Care and Protection of Jamison (Lawyers Weekly No. 10-028-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11452 CARE AND PROTECTION OF JAMISON. Franklin‑Hampshire. September 4, 2013. ‑ February 20, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ. Minor, Care and protection, Visitation rights. Jurisdiction, Care and protection of minor, Juvenile Court. Juvenile Court, Jurisdiction. Guardian. Evidence, Unavailable witness, Expert opinion. Witness, Child, Unavailability, Expert, Psychiatric examination, Psychologist. Petition filed in the Franklin and Hampshire Counties Division of the Juvenile Court Department on September 28, 2007. A motion for sibling visitation, filed on April 15, 2011, was heard by James G. Collins, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ann Balmelli O’Connor, Committee for Public Counsel Services, for the siblings of Jamison. Margaret M. Geary for the guardians. Beth M. Nussbaum for Jamison. Lynne M. Murphy for Department of Children and Families. Cara M. Cheyette for the mother. LENK, J. We are called upon in this case to decide, first, whether the Juvenile Court has subject matter jurisdiction over petitions for sibling visitation pursuant to G. L. c. 119, § 26B (b), where the petitioning child is in State custody and his siblings are wards in the custody of legal guardians, and, second, whether the presumption of validity afforded parental decisions regarding grandparent visitation pursuant to G. L. c. 119, § 39D, recognized in Blixt v. Blixt, 437 Mass. 649, 657-658 (2002) (Blixt), cert. denied, 537 U.S. 1189 (2003), applies also to the decisions of fit guardians regarding sibling visitation. Finally, we must decide whether the judge abused his discretion when mandating the visitation sought by the petitioning sibling. In October, 2005, nine year old Jamison and three of his siblings — Christopher, then fifteen, Fergus, then five, and Rosalie, then four — became the wards of their maternal aunt, Darlene, and her spouse, Dorothy (guardians).[1] The guardians voluntarily terminated their guardianship of Jamison in October, 2007, and, in April, 2008, he was placed in the permanent custody of the Department of Children and Families (DCF).[2] In April, 2011, Jamison petitioned the Juvenile Court for visitation with Fergus and Rosalie pursuant to G. L. c. 119, § 26B (b). After finding that visitation would be in the best interests of all three children, a Juvenile Court judge ordered supervised visitation […]
Pepin, et al. v. Division of Fisheries and Wildlife (Lawyers Weekly No. 10-027-14)
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‑11332 WILLIAM PEPIN & another[1] vs. DIVISION OF FISHERIES AND WILDLIFE. Hampden. October 8, 2013. ‑ February 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Administrative Law, Agency’s authority, Agency’s interpretation of statute, Decision, Hearing, Proceedings before agency, Regulations, Summary decision. Practice, Civil, Review of administrative action. Regulation. Division of Fisheries and Wildlife. Massachusetts Endangered Species Act. Civil action commenced in the Superior Court Department on September 1, 2009. A motion for judgment on the pleadings was heard by C. Jeffery Kinder, J., and motions for summary judgment were heard by Constance M. Sweeney, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William J. Murray for the defendant. Matthew C. Ireland, Assistant Attorney General, for the plaintiffs. The following submitted briefs for amici curiae: Damien M. Schiff & Jonathan Wood, of California, & Donald R. Pinto, Jr. for Pacific Legal Foundation. Jason C. Rylander & Michael P. Senatore, of the District of Columbia, for Defenders of Wildlife & another. Jeffrey B. Augello & David S. Jaffe, of the District of Columbia, for National Association of Home Builders. Douglas H. Hallward-Driemeier, Jacob Scott, Jacob M. Heller, & Kevin P. Budris for Massachusetts Audubon Society & others. Paul Peter Nicolai for Economic Development Council of Western Massachusetts & another. Benjamin Fierro, III for Home Builders Association of Massachusetts, Inc. Ann M. Risso for Nature Conservancy. LENK, J. William and Marlene Pepin (petitioners) own approximately thirty-six acres of land in Hampden.[2] Their ability to construct a home on this land is restricted by the property’s delineation as a “priority habitat” for the eastern box turtle, a “species of special concern” under 321 Code Mass. Regs. § 10.90 (2012). The property has been so designated by the Division of Fisheries and Wildlife (division), a unit of the Department of Environmental Protection, pursuant to the implementing regulations of the Massachusetts Endangered Species Act, G. L. c. 131A, §§ 1-7 (MESA). MESA authorizes the division to designate certain areas as “significant habitats” of endangered or threatened species. G. L. c. 131A, § 4. Development of land within significant habitats is sharply restricted. See G. L. c. 131A, §§ 2-4. The division also has promulgated regulations establishing a second type of protected habitat, denoted “priority habitat,” to protect species that are either […]
G.R. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-011-14)
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‑0951 Appeals Court G.R.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑951. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on April 28, 2011. The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Timothy J. Casey, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardian, G.R., a severely intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3.[3] We focus our analysis on whether the Department of Developmental Services (DDS) presented the administrative magistrate at the DALA hearing with substantial evidence to support her decision that the interfacility transfer would be in G.R.’s best interest. After reviewing the administrative record and the parties’ submissions, we conclude that the magistrate’s decision was supported by substantial evidence and that there is no ground to set aside the DALA’s decision. We affirm the judgment of the Superior Court approving the DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. At the time of the administrative hearing, G.R. was sixty-six years old. He has lived at FDC since 1956. G.R. is severely intellectually disabled as well as blind and deaf. He cannot communicate verbally, although he will vocalize sometimes. In 2003, the year that its closure was announced, FDC served 280 residents. In November, 2010, FDC only served twenty-three residents. There are over eighty buildings on the FDC campus, and approximately fifty are not in use. As an older facility, FDC has extensive physical plant maintenance issues; however, funds are only available for necessary repairs, rather than renovations. There have also been significant staffing changes associated with FDC’s closure. From 2004 to the time of the administrative hearing, there were fifteen consolidations in residences or day programs. Staff members have transferred to other facilities, have retired, or have been laid off. As a Ricci class member, see Ricci v. Okin, 823 F. Supp. 984 (D. […]
Categories: News Tags: 1101114, department, Developmental, G.R., Lawyers, Services, Weekly
P.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-013-14)
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‑1460 Appeals Court P.D.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1460. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on August 10, 2011. The case was heard by Kathe M. Tuttman, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Carrie Benedon, Assistant Attorney General, for the defendants. BERRY, J. This involuntary transfer case concerns a proposal by the Department of Developmental Services (DDS) to move P.D., a profoundly intellectually disabled man, from his home at the Fernald Developmental Center (FDC) to Heffron Hall B, apartment 3 (apartment 3) at the Wrentham Developmental Center (WDC). After determining that the transfer would result in improved services and quality of life for P.D. and be in his best interest, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the transfer. See G. L. c. 123B, § 3. The guardians appeal from a Superior Court judgment affirming that decision. Concluding, as we do, that the decision was supported by substantial evidence and free from error of law, we affirm. Substantial evidence. The magistrate’s ultimate conclusion that the transfer would result in improved services and quality of life for P.D. was supported by substantial evidence. See G. L. c. 30A, § 14(7); G.R. v. Department of Developmental Servs., ante at (2013). In determining whether the transfer should proceed as in P.D.’s best interest, the magistrate properly examined the over-all picture, comparing the supports and services available at the respective facilities to meet P.D.’s unique needs. He also carefully considered the guardians’ many objections, as required by the statute, and rejected them as invalid or unreviewable, or valid but outweighed by other factors or adequately addressed by DDS. P.D. has lived at FDC for most of his life. His primary medical and psychiatric issues are sever pica (ingesting nonfood items), skin picking, hyperactivity, a swallowing disorder, and both obsessive-compulsive disorder and bipolar disorder. These conditions are addressed in his individual support/service plan (ISP). In his decision, the magistrate identified the seven distinct improvements in services and quality of life that DDS asserted would be available to P.D. at […]
Categories: News Tags: 1101314, department, Developmental, Lawyers, P.D., Services, Weekly
M.M. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-012-14)
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‑1592 Appeals Court M.M.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another[2] No. 12‑P‑1592. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Guardian. Notice. Civil action commenced in the Superior Court Department on July 27, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardians, M.M., a profoundly intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC).[3] See G. L. c. 123B, § 3. Our analysis here involves whether, during the DALA hearing, the Department of Developmental Services (DDS) presented the administrative magistrate with substantial evidence to support his decision that the interfacility transfer would result in improved services and quality of life for M.M. and be in M.M.’s best interest. After reviewing the administrative record and the parties’ submissions, we affirm the judgment of the Superior Court approving DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. M.M. is forty-nine years old and has resided at FDC since the age of five. He is profoundly intellectually disabled and cannot care for himself. He has nonspecified psychosis and suffers from episodes of anger and self-injurious behavior. DDS has proposed to transfer M.M. from his residence at FDC to Heffron Hall B apartment 3, at WDC. On June 10, 2010, DDS, as required by 115 Code Mass. Regs. § 6.63 (2009), issued a forty-five day notice and request for proposed facility transfer to M.M.’s guardians.[4] The guardians objected to the transfer, and DDS then referred the case to DALA. A DALA magistrate conducted an evidentiary hearing and concluded that DDS’s proposed transfer of M.M. to WDC was in his best interest. On July 19, 2012, a Superior Court judge affirmed the DALA magistrate’s decision. M.M., through his guardians, then filed a timely notice of appeal to this court. 2. Standard of review. This is an appeal under G. L. c. 30A, § 14. By statute, therefore, we must review the conclusion […]
Categories: News Tags: 1101214, department, Developmental, Lawyers, M.M., Services, Weekly
E.G. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-014-14)
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‑1560 Appeals Court E.G.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1560. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on July 7, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Carrie Benedon, Assistant Attorney General, for the defendants. BERRY, J. The Department of Developmental Services (DDS) seeks to transfer E.G., a profoundly intellectually disabled individual, from the Fernald Developmental Center (FDC) to the Wrentham Developmental Center (WDC).[3] E.G.’s guardians oppose the transfer. Following an adjudicatory hearing on the guardians’ objections, an administrative magistrate of the Division of Administrative Law Appeals (DALA) concluded that the proposed transfer met the requirements of the State statutory standard, allowing it to proceed. See G. L. c. 123B, § 3. A judge of the Superior Court subsequently affirmed DALA’s decision. See G. L. c. 30A, § 14(7). We affirm. E.G. currently resides at Cottage 12B on the FDC campus with three other individuals. DDS’s plan calls for E.G. to be reunited with a number of his former longterm housemates at Heffron Hall B, apartment 3 at WDC (apartment 3). Although E.G. does not interact with his peers, he successfully lived with that peer group for over twenty-five years. We consider the claims and issues that are unique to E.G.’s individual circumstances. A finding that the transfer was in E.G.’s best interest was supported by substantial evidence. The vision section of E.G.’s 2009-2010 individual service/support plan (ISP) identifies the ability “to safely move about his home and workplace” as a hope and dream of the future, and “a stable home” as an aspect of his membership in the community. The living space at apartment 3, as compared to that at FDC, is indisputably smaller. Contrary to the guardians’ assertions, however, the magistrate credited the testimony from DDS’s witnesses that the personal space at apartment 3 would be adequate to meet E.G.’s needs. As the magistrate noted, familiar psychology staff will be assigned to E.G. at apartment 3, and they, in conjunction with familiar direct care workers who have transferred […]
Categories: News Tags: 1101414, department, Developmental, E.G., Lawyers, Services, Weekly
Galiastro, et al. v. Mortgage Electronic Registration Systems, Inc., et al. (Lawyers Weekly No. 10-023-14)
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‑11299 ANNE-MARIE GALIASTRO & another[1] vs. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., & another.[2] Worcester. October 7, 2013. ‑ February 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Civil, Motion to dismiss, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Mortgage, Foreclosure, Real estate. Real Property, Mortgage. Consumer Protection Act, Unfair act or practice. Conspiracy. Civil action commenced in the Superior Court Department on March 29, 2010. A motion to dismiss was heard by John S. McCann, J. The Supreme Judicial Court granted an application for direct appellate review. Glenn F. Russell, Jr., for the plaintiffs. Robert M. Brochin (Todd S. Holbrook with him) for Mortgage Electronic Registration Systems, Inc. Nathalie K. Salomon for Harmon Law Offices, P.C. Grace C. Ross, pro se, amicus curiae, submitted a brief. Geoffry Walsh, for National Consumer Law Center, amicus curiae, submitted a brief. DUFFLY, J. We address in this case whether the plaintiffs and others who had appeals pending in the Appeals Court when we decided Eaton v. Federal Nat’l Mtge. Ass’n, 462 Mass. 569, 569 (2012) (Eaton), may pursue claims seeking to invalidate foreclosure proceedings based on our decision in that case.[3] We held in Eaton that a foreclosure by power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless a foreclosing party holds the mortgage and also either holds the underlying mortgage note or acts on behalf of the note holder. Id. at 571. We concluded also that the interpretation of “mortgagee” in statutes governing foreclosures under statutory power of sale provisions would have only prospective effect, although we applied our newly announced interpretation to the claims asserted by the plaintiffs in that case. Id. We now extend application of the holding in Eaton to cases such as this one, in which the issue was preserved and an appeal was pending in the Appeals Court on June 22, 2012, the date of the rescript in Eaton. Background.[4] The plaintiffs, Anne-Marie and Joseph Galiastro (Galiastros), obtained a home mortgage loan on July 26, 2006, from Fremont Investment & Loan (Fremont).[5] To secure the obligation, the Galiastros contemporaneously granted a mortgage on the home to defendant Mortgage Electronic Registration Systems, Inc. (MERS), which was described in the mortgage as “a separate corporation that […]
Categories: News Tags: 1002314, Electronic, Galiastro, Inc., Lawyers, Mortgage, Registration, Systems, Weekly
Commonwealth v. Ray (Lawyers Weekly No. 10-019-14)
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‑10535 COMMONWEALTH vs. CHARON RAY. Suffolk. October 11, 2013. ‑ February 12, 2014. Present: Ireland, C.J., Cordy, Gants, Duffly, & Lenk, JJ. Homicide. Practice, Criminal, Public trial, Waiver, Assistance of counsel, Continuance, Motion to suppress, Voluntariness of statement, Hearsay, Conduct of juror, Sentence. Constitutional Law, Public trial, Waiver of constitutional rights, Assistance of counsel, Voluntariness of statement, Sentence, Cruel and unusual punishment, Parole, Capital case. Due Process of Law, Assistance of counsel, Sentence, Parole. Waiver. Intimidation of Witness. Evidence, Voluntariness of statement, Hearsay, Impeachment of credibility. Witness, Intimidation, Impeachment. Jury and Jurors. Indictments found and returned in the Superior Court Department on September 29, 2005. A pretrial motion to suppress evidence was heard by Patrick J. Riley, J.; the cases were tried before Janet L. Sanders, J., and a motion for a new trial, filed on July 26, 2010, was heard by her. Robert F. Shaw, Jr., for the defendant. Helle Sachese, Assistant District Attorney, for the Commonwealth. CORDY, J. On the evening of June 10, 2004, two teenage boys were shot from behind on Hazelwood Street in the Roxbury section of Boston following ongoing animosity between two groups of local teenagers. One was injured, and the other, Dakeem Galloway (Dakeem), fourteen years of age, died from a gunshot wound to the head. The defendant, Charon Ray, who was sixteen years of age at the time of the shooting, was subsequently indicted for the murder. In June, 2007, after a jury trial, he was found guilty of deliberately premeditated murder in the first degree.[1] He appealed from the convictions, as well as from the denial of his third motion for a new trial, which asserted that his right to a public trial was violated by a full closure of the court room during jury selection and a partial closure during trial, and that he was denied effective assistance of counsel due to trial counsel’s inadequate preparation and failure to investigate and procure the testimony of a potential eyewitness. On appeal, the defendant also asserts that the judge erred in denying his request for a continuance and his motion to suppress statements he made to the police, impermissibly limited his cross-examination of a Commonwealth witness, and wrongly permitted a sleeping juror to participate in deliberations in violation of his […]
Categories: News Tags: 1001914, Commonwealth, Lawyers, Weekly
Commonwealth v. McGee (Lawyers Weekly No. 10-022-14)
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‑09715 COMMONWEALTH vs. RICKY D. McGEE. Suffolk. October 11, 2013. ‑ February 12, 2014. Present: Ireland, C.J., Cordy, Gants, Duffly, & Lenk, JJ. Homicide. Practice, Criminal, Capital case, New trial, Discovery, Instructions to jury, Request for jury instructions. Evidence, Exculpatory, Ballistician’s certificate, Prior misconduct, Credibility of witness, Relevancy and materiality, Photograph. Witness, Intimidation, Credibility. Intimidation of Witness. Firearms. Indictments found and returned in the Superior Court Department on July 25, 1997. The cases were tried before Regina L. Quinlan, J., and motions for a new trial, filed on November 10, 1998, and April 14, 2011, were heard by her. David A.F. Lewis for the defendant. Amanda Teo, Assistant District Attorney, for the Commonwealth. DUFFLY, J. On October 20, 1998, a Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and felony-murder, G. L. c. 265, § 1, in the shooting death of Getasetegn Yalew.[1] The defendant’s appeal from his convictions and his appeal from the denial of his first motion for a new trial were stayed pending determination of his second motion for a new trial; that motion was denied, as was the defendant’s motion for reconsideration and his request for posttrial discovery. These appeals were consolidated and are now before us. The defendant argues that his new trial motions should have been allowed because of newly discovered evidence, and that it was an abuse of discretion to deny his requests for posttrial discovery. The defendant maintains further that the trial judge erred in failing to give a specific instruction on witness credibility, and made errors in certain evidentiary rulings. He also seeks relief pursuant to G. L. c. 278, § 33E. We conclude that none of the defendant’s claims of error requires reversal, and find no basis to exercise our authority pursuant to G. L. c. 278, § 33E, to order a new trial. Accordingly, we affirm the defendant’s convictions. Facts. We recite the facts the jury could have found, reserving mention of certain facts for our discussion of the issues. Some time between 2:16 A.M. and 2:40 A.M. on April 16, 1997, the victim, a store clerk at a convenience store in the Fenway section of Boston, was shot in the back of the head with a .38 caliber revolver. The victim, […]
Commonwealth v. Alebord (Lawyers Weekly No. 10-021-14)
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‑11354 COMMONWEALTH vs. GLEN S. ALEBORD. Plymouth. October 8, 2013. ‑ February 12, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Constitutional Law, Public trial, Jury, Waiver of constitutional rights, Assistance of counsel. Practice, Criminal, Public trial, Empanelment of jury, Waiver, Assistance of counsel. Jury and Jurors. Waiver. Indictment found and returned in the Superior Court Department on December 29, 2000. Following review by the Appeals Court, 80 Mass. App. Ct. 432 (2011), a motion for a new trial was heard by Linda E. Giles, J. The Supreme Judicial Court granted an application for direct appellate review. Chauncey B. Wood for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Edmund D. LaChance Jr., pro se, amicus curiae, submitted a brief. Sharon Fray-Witzer for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. CORDY, J. On February 5, 2004, at the Superior Court in Brockton, the defendant was convicted by a jury of murder in the second degree for the shooting death of Benjamin Shiren. During jury empanelment the court officers closed the court room to all members of the public, as was the custom and practice at the time in that court. Among those excluded were Katrina Lawson, Lorraine Wilder, and William Wilder, the defendant’s friend, sister, and brother-in-law, respectively.[1] The defendant did not object to the court room closure, nor did he raise any claim relating to its closure in his first motion for a new trial, which was denied in 2005, or in his direct appeal, which was decided in 2006. See Commonwealth v. Alebord, 68 Mass. App. Ct. 1 (2006). In 2008, the defendant filed a second motion for new trial, claiming that the closure of the court room was structural error necessitating reversal. After an evidentiary hearing, the motion judge, who was also the trial judge, found that no closure had occurred and that, at any rate, the defendant had waived his claim by failing to raise it at trial or on appeal. The Appeals Court vacated the decision and remanded the case for further proceedings consistent with its view that the right to a public trial under the Sixth Amendment to the United States Constitution may be waived only by a personal and knowing […]