Commonwealth v. Olmande (Lawyers Weekly No. 11-110-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1638 Appeals Court COMMONWEALTH vs. FRITZ OLMANDE. No. 12‑P‑1638. Suffolk. April 5, 2013. ‑ September 12, 2013. Present: Vuono, Carhart, & Agnes, JJ. Rape. Indecent Assault and Battery. Practice, Criminal, Argument by prosecutor, Instructions to jury, Lesser included offense. Indictments found and returned in the Superior Court Department on November 18, 2009. The cases were tried before Frank M. Gaziano, J. Adriana Contartese for the defendant. Paul B. Linn, Assistant District Attorney, for the Commonwealth. CARHART, J. After a Superior Court jury trial, the defendant was convicted of four counts of rape of a child and one count of indecent assault and battery on a child under the age of fourteen years.[1] On appeal, he alleges that the prosecutor’s closing argument deprived him of a fair trial; the evidence was insufficient to support a conviction of one of the charges of rape of a child; and the judge erred by not instructing the jury, sua sponte, on the lesser included offense of indecent assault and battery in connection with that rape of a child charge. We affirm. Background. The victim in this case, whom we shall call Jenna, was eighteen years old at the time of trial. The defendant was the boyfriend of Jenna’s grandmother, with whom Jenna spent much of her childhood. At trial, Jenna testified that the defendant sexually assaulted her on numerous occasions and in various locations, from the time she was four years old until she was eight or nine years old. One of those locations was the home of Jenna’s aunt. On one occasion while Jenna was visiting, her aunt noticed that Jenna’s underwear appeared inconsistent with what a child’s underwear of Jenna’s age should look like; rather, her aunt thought they appeared more consistent with the underwear of a sexually active adult. When asked by her aunt if anyone was “messing with her,” Jenna stated, “No.” Jenna testified that she disclosed the sexual assaults to her best friend, Teresa, when Jenna was in sixth grade. Although she could not recall the exact words she used to describe the assaults, Jenna testified that she was “feeling some type of weight at the time and . . . needed somebody to talk to.” Jenna testified that she told Teresa the defendant “was having sex with […]
Brigade Leverage Capital Structures Fund Ltd., et al. v. PIMCO Income Strategy Fund, et al. (Lawyers Weekly No. 10-167-13)
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‑11289 BRIGADE LEVERAGED CAPITAL STRUCTURES FUND LTD. & another[1] vs. PIMCO INCOME STRATEGY FUND & another.[2] Suffolk. May 6, 2013. ‑ September 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Business Trust. Trust, Business trust. Corporation, By‑laws, Stockholder, Board of directors. Contract. Words, “On at least an annual basis.” Civil action commenced in the Superior Court Department on December 1, 2011. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John C. Ertman, of New York (C. Thomas Brown with him) for the defendants. Joseph S. Allerhand, of New York (Patrick J. O’Toole, Jr., with him) for the plaintiffs. The following submitted briefs for amici curiae: Peter H. Mixon, of California, for California Public Employees’ Retirement System. Jeff Mahoney, of the District of Columbia, for Council of Institutional Investors. Jesse M. Fried, pro se. GANTS, J. Under Section 10.2 of the bylaws of the defendants, PIMCO Income Strategy Fund and PIMCO Income Strategy Fund II (collectively, “Funds” or “defendants”), “regular meetings of the Shareholders for the election of Trustees . . . shall be held, so long as Common Shares are listed for trading on the New York Stock Exchange, on at least an annual basis.” The issue on appeal is the meaning of “on at least an annual basis.” The plaintiffs, Brigade Leveraged Capital Structures Fund Ltd. and Brigade Capital Management, LLC (collectively, “Brigade” or “plaintiffs”), contend that the bylaws require that an annual meeting of shareholders of each of the Funds be held in or within twelve months of the last annual shareholder meeting. The defendants contend that the bylaws require only that one annual shareholders’ meeting be held each fiscal year for each of the Funds. We conclude that “on at least an annual basis” means that an annual shareholders’ meeting for each of the Funds must be held no later than one year and thirty days (395 days) after the last annual shareholders’ meeting. Background. The defendant Funds are closed-end investment companies registered under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-5(a)(1)(2) (2006), that are organized as Massachusetts business trusts under G. L. c. 182. […]
Soe, Sex Offender Registry Board No. 252997 v. Sex Offender Registry Board (Lawyers Weekly No. 10-168-13)
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‑11290 JOHN SOE, SEX OFFENDER REGISTRY BOARD NO. 252997 vs. SEX OFFENDER REGISTRY BOARD. Plymouth. May 7, 2013. ‑ September 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender, Self‑incrimination. Due Process of Law, Sex offender, Continuance. Evidence, Sex offender, Acquittal in prior criminal trial. Practice, Civil, Sex offender, Continuance. Administrative Law, Agency’s authority. Civil action commenced in the Superior Court Department on April 22, 2010. The case was heard by Robert C. Cosgrove, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ethan C. Stiles for the plaintiff. William H. Burke for the defendant. Brandon L. Campbell, for Committee for Public Counsel Services, amicus curiae, submitted a brief. GANTS, J. The plaintiff appeals from the decision of a Superior Court judge affirming his classification as a level three sex offender by the Sex Offender Registry Board (board). The plaintiff is a “sex offender” as defined in G. L. c. 6, § 178C, as a result of his convictions on June 17, 2009, of indecent assault and battery on a person over fourteen, in violation of G. L. c. 265, § 13H, and therefore he is subject to classification by the board. At the time of his classification hearing, the plaintiff was awaiting trial on charges that he had repeatedly sexually assaulted his young stepdaughter. The police reports setting forth the stepdaughter’s allegations and the consequent police investigation were admitted in evidence at the classification hearing. On appeal, the plaintiff contends that the board committed an error of law and abused its discretion in denying his motion to continue the classification hearing until his pending criminal case was “resolved” without balancing “the plaintiff’s due process interest in preparing his defense” in the criminal case “against [the board’s] interest in protecting the public.” Alternatively, the plaintiff argues that because the hearing examiner relied on the untried allegations of sexual assault in classifying him as a level three sex offender, “public policy demands reconsideration” of his classification where he was later found not guilty of the sexual offenses at his criminal trial. We recognize that a sex offender who has […]
N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company (Lawyers Weekly No. 10-166-13)
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‑11284 N.E. PHYSICAL THERAPY PLUS, INC. vs. LIBERTY MUTUAL INSURANCE COMPANY. Essex. May 7, 2013. ‑ September 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Evidence, Hearsay, Judicial discretion, Medical bill. Practice, Civil, Judicial discretion, Motion in limine, Appellate Division: decision. Civil action commenced in the Lawrence Division of the District Court Department on June 4, 2008. The case was heard by Mark A. Sullivan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Daniel P. Tighe (Douglas R. Tillberg with him) for the defendant. Francis A. Gaimari (Stephen B. Byers with him) for the plaintiff. The following submitted briefs for amici curiae: E. Michael Sloman for Automobile Insurers Bureau. Peter A. Biagetti & Andrew Nathanson for Fair Health, Inc. Paul R.Q. Wolfson, Shirley Cassin Woodward, & Dina B. Mishra, of the District of Columbia, & John J. Regan & Mark C. Fleming for American Insurance Association & others. David L. Arrington & Jodi L. Howick, of Utah, & Todd S. Holbrook & Jeffrey D. Adams for Mitchell International, Inc. LENK, J. After being billed by the plaintiff, N.E. Physical Therapy Plus, Inc. (NEPT), for certain medically necessary chiropractic services provided to the passenger of its insured, the defendant, Liberty Mutual Insurance Company (Liberty Mutual), maintained that the cost of those services was unreasonably high and thus refused to pay the full amount invoiced. At the ensuing trial on the dispute, Liberty Mutual sought to introduce statistical evidence from a commercial database to show that NEPT’s charges exceeded the eightieth percentile of reported charges for the same procedures and were thus unreasonable. Liberty Mutual claimed that the statistical evidence was admissible pursuant to G. L. c. 233, § 79B (§ 79B), which creates a limited exception to the hearsay rule for factual statements contained in commercial publications. Citing a decision of the Appellate Division of the District Court that concluded the same database was unreliable, a District Court judge denied Liberty Mutual’s motion to admit the database evidence. We are asked to determine whether a trial judge has discretion to consider the reliability of evidence offered under § 79B where the evidence otherwise satisfies the requirements of § 79B, and, if so, whether the judge here abused such discretion […]
Commonwealth v. Tassinari (Lawyers Weekly No. 10-165-13)
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‑11049 COMMONWEALTH vs. JOHN J. TASSINARI. Plymouth. May 10, 2013. ‑ September 9, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, & Duffly, JJ. Homicide. Evidence, Hearsay, State of mind, Motive, Prior misconduct, Spontaneous utterance, Relevancy and materiality, Photograph, Firearm. Firearms. Jury and Jurors. Practice, Criminal, Capital case, Jury and jurors, Argument by prosecutor, Instructions to jury. Indictment found and returned in the Superior Court Department on June 20, 2008. The case was tried before Jeffrey A. Locke, J. Robert F. Shaw, Jr., for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. On November 1, 2010, a jury found the defendant guilty of murder in the first degree of his wife on the theories of deliberate premeditation and extreme atrocity or cruelty. The defendant argues error in the admission of evidence; the judge’s failure to exclude a juror based on the juror’s dual citizenship; portions of the prosecutor’s argument; and jury instructions. He also seeks relief pursuant to G. L. c. 278, § 33E. Because we discern no error, and see no reason to exercise our power under G. L. c. 278, § 33E, we affirm. 1. Background. The defendant admitted to shooting and killing his wife, the victim, in the driveway of their home on April 22, 2008. The main issue at trial was whether the shooting was a result of the defendant’s sudden “heat of passion.” a. The Commonwealth’s case. We present the essential facts the jury could have found, reserving certain details for our discussion of the issues. The defendant and the victim were married in November, 2004, after a relationship of approximately two years. At the time of the murder, the couple lived next door to the victim’s brother and his wife, with whom they regularly socialized. The defendant was a licensed firearms instructor who owned six handguns and one target rifle, all of which were licensed. He stored the guns and various types of ammunition in a gun safe in the closet in his bedroom. Some of the guns in the safe were kept loaded. He also carried a gun during the day, taking it off only to shower and go to sleep at night. In the months prior to the murder, the defendant and the victim were experiencing tension in their marriage and discussed […]
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