text:
    COMMONWEALTH v. David KUILAN.
    16-P-1345
    Appeals Court of Massachusetts.
    Entered: July 3, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, the defendant was convicted of rape of a child, assault with intent to rape, and three counts of indecent assault and battery on a child. On appeal, the defendant claims that the judge erred in denying his motions to dismiss based on a seventeen-year preindictment delay. We affirm.

Background. We summarize the undisputed facts that are material to this appeal. In March, 1986, a woman reported to the Fitchburg police that the defendant, who had been living with her, had sexually assaulted her two daughters between 1983 and 1985, when both were under the age of fourteen. After obtaining statements from the children, the police interviewed the defendant on March 27, 1986. Upon being confronted with the allegations, the defendant denied them and stated that he had moved out of the woman's house around Christmas, 1985, after she had accused him of molesting her daughters. The police told the defendant that he would be contacted again after they reinterviewed the children. Later that same day, the police called the defendant and asked him to return to the station. When he failed to do so, the police applied for a warrant for his arrest, which was issued along with a criminal complaint on March 28, 1986.

Ten years later, on November 5, 1996, the defendant was arrested in Connecticut on the Fitchburg warrant. At that point, however, the victims could not be located; the defendant was released from custody. In September, 2001, the victims were located. The defendant was then again arrested in Connecticut on the warrant on January 29, 2003. Indictments were returned against the defendant on July 18, 2003. On October 8, 2003, the defendant moved to dismiss the indictments based on violation of his constitutional right to a speedy trial, which was denied.

Discussion. The defendant contends that the judge erred in concluding that his right to a speedy trial under the Sixth Amendment of the United States Constitution and art. 11 of the Massachusetts Declaration of Rights was not violated. "In reviewing a motion to dismiss because of a speedy trial violation, we give deference to the findings of the motion judge, but we may reach our own conclusions" regarding the factors weighed. Commonwealth v. Wallace, 472 Mass. 56, 60 (2015). See Commonwealth v. Barry, 390 Mass. 285, 289-290 (1983).

The factors a judge must consider in determining if a defendant's right to a speedy trial has been violated by preindictment delay are "the length of the delay, the reasons for it, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant." Commonwealth v. Lanigan, 419 Mass. 15, 18 (1994). See Barker v. Wingo, 407 U.S. 514, 530-533 (1972) (speedy trial); Commonwealth v. Imbruglia, 377 Mass. 682, 691 (1979) (preindictment delay). The analysis requires a balancing test, weighing "the conduct of both the prosecution and the defendant." Barker, supra at 530.

a. Length of the delay. "The threshold inquiry is whether the delay was of sufficient length to trigger an examination of the other factors." Commonwealth v. Underwood, 3 Mass. App. Ct. 522, 527 (1975). See Barker, supra (extended delay "triggers" speedy trial analysis); Wallace, supra. Under the required constitutional calculation, the speedy trial clock began in March, 1986 (when the complaint issued). See Commonwealth v. Butler, 464 Mass. 706, 712 (2013). The defendant was arrested for the second time in January, 2003, and indicted in July, 2003, seventeen years later. As acknowledged by the Commonwealth, this preindictment delay was sufficient "to invoke a constitutionally-based speedy trial analysis." Lanigan, supra.

b. Reason for the delay. With regard to the second factor (the reason for the delay) the record supports the motion judge's conclusion that "the reason for the delay between 1986 and the defendant's first arrest in 1996 [was] his knowing and voluntary absence from the Commonwealth." Accordingly, this factor does not weigh very heavily against the Commonwealth. See Underwood, supra at 528 (while defendant need not keep Commonwealth informed of his whereabouts, "[he] cannot expect his whereabouts to be quickly ascertained when he has been a fugitive from justice"); Commonwealth v. Anderson, 9 Mass. App. Ct. 699, 704-705 (1980) (delays attributable to defendant's actions excluded from speedy trial analysis).

Moreover, we agree with the motion judge's conclusion that the delay from 1996 to 2001, "while lengthy, was reasonable, nonetheless, in order to locate the victims." See Barker, supra at 531 ("a valid reason, such as a missing witness, should serve to justify appropriate delay"); Anderson, supra at 704 ("[r]easonable delays due to efforts to locate defendants or witnesses are justifiable and are usually excused from formulation"). Likewise, the delay between the date from which the location of the victims became known (September, 2001) until the defendant's second arrest in January, 2003, was also reasonable.

c. Assertion of speedy trial rights. The third factor, whether the defendant asserted his right to a speedy trial, weighs against him. See Commonwealth v. Look, 379 Mass. 893, 900 (1980), quoting from Barker, supra at 529 (defendant's failure to assert right is to be given "strong evidentiary weight"). While the defendant claimed that he was unaware of the charges against him until he was arrested in 2003, the record supports the judge's finding that this was not the case.

The defendant was informed of the allegations against him when interviewed by police in 1986, and proceeded to leave the Commonwealth within several days. Additionally, the defendant was arrested as a fugitive from justice in 1996, at which time he was told that the arrest was based upon charges pending against him in Massachusetts. Although the Commonwealth did not have the defendant held because it could not locate the victims at that time, the judge found that the defendant's arrest clearly apprised him that charges were pending against him.

Given that the defendant was aware of the charges, his failure to assert his right to a speedy trial must be weighed heavily against him. See Barker, 407 U.S. at 536 ("barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial"); Look, supra ("[i]t appears reasonable to speculate ... that [the defendant] was 'gambling' that the Commonwealth had forgotten about him or decided not to pursue his case"). See also Butler, 464 Mass. at 717 ; Anderson, supra at 704-705.

d. Prejudice to the defendant. As to the fourth factor, prejudice, "[t]he prejudice that is relevant is the impairment of the defendant's case by reason of the delay." Lanigan, 419 Mass. at 20. Here, the defendant did not allege that he was prejudiced by the delay, claiming only that prejudice should be presumed. Even where a lengthy delay permits a presumption of prejudice, the United States Supreme Court has made clear that "presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria." Doggett v. United States, 505 U.S. 647, 656 (1992).

Upon review of the motion judge's findings, and having applied the Barker factors, the defendant's constitutional right to a speedy trial was not violated.

Judgments affirmed.

      The judge noted that "[t]he worst that can be said of the Commonwealth's efforts is that it was negligent, as there were likely more steps it could have undertaken to locate the defendant." He also noted, however, that the evidence "did not reveal that the defendant created any paper trail that would have allowed the Commonwealth to locate him, such as the ownership of real estate, a motor vehicle, income tax returns or other traceable records, in addition to the lack of any driver[']s license." Specifically discrediting the defendant's account of his whereabouts, the judge found the defendant primarily culpable.

      The Supreme Judicial Court has also "held generally that a defendant has the burden of showing prejudice to his defense sufficient to warrant dismissal." Commonwealth v. Beckett, 373 Mass. 329, 334 (1977).


source: Caselaw Access Project

license: Public Domain

text:
    Lawrence M. OWENS, trustee, & another v. Robert M. BUCCHERI, trustee, & another.
    17-P-480
    Appeals Court of Massachusetts.
    Entered: July 3, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the LAMO 2010 Realty Trust.

      Patricia A. Owens, trustee of the LAMO 2010 Realty Trust.

      Of Spirit Realty Trust.

      Richard Buccheri, Sr. Other defendants named in the complaint are not parties to this appeal. The Land Court judge noted in his "Decision After Rescript" that Richard Buccheri, Sr., became the trustee of Spirit Realty Trust during the pendency of this action.

   The defendants appeal from a "Judgment After Rescript" issued by a judge of the Land Court ordering Spirit Realty Trust (Spirit), and Richard Buccheri, Sr. (Richard) personally, to pay damages for trespass and trespass to trees based on damage to the plaintiffs' property located at 1250 Bedford Street in Abington. This is the second time this case has been before us. In a 2016 memorandum and order issued pursuant to our rule 1:28, a panel of this court affirmed a portion of a Land Court judgment that the plaintiffs acquired title by adverse possession to certain disputed areas along the boundary between 1238 Bedford Street, owned at the relevant time by Spirit, and the plaintiffs' property. Owens v. Buccheri, 89 Mass. App. Ct. 1115 (2016) (Owens 1 ). The panel vacated, however, the portions of the judgment dismissing the plaintiffs' claims for trespass and trespass against trees. The trial judge had concluded that the plaintiffs could not recover for these claims because they had not definitively established their title before those trespasses occurred. Ibid. The panel held that once the statutory period for adverse possession had run, the plaintiffs became the lawful, actual possessors and the new "real owners" entitled to bring a claim against even the record title owner, because "the [plaintiffs'] actual, open, and notorious use of the land would or should have put any observer, including the record title owner, on notice of the adverse possession and the possessor's accompanying rights." Ibid. The panel remanded the case "for further proceedings ... to determine liability and what, if any, damages are appropriate." Ibid.

On remand, due to the retirement of the trial judge, a different judge reviewed the existing evidence, made additional findings, and awarded total damages of $51,427 for trespass and trespass to trees, plus interest and costs. Based on his personal involvement in the actual trespass and removal of trees, the remand judge also found Richard personally liable to the plaintiffs. We affirm.

Background. Briefly, at the time of the events in issue, Spirit owned the property located at 1238 Bedford Street, which abuts and shares a sideline boundary with 1250 Bedford Street, owned since 1969 by the plaintiffs. Since the 1950s, the plaintiffs' property has been improved with a home, garage, and lean-to. The first judge and the remand judge found that in 2008, in an effort to develop its property, Spirit cleared the trees and a stone wall in the disputed area along the plaintiffs' driveway. At that time, Richard was the supervisor of permitting and construction activities for Spirit, and the remand judge found that Richard was actively involved in clearing the disputed property. Richard was not a trustee of Spirit when the clearing occurred. See note 4, supra. In Owens I, it was established that the area cleared by Richard and Spirit, although located on Spirit's side of the boundary line, was owned by the plaintiffs, who had acquired the area through adverse possession. The remand judge noted that in order to prove a trespass, the plaintiffs had to "prove that (1) they had actual possession of the property, and (2) Spirit Realty's entry was intentional and illegal," and he then found that the plaintiffs had met their burden. The judge awarded the plaintiffs $13,545 on their trespass claim for removal of a fieldstone wall and $37,882 on their trespass to trees claim.

Discussion. A. Trespass claim against record owner by adverse possessor. On appeal, the defendants renew their legal argument that damages cannot be assessed against the record owner of land for trespass occurring before an adverse possessor establishes legal title or at least communicates a claim of title. We need not dwell on this issue because in Owens I, as noted above, a panel of this court rejected the defendants' argument and concluded that an adverse possessor may recover damages notwithstanding the fact that they had not claimed or proven title prior to the trespass by the record owner. The panel's decision constitutes the law of the case on this legal issue. "The 'law of the case' doctrine reflects [the] court's reluctance 'to reconsider questions decided upon an earlier appeal in the same case.' " King v. Driscoll, 424 Mass. 1, 7-8 (1996), quoting from Peterson v. Hopson, 306 Mass. 597, 599 (1940). "An issue 'once decided, should not be reopened unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.' " Id. at 8, quoting from United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991). The defendants make no argument that any of these circumstances are present in this case; there was no new trial, no contrary controlling authority has intervened, and there has been no showing of manifest injustice. Rather, the defendants simply seek to distinguish cases relied on by the panel in Owens I and argue that the position the panel took was erroneous as a matter of law. Those arguments could have been presented in a petition for further appellate review or for rehearing but are not appropriate in this postremand appeal.

B. Fieldstone retaining wall. As to liability for trespass, the defendants do not deny that they trespassed on the disputed property and cleared it of trees. They do deny that Spirit removed a fieldstone wall and contend the "weight of the evidence" supports a finding that the wall had been removed long before their excavation. They argue the trial judge erred in concluding otherwise because he credited testimony of the plaintiffs and ignored testimony of the defendants as well as photographs of the disputed area. To the extent this factual finding, made by the trial judge before the appeal in Owens I, is even open to attack in this appeal, the judge made a credibility determination on conflicting evidence. Where testimony conflicts, "[c]redibility determinations ... lie exclusively within the province of the fact finder ... who is free to believe one witness and disbelieve another." Okoli v. Okoli, 81 Mass. App. Ct. 371, 379 (2012), quoting from Palmer v. Murphy, 42 Mass. App. Ct. 334, 343 (1997). We will not disturb the judge's credibility determinations. Ibid.

C. Damages award. The defendants did not present their own expert witnesses on damages at trial but argue that the plaintiffs did not adequately prove their damages because their expert extrapolated from the number and types of trees in the undisturbed woods in the back of the property to determine how many and what kinds of trees had been removed from the side of the driveway. The defendants insist the plaintiffs' expert should have used available pictures of the disputed area, particularly exhibit 23. The plaintiffs' expert testified that the entire area was not shown in the photographs. When the trial judge allowed exhibit 23 in evidence, he noted that thirty to forty percent of it is darkness and although he was inclined to accept it in evidence, he was not inclined to give it much weight. It was not unreasonable, therefore, for the expert to extrapolate from existing nearby woodlands. He concluded fourteen trees of varying types and diameters were removed and gave a forty percent discount for the poor quality of the trees in the area. The expert's analysis was largely consistent with the method approved in Ritter v. Bergmann, 72 Mass. App. Ct. 296, 307 (2008), and cases cited. We cannot conclude on this evidence that the remand judge erred in crediting the expert's testimony.

D. Richard's personal liability. Without citation to any authority, the defendants contend that Richard cannot be held personally liable for any of the damages incurred by the plaintiffs in the absence of evidence that he acted outside the scope of his capacity as construction supervisor of Spirit. The argument fails to rise to the level of adequate appellate argument and we do not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011) ; Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995). Moreover, to the extent the defendants contend Richard's liability stems from his status as the current trustee of Spirit, it is clear from the remand judge's findings that Richard's liability does not arise from his status as trustee; it arises from his personal conduct in physically trespassing on the plaintiffs' property and actively participating in the clearing and excavation of the area. The defendants do not direct any argument with appropriate legal authority to Richard's personal conduct.

E. Attorney's fees and costs. Finally, the plaintiffs contend this appeal was frivolous and have requested their attorney's fees and double costs of this appeal pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). Whether an appeal is frivolous is left to the "sound discretion of the appellate court." Glorioso v. Retirement Bd. of Wellesley, 401 Mass. 648, 652 (1988). "We are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases." Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995). Here, while we consider the defendants' arguments unpersuasive, we do not consider them frivolous. Accordingly, the plaintiffs' request for attorney's fees and double costs under Mass.R.A.P. 25 is denied.

Judgment affirmed.

      The parties agreed that the disputed area is approximately twelve feet wide by 185 feet deep from the street to the rear of the property.

      The defendants were not present at a postremand status agreement conference at which the judge and the plaintiffs agreed no additional evidence would be heard to decide the issues on remand.

      In 2008, when the events at issue occurred and this action was commenced, Spirit owned the property at 1238 Bedford Street and was the original defendant, along with the Buccheris. In 2011, the property was transferred to David and Rosa Chu, as trustees of the 1238 Bedford Street Realty Trust and a motion to substitute was allowed.

      In 2010, Lawrence M. Owens and Patricia A. Owens transferred their property into the LAMO 2010 Realty Trust; they serve as trustees of that trust.

      Contrary to the defendants' contention, the photographs reproduced in the appendix do not compel a conclusion that the wall had been removed before the defendants began their excavation. Indeed, as the trial judge noted when he admitted the photographs in evidence, the photographs were dark and entitled to little weight.


text:
    Julia T. DONOVAN v. Daniel GROW.
    17-P-902
    Appeals Court of Massachusetts.
    Entered: July 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Julia T. Donovan, appeals from the decision of the Superior Court judge granting the motion of the defendant, Daniel Grow, for summary judgment. The plaintiff argues that the judge erroneously struck material facts within her deposition testimony from the summary judgment record. Alternatively, the plaintiff argues that the record independent of the stricken portions of her deposition testimony still creates a dispute of material fact sufficient to survive summary judgment. We affirm.

Discussion. 1. Undisputed facts. The plaintiff is a board certified gynecological oncologist and gynecological surgeon. Before her termination in 2012, the plaintiff was employed by Baystate Medical Practices, Inc., and held clinical privileges at Baystate Medical Center (BMC). Following her termination, the plaintiff signed an employment agreement with Memorial Health Partners Foundation, Inc. (Memorial). As part of the agreement, the plaintiff authorized Memorial to obtain credentialing and performance information from BMC about the plaintiff's clinical privileges. The defendant, the chair of BMC's obstetrics and gynecology department, received Memorial's request for information concerning the plaintiff. The defendant responded by speaking to the plaintiff's new supervisors at Memorial over the phone and also providing Memorial with written performance records about the defendant. Shortly after the defendant's communications with Memorial, the president of Memorial's medical staff met with the plaintiff and expressed concern over her competency to perform complex pelvic surgery in obese patients without additional training. Memorial's president informed the plaintiff that Memorial lacked the resources necessary to provide a proctor so she could reach the necessary level of competency. Memorial then terminated the plaintiff's employment.

Plaintiff brought four claims in Superior Court: intentional interference with an employment contract; defamation; intentional infliction of emotional distress; and negligent infliction of emotional distress. The underlying basis for each claims alleges that her termination from Memorial was the result of false information intentionally or negligently provided by the defendant during his communications with Memorial. We review de novo the Superior Court's grant of summary judgment.

2. Hearsay evidence. Rule 56(e) of the Massachusetts Rules of Civil Procedure, 365 Mass. 825 (1974), requires that affidavits supporting and opposing summary judgment shall present information upon "personal knowledge"; and that they "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Decisional law has interpreted this provision to disallow hearsay evidence to defeat summary judgment. See Madsen v. Erwin, 395 Mass. 715, 721 (1985). Here, the plaintiff presented evidence in the form of her deposition testimony that the defendant told her superiors at Memorial that the plaintiff had previously been reported for "malpractice and malfeasance" and "egregious behavior." In that same deposition, the plaintiff also testified about statements by the defendant to Memorial which averred that the plaintiff was "not competent to perform complex pelvic surgery in obese patients." The plaintiff only learned about these statements when her superiors at Memorial told her about them, not by way of the defendant directly. We discern no error in the judge's decision to strike both statements from the record as they contain inadmissible hearsay.

An out-of-court statement is hearsay where it is offered in evidence to prove the truth of the matter asserted. See Mass. G. Evid. § 801(c) (2017). See also Commonwealth v. Purdy, 459 Mass. 442, 452 (2011). Here, because the plaintiff is relying on an out-of-court statement of her superiors at Memorial who were in turn relying on an out-of-court statement made by the defendant, there are two layers of hearsay to review. Although the statements allegedly made by the defendant to Memorial may arguably be admissible as a statement of an opposing party (see Mass. G. Evid. § 801 [d][2] [2017] ) their inclusion in the second layer of hearsay between Memorial and the plaintiff make them inadmissible. See Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987). Accordingly, the judge was correct to strike these statements from the record when reviewing for summary judgment.

3. Summary judgment. After a de novo review of the remaining record, we affirm the grant of summary judgment in favor of the defendant. See Miller v. Cotter, 448 Mass. 671, 676 (2007). "[T]he moving party must establish that there are no genuine issues of material fact, and that the nonmoving party has no reasonable expectation of proving an essential element of its case." Miller v. Mooney, 431 Mass. 57, 60 (2000). Once the moving party asserts the absence of any triable issues, the nonmoving party "must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion." Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 777-778 (2013). "[C]onclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." O'Rourke v. Hunter, 446 Mass. 814, 821 (2006). See Mass.R.Civ.P. 56(e).

Here, the defendant met his initial burden to show that there would be no dispute at trial when he provided an affidavit denying any representations of malpractice, malfeasance, or incompetence by the plaintiff to Memorial. See, e.g., Godbout v. Cousens, 396 Mass. 254, 262 (1985). The defendant supported the contents of his affidavit with hand written notes and documents. After the burden shifted to the plaintiff to show a genuine dispute of material fact, the plaintiff did not present anything to prove there existed a triable issue on any of her claims. Rather, the plaintiff merely suggested that omissions or denials contained within the plaintiff's evidence require a permissible inference that he in fact did say or do something which would allow the plaintiff's claims to survive.

As the nonmoving party the plaintiff is entitled to all reasonable inferences. However, "[i]nferences 'must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture.' " Continental Assur. Co. v. Diorio-Volungis, 51 Mass. App. Ct. 403, 409 (2001), quoting from Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992). Simply because the defendant was terminated shortly after the defendant spoke to Memorial does not allow us to reach the plaintiff's proffered conclusion that specific, defamatory statements were made. Without specific facts to contradict the defendant's evidence, the plaintiff relies on mere speculation to support a verdict in her favor. See Godbout, 396 Mass. at 261 (nonmoving party may not rest upon allegations or assertions, but must respond with specific facts). Following de novo review, the plaintiff failed to meet her burden to show a dispute of material fact and we determine that summary judgment was properly granted in the defendant's favor.

As we affirm the summary judgment because the plaintiff cannot establish the crucial allegations of her complaint on which her claims rely, we need not reach the issue of immunity as an alternative basis for granting judgment in favor of the defendant.

Judgment affirmed.

      The plaintiff does not appeal from the grant of summary judgment on her claim of intentional infliction of emotional distress.

      We acknowledge that the defendant's affidavit was self-serving. This affidavit could be disbelieved, but we cannot use the uncontroverted affidavit as affirmative evidence supporting essential elements of the plaintiff's claim. See Kaitz v. Foreign Motors, Inc., 25 Mass. App. Ct. 198, 200 (1987). Here, with nothing in the record to challenge the contents of the defendant's affidavit, we find no material dispute of fact.

      Our de novo review reflects the dearth of the record which could be found to support the plaintiff's proffered inferences. At oral argument, the plaintiff acknowledged that the only evidence which support her claims are the timing of her termination in relation to the defendant's communications with Memorial and that her BMC performance records are almost universally positive. Neither fact establishes an essential element underlying all of her claims, namely a false (and defamatory) statement, and therefore do not create a dispute of material fact. See Roman v. Trustees of Tufts College, 461 Mass. 707, 711 (2012). No evidence was presented to support the claim that Grow's notes were false or defamatory.


text:
    Tricia CAHALANE v. SKYDIVE CAPE COD, INC. & others.
    17-P-706
    Appeals Court of Massachusetts.
    Entered: July 3, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Tricia Cahalane sustained injuries while skydiving at the Chatham airport. She brought this action in Superior Court seeking damages for her injuries against Skydive Cape Cod (SCC); its owner, Jimmy Mendonca; her skydiving instructor, Marcus Silva; the Chatham Municipal Airport (airport) management company, Cape Cod Flying Circus, Inc. (Flying Circus); and Flying Circus's owner and the airport manager, Timothy Howard. Her amended complaint alleged theories of gross negligence, misrepresentation, deceit, and strict liability. She now appeals from a Superior Court judgment granting the defendants' motions for summary judgment. Cahalane contends that: (1) the waiver she executed before skydiving is unenforceable; and (2) there is a dispute of material fact as to whether the defendants were grossly negligent. We agree that the waiver is enforceable and would bar all claims for negligence, but reverse the allowance of the motions for summary judgment as to the claims of gross negligence.

Background. We summarize the evidence in the summary judgment record in the light most favorable to the plaintiff, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), noting disputes as warranted.

1. The release. On July 25, 2012, Cahalane participated in a tandem skydiving jump in Chatham. Before the jump, Cahalane signed several documents (collectively, the waiver) that relinquished her right to bring any legal action against the defendants in the event of an injury resulting from their negligence or gross negligence. The waiver, signed or initialed by Cahalane in forty-six places, provided in pertinent part:

"I UNDERSTAND THE RISKS AND DANGERS INVOLVED TO MY PHYSICAL PERSON. I HAVE BEEN ADEQUATELY INFORMED ABOUT THESE DANGERS AND RISKS AND I AM SUFFICIENTLY INFORMED TO SIGN AGREEMENTS WITH WHICH I WILLINGLY GIVE UP IMPORTANT LEGAL RIGHTS.
"...
"I hereby recognize that this agreement is a Contract, which includes provisions by which I have released any and all claims against the Released Parties resulting from my parachuting and related activities, included [sic] any claims caused by the negligence or gross negligence of the Released Parties.
"...
"I know and fully appreciate that parachute jumping activities expose me to the risk of personal injury and even death. I fully appreciate the dangers and voluntarily, expressly, assume these risks.
"...
"It is my understanding and intent that this Agreement, Release of Liability & Assumption of Risk, specifically include the following as those parties whom I fully release from all liability: (A) Skydive Cape Cod, Inc. (a Massachusetts Corporation, and associated entities), ... Cape Cod Flying Circus, Inc. ..., and their or its officers, directors, shareholders, agents, representatives, servants, employees, volunteers, pilots, instructors, contractors, jump masters, owners of aircraft, and associated entities....
"...
"I agree that if any portion of this Agreement, Release of Liability & Assumption of Risk is found to be unenforceable or against public policy, that only that portion shall be deleted, but I HEREBY SPECIFICALLY WAIVE any unenforceability or any public argument that I may make...."

In addition, Cahalane hand copied and signed the following statement: "I realize that skydiving, parachuting, flying and all of its related activities are inherently dangerous activities which may result in my serious injury or even death." The waiver stated that its terms were to be "broadly and liberally construed" in favor of the defendants with "all ambiguities" interpreted in their favor. Cahalane was given the opportunity to purchase a release from the waiver for $750, but did not.

2. The jump. During the jump, Cahalane was attached to her instructor, Silva. As is discussed more fully below, both the wind conditions and the execution of the jump are at issue. Viewed in the light most favorable to the plaintiff, as the pair approached the ground, in windy conditions, Silva performed a low "hook turn." Hook turns greater than ninety degrees and made less than 500 feet above ground level were one of the biggest causes of serious injury and death in skydiving. Such turns were expressly disapproved in safety bulletins issued in 2011 by the United States Parachute Association (USPA), a membership association. Cahalane was instructed to lift her legs into a seated position before landing. Cahalane originally had her legs in the seated position, but moments before landing she felt a pull from the back of the parachute that forced her legs straight downward. Cahalane fractured both femurs on impact.

The defendants contend that the admissible evidence in the summary judgment record demonstrates that "[t]here is no evidence ... of failure to make the jump as safe as possible," either as to weather conditions or jump protocols. Mendonca, SCC's owner, testified at deposition that he considered the wind conditions in determining whether it was safe to jump. In his estimation, wind speeds below twenty-five miles per hour were safe for skydiving. Mendonca checked the wind speed before Cahalane's jump and determined that it was within limits to jump safely. Cahalane testified that it was "very windy" and that "the wind was blowing hard." Silva believed that the wind could have caused Cahalane's legs to move downward. The Federal Aviation Administration (FAA) reported that wind conditions were "very gusty with peak gusts up to 26 knots" (29.9 miles per hour) on the day of the accident. There are facts in dispute as to the wind speed, and so for purposes of summary judgment, we must assume that the wind speed exceeded twenty-five miles per hour that day.

Christopher Siderwicz, the airport manager at Cape Cod Airfield in Marstons Mills, gave an affidavit stating that, after the accident, Silva told him that "prior to his jump with Ms. Cahalane, [Silva] told Jimmy Mendonca that it was too windy to operate that day.... Jimmy ignored [Silva's] warning and ordered [him] to complete the jump and do a hook turn on landing to make up for the wind." , Silva claimed that he had never done a hook turn with a tandem passenger, but he also described it as a maneuver used to land in strong winds. Mendonca testified at his deposition that Silva made a "regular approach" with Cahalane, but made a ninety degree turn prior to landing. Two experts concluded, based on a review of the jump photographs, that Silva had performed the type of low hook turn disapproved by the USPA resulting in the injuries to the plaintiff. There is a dispute of material fact as to whether Silva performed a low hook turn, and therefore, for purposes of summary judgment, we must assume that a hook turn was performed.

Months before the accident, Siderwicz informed Howard, the airport manager in Chatham, that he had revoked SCC's right to operate at Cape Cod Airfield because he was concerned that Mendonca was not operating SCC in a "safe manner." Siderwicz told Howard that Mendonca "was operating when it was too windy, too foggy and too cloudy." Howard testified at deposition that it was his "job mainly to observe and report and pass on information to the airport commission for decisions." Howard further testified that he had a duty to inform the Chatham airport commission (commission) if there were violations of FAA standards at his airport.

With respect to the conversation with Siderwicz, however, Howard stated that he "[did] not remember the specifics of" his conversation with Siderwicz, but "just remember[ed] [his] impression of the phone call." Howard stated, "I did relate to [the commission chair] that a phone call was placed from Chris Siderwicz to myself letting [me] know [SCC] weren't allowed to operate any more at the Marstons Mills airport, and that's it." Howard believed that SCC's right to operate at Cape Cod Airfield was revoked because of a personality conflict between Siderwicz and Mendonca. He denied knowing that Siderwicz had revoked SCC's license due to safety concerns, and made no report to the commission. When he did learn of Siderwicz's safety concerns, he did not look into them or notify the commission because he believed them to be unfounded.

There is a dispute of material fact as to what Siderwicz told Howard, and what Howard told the commission. Because there are facts in dispute, for purposes of summary judgment, Howard did not convey the safety concerns articulated by Siderwicz to him to the commission or the FAA.

Discussion. 1. Standard of review. "We review a grant of summary judgment de novo." Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). On appeal, the issue is "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting from Augat, Inc., 410 Mass. at 129.

2. Validity of the waiver. Cahalane challenges the enforceability of the waiver she signed prior to the jump. Massachusetts law favors the enforcement of releases immunizing parties from future liability for their negligent acts. See Cormier v. Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 287-290 (1993) ; Sharon v. Newton, 437 Mass. 99, 105 (2002). This includes cases that involve sports and recreation. See Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 552 (1965) (spectator at pit area of speedway); Cormier, supra (beginner rider in motorcycle safety class); Sharon, supra (student at cheerleading practice). Challenges to waiver releases from liability have regularly been resolved by summary judgment. See, e.g., Cormier, supra at 287; Sharon, supra at 103; Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 606 (1989).

Cahalane signed or initialed the waiver in forty-six locations. Generally, "doubts about the interpretation of the [waiver] must be resolved in the plaintiff's favor." See Cormier, supra at 288-289. This particular waiver, however, was clear, "unambiguous and comprehensive." See id. at 288.

Nonetheless, Cahalane claims that the waiver was procured by fraud and is therefore unenforceable. "The question whether there is fraud in obtaining a release is generally one of fact." Lee, supra at 551. However, Cahalane does not assert that anyone made a false representation to her regarding the waiver. She contends that she relied on SCC's Internet postings that claimed SCC had the "best" safety record. Leaving aside the admissibility of the Internet postings on the current record, "[i]n the absence of any concealment of or false representations as to the contents of the release it could be ruled as matter of law that the release was not procured by fraud." Ibid. See Cormier, supra at 288-289.

Requiring Cahalane to sign the release or forgo her fifty dollar deposit does not render the waiver unconscionable. See id. at 289. Cahalane knew that skydiving was a dangerous activity. The evidence does not suggest that Cahalane was rushed into signing the waiver. In these circumstances, where Cahalane was given the opportunity to read and sign the waiver, and also afforded a meaningful choice whether to proceed with the jump, we cannot conclude that enforcing it would be unconscionable. See Machado v. System4 LLC, 471 Mass. 204, 218 (2015).

We also reject Cahalane's contention that the waiver was invalid as against public policy. "An agreement, like the one before us, placing the risk of negligently caused injury on a person as a condition of that person's voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth." Cormier, supra at 289.

3. Gross negligence, reckless and intentional conduct. Although a party may exempt itself from liability caused by its ordinary negligence, a waiver cannot shield a party from responsibility for its gross negligence or reckless or intentional conduct. See Sharon, 437 Mass. at 110-111 & n.12, citing Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 18-19 (1997). Cf. Rafferty v. Merck & Co., 479 Mass. 141, 156 (2018) ("Implicit in both our common and statutory law ... is a long-standing public policy that, although we may be willing in certain circumstances to excuse ordinary negligence, we will not tolerate the reckless disregard of the safety of others"). We conclude that the judge erred in entering summary judgment for the defendants on Cahalane's claims of intentional, wilful, and grossly negligent conduct.

A claim of gross negligence requires "an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care." Zavras, supra at 20 n.4, quoting from Altman v. Aronson, 231 Mass. 588, 591-592 (1919). "Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence.... It is very great negligence, or the absence of slight diligence, or the want of even scant care.... Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence." Williamson-Green v. Equipment 4 Rent, Inc., 89 Mass. App. Ct. 153, 157 (2016), quoting from Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410 (2013). "Each [gross negligence] case must be decided upon its own peculiar facts," id. at 162 (quotation omitted), "and the defendant's conduct must be considered as a whole having due regard for the attendant circumstances." Rosario v. Vasconcellos, 330 Mass. 170, 172 (1953). Momentary inattention in a situation of "great and immediate danger" may constitute gross negligence. Zavras, supra at 22.

a. Silva and SCC. In an attempt to establish that Silva's hook turn was reckless or grossly negligent, Cahalane contends that hook turns were "prohibited" by the USPA at the time of the incident. The USPA is not a regulator, and the evidence did not show that the hook turn was "prohibited" in that sense, but the evidence did tend to show that the hook turn was highly disfavored by the USPA, upon whose standards the FAA relied. Any lack of compliance with the USPA jump protocol would be relevant to the extent of Silva's negligence. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). Cahalane's expert witness stated that hook turns were especially dangerous in the context of tandem jumps. A reasonable jury could find that Silva's decision to perform a hook turn in the moments before landing was grossly negligent -- regardless of whether the hook turn was the subject of a specific FAA regulation at the time of Cahalane's accident -- if the jury were to conclude that the low hook turn violated an industry standard and Silva had a lapse of care in a situation of "great and immediate danger." See Zavras, supra at 22. Assuming for purposes of summary judgment that a hook turn was performed, whether a hook turn was grossly negligent under the circumstances should have been left to the jury. See Sylvia v. New York, N.H. & H.R.R., 296 Mass. 157, 162 (1936).

b. Mendonca. Similarly, there is a dispute of material fact as to whether Mendonca's actions were reckless or constituted gross negligence. Siderwicz stated that Silva told him that Silva had concerns about the wind on the day of the accident, but that Mendonca "ordered [Silva] to complete the jump and do a hook turn on landing to make up for the wind." Mendonca claims that the weather was not an issue on the day of the accident and that it was ultimately the instructor who decided whether it was safe to jump. A jury could find that Mendonca ordered Silva to jump and that the decision to proceed -- in less than ideal weather conditions -- was "an act or omission respecting legal duty of an aggravated character...." See Zavras, 44 Mass. App. Ct. at 20 n.4.

c. Flying Circus and Howard. Flying Circus and Howard maintain that the FAA regulates skydiving operations, see 14 C.F.R. § 105 et seq., and that Howard did not have the authority or the duty to set standards that deviated from the FAA standards or to enforce those standards. However, Howard admittedly had a duty to report any violations of FAA standards to, at the very least, the commission. The airport management agreement also required Howard to "attend [the] airport commission meetings and present a written report of the activities at the Airport for the previous month." If Siderwicz is credited, he put Howard on notice that Mendonca operated in dangerous and unsafe conditions, but Howard failed to pass that information on to the authorities that could take action.

A jury should be permitted to determine whether Howard's failure to report information pertaining to SCC and Mendonca to the commission and the FAA was reckless or grossly negligent. A reasonable jury could find -- given the dangerousness of the sport of skydiving -- that Howard was grossly negligent when he failed to report to the commission or the FAA that Siderwicz claimed Mendonca operated SCC in a dangerous manner. In the absence of such a report, the FAA was deprived of the ability to investigate those claims and take appropriate action in a timely manner. See Williamson-Green, 89 Mass. App. Ct. at 163 ("[A]cts or omissions may be evidence that warrants a finding of gross negligence if circumstances are such that they would lead to reasonable apprehension that [the tortfeasor's negligence in those circumstances] would lead to death or serious injury" [quotation omitted] ). See also Renaud v. New York, N.H. & H.R.R. Co., 206 Mass. 557, 560 (1910) ("When the injury likely to ensue from failure to do that which ought to be done is a fatal or a very serious one, what otherwise would be a lack of ordinary care may be found to be gross negligence").

Conclusion. The corrected judgment entered on March 9, 2017, is reversed as to counts I-V of the first amended complaint and as to the counterclaims for indemnification. The judgment is affirmed as to counts VI-XV of the first amended complaint.

So ordered.

Reversed in part; affirmed in part.

      Final judgment under Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), was entered for the defendants on the plaintiff's claims and for the defendants "for [the plaintiff's] liability" on their counterclaims for indemnification. The defendants' motions for attorney's fees and costs and entry of final judgment were denied without prejudice. The case comes before us on cross appeals.

      SCC and Mendonca claim that the FAA report referenced in the appendix is inadmissible hearsay and cannot be considered. We express no opinion as to its admissibility at trial. However, because our review is de novo, "the record compiled for summary judgment is open to our independent consideration." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). Flying Circus and Howard reference the FAA report in their brief to support the contention that Cahalane "may have inadvertently extended her legs which resulted in her breaking her legs." Accordingly, we consider the report. See Boston v. Roxbury Action Program, Inc., 68 Mass. App. Ct. 468, 469 n.3 (2007) (considering arguably inadmissible evidence on summary judgment where both parties have relied on it).

      The judge did not consider the Siderwicz affidavit because "consideration of [it] would be unfair to [the defendants]." The docket does not show that a motion to compel or strike was filed, and the judge did not strike the affidavit. Based on a request in a reply brief, the judge in effect imposed the severest form of discovery sanction, without a motion, resulting in the dismissal of the case. The record is open to our independent consideration. See Matthews, supra. Even if a motion to compel had been properly filed and allowed, it would have been an abuse of discretion to decline to consider less significant sanctions before entering a sanction that effectively terminates the litigation on the merits. See Grassi Design Group, Inc. v. Bank of America, 74 Mass. App. Ct. 456, 460-461 (2009). For these reasons, we consider the affidavit for purposes of summary judgment.

      Mendonca and Silva testified that it was ultimately the instructor's decision whether it was safe to jump.

      Gustave Roque was an instructor and former employee of SCC who was, along with another customer, trailing Silva and Cahalane during their descent. Roque's affidavit states that he too witnessed Silva perform a hook turn when Cahalane was very close to the ground, a turn which, in his estimation, was a maneuver that could cause serious injury or death. In a subsequent deposition, Roque did not make the same representations. SCC and Mendonca contend that we should not consider the Roque affidavit because he is deceased, relying on Anselmo v. Reback, 400 Mass. 865 (1987). Both Siderwicz's affidavit and the expert testimony place the facts in dispute regarding the hook turn; we need not address or consider the Roque affidavit.

      Derek Vanboeschoten is a USPA instructor and safety and training advisor who has performed more than 5,000 skydives. Dr. Richard Ziernicki is an engineer and accident reconstruction specialist.

      In accordance with G. L. c. 90, § 51E, Chatham had appointed an airport commission to have the "custody, care and management" of Chatham Municipal Airport. Pursuant to the statute, the commission appointed an airport manager, who is "responsible to [the] commission for the proper maintenance and operation of [the] airport and of all facilities under his supervision."

      Under the airport management agreement, Howard was required to implement "[a]ll minimum requirements of the [FAA]...." In addition, Howard was to "attend [the] airport commission meetings and present a written report of the activities at the Airport for the previous month. Such report shall include any matter that has or might cause a legal and/or operation problem involving the Airport...."

      In her first amended complaint Cahalane dropped the negligence claims and pleads only gross negligence, strict liability, and deceit. We exercise our discretion to resolve the validity of the release because the question has been fully briefed and argued, and could recur on remand. Cahalane has not addressed, either in the lower court or on appeal, whether the release governs her strict liability claims. Cf. Sharon, 437 Mass. at 110-111 & n.12, citing Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 18-19 (1997). Nor has she addressed the strict liability claims on the merits. In addition, although she alleges deceit based intentional, reckless, or grossly negligent misrepresentations, she has not briefed those counts of the complaint on appeal, limiting herself instead to a claim that she was fraudulently induced to sign the release by the defendants' misrepresentations. Accordingly, any arguments regarding the dismissal of counts VI-XV of the first amended complaint alleging strict liability and deceit are waived. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55 (2013) (arguments not made on appeal are waived).

      Cahalane's contention that the waiver she signed was applicable only to the Cape Cod airfield in Barnstable, not SCC in Chatham, is waived as it was not raised at the summary judgment proceeding. See Matter of Steinberg, 448 Mass. 1024, 1025 (2007).

      The USPA published in its magazine a set of recommended rules for parachute jumps in an article, prepared by three parachute manufacturers, entitled "19 Commandments of Tandem Parachute Operation." The expert authenticated the article and relied upon "Commandment 11," which states in pertinent part that there are to be "no hook turns (no turns greater than 90 degrees under 500 feet AGL [above ground level] )," and on "Commandment 12," which states that the canopy should be level by 100 feet AGL without exception. Although the FAA claimed in correspondence with the town of Chatham that the FAA and the FAA alone was entitled to monitor and enforce its standards, it relies upon and incorporates USPA standards in its review, and has noted that they are considered "industry best practices." See FAA Advisory Circular No. 155-2D.

      See note 11, supra, and the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq. ; Burbank v. Lockheed Air Terminal, 411 U.S. 624, 626-627 (1973) ; Blue Sky Entertainment, Inc. v. Gardiner, 711 F. Supp. 678, 683 (N.D.N.Y. 1989) ; Skydiving Ctr. of Greater Washington, D.C., Inc. v. St. Mary's County Airport Commn., 823 F. Supp. 1273, 1283-1284 (D. Md. 1993) ; McWilliams v. S.E., Inc., 581 F. Supp. 2d 885, 889 (N.D. Ohio 2008).

      In view of our decision, we do not reach the issue raised by the cross appeal by three defendants concerning the propriety of the judge's order requiring a jury trial on the issue of attorney's fees.


text:
    COMMONWEALTH v. Henry COAKLEY.
    17-P-90
    Appeals Court of Massachusetts.
    Entered: July 3, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted of possession of a firearm without a license, in violation of G. L. c. 269, § 10(a ). On appeal, he argues that the judge erred by admitting testimony that allegedly profiled him as a drug dealer and by instructing the jury to disregard certain comments made by defense counsel during her closing argument. We affirm.

Background. During the course of an investigation involving two shootings, Boston police officers forcibly entered an apartment located on the second floor of a multi-family building on Rosedale Street and secured the premises while they obtained a search warrant. The defendant was the only person in the apartment at that time. Although he was not arrested, the defendant was taken to the police station, where he was interviewed. In a recorded statement, he explained that the apartment belonged to a friend who had given him keys to the unit so that he could feed his friend's cats. The defendant acknowledged that he heard the police knocking on the door and claimed that he did not respond because his friend had instructed him not to open the door. The defendant was released, but was arrested a few days later after the police executed a search warrant on the apartment and found a duffel bag in a bedroom closet that contained a .25 caliber Colt firearm. The bag also contained toiletries, glassine bags, a scale, and a wallet in which the police found the defendant's identification and Social Security card. Personal papers bearing the defendant's name were found in a night stand in the same bedroom where the duffel bag was found.

In a second recorded interview, the defendant claimed that he was not staying at the apartment and had not left any of his belongings there. However, he subsequently acknowledged that he sometimes left clothing and other items in the apartment. Redacted versions of the defendant's two recorded statements were played for the jury. The firearm and one live cartridge also were admitted in evidence, but the duffel bag and its contents, including the wallet, could not be located at the time of the trial and, therefore, the Commonwealth introduced photographs of these items. Detective Jean-Pierre Ricard, who was in charge of photographing and preserving the items seized during the search, testified that these items had been lost.

Discussion. 1. Profile testimony. Detective Brian Larkin testified that the glassine bags (baggies) found in the duffel bag are commonly used to package marijuana. The defendant objected and moved to strike Larkin's testimony. The judge overruled the objection, stating that photographs of the baggies and the scale constitute "circumstantial evidence that [the defendant] is involved in drug dealing." Defense counsel argued that "he's not charged with that," and the judge replied, "[t]hat may be, but the Commonwealth can argue that." She instructed the prosecutor to lay a foundation "that [Larkin] knows that [b]aggies are used in that regard." Larkin then testified that, based on his knowledge of how street-level narcotics are packaged and sold, the baggies found in the duffel bag "are the types of bags that would be used by a drug dealer to package marijuana." Larkin further explained that scales are used to weigh drugs and that, in this case, "the scale in conjunction with those bags" suggests to him "[t]hat somebody's got a pretty decent operation going." Over objection, Larkin also was permitted to testify that drug dealers commonly carry firearms for protection because "[s]ometimes people commit home invasions to rip off drug dealers."

The defendant argues that Larkin's testimony should not have been admitted because it constituted prejudicial profile testimony. See Commonwealth v. Day, 409 Mass. 719, 723 (1991). We need not decide whether Larkin's testimony amounts to inadmissible profile evidence because we agree with the defendant that the testimony was not relevant to any issue in the case and should not have been admitted. We affirm the conviction despite this error, however, because we conclude that it was not prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (error is nonprejudicial only if, when all is said and done, "the conviction is sure that the error did not influence the jury, or had but very slight effect" [quotations omitted] ). Here, there was overwhelming evidence that the defendant constructively possessed the firearm found during the search. See Commonwealth v. Bastaldo, 472 Mass. 16, 34 (2015) (error not prejudicial where evidence of defendant's guilt is overwhelming). In addition, the prosecutor did not refer to Larkin's improper testimony during his closing arguments. Contrast Commonwealth v. Horne, 476 Mass. 222, 230 (2017) (admission of improper profiling evidence prejudicial where evidence of guilt was not overwhelming and prosecutor argued it in closing).

2. The judge's comments on defense counsel's closing argument. The primary theory of the defense was that the police investigation was inadequate. To that end, defense counsel argued that the jury should infer that the officers were not credible in light of their "[s]loppy, sloppy police work" with respect to the duffel bag and the wallet. Defense counsel argued that the Commonwealth had not sustained its burden of proof where "[a]ll we got is a dog and pony show about a car that doesn't make a difference about this case," and urged the jury to infer that the Commonwealth had manipulated the evidence from the fact that the defendant's recorded statements to the police were redacted for trial. Certainly the loss of evidence provided a sound basis for defense counsel's argument that the police investigation was inadequate; however, defense counsel improperly expressed her personal belief and disparaged the Commonwealth's witnesses on a number of occasions. As a result, the judge admonished counsel at side bar and then proceeded to instruct the jury to disregard counsel's references to "a dog and pony show" and the fact that the audio recordings of the defendant's interviews were redacted.

The defendant argues that the judge's comments precluded the jury from considering his primary defense, namely, that the police had mishandled the investigation. We disagree. After the judge instructed the jury to disregard counsel's improper comments, defense counsel was permitted to finish her closing, wherein she argued that the police "were just dragging stuff or losing stuff, willy nilly," and that "[a]ll the Commonwealth has proven is that their officers cannot do their job." Thus, contrary to the defendant's assertion, defense counsel was not forced to abandon her argument that the police investigation was inadequate. Rather, she pursued this line of argument until she concluded her remarks. We discern no error in these circumstances.

Judgment affirmed.

      The jury acquitted the defendant of unlawful possession of ammunition and unlawful possession of a loaded firearm. G. L. c. 269, §§ 10(h ) & 10(n ).

      Despite the Commonwealth's argument to the contrary, we assume without deciding that the defendant's objection to Larkin's testimony was properly preserved.

      See Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1003 (2015) (defendants' "presence in the apartment plus evidence of their personal documents found in ... direct proximity to the heroin, was more than sufficient to establish possession").

      Defense counsel was referring to certain aspects of the case that are not relevant to the appeal.

      Counsel argued that she didn't "believe ... for one second" that the police accidentally lost the duffel bag and the wallet, and that there was "[n]o freaking way" the jury should credit evidence of the defendant's interviews with the police because the Commonwealth only played portions of the recorded statements at trial.

      The judge instructed the jury as follows:
      "Another judge of this court has found that stop and that search to be perfectly legal and appropriate. So if you heard [defense counsel] refer to it as a dog and pony show, I am instructing you in the strictest-in the strongest terms possible to disregard that reference to a dog and pony show. Also, if you heard [defense counsel]'s reference to the fact that the video of the interviews was cut off, I remind members of the jury that because of our rules of evidence and other applicable laws, sometimes we can't play you the entire interview. So if you were to hear [defense counsel] say that there was some ulterior, inappropriate reason why it was cut off, please disregard that inference, as well. There were entirely appropriate reasons why you heard only edited portions of the interviews."


text:
    COMMONWEALTH v. Juan R. CALCANO.
    17-P-406
    Appeals Court of Massachusetts.
    Entered: July 2, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant, Juan Calcano, of trafficking in an opium derivative in violation of G. L. c. 94C, § 32E. We affirm.

1. Motion to suppress. a. Facts. We summarize the facts from the motion judge's findings, supplemented by uncontroverted testimony submitted during the evidentiary hearing on the motion to suppress. On March, 26, 2012, Massachusetts State police Trooper Shawn Maher was on stationary patrol with Fionn, a canine certified in the detection of narcotics, on Interstate Route 84 in Sturbridge when Maher noticed a vehicle with what he believed to be an impermissible degree of window tint. Maher signaled to the driver of the vehicle to pull over and he did so. Maher approached the vehicle from the passenger side, asked the defendant for his license and the vehicle's registration, and advised the defendant as to the reason for the stop. The defendant produced a valid driver's license, but could not locate the vehicle's registration. The defendant told Maher that he borrowed the car from a friend named Arturo, that Arturo was not the registered owner, and that he did not know Arturo's last name or the full name of the registered owner. While attempting to locate the registration, the defendant opened the glove compartment and Maher noted in it two air fresheners and a few loose screws.

Maher returned to his cruiser to check the vehicle information and request assistance. While at his cruiser, Maher observed the defendant twice bend over and disappear from view, giving Maher a safety concern. Lieutenant Philip Dowd arrived within minutes of Maher's request and the two returned to the defendant's vehicle. The troopers observed that the defendant was speaking on a cellular telephone. Maher asked the defendant to end the conversation, which the defendant did promptly. The defendant stated that he was speaking with "Edwin," the same person whom he previously identified as Arturo, and that he learned that Elvis Pineyro was the registered owner of the vehicle.

The defendant requested that Maher issue a warning for the excessive tint. Maher instead returned to his cruiser to confirm the information about Pineyro, while Dowd remained at the defendant's vehicle. Dowd engaged the defendant in conversation and asked if the defendant had any luggage associated with the trip with him. The defendant said he did. Dowd looked into the rear of the vehicle and saw no luggage, at which time the defendant stated that in fact he did not have luggage, but that he had personal items in New York.

Maher confirmed the registration information and returned to the defendant's vehicle. Dowd then informed Maher that Dowd had observed two loose screws in the vehicle's glove box, a strong odor of air freshener emanating from the vehicle, and a crease in the dashboard consistent with the use of a hidden compartment as an aftermarket addition to a vehicle.

Based on Dowd's information and Maher's own observations, Maher asked the defendant if there was anything illegal in the vehicle. The defendant responded that there was not and that "you can check." Maher then asked if he could search the vehicle, to which the defendant said yes. The defendant was asked to, and did, exit the vehicle.

Maher began the search by walking Fionn around the exterior of the vehicle. Fionn alerted on the driver and front passenger doors and then jumped into the vehicle, and alerted at the center console. The troopers identified an aftermarket compartment located where the center console met the dashboard, opened it, and recovered a plastic bag containing smaller plastic bags with "some 810 pills."

b. Discussion. The defendant contends that the motion judge erred in denying his motion to suppress. The defendant does not challenge the initial vehicle stop or Maher's inquiry to determine the registered owner of the vehicle, but rather argues that the troopers impermissibly prolonged the stop rather than ticketing the defendant and allowing him to leave once Maher had confirmed the vehicle's registration information.

"In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004) (quotation omitted). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Ibid. (quotation omitted).

"A routine traffic stop may not last longer than 'reasonably necessary to effectuate the purpose of the stop.' " Commonwealth v. Cordero, 477 Mass. 237, 241 (2017), quoting from Commonwealth v. Amado, 474 Mass. 147, 151 (2016). "Police authority to seize an individual ends 'when tasks tied to the traffic infraction are-or reasonably should have been-completed.' " Cordero, supra. at 242, quoting from Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). An officer may "expand a threshold inquiry of a motorist and prolong his detention" when there is a reasonable suspicion of criminal activity. Cordero, supra at 243, quoting from Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006).

Here, at the point when Maher confirmed both the defendant's license and the vehicle's registration information, there was sufficient reasonable suspicion to continue the stop based on Maher and Dowd's observations. The defendant had initially offered incomplete and inconsistent information to identify from whom he borrowed the vehicle (Arturo, also called Edwin) and who owned it. Maher and Dowd also both observed loose screws and saw or smelled air fresheners. Significantly, Dowd, "who developed a specialty in regard to hidden compartments in motor vehicles," observed a crease in the dashboard. These factors cumulatively provided sufficient reasonable suspicion, and the troopers prolonged the stop proportionally to the escalating suspicion. See Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001) (nonstandard switch under dashboard indicated vehicle may have secret compartment); Commonwealth v. Watts, 74 Mass. App. Ct. 514, 519 (2009) (reasonable suspicion based in part on laundry dryer sheets which may mask odor), overruled on other grounds, Commonwealth v. Campbell, 475 Mass. 611, 617 n.9 (2016).

2. Trial. a. Prosecutor's statements. The defendant challenges several of the prosecutor's remarks made during his opening statement and closing argument, arguing that they caused a substantial risk of a miscarriage of justice. "Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Durand, 475 Mass. 657, 670 (2016) (quotation omitted).

The defendant contends that the prosecutor improperly commented on the defendant's silence when arguing that the defendant, after being advised of his Miranda rights and that troopers identified the hidden compartment, displayed "no shock, no dismay, no disbelief on that man's face. All he said was he was cold and he would like to sit in a cruiser to stay warm." The defendant had filed a motion in limine to exclude testimony that he also had requested an attorney. The jury heard no evidence about the defendant's request for counsel and the prosecutor made no direct reference to it in closing argument. As the defendant did not remain silent after having received his Miranda warnings, the prosecutor was permitted to use the statement. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 418-419 (2016) ("[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all"). Instead of a comment on the defendant's right to remain silent, the testimony and the prosecutor's argument served only to imply that the defendant's statement showed his knowledge of the contents of the hidden compartment. Commonwealth v. Christian, 430 Mass. 552, 555 (2000).

The defendant also challenges the prosecutor's suggestion that the defendant was a high-ranking member of a drug organization, the use of an analogy, and the suggestion that the defendant only consented to the vehicle search because he did not know that it would involve a canine, and argues that the prosecutor shifted the burden of proof. In context of the entire argument, evidence at trial, and the judge's instructions, we discern no substantial risk of a miscarriage of justice in these statements.

b. Sufficiency. We turn next to the defendant's contention that there was insufficient evidence for the jury to find him guilty of trafficking. We review the evidence in the light most favorable to the Commonwealth and draw all inferences in the Commonwealth's favor as required by Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). A drug trafficking conviction under G. L. c. 94C, § 32E, requires proof that the defendant knowingly or intentionally possessed, either actually or constructively, and intended to distribute a specific amount of the controlled substance. See Commonwealth v. Roman, 414 Mass. 642, 643-644 (1993). To prove constructive possession, the Commonwealth must prove that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control" over the contraband. Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004). "[T]he Commonwealth may submit a case wholly on circumstantial evidence, and inferences drawn from that evidence need only be reasonable and possible; [they] need not be necessary or inescapable." Commonwealth v. Woods, 466 Mass. 707, 713 (2014) (quotation omitted). "Where conflicting inferences are possible from the evidence, it is for the jury to determine where the truth lies." Ibid. (quotation omitted).

Although the defendant's mere presence in the vehicle, without more, would have been insufficient to support an inference that he constructively possessed the pills, see Commonwealth v. Garcia, 409 Mass. 675, 687-688 (1991), based on additional factors present here, a rational trier of fact could have determined that the defendant constructively possessed the 810 pills recovered in the hidden aftermarket compartment. The defendant told the troopers that the vehicle was not his, but that a friend in Lynn loaned it to him two days prior so that the defendant could visit his grandmother in New York. The defendant was unable to provide the last name of the friend and offered different first names for that friend. Initially, the defendant could not identify the registered owner. The defendant's control of the vehicle for two days supported the inference that the defendant, and not others linked to the vehicle, possessed the contents of the compartment. See Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013).

Both Dowd and Maher also testified that they observed multiple air fresheners in the glove compartment. Maher testified that he could smell the air fresheners when standing at the rear of the vehicle, and there was testimony that an abundance of air fresheners are used to mask an odor of narcotics to avoid human or canine detection. The jury would be warranted in inferring that the defendant used the air fresheners for that purpose, further supporting the conclusion of constructive possession.

Furthermore, there was sufficient evidence of the defendant's distributive intent. Sergeant James Devlin testified that the pills were a "large amount" consistent with narcotics distribution, rather than an amount that would be prescribed by a physician or consistent with personal drug use. He testified that the packaging was also consistent with distribution and that 810 pills would be valued in excess of $24,000 if sold in a single transaction, and that they could be sold for a greater total amount through smaller transactions. Devlin further testified that aftermarket compartments are typically associated with drug trafficking organizations and not individual drug users, and that organizations commonly register vehicles to individuals other than the person transporting the contraband. Considering this evidence, together with the defendant's inconsistent statements about others linked to the vehicle, his out of view movements, and his inconsistent statements about whether he had luggage during an alleged two-day trip, the jury would be warranted in inferring that the defendant intended to distribute the pills. See Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984) (possession of large quantity of narcotics with considerable street value, combined with other factors, raise inference of intent to distribute). We therefore discern no error in the trial judge's denial of the motion for a required finding.

c. Instruction on lesser included offense of possession. The defendant further argues that the trial judge erred when refusing to instruct the jury on the offense of possession.

"As a general rule, the jury should receive an instruction on a particular offense where: (1) the offense is, as a matter of law, a lesser included offense of the crime charged; and (2) the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Souza, 428 Mass. 478, 493-494 (1998) (quotation omitted). A jury instruction on a lesser included offense is not required "unless the proof on the elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense." Ibid. (quotation omitted).

The defendant's trial strategy was to deny possession in its entirety; he did not argue, for example, that he possessed the pills only for personal use. He instead argued that he borrowed the vehicle from which the troopers later recovered the pills. However, as discussed, there was ample testimony that the 810 oxycodone pills were consistent with trafficking rather than personal use. Defense counsel did not attempt to discredit Devlin's testimony to this conclusion. This left no rational basis for the jury to conclude that the defendant simply possessed the pills. We therefore conclude that the trial judge did not err in declining to instruct the jury on simple possession.

Judgment affirmed.

      The windows were later tested and determined to have an excessive tint.

      As we conclude that the troopers had reasonable suspicion to prolong the stop, we need not address the defendant's argument that his subsequent consent to search the vehicle was invalid. Nevertheless, we discern no error in the motion judge's conclusion that the defendant voluntarily consented to the search. See Commonwealth v. Buckley, 478 Mass. 861, 875-876 (2018).

      The trial record does not indicate exactly when the defendant requested an attorney. The testimony from the motion to suppress hearing indicates that the defendant requested an attorney after he asked to sit in the cruiser.

      To the extent the prosecutor argued that the defendant, when told of the hidden compartment expressed "no shock, no dismay, no disbelief on that man's face," it was not supported by any testimony in the record and was not permissible. Nonetheless, we discern no substantial risk of a miscarriage of justice.

      The evidence at trial was not identical to the evidence presented at hearing on the motion to suppress. Our assessment of the sufficiency is based on the evidence actually admitted at trial.

      The defendant was indicted in June, 2012, of trafficking in twenty-eight grams or more, but less than 100 grams, of opium or any derivative thereof, in violation of G. L. c. 94C, § 32E(c )(2). The statute was subsequently amended (St. 2012, c. 192, § 25, effective August 2, 2012) and now provides a range of thirty-six grams or more, but less than 100 grams. The defendant stipulated at trial that the contraband recovered contained oxycodone, a derivative of opium and a class B controlled substance, and that the total weight of the 810 pills was 81.2 grams. He does not challenge the sufficiency of the evidence on this element.

      Defense counsel did cross-examine Devlin on his testimony that someone traveling from Lynn to New York might be engaged in trafficking, and inquired about other evidence that may be present if someone is trafficking narcotics.


text:
    COMMONWEALTH v. Kevin R. KIMBALL.
    17-P-427
    Appeals Court of Massachusetts.
    Entered: July 2, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Kevin R. Kimball, was convicted by a jury of operating a motor vehicle while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a )(1). On appeal, he argues that this conviction should be reversed because (i) the trial judge abused his discretion in precluding a portion of the defendant's expert witness's testimony, (ii) the prosecutor's closing argument was improper, (iii) the trial judge's final jury charge was inadequate, and (iv) there was insufficient evidence. We affirm.

Background. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the jury could reasonably have found the following facts. On the evening of April 4, 2015, Massachusetts State police Lieutenant Michael Richards observed the defendant driving over the speed limit on a public road, and pulled him over. As Richards approached the driver's side window, he smelled a strong odor of alcohol emitting from the defendant's mouth, and also noticed that the defendant's eyes were red, bloodshot, and glassy. The defendant admitted consuming alcohol. Richards asked the defendant to exit the vehicle, and because there were "indications of ... intoxication" called Massachusetts State police Trooper Dean Ricciardi to come to the scene to administer field sobriety tests.

Ricciardi arrived shortly thereafter, and also noticed that the defendant had glassy eyes and smelled of alcohol. The defendant admitted that he had consumed one beer that evening. Ricciardi then administered two field sobriety tests-namely, the "nine-step walk and turn" and the "one-leg stand" tests. Before the tests, the defendant informed Ricciardi that he had problems with his legs from a prior motocross accident, but that he was not seeing a doctor for these issues and did not raise any concern about his ability to perform the tests. The defendant was unable to maintain his position and kept losing his balance as Ricciardi instructed him on the first test, nine-step walk and turn. When he attempted to perform that test, the defendant lost his balance three times. The defendant again explained that he had "bad knees and hips," confirming also that he was not seeing a doctor for his injuries. During the one-leg stand test, the defendant was unable to stand on one leg for more than twelve seconds without losing his balance. Based on the defendant's performance and his other observations, Ricciardi formed the belief that the defendant was intoxicated.

Discussion. 1. Exclusion of expert testimony. At trial, the defendant offered the testimony of a medical expert, Dr. Le Santha Naidoo, who opined that the defendant, even while sober, would have had difficulty performing the field sobriety tests because he suffered from a mild bilateral valgus deformity in his knees. Dr. Naidoo officially diagnosed the defendant with that deformity during his office visit in September, 2015, five months after his arrest. On appeal, the defendant contends that the trial judge erred by excluding Dr. Naidoo's testimony regarding her observation that the defendant was unable to perform the nine-step walk and turn test during her examination of him in her office five months after his arrest.

We review a trial judge's decision to limit the scope of a proffered expert's testimony to determine whether there has been an abuse of discretion. See Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). We discern no such abuse. Here, to determine the permissible scope of Dr. Naidoo's testimony, the trial judge conducted a voir dire during which Dr. Naidoo acknowledged that the defendant's performance of the field sobriety test was not part of her diagnosis; instead, she diagnosed him based solely on her visual observations of his legs. Significantly, she was not trained to administer the test. Instead, she administered what she believed to be the nine-step walk and turn test, relying on a description of the test that she found on a Web site (the name of which she could not recall). She identified the Web site based on a Google search of the Internet conducted during the defendant's office visit. Under these circumstances, the trial judge acted within his discretion in limiting Dr. Naidoo's testimony. See Mass. G. Evid. § 702 (2018); Commonwealth v. Barresi, 46 Mass. App. Ct. 907, 908-909 (1999).

2. Closing argument. The defendant next contends that the prosecutor made three improper statements during closing argument. First, he objects to the prosecutor's two references to Dr. Naidoo as an "osteopathic doctor." Because this was an accurate description, there was no error. The defendant also maintains that the prosecutor improperly referred to the fact that Dr. Naidoo was retained and paid by the defendant. However, "[e]vidence of an expert's billing rate is admissible as evidence of bias, and it is appropriate to remind the jury that an expert was retained by the defendant." Commonwealth v. Bishop, 461 Mass. 586, 598 (2012). Here, Dr. Naidoo testified that she did not know whether the Commonwealth or the defendant was paying for her appearance. The prosecutor's statements properly attempted to clarify the uncontested fact that Dr. Naidoo was paid by the defendant. Cf. Commonwealth v. Shelley, 374 Mass. 466, 469-470 (1978).

Finally, the defendant contends that the prosecutor impermissibly mentioned that the defendant visited Dr. Naidoo for a medication review during a portion of his closing that recounted the night of the defendant's arrest. This reference was a proper reference to Dr. Naidoo's testimony that the defendant had visited her not for an examination of his legs, but instead, to discuss problems he was having with his medication. While the prosecutor's ordering of his discussion of this evidence may have been unartful, we fail to perceive any error.

3. Jury charge. The defendant additionally maintains that the trial judge erred by failing to instruct the jury expressly that Ricciardi provided a lay opinion, rather than an expert opinion, when he testified as to his observations of the defendant's performance on the field sobriety tests. Specifically, he contends that the lack of this specific instruction created a risk that the jury considered this testimony as expert opinion, and thus gave it undue credence. We disagree.

Here, the trial judge provided a specific instruction regarding expert opinions, during which he expressly noted that the only expert opinion that was presented was Dr. Naidoo's. With regard to Ricciardi's testimony, the judge properly instructed the jury that it was for them to decide how much weight the field sobriety tests should be given, and ultimately, whether the defendant's performance indicated that he was under the influence of alcohol. See Commonwealth v. Canty, 466 Mass. 535, 545 (2013) ; Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389-390 (2017).

4. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, Latimore, 378 Mass. at 677-678, the evidence that the defendant had red, bloodshot, and glassy eyes when he was pulled over, smelled of alcohol, consumed alcohol that evening, and failed the two field sobriety tests was sufficient to support the conviction. Contrary to the defendant's argument on appeal, the jury were not required to credit Dr. Naidoo's opinion that the defendant's medical condition contributed to his performance of the sobriety tests, especially given the evidence that, prior to his arrest, he had no documented history of lower body disabilities, and Dr. Naidoo examined him to determine that he had this condition only after he told her that he had failed a field sobriety test. See Commonwealth v. Merry, 453 Mass. 653, 661 (2009) ("That evidence is conflicting does not demand a required finding of not guilty.... The jury are free to believe or disbelieve any or all of the evidence they hear").

Judgment affirmed.

      The trial judge also found him responsible for speeding, a civil violation, G. L. c. 90, § 17.

      The defendant was slow to stop, continuing for "some distance before stopping."

      Ricciardi explained that this test involves taking nine heel-to-toe steps in a straight line, counting each step as it is taken, turning, and returning to the starting position in the same manner.

      Ricciardi explained that this test involves standing on one foot, raising the other foot approximately six inches off the ground, and maintaining this position while counting thirty seconds.

      Specifically, the defendant lost his balance on the first step, during the turn, and on the first step returning to the starting position.

      Dr. Naidoo is an osteopathic doctor who had been the defendant's physician prior to his arrest. She examined the defendant approximately five months after his arrest.

      This condition, sometimes referred to as "knock-kneed," occurs when the upper thigh does not line up correctly with the lower leg. She specifically opined that it would cause the defendant to be incapable of walking evenly in a straight line, and that it would be difficult for him to walk heel to toe.

      She administered the test only after the defendant informed her that he previously had difficulties performing it.