author: Brown, Judge.

text:
    Ashley REID, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-493
    Court of Appeals of Indiana.
    FILED November 16, 2018
    Attorney for Appellant: Heather M. Schuh-Ogle, Thomasson, Thomasson, Long & Guthrie, P.C., Columbus, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
   Brown, Judge.

[1] In this interlocutory appeal, Ashley Reid appeals the trial court's order denying her motion to suppress evidence. Reid raises two issues which we consolidate and restate as whether the trial court erred in denying her motion to suppress. We affirm and remand for further proceedings.

Facts and Procedural History

[2] On February 15, 2017, the State charged Reid with: Count I, operating a vehicle while intoxicated endangering a person as a class A misdemeanor; and Count II, operating a vehicle with an ACE of .15 or more as a class A misdemeanor.

[3] On October 30, 2017, Reid filed a motion to suppress all oral and written communications, confessions, statements, or admissions alleged to have been made by her, as well as any test results arising from a July 29, 2016 incident. It stated in part that Officer James Paris of the Columbus Police Department responded to a report of a possible intoxicated driver at a West Ridge residence, that "[u]pon arriving, Officer Paris immediately began questioning Ms. Reid and giving her directives" and "subjected her to coercive and accusatory questioning," and that, without Reid's statements, he "lacked probable cause to request field sobriety tests, a chemical test, or a warrant for a blood draw." Appellant's Appendix Volume II at 34. It also stated:

There was little to no elapsed time between the unlawful search and seizure and the acquisition of the evidence, and there were no intervening circumstances. After questioning [Reid] with no advisement of her Miranda rights, Officer Paris immediately ordered [Reid] to perform field sobriety tests, and immediately following those, read her the "implied consent" law. When she declined, he immediately requested a warrant.

Id. at 35.

[4] On December 4, 2017, the trial court conducted an evidentiary hearing on the motion, at which it heard the testimony of Officer Paris and admitted and played, as State's Exhibit 1, his body camera recording from the July 29, 2016 incident. Officer Paris testified that he was dispatched at 2:09 a.m. "as a possible intoxicated driver or disturbed (garbled)," and that:

I can't remember exact terminology dispatch used. A caller, a Stanley Reid, stated that he had heard a loud noise outside his residence, looked outside and saw his wife, [Reid], staggering in the driveway. Dispatch relayed that he wasn't sure what the noise was but believed she struck something with her vehicle.[ ]

Transcript at 5-6. He stated that he proceeded to the scene without his lights or sirens activated, and saw two women in the driveway along with a vehicle with damage to the rear passenger-side bumper and a flat front passenger-side tire with its rubber "shredded around the wheel." Id. at 8. He testified that one of the individuals identified herself as Reid and that he "[i]mmediately noticed that she was intoxicated. She was unsteady on her feet, had blood shot [sic] eyes, [and] had a strong odor of alcoholic beverage about her person," which "became stronger as she spoke ...." Id. at 6-7. His body camera recording indicates that he made contact with the two women, that they stated "that was not us" when he informed them of a "call of a possible traffic accident up here ... a vehicle struck another vehicle," and that, after Reid identified herself, she answered affirmatively when asked "is this your vehicle" and "did you just get home." State's Exhibit 1 at 0:01-0:13, 0:23-0:31.

[5] When questioned about his subsequent conversation with Reid, Officer Paris stated:

I had her step to the rear of the vehicle where the damage was so I could speak to her and then reference the damage.[ ] Inquired what she had struck with the vehicle, an open ended what did you hit I believe was the question. She denied having struck anything. I referenced the damage. She said it was old damage that it happened at Walmart and that it did not happen, that it had been there for some time.

Transcript at 8. He indicated that he did not believe Reid's explanation and stated "it's a plastic type bumper and there was a hole in it, it was cracked, dented in, and it appeared to be extremely fresh. It was clean, no dust or dirt on it." Id. at 7. He stated "[o]h yes absolutely I can" when asked if, based on his experience, he was confident in his ability to look "at damage to tell if it's fresh or old ...." Id. When asked if Reid had stated she had driven the vehicle, Officer Paris answered affirmatively and testified:

After we had a discussion about the damage on the rear bumper ... I had her kind of step around to the side and pointed out the damage to the tire and I said how did this happen? Oh that did happen tonight I struck a curb. She said struck a curb either at or near Circle K and that was my first indication that she had been the operator of the vehicle when she said I struck a curb.

Id. at 9.

[6] Regarding the damage, the body camera recording reveals the following conversation between Reid and Officer Paris:

Reid: It's been there.
Officer Paris: That's been there? No ma'am. That's some brand-new damage right there.
* * * * *
Officer Paris: I've done this job for a long time -
Reid: That's fine.
Officer Paris: Okay, and I know when I'm being lied to.
Reid: Okay.
Officer Paris: Okay. I'm being lied to. This vehicle has struck something.
Reid: No, that's been like that.
Officer Paris: And this vehicle has struck something recently. Okay. Where have you been tonight?
Reid: Went uptown.
Officer Paris: Uptown? Uptown Columbus?
Reid: To the Circle-K and then I went to the bar .... Yeah, but I didn't hit anything.
Officer Paris: When did that accident happen?
Reid: Sir, this happened -
Officer Paris: When did it happen?
Reid: - a while back.
Officer Paris: Okay. What's a while back?
Reid: About a month ago.
Officer Paris: About a month ago, okay. Was it reported?
Reid: I don't think so.
Officer Paris: You don't think so?
Reid: No. I don't - I didn't.
Officer Paris: I'm getting a whole lot of I don't think so's and -
Reid: That's fine.
Officer Paris: No, it's not fine. It's - it's impeding my investigation, okay.
Reid: Okay. That's been like that. And I didn't - it happened at Wal-Mart after I got off work.

State's Exhibit 1 at 1:11-2:49. After some conversation in which Officer Paris indicated that he had received a "call of a possible traffic accident," Reid asked "where," he responded "here," she stated, "no I didn't do anything, sir," he inquired "did you just drive this vehicle here," and the following exchange occurred:

Reid: I drove it here and drove into the driveway.
Officer Paris: Okay.
Reid: Yeah. I did not lie.
Officer Paris: How long ago did the damage happen to your front tire?
Reid: It's been about - the front damage? I drove like that here. It happened earlier this evening.
Officer Paris: Oh, that happened earlier this evening -
Reid: Yeah, that did, yes, and I'm not going to lie about that.
Officer Paris: Where did that happen at?
Reid: That happened earlier.
Officer Paris: Where did that happen at?
Reid: Circle-K.
* * * *
Officer Paris: So if I go and have them pull video tape it will show you hitting something over there?
Reid: Probably a median. And then I left it and I asked for help.
* * * *
Reid: The median earlier and I came home on that tire. Yes.

Id. at 3:02-4:42. The body camera recording also reveals that Reid answered "about half an hour ago" when asked "how long ago did you get here," and "not since I've been home sir" when asked "have you consumed any alcohol[ic] beverages since you've been home," at which point Officer Paris asked Reid to leave the driveway and step in front of his patrol vehicle. Id. at 5:10-5:30.

[7] Officer Paris further testified that he proceeded to perform standardized field sobriety testing and Reid failed three separate tests, that "he read her Indiana Implied Consent" after she "tested a .169 on a portable breath test," and that she refused to submit to a chemical test. Transcript at 10-11. He testified that he placed her in handcuffs and transported her to Columbus Regional Hospital, and that he then filed for a search warrant which was granted. When asked to estimate how long the interaction lasted, "from the time you arrived at the residence to the time she refuses the chemical test," he responded "[u]ntil she actually refused the test probably no more than ten (10) minutes, twelve (12) minutes maybe." Id. at 11.

[8] During cross-examination, in response to whether Reid was free to leave during his questioning of her, Officer Paris testified:

It was an investigatory stop up to the point that she had admitted that she was driving the vehicle and it was obvious to me that she was intoxicated, if she would have walked away, frustrating as it would have been, she would have been free to walk away, yes[.]

Id. at 14. When asked if Reid was free to leave "before or after you explained ... that her saying that I don't know or I don't think so was impeding your investigation," Officer Paris stated in part:

[W]hen I had developed that or had determined that she had driven the vehicle she made [sic] privy [sic] made the statement that she drove to the residence and that she drove the vehicle during when she had damaged the tire it was at that point that I would say that she was not free to go.

Id. at 15.

[9] During recross-examination, Reid's counsel asked "[s]o there's no actual time frame given for when it happened, isn't that true, earlier could be a variety of things," the prosecutor objected, and the following exchange occurred:

[Prosecutor]: I don't see what this has to do with the question here is whether [Reid] was in custody. It doesn't have nothing to do with the time frame. The only thing we're talking about is was she in custody and therefore do her statements come in. I don't think the actual pin point of the officer opinion is relevant at least not at this hearing.
[Reid's Counsel]: Your honor, I think the probable cause affidavit indicates that she said she was driving and had been drinking and I think that when she was driving is highly relevant and when she had been drinking or whether she had been drinking is highly relevant to whether the probable cause affidavit is valid.
[Prosecutor]: Perhaps but that's what's being questioned. You're not questioning the probable cause affidavit. The probable cause has already been found. We're questioning the Motion to Suppress which [sic] was she in custody and therefore was [sic] her statements come in since she was not read Miranda.
[Reid's Counsel]: All of the statements are relevant. He's talking about her having said she drove earlier in the evening, not giving a specific time of which she was driving for him to say.
[The court]: A specific time as to when the accident took place is not relevant to this issue.

Id. at 20-21. The parties submitted briefs after the hearing, and the trial court issued an order on January 8, 2018, denying the motion to suppress. Reid sought the trial court's permission to seek an interlocutory appeal and this Court accepted the same.

Discussion

[10] The issue is whether the trial court erred in denying Reid's motion to suppress. The admission of evidence is entrusted to the trial court's sound discretion. Robinson v. State , 5 N.E.3d 362, 365 (Ind. 2014). "We review a trial court's denial of a defendant's motion to suppress deferentially, construing conflicting evidence in the light most favorable to the ruling, but we will also consider any substantial and uncontested evidence favorable to the defendant." Id. "We defer to the trial court's findings of fact unless they are clearly erroneous, and we will not reweigh the evidence." Id. "When the trial court's denial of a defendant's motion to suppress concerns the constitutionality of a search or seizure, however, it presents a question of law, and we address that question de novo." Id. We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason the trial court enunciated. Randall v. State , 101 N.E.3d 831, 836 (Ind. Ct. App. 2018) (citing Scott v. State , 883 N.E.2d 147, 152 (Ind. Ct. App. 2008) ), trans. denied .

[11] Reid argues that Officer Paris detained her and conducted a custodial interrogation of her at her residence without first advising her of her Miranda rights in violation of the Fourth and Fifth Amendments of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

A. Fourth Amendment

[12] The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. Encounters between law enforcement officers and public citizens take a variety of forms, some of which do not implicate the protections of the Fourth Amendment and some of which do. Clark v. State , 994 N.E.2d 252, 261 (Ind. 2013) (citing Finger v. State , 799 N.E.2d 528, 532 (Ind. 2003) ). Consensual encounters in which a citizen voluntarily interacts with an officer do not compel Fourth Amendment analysis. Id. Nonconsensual encounters do, though, and typically are viewed in two levels of detention: a full arrest lasting longer than a short period of time, or a brief investigative stop. Id.

[13] An arrest or detention that lasts for more than a short period of time must be justified by probable cause. Powell v. State , 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citing State v. Calmes , 894 N.E.2d 199, 202 (Ind. Ct. App. 2008) ). Pursuant to Fourth Amendment jurisprudence under Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion of criminal activity. Rutledge v. State , 28 N.E.3d 281, 290 (Ind. Ct. App. 2015). See also Jackson v. State , 669 N.E.2d 744, 747 (Ind. Ct. App. 1996) ("In Terry , the Supreme Court held that 'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot' the officer may briefly stop the suspicious person and make 'reasonable inquiries' to confirm or dispel those suspicions.") (quoting Terry , 392 U.S. at 30, 88 S.Ct. at 1884 ). Reasonable suspicion exists if the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Powell v. State , 841 N.E.2d 1165, 1167 (Ind. Ct. App. 2006). In judging the reasonableness of investigatory stops under Terry , courts must strike "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law [enforcement] officers." Carter v. State , 692 N.E.2d 464, 466 (Ind. Ct. App. 1997) (quoting Brown v. Texas , 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) ). When balancing these competing interests in different factual contexts, a central concern is "that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Id. (citing Brown , 443 U.S. at 51, 99 S.Ct. at 2640 ). "No unreasonable search occurs when police enter areas of curtilage impliedly open to use by the public to conduct legitimate business." Hardister v. State , 849 N.E.2d 563, 570 (Ind. 2006). Legitimate business includes a "knock and talk" where police use normal routes of ingress and egress from a residence to make appropriate inquiries of the occupants. Id.

[14] In order to pass constitutional muster, reasonable suspicion must be comprised of more than an officer's general "hunches" or unparticularized suspicions. Terry , 392 U.S. at 27, 88 S.Ct. at 1883. The United States Supreme Court has directed reviewing courts to "make reasonable-suspicion determinations by look[ing] at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." State v. Burlington , 802 N.E.2d 435, 438 (Ind. 2004) (quoting United States v. Arvizu , 534 U.S. 266, 273-274, 122 S.Ct. 744, 750-751, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez , 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ) ).

[15] Reid argues that she was detained without reasonable suspicion supported by articulable facts that criminal activity could be afoot. She contends that her statements did not clearly establish the time when she had been the driver of the vehicle, but rather that she had driven at some point during the day, and that Officer Paris responded to a call that "may have indicated a criminal act (possible impaired driver), but also may have only been a traffic accident or a disturbance." Appellant's Brief at 17. She further argues that she was not free to leave her encounter with Officer Paris and no reasonable person would have believed she was permitted to leave. She asserts that Officer Paris "immediately began interrogating [her] upon his arrival"; gave her "specific directives, including where to stand and to put out her cigarette"; "right away asked her what she had hit with her vehicle"; and "isolated her from a friend at the scene." Id. at 7. She contends he subjected her to "coercive and accusatory questioning" when he "accused her of striking something with her vehicle," "accused her of lying to him when she responded that the damage he was referring to was not new," "continued to argue ... and insist that the damage had occurred," and "admonished her for not being more forthcoming and for impeding his investigation." Id.

[16] The State responds by arguing that Officer Paris's interaction with Reid began as a consensual encounter and evolved into an investigative stop under Terry when he recognized her intoxication and observed fresh damage to the vehicle in her driveway. It argues Officer Paris had "accumulating observations" that provided reasonable suspicion regardless of when the interaction changed from a consensual encounter into an investigative stop. Appellee's Brief at 12. It contends articulable facts, which "provided ample reasonable suspicion that [Reid] may have driven the vehicle while intoxicated and had struck something," support an investigation under Terry . Id. at 14.

[17] The record reveals that Officer Paris responded to a call by Reid's husband, who had heard "a loud noise outside" his residence, looked outside to see Reid "staggering in the driveway," and believed she had "struck something with her vehicle." Transcript at 5-6. It also reveals that upon his arrival Officer Paris observed a vehicle with damage to the rear passenger-side bumper and the front passenger-side tire and that Reid answered affirmatively when asked "did you just get home." State's Exhibit 1 at 0:25-0:31. He "[i]mmediately noticed that [Reid] was intoxicated" and that she was "unsteady on her feet," had "blood shot [sic] eyes," and had a "strong odor of alcoholic beverage about her person" which "became stronger as she spoke." Transcript at 6-7. We also note that Officer Paris did not believe Reid's answers about the damage, given it "appeared to be extremely fresh." Id. at 8. See Finger , 799 N.E.2d at 534 ("Deceptive responses may contribute to reasonable suspicion of criminal activity."). Under these circumstances, we conclude that the facts known to Officer Paris together with the reasonable inferences arising from such facts would cause an ordinarily prudent person to believe that criminal activity may be afoot. Accordingly, Reid's Fourth Amendment rights were not violated.

B. Fifth Amendment

[18] In Miranda v. Arizona , the United States Supreme Court held that the "prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Prior to any custodial interrogation, "the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Statements elicited in violation of Miranda generally are inadmissible in a criminal trial. Loving v. State , 647 N.E.2d 1123, 1125 (Ind. 1995). Further, " '[b]ecause the 5th [A]mendment right against self-incrimination does not apply to the obtaining of noncommunicative physical evidence,' such rights cannot be violated when the State acquires a chemical breath test from a suspect without first giving that suspect the assistance of counsel." Cohee v. State , 945 N.E.2d 748, 752 (Ind. Ct. App. 2011) (quoting Davis v. State , 174 Ind.App. 433, 367 N.E.2d 1163, 1166-1167 (1977) ), trans. denied . See also State v. McCaa , 963 N.E.2d 24, 30 (Ind. Ct. App. 2012) ("In ... a case [where] the officer [has a reasonable suspicion that criminal activity may be afoot, he] may briefly detain [a suspect] to conduct a limited 'non-invasive' search such as a 'pat down' for weapons, a license and registration check, or field sobriety tests .") (emphasis added) (quoting Snyder v. State , 538 N.E.2d 961, 963 (Ind. Ct. App. 1989), trans. denied ), trans. denied .

[19] The trigger to require Miranda rights advisement is custodial interrogation. State v. Brown , 70 N.E.3d 331, 335 (Ind. 2017) (citing White v. State , 772 N.E.2d 408, 412 (Ind. 2002) ). Questioning an individual the police suspect of a crime does not inherently render the questioning custodial interrogation. See Luna v. State , 788 N.E.2d 832, 834 (Ind. 2003) ("Nor is the requirement of warnings to be imposed simply because ... the questioned person is one whom the police suspect." (quoting Oregon v. Mathiason , 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) ). Courts look to the "totality of the circumstances" to determine whether a person was in custody. Brown , 70 N.E.3d at 335 (quoting Wright v. State , 766 N.E.2d 1223, 1229 (Ind. Ct. App. 2002) ). See also Hicks v. State , 5 N.E.3d 424, 429 (Ind. Ct. App. 2014) ("We examine all the circumstances surrounding an interrogation, and are concerned with objective circumstances, not upon the subjective views of the interrogating officers or the suspect."), trans. denied . The Seventh Circuit has compiled the following helpful list of factors identified by courts to "be significant in determining whether a person is in custody": whether and to what extent the person has been made aware that he is free to refrain from answering questions; whether there has been prolonged coercive, and accusatory questioning, or whether police have employed subterfuge in order to induce self-incrimination; the degree of police control over the environment in which the interrogation takes place, and in particular whether the suspect's freedom of movement is physically restrained or otherwise significantly curtailed; and whether the suspect could reasonably believe that he has the right to interrupt prolonged questioning by leaving the scene. Gauvin v. State , 878 N.E.2d 515, 521 (Ind. Ct. App. 2007) (quoting Sprosty v. Buchler , 79 F.3d 635, 641 (7th Cir. 1996), cert. denied , 519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 95 (1996) ), trans. denied . Ultimately, the inquiry is whether there has been a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Brown , 70 N.E.3d at 335 (quoting Stansbury v. California , 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994) ). See also Luna , 788 N.E.2d at 833 ("When determining whether a person was in custody or deprived of his freedom, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.") (internal citations omitted) (quoting California v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) ).

[20] Reid argues that Officer Paris conducted an interrogation of her without first advising her of her rights under the Fifth Amendment. She contends that he "then used the information he obtained from questioning [her], on her property and without an advisement of rights, to order her to submit to field sobriety tests, a portable breath test, and to obtain a warrant for a certified breath test when she refused to consent to one." Appellant's Brief at 8. She asserts in her reply brief that a "reasonable person in [her] circumstances would believe she was not free to leave." Appellant's Reply Brief at 5-6. The State argues that Reid was not in custody throughout Officer Paris's questions while they stood in her driveway.

[21] The evidence shows that, when Officer Paris arrived, Reid was standing outside a residence on a driveway by a vehicle with damage. Officer Paris was dispatched because Reid's husband believed she had "struck something with her vehicle." Transcript at 6. Officer Paris questioned Reid about the damage to her vehicle and did not indicate in his questions that she must remain at the scene. Based on our review of the record and the totality of the circumstances, and in light of the nature of the questioning and the relative degree of police control over the environment in which it was conducted, we cannot say that there had been a formal arrest or restraint on Reid's freedom of movement of the degree associated with a formal arrest at the time she made her statements. See State v. Hicks , 882 N.E.2d 238, 242 (Ind. Ct. App. 2008) (finding that a defendant, who was questioned about a vehicle stopped on railroad tracks, was not in custody for purposes of Miranda and noting that the police officer "in no way restrained [her] movements or used coercive tactics, and merely asked her who had been driving the vehicle"). Accordingly, we find Reid's Miranda rights were not violated.

C. Article 1, Section 11

[22] Article 1, Section 11 of the Indiana Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

[23] Although its text mirrors the federal Fourth Amendment, we interpret Article 1, Section 11 of our Indiana Constitution separately and independently. Robinson , 5 N.E.3d at 368. "When a defendant raises a Section 11 claim, the State must show the police conduct 'was reasonable under the totality of the circumstances.' " Id. (quoting State v. Washington , 898 N.E.2d 1200, 1205-1206 (Ind. 2008), reh'g denied ). "The focus of the exclusionary rule under the Indiana Constitution is the reasonableness of police conduct." Hardister , 849 N.E.2d at 573. "We consider three factors when evaluating reasonableness: '1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.' "

Robinson , 5 N.E.3d at 368 (quoting Litchfield v. State , 824 N.E.2d 356, 361 (Ind. 2005) ).

[24] Reid argues, in essence, that the degree of concern, suspicion, or knowledge that a violation had occurred was non-existent because, as she contends, Officer Paris had little reason to believe he was responding to a criminal act and no reason to believe that she had violated any law. She contends that the extent of law enforcement needs was negligible because "it would surely invite unreasonableness in administration" to allow law enforcement officers to "have reasonable suspicion ... based on every report of a person staggering in their driveway, or even intoxicated in their driveway," and to further permit officers "upon investigation of an intoxicated person at his or her residence ... to point to any damage to that person's vehicle as 'reasonable suspicion' that the crime of operating a vehicle while intoxicated had occurred." Appellant's Brief at 17. Reid also argues that the degree of intrusion was substantial because Officer Paris "confronted" her while she was at her home and "immediately began asking her accusatory questions, accusing her of lying to him, ordering her where to stand and to put out her cigarette, and reproaching her for impeding his investigation." Id. at 16. The State argues that law enforcement needs were high given Reid's statements and the reasonable inferences any ordinary person would draw from the situation and contends that Officer Paris's questioning and brief investigation in the driveway were reasonable and not significantly intrusive based on the circumstances. Appellee's Brief at 19.

[25] After he proceeded to the scene without his lights or sirens activated, Officer Paris saw two women in the driveway and observed, also in the driveway, Reid's damaged vehicle. He noticed that Reid, who indicated that she just arrived at home, was intoxicated and unsteady on her feet, had bloodshot eyes, and had a strong odor of an alcoholic beverage about her person that became stronger as she spoke. The degree of concern, suspicion, or knowledge that a violation had occurred was high. We also observe that the degree of intrusion here was minimal: in responding to a call to dispatch from Reid's husband, Officer Paris approached a driveway to encounter a vehicle with damage to the rear passenger-side bumper and a flat front passenger-side tire which had its rubber "shredded around the wheel," Transcript at 8, and to ask questions of Reid, who identified herself and answered affirmatively when asked "is this your vehicle" and "did you just get home." State's Exhibit 1 at 0:23-0:31.

[26] As for the extent of law enforcement needs, we note the Indiana Supreme Court has observed that "few Hoosiers would dispute the heartbreaking effects of drunk driving in our state" and that "law enforcement has a strong interest in preventing ... accidents" caused by alcohol-impaired driving. Robinson , 5 N.E.3d at 368. Under the totality of the circumstances, we conclude that Officer Paris's conduct did not violate Reid's rights under Article 1, Section 11 of the Indiana Constitution.

Conclusion

[27] For the foregoing reasons, we affirm the denial of Reid's motion to suppress.

[28] Affirmed and remanded for further proceedings.

Baker, J., and May, J., concur.

      We heard oral argument at the University of Evansville on November 1, 2018. We thank the entire University administration, faculty, and students, for their gracious hospitality. We also thank counsel for their informative and engaging oral advocacy.

      Officer Paris's body camera recording begins with his statement that "we got a call of a possible traffic accident up here ... a vehicle struck another vehicle." State's Exhibit 1 at 0:01-0:13.

      When asked at the hearing about his interaction with the second woman, Officer Paris stated that "at one point she started to approach us as I was trying to talk to [Reid] and I asked her to step back just as an officer[ ] safety issue." Transcript at 9.

      The body camera recording indicates that, before asking "what did you hit," Officer Paris stated to Reid "walk back here for me please," and "do me a favor and go ahead and first of all put out your cigarette please. Thank you." State's Exhibit 1 at 0:55-1:15.

      The body camera recording reveals that approximately sixteen and one-half minutes passed between Officer Paris's first statements to Reid and her refusal to take a chemical blood alcohol test.

      Although Reid mentions Article 1, Section 14 of the Indiana Constitution in her brief, see Appellant's Brief at 13-15, 19, and asserts in her reply brief that she has the "same rights under Article 1, Section 14... that she does under the Fifth Amendment," contending, without citation to authority, that she "is still entitled [sic] its protections even without raising a separate argument under it," Appellant's Reply Brief at 6, she does not develop any separate argument under that provision. Therefore, we analyze and resolve her claim under the Fifth Amendment. See Myers v. State , 839 N.E.2d 1154, 1158 (Ind. 2005) ("Where a party, though citing Indiana constitutional authority, presents no separate argument specifically treating and analyzing a claim under the Indiana Constitution distinct from its federal counterpart, we resolve the party's claim 'on the basis of federal constitutional doctrine and express no opinion as to what, if any, differences there may be' under the Indiana Constitution." (quoting Williams v. State , 690 N.E.2d 162, 167 (Ind. 1997) ) ).


source: Caselaw Access Project

author: KAFKER, J.

license: Public Domain

text:
    CAMBRIDGE STREET REALTY, LLC v. Melinda STEWART (and a consolidated case ).
    SJC-12440 SJC-12563
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued September 7, 2018 Decided December 20, 2018
    Joshua J. Bone, Boston, for the tenant.
    Eleftherios S. Papadopoulos, Winchester, for the landlord.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Melinda Stewart vs. Cambridge Street Realty, LLC.

   KAFKER, J.

Melinda Stewart (tenant), a recipient of a United States Department of Housing and Urban Development (HUD) Housing Choice Voucher (Section 8 voucher), fell behind on her rent, and her landlord, Cambridge Street Realty, LLC (landlord), served her with a notice of termination of tenancy (notice to quit) before bringing a summary process eviction action against her in the Boston Division of the Housing Court Department. Following a trial that, without advance notice, occurred on the same day as a hearing on the tenant's motion to vacate a default judgment, the landlord received a judgment of execution and forty-four dollars in back rent. Although the case was initially stayed after the tenant posted an appeals bond in the amount of forty-four dollars, the Housing Court judge nonetheless allowed the execution to issue on the landlord's representation that the tenant had violated a nonfinancial condition of the bond. Execution was then again stayed after the tenant filed a G. L. c. 211, § 3, petition with a single justice of this court.

This case presents a number of unresolved questions of law: whether (1) termination of a residential tenancy by a legally adequate notice to quit is necessary to confer subject matter jurisdiction on the Housing Court; (2) the judge erred or otherwise abused his discretion when he failed to provide advance notice that he might conduct trial on the same day as a motion hearing on a default judgment and denied a continuance requested under Housing Court Standing Order 1-01 (2001) to a self-represented litigant represented by a limited assistance volunteer attorney who was willing to enter a full appearance; and (3) a judge has the authority to impose a nonfinancial condition on an appeals bond issued under G. L. c. 239, § 5, with respect to an appeal from a judgment for possession of land or tenements.

We hold that a legally effective notice to quit is a condition precedent to a summary process action and part of the landlord's prima facie case but is not jurisdictional. We further explain that the notice to quit was not defective in the instant case. We nonetheless vacate the judgment and remand for a new trial because we hold that the Housing Court judge abused his discretion when, without providing advance notice that he would conduct trial on the same day as the scheduled hearing on the motion to vacate the default, he denied the volunteer attorney's request for a continuance provided by Housing Court Standing Order 1-01. In addition, we hold that the judge lacked statutory authority to impose a nonfinancial condition on the appeals bond, and we therefore reverse the order of execution arising from the tenant's alleged noncompliance with the appeals bond.

1. Background. a. Standard of review. When reviewing the decision of a trial judge in a summary process action, "we accept [the judge's] findings of fact as true unless they are clearly erroneous," but "we scrutinize without deference the legal standard which the judge applied to the facts" (citation omitted). Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306, 820 N.E.2d 815 (2005).

b. Facts and procedural history. The facts, according to the undisputed facts in the record, the parties' joint statement of facts, and the judge's decision below, are as follows. In the summer of 2010, the tenant began to lease an apartment from the landlord. Due to her low income, the tenant qualified to receive a Section 8 voucher administered by the Boston Housing Authority (BHA). The tenant and the landlord entered into a BHA-provided lease (model lease) and a HUD-approved addendum (HUD addendum). The landlord agreed in the HUD addendum that it would "only terminate the tenancy in accordance with the lease and HUD requirements." These requirements included specific notice provisions. In particular, per the HUD addendum, the landlord had to provide "the tenant a notice that specifies the grounds for termination of tenancy." Additionally, the model lease stated that the landlord "shall" include specific termination language in its termination notice.

The tenant's lease began to run in August 2010, and provided that, after a year, it would automatically renew in successive month-to-month terms, unless the landlord terminated the lease for one of several permissible reasons. The tenant initially lived in the apartment with her son until he was killed in a homicide in 2013. The son's death reduced the income available to the tenant. Despite receiving financial support from a rental assistance organization, the tenant began to fall behind on her share of the monthly rent each month starting in February 2015. The landlord sent the tenant numerous "rent reminders" stating the amount of overdue rent each month.

In August 2016, the landlord began the process of evicting the tenant. Through its counsel, the landlord had a constable serve the tenant with a notice to quit on August 31, 2016, informing the tenant that it was terminating her lease for serious and repeated lease violations, specifically, paying her rent after the first of the month, as well as improperly storing items in the building's common areas. The notice to quit demanded that the tenant vacate the premises within thirty days or face eviction.

After the tenant declined to move out by September 30, 2016, the landlord served the tenant with a summary process summons and complaint that set a hearing date of October 20, 2016. The landlord received a default judgment when the tenant did not appear for trial on that date. The same day, however, the tenant filed a motion to vacate the default judgment on the advice of a clerk at the Housing Court. The court sent the parties a "Notice of Motion Hearing" informing them that the tenant's motion to vacate the default judgment would be heard on November 10, 2016, which it was. At the motion hearing, the landlord was represented by counsel, while the tenant engaged a volunteer attorney participating in the Housing Court's "lawyer for a day program" (LDP attorney) on a limited assistance basis to represent her in settlement talks and on the motion. The court granted the motion to vacate the default and announced that it would conduct a trial on the same day, which it did.

Shortly after the trial commenced, the LDP attorney who had been providing limited representation to the tenant in settlement talks and on the motion to vacate told the judge that she would be willing to enter a full appearance and requested a continuance pursuant to Housing Court Standing Order 1-01. That standing order provides that if an LDP attorney assisting a pro se litigant in mediation does not enter an appearance but assists the litigant in preparing a motion for a continuance, the "motion shall be allowed if good cause is shown," while if the LDP attorney does enter an appearance, "the litigant shall be entitled to a two (2) week continuance of trial." Housing Court Standing Order 1-01(5). After the LDP attorney's motion, the judge declared that, absent a settlement, "the trial's going forward today." When no settlement was reached, the LDP attorney withdrew her motion for a continuance and submitted her withdrawal of limited appearance, and the tenant went through the trial self-represented.

Judgment entered for the landlord on November 15, 2016. In his written decision, the Housing Court judge held that the landlord had not proved that the tenant committed a lease violation by improperly storing her personal property. With respect to the late payment of rent, the judge found that the outstanding balances due each month were not large, and that the total amount of the rent arrearage was modest. The judge nonetheless held that the tenant's late payments constituted a serious and repeated lease violation that entitled the landlord to recover possession of the premises. The judge ordered execution and damages in the amount of the outstanding rent, forty-four dollars.

The tenant timely appealed from the judgment and filed a motion to waive the statutorily required appeals bond. The judge subsequently held a hearing on the motion to waive the bond at which the landlord was represented by counsel and the tenant was self-represented. The judge issued an "appeal bond order" that declined to waive the bond and ordered it set at $234.51, the judgment amount plus certain costs and fees, which the tenant was to post or have her appeal dismissed. The order also stated that "[a]s a further condition of the bond" the tenant had to pay $332 in monthly use and occupancy to the landlord during the pendency of the appeal, provide the landlord with a key to her apartment, and allow the landlord access to perform repairs on twenty-four hours' advance written notice. The appeal bond order stated that failure to comply with these conditions would entitle the landlord to file a motion to dismiss the appeal. The tenant appealed from the denial of her motion to waive the bond and the amount of the bond, and a single justice of the Appeals Court affirmed the order, except for reducing the amount of the bond to forty-four dollars, which the tenant posted.

The appeal entered in the Appeals Court in July 2017, and we transferred the case to this court on our own motion in November 2017. The landlord subsequently filed two motions to dismiss the appeal for failure to comply with conditions of the appeals bond. The first of these motions, concerning the tenant's payment of use and occupancy, was denied by the Housing Court judge. The second motion, based on the tenant's alleged refusal to allow the landlord access, was likewise denied by a different judge. Despite denying the motion, however, the judge's order stated that execution would issue if the landlord submitted affidavits averring that the tenant had not permitted the landlord entry on June 15, 2018, to adjust the water pressure.

On June 18, 2018, the landlord submitted two affidavits from its counsel and a contractor alleging that the tenant had interfered with their diagnostic test on the water pressure in her bathroom sink. Execution issued, a notice of levy was set, and the tenant's application to the Housing Court for a temporary restraining order was denied. On June 25, the day before the levy, the tenant filed her G. L. c. 211, § 3, petition before a single justice of this court, seeking a stay of execution. The single justice stayed the execution and subsequently issued a reservation and report consolidating the tenant's petition with her pending appeal.

2. Discussion. a. Subject matter jurisdiction. We first address the tenant's argument that the Housing Court lacked subject matter jurisdiction over her summary process action because the landlord's notice to quit failed to comply with the notice provisions of her lease and thus never terminated her tenancy. The tenant argues that a defective notice to quit deprives the court of subject matter jurisdiction, and thus she may raise it at any stage of the proceedings, even though she did not raise it in the Housing Court. See, e.g., Maxwell v. AIG Dom. Claims, Inc., 460 Mass. 91, 99, 950 N.E.2d 40 (2011) ("the question of subject matter jurisdiction may be raised by the parties at any time"). The landlord argues, to the contrary, that the legal adequacy of its notice to quit was not jurisdictional, and that the tenant waived any challenges to that notice by failing to raise them below. We conclude that a legally adequate notice to quit is not jurisdictional but rather a condition precedent to a summary process action that is part of the landlord's prima facie case. Consequently, the tenant waived the issue when she failed to object to the adequacy of the notice at trial. Regardless, the notice to quit here was legally adequate.

We start our jurisdictional analysis with the text of the summary process statute, G. L. c. 239. See Northeast Energy Partners, LLC v. Mahar Regional Sch. Dist., 462 Mass. 687, 692, 971 N.E.2d 258 (2012) ("The starting point of our analysis is the language of the statute ..." [citation omitted] ). There is no question that summary process eviction actions generally fall within the Housing Court's jurisdictional grant. See G. L. c. 185C, § 3 (vesting Housing Court with jurisdiction over "all civil actions" arising under G. L. c. 239). See also Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 338, 50 N.E.3d 419 (2016) (observing that G. L. c. 185C, § 3, grants Housing Court jurisdiction to hear summary process evictions). Indeed, hearing eviction actions is an express and essential Housing Court function.

The plain text of the summary process statute, G. L. c. 239, § 1, also defines the role of a notice to quit in the exercise of that jurisdiction. That statute provides in relevant part that "if the lessee of land or tenements or a person holding under him holds possession without right after the determination of a lease by its own limitation or by notice to quit or otherwise ... the person entitled to the land or tenements may recover possession thereof under this chapter." Termination of a lease, by its own terms or by a notice to quit, is thus a condition precedent to bringing suit. See Boston v. Talbot, 206 Mass. 82, 92, 91 N.E. 1014 (1910) (proper termination is "[o]ne of the conditions" that must be fulfilled before "summary process may be maintained"). See also New Bedford Hous. Auth. v. Olan, 435 Mass. 364, 373, 758 N.E.2d 1039 (2001) (analyzing termination notice as "prerequisite to filing suit" that may be waived).

There is a split of authority in the case law of other States regarding whether a defective notice to quit is jurisdictional or a condition precedent to bringing suit that does not deprive the court of jurisdiction. Compare, e.g., Waterbury Twin, LLC v. Renal Treatment Ctrs.-N.E., Inc., 292 Conn. 459, 466, 974 A.2d 626 (2009) (defective notice to quit concerns subject matter jurisdiction), with Sovereen v. Meadows, 595 P.2d 852, 854 n.3 (Utah 1979) (defective notice to quit does not concern subject matter jurisdiction). There is also not a great deal of explanation why different State courts reach the result they do on the jurisdiction question. Based on our own analysis of the legal, practical, and institutional considerations involved, we conclude that the issue whether a notice to quit is legally adequate is not jurisdictional.

We begin by recognizing that this is a question properly within the Housing Court's general subject matter jurisdiction, and indeed one that draws on the Housing Court's knowledge and expertise. "Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought" (quotation and citation omitted). Middleborough v. Housing Appeals Comm., 449 Mass. 514, 520, 870 N.E.2d 67 (2007). As discussed, a summary process eviction action is clearly a question at the core of the Housing Court statute and the relief that the court provides.

Even where the general subject matter is covered by the statute, however, the party bringing suit must have standing for the court to have subject matter jurisdiction. See HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199, 981 N.E.2d 710 (2013) ("standing is a question of subject matter jurisdiction"). The standing requirement exists because "[c]ourts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property," but rather only those matters in which they have a "definite interest" such that their "rights will be significantly affected by a resolution of the contested point" (citations omitted). Id. at 199, 200, 981 N.E.2d 710. In Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 546-547, 97 N.E.3d 319 (2018) ( Hatcher ), we found that a litigant who did not have an ownership, leasehold, or other property interest in the property at issue had no standing to bring a summary process action, and therefore we held that the court lacked subject matter jurisdiction. Here, by contrast, there is no dispute that the landlord had such an interest. An inadequate notice would not deprive the landlord of that interest; rather, it would be a failure of the landlord's prima facie case. See, e.g., Middleborough, 449 Mass. at 520-521, 870 N.E.2d 67 ("fundability" requirement for administrative permit properly viewed not as "jurisdictional requirement" for appeal from permit denial but as "substantive aspect of ... prima facie case"). See also Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 57, 927 N.E.2d 455 (2010) ( Doe No. 3974 ) (requirement that board establish residency element of "sex offender" classification "a question of substance, not subject matter jurisdiction"). The landlord here thus has standing.

We also consider the practical and institutional consequences of treating an inadequate notice to quit as jurisdictional. If jurisdiction were in fact dependent on the adequacy of the notice, the issue would not need to be raised in the first instance in the Housing Court. See Hatcher, 479 Mass. at 547, 97 N.E.3d 319, quoting HSBC Bank USA, N.A., 464 Mass. at 199, 981 N.E.2d 710 ("whenever a problem of subject matter jurisdiction becomes apparent to a court, the court has 'both the power and the obligation' to resolve it, 'regardless [of] whether the issue is raised by the parties' "); Doe No. 3974, 457 Mass. at 56, 927 N.E.2d 455 ("questions of subject matter jurisdiction may be raised at any time ... and are not waived even when not argued below" [quotations and citation omitted] ). This would be inconsistent with both the timely resolution of landlord-tenant disputes and the importance of litigating the issue in the first instance in the Housing Court rather than on appeal. See Bank of N.Y. v. Bailey, 460 Mass. 327, 333, 334, 951 N.E.2d 331 (2011) (noting that Legislature created Housing Court as "specialized forum" for housing matters, specifically to further "just, speedy, and inexpensive" resolution of summary process cases [citations omitted] ).

Accordingly, we make explicit today that a defective notice to quit "represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction." 170 W. 85th St. Tenants Ass'n v. Cruz, 173 A.D.2d 338, 339, 569 N.Y.S.2d 705 (N.Y. 1991). See Residential Landlord-Tenant Benchbook 32 (W.E. Hartwell ed., 3d ed. 2013) (notice to quit requirement is not " 'jurisdictional' in nature"). To clarify further, the legal adequacy of the notice to quit "is more properly characterized as an element of the landlord's prima facie case, waivable by the tenant, than as a part of the subject matter jurisdiction of the court" (citation omitted). Priel v. Priel, N.Y. L.J., Mar. 5, 1993, at 25, cols. 3-4 (App. Term Jan. 3, 1992). Cf. Middleborough, 449 Mass. at 520-521, 870 N.E.2d 67.

Because we conclude that the adequacy of the notice to quit requirement of G. L. c. 239, § 1, is not jurisdictional, and the issue was not raised below, we therefore decide that the tenant waived the issue of the adequacy of the notice to quit.

b. Legal sufficiency of the notice to quit. Despite concluding that the tenant waived the argument, we nonetheless address the issue whether the landlord substantially complied with the requirements for a legally adequate notice to quit because the issue has been fully briefed and merits clarification. See Olan, 435 Mass. at 372, 758 N.E.2d 1039 (despite waiver of tenant's challenge to notice to quit, "[b]ecause there is some uncertainty over the question, because it involves a matter of public interest that is likely to arise in the future, and where the issue has been fully briefed, we will address the issue").

As discussed supra, the lease agreements between the parties contained several provisions concerning termination. Because a lease is a contract, Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 198, 293 N.E.2d 831 (1973), its proper interpretation is a "question of law for the court" (citation omitted). Freelander v. G. & K. Realty Corp., 357 Mass. 512, 516, 258 N.E.2d 786 (1970). Here, we conclude that the landlord substantially complied with the notice requirements imposed by the lease with respect to lease termination.

Our case law on the adequacy of a notice to quit has long distinguished between minor errors of technicality or form and material errors of substance. See Torrey v. Adams, 254 Mass. 22, 25-26, 149 N.E. 618 (1925) ("Technical accuracy in the wording of such a notice is not required, but it must be so certain that it cannot reasonably be misunderstood ..."). To be defective such that it fails to terminate a lease, a notice to quit must involve a material error or omission, i.e., a defect that has some meaningful practical effect. Compare, e.g., Steward v. Harding, 2 Gray 335, 335, 68 Mass. 335 (1854) (notice defective where it failed to indicate day on which tenant was to quit), with Clark v. Keliher, 107 Mass. 406, 409 (1871) (in absence of uncertainty, notice not defective despite mistake in name of tenant). In other words, substantial compliance with statutory or contractual notice to quit requirements is necessary to effect lease termination, but minor errors or omissions will not render the notice to quit defective such that a summary process action cannot be maintained. Cf. Bank v. Thermo Elemental, Inc., 451 Mass. 638, 670, 888 N.E.2d 897 (2008) ("[m]inor inaccuracies, omissions, and errors" in notice required prior to commencing suit under environmental protection statute does not require dismissal of action).

Here, as discussed, the landlord agreed in paragraph 13(e) of the model lease that it "shall" include specific termination language in its notice to quit. This required language, however, did not accurately convey the landlord's termination options under the lease. While the landlord failed to include the specific language, it did more accurately state, "Pursuant to Paragraph 13 of your Lease, you understood and agreed that the owner could terminate the tenancy for serious or repeated violations of lease, and/or other good cause."

This does not conclude our analysis. Per the HUD addendum, the landlord had to provide "the tenant a notification that specifies the grounds for termination of tenancy." A notice to quit may still be defective if it fails to comply with the lease's requirement that it be specific. See, e.g., Residential Landlord-Tenant Benchbook, supra at 8 (collecting cases where notice was insufficiently specific). See also Dejan vs. Storms, Mass. Hous. Ct., No. 12H84SP0001030 (Boston Div. Apr. 13, 2012) (dismissing summary process action where notice to quit lacked "sufficient clarity and specificity" required by HUD-mandated lease). Here, the three-page notice to quit gave the tenant thirty days' advance notice and knowledge that her tenancy was terminating at the end of the month for detailed conduct that violated certain accurately referenced lease provisions. The notice to quit thus complied with the contractual requirement that it be specific.

Under these circumstances, we conclude that the landlord substantially complied with its notice obligations for purposes of lease termination. Therefore, even if the issue had not been waived, we would have agreed with the Housing Court judge that the notice to quit was legally sufficient for the landlord to maintain its summary process action.

c. Notice and opportunity to be heard. Although we conclude that the court properly had subject matter jurisdiction over the summary process eviction, we nonetheless must consider whether, as the tenant argues, she was deprived of her right to a meaningful opportunity to be heard. We conclude that the lack of any advance notice of trial to a self-represented party, combined with an improper denial of a continuance provided by a Housing Court standing order that would have allowed the self-represented party to obtain full representation at a trial to be held two weeks later, constituted an abuse of discretion. We therefore vacate the Housing Court judge's judgment of November 15, 2016, and remand for a new trial.

The Housing Court Standing Orders require that "each judge ... must, consistent with applicable statutes and the rules of court, exercise sound judgment in a manner that affords the parties a fair opportunity to develop and present their claims to the court." Housing Court Standing Order 1-04(I) (2004). In the Housing Court, where self-representation is common, and thus the potential for confusion is high, this can be particularly challenging. See Hatcher, 479 Mass. at 554 n.11, 97 N.E.3d 319 (in 2017, ninety-three percent of tenants and thirty-three percent of landlords in summary process housing cases were self-represented); I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 561, 987 N.E.2d 223 (2013) ("our courts have recognized that self-represented litigants must be provided the opportunity to meaningfully present claims and defenses"). The volunteer "lawyer for a day" program created by Housing Court Standing Order 1-01 seeks to address the challenge and promote the fairness of the process by allowing self-represented parties to obtain limited representation from volunteer attorneys.

In the instant case, the tenant's ability to have a fair opportunity to present and develop her claims or defenses was compromised when she did not receive any notice that a trial on the merits would occur until the very day -- indeed the very afternoon -- of the trial, November 10, 2016. Without further guidance from the judge, notification of the original trial date of October 20, 2016, did not provide adequate notice that trial would occur immediately following the vacating of the default judgment on a different day, weeks later. Cf. Konstantopoulos v. Whately, 384 Mass. 123, 135, 424 N.E.2d 210 (1981) ("oral notice given one and one-half hours prior to the revocation hearing ... did not comport with a rudimentary standard of due process"); Adoption of Zev, 73 Mass. App. Ct. 905, 906, 899 N.E.2d 111 (2009) (court's unannounced conversion of pretrial conference concerning termination of parental rights into trial on merits on same day violated parent's due process rights).

Although not specifically addressed by the parties, the tenant's ability to present a meaningful defense was further compromised by the judge's denial of a continuance, requested pursuant to the court's standing order, which forced the tenant immediately to proceed to trial pro se. As discussed, under certain circumstances, such a continuance is mandatory under the Housing Court Standing Orders. Specifically, Housing Court Standing Order 1-01(5) provides that if a pro bono attorney in the "lawyer for a day program" who is "assisting or representing a pro se litigant in mediation does enter an appearance in that litigant's action, the litigant shall be entitled to a two (2) week continuance of trial" (emphasis added). See Housing Court Standing Order No. 1-04(V) (same). The standing order also provides separately that, if the LDP attorney assisting the litigant does not enter an appearance, a motion for continuance "shall be allowed if good cause is shown." Housing Court Standing Order 1-01(5).

Here, the lawyer, who was apparently acting pursuant to the lawyer for a day program, had filled out a notice of limited appearance form on which she checked the box indicating that she was representing the tenant on the motion to vacate the default. She had not, however, checked a different box on the form entitled "Mediation." She had nonetheless been involved in settlement talks and had communicated the existence of these talks to the judge. She expressly stated to the judge, "[W]e are requesting a continuance under the standing order, and we're willing to enter a full appearance." Although the form and her request were not perfectly clear, we infer from them that she was referencing and relying on the provision of standing order 1-01 providing for the mandatory two-week continuance.

The judge nonetheless rejected the request, stating that he would not grant any continuance. The attorney then withdrew both the continuance motion and her limited appearance. The tenant then immediately had to proceed to trial pro se against the represented landlord.

We conclude that the continuance should have been granted in the instant case. It appears to have been mandatory pursuant to the standing order. The purpose of the continuance in the standing order is to facilitate representation at trial. Although the "mediation" box was not checked, the attorney was assisting in settlement talks and the judge was aware of that assistance. Even if the continuance were not mandatory, it was error to reject the request, as there was good cause shown because the judge's failure to grant the continuance significantly compromised the tenant's ability to receive "a fair opportunity to develop and present [her] claims to the court." Housing Court Standing Order 1-04(I).

In sum, the combination of requiring a self-represented party to proceed immediately to trial without advance notice and denying an apparently mandatory continuance that would have provided the party with counsel at such a trial only two weeks later constituted an abuse of discretion that deprived the self-represented party of a meaningful opportunity to develop and present her claims as provided by the Housing Court Standing Orders. See Housing Court Standing Order 1-04(I). We thus vacate the judgment and remand for a new trial.

d. Appeals bond. Having decided that the Housing Court judge erred, we must consider the matter reported to us by the single justice concerning the tenant's petition for relief under G. L. c. 211, § 3, from the order of execution that the judge issued after finding that the tenant had violated a condition of her appeals bond. Because we conclude that the judge exceeded his authority when he placed a nonfinancial condition on the appeals bond, and then ordered an execution of judgment based on his determination that the tenant had violated the nonfinancial condition of the bond, we grant the requested relief and reverse the execution of judgment ordered by the judge on June 18, 2018.

To obtain review under G. L. c. 211, § 3, a petitioner must face an "irreparable loss of significant rights" that cannot be remedied in "the normal course of trial and appeal" (citation omitted). DuPont v. Superior Court, 401 Mass. 122, 123, 514 N.E.2d 1086 (1987). Given the unusual procedural posture of this case, and the novel legal issue presented, we conclude that the requirements of G. L. c. 211, § 3, are met in the instant case, and that the petitioner is entitled to relief.

Here, the tenant complied with the normal procedure of the appeals bond statute, G. L. c. 239, § 5, and posted the required bond. But the judge then ordered an execution of judgment based on his determination that the tenant had violated a condition of the bond requiring the tenant to grant access to the landlord to make repairs. This occurred while the appeal of the summary process case was pending in this court. Unless specifically authorized, the judge had an obligation to refrain from issuing an order that would "render the appeal moot or otherwise affect the issues before the appellate court." Springfield Redev. Auth. v. Garcia, 44 Mass. App. Ct. 432, 435, 691 N.E.2d 965 (1998). See Rule 11(b) of the Uniform Summary Process Rules (1980) (applying Mass. R. Civ. P. 62 [d], 365 Mass. 829 [1974], requiring automatic stay of execution of judgment pending appeal, to summary process actions). Here, the judge did not have the authority to order execution of judgment. Specifically, we hold that the plain text of the appeals bond statute does not authorize the inclusion of nonfinancial conditions on the bond and the execution of judgment based on the failure to comply with such nonfinancial conditions. The statute states that "the defendant shall ... give bond in a sum as the court orders, payable to the plaintiff," in an amount "conditioned to pay to the plaintiff ... all rent accrued at the date of the bond, all intervening rent, and all damage and loss which the plaintiff may sustain" while the appeal is pending (emphasis added). G. L. c. 239, § 5 (c ). By its plain text, the statute is clear that a judge may only impose financial obligations on the appeals bond. See Camargo's Case, 479 Mass. 492, 498, 96 N.E.3d 673 (2018) (legislative intent may be clear from "plain and unambiguous" language of statute). The statute also provides for an expedited process, including review by a single justice of the Appeals Court, and dismissal of the case when these financial conditions are not met. Adding nonfinancial conditions to the appeals bond process, and allowing execution of judgment based on the failure to comply with such conditions, transforms the limited nature and purpose of the appeals bond statute, generating the type of overlapping trial and appellate court processes and confusion present here.

The landlord raises the practical concern that, in the absence of nonfinancial conditions on an appeals bond, the landlord would have "no ability" to maintain its property during the pendency of an appeal. This is not the case. The proper procedure for the landlord to seek this variety of relief would have been an injunction seeking interlocutory relief while the appeal was pending. Such an injunction could have provided the landlord with access to the apartment without an automatic execution. It would have allowed the landlord to protect its property and the trial court to act appropriately without disrupting the case on appeal. Indeed, while the appeal has been pending in this court, the landlord has followed this very course and obtained an injunction requiring the tenant to permit the landlord access to the apartment to make repairs.

We therefore hold that the Housing Court judge's order of execution of judgment for failure to comply with a nonfinancial condition of the bond was improper. Accordingly, we reverse the June 18, 2018, order of execution.

3. Conclusion. For the reasons discussed, we vacate the judgment of November 15, 2016, and remand for a new trial. Additionally, we reverse the June 18, 2018, order of execution.

So ordered.

      After this case was brought, the Housing Court Department was reorganized by statute, and the Boston Division became part of the Eastern Division. St. 2017, c. 47, § 78.

      "In the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program (Section 8), HUD pays rental subsidies so eligible families can afford decent, safe and sanitary housing. The Section 8 program is generally administered by State or local governmental entities called public housing agencies (PHAs). HUD provides housing assistance funds to the PHA. HUD also provides funds for PHA administration of the programs. Section 8 housing assistance may be 'tenant-based' or 'project-based.' With tenant-based assistance, [f]amilies select and rent units that meet program housing quality standards. If the PHA approves a family's unit and tenancy, the PHA contracts with the owner to make rent subsidy payments on behalf of the family." (Quotations and citations omitted.) Figgs v. Boston Hous. Auth., 469 Mass. 354, 355 n.2, 14 N.E.3d 229 (2014). Due to limited funds, PHAs typically maintain a waiting list for Section 8 voucher applicants. 18B D.A. Randall & D.E. Franklin, Municipal Law and Practice § 25.18 (5th ed. 2006).

      "The termination notice shall include the following language: 'Your tenancy can be terminated only at the end of the Initial Term or at the end of a Successive Term for other good cause, or during the Initial Term or Successive Term for serious or repeated violations of this Lease, violation of Federal, State or local law. The reason for termination of your Lease is _____________.[']"

      The landlord and the Boston Housing Authority (BHA) had entered into a "Housing Assistance Payments" contract that required the BHA to pay most of the tenant's rent each month promptly and directly to the landlord. At the time of lease signing, the tenant's total monthly rent was $1,324, with the landlord receiving $1,044 of the rent from the BHA. The tenant's monthly rent increased to $1,500 in June 2016, with her share increasing to $332. The tenant's income at the time of trial was $700 per month.

      The tenant claimed that she inadvertently went to the wrong court room on the original trial date, and that by the time she realized her mistake she had been defaulted.

      As discussed infra, while not expressly stated in the record, we infer that the tenant's attorney was participating in the "lawyer for a day" program established by Housing Court Standing Order 1-01 whereby volunteer attorneys provide limited assistance to self-represented parties in the Housing Court.

      The form Notice of Limited Appearance used by the Housing Court instructs attorneys participating in the Housing Court's "lawyer for a day program" (LDP attorneys) to "identify the discrete issues within the event covered by the appearance" by checking one of several boxes. Here, the tenant's attorney checked the box next to "[m]otion to vacate default judgment," but not the box next to "[m]ediation." Nonetheless, the LDP attorney had been assisting the tenant in settlement talks that, as she informed the judge, had been proceeding for several hours prior to the trial. The landlord's settlement demand would have required the tenant to pay the outstanding rent balance and move out within a certain amount of time.

      The landlord filed two motions to dismiss the appeal before the appeal was entered in the Appeals Court based on the tenant's failure to provide the landlord with keys to her unit and to order a hearing transcript. These motions were either rendered moot or denied.

      The verbatim language required the landlord to represent that the lease may be "terminated only ... during the ... Successive Term for serious or repeated violations" of the lease or violations of State and Federal law, and may be terminated only "at the end of a Successive Term for other good cause" (emphases added). But paragraph 13(a)(8) of the model lease also entitled the landlord, under certain circumstances, to terminate the lease "[d]uring ... any Successive Term ... for 'other good cause' " (emphasis added). While that paragraph restricted the types of "other good cause" terminations available to the landlord, paragraph 13(c) went on to provide that the "other good cause" situations explicitly provided in the lease were "non-exclusive" examples that "shall in no way be construed as a limitation on the application of 'other good cause' to situations not included" in the lease. The verbatim notice to quit language required by the model lease therefore required the landlord to represent that its termination options were more limited than actually was permitted under the contract.

      This paragraph closely follows 24 C.F.R. § 982.310(e)(1) (2016), the HUD regulation -- binding on the landlord by virtue of paragraph 8(a) of the HUD addendum -- whereby a landlord of a tenant holding a Section 8 voucher "must give the tenant a written notice that specifies the grounds for termination of tenancy during the term of the lease. The tenancy does not terminate before the owner has given this notice, and the notice must be given at or before commencement of the eviction action."

      As mentioned, the notice of the hearing on the tenant's motion to vacate the default judgment did not indicate that, if the motion were allowed, the tenant should be prepared to go to trial the same day. Neither the Uniform Summary Process Rules nor the Housing Court Standing Orders provides for notice of a new hearing date to a defendant who has removed a default judgment. The Uniform Summary Process Rules "provide an automatic hearing date that can be predetermined and communicated to the defendant with the summons and complaint." Commentary to Rule 2 of the Uniform Summary Process Rules, Massachusetts Rules of Court, at 477 (Thomson Reuters 2018). See Rule 2(c) of the Uniform Summary Process Rules (1993) (scheduling hearing for second Thursday after entry date of summary process action); Housing Court Standing Order 1-04(V) (2004) (declining to issue scheduling orders in summary process cases and instead referring parties to Uniform Summary Process Rules to determine hearing date). We recognize, however, that summary process proceedings are intended to be "just, speedy, and inexpensive." Rule 1 of the Uniform Summary Process Rules (1980). Therefore, to prevent unnecessary delay and to provide proper notice, the Housing Court could, for example, state on its notice of motion hearing that trial may occur on the same day if the default is vacated.

      The judge insisted that the tenant either accept the landlord's settlement offer or face trial, apparently because he did not want to inconvenience the landlord's counsel and witnesses:
      "I'll give you [ (the tenant's attorney) ] two minutes to talk to your client. If not, I'm proceeding with the trial. I'm not going to have these people wait here till four o'clock today, and at four o'clock you come in saying someone will enter an appearance when we're on for ... trial. So the trial's going forward today.... I will give you a chance to communicate with the tenant as to whether she wants to resolve it. If not, I'm proceeding with the trial."

      Housing Court Standing Order 1-10 (2010) provides that "an attorney shall withdraw" after "completion of the representation within the scope of a limited appearance" (emphasis added). After vacating the default judgment, therefore, the tenant's attorney was obliged to withdraw.

      While the decision "[w]hether a continuance ought to be granted commonly rests in the discretion of the trial tribunal" (citation omitted), Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 392, 995 N.E.2d 73 (2013), we have found the denial of a motion for a continuance improper where "good cause" existed for its granting, see Monahan v. Washburn, 400 Mass. 126, 129, 507 N.E.2d 1045 (1987).

      The single justice reported the petition as one seeking relief from the Housing Court judge's June 25, 2018, order denying the tenant's application for a stay of levy. The tenant properly moved first for a stay in the Housing Court under Mass. R. A. P. 6 (a) (1), as appearing in 454 Mass. 1601 (2009). We consider the tenant's petition to challenge the validity of the underlying execution issued on June 18 as a result of the June 12 order.

      The summary process appeals bond statute requires a defendant who has lost a summary process case to post bond as a condition of prosecuting an appeal. G. L. c. 239, § 5 (c ). An indigent tenant with a meritorious appeal can move in the Housing Court for an appeals bond waiver. Id. at § 5 (e ). A tenant can further appeal from a denial of a waiver or the amount of any periodic payments to a single justice of the Appeals Court. Id. at § 5 (f).

      The landlord argues that the tenant waived her challenge to the appeals bond by failing to raise it when she appealed from the denial of the bond waiver and the amount of the bond to the single justice of the Appeals Court. But it is not clear that the tenant could have raised her challenge when the bond was first set, because G. L. c. 239, § 5 (f ), provides that a tenant may only challenge the amount of the bond or any periodic payments and expressly limits the power of a single justice reviewing the terms of the bond to modifying factual findings or reducing or rescinding a "bond, deposit or periodic payment." Regardless, as the nonfinancial bond condition exceeds the statutory authority of the judge, and thus implicates subject matter jurisdiction, we may consider it now. See Maxwell v. AIG Dom. Claims, Inc., 460 Mass. 91, 99, 950 N.E.2d 40 (2011) (challenge to subject matter jurisdiction can be raised at any point in proceedings). See also Ryan v. Kehoe, 408 Mass. 636, 641, 562 N.E.2d 831 (1990) ("The statutory grant of jurisdiction to the Housing Court limits the court's equity powers to enumerated statutory claims ...").

      The statute permits dismissal of an appeal by the trial court only when a tenant fails to post the initial appeals bond or use and occupancy payment. See G. L. c. 239 § 5 (h ) ("the appeal from the judgment shall be dismissed" within five days if, after seeking review of amount of bond or periodic payments from single justice of Appeals Court, tenant fails to file "the amount of bond, deposit or periodic payment"). See also PGR Mgt. Co. v. Credle, 427 Mass. 636, 639, 694 N.E.2d 1273 (1998) (as provided by statute, tenant's appeal properly dismissed through her failure to file appeals bond). Conversely, "if the defendant posted bond after losing an appeal of the trial court's denial of waiver of that bond, execution would continue to be unavailable pending the completion of the appeal of the underlying judgment under Rule 62(d)." Commentary to Rule 13 of the Uniform Summary Process Rules, Massachusetts Rules of Court, at 481 (Thomson Reuters 2018). Here, the tenant does not challenge the propriety of the financial conditions on the bond.

      If properly requested, an injunction, as the landlord conceded at oral argument, would be available in these circumstances. See G. L. c. 185C, § 3 (vesting Housing Court with equitable jurisdiction); G. L. c. 231, § 117 (Housing Court may make "proper interlocutory orders, pending ... appeal," including injunctions); Rule 9 of the Uniform Summary Process Rules (1980) (equitable relief available in summary process actions); New Bedford Hous. Auth. v. Olan, 435 Mass. 364, 375, 758 N.E.2d 1039 (2001) (Sosman, J., concurring) (observing that preliminary injunctions are available under Rule 9 of Uniform Summary Process Rules"to prevent the ongoing harm of violence or threatened violence on public housing premises"); C.F. Downing, Residential and Commercial Landlord-Tenant Practice in Massachusetts § 9.8.5 (3d ed. 2016) (describing process for landlords to obtain injunctions).

      We thus do not reach the tenant's due process argument that she should have received a prior adversary hearing to determine noncompliance with the appeals bond condition. We deny the landlord's request for attorney's fees because the tenant's case is not frivolous.


author: BUDD, J.

text:
    COMMONWEALTH v. Herico ANDRADE.
    SJC-12088
    Supreme Judicial Court of Massachusetts, Plymouth..
    Argued October 5, 2018. Decided December 21, 2018
    James W. Rosseel, Worcester, for the defendant.
    Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.
   BUDD, J.

In June 2015, a jury convicted the defendant, Herico Andrade, of murder in the first degree on a theory of deliberate premeditation, in connection with the shooting death of Jose Lobo in April 2011. In this direct appeal, the defendant asserts error in the method the prosecutor used to offer grand jury testimony as prior inconsistent statements, and in supplemental instructions that the judge provided to the jury. He also seeks relief under G. L. c. 278, § 33E. For the reasons that follow, we affirm the judgments and decline to grant extraordinary relief under § 33E.

Background. We summarize the facts as the jury could have found them, reserving certain details for discussion below. On April 4, 2011, a sport utility vehicle (SUV) stopped outside a house in Brockton where several people were congregated. The men in the SUV, including the defendant, stopped to speak to some young women who were present. Shortly thereafter, one of the men standing outside approached the vehicle and argued with the defendant. The defendant said, "I'll go and come back," before the SUV pulled away. Approximately thirty-three minutes later, shots were fired in the vicinity of the area where the people had been gathered. When police arrived, they found the victim lying on the front porch of the home with a gunshot wound to his temple. He later was pronounced dead at a hospital.

A surveillance video recording captured two individuals approaching the scene on foot and reaching for their waistbands around the time of the shooting. The figures reappeared in the video recording fleeing the scene moments later. One witness, Antonio Silva, saw two individuals running away. Silva identified one of the individuals as the defendant and observed that the defendant held a revolver while running from the scene. A baseball hat containing the defendant's deoxyribonucleic acid (DNA) was recovered from the street in front of the porch where the victim was killed. Days after the murder, the defendant was interviewed by the Brockton police. During that interview, the defendant admitted to being a passenger in the SUV that stopped near the congregated group on the night of the shooting, but denied being present at the time of the shooting. Approximately one and one-half weeks later, the defendant left the country. He was indicted for murder, and he was arrested upon his return nearly one year later.

Discussion. The defendant argues that the prosecutor's method of presenting grand jury testimony was flawed. The defendant claims that, as a result, the judge improperly allowed the jury to consider the testimony as substantive evidence, and that the judge erred in considering the evidence himself in ruling on the defendant's motion for a required finding of not guilty. The defendant also contends that erroneous jury instructions entitle him to a reversal of his convictions.

1. Presentation of grand jury testimony. Four percipient trial witnesses called by the Commonwealth claimed that they could not recall the testimony they had given to the grand jury, the events and facts underlying those prior statements, or both. Three of the four witnesses were found by the judge to be feigning memory loss, and the Commonwealth was permitted to present their grand jury testimony as prior inconsistent statements admissible as substantive evidence. See Commonwealth v. Neves, 474 Mass. 355, 366-367, 50 N.E.3d 428 (2016) ; Mass. G. Evid. § 801(d)(1)(A) (2018).

For each witness, rather than reading the relevant portions of the grand jury transcripts directly into the record (with or without the assistance of co-counsel), the prosecutor chose to read relevant excerpts from the transcripts, punctuated by questions to the witness as to whether he or she recalled giving the grand jury testimony. At the close of evidence, the defendant's attorney moved for a required finding of not guilty, arguing that because the prosecutor had presented the grand jury testimony in a question and answer format, the testimony was part of the prosecutor's leading questions to the witnesses, and therefore the testimony could not be considered for substantive purposes. See Commonwealth v. Judge, 420 Mass. 433, 452 n.12, 650 N.E.2d 1242 (1995). The defendant claimed that without the evidence from the three percipient witnesses, there was insufficient evidence to find him guilty.

The judge considered the matter and ultimately denied the defendant's motion for a required finding of not guilty. He ruled that the method the prosecutor had used was "sufficient" to have the jury consider the prior testimony substantively. In his jury charge, the judge instructed that questions put to witnesses were not themselves evidence, but that the grand jury testimony could be considered for its substantive value.

On appeal, the defendant claims, among other things, that the judge erred in considering the grand jury testimony as substantive evidence when he ruled on the defendant's motion for a required finding of not guilty and in instructing the jury to do the same. As the defendant did not object to the admission of the grand jury testimony for substantive purposes when it was read by the prosecutor in posing his questions, and waited to object until after the close of evidence, we review any error for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Comtois, 399 Mass. 668, 674, 506 N.E.2d 503 (1987), quoting Commonwealth v. Gallison, 383 Mass. 659, 669, 421 N.E.2d 757 (1981) ("It is a fundamental principle of appellate review that a prompt objection at trial is a prerequisite to the presentation of an issue for appellate review"). See also Commonwealth v. Silvia, 343 Mass. 130, 135-136, 177 N.E.2d 571 (1961). We conclude that, although the method the Commonwealth used to introduce the evidence was somewhat unusual, the testimony was properly admitted for substantive purposes. There was no error. The judge properly found that the witnesses in question were feigning memory loss, which entitled the Commonwealth to have the testimony admitted for substantive purposes. See Commonwealth v. Sineiro, 432 Mass. 735, 742-743, 740 N.E.2d 602 (2000) ("when a witness does not deny his probable cause testimony, nor its truth, but chooses to feign an inability to recall the testimony in an attempt to avoid giving evidence that might send another to jail, a judge should not be without recourse"). The defendant does not dispute the judge's decision to allow the grand jury testimony in evidence substantively; instead, he claims that the prosecutor's method of presenting that evidence was flawed and that as a result the testimony should not have been considered for its truth.

We have held that when a witness feigns memory loss, that witness's grand jury testimony may be admitted substantively as a prior inconsistent statement if certain requirements are met: (1) the prior statement must clearly be that of the witness rather than the questioner; (2) the statement must be free from coercion; (3) the defendant must have an opportunity for effective cross-examination of the witness at trial, and (4) some corroborative evidence must be presented when the prior testimony concerns an essential element of the crime. See Sineiro, 432 Mass. at 743-744, 740 N.E.2d 602, citing Commonwealth v. Noble, 417 Mass. 341, 345, 629 N.E.2d 1328 (1994), and Commonwealth v. Daye, 393 Mass. 55, 74, 469 N.E.2d 483 (1984). See also Mass. G. Evid. § 801(d)(1)(A). Here, each of the requirements was met.

For each witness, the prosecutor indicated that the prior testimony had been before a grand jury, and each witness confirmed that his or her testimony had not been coerced. Further, as the prosecutor read the prior testimony of each witness, he took care to identify which portions of the excerpts were questions and which were the witness's responses.

The defendant claims that the witnesses' claimed loss of memory made it impossible for defense counsel to effectively cross-examine them. This claim lacks merit. We have held that "any limitation on the effectiveness" of a cross-examination of a witness who has been found to have feigned memory loss "generally does not implicate the confrontation clause." Commonwealth v. DePina, 476 Mass. 614, 622, 73 N.E.3d 221 (2017).

Finally, the defendant contends that there was no corroborating evidence for the witnesses' grand jury testimony, and that therefore it should not have been used substantively. See Sineiro, 432 Mass. at 741, 740 N.E.2d 602 (corroboration required for grand jury testimony relating to essential element of crime); Noble, 417 Mass. at 345, 629 N.E.2d 1328 (same). We disagree. Silva, one of the trial witnesses found to have feigned memory loss, testified in the grand jury that, moments after the shooting, he observed the defendant running from the scene with a revolver in his hand. This testimony was corroborated by surveillance video footage of the crime scene that showed two figures reaching for their waistbands as they approached the location of the shooting, and then running away soon thereafter.

In addition, a baseball hat was located in the street in front of the house where the victim was shot. The hat, which was not in the street prior to the shooting, was analyzed for the presence of DNA. The major DNA profile obtained from the hat was consistent with the DNA profile of the defendant. In short, there was ample corroboration of Silva's prior testimony. See Noble, 417 Mass. at 346, 629 N.E.2d 1328 (corroboration can be drawn from reasonable inferences).

It would have been apparent to the jurors at the time, as it is apparent to us now, that the prosecutor was reading relevant excerpts from grand jury testimony into the record, and occasionally asking each witness whether he or she recalled the testimony.

Thus, although the prosecutor's method was unconventional, the judge did not err in allowing the jury to consider the grand jury testimony as substantive evidence, nor did he err in considering it himself in ruling on the defendant's motion for a required finding of not guilty. Nonetheless, to avoid confusion when offering grand jury testimony in evidence, we suggest that it be read directly into the record either by one person reading the questions and a colleague reading the answers, or by one person reading the entire excerpt but making clear which portions are questions and which are answers.

As we find no error, the defendant's related claims are fruitless. That is, because the grand jury testimony was admitted properly as substantive evidence, the defendant's argument that there was insufficient evidence to find him guilty beyond a reasonable doubt without the grand jury testimony fails. And as we conclude that the prosecutor's method of presenting the grand jury testimony was not error, we reject the defendant's arguments that the prosecutor committed misconduct in so doing, and that the prosecutor improperly referred to the grand jury testimony during his closing argument.

2. Supplemental jury instructions. The defendant also claims error with respect to supplemental instructions provided to the jury in response to a question the jury submitted during deliberations. The jury asked, "With respect to the charge of first-degree murder and its three elements, is it necessary that the intent to kill be specific to the named victim or is it sufficient that the intent to kill refer to anyone on the porch?" Over the defendant's objection, the judge gave the following instruction: "You may find deliberate premeditation if you find that the defendant deliberately decided to kill someone in a group regardless of whether the defendant intended to kill the actual victim, who was among the target group." The defendant argues that because there was no evidence that the individual with whom the defendant argued was on the porch (or that there was a group of people on the porch at all) at the time of the shooting, the instruction was erroneous and he is entitled to a reversal of his convictions.

The instruction that the judge gave in response to the jury's question was a correct statement of the law. See Commonwealth v. Taylor, 463 Mass. 857, 863, 979 N.E.2d 722 (2012) (where there is sufficient evidence, jury can be instructed that element of deliberate premeditation is met if they find that defendant intended to kill someone else in same group as victim). It was also an appropriate response given the evidence presented at trial. Although there was no testimony that a group of individuals remained on the porch when the defendant returned, there is no dispute that at least one person -- the victim -- was there at the time of the shooting. The judge correctly instructed the jury that they could find deliberate premeditation if they found that the defendant intended to kill someone other than the victim. See Commonwealth v. Van Bell, 455 Mass. 408, 420, 917 N.E.2d 740 (2009), quoting Commonwealth v. Robinson, 449 Mass. 1, 7-8, 864 N.E.2d 1186 (2007) (within discretion of judge to tailor supplemental jury instructions). There was no error.

3. Review under G. L. c. 278, § 33E. Finally, the defendant asks us to exercise our extraordinary power to grant relief under G. L. c. 278, § 33E. We have reviewed the record in its entirety and see no basis to set aside or reduce the verdict of murder in the first degree or to order a new trial.

Judgments affirmed.

      The defendant was also convicted of unlawful possession of a firearm.

      Because the trial judge had allowed the prosecutor to present the testimony for substantive purposes, there was no question that the prosecutor was offering the grand jury testimony for its substantive value during the direct examination of the witnesses who were found to have feigned memory loss. Prompt objections by parties allow judges to cure any defects in the proceedings when they occur. See Commonwealth v. Fowler, 431 Mass. 30, 36, 725 N.E.2d 199 (2000), citing Commonwealth v. Sherick, 401 Mass. 302, 305, 516 N.E.2d 157 (1987). To preserve the issue, it was thus incumbent upon defense counsel to object in the moment, rather than to wait until the close of evidence.

      Finding that a witness is feigning memory loss is within the sound discretion of a trial judge. See Commonwealth v. McGhee, 472 Mass. 405, 422-423, 35 N.E.3d 329 (2015).

      The grand jury testimony of the other two witnesses who were found to have feigned memory loss concerned the defendant's initial arrival as a passenger in the sport utility vehicle. Although the testimony did not concern an essential element of the crime (and therefore did not require corroboration as did Silva's testimony), the defendant himself corroborated the two witnesses' testimony in his statement to police.

      The defendant also argues that after giving the supplemental jury instruction, the judge erred by failing to instruct the jury that all the instructions are to be considered as a whole. See Commonwealth v. Hicks, 22 Mass.App.Ct. 139, 144-145, 491 N.E.2d 651 (1986) (recommending that judges instruct that supplemental instructions are to be considered along with main charge). Such an instruction is recommended, not mandated. Neither we nor the Appeals Court have ever held that the failure to give such an instruction warrants the reversal of a conviction. See Commonwealth v. Conley, 34 Mass.App.Ct. 50, 59, 606 N.E.2d 940 (1993).