Commonwealth v. Housen (Lawyers Weekly No. 11-013-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1798 Appeals Court COMMONWEALTH vs. OSCOE HOUSEN. No. 11‑P‑1798. Middlesex. November 7, 2012. ‑ January 25, 2013. Present: Kantrowitz, Berry, & Grainger, JJ. Armed Assault with Intent to Murder. Abuse Prevention. Practice, Criminal, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on February 23, 2010. The cases were tried before Elizabeth M. Fahey, J. Matthew Bové for the defendant. Casey E. Silvia, Assistant District Attorney (Kerry A. Collins, Assistant District Attorney, with her) for the Commonwealth. GRAINGER, J. The defendant was convicted by a jury in the Superior Court on thirteen indictments arising out of his attack with a knife on his former girlfriend, Mary Smith,[1] and her male friend. On appeal, the defendant argues, inter alia, that (1) the evidence was insufficient to support his convictions of armed assault with intent to murder, (2) his convictions of multiple counts of violating a G. L. c. 209A abuse prevention order are duplicative because they resulted from “an unbroken course of conduct,” and (3) one of the convictions of violating a G. L. c. 209A abuse prevention order is duplicative as a lesser included offense of assault and battery in violation of an abuse prevention order under G. L. c. 265, § 13A(b)(iii). Background. We recite the facts relevant to the issues on appeal as the jury could have found them during the trial. The defendant began dating Smith in 2001. The relationship was intermittently violent. In 2008, after Smith expressed her desire to end the relationship, the defendant assaulted her with a hammer and threatened to kill himself. In 2009, Smith obtained an abuse prevention order (order) after the defendant sent her threatening letters. The order forbade the defendant from coming within fifty yards of Smith or any of her three minor children, ordered the defendant to refrain from abusing Smith, and ordered him to stay away from Smith’s place of work and residence. The order was still in place on January 4 and 5, 2010. On January 4, 2010, Smith encountered the defendant in the parking lot at her work. She felt sorry for the defendant, who said he was cold and hungry, and drove him to her home around 3:00 P.M. Thereafter, between 4:00 P.M. and 5:00 P.M., each of Smith’s three children arrived home separately. Later in […]
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Commonwealth v. DiGiambattista (Lawyers Weekly No. 11-014-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1919 Appeals Court COMMONWEALTH vs. NICOLA V. DiGIAMBATTISTA. No. 11‑P‑1919. Suffolk. November 16, 2012. ‑ January 25, 2013. Present: Grasso, Vuono, & Milkey, JJ. Indecent Assault and Battery. Constitutional Law, Admissions and confessions, Waiver of constitutional rights. Evidence, Admissions and confessions. Practice, Criminal, Admissions and confessions, Voluntariness of confession. Complaint received and sworn to in the Chelsea Division of the District Court Department on November 15, 2010. A pretrial motion to suppress evidence was heard by D. Dunbar Livingston, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by him to the Appeals Court. Allison Callahan, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. MILKEY, J. After making various incriminating statements to the Revere police, the defendant was charged with three counts of indecent assault and battery on a person fourteen or older (his stepdaughter). G. L. c. 265, § 13H. He then moved to suppress those statements as involuntary. Following an evidentiary hearing, a District Court judge allowed the motion to suppress, explaining his reasoning in a detailed and thoughtful opinion. The Commonwealth obtained approval to pursue an interlocutory appeal. Because we agree with the Commonwealth that the motion judge misapplied the relevant legal principles, we reverse. Standard of review. The key evidence before the judge was the video recording of the defendant’s interview. That recording speaks for itself, and the essential subsidiary facts necessary to resolve the motion to suppress are thus uncontested. Although the judge relied on his observations of what that recording revealed, he made no specific findings on this, apparently cognizant that an appellate court is “in the same position as [him] in viewing the .” Commonwealth v. Novo, 442 Mass. 262, 266 (2004) (citation omitted). The judge did make factual findings as to the background facts and what transpired outside the interview room. We accept those findings unless they are clearly erroneous (which they have not been shown to be). See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). The factual statements set forth below are drawn from those findings and our own observation of the video recording. We are to “make an independent […]
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Commonwealth v. Valentin V., a juvenile (Lawyers Weekly No. 11-015-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑317 Appeals Court COMMONWEALTH vs. VALENTIN V., a juvenile. No. 12‑P‑317. Berkshire. December 11, 2012. ‑ January 29, 2013. Present: Kafker, Milkey, & Agnes, JJ. Threatening. Assault and Battery. Evidence, Threat. Intimidation of Witness. Witness, Intimidation. Practice, Criminal, Dismissal. Complaints received and sworn to in the Berkshire County Division of the Juvenile Court Department on April 19, 2011. A motion to dismiss was heard by Judith A. Locke, J. John P. Bossé, Assistant District Attorney, for the Commonwealth. Peter A. Hahn for the juvenile. MILKEY, J. Based on remarks he allegedly made about assaulting a fellow student at his high school, a juvenile faced delinquency complaints that charged him with threatening a crime (assault and battery), G. L. c. 275, § 2, and witness intimidation, G. L. c. 268, § 13B. Over the Commonwealth’s objection, a judge of the Juvenile Court dismissed these charges as unsupported by probable cause. The judge relied on the absence of a showing that the threatening remarks were ever heard by their intended target (to whom we shall refer by the pseudonym “Fred”). On the Commonwealth’s appeal, we reverse. Background. The Commonwealth filed its “Application for Criminal Complaint” based on a police report, which in turn incorporated three witness statements from school officials. According to this material, on the morning of April 6, 2011, Fred walked into a classroom in which the juvenile was already present. The teacher redirected Fred elsewhere, and after he left, the juvenile “tried to leave after [Fred] stating that he was going to ‘kick [Fred’s] ass.’” The apparent source of the conflict between the students had to do with their both being under suspicion for stealing an “Xbox” video game system from the school two weeks earlier. The teacher intercepted the juvenile and convinced him to go speak with other school officials. At that meeting, the juvenile referred to Fred as a “snitch” and stated that “he was going to get him.” After the officials informed the juvenile “that he couldn’t stay in school if he was threatening another student,” the juvenile “said that he wasn’t going to hit [Fred] but, if the other students didn’t give him ‘shit’ for stealing the Xbox he would hit him.” At that point, the focus of the conversation turned to whether the juvenile was armed with […]
Shapiro, et al. v. City of Worcester (Lawyers Weekly No. 10-014-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11118 SJC-11119 WILLIAM SHAPIRO & another[1] vs. CITY OF WORCESTER. HENRY GREENBERG vs. CITY OF WORCESTER. Worcester. October 4, 2012. ‑ January 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Governmental immunity, Sewers, Nuisance. Waiver. Nuisance. Practice, Civil, Interlocutory appeal, Execution, Presentment of claim under Massachusetts Tort Claims Act, Retroactivity of judicial holding. Trespass. Negligence, Municipality, Governmental immunity. Civil action commenced in the Superior Court Department on April 3, 2008. Motions to dismiss and for summary judgment were heard by Dennis J. Curran, J. Civil action commenced in the Superior Court Department on April 3, 2008. A motion for summary judgment was heard by John S. McCann, J., and a motion for reconsideration was also heard by him. The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court. Wendy L. Quinn, Assistant City Solicitor, for city of Worcester. John R. Maciolek for William Shapiro & others. CORDY, J. In this consolidated appeal, we review two cases, one brought by William and Sherry Shapiro and the other by Henry Greenberg (collectively, plaintiffs), against the defendant, the city of Worcester (city). In their respective actions, which each commenced in the Superior Court in 2008, the plaintiffs allege that the city is liable to them for nuisance, continuing nuisance, and continuing trespass, arising from the discharge of effluent from the city’s sewer system onto their properties. In response, the city contends that the plaintiffs’ nuisance claims are barred because they failed to satisfy the presentment requirement of the Massachusetts Torts Claims Act (Act), G. L. c. 258, § 4, which, the city contends, applies retroactively in light of our decision in Morrissey v. New England Deaconess Ass’n — Abundant Life Communities, Inc., 458 Mass. 580 (2010) (Morrissey). Additionally, the city argues that the Shapiros’ nuisance claims are independently barred by provisions of the Act that provide sovereign immunity to municipalities in instances involving either discretionary decision-making, G. L. c. 258, § 10 (b); or the exercise of a public duty, id. at § 10 (j). Finally, the city argues that the Shapiros’ trespass claim fails as a matter of law because the city did not commit an affirmative voluntary act to cause the sewage discharge. The Shapiros’ […]
Commonwealth v. Avram A., a juvenile (Lawyers Weekly No. 11-018-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1489 Appeals Court COMMONWEALTH vs. AVRAM A., a juvenile. No. 11‑P‑1489. Franklin‑Hampshire. November 1, 2012. ‑ January 30, 2013. Present: Meade, Sikora, & Hanlon, JJ. Restitution. Damages, Restitution. Juvenile Court, Delinquent child, Probation. Practice, Criminal, Juvenile delinquency proceeding, Restitution, Probation. Complaint received and sworn to in the Franklin and Hampshire Counties Division of the Juvenile Court Department on August 20, 2010. A proceeding for revocation of probation, filed on October 20, 2011, was heard by James G. Collins, J. Craig R. Bartolomei for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. MEADE, J. After admitting to facts sufficient to warrant a finding of delinquent for “tagging” property in violation of G. L. c. 266, § 126B, the juvenile’s case was continued without a finding for one year with agreed to conditions which included the payment of restitution. On appeal, the juvenile claims the restitution order constituted an abuse of the judge’s discretion because the juvenile was unable to pay due to his age, the order was contrary to the purpose of the juvenile justice system, it was improperly extended, and it was not supported with adequate documentation and evidence. We affirm. 1. Background. After conducting a restitution hearing, the judge found the following facts. Armed with a can of spray paint, the juvenile “tagged” several properties in Easthampton. At Richard Dudkiewicz’s home, letters were spray painted on some newly installed vinyl siding on the garage. The paint could not be removed from the siding. The professional estimate to replace the siding was $ 276.45. Dudkiewicz performed the repair himself. The siding material cost him $ 160, and the job took two days to complete. Utilizing the minimum wage rate of eight dollars per hour, multiplied by fifteen hours, the judge calculated the labor cost to be worth $ 120; the professional labor estimate was $ 110. At Eric Sergal’s home, the juvenile spray painted some symbols and numerals on the concrete foundation. Sergal received a $ 500 estimate to remove the paint. The judge found that the damage to Sergal’s property was very similar in size and location to that done to the home of his neighbor, Robert Blanchette. Blanchette, who was elderly and in poor health, did not obtain an estimate for the paint removal from […]
Commonwealth v. McGowan (Lawyers Weekly No. 10-011-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11076 COMMONWEALTH vs. JOHN MCGOWAN. Hampden. October 1, 2012. ‑ January 29, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Firearms. Constitutional Law, Right to bear arms. Statute, Validity. Complaints received and sworn to in the Springfield Division of the District Court Department on November 18, 2008. A motion to dismiss was heard by Jacques C. Leroy, J., and questions of law were reported to the Appeals Court by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John A. Rasmussen for the defendant. Katherine Robertson, Assistant District Attorney, for the Commonwealth. GANTS, J. General Laws c. 140, § 131L (a), makes it unlawful to store a firearm that is not carried by or under the immediate control of the owner or other authorized user unless the firearm is secured in a locked container or equipped with a safety device that renders the firearm inoperable by anyone other than the owner or other authorized user. The issue presented by the reported questions is whether § 131L (a) is unconstitutional in light of the United States Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (Heller), which held that the Second Amendment to the United States Constitution guarantees an individual the right to keep and bear arms for self-defense in the home, and McDonald v. Chicago, 130 S. Ct. 3020, 3036, 3050 (2010) (McDonald), which incorporated the guarantees of the Second Amendment into the Fourteenth Amendment to the United States Constitution, making the Second Amendment applicable to the States. We conclude that, where § 131L (a) allows the owner of a firearm to carry or otherwise keep the firearm under the owner’s immediate control within the home, and where the storage requirements are reasonably designed to prevent persons who are not licensed to possess or carry a firearm, including felons, the mentally ill, and children, from gaining illegal access to a firearm, § 131L (a) falls outside the scope of the right to bear arms protected by the Second Amendment. Background. The parties stipulated to the following facts, which are contained in a stipulation and a police report dated October 19, 2008.[1] The defendant owned a Smith & Wesson 40 caliber semiautomatic handgun, which he kept loaded and […]