.

During the booking process, the defendant became uncooperative and confrontational. He was advised of his Miranda rights and although he indicated that he understood them, he refused to sign the form acknowledging that understanding. The officers also had difficulty obtaining the defendant's biographical information. The defendant challenged Wilkins's knowledge of the law and questioned whether Wilkins was on medication or drugs. At one point, he used his cellular telephone to call the police chief to ask him why he was being harassed. When he failed to reach the chief, the defendant called the State police and asked the trooper with whom he spoke about the protocols for OUI arrests and booking procedures. Wilkins noted that the defendant's speech had become "a little bit more thick-tongued or slurred" during the booking process, which took nearly two and one-half hours to complete. The entire procedure was video recorded and portions of the video were played for the jury.

Meanwhile, Bartak conducted an inventory search of the defendant's vehicle. She found an open eighteen-pack of beer containing nine cans of Bud Light and three bottles of Miller High Life beer. The beer was cold.

Discussion. 1. Police testimony regarding the defendant's uncooperative behavior postarrest. During direct examination by the prosecutor, both Wilkins and Bartak described the defendant's behavior during the booking process. Defense counsel did not object to testimony regarding his demeanor. At one point, the prosecutor asked Wilkins whether he was able to obtain the defendant's biographical information, to which Wilkins responded that he was "unable to obtain much biographical information" because the defendant was "very uncooperative." When the prosecutor asked Wilkins if he could be more specific, defense counsel objected. The objection was sustained and the prosecutor moved on to another topic. The defendant now contends that all of the unobjected to testimony regarding his behavior at the police station amounted to improper comments on his postarrest silence and, as a result, should have been excluded. See Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910, 910-911 (2009). As the defendant acknowledges, in the absence of a timely objection, we review to determine whether there was error and, if so, whether that error created a substantial risk of a miscarriage of justice. See id. at 910 n.3.

"A defendant's postarrest silence in response to police questioning may not be used against him," even where that silence "is in connection with booking questions." Gonsalves, supra at 911. However, "a defendant who voluntarily speaks after receiving Miranda warnings ... has not remained silent at all," and such statements are generally admissible. Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 418-419 (2016), quoting from Anderson v. Charles, 447 U.S. 404, 408 (1980).

Here, the defendant was advised of his Miranda rights and confirmed that he understood them. Contrary to the defendant's assertion, his refusal to sign the form indicating his understanding of his Miranda rights did not amount to an exercise of his right to remain silent. Also, testimony regarding Wilkins's general difficulty in obtaining biographical information as a result of the defendant's obstreperous conduct did not amount to a comment on the defendant's silence. Cf. Gonsalves, supra at 911 (prohibiting evidence of "a defendant's refusal to answer a booking question" [emphasis supplied] ). Lastly, the defendant's combative exchanges with the arresting officers and his attempts to contact other police officials were voluntary statements. As such, they were admissible. See Lodge, supra.

2. Admission of the open eighteen-pack carton of beer. As indicated, the police found an open eighteen-pack carton of beer containing a mixture of unopened cans and bottles of beer. Six beers were missing. The Commonwealth was permitted to introduce this evidence over the defendant's objection. The defendant contends, as he did at trial, that the probative value of this evidence was outweighed by the danger of unfair prejudice. Because the defendant lodged a timely objection, we review to determine whether there was error and, if so, whether the error was prejudicial. See Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). "[I]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong." Ibid.

There is no question that the evidence was relevant because it made more probable the Commonwealth's contention that the defendant had been drinking alcohol. See Mass. G. Evid. § 401 (2018) ("Evidence is relevant if ... it has any tendency to make a fact more or less probable than it would be without the evidence ... and the fact is of consequence in determining the action"). And, while the evidence was prejudicial, it was not unduly so. "[T]he measure of prejudice is not whether the evidence simply is adverse to the party against whom it is offered." Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013). Indeed, the defendant has failed to identify any prejudice beyond the permissible adverse inference that he had consumed the missing beer. See Commonwealth v. Hilton, 398 Mass. 63, 66, 68 (1986). As such, we discern no error in the judge's decision to admit the evidence.

3. Inquiry as to whether there was a sleeping juror. During the morning session of the trial, the judge observed that one of the jurors was "repeatedly closing his eyes." The judge raised the issue with counsel and, even though the judge believed that the juror was concentrating on the evidence and not sleeping, he conducted a voir dire of the juror at the beginning of the afternoon session. The juror explained that he had rheumatoid arthritis for which he took medication, but he was "all right" and had not been sleeping. The juror further stated that he had "just [been] relaxing" when he closed his eyes and had heard all the testimony. The judge concluded that the juror's answers confirmed "what [he] thought was happening," that is, that the juror had merely been concentrating on the evidence. Both the prosecutor and defense counsel agreed that the juror had not been sleeping, and the juror participated in deliberations.

The defendant now claims that the judge's questioning of the juror was inadequate and that the juror should have been discharged. This argument is without merit. The judge acted promptly upon observing the juror, see Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), and by doing so protected the defendant's rights to a fair trial. See Comonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). Furthermore, both the prosecutor and defense counsel agreed that the juror had not been sleeping. Given these circumstances, the judge's decision to keep the juror was reasonable and did not constitute an abuse of discretion. See Commonwealth v. Ray, 467 Mass. 115, 138-139 (2014).

4. Jury instructions. The defendant contends that evidence of his belligerent attitude during the booking process was indicative of his consciousness of guilt and, therefore, the judge should have instructed the jury on the subject even though he did not request such an instruction. Even if the defendant's behavior during the booking process could be viewed by the jury as a reflection of his consciousness of guilt, which we doubt, our cases do not require that a judge, on his or her own initiative, instruct the jury on consciousness of guilt. See Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 551 (2009), quoting from Commonwealth v. Simmons, 419 Mass. 426, 436 (1995) (matter "is left to the sound discretion of the judge, and it will not be error if he or she chooses not to instruct on the subject in the absence of a request").

Next, the defendant contends that because Wilkins testified to his training and experience in administering field sobriety tests, the judge should have specifically instructed the jury that Wilkins was not providing expert testimony. Defense counsel did not request an instruction on this matter either, and we discern no reason for requiring the judge to give one sua sponte. See Commonwealth v. Muckle, 90 Mass. App. Ct. 384, 396 (2016) (jury instruction not required if not requested). There was no error.

5. Sufficiency of the evidence. "When analyzing whether the record evidence is sufficient to support a conviction, ... the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (emphasis original). Here, the Commonwealth was required to prove that the defendant "(1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol." Gallagher, supra. The defendant claims the evidence was insufficient to prove the third element. We disagree.

The evidence was more than sufficient to permit a rational jury to conclude beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired. "[T]he Commonwealth need not prove that the defendant was drunk, only that alcohol diminished [his] ability to operate a motor vehicle safely." Ibid. Here, the defendant was speeding, see Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 353 (2015) ; he admitted to consuming at least one beer, see Gallagher, supra at 391; and the carton of cold beer found in his truck was missing up to six cans or bottles, see Hilton, 398 Mass. at 66, 68. Moreover, the police observed "classic symptoms of alcohol intoxication," including bloodshot and glassy eyes, the smell of alcohol, slurred speech, and inability to properly perform field sobriety tests. Gallagher, supra at 392-393. This evidence amply supported the jury's verdict.

Judgment affirmed.

      The parties disagree as to whether the booking video was introduced in evidence or merely used as a chalk to help the jury understand the officers' testimony. We need not resolve this dispute as the question of how the video recording was viewed has no bearing on our analysis of the issues.

      Wilkins provided additional details regarding the defendant's refusal to provide biographical information during cross-examination. Because this testimony was solicited by defense counsel, the defendant cannot complain of its prejudicial effect. Commonwealth v. Elder, 389 Mass. 743, 754 (1983).

      "Consciousness of guilt instructions are permissible when there is an 'inference of guilt that may be drawn from evidence of flight, concealment, or similar acts.' " Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting from Commonwealth v. Toney, 385 Mass. 575, 584 (1982).


text:
    COMMONWEALTH v. ESTEBAN E., a juvenile.
    16-P-1637
    Appeals Court of Massachusetts.
    Entered: August 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The juvenile was fifteen years old when he was interviewed on multiple occasions by the police, who suspected he had stolen firearms from the family home. The juvenile made inculpatory statements in the course of two interviews -- one at the home of a neighbor who was watching over him, and the other outdoors while police searched for the weapons nearby. He now appeals from the denial of his motion to suppress these statements, arguing that the statements were obtained in violation of his Miranda rights, and that they were otherwise involuntary. We affirm.

1. Background. We summarize the facts found by the motion judge, who held two evidentiary hearings on the matter. See Commonwealth v. Powell, 459 Mass. 572, 574 & n.7 (2011), cert. denied sub nom. Powell v. Massachusetts, 565 U.S. 1262 (2012).

a. February 15, 2016. On February 15, 2016, Pembroke police officers were dispatched to the juvenile's home for a well-being check regarding a family dispute. The juvenile was not present when the officers arrived, but a firearm was found on the ground, and the juvenile's father and stepmother were arrested and removed from the home. In interviews with the police that evening, the father first advised that there were six registered firearms in the home and, when the police could only account for four of them, the father stated that he suspected the juvenile had taken the other two. The father recounted that he had argued with the juvenile earlier in the evening about the missing firearms, which had resulted in the juvenile leaving the home.

Because the juvenile's father and stepmother were taken into custody on that day (February 15, 2016), they needed to arrange for someone to watch the juvenile and his two younger siblings. A neighbor who had known the family for several years volunteered to do so, to which the juvenile's father and stepmother agreed. The juvenile, who had left after the argument with his father, subsequently returned to the family home that evening. He was invited by the neighbor into her residence; the neighbor then informed the police the juvenile was with her.

After being advised of the father's suspicion that the juvenile had taken the missing guns, Pembroke police Officer Christopher Horkan and Sergeant Paul Joudrey went to the neighbor's residence on the evening of February 15 to speak to the juvenile, in what became the first of the two interviews at issue on this appeal. The officers informed the neighbor that they wanted to speak to the juvenile about missing guns, and that the juvenile's father believed he had taken them. The neighbor agreed to be an "interested adult" during the officers' interview with the juvenile. The two officers, the neighbor, and the juvenile sat at the neighbor's dining room table. Both officers informed the juvenile and the neighbor that the juvenile was not under arrest, but Sergeant Joudrey still recited Miranda rights to the juvenile in the neighbor's presence. The neighbor and the juvenile then signed what the judge called an "Acknowledgement Form," which states that the juvenile "acknowledge[s] that [he] had the opportunity for a meaningful consultation with [the neighbor], an interested adult whose relationship to me is that of [the juvenile]," and that the juvenile "still wish[es] to waive [his] Miranda rights and make a statement." After the juvenile and the neighbor signed the form, Sergeant Joudrey asked the neighbor (with the juvenile present) if she needed to speak to the juvenile before the police began their interview; she indicated that she did not.

The officers told the juvenile that his father had said he took the missing guns. The juvenile initially denied involvement with any firearms. However, after Sergeant Joudrey stated he knew the juvenile was "not being truthful," and that the police needed to locate the firearms so that "nobody gets hurt," the juvenile stated he had taken one of the guns and thrown it into a nearby cranberry bog. When asked if the gun was loaded, the juvenile stated, "it was loaded, but there was not a round in the chamber." Sergeant Joudrey asked if the juvenile was willing to point out where he discarded the gun, and the juvenile agreed. During this conversation, Sergeant Joudrey spoke in a "normal" tone.

That evening the juvenile accompanied the officers to the cranberry bog, without the neighbor. The officers asked the juvenile to show them where he put the firearm, and the juvenile led the officers to a "general area." The officers searched but could not locate the gun. Eventually, due to the late hour and weather conditions, the officers decided to suspend the search and resume searching the next morning; the officers drove the juvenile back to the neighbor's residence.

b. February 16, 2016. Police officers returned to the neighbor's home the following day, and the juvenile once again accompanied the police to the bog to continue the search. Neither the juvenile's parents nor the neighbor were present at the bog during the February 16 search. The juvenile was not under arrest.

While the officers were searching the area, Detective James Burns approached the juvenile, who was standing alone, "pulled him off to the side," and initiated another interview. Detective Burns, who was dressed in plain clothes, stated in a "normal" tone that he "didn't care" if the juvenile had previously "lied to the other officers ... that had been out searching for several hours prior," and that the juvenile could tell him "the truth." Detective Burns told the juvenile he could obtain access to the juvenile's cellular telephone to "read any communications there were regarding the stolen guns," and asked the juvenile to tell him "what he really did with them." In response, the juvenile admitted he sold the guns to "a kid named Robert." The juvenile stated that Robert still had one of the guns, and had facilitated a sale of the other gun to a "guy named Fredo." Detective Burns did not repeat the Miranda warnings during this conversation. He testified that after this disclosure, the juvenile "seemed relieved."

The juvenile was subsequently charged with two counts of possession of a firearm without a license, in violation of G. L. c. 269, § 10(h ), and two counts of larceny of a firearm, in violation of G. L. c. 266, § 30(1).

c. Motion to suppress. On May 16, 2016, the juvenile moved to suppress, among other things, the statements at the neighbor's home and at the cranberry bog. The judge held an evidentiary hearing and thereafter denied the motion to suppress; however, she subsequently reopened the hearing to further consider the Miranda issues and the "interested adult rule."

The judge then held a second evidentiary hearing at which Officer Horkan, Sergeant Joudrey, Detective Burns, and the neighbor testified. The judge issued a second memorandum and order, again denying the juvenile's motion to suppress the statements made at the neighbor's residence and bog. The judge found the juvenile was not in custody at the time of the statements at either location. Regarding the interview at the neighbor's home, the judge found that even if the juvenile was subjected to custodial interrogation, the juvenile had made a knowing and voluntary waiver of Miranda rights after an opportunity to consult with an interested adult. The judge further ruled that in any event, the Miranda requirement did not apply to either interview because both fell within the public safety exception, as articulated in New York v. Quarles, 467 U.S. 649 (1984) (Quarles ). Finally, the judge ruled that even though the juvenile's motion did not specifically raise the issue of voluntariness of his statements, the statements on both days were made voluntarily beyond a reasonable doubt. The juvenile's interlocutory appeal followed.

2. Discussion. This court accepts the motion judge's subsidiary findings of fact, absent clear error, but independently reviews the motion judge's ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

a. The neighbor's home. As to the statements made at the neighbor's home, the motion to suppress was properly denied. The juvenile argues that he was in custody at the neighbor's home, that no Miranda warnings were given, and that the neighbor did not qualify as an interested adult. The juvenile's argument, however, is flatly contradicted by the judge's finding, after an evidentiary hearing, that Sergeant Joudrey did verbally provide the Miranda warnings. This finding is corroborated by the "Acknowledgement" form, signed by the juvenile and the neighbor, that stated that the juvenile "still wish[es] to waive my Miranda rights and make a statement." The judge's findings were not clearly erroneous. Thus, even if we assume (without deciding), that the juvenile was in custody at the neighbor's home, he received proper Miranda warnings and voluntarily waived them.

We also reject the contention that the juvenile's Miranda waiver was invalid because the neighbor failed to qualify as an interested adult. Our cases require that when "questioning a juvenile who is age fourteen or older, ... 'the police must provide a genuine opportunity for a meaningful consultation with an interested adult prior to obtaining a Miranda waiver.' " Commonwealth v. Quint Q., 84 Mass. App. Ct. 507, 516 (2013), quoting from Commonwealth v. Leon L., 52 Mass. App. Ct. 823, 826 (2001). But there was such a meaningful opportunity here, where the neighbor fulfilled that role. The juvenile's father and stepmother had agreed that the neighbor would look after the children, given their unavailability. The police offered the opportunity for consultation to both the neighbor and the juvenile, before they started questioning. The neighbor was present throughout the interview, and available to be consulted; there was no request for a consultation from the juvenile. There is nothing on these facts that would have us conclude that the neighbor was insufficiently interested. The cases make clear that the interested adult is not required to actually consult with the juvenile, or to give particular advice. See Commonwealth v. Berry, 410 Mass. 31, 35 (1991) ; Commonwealth v. McCra, 427 Mass. 564, 567-568 (1998) ("It is not necessary for ... a juvenile actually to consult with the interested adult, for it is the opportunity to consult that is critical" [quotation omitted] ). Nor is a close family relationship required. See Commonwealth v. Alfonso A., 438 Mass. 372, 383 (2003) ("Our cases have not required that the adult with whom the juvenile has an opportunity to consult literally be a parent of the juvenile.... The adult must, however, be someone with a relationship with the juvenile who is sufficiently interested in the juvenile's welfare to afford the juvenile appropriate protection" [quotation omitted] ).

b. The bog interview. The bog interview presents a different factual scenario. No interested adult was present during the interview at the bog, and Miranda warnings were not recited. Nevertheless, we conclude that the motion was properly denied as to the bog statements as well, because the public safety exception applies to the bog interview, such that Miranda warnings were not required.

In Quarles, 467 U.S. at 655-657, the United States Supreme Court recognized a public safety exception to the requirement that a suspect be advised of his Miranda rights before he is questioned. The Quarles court held that overriding considerations of public safety justified a police "officer's failure to provide Miranda warnings before" questioning a suspect about the location of his missing gun. Id. at 651. In such circumstances, where "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment [to the United States Constitution's] privilege against self-incrimination," it is not necessary to advise a suspect of his Miranda rights. Id. at 657.

Quarles has been followed in Massachusetts courts, and indeed, has been applied to factual situations very similar to those at issue here. Thus, in Commonwealth v. Dillon D., 448 Mass. 793, 796-797 (2007), the Quarles public safety exception was applied to the questioning of a juvenile suspected of having a gun near a school. The juvenile's statements were not suppressed, even though no Miranda warnings were given and no interested adult was present. Id. at 794, 797. The court concluded that "there was an immediate need to question the juvenile about the presence of a firearm because the obligation of protecting other students and community members outweighed the administration of Miranda warnings to the juvenile in the presence of an interested adult." Id. at 797.

Subsequent opinions of this court have applied the Quarles exception in similar contexts, where a juvenile is suspected of having a gun, and the whereabouts of the gun is not known. See Commonwealth v. Alan A., 47 Mass. App. Ct. 271, 273-275 (1999) (juvenile left home with father's gun); Commonwealth v. Guthrie G., 66 Mass. App. Ct. 414, 416-418 (2006) (juvenile and friend fled after being seen with gun at juvenile's home).

The Quarles exception and the above principles apply to the facts here. By the time Detective Burns approached the juvenile at the bog, he knew that two firearms were missing and unaccounted for, that the juvenile had professed knowledge of where at least one of the firearms was located, and that the juvenile might well have lied about that location, since no gun had yet been found at the bog. Those circumstances presented a manifest public safety risk -- a loaded gun unaccounted for, and a juvenile lying about its whereabouts. The public safety exception articulated in Quarles and Dillon D. applied to the bog interview, and neither Miranda warnings nor an interested adult were required before proceeding.

c. Voluntariness. Finally, the judge also did not err in concluding, based upon the totality of the circumstances, that the juvenile's statements at the neighbor's home and at the cranberry bog were made voluntarily. While determining whether a statement is voluntary is a separate issue from determining the voluntariness of a Miranda waiver, a reviewing court looks at many of the same factors. Commonwealth v. Woodbine, 461 Mass. 720, 729 (2012). Those factors include the details of the interrogation; the defendant's age, education, intelligence, and emotional stability; whether the questioner used trickery; and whether the questioner made promises or used other inducements such as discussing leniency or a deal. See Woodbine, 461 Mass. at 729 ; Commonwealth v. Walker, 466 Mass. 268, 277 (2013).

Here, the facts demonstrate that the juvenile's statements at both the neighbor's house and the bog "were the product of a rational intellect and a free will." Woodbine, 461 Mass. at 729 (quotation omitted). As to the neighbor's house, the juvenile was informed that he was not under arrest, the neighbor was present throughout the questioning and available to be consulted, and the police officers engaged in a normal conversational tone. No promises or inducements were discussed. Indeed, rather than having his free will overborne, the juvenile had the wherewithal to lie to police officers about where he had placed a gun.

As to the bog, Detective Burns again questioned the juvenile in a conversational tone, and was not coercive. No promises or inducements were made. Additionally, Detective Burns did not employ trickery, and his single statement that he knew the juvenile had lied and did not care if the juvenile had lied was not an express or implied promise of leniency. See Commonwealth v. Harris, 468 Mass. 429, 436-437 & n.6 (2014) (finding no promise of leniency and statements voluntary where questioning officers assured defendant "they understood" and used sympathetic language, but did not minimize seriousness of potential criminal charge). After the juvenile stated that he had sold the guns, the juvenile appeared "relieved." The record demonstrates that the juvenile's statements were voluntary, and the product of free will.

Order dated May 11, 2017, affirmed.

      It seems there was an error in filling out this form: where the juvenile's name was inserted, the neighbor's relationship should have been stated instead.

      Following the juvenile's statements at the bog, Detective Burns had a further conversation with the juvenile at the police station, during which the juvenile provided more details about the sale of the guns. The juvenile moved to suppress these statements as well. The motion to suppress as to the police station statements was allowed, and those statements are not before us on appeal.

      The public safety exception might apply to the questioning at the neighbor's home as well. However, it is unnecessary for us to reach that question.


text:
    COMMONWEALTH v. Sherile CARTER.
    17-P-676
    Appeals Court of Massachusetts.
    Entered: August 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from her conviction, after a jury trial, of receiving stolen property valued at over $250, G. L. c. 266, § 60. She argues that a judge erred in denying her motion to suppress evidence obtained through a warrantless search of her purse. We agree and conclude that her conviction must be reversed.

Background. We recite the relevant facts as found by the motion judge, supplemented where necessary by uncontroverted police testimony that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).

In December, 2015, a State trooper was dispatched to the scene of a reported disabled vehicle in a highway median strip. Upon arriving, the trooper parked ten to fifteen feet behind the vehicle, a sedan, and saw two women engaged in a "violent struggle" in its front seat. The trooper called for back-up, got out of his cruiser, approached and opened the sedan's driver's side door, and told the pair to stop fighting. They promptly complied, and he pulled the driver, later identified as the defendant, off of the other woman, later identified as Monique Jackson. He could not tell who was the aggressor. To separate the pair, the trooper ordered the defendant to get out of the sedan and stand to the rear of it, which she did. The trooper stood by her, asked if she was "okay," and offered medical treatment for her bleeding nose, but she declined.

The trooper then asked the defendant for her license or identification (ID). She replied that it was in her purse in the sedan and that she would go and get it. The trooper told her that he "didn't want her to go back to the vehicle because Miss Jackson was still seated in the front seat" and that he would get the ID out of her purse. The trooper returned to the sedan, where he saw the purse between the center console and the driver's seat. He "opened up the purse, saw identification that resembled [the defendant], took the ID, and as [he was] retrieving that ID, [he] saw multiple other IDs within the purse."

He returned to the defendant with the ID and asked if it was hers. The defendant replied, "No, that's not my ID." The trooper pointed out that the card bore a State ID number, a name, and a date of birth, and asked, "Well, what is it?" The defendant replied that "it was just a card and it was not an ID." By then, back-up officers had arrived. The trooper again asked if the defendant needed medical treatment, and again she declined. She was not in handcuffs. She told the trooper that she and Jackson had been engaged for about a year, had been fighting over some text messages sent by another woman, and were trying to get a phone from each other. The trooper learned the defendant's name and date of birth and determined that she had no driver's license. Both the defendant and Jackson were arrested for assault and battery; Jackson was placed in the trooper's cruiser, and the defendant in a separate cruiser, for transport to a State police barracks.

The trooper then "went through [the defendant's] purse, before placing it in [his] own cruiser." Also, the sedan was subjected to an inventory search. The inventory report did not list the purse.

Upon arrival at the barracks, the defendant was informed of her Miranda rights and indicated that she understood them. The trooper then "asked her about the IDs that were found in her purse." She replied that "they weren't ID, IDs at all. They were just cards with information on it," and that "they were just fake" and "made from a machine."

The judge denied the motion to suppress the evidence obtained from the purse, concluding that it was not unreasonable for the trooper to have retrieved the defendant's ID from the purse. The judge denied the motion to suppress the defendant's statements at the scene and at the barracks.

The sedan was also found to contain (1) merchandise bearing tags from T.J. Maxx and Marshalls retail stores; (2) slips showing that merchandise had been returned to those stores, without purchase receipts, in exchange for gift cards; and (3) gift cards from those stores. The Commonwealth's theory was that the evidence showed a scheme in which merchandise was stolen and then returned without receipts, using fake IDs, in exchange for gift cards, which could then be sold. The defendant was eventually charged, among other things, with receiving stolen property valued at over $250 and with assault and battery. After a jury trial before a different judge, the defendant was found guilty of receiving stolen property, and not guilty of assault and battery.

Discussion. 1. Motion to suppress evidence from purse. In reviewing a ruling on a motion to suppress, we accept the motion judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439 U.S. 280 (1978), and make an "independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found.' " Commonwealth v. Haas, 373 Mass. 545, 550 (1977), quoting from Brewer v. Williams, 430 U.S. 387, 403 (1977).

The defendant argues that the judge erred in ruling that it was reasonable for the trooper to engage in a warrantless search by retrieving the defendant's ID from her purse and viewing the other IDs inside it. We agree.

An intrusion into a closed container inside an automobile is a search. See Commonwealth v. Podgurski, 386 Mass. 385, 389 (1982), cert. denied, 459 U.S. 1222 (1983). A warrantless search is presumptively unreasonable under both the Federal and State Constitutions; the burden is on the Commonwealth to show that the search falls within a narrow class of permissible exceptions to the warrant requirement. See Commonwealth v. Craan, 469 Mass. 24, 28 (2014).

Here, the motion judge relied on Commonwealth v. Lantigua, 38 Mass. App. Ct. 526 (1995), to conclude that the trooper's search of the defendant's purse was reasonable under the circumstances. In Lantigua, the police pulled over a car for a traffic violation, ordered the driver out of the car, and asked him for his license and registration. Id. at 527. When the driver stated that he did not have a license but offered to get the registration from the glove compartment, it was reasonable for the police to enter the passenger compartment, including the glove compartment, to conduct a weapons search of the areas accessible to the driver prior to his reentering to retrieve the registration. Id. at 528. This was permissible based "on the particular danger to an officer when the person he is investigating is seated in a car with his movements concealed from the officer's view." Ibid. And, as a less intrusive alternative to such a weapons search, it would also have been reasonable for an officer to "determine from the driver where in the vehicle the registration was located and then enter the car for the limited purpose of getting it himself." Id. at 529.

In this case, however, although it was reasonable for the trooper not to allow the defendant to retrieve her identification from her purse in the car -- as this would have risked a resumption of her fight with Jackson -- there was no need for the trooper to search the purse himself. Unlike the glove compartment in Lantigua, the purse here was portable. It could have been retrieved by the trooper and brought to the defendant so she could retrieve her ID herself. And she would have done so in full view of the trooper, thus obviating the "particular danger to [the] officer" that arises "when the person he is investigating is seated in a car with [her] movements concealed from the officer's view." Id. at 528.

We recognize, of course, that, when asking for identification, "the police cannot safely allow a detained suspect to reach inside a container that they reasonably fear may contain a weapon." Commonwealth v. Pagan, 440 Mass. 62, 68 (2003). Here, however, the trooper did not identify, nor did the judge find, any reason to believe there was a weapon in the purse. Indeed, the trooper had left the purse in the sedan -- within easy reach of the defendant's co-combatant, Jackson -- during his initial questioning of the defendant, and again after he retrieved her ID. Accordingly, we cannot conclude that the search here was "for a protective purpose." Commonwealth v. Santos, 65 Mass. App. Ct. 122, 127 (2005). Rather, "the search was investigatory, as it was designed to uncover evidence related to ... the identity of the defendant, and not to search for weapons." Id. at 127. It was therefore unlawful.

a. Inevitable discovery. The Commonwealth argues that the fake IDs in the purse inevitably would have been discovered by lawful means, as a result of either the inventory search of the sedan or an inventory search of the defendant during booking. See Commonwealth v. O'Connor, 406 Mass. 112, 115-119 (1989) (discussing inevitable discovery rule). Applying that rule "requires a two-step analysis which focuses, first, on the question of inevitability, and, second, on the character of the police misconduct." Commonwealth v. Perrot, 407 Mass. 539, 546 (1990). "[T]he Commonwealth has the burden of proving the facts bearing on inevitability by a preponderance of the evidence and, once the relevant facts have been proved, that discovery by lawful means was 'certain as a practical matter.' " Id. at 547, quoting from O'Connor, 406 Mass. at 117.

The Commonwealth has not met that burden here. As to the inevitability of discovery during the inventory of the sedan, it suffices to note that the trooper did not leave the purse in the sedan; rather, after searching it again, he took it with him in his cruiser. It was not in fact found during the inventory of the sedan, as shown by its absence from the car inventory report admitted at the suppression hearing. And the judge made no finding that, had the trooper not searched the purse at the scene, he inevitably would have left it in the sedan where it would have been searched as part of a car inventory. Nor is such a conclusion required by the evidence. See Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 480 & n.13 (2005).

The Commonwealth's fallback argument is that discovery was inevitable during an inventory search incident to the defendant's booking at the barracks. But even if we assume (despite the absence of evidence on the issue) that such an inventory search occurred or would have occurred here, the record contains no written procedures governing the conduct of such searches. Thus we cannot determine whether such a search would have been lawful as a general matter, see Commonwealth v. Rostad, 410 Mass. 618, 619-620 (1991), or whether any such lawful search would have extended to the contents of closed containers. See id. at 620-622. The court has "made it clear that, if police open a closed container during an inventory search in the absence of a specific written procedure requiring them to do so, then any evidence they discover in the container must be suppressed." Id. at 622, quoting from Commonwealth v. Garcia, 409 Mass. 675, 684-685 (1991).

In sum, we cannot be "certain as a practical matter" that the lawful discovery of the fake IDs contained in the defendant's purse was inevitable under either of the Commonwealth's theories. O'Connor, 406 Mass. at 117. Therefore, that evidence should have been suppressed. And, consequently, the defendant's statements made at the scene and the barracks in response to the trooper's questioning about the IDs should also have been suppressed; as the defendant argued, they were fruits of a poisonous tree. See Commonwealth v. DaSilva, 56 Mass. App. Ct. 220, 228 n.9 (2002).

b. Effect of error. Finally, we reject the Commonwealth's argument that any error in admitting the evidence seized as a result of the search of the purse was harmless beyond a reasonable doubt. We cannot agree that evidence concerning the fake IDs was "cumulative"; there was no other evidence of any fake IDs. And the testimony about the IDs from the purse was an important part of the Commonwealth's case. A retail theft investigator for the T.J.X. companies (which include T.J. Maxx and Marshalls) testified that he was able to match the information on the fake IDs to numerous return-without-receipt transactions in a T.J.X. database totaling "thousands to hundreds of thousands of dollars." We are not "satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdict[ ]." Commonwealth v. Tyree, 455 Mass. 676, 701 (2010).

2. Prior bad acts evidence. Because the issue may arise at any retrial, we comment briefly on the defendant's claim that the trial judge abused her discretion in admitting what the defendant characterizes as prior bad acts testimony from the T.J.X. retail theft investigator. As just discussed, the investigator testified that he was able to match the information on the fake IDs to numerous return-without-receipt transactions in a T.J.X. database. This allowed the jury to infer that the defendant had been involved in those transactions, which the Commonwealth sought to portray as fraudulent and as showing the defendant's knowledge that the merchandise found in the sedan was stolen. The defendant argues that this evidence of her involvement in prior fraudulent returns was inadmissible because, on a variety of grounds, it was more prejudicial than probative. See Mass. G. Evid. § 404(b)(2) (2018).

Because of our conclusion that the fake IDs should have been suppressed, it does not appear that the T.J.X. investigator could repeat this precise testimony at any new trial. Apart from the IDs, however, the investigator also testified about various receipts and gift cards that the police had found in the defendant's purse or in the sedan. To the extent that the Commonwealth seeks to elicit such testimony at any new trial, and can show that those items were not found in the purse, see note 7, supra, then the trial judge would have to perform a new balancing of probative value against unfairly prejudicial effect. We express no view on whether such evidence would be admissible.

Conclusion. The judgment on the charge of receiving stolen property is reversed, and the verdict is set aside.

So ordered.

      The motion to suppress evidence, and a companion motion to suppress statements, addressed numerous issues; we discuss only those facts relevant to the issues on appeal.

      For this reason, the Commonwealth gains nothing from its reliance on Commonwealth v. Lopes, 455 Mass. 147, 160 (2009) (after ordering driver out of car based on reason to believe he was armed and dangerous, police could themselves retrieve driver's identification from inside car).

      The judge's decision also stated that the defendant "indicated where her identification was" and "did not object" to the trooper retrieving it, citing Commonwealth v. Voisine, 414 Mass. 772, 783 (1993). To the extent that this constituted an implicit finding or ruling that the defendant had voluntarily consented to the search of her purse, it was error. In Voisine, a tenant "testified that she knew that she did not have to let the police into her apartment, but chose to do so anyway," and it was immaterial that she "communicated her consent by pointing in the direction of the bedroom where the defendant was hiding, rather than by speaking." Ibid. Here, in contrast, the defendant told the trooper that her ID was in her purse in the sedan and that she would go get it, at which point the trooper informed her that he would do so himself. There was no expression of consent, but at most, "mere 'acquiescence to a claim of lawful authority,' " which is insufficient. Ibid., quoting from Commonwealth v. Walker, 370 Mass. 548, 555, cert. denied, 429 U.S. 943 (1976).

      A copy of the State police vehicle inventory procedures was also admitted at the hearing.

      We also cannot accept the judge's conclusion, that the trooper's second search of the purse just before he placed it in his cruiser, was a lawful search incident to arrest. As an initial matter, it was not inevitable that the trooper would have performed that second search had he not observed multiple IDs during his first, impermissible search. In any event, under G. L. c. 276, § 1, the trooper could conduct a search incident to arrest "only (1) for the purpose of seizing evidence of the crime for which the arrest has been made in order to prevent its destruction or concealment or (2) for the purpose of removing any weapon the person arrested might use to resist arrest or to escape." Commonwealth v. Blevines, 438 Mass. 604, 607 (2003), quoting from Commonwealth v. Wilson, 389 Mass. 115, 118 (1983). Evidence found in a search exceeding those parameters is inadmissible. Commonwealth v. Madera, 402 Mass. 156, 159 (1988). There was no reason to believe that the purse contained any evidence of the assault and battery, nor would the defendant, who was already in a separate cruiser, have been able to use any weapon that might be in the purse to resist arrest or to escape.

      Although this makes it unnecessary to reach the defendant's separate argument that her statements at the scene should have been suppressed as the product of a custodial interrogation without benefit of Miranda warnings, we see no merit in that argument. Under the factors set forth in Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001), the defendant was not in custody at the time. See Commonwealth v. Cawthron, 479 Mass. 612, 617-618 (2018).

      Because the prejudicial effect of the tainted fake ID evidence requires a reversal of the conviction, we do not address the Commonwealth's argument that the admission of other evidence found in the purse -- receipts and gift cards -- was harmless because it was cumulative of similar evidence lawfully found elsewhere in the sedan. The record appears insufficient to determine how much of this evidence was found in the purse versus elsewhere, and thus we cannot determine whether it was cumulative.

      At oral argument, the defendant acknowledged that her objection was not to the investigator's expert testimony about how return-without-receipt theft schemes work, but only to his fact testimony tying the evidence in this case to the existence of such a scheme.


text:
    COMMONWEALTH v. Manuel TORRES-PAGAN.
    17-P-1248
    Appeals Court of Massachusetts.
    Entered: August 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from an order of a District Court judge suppressing the fruits of a patfrisk of the defendant, Manuel Torres-Pagan. Concluding that the defendant's exiting the motor vehicle without being asked to do so and then looking repeatedly into the front seat area provided the police officer with reasonable suspicion to issue an exit order and conduct a patfrisk, we reverse and remand for further proceedings to consider the defendant's other ground for suppression.

In reviewing a decision on a motion to suppress, we adopt the subsidiary findings of fact of the motion judge, "which we accept absent clear error, reserving for independent review his ultimate findings and his conclusions of law." Commonwealth v. Charley, 91 Mass. App. Ct. 223, 224 (2017). See Commonwealth v. Anderson, 461 Mass. 616, 619 (2012). Among other reasons, "an officer is justified in issuing an exit order to a driver or a passenger when 'a reasonably prudent [person] in the [police officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger.' " Commonwealth v. Meneide, 89 Mass. App. Ct. 448, 452 (2016), quoting from Commonwealth v. Gonsalves, 429 Mass. 658, 661 (1999). "[I]t does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns." Commonwealth v. Robinson, 83 Mass. App. Ct. 419, 428 (2013), quoting from Gonsalves, 429 Mass. at 664. See Commonwealth v. Rosado, 84 Mass. App. Ct. 208, 213 (2013), quoting from Commonwealth v. Robbins, 407 Mass. 147, 152 (1990) ("The police are 'not required to gamble with their personal safety' "). "Where an officer has issued an exit order based on safety concerns, the officer may conduct a reasonable search for weapons in the absence of probable cause to arrest." Commonwealth v. Amado, 474 Mass. 147, 152 (2016).

Here, the defendant exited his motor vehicle without being asked to do so and only once the officers approached. This by itself was an indicator of danger. See Commonwealth v. Douglas, 472 Mass. 439, 446 (2015) (defendant's "getting out of the vehicle unasked" was factor suggesting defendant "was attempting to conceal a weapon, either on his person or in the vehicle"). Then, in the short time of the officers' approach, he turned to "look[ ] back into the front seat area" on "more than one occasion." This provided the officer with reason to suspect the presence of contraband within the defendant's wingspan. That the contraband could have been narcotics as easily as it could have been a weapon is of no moment for reasonable suspicion purposes. "The officer was not required to know the exact nature of the object being concealed in order to have an objectively reasonable concern for his safety." Meneide, 89 Mass. App. Ct. at 452. See Commonwealth v. Goewey, 452 Mass. 399, 409 (2008) (possibility that defendant's actions have innocent explanation does not negate reasonable suspicion).

Furthermore, because this was a motor vehicle stop for a cracked windshield and absence of an inspection sticker, "the defendant here was being detained for traffic violations and it was therefore likely that he would soon return to his car." Commonwealth v. Haynes, 83 Mass. App. Ct. 903, 905 (2013). Accordingly, it was necessary for the officer to dispel the possibility of a weapon before allowing the defendant to reenter his motor vehicle. See id. at 905-906. Finally, the stop occurred in an area in which the officer "had made a number of arrests ... for firearms violations" and "personally had recovered over thirty firearms." See Commonwealth v. Young, 78 Mass. App. Ct. 548, 555 (2011) (high crime area contributes to reasonable suspicion). Accordingly, the motion judge erred in allowing the motion to suppress on the ground that the officers lacked reasonable suspicion to pat frisk the defendant.

The motion judge had no occasion to rule on the defendant's other ground for suppression, that the defendant was exposed to custodial interrogation without being provided with his Miranda rights. Accordingly, we are without the benefit of the motion judge's analysis or factual findings specifically addressing this issue. We entrust the resolution of this issue to the motion judge on remand.

The order allowing the motion to suppress is reversed, and the matter is remanded for further proceedings consistent with this memorandum and order.

      It is true, as the defendant contends, that where an exit order is properly issued for a reason other than a reasonable suspicion of danger -- for example, because of suspicion of criminal activity, a patfrisk must be justified by reasonable suspicion that the defendant was armed and dangerous. See, e.g., Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 616 (2011). Here, however, the exit order was justified only by a reasonable suspicion of danger, and thus "[t]he standard for a patfrisk is the same as the standard required to justify an order to the occupants of a vehicle stopped for traffic violations to leave the vehicle." Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 269 (2010), quoting from Commonwealth v. Torres, 443 Mass. 669, 676 (2001).

      The defendant makes no argument, on appeal or at the motion hearing, that the use of handcuffs invalidated the patfrisk. See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556 (2015), quoting from Commonwealth v. Williams, 422 Mass. 111, 117 (1996) (" 'An officer is entitled to take reasonable steps to ensure his safety. Such steps do not automatically turn a stop into an arrest.' The use of handcuffs is also not dispositive") (citation omitted). The defendant, however, has fully preserved his argument that use of handcuffs is a factor that would support a finding of custodial interrogation.


text:
    COMMONWEALTH v. Hector PINEIRO.
    17-P-409
    Appeals Court of Massachusetts.
    Entered: August 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Hector Pineiro, pleaded guilty in Superior Court to multiple crimes of violence, unlawful firearm possession, and drug distribution, including armed assault with the intent to murder. The plea judge imposed a probationary sentence on the defendant requiring global positioning system (GPS) monitoring and prohibiting "gang affiliation," possession of drugs or firearms, and violations of the criminal law. The defendant now appeals the revocation of his probation for violating those conditions. Concluding the conditions were constitutional and that there was adequate evidence of the violations, we affirm.

1. Validity of probation condition requiring no gang affiliation. We uphold "conditions of probation that affect First Amendment [to the United States Constitution] rights so long as they are 'reasonably related to a valid probation purpose,' " Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 153 (2018), quoting from Commonwealth v. Power, 420 Mass. 410, 417 (1995), including deterrence, public safety, and rehabilitation. See Commonwealth v. Ericson, 85 Mass. App. Ct. 326, 338 (2014). "These goals are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime," Commonwealth v. Riz, 90 Mass. App. Ct. 10, 12 (2016), quoting from Commonwealth v. Pike, 428 Mass. 393, 403 (1998), and judges have "significant latitude" in placing a defendant on probation and imposing reasonable conditions. Pereira, supra, quoting from Commonwealth v. Rousseau, 465 Mass. 372, 389-390 (2013).

The defendant in this case was convicted of violent crimes involving illegal firearms and drug-dealing -- both hallmarks of gang-related street crime. See Commonwealth v. Mitchell, 468 Mass. 417, 426-427 (2014) (criminal street organizations marked by violence related to supply of illegal drugs and firearms); Commonwealth v. Lopes, 478 Mass. 593, 604 (2018), citing Commonwealth v. Swafford, 441 Mass. 329, 332 (2004) (allowing evidence of gang affiliation to establish defendants' retributive motive in murder conviction). Because gang involvement would likely involve substantial temptations to commit the sorts of crimes for which the defendant had been placed on probation, the plea judge "could reasonably conclude" that avoiding gang affiliation would "improve the defendant's chances of dealing successfully with his problems." Commonwealth v. Williams, 60 Mass. App. Ct. 331, 332-333 (2004). Specifically, the condition would deter the defendant from further involvement in similar offenses, prevent harm to potential victims, and direct the defendant away from criminal influences. See Ericson, 85 Mass. App. Ct. at 339 ("judge reasonably could have concluded that imposition of the [condition] was properly related to the probationary goals of protection of the public and deterrence"). The condition, therefore, was reasonable under the circumstances and within the plea judge's discretion.

The order provided reasonable guidance to what activities were prohibited, see Riz, 90 Mass. App. Ct. at 13, based on the common understanding of the term "gang affiliation." A probation condition is valid if it provides "an imprecise but comprehensible normative standard so that [people] of common intelligence will know its meaning." Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006), quoting from Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). A person of common intelligence would understand that a prohibition on gang affiliation directed the defendant not to affirmatively associate himself as a member or supporter of a criminal street gang. Cf. Black's Law Dictionary 70 (10th ed. 2014) (defining "affiliation" as "[t]he connection or involvement that someone ... has with a[n] ... organization"). This would not prohibit the defendant from interacting or living in proximity with gang members so long as the defendant's involvement was passive, and he did not affirm his association with the gang by participating in gang activities or otherwise expressing his loyalty to the gang. As a result, the condition here was not overbroad, and the defendant received "fair warning" of what would violate the condition prohibiting "gang affiliation." See Kendrick, supra.

2. Adequacy of evidence of probation violations. "A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). The question is whether the defendant "more likely than not violated the conditions of his probation," Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013), and it is "the exclusive province of the hearing judge to assess the weight of the evidence." Bukin, supra at 521.

In this case, there was adequate evidence to find the defendant violated his conditions on multiple occasions. See Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 744 (2012). A police officer identified the defendant in the Providence Street Gang's "diss video" on YouTube intended to insult and threaten a rival street gang. We have viewed the video, and the probation violation judge (hereinafter, judge) was justified in finding that the defendant's participation in the video was an affirmative act of affiliating himself with the Providence Street Gang. See Commonwealth v. Foster, 77 Mass. App. Ct. 444, 451 (2010) ("In light of all the evidence, including ... testimony and the police reports, the judge was warranted in finding ... that the defendant had violated the terms of his probation").

The judge also was warranted in finding that the defendant, while driving his motor vehicle, shot at another motor vehicle in January, 2016. Although the eyewitness could not identify the defendant, he did identity the motor vehicle used, and two officers identified the motor vehicle as the defendant's. GPS data, moreover, placed the defendant at the scene at the time of the shooting. From this evidence, the judge could find that the defendant was the shooter. See Commonwealth v. Coates, 89 Mass. App. Ct. 728, 732 (2016) (identity may be proved by circumstantial evidence).

Regarding the February, 2016, incident, a police sergeant testified that the defendant physically resisted apprehension in his home. Once the defendant was restrained, the sergeant observed a firearm and cocaine in the defendant's home. The judge could credit this testimony and find that the defendant unlawfully possessed the contraband. See Foster, 77 Mass. App. Ct. at 450. Indeed, regarding this incident, the defendant challenges only the evidence supporting the judge's finding that the defendant was leaving his home at the beginning of this incident. Whether or not the defendant was leaving, the judge's finding of a violation of probation was well supported by the evidence.

3. Use of GPS evidence. We have previously decided that no search in the constitutional sense occurs when the police obtain historical GPS location data concerning a probationer subject to GPS surveillance as a condition of probation. See Commonwealth v. Johnson, 91 Mass. App. Ct. 296, 307 (2017). The defendant here signed the probation order and a GPS data disclosure form acknowledging that his physical location as determined by GPS could "be shared with ... law enforcement" and that his GPS data was "not private and confidential." See ibid. ("[O]nce the defendant consented to the pretrial release condition of the GPS monitoring, it is not reasonable to conclude that he could control or limit how that GPS data would be used, including for a law enforcement purpose"). Accordingly, the judge properly admitted and considered the defendant's GPS location data in determining whether he violated the conditions of his probation.

Order revoking probation and imposing sentence affirmed.

      For example, a reasonable person would not take "affiliation" with a political party to encompass a person knowing or living with anyone registered to that particular party. It would, however, encompass donating, attending rallies or showing public support, or campaigning on its behalf.

      The defendant presents no argument that the judge erred in finding that the defendant possessed numerous items of contraband in October, 2015. In any event, the evidence supported this finding.


text:
    COMMONWEALTH v. George N. MAROSKOS.
    17-P-1475
    Appeals Court of Massachusetts.
    Entered: August 21, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On February 14, 2013, the defendant, George N. Maroskos, was convicted of misleading a police officer with the intent to obstruct a criminal investigation, in violation of G. L. c. 268, § 13B. The defendant filed a motion for new trial arguing that his conviction must be reversed because of a recently decided Supreme Judicial Court decision, Commonwealth v. Paquette, 475 Mass. 793 (2016). The defendant asserted that Paquette established new requirements for a conviction under § 13B, and, based on those requirements, there was insufficient evidence to convict him. The defendant's motion was denied. The defendant appealed, arguing that the judge abused his discretion. We affirm.

Discussion. A judge may grant a new trial "at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). We review a judge's ruling on a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The judge denied the defendant's motion for new trial because the judge remained convinced that the elements of the crime, as defined in § 13B and further explained in Paquette, were met.

The defendant argues on appeal that (1) the Paquette decision created new law, and, thus, applies retroactively to the defendant; and (2) there was insufficient evidence to support a finding that the defendant "misled" the police as that term is interpreted in Paquette. "[W]here a conviction is final, and the defendant is proceeding with a collateral challenge, new criminal rules should not be applied retroactively unless they fall within either of two very limited exceptions." Commonwealth v. Sullivan, 425 Mass. 449, 454 (1997) (citation and quotation omitted). We conclude that the Paquette decision does not fall within one of the limited exceptions. In fact, the Paquette decision merely "clarif[ies] ... the meaning of 'misleads' as it appears in § 13B," and cites with approval Commonwealth v. Fortuna, 80 Mass. App. Ct. 45 (2011), and Commonwealth v. Morse, 468 Mass. 360 (2014), both of which were published prior to the final disposition of the defendant's case. Paquette, supra at 800. Even if we were to apply the rationale in Paquette to the defendant's case, we would nevertheless conclude that the judge did not abuse his discretion in finding that there was sufficient evidence to prove that the elements of the crime were met.

Order denying motion for new trial affirmed.

      "The first exception applies if the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law ... to proscribe.... The second exception [is] that a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty, limited, however, to those new procedures [of fundamental fairness] without which the likelihood of an accurate conviction is seriously diminished." Sullivan, supra at 454 n.9 (citations and quotations omitted).

      This court affirmed the defendant's conviction in his direct appeal on August 12, 2015, 87 Mass. App. Ct. 1139, and the Supreme Judicial Court denied the defendant's application for further appellate review on October 2, 2015, 473 Mass. 1102.

      In considering this claim, we examined the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).