In the Matter of: Fletcher, Patricia Jean (Lawyers Weekly No. 10-185-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11441 IN THE MATTER OF PATRICIA JEAN FLETCHER.[1] October 31, 2013. Attorney at Law, Reinstatement, Disbarment. Board of Bar Overseers. The petitioner, Patricia Jean Fletcher, appeals from an order of a single justice of this court denying her petition for reinstatement to the bar. We affirm. In 1992, the petitioner was temporarily suspended from the practice of law in Massachusetts following her conviction in the State of New York of “serious crimes” within the meaning of S.J.C. Rule 4:01, § 12 (3) (b), as appearing in 425 Mass. 1313 (1997).[2] Bar counsel thereafter filed a petition for discipline alleging, in addition to the convictions, that the petitioner violated the terms of her New York probation, failed to report the convictions to bar counsel and to cooperate in bar counsel’s investigation, and engaged in other misconduct involving deceit and misrepresentation. See S.J.C. Rule 3:07, Canon 1, DR 1‑102 (A) (4), (5), & (6), as appearing in 382 Mass. 769 (1981); S.J.C. Rule 4:01, § 3(1), as amended through 382 Mass. 820 (1981).[3] She was disbarred in 2000. Matter of Wallenstein, 16 Mass. Att’y Discipline Rep. 409 (2000). In 2011, she filed a petition for reinstatement. A hearing panel of the Board of Bar Overseers (board), after a hearing, recommended that the petition be denied. The petitioner appealed to the board, which accepted the hearing panel’s findings and recommendation and voted to recommend that the petition be denied. The matter proceeded in the county court. The single justice after hearing accepted the board’s recommendation and denied the petition for reinstatement. Discussion. We do not review in this proceeding the underlying criminal convictions on which the orders of temporary suspension and disbarment were based.[4] “Basic respect for the integrity and finality of a prior unreversed criminal judgment demands that it be conclusive on the issue of guilt and that an attorney not be permitted to retry the result at a much later date in [her] reinstatement proceedings.” Matter of Hiss, 368 Mass. 447, 450 (1975). Instead, what is at issue on a petition for reinstatement is whether the petitioner has demonstrated that she has “the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that . . . her resumption of the practice of law will […]
Commissioners of the Bristol County Mosquito Control District v. State Reclamation and Mosquito Control Board, et al. (Lawyers Weekly No. 10-184-13)
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‑11320 COMMISSIONERS OF THE BRISTOL COUNTY MOSQUITO CONTROL DISTRICT[1] vs. STATE RECLAMATION AND MOSQUITO CONTROL BOARD & another.[2] Bristol. September 3, 2013. ‑ October 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mosquito Control. Statute, Construction. Moot Question. Civil action commenced in the Superior Court Department on October 8, 2009. The case was heard by Raymond P. Veary, Jr., J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Burke, Jr., for the plaintiffs. Amy Spector, Assistant Attorney General, for the defendants. BOTSFORD, J. The dispute in this case concerns the authority of the plaintiff commissioners of the Bristol County Mosquito Control Project (Bristol project), an entity that operates under G. L. c. 252 and is subject to oversight by the defendant State Reclamation and Mosquito Control Board (board), to establish unilaterally the compensation rates for the individuals who are employed by the Bristol project to carry out its mosquito control programs and functions. At the heart of this dispute is the meaning of G. L. c. 252, § 14D (§ 14D), which was enacted in 2008. The plaintiffs initiated this action in 2009, seeking a declaration that under § 14D, they have the authority to hire and set the compensation rates for the project’s employees and to retain legal counsel; they also sought an order of mandamus requiring the defendant Treasurer and Receiver General (Treasurer) to pay those employees the salary increases due to them. On cross-motions for summary judgment, a Superior Court judge allowed the board’s motion and dismissed the complaint. We conclude that the summary judgment record is insufficient to determine whether the plaintiffs are entitled as matter of law to the relief they seek. Accordingly, we vacate the judgment of the Superior Court and remand for further proceedings. Statutory scheme. General Laws c. 252 governs the structure and function of the board as well as local mosquito control districts and projects such as the Bristol project. We summarize its relevant provisions. The board is established by G. L. c. 252, § 2, and, pursuant to that section, exists within the State agency formerly known, and referred to in § 2, as the Department of Food […]
Commonwealth v. Arias (Lawyers Weekly No. 11-132-13)
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‑2170 Appeals Court COMMONWEALTH vs. RANDY ARIAS. No. 11‑P‑2170. Essex. March 21, 2013. ‑ October 30, 2013. Present: Katzmann, Meade, & Sullivan, JJ. Homicide. Assault by Means of a Dangerous Weapon. Practice, Criminal, Instructions to jury, Objections to jury instructions. Defense of Others. Indictments found and returned in the Superior Court Department on December 17, 2008. The cases were tried before Richard E. Welch, III, J. Theodore F. Riordan for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury trial, the defendant was convicted of murder in the second degree in the shooting death of Julio Zuniga (Zuniga), in violation of G. L. c. 265, § 1, and assault and battery by means of a dangerous weapon causing serious bodily injury to Roberto Francisco Sanchez Rios (Sanchez Rios), in violation of G. L. c. 265, § 15A(c).[1] The principal issue at trial was the identity of the shooter. On appeal, the defendant claims the judge failed to properly instruct the jury on defense of another. We conclude the defendant’s claim was not preserved for appeal. The judge’s defense of another instruction, when considered as a whole against the backdrop of the trial, would have been interpreted by a reasonable juror to have adequately conveyed the nature of the defense and its components. Even if the instructions were infirm, given the nature of the defense was that the defendant did not shoot anyone and defense of another was not a live issue that was contested at trial, there was no substantial risk of a miscarriage of justice. We affirm. 1. Background. a. The club. At approximately 11:00 P.M. on October 11, 2008, Zuniga went to a nightclub in Lawrence to watch a televised soccer game. He was accompanied by his brothers, Francisco “Paco” Zuniga (Paco) and Altero Zuniga (Altero),[2] his cousin Sanchez Rios, and two friends, Oscar Bolanos and Jesus Estrella. Zuniga’s group arrived at the club courtesy of Paco’s Ford Explorer sport utility vehicle (SUV). At 12:15 A.M. on October 12, the defendant, Frederich Frias, and Edward Rosario entered the same club. The defendant’s group arrived in a light brown Acura sedan driven by, and registered to, the defendant. The defendant’s group spent some time in the downstairs area of the club, then proceeded upstairs; […]
Commonwealth v. Galazka (Lawyers Weekly No. 11-131-13)
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‑1629 Appeals Court COMMONWEALTH vs. MICHAEL GALAZKA. No. 11‑P‑1629. October 25, 2013. Practice, Criminal, Fees and costs, Affidavit, Admissions and confessions, Hearsay. Rape. Evidence, Age, Admissions and confessions, Hearsay. Following a jury-waived trial in Superior Court, defendant Michael Galazka was convicted of statutory rape of a child (two counts), aggravated rape of a child, and assault and battery. We affirm, and take this opportunity to emphasize that before a judge is required to conduct a hearing on a pretrial motion for “[e]xtra fees and costs” pursuant to G. L. c. 261, §§ 27A-27G, and to make any findings and rulings, the defendant must file with the clerk of court, an affidavit of indigency that is “sworn to under oath.” G. L. c. 261, § 27B, inserted by St. 1974, c. 694, § 3. The evidence presented at the jury-waived trial warranted the finding that on several occasions the defendant had sexual intercourse at his home with a fifteen year old girl (first victim), and that there was a separate incident at the defendant’s home in which he digitally penetrated another young female (second victim), who was the first victim’s twelve year old friend. Discussion. 1. The defendant had no right to a hearing on his motion for funds to hire an investigator. The defendant was represented by retained counsel. On April 12, 2010, defense counsel filed a motion for funds requesting _to be heard ex parte on the issue of appropriating funds to hire an investigator._ In that motion, counsel stated that the defendant was indigent and that an affidavit of indigency would be filed by the defendant at the pretrial conference scheduled for April 16, 2010. On April 16, 2010, with the defendant present, the judge conducted a hearing on the defendant’s motion to continue the trial from April 30, 2010, to August 20, 2010. Defense counsel briefly restated the background facts as to the defendant’s indigency that he had provided to the court during a hearing on April 9, 2010, adding that he had prepared an affidavit of indigency based on the defendant being unemployed and receiving only unemployment benefits. Defense counsel stated, “I have the affidavit of indigency to show the Commonwealth, and what it shows is unemployment income of 276 a week.” However, there is no docket entry […]
Commonwealth v. Crapps (Lawyers Weekly No. 11-130-13)
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‑1753 Appeals Court COMMONWEALTH vs. JIMMY LEE CRAPPS, JR. No. 11‑P‑1753. Hampden. March 4, 2013. ‑ October 24, 2013. Present: Berry, Sikora, & Milkey, JJ. Controlled Substances. Evidence, Constructive possession, Expert opinion, Scientific test. Practice, Criminal, Findings by judge. Indictment found and returned in the Superior Court Department on August 11, 2009. The case was heard by Peter A. Velis, J. Amanda Lovell for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. SIKORA, J. At the conclusion of a jury-waived trial, a Superior Court judge convicted the defendant of trafficking in twenty-eight to one hundred grams of “crack” cocaine, G. L. c. 94C, § 32E(b)(2).[1] On appeal, the defendant presents two challenges to the sufficiency of the evidence. He contends that the Commonwealth failed to prove (1) that he constructively possessed the drugs found in the center console of the automobile which he was driving; and (2) that the weight of the crack cocaine exceeded twenty-eight grams because the Commonwealth’s chemist improperly extrapolated the net aggregate weight of the crack cocaine from a sampling of the packets found in the console. For the following reasons, we affirm. Background. The evidence permitted the judge to find the following facts. In July, 2009, Springfield police were conducting surveillance of the defendant. On one occasion, they observed him driving a white Lexus sport utility vehicle (SUV). The registration of the SUV identified the owner as Matrisa Collins, the defendant’s girlfriend, with whom he shared an address. On July 23, 2009, the police observed the defendant driving the SUV with no passengers. He drove to a store parking lot, where a female entered the passenger’s side of the SUV. The SUV traveled a very short distance and then stopped. The woman got out and walked away. These observations prompted the police to stop and to search the SUV and, later, the defendant. The officers recovered (1) a white tube sock in the center console containing (a) a plastic bag of thirty-six individual packets of apparent crack cocaine; and (b) a plastic bag containing a larger chunk of apparent crack cocaine; (2) sixty-six dollars in cash; (3) on the front passenger’s side seat, the defendant’s personal papers; (4) from the driver’s side door pocket, a cellular telephone; and (5) from the defendant’s pants pocket, […]
Adoption of Malik (Lawyers Weekly No. 11-129-13)
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 13‑P‑384 Appeals Court ADOPTION OF MALIK.[1] No. 13‑P‑384. Worcester. September 12, 2013. ‑ October 22, 2013. Present: Green, Grainger, & Fecteau, JJ. Adoption, Standing, Dispensing with parent’s consent. Parent and Child, Dispensing with parent’s consent to adoption, Adoption. Petition filed in the Worcester County Division of the Juvenile Court Department on April 16, 2010. The case was heard by George F. Leary, J. Joshua D. Woda for the mother. Bryan F. Bertram, Assistant Attorney General, for Department of Children and Families. Jacqueline Y. Parker for the child. GREEN, J. After Malik suffered serious but unexplained injuries as an infant while in the care of his birth mother (mother), the Department of Children and Families (department) commenced a petition for his care and protection, under G. L c. 119, § 24. Eventually, both birth parents stipulated to their unfitness and to termination of their parental rights, and decrees entered to that effect.[2] Thereafter, the care and protection proceeding was consolidated with a petition by Malik’s maternal grandparents seeking guardianship, and an evidentiary hearing was conducted to determine whether Malik’s best interests would be served by guardianship by the maternal grandparents or, alternatively, by adoption by the foster family with whom the child had been placed during the pendency of the care and protection proceeding. After hearing, a judge of the Juvenile Court concluded that the adoption plan proposed by the department, in which the foster family would adopt the child, would serve the child’s best interests. The mother filed a notice of appeal, claiming that the judge’s order constituted an abuse of discretion.[3] We conclude that the appeal must be dismissed, as the mother is without standing to maintain it. Background. At the time of Malik’s birth, on February 19, 2010, the mother was eighteen years old and living with her parents. She had an active restraining order against Malik’s father, and was involved in a relationship with a new boyfriend (who also lived with her in her parents’ home). The mother’s behavior at the hospital prompted a mandated reporter to file a report under G. L. c. 119, § 51A, alleging neglect of the then two day old Malik.[4] After investigation, the department determined that Malik should remain with his mother, based […]
In the Matter of: Patch, Thomas F. (Lawyers Weekly No. 10-183-13)
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‑11144 IN THE MATTER OF THOMAS F. PATCH. October 21, 2013. Attorney at Law, Disciplinary proceeding, Suspension, Disbarment. Board of Bar Overseers. Bar counsel appeals from an order of a single justice of this court indefinitely suspending the respondent, Thomas F. Patch, from the practice of law. Bar counsel argues that the single justice abused his discretion by not accepting the recommendation of the Board of Bar Overseers (board) that the respondent be disbarred, and by instead ordering an indefinite suspension based on his personal observations of the respondent in the court room and his conclusion that the respondent’s misconduct was mitigated by “unresolved emotional issues.” Because we agree with bar counsel, we vacate the order of indefinite suspension and direct that a judgment enter disbarring the respondent. Background. The respondent was admitted to the practice of law in 1987. He was suspended in 2004 for a term of three months following multiple adjudications of contempt in the Probate and Family Court stemming from his own divorce litigation, in which he represented himself. Matter of Patch, 20 Mass. Att’y Discipline Rep. 445 (2004). During this earlier disciplinary proceeding, he presented evidence in mitigation indicating that clinical depression had contributed to his misconduct. Id. at 446. After serving the three-month suspension, he was reinstated. In March, 2006, the respondent was convicted in the District Court of one count of criminal harassment (G. L. c. 265, § 43A [a]), for which he was sentenced to two and one-half years in the house of correction, suspended for five years; and of two counts of violating a protective order (G. L. c. 209A, § 7), for which he was sentenced to concurrent terms of five years’ probation. As one of the terms of his probation, he was ordered to submit to a psychological evaluation, and he was later ordered to submit to mental health treatment. In January, 2007, he was found to be in violation of the terms of his probation. He was ordered to serve two and one-half years in the house of correction, with five years’ probation following his release. In November, 2007, he was convicted in the District Court of one count of witness intimidation (G. L. c. 268, § 13B). The victim of that offense was one of the mental health professionals who had conducted the respondent’s […]
Commonwealth v. DeGennaro (and 13 companion cases) (Lawyers Weekly No. 11-128-13)
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‑1398 Appeals Court 11-P-1383 COMMONWEALTH vs. PETER DeGENNARO (and thirteen companion cases[1]). Nos. 11‑P‑1398 & 11-P-1383. Middlesex. September 11, 2012. ‑ October 21, 2013. Present: Meade, Sikora, & Wolohojian, JJ. Embezzlement. Fraud. Home Improvement Contractors. Contract, Construction contract, Trustee. Escrow. Real Property, Purchase and sale agreement. Trust. Practice, Criminal, Motion for a required finding, Instructions to jury, Presumptions and burden of proof, Findings by judge. Evidence, Intent, Presumptions and burden of proof. Intent. Statute, Construction. Indictments found and returned in the Superior Court Department on September 11, 2007. Ten cases were tried before Sandra L. Hamlin, J., and four cases were heard by Thomas P. Billings, J. Judith Ellen Pietras for Peter DeGennaro. Kevin J. Curtin, Assistant District Attorney, & Max Bauer for the Commonwealth. Elizabeth Dembitzer for Charlene Connors. SIKORA, J. This appeal requires interpretation of a seldom litigated criminal statute. The defendant, building contractor Peter DeGennaro, engaged through various business entities in the construction and improvement of residential homes. The codefendant, Charlene Connors, participated in the operations of the entities. At the conclusion of a five-day trial, a Superior Court jury convicted each defendant of five counts of embezzlement of funds deposited with them by two customers. In accordance with purchase and sale agreements presented by the defendants for the construction of homes, the customers had advanced the funds to DeGennaro for placement in escrow accounts. DeGennaro and Connors depleted the escrow funds; the building entities did not perform the promised construction. On appeal, DeGennaro contends, inter alia, that the fiduciary embezzlement statute under which the Commonwealth prosecuted him does not apply to the charged conduct, and that his conduct constituted only a civil breach of contract, not a criminal violation. Connors presents the same arguments and challenges the sufficiency of the evidence of her role as a joint venturer in the charged offenses.[2] By a separate bench trial of both defendants addressing transactions with different customers, a second Superior Court judge convicted DeGennaro, alone, of four counts of contractor fraud, three for failure to complete contractual renovation of existing homes and one for nonpayment of a subcontractor for materials and services. On appeal DeGennaro challenges the validity of the indictments and the sufficiency of the evidence. For the following reasons, we affirm all convictions from the […]
Upton’s Case (Lawyers Weekly No. 11-127-13)
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‑325 Appeals Court JOSEPH UPTON’S CASE. No. 12‑P‑325. Suffolk. February 11, 2013. ‑ October 18, 2013. Present: Trainor, Katzmann, & Sikora, JJ. Workers’ Compensation Act, Emotional distress. Words, “Personnel action.” Appeal from a decision of the Industrial Accident Reviewing Board. Timothy J. Casey, Assistant Attorney General, for the employer. Michael C. Akashian for the employee. SIKORA, J. An employee is not entitled to workers’ compensation benefits for an “emotional disability arising principally out of a bona fide, personnel action.” G. L. c. 152, § 1(7A), as inserted by St. 1986, c. 662, § 6. At issue in this case is whether a workplace investigatory interview causing employee Joseph Upton’s emotional disability constituted a bona fide personnel action within the meaning of § 1(7A) of the Workers’ Compensation Act (Act). An administrative judge of the Department of Industrial Accidents (department) concluded that it did and, accordingly, denied Upton’s claim. The department’s reviewing board (board) reversed; it reasoned that the interview did not constitute a personnel action because it did not alter Upton’s employment status or his employment relationship. For the following reasons, we conclude that the interview was a personnel action within the meaning of the Act and therefore hold that Upton is not entitled to workers’ compensation benefits for any resulting disability. Background. The material facts are largely undisputed. They include a history of long-running litigation. Our summary draws from the uncontested subsidiary findings of the administrative judge and the facts settled by prior decisions of the Supreme Judicial Court and this court. In 1991, at age twenty-four, Upton began work as a jail officer of the Suffolk County Sheriff’s Department (sheriff). In 1999, two other jail officers assaulted an inmate while Upton was on duty. See Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 699 (2008) (Sheriff of Suffolk County I). A disciplinary hearing officer found that Upton had filed false and untimely reports about the assault; had provided false information regarding the incident to the sheriff’s investigative division; and had failed to maintain the log book in his unit. Upton was terminated. Ibid. He grieved the termination to arbitration. In March of 2001, the arbitrator reduced the sanction to a six-month suspension without pay and ordered Upton’s reinstatement with back pay and benefits for […]
Commonwealth v. Gray (Lawyers Weekly No. 10-181-13)
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‑11323 COMMONWEALTH vs. JOHN GRAY. October 17, 2013. Motor Vehicle, Operating under the influence. Practice, Criminal, Motion to suppress. Search and Seizure, Roadblock by police. Constitutional Law, Search and seizure, Roadblock by police. The defendant was charged with operating under the influence of alcohol (OUI), third offense, after he was stopped, and subsequently arrested, at a sobriety checkpoint conducted by the State police in September, 2010. He filed a motion to suppress evidence related to his arrest, arguing that the screening officer — the officer who made the initial stop of the vehicles passing through the checkpoint — failed to comply with the applicable guidelines for that specific checkpoint. After a hearing, a judge in the District Court allowed the motion. The Commonwealth thereafter sought leave from a single justice of this court to pursue an interlocutory appeal. The single justice allowed the Commonwealth’s application and directed the appeal to the Appeals Court. The Commonwealth argued before the Appeals Court that the key finding of fact that formed the basis for the judge’s decision to allow the motion was clearly erroneous. The judge had found that the screening officer, Sergeant Paul D’Auteuil, improperly asked the defendant questions such as where he was coming from and whether he had anything to drink before Sergeant D’Auteuil had observed any articulable signs of intoxication. Sergeant D’Auteuil clearly testified at the hearing on the motion to suppress, however, that he did not ask any questions of the defendant (or any other driver passing through the sobriety checkpoint) until after he had observed signs of possible intoxication. There was no evidence to the contrary. The Commonwealth also argued, before the Appeals Court, that the guidelines applicable to the checkpoint allowed Sergeant D’Auteuil to question the defendant as he did — after observing signs of intoxication — and that if the judge had not erred in finding that Sergeant D’Auteuil questioned the defendant before observing signs of intoxication, the judge would have denied the motion to suppress because what Sergeant D’Auteuil actually did complied with the applicable guidelines. A panel of the Appeals Court agreed with the Commonwealth that the judge’s decision was based on a clearly erroneous fact and, on that basis, reversed the order allowing the motion to suppress in an unpublished […]