Waxman v. Waxman, et al. (Lawyers Weekly No. 11-119-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1021 Appeals Court JEAN WAXMAN vs. LEE WAXMAN & others.[1] No. 12‑P‑1021. Suffolk. March 4, 2013. ‑ September 30, 2013. Present: Graham, Sikora, & Hanlon, JJ. Divorce and Separation, Death of party, Division of property, Tenancy by the entirety. Real Property, Tenancy by the entirety, Sale. Individual Retirement Account. Conversion. Practice, Civil, Summary judgment, Attorney’s fees, Costs, Frivolous action. Civil action commenced in the Superior Court Department on February 26, 2008. A pretrial motion for summary judgment was heard by Nancy S. Holtz, J., and the case was heard by Thomas E. Connolly, J. Wendy B. Jacobs for the plaintiff. Kevin G. McIntyre for the Lee Waxman and others. SIKORA, J. This case requires the law to distribute the assets of a husband and wife of a late-life marriage. Robert and Jean Waxman married in their sixties. After eleven years their marriage had deteriorated. They separated and began divorce proceedings in the Probate and Family Court (probate court). During the proceedings Robert died. By law his death caused the abatement of the divorce action and divested the probate court of jurisdiction over the distribution of the couple’s assets. Jean[2] then brought the present action in Superior Court against Robert’s three adult children (collectively, children) by a previous marriage for, inter alia, declaratory and equitable relief vesting in her ownership of three assets: (1) proceeds of the couple’s sale of their jointly held condominium unit; (2) the value of their jointly owned automobile; and (3) the value of a substantial individual retirement account held by Robert. A motion judge granted summary judgment in favor of Jean on her claims of ownership of the condominium proceeds and the value of the automobile, but denied summary judgment on her claim to the individual retirement account. That issue proceeded to a bench trial before a second judge. By detailed findings and rulings, he awarded ownership of the individual retirement account to Robert’s children. The children have appealed from the award of the condominium proceeds and automobile value to Jean; Jean has cross appealed from the award of the individual retirement account to the children. For the following reasons, we affirm the judgment. 1. Factual background. The material facts emerging from the summary judgment papers and from the […]
Commonwealth v. Viust (Lawyers Weekly No. 11-120-13)
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‑344 Appeals Court COMMONWEALTH vs. JOHN A. VIUST, JR. No. 12‑P‑344. Barnstable. November 7, 2012. ‑ September 30, 2013. Present: Trainor, Agnes, & Sullivan, JJ. Contempt. Practice, Criminal, Contempt. Constitutional Law, Self‑incrimination. Witness, Self‑incrimination. Due Process of Law. Adjudication of contempt in the Superior Court Department by Robert C. Rufo, J. Robert Herrick for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. AGNES, J. During the murder trial of Robert B. Vacher, John A. Viust, Jr., was called by the Commonwealth as a witness. Viust had the assistance of counsel. After hearing from Viust’s counsel, the judge explained the law to Viust, and warned him that he would be found in contempt if he did not testify. Viust refused to testify. The judge found him in summary contempt under Mass.R.Crim.P. 43, 378 Mass. 919 (1979) (rule 43). For the reasons that follow, we affirm the summary criminal contempt finding. Background. Vacher’s trial began on November 7, 2011. On November 17, 2011, the Commonwealth called Viust as a witness. Viust had concerns whether his testimony would incriminate him, and the judge appointed counsel for him. Outside the presence of the jury, the judge conducted an in camera hearing in accordance with Commonwealth v. Martin, 423 Mass. 496, 504-505 (1996), and found that Viust had a valid basis for an assertion of the Fifth Amendment to the United States Constitution privilege. At the Commonwealth’s request, the judge granted Viust “immunity from criminal prosecution.“ The judge thoroughly explained the scope of Viust’s immunity, and told Viust he would be ordered to testify. The judge carefully explained that if Viust refused to testify, he would be violating a direct order of the court, and he could suffer further incarceration above and beyond the sentence he was currently serving. The judge formally instructed Viust as follows: “I’m now ordering you to testify in the matter of Commonwealth versus Robert Vacher.” Viust confirmed that he understood this, but stated his intention to violate a direct order of the court and not testify. The judge repeated that he would hold Viust in contempt if he refused to testify. When Viust persisted in his position, the judge found him in summary contempt under rule 43. On December 1, 2011, the judge held a […]
Commonwealth v. Cumming (Lawyers Weekly No. 10-176-13)
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‑11248 COMMONWEALTH vs. RICHARD H. CUMMING. Worcester. March 5, 2013. ‑ September 27, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Double jeopardy, Sentence, Parole. Due Process of Law, Sentence, Parole. Practice, Criminal, Double jeopardy, Sentence, Parole. Parole. Indictments found and returned in the Superior Court Department on March 16, 2001. A motion to correct sentence, filed on September 1, 2010, was heard by Richard T. Tucker, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David M. Skeels, Committee for Public Counsel Services, for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. CORDY, J. In the present appeal, we consider two double jeopardy challenges to a Superior Court judge’s resentencing order following the judge’s allowance of the defendant’s motion to correct his sentences by vacating the requirement of community parole supervision for life (CPSL) pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The CPSL requirement had been illegally imposed years earlier as a component of the defendant’s original sentences,[1] which also included concurrent periods of incarceration on ten separate indictments. We conclude that where, as here, the imposition of CPSL was part of an interdependent sentencing scheme, the judge had the authority to vacate and restructure the entire scheme, converting two of the concurrent sentences of incarceration into probationary terms, so as to effectuate the intent of the original sentencing judge. However, because an increase in the aggregate punishment would subject the defendant to double jeopardy, we also conclude that the maximum period of incarceration to which the defendant may be subject for violating his probationary term is the period of time between the defendant’s resentencing on October 22, 2010, and the maximum period of confinement under the concurrent sentences originally imposed on the indictments on which he was resentenced to probation. Background. On January 29, 2002, the defendant, Richard H. Cumming, was convicted on four indictments charging rape of a child, G. L. c. 265, § 23; four indictments charging indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; and two indictments charging indecent assault and battery on a child over the age of fourteen, G. L. c. 265, […]
Commonwealth v. Ortiz (Lawyers Weekly No. 10-177-13)
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‑11298 COMMONWEALTH vs. LUIS ORTIZ. Norfolk. May 9, 2013. ‑ September 27, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Controlled Substances. Practice, Criminal, Stipulation, Presumptions and burden of proof. Rules of Criminal Procedure. Complaint received and sworn to in the Quincy Division of the District Court Department on July 7, 2010. The case was tried before Mark S. Coven, J. The Supreme Judicial Court granted an application for direct appellate review. Robert L. Sheketoff for the defendant. Pamela L. Alford, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. The defendant appeals from his convictions of distribution of a class B controlled substance, G. L. c. 94C, § 32A (c), and committing a drug offense within a school zone, G. L. c. 94C, § 32J. The trial took place before a jury in 2011, more than two years after the United States Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Before trial, the defendant’s trial counsel orally stipulated that the substance at issue was cocaine and both the Commonwealth and defendant effectively treated this as an established fact during trial, but the jury only became aware of the stipulation itself when the judge spoke of it during his final charge to the jury. The defendant appeals from his convictions, arguing, among other claims, that because the stipulation never was presented to the jury, the Commonwealth failed to prove that the substance was cocaine and his motion for a required finding of not guilty should have been allowed.[1] In a related vein, the defendant contends that any stipulation to an element of the crime charged must be recorded in a writing and signed by the defendant or at least the subject of a colloquy between the defendant and the trial judge, and the use of his trial counsel’s oral stipulation without any writing signed by the defendant, or any judicial colloquy, constituted error requiring a new trial. To date, we have not established any particular method for the parties in a criminal case to handle trial stipulations about the existence of an element of a crime or of a material fact more generally. Even if there were error in the manner the stipulation was handled in the present case, where the defendant […]
Commonwealth v. Ramsey (Lawyers Weekly No. 10-178-13)
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‑11300 COMMONWEALTH vs. AARON RAMSEY. Hampden. May 9, 2013. ‑ September 27, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Firearms. Controlled Substances. Constitutional Law, Confrontation of witnesses, Harmless error. Evidence, Ballistician’s certificate, Certificate of drug analysis, Expert opinion. Practice, Criminal, Confrontation of witnesses, Stipulation, Harmless error. Witness, Expert. Error, Harmless. Necessity. Indictments found and returned in the Superior Court Department on February 2, 2007. The cases were tried before John A. Agostini, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Susan E. Taylor for the defendant. Jane Davidson Montori, Assistant District Attorney, for the Commonwealth. CORDY, J. In 2008, a jury in the Superior Court found the defendant guilty of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a); and unlawful possession of a Class B controlled substance, cocaine, in violation of G. L. c. 94C, § 34. As proof that the weapon the defendant possessed was a firearm and the substances found in his clothing were cocaine, the Commonwealth offered in evidence a ballistics certificate and two certificates of drug analysis. The certificates were admitted without testimony from the analysts who had prepared them, and without objection by the defendant. The defendant subsequently appealed, arguing that he was denied his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution because the certificates were admitted without a showing of the unavailability of the analysts or a prior opportunity to cross-examine them, in contravention of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). A divided panel of the Appeals Court affirmed the firearms conviction but reversed the drug conviction. Commonwealth v. Ramsey, 79 Mass. App. Ct. 724, 730-731 (2011). We granted both parties’ applications for further appellate review. Because we are satisfied that the improper admission of both the ballistics certificate and drug certificates did not contribute to the jury’s verdict, where the defendant conceded as part of his trial strategy that he possessed both the gun and cocaine and agreed that the jury be instructed that the Commonwealth had proven all elements of both charges beyond a reasonable doubt, we conclude that the certificates’ introduction at trial was harmless beyond a reasonable […]
Fraco Products, Ltd., et al. v. Bostonian Masonry Corporation (Lawyers Weekly No. 11-118-13)
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‑933 Appeals Court FRACO PRODUCTS, LTD., & another[1] vs. BOSTONIAN MASONRY CORPORATION. No. 12‑P‑933. Suffolk. May 6, 2013. ‑ September 26, 2013. Present: Kantrowitz, Katzmann, & Rubin, JJ. Negligence, Construction work, Scaffolding, Manufacturer, Vicarious liability, Joint tortfeasor. Indemnity. Workers’ Compensation Act, Exclusivity provision. Joint Tortfeasors. Contract, Indemnity. Civil action commenced in the Superior Court Department on April 11, 2006. The case was heard by Nancy Holtz, J., on a motion for partial summary judgment. James E. Carroll for the plaintiffs. Robert R. Pierce for the defendant. KATZMANN, J. This appeal arises from a construction accident and involves a dispute over indemnification.[2] The primary issue on appeal is whether the trial judge properly granted summary judgment against Fraco Products, Ltd., and Fraco Products, Inc. (collectively, Fraco), on their third-party complaint seeking indemnification from Bostonian Masonry Corporation (Bostonian) on a theory of common-law indemnity, where Bostonian had paid workers’ compensation benefits to the estate of its employee, the plaintiff in the underlying suit. We affirm. Background. Fraco is a designer, manufacturer, and seller of industrial mast-climbing platforms used in construction. The mast-climbing platforms are used instead of scaffolding. They are long platforms that are hydraulically lifted up (or lowered down) a mast extending up the side of a structure. Construction workers, such as masons, stand on the platforms to install materials, such as stone and windows. On April 8, 2004, Fraco sold Bostonian six platforms, including the mast-climbing platform (Machine No. 10) at issue in this construction accident, for $ 225,710. Bostonian paid an initial amount upon delivery and then paid the remainder in five monthly installments. The terms and conditions of the contract provided the following language as to the right of ownership: “Right of Ownership – Under this Agreement, the SELLER [Fraco] shall remain and shall continue to remain the owner of the Equipment sold to the BUYER [Bostonian], the Parties agreeing that the ownership shall not be transferred neither [sic] at the drafting stage of the Agreement, nor upon delivery of the Equipment, but only after all sums due, as stated in each and every invoice to be issued by the SELLER, will have been paid in full to the SELLER.” The terms and conditions of the sales contract also included provisions as to […]
Adoption of Gabe (and one companion case) (Lawyers Weekly No. 11-117-13)
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‑1237 Appeals Court ADOPTION OF GABE (and one companion case[1]). No. 12‑P‑1237. Berkshire. March 4, 2013. ‑ September 25, 2013. Present: Berry, Sikora, & Milkey, JJ. Adoption, Dispensing with parent’s consent. Due Process of Law, Adoption, Assistance of counsel. Constitutional Law, Assistance of counsel, Retroactivity of judicial holding, Waiver of constitutional rights. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Practice, Civil, Assistance of counsel, Waiver. Retroactivity of Judicial Holding. Petitions filed in the Berkshire Division of the Probate and Family Court Department on June 17, 2010. The cases were heard by Richard A. Simons, J. Dorothy Meyer Storrow for the father. Mark A. Papirio for the children. April Ann Knapp, pro se. SIKORA, J. The issue on appeal is whether a biological father (father) had a right to counsel in the adoption proceeding terminating his parental rights. The father appeals from decrees of the Probate and Family Court (probate court) approving the adoption of his two sons and severing his parental rights and duties. The petitioners are the children’s mother and stepfather. Throughout the proceeding in the probate court, the father did not retain counsel nor receive appointed counsel. Four days after the entry of the decrees, the Supreme Judicial Court in Adoption of Meaghan, 461 Mass. 1006, 1007-1008 (2012), held that an indigent parent in a termination and adoption proceeding brought by a private party is entitled to the appointment of counsel; that the children proposed for adoption hold the same entitlement; and that both rights rest on due process and equal protection principles. We conclude that the declaration of constitutional rights in Meaghan has retroactive application to cases of adoption which were not final at the time of its announcement. Therefore, we vacate the decrees and remand for a new trial at which the indigent father and the children will be entitled to appointed counsel. Background. The trial judge received the following evidence. 1. The parties. Gabe and Adam were born in December of 2000, and April of 2004. Their parents never married. The father accumulated a history of verbal and physical abuse of the mother. During the course of their relationship, he continually demeaned her with vicious epithets. When the mother was pregnant with Gabe in September of 2000, the father pushed […]
Commonwealth v. Brown (Lawyers Weekly No. 10-175-13)
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‑11437 COMMONWEALTH vs. MICHAEL R. BROWN. September 25, 2013. Controlled Substances. Doctor, Controlled substances. Constitutional Law, Double jeopardy, Appeal, Ex post facto law, Equal protection of laws. Due Process of Law, Appeal. Practice, Criminal, Double jeopardy, Appeal, Assistance of counsel. Words, “Dispense,” “Distribute.” The defendant, Michael R. Brown, was convicted on indictments charging illegally prescribing controlled substances, in violation of G. L. c. 94C, §§ 32A (a) and 32B (a); submitting false medical claims, in violation of G. L. c. 118E, § 40 (2); and larceny of an amount in excess of $ 250, in violation of G. L. c. 266, § 30 (1). We affirmed the convictions. See Commonwealth v. Brown, 456 Mass. 708 (2010) (Brown I). After we denied his subsequent petition for rehearing, Brown filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 2254 (2006). The petition was denied without prejudice on the basis that Brown had failed to exhaust his State court remedies as required by 28 U.S.C. § 2254(b)(1)(A). See Brown vs. Ricci, U.S. Dist. Ct., No. 11-11154 (D. Mass. Jan. 10, 2012). Brown thereafter filed a motion for release from unlawful restraint pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), in the Superior Court, which was denied without a hearing. Brown appealed, and we transferred his appeal to this court on our own motion. Brown raises several issues in this appeal, all of a constitutional nature and all stemming from the manner in which we decided the defendant’s appeal in Brown I. That appeal involved two principal issues: (1) whether an audio-video recording “of the defendant’s conversation in the home of a cooperating witness was properly admitted in evidence . . . where it was the product of a Federal investigation in which Massachusetts law enforcement personnel participated”; and (2) whether a physician “dispenses” rather than “distributes” a controlled substance pursuant to G. L. c. 94C, §§ 32A (a) and 32B (a), when the substance “is delivered pursuant to what purports to be a prescription to a person who does not ‘lawfully’ possess it.” Brown I, supra at 709-710. Brown’s current appeal involves only the “dispense-distribute” issue. In Brown I, we engaged in a detailed analysis of G. L. c. 94C, the Controlled Substances Act (Act), […]
Commonwealth v. Ortiz (Lawyers Weekly No. 11-115-13)
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‑456 Appeals Court COMMONWEALTH vs. JASON ORTIZ. No. 12‑P‑456. Essex. December 7, 2012. ‑ September 20, 2013. Present: Cypher, Brown, & Cohen, JJ. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of confession. Constitutional Law, Admissions and confessions, Voluntariness of statement. Indictments found and returned in the Superior Court Department on May 28, 2010. A pretrial motion to suppress evidence was heard by Gary V. Inge, J. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. James B. Krasnoo for the defendant. COHEN, J. The defendant stands indicted and is awaiting trial on charges of murder in the first degree (G. L. c. 265, § 1), armed robbery (G. L. c. 265, § 17), and carrying a dangerous weapon (G. L. c. 269, § 10), arising from the shooting of Luis Rodriguez at a party in Haverhill. After an evidentiary hearing, a judge of the Superior Court allowed, in part, the defendant’s motion to suppress statements made during an interview with police. Having obtained leave from a single justice of the Supreme Judicial Court, the Commonwealth brings this interlocutory appeal. Like the motion judge, we conclude that the nineteen year old defendant’s will was overborne by improper police interrogation tactics. Those tactics included misrepresenting statements given by witnesses; informing the defendant that the interview was his “last chance” to tell his story; and assuring the defendant, who had been steadfast in denying that he had given the suspected shooter a gun, that he would not be culpable if the defendant had given the shooter the gun for a purpose other than to rob or kill the victim and that the shooter had acted like a “cowboy.” However, unlike the motion judge, we further conclude that suppression is required of all statements made once the defendant’s will was overborne, and not merely selective statements pertaining to the gun. 1. Standard of review. The evidence before the motion judge consisted of the testimony of State Trooper Steven O’Connor at the motion hearing, the video recording of the defendant’s interview and a transcript thereof, and transcripts of […]
Commonwealth v. Riley (Lawyers Weekly No. 11-116-13)
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‑846 Appeals Court COMMONWEALTH vs. CAROLYN RILEY. No. 11‑P‑846. Plymouth. January 11, 2013. ‑ September 20, 2013. Present: Cohen, Green, & Vuono, JJ. Homicide. Evidence, Scientific test, Prior misconduct. Malice. Indictment found and returned in the Superior Court Department on March 23, 2007. The case was tried before Charles J. Hely, J. Chrystal A. Murray for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. COHEN, J. A grand jury returned indictments charging the defendant, Carolyn Riley, and her husband, Michael Riley, with murder in the first degree in connection with the December, 2006, death of their four year old daughter, Rebecca, from an overdose of clonidine and other medications administered to her by her parents. After this court determined that the evidence before the grand jury was sufficient to sustain the indictments, see Commonwealth v. Riley, 73 Mass. App. Ct. 721, 722-726, 729-731 (2009), the defendant and her husband were tried separately in the Superior Court. In the defendant’s case, the jury returned a verdict of guilty of the lesser included offense of murder in the second degree.[1] She appeals, arguing that (1) the judge erroneously admitted the testimony of the Commonwealth’s forensic toxicologist without conducting a Daubert–Lanigan hearing;[2] (2) the evidence was insufficient to prove third prong malice and, hence, the jury should not have been instructed on that form of malice; and (3) the judge erroneously allowed prejudicial character evidence to be admitted. Discerning no merit in these arguments, we affirm. The facts that the jury could have found are not significantly different from those presented to the grand jury and are well summarized in Commonwealth v. Riley, supra at 722-726. We refer to relevant trial evidence and procedural facts in conjunction with our discussion of the issues raised. 1. Testimony of Commonwealth’s forensic toxicologist.Before trial, the defendant filed a motion in limine seeking a Daubert–Lanigan hearing on the scientific reliability and admissibility of the testimony of Dr. George S. Behonick, who, at the time of Rebecca’s death, was the director of forensic toxicology at the University of Massachusetts Memorial Medical Center in Worcester. The defendant’s challenge was predicated on the assumption that Dr. Behonick would opine as to the amount of clonidine consumed by Rebecca prior to her death based upon the level of […]