text:
    COMMONWEALTH v. Charles J. HERBECK.
    17-P-28
    Appeals Court of Massachusetts.
    Entered: February 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant, Charles J. Herbeck, appeals from his convictions of stalking in violation of a restraining order and witness intimidation. He claims that (1) the victim's hearsay statements were improperly admitted under the doctrine of forfeiture by wrongdoing, (2) his due process rights were violated because the victim's statements were not reliable, and (3) a Facebook photograph was improperly admitted because it lacked foundation and was unduly prejudicial. We affirm.

Background. On January 27, 2014, Amy, the defendant's girl friend, obtained an abuse prevention order pursuant to G. L. c. 209A, which prohibited the defendant from contacting her or threatening to harm her. The order was served on the defendant the same day.

Four days later, Amy reported to the Stoneham police that she had received twenty-four telephone calls from the defendant since the order entered. In one call the defendant threatened to shoot Amy with a .45 caliber handgun. Amy was visibly upset while making the report.

The defendant continued to contact Amy as police searched unsuccessfully for him. Amy showed police over fifty text messages and videos that she had received from a telephone number she did not recognize. The text messages were threatening in nature, and the videos depicted Amy engaged in sexual activity. From their content, Amy knew the messages were sent by the defendant. Amy was crying and shaking as she showed police the messages. Thereafter, criminal complaints issued charging the defendant with multiple violations of the abuse prevention order, intimidating a witness, and stalking in violation of a restraining order.

Discussion. 1. Forfeiture by wrongdoing. During the course of pretrial proceedings, Amy asserted her privilege under the Fifth Amendment to the United States Constitution and elected not to testify at trial. Consequently, the Commonwealth moved in limine to admit her statements to the police under the doctrine of forfeiture by wrongdoing, asserting that the defendant had procured her unavailability. The motion was supported, in part, by recordings of telephone calls the defendant made from jail to Amy and his mother. Following an evidentiary hearing at which the recordings were played, the motion judge issued comprehensive written findings and concluded that the defendant was "trying, on his own and through his mother, to convince [Amy] not [to] testify in these cases." Accordingly, the motion judge ruled that the doctrine of forfeiture by wrongdoing applied and allowed the Commonwealth's motion in limine. On appeal, the defendant claims this decision was error because there was no evidence that the defendant's persuasion of Amy was "unfair."

"[T]he 'wrongdoing' in forfeiture by wrongdoing is simply the intentional act of making the witness unavailable to testify or helping the witness become unavailable." Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010), cert. denied, 562 U.S. 1230 (2011). Nothing in our case law requires a defendant's persuasion of a witness to be "unfair" for the doctrine to apply. Here, the motion judge heard evidence that the defendant communicated with Amy personally and through his mother, in violation of an active restraining order, for the purpose of prevailing upon Amy not to cooperate with the Commonwealth. Amy then invoked her Fifth Amendment privilege. In these circumstances, "the doctrine of forfeiture by wrongdoing was properly applied." Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017).

2. Indicia of reliability. Due process requires that hearsay statements admitted under the doctrine of forfeiture by wrongdoing be reliable. Commonwealth v. Szerlong, supra at 866. The defendant claims that Amy's hearsay statements that she attempted suicide in order to end her relationship with the defendant, that she was afraid of and hiding from the defendant, that the defendant threatened her with a .45 caliber handgun, and that the text messages she received were from the defendant, were unreliable and should not have been admitted at trial. The trial judge, who was not the motion judge, conducted a voir dire hearing regarding Amy's statements and concluded they were sufficiently reliable. For the reasons that follow, we agree.

Amy's statement that she attempted suicide because she wanted to end her relationship with the defendant was corroborated, in part, by evidence that she obtained a restraining order against him. Her statements to the police were "factually detailed, based on personal knowledge and direct observation, made close in time to the events in question, and corroborated by the observations of" the officers. Commonwealth v. Negron, 441 Mass. 685, 691 (2004). See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016) (setting forth criteria for assessing reliability of hearsay evidence). Amy's statements were also corroborated by the threatening text messages themselves, which were admitted in evidence, and the police testified that Amy was visibly shaken and upset while reporting the defendant's threats. Taken together, this independent evidence provided sufficient indicia that Amy's statements were reliable.

3. Facebook photograph. The defendant claims that a Facebook photograph of him holding a handgun should not have been admitted at trial because it lacked foundation and its prejudicial effect outweighed its probative value. We see no "palpable error" in the trial judge's decision to admit the photograph. Commonwealth v. Holley, 478 Mass. 508, 532 (2017).

"A proponent adequately lays the foundation for admission when a preponderance of the evidence demonstrates that the item is authentic." Commonwealth v. Siny Van Tran, 460 Mass. 535, 546 (2011). The Commonwealth laid a foundation for admission of the photograph by eliciting from a police officer testimony that he visited the defendant's Facebook page on January 31, 2014, recognized the defendant in the photograph, and printed the photograph, which he identified as the offered exhibit. See Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586 (2017) (evidence may be authenticated by "having an eyewitness testify that [it] is a fair and accurate representation of what he saw on the day in question").

The trial judge conducted a balancing test before deciding that the photograph was admissible, and we discern no abuse of discretion in his finding that the probative value of the photograph outweighed any potential unfair prejudice. See Commonwealth v. Holley, supra at 533. There was evidence that the defendant threatened to shoot Amy with a handgun, the photograph showed the defendant holding a handgun, and evidence that the defendant "had the means of committing the crime" is admissible "even without direct proof that the particular weapon was in fact used in the commission of the crime." Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012) (quotation omitted). Because defense counsel highlighted the absence of evidence regarding where, when, or by whom the picture was taken, "[t]he evidence left it to the jury to determine whether in fact" the defendant had access to a handgun at the time he threatened to shoot Amy. Commonwealth v. Holley, supra. See Commonwealth v. McGee, 467 Mass. 141, 157 (2014) (it is for jury to decide whether there is link between gun defendant was said to possess and one used to shoot victim). Further, the judge instructed the jury regarding the limited purpose for which they could consider the photograph. The trial judge acted within his discretion in determining that the probative value of the photograph outweighed the risk of any unfair prejudicial impact.

Judgments affirmed.

      A pseudonym.

      The messages contained statements such as, "[b]e the[r]e in a min ... you think doors stop me"; "I get a sanction for you"; "[t]rust me your name is going down on the snitch ... you better fix it ... [u]nless you like P C"; and "[s]nitch[e]s get stiches" [sic]. Amy told the police that she understood the term "P C" to refer to "protective custody."

      Under the doctrine of forfeiture by wrongdoing "a defendant is deemed to have lost the right to object (on both confrontation and hearsay grounds) to the admission of the out-of-court statements of a witness whose unavailability the defendant has played a meaningful role in procuring." Commonwealth v. Edwards, 444 Mass. 526, 527-528 (2005). "[T]he causal link necessary between a defendant's actions and a witness's unavailability may be established where ... a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure." Id. at 541.

      We defer to the motion judge's findings of fact, which the defendant does not claim were clearly erroneous. See Commonwealth v. Edwards, supra at 545.

      Were we to reach the issue of fairness our conclusion would be the same. Evidence that the defendant repeatedly capitalized on Amy's concern for the couple's child while seeking to convince Amy not to testify, support a conclusion that the defendant's persuasion of Amy was "unfair."


source: Caselaw Access Project

license: Public Domain

text:
    Raymond P. VINNIE v. Bruce R. HENRY & others.
    17-P-141
    Appeals Court of Massachusetts.
    Entered: February 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Charles M. Urso, David A. Hilton, Jason W. Crotty, Tory A. Weigand (collectively, the attorney defendants), and Michael Joseph Donovan, individually and in his capacity as clerk of the Suffolk County Superior Court.

   The plaintiff, Raymond P. Vinnie, appeals from the allowance of the defendants' motions to dismiss his complaint. For the reasons set forth below, we affirm the judgment of dismissal.

Background. 1. 2004 action. This case arises out of the plaintiff's inability to obtain a default judgment in a prior lawsuit he filed on May 3, 2004, in Suffolk County Superior Court (2004 action). At the time, the plaintiff was an inmate at Souza-Baronowski Correctional Center. In the 2004 action, the plaintiff alleged medical malpractice and violations of the Eighth Amendment to the United States Constitution against three medical contractors for the Department of Correction (the medical defendants) and a Department of Correction employee.

The plaintiff served the defendants in the 2004 action by certified mail, mailed on June 2, 2004; the returns of service were docketed on June 25, 2004. There is no record evidence supporting any other date of service, as the plaintiff has never filed or produced the signed service of process receipts.

On July 2, 2004, without first moving for entry of default, the plaintiff requested a default judgment against all defendants in the 2004 action. On July 12, 2004, the defendants in the 2004 action filed their answers. On July 16, 2004, the Suffolk County Superior Court clerk's office sent the plaintiff notice of its refusal to enter the default judgment, indicating that the plaintiff had filed neither the signed return receipts from his service of process nor a request for entry of default. See Mass.R.Civ.P. 55(b)(1), as amended, 454 Mass. 1401 (2009) (for clerk to enter default judgment, defendant must, inter alia, have "been defaulted for failure to appear"). On August 13, 2004, the medical defendants filed an opposition to the plaintiff's request for a default judgment, asserting that they were served with the complaint on June 25, 2004. The plaintiff's request for default judgment was denied, and after further proceedings, summary judgment was granted in favor of the defendants. This court affirmed that judgment in March, 2013. See Vinnie v. Enaw, 83 Mass. App. Ct. 1119 (2013).

2. 2015 complaint. Two years later, on June 15, 2015, the plaintiff filed the complaint at issue here. He alleged that the attorney defendants, who had represented the defendants in the 2004 action, and Donovan conspired to fraudulently deny him the entry of a default judgment in the 2004 action. He further alleged that the defendants in the 2004 action were served on June 2, 2004, and that the June 25 date indicated in the opposition motion was a lie by the attorney defendants designed to block the plaintiff's request for a default judgment. The 2015 complaint was dismissed by a judge of the Superior Court as time-barred by the statutes of limitations pertaining to the various claims. This appeal followed.

Discussion. "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We accept as true the allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Ibid.

1. Section 1983 claims. In his 2015 complaint, the plaintiff asserted claims under 42 U.S.C. § 1983 (2012). Section 1983 claims "borrow the forum [S]tate's statute of limitations for personal injury claims." Rodriguez-Garcia v. Municipality of Caguas, 354 F.3d 91, 96 (1st Cir. 2004). Under the Massachusetts statute, a plaintiff must file a personal injury action within three years "after the cause of action accrues." G. L. c. 260, § 2A, as amended by St. 1973, c. 777, § 1. For § 1983 claims, "Federal law determines the date on which the claim accrued." Rodriguez-Garcia, supra. "Under [F]ederal law, the limitations period begins to run when the plaintiff 'knows or has reason to know of the injury which is the basis for his claim.' " Id. at 96-97, quoting from RodriguezNarvaez v. Nazario, 895 F.2d 38, 41 n.5 (1st Cir. 1990). The limitations period begins to run even if the consequences of the triggering injury are not yet felt. Chardon v. Fernandez, 454 U.S. 6, 8 (1981). See Pagliuca v. Boston, 35 Mass. App. Ct. 820, 822 (1994).

Here, the facts supporting the plaintiff's claim that the attorney defendants and court clerk colluded to block the plaintiff's motion for a default judgment would have been known to him by mid-August, 2004, when the defendants filed the opposition to his motion for default judgment. By then, the plaintiff knew the clerk had recorded a June 25, 2004, return of summons date and had rejected the plaintiff's motion for a default judgment in part because the plaintiff had not filed signed return of service receipts. In their opposition filing, the defendants had averred that they were served with the complaint on June 25. Accordingly, all the facts that form the basis of the plaintiff's 2015 complaint were known to him in August, 2004, thus starting the clock on the three-year limitations period. We conclude, therefore, as did the judge below, that the plaintiff's § 1983 claims are time-barred.

2. Tort claims. The three-year statute of limitations set forth in G. L. c. 260, § 2A, also applies to the plaintiff's tort claims. Massachusetts law mirrors Federal law in determining the date on which a cause of action in tort accrues. See Bowen v. Eli Lilly & Co., 408 Mass. 204, 207 (1990) ("[T]he statute of limitations starts to run when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused [his] injury," and "[t]he plaintiff need not know the full extent of the injury before the statute starts to run"). Accordingly, the plaintiff's tort claims fail for the same reasons that his § 1983 claims fail-the claims accrued in 2004, and the statute of limitations had run by the time he filed his complaint in 2015.

3. Massachusetts Civil Rights Act claims. The same is true for the plaintiff's claims under G. L. c. 12, §§ 11H and 11I. The three-year limitations period begins "on the date of the allegedly wrongful acts, unless the wrong is 'inherently unknowable.' " Pagliuca v. Boston, 35 Mass. App. Ct. at 823, quoting from Flynn v. Associated Press, 401 Mass. 776, 781-782 (1988). There is nothing in the record to suggest that any of the facts in support of the plaintiff's claims were unknowable to him. This is a matter that the plaintiff vociferously litigated all the way through his prior appeal. He was well aware of the record dates.

4. Chapter 93A claim. General Laws c. 260, § 5, provides a one-year statute of limitations for the G. L. c. 93A claim asserted here. See Passatempo v. McMenimen, 461 Mass. 279, 292 (2012). Therefore, to the extent that the plaintiff pleads a claim under G. L. c. 93A, it is also time-barred.

5. Rule 60(b). Finally, to the extent the plaintiff requests relief from the final judgment in the 2004 action due to fraud under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), that claim is also time-barred. Under rule 60(b), a party may move within one year of entry of a final judgment obtained by fraud for relief from that judgment. A party may also file an independent action instead of a rule 60(b) motion, but that does not negate the one-year limitations period. Sahin v. Sahin, 435 Mass. 396, 401 (2001). Here, final judgment in the plaintiff's 2004 action entered in 2004; it was affirmed by this court in 2013, and further appellate review was denied in the same year. Accordingly, the plaintiff's 2015 complaint based on the 2004 judgment exceeded the one-year limitations period applicable to rule 60(b) motions and its related independent actions. We discern no error.

Judgment affirmed.

      The version of rule 55(b)(1) in effect in 2004 contained this identical language.

      Specifically, the plaintiff claims the attorney defendants and Donovan violated the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution; art. XV of the Massachusetts Declaration of Rights; G. L. c. 12, §§ 11H -11I ; G. L. c. 258, § 2 ; G. L. c. 93A, § 2 ; and 42 U.S.C. § 1983 (2012), and committed the torts of fraud; negligent infliction of emotional distress; intentional infliction of emotional distress; and interference with a prospective advantage. The plaintiff also asserts that the final judgment in the 2004 action is invalid due to fraud, a claim cognizable under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).

      Although we do not base our decision on collateral estoppel grounds, we do note in passing that in Vinnie v. Enaw, 83 Mass. App. Ct. at 1119, this court expressly concluded that "Vinnie [was] not entitled to a default judgment in his favor."


text:
    COMMONWEALTH v. Ferssy RODRIGUEZ-GREEN.
    17-P-365
    Appeals Court of Massachusetts.
    Entered: February 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Ferssy Rodriguez-Green, of assault and battery on a family or household member, G. L. c. 265, § 13M(a ). On appeal, the defendant contends (1) the evidence at the close of the Commonwealth's case was insufficient to support a finding that the victim and the defendant were members of the same household; (2) the judge erred in admitting certain portions of the victim's medical records; and (3) the prosecutor improperly misstated the evidence during summation. We affirm.

1. Motion for a required finding. At issue here is whether the Commonwealth presented sufficient evidence at the close of its case to satisfy any rational trier of fact beyond a reasonable doubt, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), that the defendant and the victim were members of the same household. The Commonwealth may satisfy the challenged element with proof that the defendant and the victim were "in a substantive dating or engagement relationship," G. L. c. 265, § 13M(c )(iii), as appearing in St. 2014, c. 260, § 23. Viewing the evidence "in the light most favorable to the prosecution," Latimore, supra, we are satisfied that the Commonwealth has met this burden.

First, evidence derived from the victim's medical records from the day of the incident, show that the victim identified the defendant as her "Significant Other." She also listed him as her emergency contact. Furthermore, the incident occurred at approximately 2:00 A.M. , and the defendant's mother was present in the apartment when police arrived.

Moreover, despite suffering a serious injury at the hands of the defendant (police found the victim, who attributed her injury to the defendant, in the bathroom, bleeding from a gash to her arm), the victim, according to what the defendant told police, protected the defendant from arrest by telling him to leave the apartment before the police arrived. The defendant did not flee the area but, rather, remained nearby, hidden in a car that was parked behind the apartment building and, finally, in further support of the existence of a substantive relationship, there was the defendant's statement to the police that the victim "would not testify against him." This evidence, together with all of the inferences that could be reasonably drawn therefrom sufficiently established that the victim and the defendant were in a substantive dating relationship and, thus, that they were members of the same household. Commonwealth v. Dustin, 476 Mass. 1003, 1006 (2016) (discussing various ways to show existence of "substantive dating relationship"). We perceive no error.

2. Admission of medical records. The defendant next challenges the admission of three portions of the victim's medical records. He argues the first page is inadmissible because it states the victim was a "Crime Victim" and that she was married, with the defendant as a "Significant Other." He also takes issue with the admission of three references to the victim having been the subject of an assault, and, finally, he disputes the admission of an unidentified quote in an emergency medical technician's (EMT's) report, which states that "he beat her up bad." The defendant did not object to the first of these portions but did object to the other two.

a. Standard for the admissibility of medical records. Pursuant to G. L. c. 233, § 79, patient records kept by hospitals under G. L. c. 111, § 70, "shall be admissible ... as evidence ... so far as such records relate to the treatment and medical history of such cases." Bouchie v. Murray, 376 Mass. 524, 527 (1978), quoting from an earlier version of § 79. This statute is interpreted liberally, allowing admission of medical records "even though incidentally the facts recorded may have some bearing on the question of liability." Commonwealth v. Atencio, 12 Mass. App. Ct. 747, 751 (1981), quoting from Leonard v. Boston Elev. Ry., 234 Mass. 480, 483 (1920). However, "'ultimate conclusions concerning the charged crimes' must be redacted." Commonwealth v. Dargon, 457 Mass. 387, 394 (2010), quoting from Commonwealth v. Dwyer, 448 Mass. 122, 137 (2006). Furthermore, to be admissible,

"[1] the document must be the type of record contemplated by G. L. c. 233, § 79 [;] ... [2] the information must be germane to the patient's treatment or medical history[;] ... [3] the information must be recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those who are under a medical obligation to transmit such information[; and] ... [4] voluntary statements of third persons appearing in the record are not admissible unless they are offered for reasons other than to prove the truth of the matter contained therein or, if offered for their truth, come within another exception to the hearsay rule or the general principles discussed [herein]."

Bouchie, supra at 531.

b. Unobjected-to hearsay challenge. We review the unobjected-to challenge to the admission of the first page of the medical records for any error that created a substantial risk of a miscarriage of justice, Dargon, supra, and discern none. First, the statement that the victim was a "Crime Victim" comprised a single entry among thirty-six pages of information that overwhelmingly dealt with the treatment of the victim. We do not see that one passing reference to her being a "Crime Victim" would affect the jury's verdict, see Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998) (no error when hospital records contained conclusions as to crime charged but overwhelmingly dealt with treatment), particularly where, as here, the evidence of guilt was overwhelming. Police found the victim bleeding from a gash to her arm. Referring to the defendant, the victim was heard exclaiming, "I can't believe he did this to me," and police found the defendant (who had fled the scene) with bloodied hands and clothing hiding in a car just outside the victim's apartment building.

The admission of the statement that the defendant was the victim's "Significant Other" and that she was married, even if error, also did not create a substantial risk of a miscarriage of justice, as the jury heard other substantial evidence, including testimony from the victim during the defendant's case-in-chief, that the two were in a dating relationship. See Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986) (no harm when error does "not relate to an issue actively contested at trial").

c. Objected-to hearsay challenges. We review the defendant's objected-to challenges to the three references to the victim being the subject of an "assault" and the entry in the EMT record that "he beat her up bad" for prejudicial error, Dargon, supra, but discern none.

Given the overwhelming testimonial and documentary evidence of the seriousness of the injury the victim suffered at the hands of the defendant, we are not persuaded that these comments influenced the jury's verdict. The arresting officer described a "large laceration" to the victim's arm, and medical records detailed the extensive injuries to her face and arm. Furthermore, the jury does not appear to have been swayed by any inadmissible hearsay, as they acquitted the defendant of the more serious offense of assault and battery by means of a dangerous weapon. See Commonwealth v. Bastaldo, 472 Mass. 16, 34-35 (2015) (no prejudice if error does not affect verdict).

3. Commonwealth's closing argument. Last, the defendant asserts that the prosecutor twice misstated the evidence during his summation. The prosecutor argued, without evidentiary support, that the defendant told police that the victim was his wife, and that the victim told police that the defendant was her boy friend.

In determining the impact of a prosecutor's misstatement, we look to "(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000), citing Commonwealth v. Kozec, 399 Mass. 514, 518 (1987). Applying these factors, we do not see that a substantial miscarriage of justice was created here. See Commonwealth v. Gupta, 84 Mass. App. Ct. 682, 690 (2014).

First, the defendant did not lodge a seasonable objection. Second, the judge instructed the jury twice that closing statements are not evidence. Finally, although the comments went to an element of the offense, there is little possibility they affected the verdict, as there was overwhelming evidence that the victim and the defendant were members of the same household, including the victim's trial testimony that she and the defendant were in a dating relationship.

Judgment affirmed.

      The jury acquitted the defendant of a charge of assault and battery by means of a dangerous weapon.

      The Commonwealth contends the defendant waived this argument by not specifically identifying it in his motion for a required finding of not guilty. However, a motion for a required finding of not guilty need not specify the precise challenge. See Commonwealth v. Mills, 436 Mass. 387, 391 (2002) (defendant made general motion for required finding, but raised specific argument on appeal, which court reviewed without reservation).

      There likely was no error in the admission of the EMT entry "he beat her up bad," see DiMonte, supra at 241-242, but we need not reach this issue, as we see no prejudice flowing from its admission.

      To the extent the defendant raises the claim that cumulative error warrants reversal, it is unavailing. "The cumulative error was no more prejudicial than the individual errors, which had minimal impact." Commonwealth v. Kosilek, 423 Mass. 449, 457 (1996).


text:
    COMMONWEALTH v. Ruel SPENCE.
    16-P-1680
    Appeals Court of Massachusetts.
    Entered: February 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Ruel Spence, was convicted after a trial by jury in District Court of receiving stolen property with a value greater than $250, in violation of G. L. c. 266, § 60. The defendant was sentenced to one year in the house of correction. On appeal, the defendant contends that the evidence was insufficient to support his conviction, and that the prosecutor improperly vouched for the credibility of the evidence during her closing argument. We affirm.

Background. "Because the defendant challenges the sufficiency of the evidence presented, we summarize the facts the jury could have found in the light most favorable to the Commonwealth." Commonwealth v. Tavares, 471 Mass. 430, 431 (2015).

On June 9, 2015, Edward Pape left his home in Rutland for work at approximately 7:00 A.M. He returned to his home at about 7:30 P.M. to find that his back door had been torn completely "off the hinges." Pape noticed that many items were missing, including his solid gold wedding ring. Pape reported the items stolen to the Rutland police, who in turned referenced the New England State Police Information Network (NESPIN), which contains records of recent transactions at both pawn and coin shops. Rutland police Detective Troy Chauvin discovered that a wedding ring had been sold to Gardner Rare Coin (Gardner Coin or store), which was approximately fifteen miles from Rutland, on the same day as the break-in. The NESPIN database listed the defendant as the individual who sold the wedding ring. Detective Chauvin went to Gardner Coin where he recovered a ring, later identified by Pape as his wedding ring. Chauvin also obtained a sales receipt that indicated that the defendant sold the ring at 10:40 A.M. on June 9, 2015. The sales receipt was accompanied by a photograph of the defendant's driver's license taken at the time the defendant sold the ring. An employee of Gardner Coin testified that although he was not the clerk who performed the transaction on June 9, it was the practice of the store to assess the value of an item offered for sale, offer a price to the seller, and in compliance with a local ordinance, take the seller's driver's license or other form of identification and enter the information into the computer system. The store's policy is to have the seller sign a sales receipt and staple it to the bag containing the item that was sold; the store keeps the item for at least fourteen days. The clerk handling the transaction is required to photograph the item that is sold along with the seller's driver's license.

Discussion. 1. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to convict under G. L. c. 266, § 60. "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

In order to convict the defendant of receiving stolen property under G. L. c. 266, § 60, the Commonwealth must prove beyond a reasonable doubt that "(1) The property in question was stolen; (2) That the defendant knew that the property had been stolen; and (3) That the defendant knowingly had the stolen property in his possession." Commonwealth v. Namey, 67 Mass. App. Ct. 94, 97 (2006) (quotation omitted). "A rational inference of guilty knowledge may be drawn from the facts and circumstances, including the defendant's possession of recently stolen goods." Commonwealth v. Burns, 388 Mass. 178, 183 (1983).

The defendant contends that the mere fact than Gardner Coin "received [his] license when they received the ring is insufficient to demonstrate that it was him who sold the ring." We disagree.

Considering the evidence in the light most favorable to the Commonwealth, we believe the jury could reasonably infer that the defendant sold the stolen ring to Gardner Coin on June 9, 2015. See Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002) ("The crime of receiving stolen goods may be proved by circumstantial evidence"). In addition, the jury were warranted in relying on the permissive inference of guilty knowledge that arises from the possession of recently stolen property. See Burns, supra.

The defendant relies on several cases that are distinguishable. In Commonwealth v. French, 476 Mass. 1023, 1023-1024 (2017), the only evidence linking the defendant to the scene of the breaking and entering was a single fingerprint on the store-front window. The court held that because the Commonwealth could not establish beyond a reasonable doubt that the defendant left his fingerprint on the window at the time of the break-in, the evidence was insufficient to support the conviction. Id. at 1025. In Commonwealth v. Renaud, 81 Mass. App. Ct. 261, 263-264 (2012), an electronic bank transfer card in the defendant's name found at a crime scene was not sufficient to support an inference that the defendant was present during the commission of the crime. In Commonwealth v. Swafford, 441 Mass. 329, 340-341 (2004), the court rejected the Commonwealth's argument that merely because the defendant was the owner of a vehicle, it was likely that he was the driver on a particular occasion.

There was no error in denying the defendant's motion for a required finding of not guilty.

2. The prosecutor's closing argument. The defendant further contends that the prosecutor improperly vouched for the accuracy of the photograph of the defendant's license during the closing argument. "Because the defendant did not object to portions of the prosecutor's closing argument he now challenges, we must determine whether any such errors created a substantial risk of a miscarriage of justice." Commonwealth v. Ortega, 441 Mass. 170, 180 (2004).

The prosecutor's statements did not constitute improper vouching. Improper vouching occurs when "an attorney expresses a personal belief of the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Kee, 449 Mass. 550, 560 (2007) (quotation omitted). Here, the prosecutor did not express a personal belief, but instead repeated the testimony of Gardner Coin's employee that the date stamp on the photograph of the defendant's license was incorrect. "The prosecutor's comments were within the bounds of proper argument." Ortega, supra at 182.

Judgment affirmed.

      This testimony was received without objection.

      Although the time stamp on the photograph of the defendant's license indicated that the transaction occurred on June 8, 2015, an employee of Gardner Coin testified that the time stamp was incorrect, and that the transaction took place on June 9, 2015.

      In his brief, the defendant argues that the inference of guilty knowledge that arises from the possession of recently stolen property infringes on his constitutional right to remain silent. This question has previously been considered and rejected by the Supreme Judicial Court. See Commonwealth v. Burns, 388 Mass. 178, 183 & n. 11, 445 N.E.2d 613 (1983). We are bound by that decision. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486, 796 N.E.2d 859 (2003). Accordingly, any relief based on this argument must come from the Supreme Judicial Court.

      The fact that Gardner Coin did not photograph the person who presented identification and sold the item to the store and that the clerk who conducted the transaction did not testify merely affects the weight of the evidence.


text:
    COMMONWEALTH v. Jon S. ANDRUK.
    17-P-688
    Appeals Court of Massachusetts.
    Entered: February 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from an order dismissing a complaint charging the defendant, Jon S. Andruk, with one count of cruelty to animals ( G. L. c. 272, § 77 ) and one count of malicious killing of a domestic animal ( G. L. c. 266, § 112 ). The judge found that the Commonwealth lost and or destroyed potential exculpatory evidence and that access to such evidence could have produced evidence favorable to the defendant's case. We reverse the order of dismissal.

Background. After investigating a report of a missing pet pig, the police discovered the pig dead in the defendant's front yard. The defendant and the alleged victim were neighbors with a long history of disputes. The police found the pig's carcass warm to the touch, wound side down, and in a pool of its own blood. After turning the pig over and discovering a puncture hole, an investigating officer identified the size and shape as being consistent with an arrow wound. The police did not find an arrow or blood trail in the immediate vicinity and told the alleged victim to preserve the carcass for further investigation. When the police asked the defendant about how the pig came to die in his front yard, the defendant shrugged his shoulders, and he subsequently refused to answer any further questions.

Four days later, a veterinarian conducted a "gross examination" of the pig carcass and determined that whatever projectile caused the two and one-half centimeter diamond shaped wound did not remain in the animal and had been removed. The police photographed the pig's carcass and the veterinarian took X-rays of the pig's carcass. Following the examination, the police allowed the alleged victim to bury the carcass of his pet pig. Based on the evidence ascertained during the investigation and knowledge that the defendant had owned a crossbow, the police filed a criminal complaint. Nearly one year later, the defendant filed a motion to dismiss arguing that by allowing the victim to bury the pig carcass, the Commonwealth lost or destroyed potentially exculpatory evidence. The judge allowed the motion.

Discussion. "A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden ... to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [evidence] would have produced evidence favorable to his cause." Commonwealth v. Dinkins, 440 Mass. 715, 717 (2004) (quotations omitted). "If a defendant meets this burden, the court proceeds to a balancing test and 'weigh[s] the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant.' " Commonwealth v. Kee, 449 Mass. 550, 554 (2007), quoting from Commonwealth v. Willie, 400 Mass. 427, 432 (1987).

At the motion hearing below, defense counsel stated: "What we could have found was ... the actual shape of the wound which is now forever destroyed ... the depth of the wound, because we don't have the pig anymore ... [and] whether or not there's any rust particles within the wound.... We'll never know there was ... wood fibers ... fiberglass particles ... or burn indications of the flesh ... from a bullet .... There's so many different scientific things that we could have found. But forget it. They're gone." This, as noted in Dinkins, is insufficient to carry the defendant's initial burden. See Dinkins, supra at 718 ("It is not enough for a defendant merely to argue ... that, with access to the evidence, his expert 'could have made potentially exculpatory findings.' ... '[C]ould have' is merely an introduction to speculation and is not a substitute for 'concrete evidence' "). See also Commonwealth v. Clemente, 452 Mass. 295, 310 (2008). Without a sufficient theory to support his conclusion, the defendant failed to meet his initial burden to show that there was a reasonable possibility that access to the pig's carcass prior to its burial would have been favorable to his case. See Kee, supra at 554.

Even if the defendant had properly established a reasonable possibility of potentially exculpatory evidence, the weighing of culpability, materiality, and prejudice would not justify dismissal. See ibid. "[A]bsent egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal infringes too severely on the public interest in bringing guilty persons to justice." Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983). Here, there was no evidence of "egregious misconduct" on the part of the Commonwealth and any potential prejudice could have been remedied at trial.

Conclusion. The order allowing the defendant's motion to dismiss is reversed, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Reversed.


text:
    COMMONWEALTH v. Rene LAFRENAYE (and fifty companion cases).
    16-P-1089 16-P-1090
    Appeals Court of Massachusetts.
    Entered: February 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      All against the defendant.

   The defendant, who pleaded guilty to fifty-one charges stemming from his sexual abuse of children, appeals from the denial of his motion for a new trial. The motion was denied without a hearing by the same judge who had accepted the pleas. We affirm.

Background. On October 18, 2007, the defendant's wife, Kathleen Lafrenaye, went to the Chicopee police department and reported her suspicion that the defendant was engaging in inappropriate sexual conduct with a friend of her thirteen year old son. During the ensuing investigation, the defendant admitted that he had unnatural sexual intercourse with the child on multiple occasions. He was charged with two counts of rape of a child, in violation of G. L. c. 265, § 23 (indictment no. 07-1466). Following the defendant's arrest, Ms. Lafrenaye found a box of videotapes depicting, among other things, nude images of children between the ages of four and seven. The children were known to the defendant and had been filmed in sexually suggestive poses in his home. Ms. Lafrenaye gave the videotapes to the police, who then executed a search warrant and discovered additional incriminating recordings. After further police investigation, the defendant ultimately was charged with fifty-two more offenses, including four counts of rape of a child, G. L. c. 265, § 23 ; thirteen counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B ; twenty-seven counts of posing a child in a state of nudity or sexual conduct, G. L. c. 272, § 29A(a ) ; seven counts of possession of child pornography, G. L. c. 272, § 29C ; and one count of showing obscene matter to a minor, G. L. c. 272, § 28 (indictment no. 08-238).

On January 30, 2009, the defendant pleaded guilty to both counts of rape of a child alleged in indictment no. 07-1466 and to most of the criminal offenses (forty-nine counts) alleged in indictment no. 08-238. A judge of the Superior Court accepted the guilty pleas following a lengthy plea hearing that included a thorough plea colloquy. The judge then sentenced the defendant to concurrent sentences totaling fifteen years to life in State prison, in accordance with an agreed recommendation. The defendant subsequently filed a motion to revise the sentences imposed on both counts of indictment no. 07-1466 to life with no minimum term; that motion was allowed.

Almost five years later, the defendant filed a motion for new trial, claiming ineffective assistance of counsel. The motion was denied by the plea judge in a well-reasoned memorandum of decision and order. We conclude that the judge acted well within her discretion in determining that counsel was not ineffective and affirm the order denying the defendant's motion for new trial.

Discussion. 1. Ineffective assistance. The defendant filed a memorandum in support of his motion in which he argued that counsel was ineffective in failing to fully prepare for trial and by advising him to reject the Commonwealth's first plea offer, which he claims was more favorable than the one he accepted. On appeal, the defendant argues only that counsel was ineffective in persuading him not to accept the first plea offer.

To prevail on his claim of ineffective assistance of counsel, the defendant has the burden of establishing that "(1) defense counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' (performance prong), and (2) he was prejudiced by counsel's conduct in that it 'likely deprived the defendant of an otherwise available, substantial ground of defence' (prejudice prong)." Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must prove both deficient performance and prejudice." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).

The defendant claims that counsel's incompetent assistance in plea negotiations resulted in the imposition of a more severe sentence. According to the defendant, the prosecutor initially offered to recommend a sentence of twenty-five to thirty-five years. Counsel allegedly told him to reject this offer and wait, promising the defendant that he could negotiate a more favorable plea bargain as trial approached. Even if we were to accept the defendant's assertion that the Commonwealth made the offer as he has described it, and were to decide that counsel's advice to reject it was manifestly unreasonable, see Commonwealth v. Kolenovic, 471 Mass. 664, 674-675 (2015), such that it constituted deficient performance under Saferian, the order denying the defendant's motion must be affirmed because the defendant offered no proof of prejudice.

To establish prejudice in the circumstances presented, the defendant was required to demonstrate a reasonable probability that, but for counsel's contrary advice, he would have accepted the original plea, and that the court thereafter would have approved it. Commonwealth v. Marinho, 464 Mass. 115, 129 (2013). The defendant also needed to show that the original offer would have resulted in a sentence less severe than the one imposed. See ibid. The defendant did not meet his burden. There is no affidavit from the prosecutor or counsel to support the defendant's position and, more importantly, the judge "had the right to reject as not credible the defendant's self-serving, conclusory affidavit." Commonwealth v. Grant, 426 Mass. 667, 673 (1998).

Furthermore, to the extent that the defendant claims his pleas were unintelligent and involuntary due to counsel's advice to reject the initial plea offer, we agree with the judge that the defendant's responses during the plea colloquy belie this claim. During the course of the plea hearing, the judge reviewed each charge and informed the defendant of all the elements the Commonwealth was required to prove. The Commonwealth provided separate, detailed factual bases for each of the fifty-one charges. Following each factual recitation by the Commonwealth, the judge asked the defendant whether he had heard and understood the prosecutor, and agreed that he had done the acts described. The defendant responded affirmatively in each case. The judge ensured that the defendant knew his rights and the consequences of pleading guilty, confirmed that the defendant was acting of his own free will, and found that the pleas were entered "willingly, freely, voluntarily, and intelligently." In sum, we agree with the judge's assessment-the defendant's decision to plead guilty was both voluntary and intelligent.

2. Evidentiary hearing. The defendant also claims that the judge abused her discretion by denying his request to conduct an evidentiary hearing. We are unpersuaded. "If the theory of the motion, as presented by the papers, is not credible or persuasive, holding an evidentiary hearing ... will accomplish nothing." Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004). As discussed above, the defendant's claim of ineffective assistance of counsel was not sufficiently credible to have warranted a hearing.

Order denying motion for new trial affirmed.

      The Commonwealth nolle prossed three counts of posing a child in a state of nudity or sexual conduct.

      "In reviewing the disposition of a motion for a new trial, we must determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353 (2008) (quotation omitted). Moreover, where, as here, the judge deciding the motion is the same who heard the plea, we grant substantial deference to her decision denying the motion. Id. at 353-354.

      Although the defendant has limited his appeal to this one ground of alleged ineffective assistance, we note that the judge properly concluded that the defendant was not entitled to a new trial on the ground that counsel was not adequately prepared for trial. As the judge observed, the defendant presented no evidence to satisfy his burden other than a "self-serving unsigned statement that offers conclusions without specific facts." The defendant claimed that counsel failed to file discovery motions, but declined to identify what discovery should have been requested or how the absence of such discovery resulted in any harm. Moreover, the record indicates that discovery was complete well before the date of the plea. The defendant's claim that counsel should have litigated a motion to suppress is likewise unavailing. In order to prevail on an ineffective assistance of counsel claim on the ground of failing to pursue a motion to suppress, the defendant must demonstrate a likelihood that the motion would have been successful. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004). The defendant has not done so. The defendant's claims that counsel failed to visit him and displayed a general lack of enthusiasm for his case are not supported by the record and, in any event, even if these assertions were credible and could be considered behavior "falling measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant has not shown that counsel's alleged conduct "likely deprived [him] of an otherwise available, substantial ground of defence." Ibid.

      The defendant's argument that the judge erred by applying the standard for effectiveness of counsel articulated in Saferian instead of the Federal standard set forth in Missouri v. Frye, 566 U.S. 134 (2012), and Strickland v. Washington, 466 U.S. 668 (1984), is misplaced. Satisfying the Saferian standard necessarily satisfies the Federal standard. See Commonwealth v. Marinho, 464 Mass. 115, 123 n.11 (2013). "In fact, we 'grant more expansive protections under [art. 12 of the Massachusetts Declaration of Rights] than have been required of States under the Sixth Amendment.' " Ibid., quoting from Commonwealth v. Rainwater, 425 Mass. 540, 553 (1997), cert. denied, 522 U.S. 1095 (1998). In any event, the judge implicitly applied the Federal standard when she observed that the defendant had failed to demonstrate that the sentence he received was "a more severe sentence than the original plea offer." See Commonwealth v. Marinho, 464 Mass. 115, 129 (2013), quoting from Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012) (to demonstrate prejudice, defendant must show that sentence "under the offer's terms would have been less severe" than sentence actually imposed).

      There is no formal plea offer in the record and the Commonwealth does not concede that such an offer was made. In light of our conclusion that the defendant has failed to establish prejudice, it is not necessary to resolve this factual dispute.


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    PLYMOUTH RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.
    17-P-23
    Appeals Court of Massachusetts.
    Entered: February 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Public Employment Retirement Administration Commission, and Michael Daley.

   The Plymouth Retirement Board (board) appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB). CRAB concluded that the board was entitled to recover retirement benefits paid to defendant Michael Daley (Daley). In this appeal, the board seeks a narrow reversal of the CRAB order, asserting that it erred in not making exact findings as to Daley's excess earnings for the years 2007 to 2010 pursuant to G. L. c. 32, § 91(b ), instead relying on an adverse inference as a result of a discovery sanction. We affirm.

Background. We briefly summarize the relevant factual and procedural background. This case began as a decision of the board against Daley ordering recovery of Daley's earnings in excess of G. L. c. 32, § 91(b ), postretirement limitations. Daley appealed to the Department of Administrative Law Appeals (DALA). DALA found in favor of the board after Daley refused to comply with discovery. Daley then appealed to CRAB. CRAB upheld DALA's decision in full including an adverse inference sanction against Daley pursuant to 801 Code Mass. Regs. § 1.01(8)(i) (1998) because Daley failed to comply with an administrative discovery order. As a result of this inference, CRAB ordered recovery to the board limited to the retirement benefits paid to Daley from 2007 to 2010. In its decision, CRAB did not make specific findings as to the amount of Daley's excess earnings under G. L. c. 32, § 91(b ), and rejected the board's requested recovery amount of $350,927.03. The board sought limited judicial review in Superior Court on only the issue of whether remand back to CRAB was required to supplement its decision to more accurately determine Daley's excess earnings in accordance with G. L. c. 30A, § 11(8). The board was the only party to seek judicial review of CRAB's decision in Superior Court within the statutory time period. Upholding CRAB's decision, the Superior Court found no abuse of discretion in CRAB's sanction and found no error in CRAB's award of recovery. The board subsequently appealed to this court.

Standard of review. Judicial review of a CRAB decision pursuant to G. L. c. 30A, § 14, is narrow and we only set aside a decision where it is legally erroneous or unsupported by substantial evidence. See G. L. c. 30A, § 14(7). See also Retirement Bd. of Salem v. Contributory Retirement Appeal Bd., 453 Mass. 286, 288-289 (2009). "Under the substantial evidence test, a reviewing court is not empowered to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found by the [agency]." Medi-Cab of Massachusetts Bay, Inc. v. Rate Setting Commn., 401 Mass. 357, 369 (1987). Rather, our review "must give due weight to the experience, technical competence, and specialized knowledge of CRAB." Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344 (2012). Thus, a valid discovery sanction in an administrative hearing, carefully weighing the issue on a subject within their expertise, satisfies the substantial evidence test. See Automobile Insurers Bureau v. Commissioner of Ins., 430 Mass. 285, 291 (1999).

Discussion. CRAB's decision allowing the board to recover retirement benefits paid to Daley from 2007 to 2010, arose from Daley's repeated noncompliance with administrative discovery orders, and the consequent adverse inference pursuant to 801 Code Mass. Regs. § 1.01(8)(i)(1). The board argues that CRAB erred because CRAB rejected evidence of Daley's excess income submitted by the board which would have increased the amount of recovery to $350,927.03. While CRAB acknowledged that Daley's compliance with discovery may have resulted in a different outcome, CRAB correctly explained why the amount suggested by the board would have resulted in an excessive sanction.

Like other adjudicatory bodies, CRAB is charged with determining what the just and appropriate relief is for sanctionable conduct and need not apply the harshest sanction even when a party acts in bad faith. See 801 Code Mass. Regs. § 1.01(8)(i). See also Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir.), cert. denied, 498 U.S. 891 (1990) (judges should "take pains neither to use an elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms"). Accordingly, we review administrative discovery sanctions not under the strictest standard, but only for abuse of discretion. Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. 398, 404-405 (2009) ("regulation of the administrative discovery process lies within the sound exercise of the hearing officer's discretion, just as regulation of the discovery process in judicial proceedings lies within the sound exercise of judicial discretion").

Here, the sanctions limiting recovery to the benefits paid to Daley for the years that he received excess earnings under G. L. c. 32, § 91(b ), appropriately balanced the parties' positions to reach a fair outcome. We find no abuse of discretion in CRAB's conclusion that these considerable sanctions sufficed. Conversely, an examination into the board's calculation of Daley's excess earnings shows it clearly "exceed[ed] the bounds of reasonableness." See Henshaw v. Travelers Inc., 377 Mass. 910, 911 (1979). The board's calculation does not purport to be the amount of excess income earned by Daley, but instead the gross payments made to Daley's consulting company by Massachusetts towns. The board incorrectly contends that his gross amount can be substituted for Daley's individual earnings. However, such calculation ignores ubiquitous business expenses including, but not limited to, employee wages, taxes, benefits, insurance, location costs, and maintenance costs. Accordingly, the board's suggestion that Daley personally earned every penny his company grossed is clearly erroneous. See Plasko v. Orser, 373 Mass. 40, 43-44 (1977). See also Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 706 (2005). Remand is therefore unnecessary because CRAB's calculation of recovery limited to the benefits paid to Daley from 2007 to 2010 as a result of sanctions did not preclude meaningful judicial review and satisfied the substantial evidence test.

Judgment affirmed.

      The Superior Court properly dismissed Daley's claims as untimely pursuant to G. L. c. 30A, § 14(1). Where Daley or the Public Employment Retirement Administration Commission (PERAC) failed to file complaints within the thirty-day period, the CRAB decision became final against them, and the Superior Court had no jurisdiction to consider judicial review. See Friedman v. Board of Registration in Med., 414 Mass. 663, 665-666 (1993). "With extremely rare exceptions not relevant here, failure to timely file is thus typically an absolute bar to a plaintiff's ability to obtain judicial review of a final agency action." Herrick v. Essex Regional Retirement Bd., 68 Mass. App. Ct. 187, 189-190 (2007). See G. L. c. 260, § 36 (allowing party to "relate back" to original complaint for counterclaims not cross claims). See Doyle v. Department of Indus. Accidents, 50 Mass. App. Ct. 42, 47 n.6 (2000) ("[A]n action for declaratory relief cannot be used to avoid the time bar consequences of failure to pursue the appropriate form of judicial review or appeal). Accordingly, we need not reach Daley's or PERAC's remaining arguments and expressly do not decide those issues.


text:
    A.H. v. D.C.
    16-P-1551
    Appeals Court of Massachusetts.
    Entered: February 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order entered September 2, 2016, denying her third motion for a new hearing (styled as a "motion for new trial"), seeking to vacate an extended abuse prevention order issued after a hearing on July 19, 2012, pursuant to G. L. c. 209A (order). She now argues that the judge committed six errors: (1) service of the order was invalid; (2) she was denied a full hearing on the merits, thus violating her due process rights; (3) the judge failed to confirm the (non)existence of a purported Pennsylvania protective order; (4) the judge misapplied the standard of proof in issuing the order; (5) extending the order without the defendant present was error; and (6) extending the order for five years was improper as it exceeded the one-year maximum permitted under G. L. c. 209A, § 3, for the initial order after notice. We affirm, although we note that extending the order for five years at the first hearing after notice was error. However, as we explain, infra, that issue is now moot.

Background. On June 21, 2012, an ex parte order issued in the Somerville Division of the District Court Department against the defendant (a Pennsylvania resident), ordering her not to abuse the plaintiff, and to stay 110 yards away from her person, residence, and workplace. The plaintiff alleged in her affidavit in support of the complaint, that the defendant, her mother, had been physically and verbally abusive throughout the plaintiff's high school years; in addition, she alleged that the defendant had made repeated efforts to contact the plaintiff-efforts that had accelerated recently, despite the plaintiff's efforts to avoid her.

A hearing after notice was scheduled for July 5, 2012, and, because of uncertainty about whether the defendant had received notice of the temporary order, the hearing was then continued for service until July 19, 2012; the order was extended until that day.

At the July 19 hearing, which was the first hearing where actual notice to the defendant was established to the satisfaction of the judge, the defendant was not present. Based on the plaintiff's testimony-that the defendant had received notice of the order prior to that hearing -the judge extended the order for five years (until July 19, 2017). On July 23, 2012, the York County, Pennsylvania, sheriff's office personally served notice on the defendant at her home and, on July 24, 2012, filed a return of service with the Massachusetts court.

On August 27, 2012, and again on October 21, 2013, the defendant's "new trial" motions seeking to vacate the order were each denied after hearing. On August 19, 2016, the defendant filed the motion at issue in this case; this was her third "new trial" motion, again seeking to vacate the order. She claimed that the service of the order was improper, that a transcript of the July 19, 2012, extension hearing was unavailable; and that the plaintiff had failed to establish personal jurisdiction. She also requested a new hearing on the original complaint. After a hearing, the judge denied the motion, observing that "[t]here have already been [two] hearings, with both parties, on [defendant]'s motion to vacate. Both motions were denied. This motion is also denied." The defendant timely appealed.

Discussion. In order to obtain an extension of an abuse prevention order, a plaintiff must prove "by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of 'abuse' as defined in G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005). Specifically, in this case, the question is "whether [the] plaintiff has a reasonable fear of 'imminent serious physical harm.' " Id. at 739-740, quoting from G. L. c. 209A, § 1(b ), as appearing in St. 1990, c. 403, § 2. Compare Callahan v. Callahan, 85 Mass. App. Ct. 369, 373 (2014) (discussing other bases for establishing abuse, not at issue here). "The standard for obtaining an extension of an abuse prevention order is the same as for an initial order." MacDonald v. Caruso, 467 Mass. 382, 386 (2014).

1. Service. After issuing a 209A order, the court is charged with transmitting the order to the appropriate law enforcement agency to serve on the defendant. See G. L. c. 209A, § 7. In this case, the court sent appropriate notice. "Personal service of the order ... is not required provided the following due process considerations have been met: namely, the defendant has received notice of the proceedings, has been given an opportunity to be heard at a meaningful time and place, and has received fair notice of what the order prohibits so that the defendant may act accordingly." Commonwealth v. Welch, 58 Mass. App. Ct. 408, 409 (2003).

As the plaintiff testified, and the judge presumably found credible, the Pennsylvania county sheriff had notified the defendant by telephone of the existence of the initial order at some point prior to the July 19, 2012, hearing after notice. Also before that hearing, the plaintiff's father, the defendant's former husband, personally gave the defendant a copy of the order. We are therefore persuaded that the defendant received timely notice of the July 19, 2012, hearing prior to that hearing. As a result, there was no due process violation in extending the order. See Commonwealth v. Melton, 77 Mass. App. Ct. 552, 556 (2010).

2. Full hearing. The defendant was provided with a meaningful opportunity to appear and to be heard regarding the order. Contrast C.O. v. M.M., 442 Mass. 648, 656-657 (2004). First, while the defendant did not appear at the July 19, 2012, hearing after notice, the judge found that she had actual knowledge of the existing order and the hearing. She therefore waived her right to be heard on that day. Second, on August 27, 2012, represented by counsel, the defendant did appear at a hearing on her motion seeking to vacate the order. The judge heard testimony from each party, and asked questions, particularly of the plaintiff, on the issue of abuse. He also heard argument from both parties, and, at the end of the hearing, denied the motion to vacate, apparently finding the plaintiff's testimony credible. Thereafter, at an October 21, 2013, hearing on the defendant's second motion to vacate (the defendant appearing pro se), a different judge denied the motion, observing that "[t]here's nothing here in any new evidence to suggest that the restraining order should be vacated."

At the hearing at issue here, on September 2, 2016, the defendant (appearing pro se) argued her third motion to vacate the order. In denying the motion, the judge found, after a hearing, that "[t]here have already been two hearings with both parties present on Defendant's Motions to Vacate. Both of those motions were denied. I think you've had ample opportunity to state your case in these matters." We agree, seeing neither an abuse of discretion nor other error in the judge's denial of the third motion to vacate. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

3. Pennsylvania protective order. The defendant has failed to present evidence establishing that the judge "declined" to conduct, or should have conducted, a search of the Statewide domestic violence record keeping system (a statutory duty) before he considered issuing the initial order which, she argues, would have informed the judge of the "(non)existence" of an "out-of-State protection order" claimed by the plaintiff to exist at the time of filing her complaint. See G. L. c. 209A, § 7. First, the record does not contain any such claim. The box checked on the plaintiff's complaint did not indicate that there was an existing protective order in another jurisdiction, but, rather, that there was a "prior or pending court action[ ]" for "abuse prevention." In checking the box, the plaintiff indicated that in June, 2010, there was a criminal harassment case (listing the docket number) between the parties. The defendant herself states that this was not a protective order. Because the plaintiff made no claim of a pending Pennsylvania protective order, there was nothing to be disproved even if the Massachusetts Statewide domestic violence registry would somehow confirm or deny the existence of a Pennsylvania protection order.

4. Standard for issuing order. The proper standard was applied in issuing the order. The defendant argues that the order was based on past abuse (alleged to have occurred in 2007) and that the plaintiff's fear of resuming a mother-daughter relationship is the type of "generalized apprehension" dismissed in Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002), where this court said, "Language in § 3 also suggests that c. 209A was designed to allow persons presently 'suffering' from abuse to seek relief." Ibid. The defendant's reliance on Dollan is misplaced.

First, here, although the plaintiff did testify as to past abuse, that was not the sole basis for issuing the order. As recited in the plaintiff's affidavit accompanying her June 21, 2012, complaint, the defendant had contacted the plaintiff's employer the previous day, had harassed her the previous month at her graduation, and had continued to make attempts to contact her through social media. As a result, the plaintiff testified that she was at that time afraid of physical harm from her mother and the judge found her credible. That testimony was sufficient to support issuing the order. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006).

Second, at least as to this third motion, a defendant's motion to vacate an order "is not a motion to reconsider the entry of a final order, and does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal." MacDonald, 467 Mass. at 388. "Therefore, a defendant bringing such a motion bears the burden of proving a significant change in circumstances since the entry of the order that justifies termination of the order."Ibid. Here, as at the second motion hearing in 2013, the defendant failed to provide any additional evidence to justify vacating the order.

5. Issuance of the order without defendant present. Despite the defendant's absence from the July 19, 2012, hearing after notice, the order was extended. At that hearing, the judge determined, based on the plaintiff's testimony, that the defendant had actual knowledge of the existing order, despite the fact that she may not have been served "officially" by the county sheriff. That finding was sufficient to support extending the order, given all of the evidence, and, for that reason, the defendant's due process rights were preserved despite her absence. Cf. Melton, 77 Mass. App. Ct. at 556, quoting from Commonwealth v. Griffen, 444 Mass. 1004, 1005 (2005) ("[F]ailure of service is not fatal to a conviction" for violation of 209A order).

6. Extending the order for five years at the first hearing after notice. "To obtain an extension of the initial order, [the plaintiff] must make the same showing, i.e., that he or she has the same reasonable fear at the time the extension is sought." Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009). Here, however, the defendant claims that the order should be vacated because the extended order exceeds what she describes as a one-year maximum allowed under § 3.

The defendant is correct that the order should not have been extended for more than one year at the time of the first hearing after notice, although a five-year extension would have been permissible at any later hearing, if the judge found that such an extension was appropriate. General Laws c. 209A, § 3, as appearing in St. 1990, c. 403, § 3, provides that, at the hearing after notice, "[a]ny relief granted by the court shall be for a fixed period of time not to exceed one year." Thereafter, however, "[i]f the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order." G. L. c. 209A, § 3. See Smith, 75 Mass. App. Ct. at 544 ("Moreover, when faced with an extension request, the judge is not limited to issuance of a permanent extension or none at all. The statute permits extensions for 'such additional time as [the judge] deems necessary to protect [the plaintiff] from abuse,' G. L. c. 209A, § 3, ... thus leaving 'to the discretion of the judge the time period of any extension of an initial abuse prevention order.' Crenshaw v. Macklin, 430 Mass. 633, 636 [2000]." [Emphasis supplied.] ).

In this case, the defendant did not raise this objection at the time of any of her three hearings, or thereafter, at any time during the five-year period that the order was in effect; as a result, that issue is waived and is now moot.

Order entered September 2, 2016, affirmed.

      Specifically, in March, 2011, the defendant had been found guilty in Pennsylvania of harassing the plaintiff after showing up in places the defendant knew the plaintiff would be; earlier, she had attacked the plaintiff in public. In May, 2012, the defendant appeared at the plaintiff's college graduation and began yelling at the plaintiff from the stands, causing her to leave the ceremony early. On June 20, 2012, the defendant called the plaintiff's place of employment, "questioning [a] coworker about the company's address [and] confirming that [the plaintiff] worked there." The plaintiff alleged that "[i]n the past few months, I have received multiple requests from [the defendant] on various social media websites, as well as numerous calls, voicemails [and] emails. I am truly scared, given her recent escalated attempts [and] history. She has threatened my life before [and] I am terrified that her mental state has deteriorated so much that she will stop at nothing to have contact with me."

      The defendant does not challenge the court's jurisdiction over her, as a Pennsylvania resident. See Caplan v. Donovan, 450 Mass. 463, 463-464 (2008), where the court "conclude[d] that a court may issue such an order of prevention and protection even without personal jurisdiction over the defendant."

      The plaintiff testified that the county sheriff was "able to reach [the defendant] on the phone and really tell her about [the order], but she wouldn't give the[m] an address to serve it to. So last time I was here my dad was with me and they said that if my dad could physically hand it to [the defendant], that would probably be good enough, and he was able to do that and she read it and gave it back to him.... But we can't figure out where she lives. So she's seen it and she's heard about it but she won't-... won't accept it officially."

      On August 31, 2013, the defendant also filed a motion to "revise or revoke" the August 27, 2012, denial of her first motion; that motion was set for hearing on September 27, 2013; the defendant later withdrew the motion before hearing.

      The defendant did not ask to cross-examine the plaintiff or object in any way to the conduct of that hearing.

      In response, the defendant argued further that "[a]t no point have I ever seen any evidence, has any witness stepped forward, nothing, nothing. If I had just one hospital report, one police report, one anything to respond to, but at no point. There is no transcript. There is nothing available. I have been falsely accused of crimes that I have not been proven to see." The judge replied that "[t]he proof is that your daughter testified under oath that that was the case and a judge believed her. That's the proof."

      At the August 27, 2012, hearing on the defendant's motion for new trial, she presented the court with the police report relating to the Pennsylvania criminal harassment case.

      Ex parte, or "temporary" orders without notice should be continued for no more than ten court business days. See G. L. c. 209A, § 4, as appearing in St. 1990, c. 403, § 4, which provides, in full:
      "If the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, the court may enter such temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse and shall immediately thereafter notify the defendant that the temporary orders have been issued. The court shall give the defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief as requested by the plaintiff no later than ten court business days after such orders are entered."

      To the extent the defendant raises other issues here, we have considered them and find them to be without merit.


text:
    COMMONWEALTH v. James W. PIERSON, Jr.
    17-P-550
    Appeals Court of Massachusetts.
    Entered: February 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, James W. Pierson, Jr., appeals his convictions of possession with an intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A(a ), and a school zone violation, see G. L. c. 94C, § 32J. On appeal, the defendant maintains that: (1) the evidence was insufficient to show that the offenses charged took place within a school zone; (2) the Commonwealth's witnesses impermissibly testified that the defendant was under "surveillance" and subject to a narcotics-related investigation; (3) the Commonwealth's expert invaded the jury's role by speaking directly to the issue of guilt; (4) the prosecutor engaged in improper vouching during closing argument; and (5) testimony by a substitute chemist violated his confrontation rights. We affirm.

Background. On October 17, 2014, several officers conducted surveillance of the area near a residence in Pittsfield, located on Columbus Avenue. In particular, they were surveilling the defendant. During this time, the officers witnessed the defendant walk outside of the residence and meet with a woman for "several seconds." Five minutes later, the officers again witnessed the defendant come from the area of that same residence and meet another woman for a brief period of time. Shortly thereafter, the officers observed a car pull up outside of the residence and a woman went inside, returning to her car within a few minutes. Roughly thirty minutes later, another man walked into the residence and returned to his car within minutes. About fifteen minutes after that, the defendant got into a car that had pulled up and parked on Columbus Avenue Extension near Onota Street. When the officers stopped the car, they observed a large sandwich bag with what looked like crack cocaine inside. The car's driver was holding "a few [ten dollar bills]." The defendant was arrested and found with $281 in cash and a cellphone.

1. School zone violation. At trial, the defendant moved unsuccessfully for a required finding of not guilty with regard to the school zone violation, maintaining that the roadway leading to the school could not be considered school property under G. L. c. 94C, § 32J. In reviewing the denial of a motion for a required finding of not guilty, "we consider 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Commonwealth v. Sullivan, 478 Mass. 369, 373 (2017), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The evidence presented at trial, viewed in the light most favorable to the Commonwealth, was sufficient to support the defendant's conviction of a school zone drug violation.

It is not necessary that the school own the property, or that the school's precise boundary be discernable for it to fall within the statute's reach. See Commonwealth v. Klusman, 46 Mass. App. Ct. 919, 920 (1999) ; Commonwealth v. Johnson, 53 Mass. App. Ct. 732, 734-735 (2002). Rather, the Commonwealth need only prove that the point in question could reasonably fall "on land used for school purposes." Id. at 734. See Commonwealth v. Paige, 54 Mass. App. Ct. 840, 843-844 (2002) (contiguous, unused, and undeveloped school land was school property); Commonwealth v. Cintron, 59 Mass. App. Ct. 905, 906 (2003) (curbstone, which was adjacent to school zone sign, fell within statute's proscribed area).

A professional land surveyor testified that the defendant was arrested 261 feet from the center line of a drive that led to St. Mark's School, an operational elementary school at the time of the defendant's arrest. Although there was evidence that the city owned the road, the surveyor testified that it was "obvious[ ]" that the point in question "was the driveway up to the school." The road was the only possible means of access to the school, and it was marked with a sign stating, "St. Mark's School." Finally, there was testimony establishing that nothing other than the school was located along the road, and that buses, parents, and children used the road to travel to and from school. From this evidence, the jury could have permissibly inferred that the road was property used for school purposes.

2. Surveillance and investigation testimony. The trial judge allowed the defendant's pretrial motion in limine to exclude evidence of prior drug transactions in the months before trial. Yet, over the course of the trial, several of the prosecution's witnesses testified over objection that the defendant was under "surveillance" on the day of his arrest. The defendant contends that this testimony was a covert form of improper prior bad acts evidence that was likely to have affected the jury's verdict. Since defense counsel objected to Officer Marley and Trooper Scott's testimony, we review for error, and if there was error, for prejudicial error. See Commonwealth v. Crayton, 470 Mass. 228, 252 (2014).

"Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Id. at 249. See Mass. G. Evid. § 404(b) (2017). Such evidence, however, may be introduced "for some other purpose, for instance 'to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.' " Ibid., quoting from Commonwealth v. Walker, 460 Mass. 590, 613 (2011). "[E]ven if relevant, a judge must guard against the risk that evidence of prior bad acts will divert the jury's attention from the charged acts." Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006). Thus, a judge may exclude "bad act" evidence, even if proffered for a permissible purpose, "if its probative value is outweighed by the risk of unfair prejudice to the defendant." Crayton, supra at 249.

The officers' testimony about their observations of the defendant was admissible to show the defendant's intent and motive to sell drugs. See Commonwealth v. Gollman, 436 Mass. 111, 114-115 (2002). Even if we assumed the repeated references to the officer's surveillance of the defendant was error, see Commonwealth v. Rivas, 466 Mass. 184, 194 (2013), given the overwhelming evidence presented against the defendant, we are confident that they "did not influence the jury or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

3. Expert testimony. Trooper Hean, a narcotics investigator for the State police detective unit, served as the prosecution's expert witness at trial. In response to a series of hypotheticals, Trooper Hean testified that the defendant's conduct was consistent with a drug transaction. However, in response to one question, the trooper testified that the hypothetical facts, coupled with the amount of drugs found, would lead him to "very strongly believe that that amount of drugs was possessed with the intent to be distributed." The defendant maintains that this statement impermissibly spoke to the issue of guilt. The defendant did not object to this statement at trial. Accordingly, we review for error, and in the presence of error, for a substantial risk of miscarriage of justice. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 160 (2010).

An expert may properly testify that hypothetical facts are consistent with intent to distribute drugs, because "[w]hether a certain quantity of drugs is consistent with personal use or with distribution is a matter not within the common experience of jurors." Commonwealth v. Wilson, 441 Mass. 390, 401 (2004). See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 185 (2009). The expert's testimony as to his "belief" constituted a "personal assurance by the witness that the crime charged had occurred, and thereby constitutes an improper intrusion into the fact-finding function of the jury." Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 580 (1998).

As in Tanner, however, we also conclude that it is unlikely that the improper comment was sufficiently "prejudicial to require relief." Ibid. While we have stated that the risk of prejudice is heightened when an expert is also a percipient witness, see id. at 579, 582, the judge in this case specifically instructed the prosecutor that Trooper Hean was only to be questioned as an expert using hypothetical questions, and not as an observer. This differentiates Trooper Hean's testimony from other expert witness testimony that our case law has found erroneous. Compare Commonwealth v. Woods, 419 Mass. 366, 368, 374-375 (1995) ; Commonwealth v. Burgess, 450 Mass. 422, 435-436 (2008) ; Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 306-307 (2000). Moreover, no substantial risk of a miscarriage of justice resulted, given that the misstatement was, in essence, explanatory, see Tanner, supra at 581, and given the overall strength of the prosecution's case. See id. at 580 ; Dancy, supra at 185-186.

4. Closing argument. The defendant contends that the prosecutor, in his closing argument, improperly expressed his opinion as to the officers' credibility, describing the prosecutor's statements that the Commonwealth's witnesses were "very honest" and "perfectly honest." Since the defendant objected at trial, we review to determine whether the statements were improper and, if so, whether the error was prejudicial. See Commonwealth v. Nelson, 468 Mass 1, 10 (2014).

Taken in context, the prosecutor's statements did not constitute improper vouching. See Commonwealth v. Whitman, 453 Mass. 331, 343 (2009) ("Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury"). The prosecutor did not express his personal belief about the witnesses' credibility, nor did he imply that he had special knowledge with which he could verify the witnesses' testimony. See Commonwealth v. Rosario, 460 Mass. 181, 190 (2011). Instead, by emphasizing weaknesses in the officers' testimony, the prosecutor argued from the evidence that the witnesses should be believed. See Commonwealth v. Rolon, 438 Mass. 808, 816 (2003) ("It is not improper vouching for the prosecutor to point to reasons why a witness's testimony, or portions of a witness's testimony, should logically be believed"). The jury were free to accept or reject this argument. Even if error could be discerned from this portion of the prosecutor's closing, the judge instructed the jury that closing arguments are not evidence and that they were charged with determining witness credibility, thus ameliorating any possibility of prejudice. See Commonwealth v. Koumaris, 440 Mass. 405, 415 (2003).

5. Substitute chemist. Lastly, the defendant contends that his confrontation rights under the Sixth Amendment to the United States Constitution were violated when a substitute chemist was permitted to testify that the substance seized from the defendant contained cocaine. Commonwealth v. Greineder, 464 Mass. 580, 594-599, 603 (2013), forecloses this claim.

Caroline Tatro, a supervisor in the drug unit at the State police crime laboratory (lab), testified that though she did not personally test the substance seized from the defendant, after reviewing the case file, she could opine that the powder provided to the lab contained cocaine. Tatro did not testify as to the data contained in the reports; rather she gave only her independent opinion after reviewing the results of the testing. Moreover, she was available for cross-examination. Under Greineder, supra, this testimony was admissible.

Judgments affirmed.

      The judge also allowed the Commonwealth's motion in limine to admit officer testimony about the four interactions they witnessed before they arrested the defendant, so long as they did not refer to them as drug transactions.

      When asked why he was in the area, Trooper Scott testified that he and other officers were "conducting surveillance" and that they "were watching the defendant, Mr. Pierson, meet various individuals on the street." He further stated that he "knew Mr. Pierson from [his] investigation." Officer Marley also testified that the police were in the area "conducting some independent surveillance." When asked by the prosecutor who or what he was surveilling, Officer Marley responded, "We were in the area for a narcotics investigation involving Mr. Pierson." A short while later, Officer Marley also stated that the police were surveilling "an area that [they knew] that Mr. Pierson had been involved in narcotics[.]" In response to defense counsel's objection, the judge struck the end of that sentence and contemporaneously told the jury, "if it's stricken, you just forget you heard it." At the close of trial, the judge reminded the jury in his instructions not to "consider anything that was stricken or that I told you to disregard."

      We note that several similar statements were made at trial to which defense counsel did not object. During opening argument, the prosecutor stated that the officers "were conducting surveillance of Mr. Pierson, the defendant before you today." During closing argument, the prosecutor reminded the jury that the officers were conducting surveillance and stated that a car pulled up to an "address where they knew Mr. Pierson was operating-that-was that day." Finally, in response to the prosecutor's question about "who or what" the officers were surveilling, Officer Gero testified that he was conducting surveillance on the defendant.

      The defendant was found with roughly ten times the lethal dose of cocaine, $281 in cash, and a cellphone. Additionally, a narcotics expert testified that the type of conduct witnessed by the officers on the day of the defendant's arrest was consistent with drug sales.

      Though this particular statement did not contain the word "consistent," it followed a line of questioning that repeatedly used the word "consistent." Further, following this statement, the prosecutor asked Trooper Hean, "And would that amount of drugs be consistent with possession for personal use?" to which Trooper Hean replied, "No."

      The entire statement is:
      "Recall when we were talking with Officer Marley and Trooper Gero. They were very honest with you. 'You know what, I was looking in my mirrors, I was looking over my shoulder, I was looking up over the rear seat, I couldn't see everything. What I saw I relayed.' And you heard that. Some things Officer Marley saw, Trooper Gero didn't. Some things the other way around. But they were perfectly honest with you, saying, 'You know what, I didn't see everything.' "


text:
    Deborah A. BUTLER v. BENCHMARK SENIOR LIVING & others.
    17-P-651
    Appeals Court of Massachusetts.
    Entered: February 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Brendon Properties Northside, LLC; and the Framingham zoning board of appeals.

   Deborah Butler appeals from a Superior Court judgment dismissing her attempt to have set aside a special permit issued by the Framingham zoning board of appeals (ZBA). In essence, and relying on a purported private right of action under G. L. c. 268A, Butler asserts that the special permit must be set aside because one of the ZBA's members had a conflict of interest. No error appearing, we affirm.

As the motion judge held, Butler has not alleged that the jurisdictional prerequisites required under c. 268A have been satisfied. See G. L. c. 268A, § 21(a ), as amended through St. 2009, c. 28, § 80; Leder v. Superintendent of Schs. of Concord & Concord-Carlyle Regional Sch. Dist., 465 Mass. 305, 310-313 (2013). Her attempt to distinguish Leder as limited to suits by business competitors is not supported by anything in the decision and is unpersuasive.

In light of this, we need not and do not reach Butler's remaining arguments. We deny defendants Benchmark Senior Living's and Brendon Properties Northside, LLC's requests for an award of their appellate attorney's fees. Judgment affirmed.

So ordered.

Affirmed.

      Municipal action may be set aside "upon request by said municipal agency" provided there has been "a finding by the [state ethics] commission pursuant to an adjudicatory proceeding ...").