author: BUDD, J.

text:
    COMMONWEALTH v. Mario CRUZADO.
    SJC-11670
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 11, 2018. Decided August 10, 2018.
    Ruth Greenberg, Swampscott, for the defendant.
    Colby M. Tilley, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   BUDD, J.

On November 26, 2010, the day after Thanksgiving, Frederick Allen, III, was found dead in his home. The defendant, Mario Cruzado, was convicted of murder in the first degree in connection with the killing. In this consolidated appeal from the judgment of conviction and from the denial of his motion for a new trial, the defendant argues that errors committed by his counsel and by the judge require a reversal of his conviction. Upon review, we affirm and decline to reduce or set aside his conviction under G. L. c. 278, § 33E.

Background. We summarize the facts the jury could have found, reserving certain details for discussions of the issues.

On the day before Thanksgiving in 2010, the victim's boy friend, Jaime Hernandez, encountered the defendant, a former acquaintance, and brought him to the victim's apartment in Chelsea. The three spent time drinking; later that morning, Hernandez left the defendant at a bus stop. When Hernandez returned to the victim's apartment, he argued with the victim over the whereabouts of the victim's cellular telephone (cell phone). As a result, Hernandez left the apartment and did not return. Two days later, the victim's body was discovered. An autopsy revealed that the cause of death was strangulation and blunt force trauma to his head.

Eleven days later, Hernandez reported to police that he had twice encountered the defendant, and that each time the defendant had made incriminating statements about the victim's death. During the first encounter, Hernandez reported that when Hernandez refused to give the defendant a cigarette, the defendant threatened to choke Hernandez like he had choked the victim. The second incident occurred the next day, when Hernandez overheard the defendant, who was in an apartment building speaking on a cell phone. In a blend of Spanish and English, the defendant used the word "belt" and "mentioned ... ha[ving] his arm around somebody's neck."

Hilda Matiaz, the defendant's former girl friend, told investigators that the defendant telephoned her and told her the following. The defendant visited an African-American man's apartment in Chelsea. The defendant showered, fell asleep, and woke to the man touching the defendant's testicles. The defendant fought the man and said he was "not a fag[g]ot." The defendant put the man in a headlock, and the man fell to the floor. The defendant then put on his clothes and left the apartment.

Discussion. The defendant contends that several errors require reversal. First, he challenges the trial judge's admission of portions of a video recording of an interview between police and the defendant. Second, he claims it was error for the judge to allow Hernandez to testify regarding the argument that Hernandez had with the victim. Third, he contends that he was improperly precluded from questioning Matiaz about whether she was a drug dealer. Fourth, he appeals from the denial of his motion for a new trial on the ground that his counsel was constitutionally ineffective for failing to file a motion to suppress. Finally, he asks this court to reverse his conviction or reduce his verdict pursuant to G. L. c. 278, § 33E, on the ground that the Commonwealth presented no physical evidence of his guilt. We address each claim in turn.

1. Defendant's recorded police interview. The defendant argues that portions of a recorded police interview were admitted in error. In portions of the video recording played for the jury, State police troopers asked the defendant whether he knew the victim. When asked whether the defendant knew the victim by either of his nicknames, the defendant responded, "No." Later, after the police showed a photograph of the victim to the defendant, the defendant and the troopers had the following exchange:

Q.: "I'm going to show you a picture of a guy. See if you've ever seen this guy before."
A.: "Who's that?"
Q.: "I'm asking you. Isn't this -- I'm asking you. Have you ever seen this guy before? Yes or no?"
A.: "Who the fuck is that? Just a guy?"
Q.: "No, listen to me. Listen to me. Have you ever seen this guy before? Yes or no?"
A.: "He looks like a nigger to me."
Q.: "Have you ever seen this guy before?"
A.: "He looks like a nigger to me."
Q.: "Have you ever seen this guy right here before?"
A.: "He looks like a nigger to me. No. He's black."
Q.: "No. It's a yes or no question."
A.: "He's black."
...
Q.: "Yes or no?"
A.: "Where the fuck I've ever seen him? I don't know that mother fucker."

Although an opposing party's statements are generally admissible against him or her, see Commonwealth v. Spencer, 465 Mass. 32, 46, 987 N.E.2d 205 (2013) ; Mass. G. Evid. § 801(d)(2)(A) (2018), the defendant contends that admission of these portions of the videotaped interview was error. We disagree.

a. Defendant's denials. "It is well established ... that if the extrajudicial statement by a criminal defendant is an unequivocal denial of an accusation, it, and the accusation it denies, are inadmissible." Spencer, 465 Mass. at 46, 987 N.E.2d 205. The defendant argues that, for this reason, portions of the video recording in which he denied knowing the victim were inadmissible.

However, the questions regarding the defendant's familiarity with the victim were not accusations of guilt; that is, the question whether the defendant knew the victim was not directly tied to the defendant's culpability. Compare Commonwealth v. Womack, 457 Mass. 268, 272, 929 N.E.2d 943 (2010) (defendant's responses to assertions that defendant committed crime improperly admitted at trial). Because the questions investigators posed regarding whether he recognized or knew the victim did not accuse him of criminal activity, the defendant's statements denying that he knew the victim were properly admitted.

b. Evidence of racial animus. The defendant also challenges the admission of portions of the interview in which he refers to the victim as "a nigger," arguing that the reference was irrelevant and unduly prejudicial. Again, we discern no error.

Although the prosecution is not permitted to introduce evidence of a defendant's bad character to show his or her "propensity to commit the crime charged, ... such evidence may be admissible if relevant for some other purpose," including motive. Commonwealth v. Howard, 469 Mass. 721, 738, 16 N.E.3d 1054 (2014), quoting Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986).

The defendant was accused of killing a gay African-American man. The Commonwealth offered the evidence to show the defendant's animus toward African-Americans, and thus as a partial motive for the killing. See Commonwealth v. Bishop, 461 Mass. 586, 596-597, 963 N.E.2d 88 (2012) (statement suggesting racial animus properly admitted to show motive). See also Commonwealth v. Carlson, 448 Mass. 501, 508-509, 862 N.E.2d 363 (2007) (although motive is not essential element of murder in first degree, evidence of motive may be relevant to malice or intent). Concluding that "the Commonwealth is entitled to elicit the fact that [the defendant] could have been enraged, not just because he was allegedly touched by this gay man, but he was allegedly touched by an African-American man," the judge did not abuse her discretion in determining that the probative value of the evidence outweighed its prejudicial effect. See Spencer, 465 Mass. at 52, 987 N.E.2d 205 (weighing of prejudice and probative value left to discretion of trial judge).

To mitigate the prejudicial effect of the racial slur, moreover, the judge conducted an individual voir dire of potential jurors to eliminate potential bias. See Commonwealth v. Alleyne, 474 Mass. 771, 780, 54 N.E.3d 471 (2016) (discussing use of voir dire to mitigate prejudice); Commonwealth v. De La Cruz, 405 Mass. 269, 274, 540 N.E.2d 168 (1989) ("when requested, we encourage individual voir dire as to possible juror prejudice based on ethnic considerations"). Although the judge did not provide a limiting instruction, the defendant did not request one. "[T]here is no requirement that the judge give limiting instructions sua sponte." Commonwealth v. Sullivan, 436 Mass. 799, 809, 768 N.E.2d 529 (2002). "Nor does the lack of a limiting instruction necessarily create a substantial likelihood of a miscarriage of justice." Id. See Bishop, 461 Mass. at 596-597, 963 N.E.2d 88 (no abuse of discretion despite lack of limiting instruction on use of word "nigger"). ,

2. Admission of argument between Hernandez and victim. The Commonwealth elicited testimony from Hernandez regarding an argument Hernandez had with the victim over the whereabouts of the victim's cell phone after the defendant left. Hernandez testified that when he denied having stolen the cell phone, the victim concluded that the defendant had stolen it. Hernandez further testified that, after the argument, Hernandez left the victim's apartment and did not return. The defendant claimed at trial, and again on appeal, that the testimony, which supported Hernandez's alibi, was hearsay. We disagree.

An out-of-court statement not offered for its truth is not hearsay. See Commonwealth v. Jenkins, 458 Mass. 791, 793, 941 N.E.2d 56 (2011) ; Commonwealth v. Silanskas, 433 Mass. 678, 693, 746 N.E.2d 445 (2001). Hernandez's testimony about the argument was not offered to prove that the defendant stole the victim's cell phone but, rather, to show that Hernandez and the victim argued, that Hernandez subsequently left, and why he did not return. See Commonwealth v. Perkins, 450 Mass. 834, 844, 883 N.E.2d 230 (2008). See also Commonwealth v. Keown, 478 Mass. 232, 246, 84 N.E.3d 820 (2017), cert. denied, --- U.S. ----, 138 S.Ct. 1038, 200 L.Ed.2d 292 (2018) ; Commonwealth v. Brown, 474 Mass. 576, 587, 52 N.E.3d 137 (2016). To ensure that the jury did not use Hernandez's statements to prove the truth of what they asserted, the judge instructed the jury on the matter. See Commonwealth v. Santana, 477 Mass. 610, 622, 82 N.E.3d 986 (2017). She told the jury that the Commonwealth was not alleging that the defendant stole the cell phone in question, and that they should not consider it for that purpose. There was no error. See id.

3. Matiaz's cross-examination. Although the defendant claimed that he did not know the victim and that he had never been to the victim's home, the Commonwealth presented evidence that, on November 24, 2010, five calls were made from the victim's landline telephone to Matiaz, who was known to the defendant but not to the victim. In an attempt to advance the theory that it was in fact the victim who called Matiaz because he was seeking illegal drugs, defense counsel sought to question Matiaz regarding whether she was a drug dealer. The trial judge disallowed that line of questioning. The defendant claims on appeal that he was improperly precluded from advancing a viable defense. The judge did not err.

A defendant has a right to cross-examine witnesses who testify against him or her, but that right has limits. Commonwealth v. Johnson, 431 Mass. 535, 540, 728 N.E.2d 281 (2000). Those limits include the requirement that the questions have a legitimate basis in evidence. Id. See Mass. R. Prof. C. 3.4 (e) (1), as appearing in 471 Mass. 1425 (2015) ("A lawyer shall not ... state or allude to any matter that the lawyer does not reasonably believe ... will not be supported by admissible evidence ..."). Accord Commonwealth v. Hart, 455 Mass. 230, 240, 914 N.E.2d 904 (2009). The judge did not abuse her discretion by disallowing any reference to the defense's theory that Matiaz was a drug dealer on the grounds that it was speculative and without evidentiary support. The defendant made no proffer that there was any relationship between Matiaz and the victim. Further, the only support for the defense theory that Matiaz was a cocaine dealer was that she had been arrested for possessing heroin three years prior to the killing. There is no logical connection between a 2007 arrest for possession of heroin and the defense theory that, years later, Matiaz was known to the victim as a cocaine dealer. There was no error.

4. Ineffective assistance of counsel. Thirteen days after the killing, Hernandez informed police of incriminating statements that the defendant made while speaking to a person later identified as Matiaz. Hernandez directed police to a nearby apartment building, where they found the defendant asleep on a landing; a cell phone was on the floor approximately one foot away from him. During questioning at the station, the defendant claimed that a "crack head" had given the cell phone to him to use a day prior, but that he did not know the owner's name or the telephone number. When confronted with the cell phone, although he twice claimed it was not his, he also said that the "dude" left it, responding "no" when police asked whether the defendant was supposed to return the cell phone. Ten days later, police sought and received a warrant to search the cell phone, which led police to contact Matiaz.

The defendant now claims that his trial counsel was ineffective for failing to move to suppress the cell phone and its contents. In cases of murder in the first degree, in order to prevail on a claim of ineffective assistance of counsel due to a failure to move to suppress evidence, the defendant must demonstrate both that the motion would have been successful and that counsel's failure to make the motion created a substantial likelihood of a miscarriage of justice. Commonwealth v. Williams, 453 Mass. 203, 207, 900 N.E.2d 871 (2009), citing Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). The defendant contends that police seized the cell phone without probable cause and waited an unreasonable amount of time before applying for and obtaining a warrant to search its contents, and that thus a motion to suppress would have been successful. We disagree.

First, we note that, although the cell phone did not belong to the defendant, he had a possessory interest in it; thus, he would have had standing to contest its seizure. See Commonwealth v. Fulgiam, 477 Mass. 20, 35-36, 73 N.E.3d 798, cert. denied, --- U.S. ----, 138 S.Ct. 330, 199 L.Ed.2d 221 (2017) (possessory interest established standing to challenge search of cell phone even though defendant did not own cell phone searched). Indeed, a critical part of the Commonwealth's theory of the case was that the cell phone was the defendant's. See id. at 36, 73 N.E.3d 798. However, although the defendant had standing to challenge the seizure of the cell phone, any such challenge would have failed, as police had probable cause to seize the cell phone and exigent circumstances existed to do so without a warrant. See Commonwealth v. White, 475 Mass. 583, 588, 59 N.E.3d 369 (2016).

When the police encountered the defendant sleeping in the stairwell with the cell phone on the floor near his head, they had information that the defendant and victim had been together on the day of the murder, and also that Hernandez had recently overheard the defendant confessing to the murder to an unidentified person on a cell phone. This provided ample probable cause to believe that the cell phone located near the defendant would contain evidence of the crime. See Commonwealth v. Kaupp, 453 Mass. 102, 105-106, 899 N.E.2d 809 (2009).

Further, exigent circumstances supported the warrantless seizure: the risk of someone taking or tampering with the cell phone. Left unattended, especially in an area to which many people had access, the cell phone would have been at risk of "theft or vandalism." See Commonwealth v. Daley, 423 Mass. 747, 750, 672 N.E.2d 101 (1996) (discussing impoundment of vehicles). "With probable cause, the police may seize property 'to prevent destruction or removal of evidence' " before obtaining a search warrant. Commonwealth v. Gentile, 437 Mass. 569, 573, 773 N.E.2d 428 (2002), quoting Commonwealth v. Taylor, 426 Mass. 189, 195, 687 N.E.2d 631 (1997).

See Riley v. California, --- U.S. ----, 134 S.Ct. 2473, 2486, 189 L.Ed.2d 430 (2014) (discussing risk of data being deleted from cell phone); Kaupp, 453 Mass. at 106, 899 N.E.2d 809.

Given the defendant's possessory interest in the cell phone, we next consider the reasonableness of the ten-day delay from the police's seizure of the cell phone to their application for a warrant to search it.

Although police are permitted to hold a seized item for "the relatively short period of time needed ... to obtain a search warrant," they must "release the item if a warrant is not obtained within that period." White, 475 Mass. at 593, 59 N.E.3d 369, quoting Gentile, 437 Mass. at 573, 773 N.E.2d 428. We have said that there is no bright-line rule that demarcates when a delay is unreasonable. White, supra. Instead, we analyze each case by its own facts, "balanc[ing] the nature and quality of the intrusion on the individual's [interests under the Fourth Amendment to the United States Constitution] against the importance of the government interests alleged to justify the intrusion." Id. at 593-594, 59 N.E.3d 369, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

Here, the defendant's minimal possessory interest was far outweighed by the government's interest in obtaining evidence regarding a recent murder. Although the defendant claimed to be using the cell phone, he admitted that he had only had it for a day. Moreover, he was unaware of the identity of its actual owner, or even of its number, and he repeatedly told police that the cell phone was not his. Critically, police likely would not have been able to return the cell phone to the defendant even if he had requested it: they would not have been able to ascertain that the cell phone belonged to the defendant, as he stated that he had received it from a male "crack head" and the cell phone had the name "Vanessa" displayed on it. Whatever possessory interest the defendant had in the cell phone was thus extremely weak, in contrast to that in White, upon which the defendant primarily relies. In that case, the defendant was the actual owner of the cell phone seized. White, 475 Mass. at 595 n.15, 59 N.E.3d 369.

The Commonwealth's interest in the cell phone, by contrast, was strong: police had probable cause to believe that evidence critical to a recent murder was present on the cell phone, as discussed supra. There can be no doubt that there is a "strong government interest in solving crimes and bringing offenders to justice." United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). This interest is particularly strong "in the context of felonies or crimes involving a threat to public safety," such as murder. Id. Judged against the defendant's minimal possessory interest, the governmental interests justified a ten-day delay. See Kaupp, 453 Mass. at 106-107, 899 N.E.2d 809 (nine-day delay reasonable in investigation of child pornography). A motion to suppress the cell phone and its contents would have been unavailing; thus, the defendant's ineffective assistance claim fails.

5. Review under G. L. c. 278, § 33E. The defendant asks us to exercise our extraordinary power to set aside or reduce his verdict under G. L. c. 278, § 33E. His main argument is that it is "close to impossible" for the defendant to have spent so much time in the victim's apartment and yet "left not one trace." This is not a compelling reason to grant relief under § 33E. Defense counsel vigorously cross-examined witnesses regarding the lack of physical evidence, and focused on it in closing argument. The Commonwealth, by contrast, presented testimonial and documentary evidence that, although circumstantial, was found to be sufficient to convict the defendant. See Commonwealth v. Gonzalez, 475 Mass. 396, 407, 56 N.E.3d 1271 (2016) (circumstantial evidence alone may be sufficient to convict). "We do not sit as a second jury to pass anew on the question of the defendant's guilt." Commonwealth v. Watkins, 373 Mass. 849, 853, 370 N.E.2d 701 (1977). See Commonwealth v. Wood, 469 Mass. 266, 269, 14 N.E.3d 140 (2014) (declining to grant relief under G. L. c. 278, § 33E, despite "lack of forensic evidence tying either [defendant] to the crime scene"); Commonwealth v. Williams, 450 Mass. 645, 656, 880 N.E.2d 768 (2008) ("The lack of forensic evidence ... was argued to the jury ... and was for them to consider").

Judgment affirmed.

Order denying motion for a new trial affirmed.

      The judge inquired of each prospective juror: "The defendant is Hispanic; the alleged victim was African-American. You'll also hear evidence that the defendant allegedly referred to the alleged victim as a nigger. Do you have any feelings, based on race, that might affect your ability to be fair and impartial?"

      The defendant's argument that the admission of the word "nigger" as evidence of racial animus violated his due process rights is unavailing, as the word came from his own mouth several times.

      Because the evidence was properly admitted, it was also proper for the prosecutor to comment on it in closing argument. Prosecutors may argue "based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516, 505 N.E.2d 519 (1987).

      The telephone calls were made between 5:57 p.m. and 6:44 p.m. , providing strong circumstantial evidence that the defendant returned to the victim's apartment on the evening of the victim's death, after Hernandez had left for the last time.

      The defendant's related claim that it was a violation of due process for the prosecutor to exploit the absence of evidence that was excluded at her request is also unavailing. The line of questioning prohibited was that Matiaz was a drug dealer. The prosecutor argued only that Matiaz knew neither the victim nor Hernandez; she did not address the question whether Matiaz was a drug dealer. The argument was proper.

      The defendant unsuccessfully made the same claim in a motion for a new trial.

      The defendant claims, incorrectly, that the charges against him grant him automatic standing. Our case law provides for automatic standing from criminal charges where possession of the thing seized is an essential element of the crime charged. Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). Possession is not an element of murder in the first degree. See Commonwealth v. Lodge, 431 Mass. 461, 474, 727 N.E.2d 1194 (2000).

      Contrary to the Commonwealth's argument, it is not at all clear that the defendant intended to abandon the cell phone at the police station.

      We have said that whether police acted diligently in applying for the warrant is a factor that may be relevant. See Commonwealth v. White, 475 Mass. 583, 594, 59 N.E.3d 369 (2016). However, we have never said that it is a dispositive factor. Here, the record is silent as to police work on applying for the warrant in the ten days in question.

      The cell phone was later determined to belong to a woman named "Vanessa," who had lost it. Indeed, the Commonwealth initially charged the defendant with receiving stolen property, dismissing the charge only when the defendant stipulated that the cell phone belonged to someone else.

      In response to a request by this court, the parties provided further briefing on the question whether defense counsel was ineffective for failing to request an instruction on provocation. In Commonwealth v. Pierce, 419 Mass. 28, 642 N.E.2d 579 (1994), we rejected a provocation instruction on facts nearly indistinguishable from these. Although the victim touching the defendant's testicles was offensive, "it was not the type of behavior that would provoke a reasonable person into a homicidal response." Id. at 32, 642 N.E.2d 579.


source: Caselaw Access Project

license: Public Domain

text:
    A JUVENILE v. COMMONWEALTH.
    SJC-12455
    Supreme Judicial Court of Massachusetts.
    August 13, 2018
    Melissa Allen Celli (Julianne Feliz-Kidd, Westport, also present) for the juvenile.
    Stephen C. Nadeau, Assistant District Attorney, for the Commonwealth.
    Afton M. Templin, North Attleboro, for Youth Advocacy Foundation of the Committee for Public Counsel Services & others, amici curiae, submitted a brief.
    RESCRIPT
    The petitioner, a juvenile, has been charged in a delinquency complaint with being an accessory to murder after the fact, in violation of G. L. c. 274, § 4, and with assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A. At the juvenile's arraignment, a Juvenile Court judge set bail at $50,000. A Superior Court judge subsequently denied the juvenile's petition for bail review, and the juvenile then filed a petition with a single justice of this court pursuant to G. L. c. 211, § 3. The single justice denied the petition, and the juvenile appeals. We affirm.
    Background. The juvenile has been in the permanent custody of the Department of Children and Families (department) since 2013. In October, 2016, he was charged in a delinquency complaint with vandalizing property, in violation of G. L. c. 266, § 126A, and assault and battery, in violation of G. L. c. 265, § 13A. After his arraignment on those charges, he was released to the custody of the department. He subsequently failed to appear for a compliance and election hearing scheduled for January, 2017, and a default warrant issued. The juvenile remained in default until October, 2017, when he was arrested in connection with the events that led to the current charges.
    In setting the juvenile's bail at $50,000, the Juvenile Court judge marked on the bail form that the reasons for doing so were the nature and circumstances of the offenses charged; the potential penalty the juvenile faces; and the juvenile's family ties, record of flight to avoid prosecution, failure to appear at a court proceeding, and status of being on bail pending adjudication of a prior charge. The judge also included handwritten notes in the section for "Findings of fact for bail amount higher than what juvenile/defendant may afford," which appear to state that "[t]he Juvenile may be indicted. -- Victim murdered -- child in DCF and DYS custody -- been in warrant status since Jan. 18, 2017 -- Co-Defendant, stabbing -- fled with him + returned 4 murder weapon."
    The juvenile petitioned for a review of the bail determination in the Superior Court. A judge in that court denied the petition in a handwritten marginal note stating that "[t]he court has considered the defendant's lack of financial resources. However, given the fact that he is in the custody of DCF and has been a runaway for months, there is no reasonable alternative to assure the defendant's appearing in court other than setting a bail he cannot post. [ Brangan v. Commonwealth], 477 Mass. 691, 80 N.E.3d 949 (2017)."
    Discussion. The juvenile argues, among other things, that a judge making a bail determination for a juvenile in the department's custody must take into account the fact that the department does not post bail for such juveniles, and therefore bail in any amount will be more than the juvenile can pay and will result in pretrial detention. In his view, both judges who addressed the bail issue here -- the Juvenile Court judge in setting bail, and the Superior Court judge in denying the petition for bail review -- failed to do this and, as a result, violated his due process rights. In the particular circumstances presented here, and in particular on the record before us, we disagree.
    In our recent decision in Brangan v. Commonwealth, 477 Mass. 691, 80 N.E.3d 949 (2017), we addressed the extent to which a judge
    "must consider a criminal defendant's financial resources in setting bail, whether such a defendant is constitutionally entitled to an affordable bail, and the due process requirements that apply if the judge settles on a bail amount that is more than the defendant can pay, resulting in pretrial detention."
    Id. at 693, 80 N.E.3d 949. We concluded that although a judge must consider a defendant's ability to pay, the judge "is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant's ability to provide the necessary security for his appearance at trial." Id. In short, a judge may, in certain circumstances, set a bail that a defendant will be unable to post.
    If the judge does so, "the judge must provide findings of fact and a statement of reasons for the bail decision, either in writing or orally on the record," that explain not only "how the bail amount was calculated" but also why, "notwithstanding the fact that the bail amount will likely result in the defendant's detention, the defendant's risk of flight is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure his or her presence at future court proceedings." Id. at 707, 80 N.E.3d 949.
    In this case, when the Juvenile Court judge set bail at $50,000, the judge was, for all intents and purposes, issuing an order of detention, because the juvenile had no financial resources to post that amount of bail or, in fact, any amount of bail. There is no question, following our decision in Brangan, that where a bail determination is likely to lead to pretrial detention, a judge making that determination must consider alternative nonfinancial conditions and must make findings in connection with the decision. Those findings should demonstrate that a judge has engaged in fair and meaningful consideration of reasonable alternatives relevant to the circumstances of the case such that a reviewing court can be satisfied that the requirements detailed in Brangan have been met. As we indicated in Brangan, the findings can be written or oral so long as there is adequate indication, on the record, that due consideration has been given to nonfinancial alternatives. This holds true regardless of whether the bail determination pertains to a juvenile or adult defendant.
    There also is no question that when a juvenile (or a defendant) petitions this court pursuant to G. L. c. 211, § 3, seeking review of a bail determination (or for any other reason), it is the petitioner's burden to create a record substantiating his claim of error. See, e.g., Gorod v. Tabachnick, 428 Mass. 1001, 1001, 696 N.E.2d 547, cert. denied, 525 U.S. 1003, 119 S.Ct. 514, 142 L.Ed.2d 426 (1998), and cases cited (petitioner's burden to create record showing substantial claim of violation of substantive right). In this case, such a record might have included details regarding the bail hearing in the Juvenile Court (in the form of a transcript, an affidavit from counsel, or some other reliable source) that would show, as the juvenile claims, that reasonable nonfinancial conditions were not discussed or considered by the judges below. We do not have that. All we have in the record before us (and all that was before the single justice) are the bail form completed by the Juvenile Court judge and the Superior Court judge's handwritten notation in the margin of the petition for bail review.
    Although the details that the judges set forth as to what informed their respective decisions are scant, those details are enough, in the circumstances, to demonstrate that there was no abuse of discretion in setting the juvenile's bail. As is noted in the decisions, the juvenile was in default at the time of his arrest on the current charges; he had essentially fled from the department's custody and was a "runaway" at the time of his arrest; and, importantly, the Superior Court judge noted that there was no reasonable alternative to bail. The judges, in other words, recognized the very issues with which the juvenile is (and we are) concerned. We are satisfied that no due process violation has occurred in this instance.
    The juvenile also raises two additional issues regarding setting bail for a juvenile in the department's custody: first, that doing so violates a juvenile's equal protection rights; and second, that doing so involves both executive and judicial branches of government and thus violates the separation of powers principles set forth in art. 30 of the Massachusetts Declaration of Rights. As to the latter issue, the juvenile did not raise it before the single justice, and we therefore need not consider it. See Carvalho v. Commonwealth, 460 Mass. 1014, 1014, 954 N.E.2d 1127 (2011), and cases cited.
    As to the former issue, regarding equal protection, we find no merit to the juvenile's assertions. The juvenile argues that because the department does not post bail for juveniles in its custody (see note 2, supra ), a juvenile so situated is being treated differently from a juvenile in the custody of a parent, who, the argument goes, may have the ability to post bail for the juvenile. The argument misses the mark. The basis of a juvenile's inability to post bail makes no difference. A juvenile in the department's custody is no differently situated, for purposes of posting bail, from a juvenile whose parents cannot afford bail or, for that matter, an indigent adult defendant. The juvenile is not, in short, as he suggests, being penalized for not having a family.
    Conclusion. Where the bail determination was appropriately made and no violation of the juvenile's rights has been shown to have occurred, the single justice did not, on the basis of the record before him, err or abuse his discretion in denying the juvenile's G. L. c. 211, § 3, petition, seeking review of that determination.
    Judgment affirmed.

      We acknowledge the amicus brief submitted by the Committee for Public Counsel Services, Youth Advocacy Division and Children and Family Law Division.

      The juvenile states that the Department of Children and Families (department) does not post bail for juveniles in its custody. Although the juvenile has not provided any definitive support for this assertion, he has provided certain information that suggests this to be true (and the Commonwealth does not specifically disagree). At least for purposes of this appeal, we accept this to be true.

      We reiterate here a point that we made in Brangan v. Commonwealth, 477 Mass. 691, 707 n.19, 80 N.E.3d 949 (2017), regarding the use of the form captioned "Reasons for Ordering Bail, G. L. c. 276, § 58." The Juvenile Court form -- which lists several generic categories of reasons for the bail that a judge may check off -- may be useful in making the required findings, but "we caution that further elaboration of the findings may be prudent where the bail is likely to result in long-term detention," as would generally be the case with juveniles in the custody of the department. Id. We also take this opportunity to suggest that the Juvenile Court consider revising the form to better reflect the need for the consideration of alternative nonfinancial conditions.


text:
    Doroteo POLANCO v. Andras SANDOR.
    SJC-12389
    Supreme Judicial Court of Massachusetts.
    August 13, 2018
    Richard Sheehan, Haverhill, for the plaintiff.
    Allyson N. Hammerstedt, Cambridge, for the defendant.
    RESCRIPT
    The plaintiff, Doroteo Polanco, commenced this medical malpractice action pursuant to G. L. c. 231, § 60B, against the defendant, Andras Sandor, and two others. After a medical malpractice tribunal concluded that there was not evidence "sufficient to raise a legitimate question of liability appropriate for judicial inquiry," as required by the statute, Polanco filed a surety bond in the amount of $6,000 so that he could pursue his claim "through the usual judicial process." See G. L. c. 231, § 60B. Sandor filed a motion to strike the surety bond and to dismiss the complaint. A judge in the Superior Court allowed the motion to strike on the basis that a surety bond does not satisfy the statutory obligation to file "bond in the amount of [$6,000] in the aggregate secured by cash or its equivalent." G. L. c. 231, § 60B. The judge then reported his ruling on the issue to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and stayed the matter in the trial court. We transferred the case to this court on our own initiative.
    Pursuant to G. L. c. 231, § 60B, "[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth ... and an attorney authorized to practice law in the commonwealth." At the hearing, the plaintiff "shall present an offer of proof" and the tribunal "shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." Where, as here, the tribunal finds for the defendant, "the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of [$6,000] in the aggregate secured by cash or its equivalent," which will be "payable to the defendant ... for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment." The presiding judge may, in his or her discretion, increase the amount of the bond, or, if a determination is made that the plaintiff is indigent, the judge may reduce, but not eliminate all together, the amount of the bond. General Laws c. 231, § 60B, was enacted in 1975 to help "ensure the continued availability of medical malpractice insurance at a reasonable cost," and to do so by imposing a screening procedure and a bond requirement to "discourage frivolous medical malpractice claims." Paro v. Longwood Hosp., 373 Mass. 645, 647, 651, 369 N.E.2d 985 (1977). See, e.g., Faircloth v. DiLillo, 466 Mass. 120, 124, 993 N.E.2d 338 (2013) (discussing purpose of bond requirement). The Legislature's intent in enacting § 60B
    "was to discourage malpractice litigation that is inappropriate for judicial resolution either because the litigation is frivolous or because, even if the plaintiff is acting in good faith, his alleged injury is simply an 'unfortunate medical result' for which the defendant should not be held accountable."
    McLaughlin, A Look at the Massachusetts Malpractice Tribunal System, 3 Am. J.L. & Med. 197, 200 (1977).
    With that in mind, we turn to the question before us: whether a surety bond in the amount of $6,000 (which, as best we can tell from the record before us, Polanco obtained for $120) satisfied the requirement of the statute that a plaintiff wishing to proceed after a tribunal has found in favor of a defendant must file "bond in the amount of [$6,000] in the aggregate secured by cash or its equivalent." We conclude that it does not.
    Where an accepted purpose of the statute is to discourage a plaintiff from pressing forward with what a tribunal has determined to be unmeritorious claims, and where, to that end, the statute requires a bond in the amount of $6,000 in "cash or its equivalent," allowing a plaintiff to proceed after paying only a modest sum (here, $120) rather than the statutorily-prescribed $6,000 would not accomplish the statute's objective. Indeed, Polanco himself has failed to set forth any meaningful argument to support his position that using a surety bond is adequate. The argument section of his brief includes but one paragraph that states, in its entirety:
    "$6000 = $6000. A surety bond in the amount of $6000 is equivalent to $6000. The legislature chose to add the words 'or its equivalent' to the subject statute. The basic tenant [sic ] of statutory interpretation is simply to give the legislature[']s word[s] their ordinary meaning. Clearly the legislature contemplated an alternative to cash to satisfy the posting requirement under G. L. c. 231, [§] 60B. The purpose of G. L. c. 231, [§] 60B, is not punitive."
    That the Legislature contemplated an alternative to cash does not necessarily mean, however, that a surety bond will suffice, at least in the context presented here.
    Polanco's point-that a surety bond in the amount of $6,000 "is equivalent to $6000"-arguably might be accurate if one were to look at the statute solely from a defendant's perspective; should a plaintiff lose in the trial court (thus rendering the $6,000 available to the defendant for trial costs, including attorney's fees) it may not matter whether the defendant is compensated in cash or by a professional surety with a bond. Compensation is not the only objective of the statute, however, nor is it even the dominant objective. As our cases state, a principal purpose of the statute is to deter plaintiffs from going forward with unmeritorious claims. From that perspective, a $6,000 surety bond that cost a plaintiff $120 is certainly not equivalent to $6,000 because it does little to accomplish the Legislature's objective. Allowing a plaintiff to proceed on something quite less than $6,000 effectively ignores the deterrence intent of the statute.
    We do agree with Polanco on one point-that the purpose of the bond requirement is not punitive. The point is not to punish a plaintiff; the point is to discourage unmeritorious claims and to compensate a defendant for costs should the plaintiff's claims ultimately fail. That the bond requirement is not punitive does not, however, somehow render a surety bond equivalent to cash (and, again, Polanco has given us no legal argument to support his position).
    For the reasons set forth herein, we conclude that a surety bond in the face amount of $6,000 is not the "equivalent" of $6,000 in cash for purposes of G. L. c. 231, § 60B. The order of the Superior Court judge allowing the defendant's motion to strike the surety bond is therefore affirmed.

      According to the trial court docket, stipulations of dismissal have entered as to the plaintiff's claims against the two other defendants, Khaled A. Yehia and Hallmark Health System, Inc. They are not a part of this appeal.

      In addition to moving to strike the surety bond and dismiss the complaint, the defendant here also moved to increase the amount of the bond. The judge denied that part of the motion.

      We need not here decide what, specifically, constitutes the "equivalent" of cash-e.g., a certified check, a money order, personal property. We merely conclude that a surety bond does not.

      If the Legislature had intended a surety bond to suffice for purposes of G. L. c. 231, § 60B, it could easily have included language to that effect in the statute. Cf. Commonwealth v. Ray, 435 Mass. 249, 258, 755 N.E.2d 1259 (2001) (concluding, in criminal bail context, that under provision in G. L. c. 276, § 58, stating that defendant required to post cash bail "shall be allowed to provide an equivalent amount in a surety company bond," "a surety bond set at an amount ten times the amount of [the] cash bail is equal in effect to that cash bail").

   So ordered.


author: GREEN, C.J. SINGH, J. (dissenting).

text:
    Brian S. HICKEY & another v. ZONING BOARD OF APPEALS OF DENNIS
    No. 17-P-382
    Appeals Court of Massachusetts, Suffolk..
    Argued February 5, 2018. Decided June 15, 2018.
    John E. Bowen, Boston, for the plaintiffs.
    Jackie Cowin, Boston, for the defendant.
    Present: Green, C.J., Henry, & Singh, JJ.

      Mary P. Hickey.

   GREEN, C.J.

Section 17 of the Zoning Act, G. L. c. 40A, sets out the procedural requirements for a person aggrieved by a decision of a zoning board of appeals or special permit granting authority to seek judicial review "by bringing an action within twenty days after the decision has been filed in the office of the town clerk," and further specifies that "[n]otice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days." A judge of the Land Court allowed the defendant's motion for summary judgment, dismissing the plaintiffs' complaint, on the ground that the plaintiffs did not timely give the required notice to the town clerk. Because the undisputed facts in the summary judgment record establish that the town's assistant clerk had actual knowledge of the plaintiffs' complaint within the required time, we reverse the judgment. See Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 324-325, 588 N.E.2d 1365 (1992) ( Konover ).

Background. The following facts are established by the summary judgment record. The plaintiffs, Brian S. Hickey and Mary P. Hickey own land abutting the location of a proposed stairway leading to Cape Cod Bay. The Dennis building commissioner determined that the stairway would be a landscape feature not subject to the setback requirements set forth in the local zoning by-law, and not requiring a building permit.

The Hickeys unsuccessfully appealed from that decision to the defendant zoning board of appeals of Dennis (board). After voting unanimously to uphold the building commissioner's determination, the board filed its decision with the town clerk's office on April 14, 2016.

On April 20, 2016, the Hickeys timely filed their complaint appealing from the board's decision in the Land Court under G. L. c. 40A, § 17. On April 21, 2016, the Hickeys' counsel sent copies of the complaint by certified mail to each of the individual members of the board, addressed to their respective homes. On the same day, the Hickeys' counsel sent a package by certified mail addressed to "Chairman, Zoning Board of Appeals" at the Dennis town hall, which included copies of the same documents sent to the board members individually.

The chairman's packet was received at the Dennis town hall on April 25, 2016, where it was routed to the office of the town planner by some time on April 26, 2016. After his receipt of the chairman's packet, the town planner had a series of conversations with the assistant town clerk. At some point prior to May 4, 2016 (the end of the twenty day appeal period), the town planner told the assistant town clerk that the plaintiffs had filed their complaint in the present case in the Land Court. It is, in other words, undisputed that the assistant town clerk had actual knowledge that the plaintiffs had appealed from the board's decision before the appeal period expired.

It is undisputed that the Hickeys' counsel did not mail a copy of the complaint to the Dennis town clerk. Moreover, neither the clerk nor the assistant clerk saw a copy of the Hickeys' complaint before May 5, 2016. The Hickeys' counsel's only direct communication with the town clerk's office for the purpose of providing notice of the appeal occurred by an electronic mail message dated May 5, 2016-which he sent after the town clerk certified that she had not received any notice of an appeal within the required timeframe.

The board moved to dismiss the Hickeys' complaint, based on the failure to file notice of the appeal or a copy of the complaint with the town clerk before May 4, 2016. After the Land Court judge permitted limited discovery on the issue, the board converted its motion to one for summary judgment. The judge then allowed the motion, and entered judgment dismissing the complaint. This appeal followed.

Discussion. "[R]eceipt of notice by the town clerk is a jurisdictional prerequisite for an action under G. L. c. 40A, § 17, which the courts have 'policed in the strongest way' and given 'strict enforcement.' " See Konover, 32 Mass. App. Ct. at 322-323, 588 N.E.2d 1365, quoting from Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808, 343 N.E.2d 412 (1976) and O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558, 492 N.E.2d 354 (1986). The purpose of notice to the town clerk is to provide "notice to interested persons that the decision of the board of appeals has been challenged and may be overturned." Pierce, supra at 808, 343 N.E.2d 412.

However, "[s]trict compliance with all the details of the notice provision is not required, so long as notice adequate to serve the purpose of the provision is given within the period limited." Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 443, 333 N.E.2d 210 (1975). By way of example, in McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 680, 223 N.E.2d 521 (1967), the court concluded that the purpose of the statute was met when the plaintiffs timely filed a copy of their complaint with the town clerk, even though they did not file a separate notice stating that it had been filed in court. Similarly, the court found notice adequate in Carr v. Board of Appeals of Saugus, 361 Mass. 361, 362-363, 280 N.E.2d 199 (1972), where the plaintiff timely filed a notice of the appeal with the town clerk but did not include a copy of the complaint. In Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39, 247 N.E.2d 720 (1969), the plaintiffs delivered notice that they had filed an appeal and a copy of the complaint with the town clerk at her home at 6:35 P.M. on the last day of the appeal period, after the town offices had closed. The court held that delivery to the clerk at her home satisfied the notice requirement. Ibid.

Finally, in the circumstances closest to those in the present case, notice was deemed adequate in Konover, supra. In that case, counsel for the plaintiff had prepared two sets of papers for service at the town hall-one for service on the board and the other for delivery to the town clerk. Id. at 320-321, 588 N.E.2d 1365. Both were placed together in a sealed envelope marked "Summonses to the Auburn Planning Board in the Town of Auburn."

Id. at 320, 588 N.E.2d 1365. The process server, unaware that the envelope contained two sets of papers, left the sealed envelope with the secretary to the town planner. Ibid. Days later, but within the appeals period, the town planner opened the envelope and walked across the hall to the town clerk's office where he told the clerk and an assistant town clerk that he had received the plaintiff's complaint. Id. at 321, 588 N.E.2d 1365. He showed the assistant town clerk the front page of the complaint-"to see if she received what I had received"-which she had not. Ibid. After that, the town planner placed all of the documents he had received into a file in the board's office, and no formal notice of the appeal was ever filed with the town clerk. Id. at 322, 588 N.E.2d 1365. In concluding that the requirements of § 17 had been met, the court observed that the "key element" in cases "relaxing the rigors of strict compliance with the zoning appeal statute" is that within the twenty-day statutory appeal period "the clerk is actually notified that an appeal-i.e., a complaint-has in fact been timely filed," id. at 324-325, 588 N.E.2d 1365, and that "it is the state of the clerk's knowledge, not the physical location of the papers, that controls."

Id. at 324-325, 588 N.E.2d 1365.

As we have observed, in the present case it is established that the clerk knew sometime before May 4, 2016, that the plaintiffs had filed a complaint in the Land Court appealing from the decision of the board of April 24, 2016, decision of the board. Since it is the state of the clerk's knowledge that controls, the requirements of G. L. c. 40A, § 17, were satisfied, and the order allowing the defendant's summary judgment motion was error.

Judgment reversed

SINGH, J. (dissenting).

It is undisputed that the plaintiffs failed to give timely "[n]otice of the action with a copy of the complaint" to the town clerk as required by G. L. c. 40A, § 17. Nonetheless, they were able to depose the town clerk, the assistant town clerk and the town planner in an effort to establish that the town clerk had actual knowledge of the filing of their complaint. I believe this inquiry into the "actual knowledge" of the clerk removes the burden from where it properly should be placed, squarely on the shoulders of the plaintiffs. Where a party has failed in its statutory notice obligation, local officials should not be drawn into litigation.

I acknowledge that dismissal of an appeal is a severe sanction for failure to give timely notice to the town clerk, particularly where it appears that the plaintiffs timely filed a complaint in court to challenge the decision of the local zoning board of appeals. Given that the requirement of G. L. c. 40A, § 17, is a jurisdictional requisite to judicial review, however, see Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39, 247 N.E.2d 720 (1969), this requirement must be enforced even where it leads to harsh results. See Bjornlund v. Zoning Bd. of Appeals of Marshfield, 353 Mass. 757, 757, 231 N.E.2d 365 (1967) ; O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558-559, 492 N.E.2d 354 (1986) ; Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442, 333 N.E.2d 210 (1975) ; Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 566-567, 754 N.E.2d 1078 (2001).

The Hickeys argue that their failure to serve the town clerk with notice of their appeal should be excused because the assistant town clerk was told by the town planner that he had received the Hickeys' complaint. In doing so, they rely primarily on Konover Mgmt Corp. v. Planning Board of Auburn, 32 Mass. App. Ct. 319, 588 N.E.2d 1365 (1992) ( Konover ).

Under the circumstances recited in Konover, this court held that the plaintiff had adequately complied with G. L. c. 40A, § 17. In so doing, we found that the "key element" in cases "relaxing the rigors of strict compliance with the zoning appeal statute" is that within the appeals period "the clerk is actually notified that an appeal-i.e., a complaint, has in fact been timely filed." Id. at 324-325, 588 N.E.2d 1365. Referring to Garfield, supra, the Konover court wrote, "[t]he decision makes it clear that it is the state of the clerk's knowledge, not the physical location of the papers, that controls." Konover, supra at 325, 588 N.E.2d 1365. In Garfield, however, the court did not discuss the state of the clerk's personal knowledge as a basis for its decision. Instead, the court relied on the statutory language-emphasizing that, in contrast to G. L. c. 40A's provisions for filing the board's decision "in the office of the city or town clerk," the language relevant to judicial appeals required only that notice be given "to ... (the) city or town clerk," and did not require filing in the clerk's "office." Garfield, supra at 39, 247 N.E.2d 720.

There is, however, another "key element" that is apparent from Konover and the cases cited therein-which is that, before the notice requirement had been "relaxed," there had been an attempt by the plaintiff to provide the clerk with written notice of the appeal by some reasonably effective (albeit imperfect) means. See Konover, supra at 321, 588 N.E.2d 1365 (counsel sent out notice packet for service on town clerk). See also, McLaughlin v. Rockland Zoning Board of Appeals, 351 Mass. 678, 679, 223 N.E.2d 521 (1967)

(complaint was delivered to town clerk without a notice of filing); Garfield, 356 Mass. at 39, 247 N.E.2d 720 (notice and copy of complaint were delivered to clerk at home, after close of business); Carr v. Board of Appeals of Saugus, 361 Mass. 361, 361, 280 N.E.2d 199 (1972) (notice of filing was delivered to town clerk without complaint).

Moreover, in all of these cases, the clerk's "actual knowledge" of the appeal has been linked in some way to the attempt by the plaintiff to serve her with notice. See Konover, supra at 321, 588 N.E.2d 1365 (town planner received notice intended for clerk and informed clerk that appeal had been filed). See also, McLaughlin, supra at 679, 223 N.E.2d 521 ; Carr, supra at 361, 280 N.E.2d 199 ; Garfield, supra at 39, 247 N.E.2d 720.

In other words, in my view, Konover does not stand for the proposition that a clerk's actual knowledge of a pending appeal is necessarily dispositive of the jurisdictional question, regardless of the source from which that knowledge might flow. Such an exception, in all cases where the clerk has learned of an appeal by some happenstance independent of the plaintiff's efforts at perfecting the appeal, could negate entirely the statutory requirement that timely notice be provided to the clerk. Moreover, such an exception would have the effect of requiring town clerks (as well as other town officials) to submit to litigation discovery in every instance where the plaintiff has failed to give the formal notice required by the statute. While Konover and Garfield "expanded the manner in which the deadline could be met," see Bingham, supra at 571, 754 N.E.2d 1078, I do not believe this expansion is broad enough to encompass this situation where there has been no attempt by the plaintiff to provide the written notice to the clerk required by the statute.

Written notice is contemplated by the statute's reference to "notice of the action with a copy of the complaint." G. L. c. 40A, § 17. See County of Norfolk v. Zoning Board of Appeals of Walpole, 16 Mass. App. Ct. 930, 930, 450 N.E.2d 628 (1983) (telephone notice that appeal will be taken is nugatory because it puts nothing in record by which interested third parties would be forewarned that zoning status of land is still in question). By relying on an oral representation to satisfy the notice requirement to the town clerk, the majority further extends the exceptions to the rule. See McLaughlin, supra (copy of complaint filed with clerk); Garfield, supra (notice of appeal and copy of complaint delivered to clerk); Carr, supra (notice of appeal filed with clerk); Konover, supra (copy of complaint shown to clerk).

For these reasons, I would hold that a plaintiff seeking judicial zoning review is not entitled to the benefit of the town clerk's personal knowledge for purposes of satisfying G. L. c. 40A, § 17, unless that knowledge can reasonably be connected to a timely attempt to provide formal, written notice to the clerk by some reasonably effective means. Such a rule is consistent with Konover, where the court emphasized the details of the plaintiffs' counsel's attempted service on the clerk's office, and found that his failure to do so was a " 'relatively innocuous' misstep that was not 'so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal." Konover, supra at 327, 588 N.E.2d 1365, quoting from Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74, 79, 337 N.E.2d 677 (1975).

Here, because the plaintiffs served only the board and made no attempt to provide separate notice to the town clerk, as required by the statute, I believe the appeal was properly dismissed by the Land Court. See Pasqualino v. Board of Appeals of Wareham, 14 Mass. App. Ct. 989, 990, 440 N.E.2d 523 (1982). I would affirm.

      In addition to the complaint, the packages included a cover letter, a copy of a summons, a civil action cover sheet, and the Land Court's Limited Assistance Representation Information Sheet.

      The parties agree that service of notice on the assistant clerk is the equivalent of service on the clerk. See Konover, supra at 324 n.9, 588 N.E.2d 1365.

      In allowing the defendant's motion for summary judgment, the motion judge reasoned that because the assistant clerk's knowledge of the plaintiffs' complaint relied on a hearsay statement by the town planner rather than the assistant clerk's direct personal observation of the complaint, it did not constitute "knowledge" of the complaint within the meaning of Konover. We are aware of no authority requiring, and we see no reason for, the imposition of such adjudicative evidentiary standards on the assessment of the clerk's actual knowledge that an appeal has been taken.

      The town clerk's May 5, 2016, certification was attached to the board's original decision and stated that "this decision was filed on April 14, 2016, and no appeal was filed within 20 days after date of filing." Later that day, apparently recognizing that the earlier certification did not accurately describe matters as known to the clerk's office, the town clerk affixed a revised certification to the board's decision, stating "this decision was filed with the Town Clerk's office on April 14, 2016, and no Notice of Appeal from the decision was filed with the Town Clerk's Office within 20 days of April 14, 2016."

      The paramount significance of the state of the clerk's knowledge was reiterated in Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 571, 754 N.E.2d 1078 (2001), even as it declined to accept as adequate a notice of appeal delivered to the mayor fifteen minutes after the clerk's office closed on the twentieth day, since the clerk did not learn of the appeal until the following day.

      In the present case, the plaintiffs served the individual members of the board, and mailed a copy of the complaint to the chairman of the board at the town hall. The case accordingly does not require us to consider whether notice would be adequate if it came to the attention of the town clerk by means other than through communications with other officials charged with administration of the local zoning by-law.

      The requirement of notice to the town clerk appears in the first paragraph of G. L. c. 40A, § 17. The second paragraph describes those persons who must be named as defendants in a zoning appeal-and the list does not include the town clerk. See G. L. c. 40A, § 17. The statute goes on to provide a method of supplying notice to the defendants "instead of the usual service of process" in order "to avoid delay in the proceedings." G. L. c. 40A, § 17. Such notice must be sent to the defendants within "fourteen days after the filing of the complaint." G. L. c. 40A, § 17. Here, it is undisputed that the Hickeys supplied notice to the board members both in the manner directed by the statute and also by sending a packet including a summons and copy of the complaint (addressed to the board's "Chairman") to the town offices with a cover letter invoking Mass.R.Civ.P. 4, as amended, 402 Mass. 1401 (1988). Because the town clerk is not a defendant to a zoning appeal, it is apparent that the two separate notice requirements found in § 17 serve entirely different purposes. Thus, it is clear in the statutory scheme that providing notice of the action to the named defendants is not the same as providing notice to the clerk. Moreover, lapses in compliance with the former requirement have been forgiven to an extent that lapses in compliance with the latter have not. See Pierce v. Board of Appeals of Carver, 369 Mass. 804, 809, 343 N.E.2d 412 (1976) ("there is a different approach to the carrying out of the later steps of an action which has been timely commenced and timely recorded in the town clerk's office").

      The motion judge addressed this issue by interpreting Konover in such a way as to limit "personal knowledge" to instances where the clerk or assistant clerk has actually seen the complaint, so as to avoid reliance on hearsay. Although the majority sees no reason to apply "adjudicative evidentiary standards" on assessment of the clerk's "actual knowledge," it provides no guidance as to how such an assessment is to be made. There is good reason for the clerk not to rely on representations from other individuals. First, those other individuals may be mistaken. Second, not all individuals are entitled to the same degree of trust. The clerk is ultimately responsible for certifying the status of an appeal. The public is entitled to a certification based on the clerk's first-hand knowledge, not the passing on of mere hearsay.

      The majority takes the position that, given the Hickeys' notice to the board, we need not consider whether notice would be adequate if it came to the attention of the town clerk by some means other than communication among town officials. In every case of this nature, however, town officials will be named defendants and will therefore receive notice through service. See G. L. c. 40A, § 17, second par. I would expect that, in most cases, this information would further be transmitted to the town clerk through casual conversation among officials within town hall. Thus, this view has the potential to nullify the legislative requirement that separate notice be sent to the town clerk. See G. L. c. 40A, § 17, first par.

      Not only is such involvement in litigation burdensome, it causes town officials to be placed in the untenable position of assisting a party with perfecting his or her appeal. In the context of a zoning appeal, what is helpful to one party may be harmful to another. And where two neighbors are at loggerheads over a proposed project, both are the constituents of town officials. Here, the town planner and/or the assistant town clerk may well have scrupulously refrained from any active attempt to help the Hickeys by curing the notice defect-which would have been to the detriment of project's proponent. I view such behavior as appropriately neutral, and not the sort of wilful attempt to dodge notice or process that would be improper. As the town planner testified at deposition, "[the] responsibility to file with the Town Clerk the appeal of a decision is not mine ... It's not my job to provide the Town Clerk what the attorney for the appellant is supposed to provide the Town Clerk."

      As stated in Konover, "[s]trict compliance with § 17 is not an undue burden; nor would be an inquiry directly to the town clerk's office prior to the expiration of the twentieth day as to the fact of the clerk's receipt of the papers. Double-checking the accomplishment of such jurisdictional and potentially outcome-determinative matters appears to be well within the duty of competence which a lawyer, as a fiduciary, owes to the client-a duty that cannot be delegated without proper supervision and control." Konover, supra at 327, n.13, 588 N.E.2d 1365 (noting that Konover's procedural misstep might have been fatal in different circumstances).


author: DESMOND, J. MALDONADO, J. (dissenting).

text:
    COMMONWEALTH v. Roberto ALVARADO.
    No. 17-P-792
    Appeals Court of Massachusetts, Essex..
    Argued March 2, 2018 Decided June 27, 2018
    Kevin R. Prendergast, Salem, for the defendant.
    Emily R. Mello, Assistant District Attorney, for the Commonwealth.
    Present: Maldonado, Blake, & Desmond, JJ.
   DESMOND, J.

We are called upon to address whether there was sufficient circumstantial evidence presented in this case to justify the judge's denial of the defendant's motion for required findings of not guilty. Concluding that the evidence was sufficient, we affirm the defendant's convictions.

Background. A jury convicted the defendant of distribution of a class B substance ( G. L. c. 94C, § 32A [a ] ) and committing a drug violation near a park ( G. L. c. 94C, § 32J ). At the close of evidence, the defendant moved for required findings of not guilty, which the judge denied.

The jury would have been warranted in finding the following facts. At approximately 1:45 P.M. on April 15, 2016, members of the Lawrence police department's narcotics unit were patrolling in the area of a park, in response to recent complaints about drug activity in the area, when a car with Maine license plates stopped alongside the park and the defendant got in the car. Based on their training and experience, the officers were aware that many people come to Lawrence from New Hampshire or Maine to buy narcotics, generally in areas close to the highway, such as the park in question. Once the defendant entered the car, it traveled approximately 150 yards, turning once, before it stopped and the defendant got out. Nothing in the way the parties acted during that brief drive directly indicated a drug transaction had taken place; no hand-to-hand exchange or similar action was observed. Concluding that he had reasonable suspicion to believe a drug transaction had just taken place, the officer who was following the car conducted a motor vehicle stop. The car did not immediately stop. Upon stopping, the driver of the vehicle was observed moving around in the vehicle with a clenched hand, such that the officer asked him to step out of the car for safety purposes. That officer discovered two "twists" of what was determined to be cocaine clenched in the driver's hand.

Upon recovering the cocaine, that officer radioed another officer who was following the defendant and instructed him to arrest the defendant. The officer did so, and in a subsequent search of the defendant discovered fifty-six dollars in cash. Both the driver of the vehicle and the defendant were in view of police officers from the time the defendant entered the vehicle until the time each was arrested.

In addition to the testimony of the two officers, the jury also heard from a State police trooper who offered expert testimony regarding drug transactions. He opined that "the most common scenario" of a street-level drug transaction is that a person arrives from out of town, makes a telephone call to place an order, and is instructed to go to a certain location. Once there, either the drug dealer or a "runner" for that dealer will meet the buyer and "the delivery is usually concluded inside of the car, either while the car is moving or while it remains parked." The expert further testified that a "ride to nowhere," such as the brief ride the defendant was observed taking in the car, "very rarely [has] an explanation other than that it was a drug deal." Finally, the expert noted that a small amount of cocaine in Lawrence, such as was found in each of the twists held by the driver, is "as a general rule, [worth] between [twenty] and [thirty]" dollars.

Discussion. On appeal, the defendant contends that the evidence was insufficient to prove his distribution charge, and therefore, his motion for required findings of not guilty should have been allowed. In evaluating sufficiency, we must determine whether, after viewing the evidence in the light most favorable to the Commonwealth, " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original)." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Circumstantial evidence is competent to establish guilt beyond a reasonable doubt," and in a sufficiency inquiry, we consider both direct evidence and "reasonable and possible" inferences from that evidence, so long as they are "not too remote in the ordinary course of events, or forbidden by any rule of law." Commonwealth v. Cotto, 69 Mass. App. Ct. 589, 591-592, 870 N.E.2d 109 (2007) (citations omitted). "While the inferences drawn must be reasonable, they 'need not be necessary or inescapable.' " Commonwealth v. Merry, 453 Mass. 653, 661, 904 N.E.2d 413 (2009), quoting from Commonwealth v. Grandison, 433 Mass. 135, 140-141, 741 N.E.2d 25 (2001).

Although the defendant's conviction of distribution was based entirely on circumstantial evidence, we conclude that the evidence before the jury, viewed in the light most favorable to the Commonwealth, was sufficient to allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Under G. L. c. 94C, § 32A(a ), the Commonwealth bore the burden of proving that the defendant knowingly or intentionally distributed cocaine. Several pieces of evidence pointed to a drug transaction, including: the out-of-State license plate, the park's proximity to the highway, the "ride to nowhere," the brevity of the interaction between the defendant and the vehicle's driver, the vehicle's driver not immediately stopping the vehicle and moving conspicuously upon stopping, the money recovered from the defendant's person, the Lawrence police department's awareness of recent complaints of drug activity in the area of that park, and the recovery of cocaine from the driver. It is true that there are scenarios that could explain the defendant's behavior in a way that would not support his conviction. The Commonwealth, however, "need not exclude every hypothesis," and the evidence presented was sufficient to allow the case to reach the jury. Commonwealth v. Soto, 45 Mass. App. Ct. 109, 112, 695 N.E.2d 683 (1998). "The inference that the defendant sold the drugs 'need not be necessary or inescapable so long as it is reasonable and possible.' " Ibid., quoting from Commonwealth v. Cohen, 412 Mass. 375, 380, 589 N.E.2d 289 (1992).

We conclude that, in this case, the Commonwealth presented "evidence from which a finder [could without speculation] infer the essential facts" to support the defendant's conviction. Soto, supra, quoting from Commonwealth v. Robinson, 43 Mass. App. Ct. 257, 262, 682 N.E.2d 903 (1997). A hand-to-hand transaction need not be viewed by police in every distribution case, and the lack of evidence recovered from the defendant other than the fifty-six dollars in cash is not fatal to the Commonwealth's case. See Soto, supra. It is not our place to "attempt to penetrate the jury's thought process," Commonwealth v. Santos, 454 Mass. 770, 777, 912 N.E.2d 985 (2009), and since there was sufficient evidence to allow the jury to reach their verdict, we will not disturb the judge's decision to leave the choice in the jury's hands.

Judgments affirmed.

MALDONADO, J. (dissenting).

Because I conclude that the evidence of fifty-six dollars found in the defendant's possession and two "twists" of cocaine, valued between forty and sixty dollars, discovered in the hands of the driver of the car the defendant was seen entering and leaving, fails to substantiate, without more, that the defendant distributed drugs, even with the additional expert testimony regarding the usual modus operandi of narcotic exchanges in South Lawrence Common Park, I respectfully dissent.

One early April afternoon in South Lawrence Common Park, police, while stationed in an unmarked cruiser, observed the defendant enter the passenger's side of a car displaying Maine license plates. The car drove about 150 yards; it then stopped and the defendant got out. Neither the defendant nor the operator were known to police, and the police did not overhear any conversations or observe any hand movements or exchanges between the defendant and the operator before the defendant and the car's operator parted company.

The car began to drive away, but the police activated their cruiser's lights and siren, signaling the car's operator to stop the vehicle. The car continued for a short distance before stopping. As the officer approached the stopped vehicle, he observed the operator moving about in the car's interior, and so, for his safety, the officer ordered the operator to step out. The operator exited the vehicle with clenched fists containing two "twists" of cocaine.

Meanwhile, the defendant was walking away on foot. However, he was stopped five minutes later by a second officer, who learned from the first about the cocaine in the hands of the car's operator. The second officer searched the defendant and found fifty-six dollars in unspecified denominations on the defendant's person. There was no testimony that the bills were separated in any particular way.

The remainder of the Commonwealth's proof came from the testimony of a police expert, who testified to the general manner in which narcotics are bought and sold in Lawrence. The expert opined that out-of-State buyers "most common[ly]" do business in Lawrence by arranging to meet a seller of drugs or his "runner," to engage in an exchange during a short "ride to nowhere." The expert also testified that each cocaine twist sells for between twenty and thirty dollars.

The Commonwealth asserts, and the majority agrees, that the expert testimony regarding the usual pattern of narcotics sales in Lawrence, coupled with the discovery of the two twists of cocaine in the operator's possession and fifty-six dollars on the defendant's person is sufficient to support a rational juror in finding beyond a reasonable doubt that the defendant sold drugs to the car's operator. I disagree.

In cases such as this, where, in the absence of direct observations of a narcotics exchange, the Commonwealth relies on generalizations regarding the modus operandi of drug dealers, there must be more corroborative evidence than the mere discovery of a small quantity of cash on the purported dealer's person. See Commonwealth v. Sepheus, 468 Mass. 160, 166, 9 N.E.3d 800 (2014) (concluding that the $312 found on the defendant's person was "not a particularly large sum," and observing that, while "[a] large amount of cash certainly is probative of an intent to distribute[,] ... [i]t is not unusual for law-abiding persons to carry ... [a small] amount on their person").

Examples of cases where the Commonwealth overcame the lack of direct evidence of a drug transaction include the following. In Commonwealth v. Stephens, 451 Mass. 370, 387-388, 885 N.E.2d 785 (2008), where the expert opined that buyers usually arrive at an agreed-upon location before the seller, and get into the seller's vehicle to make the exchange, the Commonwealth introduced evidence that police saw the codefendant make furtive movements toward a center console (where approximately $340 worth of cocaine was stored), and the defendant had $345 and drug packaging paraphernalia on his lap and in his pockets when stopped. In another such case, Commonwealth v. Clark, 446 Mass. 620, 624-625, 846 N.E.2d 765 (2006), it was the direct evidence of a prior exchange, in which Clark was observed accepting money in exchange for what was believed to be drugs, that identified Clark as the seller in a later narcotics sale where there was no direct evidence of an exchange.

By contrast, in cases with facts more analogous to the evidence in this case, the Supreme Judicial Court has held the evidence insufficient to support even a finding of probable cause of an intent to distribute. Commonwealth v. Levy, 459 Mass. 1010, 947 N.E.2d 542 (2011), is one such example. There, police saw no exchange, but observed a man make a twenty-second call on a pay telephone commonly used to arrange drug deals. The man then drove to a nearby location, got out of his car, and paced up and down the street before the arrival of a second car, which he entered through the back passenger's side. The car went on a short 200-yard ride before the back seat passenger got out. Police stopped the second car and searched both the driver and the front seat passenger. In the absence of more corroborative evidence, the Supreme Judicial Court held that the search of the front seat passenger lacked probable cause. Id. at 1011-1012, 947 N.E.2d 542. Similarly, in Commonwealth v. Stewart, 469 Mass. 257, 13 N.E.3d 981 (2014), police observed the defendant, a known drug dealer, and several of his companions in a part of Boston's theatre district known for narcotics deals. A woman approached the group counting money. Police then observed the group huddle together, but the police did not observe an exchange of money for drugs. Id. at 259-260, 13 N.E.3d 981. Reasoning that, although there is no requisite "that an officer must actually see an object exchanged, the suspect's movements, as observed by the officer, must provide factual support for the inference that the parties exchanged an object," the Supreme Judicial Court concluded the police lacked probable cause to search the contents of a cigarette box in the defendant's backpack. Id. at 261, 263-265, 13 N.E.3d 981 (quotation omitted).

Here, considering the elevated standard of proof required to sustain a criminal conviction, the inference that the defendant sold drugs simply because he possessed fifty-six dollars and the car's operator possessed two twists of cocaine is even less supportable. Contrary to the Commonwealth's assertions, it is not the defendant's burden to offer an explanation for his presence in the car. See Commonwealth v. Walker, 443 Mass. 213, 223, 820 N.E.2d 195 (2005) ("[T]he burden of proof never shifts to the defendant, ... because he is presumed innocent, and ... all presumptions of law are in favor of innocence"). Rather, the evidence viewed in the light most favorable to the Commonwealth must be sufficient to satisfy a rational juror of the defendant's guilt beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979) ("[T]o sustain the denial of a directed verdict, it is not enough ... that there was some record evidence, however slight, to support each essential element of the offense; [there must be] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt").

In the instant case, the evidence does not permit the inference that the car's operator was a consumer of drugs or that the defendant was the distributor of those drugs. See Commonwealth v. White, 452 Mass. 133, 136, 891 N.E.2d 675 (2008) (inferences must be "reasonable and possible" and not based on mere "conjecture and speculation" [citations omitted] ). Contrast Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 176-179, 912 N.E.2d 525 (2009) (where a woman's immediate consumption of cocaine after interacting with the defendant, and the defendant's possession of three cellular telephones [cell phones] and $536-including one twenty dollar bill found crumpled in a separate pocket-gave rise to the reasonable inference that the woman was a buyer and the defendant was the seller).

While the expert here testified that "most common[ly]" out-of-State buyers come to Lawrence to purchase narcotics, that testimony did not exclude the possibility of the out-of-State operator's coming to Lawrence to sell drugs or for some other nefarious reason. The suggestion that South Lawrence Common Park's location provides easy highway access to out-of-State "buyers" is also equally applicable to an out-of-State operator looking to sell drugs. See, e.g., Commonwealth v. Saletino, 449 Mass. 657, 661-662, 871 N.E.2d 455 (2007) (defendant drove a car with Rhode Island plates when selling cocaine to an undercover officer in Lynn); Commonwealth v. Kimball, 37 Mass. App. Ct. 604, 604-605, 641 N.E.2d 1066 (1994) (although the police conducted an illegal stop, which fatally undermined the defendant's conviction, he was driving a car with Maine plates while trafficking over 200 grams of cocaine in Massachusetts); Commonwealth v. Powers, 39 Mass. App. Ct. 911, 912-913, 654 N.E.2d 338 (1995) (defendant drove a car with Florida plates while dealing drugs in Berkshire County); Commonwealth v. Savageau, 42 Mass. App. Ct. 518, 518-519, 678 N.E.2d 1193 (1997) (defendant convicted of possession with intent to distribute after police saw him deal "crack" cocaine out of a car with New Hampshire plates).

Furthermore, nothing about the automobile operator's possession of the two twists of cocaine distinguishes him as a consumer of drugs rather than a "seller" of drugs. Even though the car's operator did not stop immediately for the police and was observed moving about in the car, there was no evidence of his ingesting drugs, putting his fists towards his mouth in an attempt to ingest drugs, or being in possession of any drug ingesting paraphernalia. Accordingly, his possession is equally consistent with that of a seller of drugs. Contrast Commonwealth v. Dancy, 75 Mass. App. Ct. at 177, 912 N.E.2d 525, where, inter alia, it was a woman's immediate consumption of drugs after parting company with the defendant that distinguished her as the defendant's buyer.

Similarly, the defendant's possession of fifty-six dollars does not, without more, give rise to a reasonable inference that he had just sold drugs. See Commonwealth v. Tripp, 14 Mass. App. Ct. 997, 998, 440 N.E.2d 1286 (1982) (evidence that one person was in possession of eight glassine bags of heroin while another was counting money did not distinguish one individual as the seller or the other as the buyer).

Commonwealth v. Dancy, in particular, provides an example of the extent of corroborative evidence needed to properly support a conviction. There, police observed Dancy meet with a woman who had been anxiously awaiting his arrival. She was pacing up and down the street. The two met briefly and parted company after about one minute. Police next observed the woman ingesting drugs. That case also included expert testimony regarding the clandestine nature of street drug sales and, further, that cocaine sells in "denominations of ten dollars, twenty dollars, and higher." When Dancy was stopped shortly after the woman was observed consuming drugs, he was found in possession of three cell phones and $536, including one twenty dollar bill found crumpled in a pocket separate from the other monies. In that case, as we have noted, the woman's immediate ingestion of cocaine after her brief encounter with Dancy distinguished her as a buyer of drugs, and Dancy's possession of the three cell phones and a large sum of money, with one lone crumpled up twenty dollar bill in a separate pocket (suggesting that it had just been quickly stored away) gave rise to the reasonable inference that he had just sold drugs to the woman. 75 Mass. App. Ct. at 176-179, 912 N.E.2d 525. By contrast, in the instant case, there was no evidence that the defendant had in his possession any, let alone multiple, cell phones, and, aside from the fifty-six dollars falling within the dollar range for a sale of two twists, there was nothing to suggest that the money came from the defendant's sale of drugs to the car's operator. The defendant was not seen getting out of the car with bills in hand or stuffing cash into his pocket. There was no testimony about how the money was pocketed, let alone in a manner that suggested it had just been quickly put away.

The mere possibility that the defendant may have sold drugs on that day is not enough. The evidence must be sufficient to satisfy a rational juror, beyond a reasonable doubt, that the defendant transferred drugs to the car's operator. Commonwealth v. Latimore, 378 Mass. at 677-678, 393 N.E.2d 370. To satisfy that burden, the evidence must exclude any other reasonable hypothesis. See Commonwealth v. LaBriola, 430 Mass. 569, 573-574, 722 N.E.2d 13 (2000). I am not persuaded the evidence here meets that strict burden. In my view, the evidence does not exclude the equally reasonable possibilities that either the two men met for some other reason and there was no sale of drugs in the car on that day, or that the defendant was the purchaser of drugs, which he consumed in the five minutes from when the lights and sirens were activated to when he was stopped. I would therefore reverse the judgments, set aside the verdicts, and order judgments to enter for the defendant.

      The two arresting officers and the State trooper who testified as an expert all had extensive training and experience specific to drug transactions.

      The officer testified that the car "traveled a little bit at first, and then it pulled over."

      The parties stipulated that the substance recovered was cocaine.

      While we conclude that there was sufficient evidence to allow the Commonwealth's case to go to the jury, we emphasize that the question whether to adopt or reject the Commonwealth's theory was properly left to the jury. Just as the jury were justified in convicting the defendant, they would have been similarly justified had they remained unpersuaded and acquitted him.

      "The officers found, in [the defendant's] lap, clear plastic bags with the tops knotted and corners cut off, with additional altered plastic bags in his pocket," and an expert explained that "dealers package cocaine in plastic bags by cutting off the corners." Commonwealth v. Stephens, 451 Mass. at 387, 885 N.E.2d 785.

      While there was testimony that a police car followed the defendant for about five minutes as he walked away, there was no testimony of police being able to observe the defendant's hands and mouth at all times.


text:
    COMMONWEALTH v. Jason BLY.
    16-P-1724
    Appeals Court of Massachusetts.
    Entered: March 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jason Bly, appeals from his conviction of unlawful possession of a class B controlled substance, G. L. c. 94C, § 34, claiming that the Commonwealth presented insufficient evidence to support his conviction. He also argues that the motion judge erred in denying his motion to suppress evidence seized by the police. We affirm.

1. Motion to suppress. After an evidentiary hearing, the motion judge found the following facts, which the defendant does not challenge. On the evening of October 10, 2013, Boston police Officer Louie Lopez was on patrol in the Dorchester area. He received a radio call for "shots fired" nearby, and proceeded to the scene, arriving within one minute of the call. When he arrived, he observed a minivan in the middle of the roadway, disabled, with apparent bullet damage to the front windshield and a shattered front passenger window. Officer Lopez also observed three individuals standing nearby. He approached the group and asked if anyone knew who had been operating the minivan; the defendant stepped forward and identified himself as the driver.

Officer Lopez then informed the defendant that he was going to pat frisk him, because Officer Lopez was unable to determine whether the damage had been caused by a bullet entering the windshield or exiting it, and he was concerned that there was an armed shooter in the vicinity. As the defendant raised both of his hands, palms facing out, Officer Lopez observed, in plain view, a cellular telephone and clear plastic baggie in the defendant's right hand. Inside the baggie appeared to be a number of small pills, and it was knotted on top. Based on his training and experience, Officer Lopez believed that the baggie contained illegal drugs packaged for street-level sale. He took the baggie out of the defendant's hand; the defendant stated that the pills were Percocets, and that he had a prescription for them. Officer Lopez then arrested the defendant.

a. Patfrisk of the defendant. The Fourth Amendment to the United States Constitution permits a police officer to conduct a patfrisk for concealed weapons where the police officer reasonably believes that the individual is armed and dangerous, provided that such a search is confined to what is minimally necessary to learn whether the suspect is armed. Commonwealth v. Wilson, 441 Mass. 390, 394, 396 (2004), citing Terry v. Ohio, 392 U.S. 1, 29-30 (1968). See Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010). The officer's actions must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's training and experience. Commonwealth v. Silva, 366 Mass. 402, 406 (1974). An officer does not need to be certain that a person is armed; instead our inquiry focuses on whether a reasonable and prudent officer in the same situation would feel concerned for the officer's safety or the safety of others. Commonwealth v. Matthews, 355 Mass. 378, 381 (1969). The determination whether the officer's belief was objectively reasonable must be made while considering the totality of the circumstances surrounding the frisk. Commonwealth v. Hawkes, 362 Mass. 786, 789 (1973).

Here, the motion judge found, and we agree, that Officer Lopez reasonably feared for his safety and the safety of others, and thus his decision to pat frisk the defendant was reasonable. At the point he informed the defendant of his intention to pat frisk him, Officer Lopez was the sole police officer at the scene of a nighttime shooting, where he did not know if the shots came from inside or outside the minivan, and where he was outnumbered by the other bystanders. Thus, there was no error in the judge's conclusion.

b. Seizure of the pills. "[A] police officer may seize objects in plain view where four requirements are met: (1) the officer is 'lawfully in a position to view the object'; (2) the officer has 'a lawful right of access to the object'; (3) with respect to 'contraband, weapons, or other items illegally possessed, where the incriminating character of the object is immediately apparent' ... ; and (4) the officer 'come[s] across the object inadvertently.' " Commonwealth v. White, 469 Mass. 96, 102 (2014), quoting from Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307 (2010). Although an observation of an item in plain view does not constitute a search, Commonwealth v. Sergienko, 399 Mass. 291, 294-295 (1987), a seizure of an item in plain view "intrudes upon the owner's possessory interest in that item and thus implicates constitutional considerations." Commonwealth v. Figueroa, 412 Mass. 745, 749 n.6 (1992). Such a seizure, absent the defendant's consent, must be supported by probable cause. Sergienko, supra at 296.

The defendant takes issue with the third prong of the test, arguing that the incriminating nature of the pills was not apparent until after Officer Lopez seized the baggie and the defendant informed him that the pills were Percocets. We disagree. Here, Officer Lopez testified that when the defendant raised his hands, he observed in the defendant's right hand a small clear baggie, knotted on top, containing a number of small pills. From his training and experience, Officer Lopez believed that the pills were drugs, packaged for street-level sale. While a plastic baggie may be "capable of use for a lawful as well as an unlawful purpose," Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 43 n.3 (1989), if there is "some characteristic of the particular baggie observed in plain view that indicates that it is being used for an unlawful purpose, that fact alone may be enough to justify seizure." Commonwealth v. Garcia, 34 Mass. App. Ct. 645, 650 (1993). Thus, Officer Lopez's seizure of the baggie was proper. See ibid., quoting from Texas v. Brown, 460 U.S. 730, 742 (1983) ("Probable cause 'merely requires that the facts available to the officer would "warrant a [person] of reasonable caution in the belief" ... that certain items may be contraband' ").

2. Sufficiency of the evidence. The defendant next claims that the Commonwealth presented insufficient evidence to support his conviction. Specifically, he argues that he properly raised the affirmative defense of license, that he supported this defense with evidence sufficient to shift the burden back onto the Commonwealth, and that the Commonwealth failed to meet its burden of disproving this defense. However, before a criminal defendant can raise an affirmative defense at trial, he must provide adequate notice of the planned defense to the Commonwealth. Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518 (2004). Failure to provide proper notice "renders the claim [of license] unavailable as a defense." Commonwealth v. Humphries, 465 Mass. 762, 771 (2013) (quotation omitted). Here, given the absence of notice pursuant to rule 14, the Commonwealth had no burden to prove the lack of a prescription beyond a reasonable doubt, and the defendant's failure to comply with the notice requirement is fatal to his claim. See Commonwealth v. O'Connell, 438 Mass. 658, 665 (2003).

Furthermore, even if the defendant had not waived the affirmative defense, he did not produce evidence sufficient to shift the burden back onto the Commonwealth. Because the "primary characteristic of an affirmative defense [is] whether it 'involves a matter of ... justification peculiarly within the knowledge of the defendant,' " it stands to reason that he bears the burden of producing some evidence to support his defense. Commonwealth v. Vives, 447 Mass. 537, 540-541 (2006), quoting from Commonwealth v. Cabral, 443 Mass. 171, 179 (2005). Where the defense to an illegal drug possession offense depends on the defendant having a prescription for the drugs, the existence of such a prescription is peculiarly within the knowledge of the defendant, such that meeting this initial burden of production "would involve the very simple task ... of produc[ing] that slip of paper indicating [such authorization]." Commonwealth v. Gouse, 461 Mass. 787, 806 (2012) (quotations omitted). See Commonwealth v. Jefferson, 377 Mass. 716, 718-719 (1979) (claim of authority to possess then-illegal hypodermic needle required defendant to produce some proof of such authority, such as prescription). Then, if "any view of the evidence would support a factual finding that the defendant [had a prescription for the pills], the defendant has met his burden of production and it is incumbent on the Commonwealth to disprove the defense." Vives, supra at 541.

Here, aside from his self-serving and uncorroborated statement to police that he had a prescription for the pills, the defendant presented no other evidence to support his defense. Instead, he relies on what he identifies as gaps in the police officers' trial testimony regarding what they did or did not find upon searching the defendant and his vehicle. This is nothing more than an attempt to shift the initial burden of production back to the Commonwealth, which is contrary to the law. On the other hand, the Commonwealth presented sufficient evidence from which the trial judge could find that the pills were illegal. And, as the judge did find, the Commonwealth met its burden "by establishing the pills were in a loose container, there was no prescription bottle found in the vehicle or in the defendant's possession, [and] there was no prescription found in the defendant's possession or the vehicle." These findings were supported by the evidence. There was no error.

Judgment affirmed.