American International Insurance Company v. Robert Seuffer GmbH & Co. KG (Lawyers Weekly No. 10-081-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11418 AMERICAN INTERNATIONAL INSURANCE COMPANY[1] vs. ROBERT SEUFFER GMBH & CO. KG. Middlesex. January 7, 2014. ‑ May 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Jurisdiction, Personal. Practice, Civil, Affirmative defense, Waiver, Retroactivity of judicial holding. Waiver. Retroactivity of Judicial Holding. Civil action commenced in the Superior Court Department on December 16, 2009. A motion for summary judgment was heard by Douglas H. Wilkins, J. A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J., and the case was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Patricia E. Antezana, of Pennsylvania (Meghan M. Sullivan with her) for the defendant. John E. O’Brien, Jr., for the plaintiff. LENK, J. The question before us is whether a party may be deemed to have forfeited by its conduct the defense of lack of personal jurisdiction despite having timely asserted that defense in a responsive pleading pursuant to Mass. R. Civ. P. 12 (h) (1), as appearing in 450 Mass. 1403 (2008). American International Insurance Company (AIIC) filed a complaint in the Superior Court against Robert Seuffer GmbH & Co. KG (Seuffer), alleging various theories of products liability. In its answer, Seuffer raised the defense of a lack of personal jurisdiction, but did not move to dismiss the case on that basis. See Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974). Instead, it pursued litigation on the merits for over eighteen months before filing a motion for summary judgment that was predicated largely on the jurisdictional defense. A Superior Court judge denied the motion, ruling both that while Seuffer did not have the minimum contacts with Massachusetts necessary for personal jurisdiction, its conduct amounted to a waiver of the defense, and that genuine issues of material fact existed as to the merits which precluded the entry of summary judgment. Seuffer appeals from that order. We conclude that, where a party raises the defense of lack of personal jurisdiction in a responsive pleading, the party’s subsequent conduct may in some circumstances result in a forfeiture of that defense. The determination whether a party’s conduct will cause it to forfeit the right to contest the court’s jurisdiction is fact specific and must be made […]
Beacon South Station Associates, LSE v. Board of Assessors of Boston (Lawyers Weekly No. 11-048-14)
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 13‑P‑739 Appeals Court BEACON SOUTH STATION ASSOCIATES, LSE[1] vs. BOARD OF ASSESSORS OF BOSTON. No. 13‑P‑739. Suffolk. February 12, 2014. ‑ May 14, 2014. Present: Kafker, Milkey, & Sullivan, JJ. Taxation, Abatement, Exemption, Leased property, Real estate tax: abatement, exemption. Massachusetts Bay Transportation Authority. Boston. Contract, Lease of real estate. Real Property, Lease. Appeal from a decision of the Appellate Tax Board. Anthony M. Ambriano for the defendant. Stephen H. Oleskey for the plaintiff. KAFKER, J. The principal issue in this case is whether certain real estate in Boston owned by the Massachusetts Bay Transportation Authority (MBTA) and leased to a private, for-profit entity was exempt from taxation pursuant to G. L. c. 161A, § 24, in fiscal years 2009 and 2010.[2] The property in question is the South Station Headhouse (Headhouse), which the MBTA leases to Beacon South Station Associates, LSE, also known as EOP-South Station, LLC (EOP). The Headhouse consists of an enclosed concourse through which the public passes to access MBTA and Amtrak train platforms, an underground subway connection, office and retail space, a surface facility and parking area, and the surrounding sidewalks. The real estate taxes assessed on the Headhouse were $ 1,439,974.76 in 2009, and $ 1,135,463.55 in 2010. EOP filed challenges to the 2009 and 2010 fiscal year assessments on the property with the board of assessors of Boston (assessors), and then appealed to the Appellate Tax Board (board) following the assessors’ refusal to abate the taxes. The board ruled that G. L. c. 161A, § 24, “expressly exempted the property of the MBTA from taxation, whether or not leased for business purposes,” and granted the abatements. The assessors appealed. On appeal, the assessors’ primary argument is that the board erred in its conclusion, and the § 24 exemption did not apply to the Headhouse at all because EOP, a private entity, leased the Headhouse from the MBTA and operated it for profit in the tax years in question. Alternatively, the assessors argue that even if the Headhouse was not subject to a blanket assessment for the years in question, EOP could be taxed on the tenant improvements made to the property because EOP owned these improvements according to the terms of the lease, and they were therefore not property of the MBTA. Examination of G. L. c. 161, § 24, as […]
Holland, et al. v. Jachmann, et al. (Lawyer Weekly No. 11-047-14)
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 13‑P‑0280 Appeals Court RANDYE M. HOLLAND, trustee,[1] & others[2] vs. EMIL JACHMANN & another[3] (No. 1). No. 13‑P‑280. Hampden. January 8, 2014. ‑ May 14, 2014. Present: Kantrowitz, Vuono, & Sullivan, JJ. Consumer Protection Act, Unfair or deceptive act, Attorney’s fees. Practice, Civil, Consumer protection case, Attorney’s fees. Damages, Attorney’s fees. Contract, Performance and breach, Agreement not to compete. Attorney at Law, In‑house counsel. Civil action commenced in the Superior Court Department on July 27, 2006. The case was heard by Peter A. Velis, J.; postjudgment motions regarding attorney’s fees were heard by him; and entry of a final amended judgment was ordered by him. Susan E. Stenger (Thomas T. Reith with her) for the defendants. George Stanbury, of California, for the plaintiffs. KANTROWITZ, J. Of significance, we are asked whether attorney’s fees for legal work performed by in-house counsel may be awarded under G. L. c. 93A. We hold that, in the discretion of the trial judge, such fees may be awarded. The plaintiffs (sometimes referred to collectively as Omniglow) brought the present action against Cyalume Technologies, Inc. (Cyalume), and Emil Jachmann, its chief executive officer (collectively, defendants), seeking to remedy the defendants’ efforts to undermine the plaintiffs’ business. After a seventeen-day, jury-waived trial, the judge found the defendants liable for numerous breaches of contract, conversion, and violations of G. L. c. 93A. Several posttrial proceedings ensued, concluding in a final judgment entered on August 1, 2011, largely in favor of the plaintiffs. Following the disposition of the postjudgment motions, an amended final judgment was entered on July 12, 2012. On appeal, the defendants raise many issues. While involved and complicated, ultimately they are of a garden variety, albeit weed-infested, and best resolved via an unpublished memorandum and order pursuant to our rule 1:28 that is also being issued today. Holland v. Jachmann (No. 2), post (2014). As such, we concern ourselves here only with the c. 93A issues. Background. This business dispute arose out of a complicated transaction through which the Omniglow Corporation, a manufacturer of light sticks and other luminescent products, was effectively split into two companies. In late 2005, the company now known as Cyalume purchased the profitable segments of the Omniglow Corporation consisting principally of sales in the government, military, and safety (GMS) markets. As a condition of the […]
Commonwealth v. Buswell (Lawyers Weekly No. 10-080-14)
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‑11378 COMMONWEALTH vs. MICHAEL D. BUSWELL. Plymouth. January 6, 2014. ‑ May 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Attempt. Rape. Indecent Assault and Battery. Obscenity, Dissemination of matter harmful to minor. Enticement of Minor. Evidence, Information stored on computer, Prior misconduct. Search and Seizure, Computer, Probable cause, Consent. Probable Cause. Consent. Entrapment. Practice, Criminal, Motion to suppress, Stipulation. Indictments found and returned in the Superior Court Department on August 11, 2006. A pretrial motion to suppress evidence was heard by Jeffrey A. Locke, J., and the cases were tried before Richard J. Chin, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jason Benzaken for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. DUFFLY, J. A Superior Court jury found the defendant guilty on one indictment charging enticement of a child under the age of sixteen, G. L. c. 265, § 26C, and four indictments charging attempts to commit certain offenses, G. L. c. 274, § .[1] The offenses underlying the convictions of attempt were rape of a child under the age of sixteen, G. L. c. 265, § 23; indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; and two charges of disseminating matter harmful to a minor, G. L. c. 272, § 28. The defendant’s motions for required findings of not guilty were denied. In his direct appeal, the defendant argued that the Commonwealth failed to provide sufficient evidence of an overt act, a necessary element to establish attempted rape of a child and attempted indecent assault and battery on a child, and that his electronically transmitted “conversation” did not constitute “matter” under the terms of G. L. c. 272, § 28, so that the Commonwealth had not met its burden of proof to establish dissemination of matter harmful to a minor. The defendant also argued that certain evidence obtained following a forensic examination of his computer should have been suppressed or excluded at trial, and that the Commonwealth failed to provide evidence of a predisposition to commit the charged offenses sufficient to overcome his defense of entrapment. In a divided opinion, a majority of the Appeals Court affirmed the convictions of […]
Doe, et al. v. Acton-Boxborough Regional School District, et al. (Lawyers Weekly No. 10-078-14)
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‑11317 JANE DOE[1] & others[2] vs. ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT & others.[3] Middlesex. September 4, 2013. ‑ May 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Equal protection of laws, Equal Rights Amendment, Education. School and School Committee, Regional school district. Civil action commenced in the Superior Court Department on November 10, 2010. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Eric C. Rassbach, of the District of Columbia (Diana M. Verm, of the District of Columbia, & J. Patrick Kennedy with him) for the interveners. Geoffrey R. Bok for the defendants. David A. Niose for the plaintiffs. The following submitted briefs for amici curiae: Andrew P. Blake, David S. Petron, Judith C. Gallagher, & Christopher R. Mills, of the District of Columbia, for Steven Palazzo & others. David A. Cortman, of Georgia, Jeremy D. Tedesco, of Arizona, & Andrew D. Beckwith for Alliance Defending Freedom & another. Jay Alan Sekulow, Stuart J. Roth, & Colby M. May, of the District of Columbia, Erik M. Zimmerman, of Virginia, & Carly F. Gammill, of Tennessee, for American Center for Law and Justice. Ronald A. Lindsay & Karla Grossenbacher, of the District of Columbia, for Center for Inquiry. Thomas R. McCarthy & Brendan J. Morrissey, of the District of Columbia, Kelly J. Shackelford & Hiram S. Sasser, III, of Texas, & Gregory D. Cote for The American Legion & another. Martha Coakley, Attorney General, & Amy Spector, Assistant Attorney General, for the Commonwealth. IRELAND, C.J. This case presents two questions of State constitutional and statutory law: first, whether the daily recitation of our Nation’s pledge of allegiance (pledge) in the defendants’ schools violates the plaintiffs’ equal protection rights under the Massachusetts Constitution, because the pledge includes the words “under God”; and second, whether the recitation of the pledge violates G. L. c. 76, § 5, which prohibits discrimination in Massachusetts public school education. We hold that the recitation of the pledge, which is entirely voluntary, violates neither the Constitution nor the statute. 1. Procedural background. The plaintiffs, Jane Doe and John Doe, commenced this action in the Superior Court challenging the practice by which the pledge is […]
Wilkins v. City of Haverhill (Lawyers Weekly No. 10-079-14)
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‑11417 MICHELLE WILKINS vs. CITY OF HAVERHILL. Essex. January 9, 2014. ‑ May 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Negligence, One owning or controlling real estate, Snow and ice, School. Immunity from Suit. Snow and Ice. School and School Committee. Words, “The public.” Civil action commenced in the Superior Court Department on September 14, 2011. The case was heard by Robert A. Cornetta, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. John A. Finbury (Gina T. Dussi with him) for the plaintiff. John J. Davis (Jason W. Crotty with him) for the defendant. Stephen J. Finnegan, for Massachusetts Association of School Committees, Inc., amicus curiae, submitted a brief. J. Michael Conley, Thomas R. Murphy, Alex G. Philipson, & Benjamin R. Zimmerman, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. DUFFLY, J. Michelle Wilkins was injured when she slipped and fell on ice that had accumulated on the walkway of a public school owned and operated by the city of Haverhill (city). At the time of the fall, early in the evening of February 10, 2011, Wilkins was on the city’s premises to attend a scheduled parent-teacher conference. Wilkins filed a complaint in the Superior Court against the city alleging that its negligence caused her injuries. In its motion for summary judgment, the city raised as a defense G. L. c. 21, § 17C, which bars claims of ordinary negligence against a landowner, including a government entity, that has opened its land to the public for recreational, educational, or other enumerated purposes, without charging a fee. A Superior Court judge allowed the city’s motion; Wilkins appealed, and we allowed her application for direct appellate review. Because we conclude that the limitation on liability provided by G. L. c. 21, § 17C, extends solely to land open to the general public, and during the relevant time the school was open only to a discrete group and not to the general public, we reverse. Discussion. a. Standard of review. “Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” HipSaver, Inc. v. Kiel, 464 Mass. 517, 522 (2013). See Mass. R. Civ. […]
Commonwealth v. Martinez (Lawyers Weekly No. 11-046-14)
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‑1758 Appeals Court COMMONWEALTH vs. NICHOLAS MARTINEZ. No. 12‑P‑1758. Worcester. November 6, 2013. ‑ May 7, 2014. Present: Trainor, Vuono, & Rubin, JJ. Home Invasion. Practice, Criminal, Required finding. Indictments found and returned in the Superior Court Department on November 10, 2009. The cases were tried before Janet Kenton‑Walker, J. William B. Van Lonkhuyzen for the defendant. Donna‑Marie Haran, Assistant District Attorney, for the Commonwealth. TRAINOR, J. At issue on appeal is whether G. L. c. 265, § 18C, applies to an assault of an individual who entered a dwelling after the defendant and codefendant had entered the dwelling and already had assaulted the persons who were present. This individual was not a legal occupant or legal resident of the apartment. We hold it does, so we affirm. Factual and procedural background. The defendant appeals from his convictions arising from the incident at 91 Nashua Street.[1] Specifically, on appeal the defendant argues it was error to deny his motion for a required finding of not guilty on one count of home invasion upon Francis Curran. We summarize the relevant evidence in the light most favorable to the Commonwealth. Commonwealth v. Stokes, 440 Mass. 741, 747 (2004). The defendant agreed with others to enter the third-floor apartment at 91 Nashua Street to rob the occupant of that apartment, David Bastarache, of money and drugs. The defendant and codefendant entered the main gate for 91 Nashua Street (which requires a code to open) and, then, entered the third-floor apartment. After entering the third-floor apartment, the defendant and the codefendant assaulted Bastarache and his guest. Curran, who lived in the second-floor apartment, heard the noise upstairs, and went to investigate carrying a baseball bat. After Curran entered the apartment, he proceeded down the hall. Curran saw the codefendant and the defendant come toward him. The codefendant grabbed the baseball bat, stabbed Curran twice, and pushed Curran into an open bedroom door. Based on this evidence, the jury convicted the defendant of home invasion against Curran. Discussion. The relevant part of the home invasion statute, G. L. c. 265, § 18C, inserted by St. 1993, c. 333, provides: “Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and […]
Commonwealth v. Aspen (Lawyers Weekly No. 11-045-14)
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‑1379 Appeals Court COMMONWEALTH vs. RICHARD ASPEN. No. 12‑P‑1379. Norfolk. October 9, 2013. ‑ May 7, 2014. Present: Fecteau, Brown, & Hines, JJ. Rape. Indecent Assault and Battery. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Appeal. Witness, Expert, Credibility. Evidence, Expert opinion, Credibility of witness. Indictments found and returned in the Superior Court Department on August 9 and November 5, 1996. A motion for a new trial, filed on January 19, 2011, was heard by Thomas F. McGuire, Jr., J. John G. Swomley for the defendant. Marguerite T. Grant, Assistant District Attorney (Michele M. Armour, Assistant District Attorney, with her) for the Commonwealth. BROWN, J. A jury convicted Richard Aspen (the defendant) of (1) one count of rape of a child under sixteen; (2) six counts of rape; (3) two counts of indecent assault and battery; and (4) one count of assault and battery. The complainant is the defendant’s stepdaughter. The convictions were upheld on direct appeal. See Commonwealth v. Aspen, 53 Mass. App. Ct. 259 (2001).[1] The defendant moved for a new trial, asserting various claims, including ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The motion was denied. The defendant appeals. We now reverse the order denying the motion for a new trial. Discussion. 1. Ineffective assistance of trial counsel. The defendant contends that trial counsel was ineffective in (1) failing to call an expert witness to rebut the Commonwealth’s expert; (2) failing to call available character witnesses; (3) advising the defendant not to testify; and (4) failing to do more to impeach both the complainant and her mother. We apply the familiar test of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “We also consider whether there is ‘some showing that better work might have accomplished something material for the defense.’” Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272 (2009), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978). a. Failure to call an expert witness. First, the defendant asserts that trial counsel provided ineffective assistance in failing […]
Bernier v. Fredette, et al. (Lawyers Weekly No. 11-044-14)
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‑1684 Appeals Court BRYANT BERNIER[1] & another vs. NORMAN FREDETTE & others.[2] No. 12‑P‑1684. Suffolk. November 6, 2013. ‑ May 6, 2014. Present: Kantrowitz, Graham, & Meade, JJ. Real Property, Boundary, Deed. Deed, Construction. Surveyor. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Land Court Department on August 4, 2008. The case was heard by Gordon H. Piper, J. Mark Bobrowski for David Bechtold. Richard E. Burke, Jr., for Norman Fredette & another. Marc R. Deshaies for the plaintiffs. GRAHAM, J. This boundary dispute originates from deeds granted beginning in 1870 and requires us to locate the common boundary between the plaintiffs’ and defendants’ Acushnet properties. The plaintiffs commenced this action seeking to remove a cloud on their title pursuant to G. L. c. 240, §§ 6-10, seeking a declaration of the correct location of their common boundary, and seeking damages for trespass and nuisance. The defendants filed counterclaims for trespass and nuisance. Following a three-day trial and a view of the relevant properties and monuments, the Land Court judge adopted the boundary proffered by the plaintiffs and awarded them nominal damages for trespass and nuisance. The judge expressly limited the judgment to the parties named and served in this proceeding. On appeal, the parties do not pursue any issue regarding their trespass and nuisance claims and only the boundary dispute is before us on the defendants’ appeal. For the reasons that follow, we affirm the decision of the Land Court judge. Background. All of the property at issue is located off Hathaway Road in Acushnet and originally was owned by Samuel Wing, whose heirs subdivided the property and conveyed separate parcels over time. The parcels are referred to by the parties pursuant to lot numbers designated on Acushnet Assessors’ Map 14 (map 14). The current map 14 is not in the record, but the multiple plans submitted by the parties have adhered to the lot numbers set forth on map 14. The judge attached to his decision the Bernier trial plan of lot 13 and lot 16 submitted by the plaintiffs following trial. To orient the reader and for ease of reference, we attach the relevant part of the trial plan as an appendix. Samuel Wing’s substantial holdings included, at a minimum, what is now […]
Commonwealth v. Lewis (Lawyers Weekly No. 10-077-14)
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‑11500 COMMONWEALTH vs. KERRON RANDELL LEWIS.[1] May 6, 2014. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Discovery. Evidence, Certificate of drug analysis. Controlled Substances. The Commonwealth appeals from the judgment of a single justice of this court denying its petition pursuant to G. L. c. 211, § 3. We affirm. Kerron Randell Lewis has been charged with distribution of a class B substance, in violation of G. L. c. 94C, § 32A; and possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A. He filed a motion in the Boston Municipal Court seeking pretrial discovery, pursuant to Mass. R. Crim. P. 14. After multiple hearings, the Commonwealth was ordered to provide certain discovery to Lewis, including copies of maintenance and calibration records for the machines used for weighing and analyzing the substance seized from him. The Commonwealth’s G. L. c. 211, § 3, petition sought relief from that order. The single justice exercised her discretion to consider the merits. “A single justice, in his or her discretion, may also properly decline to employ the court’s extraordinary power of general superintendence where exceptional circumstances are not present . . . .” Commonwealth v. Elias, 463 Mass. 1015, 1016 n.2 (2012), quoting Commonwealth v. Narea, 454 Mass. 1003, 1004 n.1 (2009) (“[n]o party, including the Commonwealth, should expect that the court will exercise its extraordinary power of general superintendence lightly”). See Commonwealth v. Snow, 456 Mass. 1019, 1019-1020 (2010); Commonwealth v. Maldonado, 456 Mass. 1012, 1012 n.1 (2010). We conclude that the single justice did not err or abuse her discretion in denying relief. The Commonwealth has not demonstrated an entitlement to relief on the substantive merits of its petition. On appeal, the Commonwealth contends that the information requested is not properly the subject of automatic discovery under Mass. R. Crim. P. 14 because it is not a “report of a scientific test or experiment.” Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005). Alternatively, it argues, it satisfied its automatic discovery obligations by making the information available to the defendant for inspection and copying. Regardless of whether any of the requested information properly was the subject of automatic discovery under rule 14 (a) (1), “[d]iscovery of items not included in the automatic discovery regime remains subject to the court’s discretion, and […]