Allen v. Allen (Lawyers Weekly No. 11-115-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-605 Appeals Court DEBORAH A. ALLEN[1] vs. HAROLD J. ALLEN, JR. No. 13-P-605. Suffolk. February 12, 2014. – September 16, 2014. Present: Trainor, Katzmann, & Hanlon, JJ. Deed, Acknowledgement. Real Property, Deed, Conveyance, Record title. Notice. Practice, Civil, Failure to make objection, Motion to amend. Civil action commenced in the Land Court Department on January 19, 2010. A motion to amend a counterclaim was heard by Gordon H. Piper, J., the case was tried before him, and a motion to amend the judgment or for a new trial was considered by him. Helen G. Litsas for the defendant. Amy M. McCallen for the plaintiff. KATZMANN, J. This case concerns competing claims between adult siblings for the ownership of the house formerly owned by their now-deceased parents. Harold Allen, Jr., (Harold) traces his ownership to a July, 2001, deed (July deed) from the siblings’ mother, Ethel Allen (Ethel). Harold’s sister Deborah Allen (Deborah) claims ownership by virtue of a November, 2001, deed (November deed) from Ethel to the Allen Realty Trust (Trust), of which Deborah was a cotrustee along with Ethel. Deborah brought an action alleging that the July deed was forged and claiming that the property was rightfully hers.[2] Following a jury-waived trial, a judge of the Land Court determined that, because the acknowledgment of the July deed was defective, its recording did not give constructive notice to Deborah of the conveyance and the deed was not enforceable against her. This is an issue of first impression, not yet addressed by our appellate courts. On appeal, Harold argues (1) pursuant to exceptions provided in the recording statute, his deed was not required to be recorded, or, alternatively,the recording statute’s safe harbor provision protects his claim to the property; (2) the judge’s decision exceeded the scope of the pleadings; (3) because of clearly erroneous findings, there was insufficient evidence to support the judgment; and (4) the judge erred in denying Harold’s motion to amend his counterclaim. We affirm. Background. We summarize the relevant facts as found by the judge in his memorandum of decision and postjudgment order, supplemented as necessary with undisputed facts from the record. We reserve certain details for discussion with the specific issues raised. Deborah and Harold are two of the six children of Ethel and Harold Allen, Sr. (Harold, Sr.). […]
Massachusetts State Automobile Dealers Association, Inc., et al. v. Tesla Motors MA, Inc., et al. (Lawyers Weekly No. 10-163-14)
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-11545 MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION, INC., & others[1] vs. TESLA MOTORS MA, INC., & another.[2] Norfolk. May 6, 2014. – September 15, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Motor Vehicle, Dealer. Consumer Protection Act, Motor vehicle franchise, Standing. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on October 16, 2012. A motion to dismiss was heard by Kenneth J. Fishman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Thomas S. Vangel (James F. Radke with him) for Massachusetts State Automobile Dealers Association, Inc., & others. Richard P. Campbell for the defendants. John E. Kwoka, Jr., pro se, amicus curiae, submitted a brief. BOTSFORD, J. In Beard Motors, Inc. v. Toyota Motor Distribs., Inc., 395 Mass. 428 (1985) (Beard Motors), this court held that a Massachusetts motor vehicle dealer did not have standing to maintain an action for an alleged violation of G. L. c. 93B, § 12A, against a motor vehicle distributor with which it was not affiliated. In the case before us, the principal question is whether amendments to the statute in 2002 broadened the scope of standing under c. 93B, such that Massachusetts motor vehicle dealers now have standing to maintain an action for an alleged violation of the statute against unaffiliated motor vehicle manufacturers or distributors. We hold that the 2002 amendments did not have this effect. Chapter 93B is aimed primarily at protecting motor vehicle dealers from injury caused by the unfair business practices of manufacturers and distributors with which they are associated, generally in a franchise relationship. We therefore affirm the judgment of the Superior Court dismissing the plaintiffs’ action on the basis of lack of standing. Procedural background. The plaintiff Massachusetts State Automobile Dealers Association, Inc. (MSADA), is a Statewide organization that represents the interests of new automobile and truck franchised dealerships in Massachusetts; two of the other plaintiffs, Connolly Buick Co., Inc., doing business as Herb Connolly Chevrolet, and Jake Kaplan’s Inc., doing business as Fisker Norwood, are Massachusetts motor vehicle dealers. The plaintiffs commenced this action against Tesla Motors, Inc., an automobile manufacturer, and its Massachusetts subsidiary, Tesla Motors MA, Inc., alleging that the defendants were operating “an automobile dealership showroom in the Natick Mall without a license […]
Categories: News Tags: 1016314, Association, Automobile, Dealers, Inc., Lawyers, massachusetts, Motors, state, Tesla, Weekly
Bower v. Bournay-Bower (Lawyers Weekly No. 10-162-14)
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-11478 WILLIAM J. BOWER vs. MICHELLE A. BOURNAY-BOWER. Norfolk. May 8, 2014. – September 15, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Divorce and Separation, Parent coordinator. Constitutional Law, Judicial review, Delegation of powers. Due Process of Law, Right to hearing, Delay in rendering decision. Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on March 25, 2009. A complaint for contempt, filed on October 13, 2011, was heard by Christina L. Harms, J., and entry of judgment was ordered by Jennifer M.R. Ulwick, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan E. Stenger (Francine Gardikas with her) for Michelle A. Bournay-Bower. Lisa A. Ruggieri & Jocelyn A. Thomsen for William J. Bower. Kirsten V. Mayer, Nicole P. Cate, Sara Perkins Jones, Susan R. Elsen, & Julia E. Schlozman, for Massachusetts Law Reform Institute & others, amici curiae, submitted a brief. SPINA, J. This case raises an issue of first impression in the Commonwealth regarding the authority of a judge in a divorce or custody proceeding in the Probate and Family Court to appoint, over the objection of one of the parties, a “parent coordinator”[1] to assist parents in resolving conflicts that arise in implementing the custody and visitation provisions set forth in a final judgment of divorce. Additionally, this case raises the issue whether a judge may grant binding decision-making authority to the parent coordinator, again without the consent of both parties, to resolve conflicts that arise between the parents regarding custody or visitation.[2] We transferred this case from the Appeals Court on our own motion, and we conclude that the judge in this case exceeded the bounds of inherent judicial authority in appointing, without all parties’ approval, a parent coordinator with binding decision-making authority. We further conclude that the breadth of authority vested in the parent coordinator constitutes an unlawful delegation of judicial authority. Accordingly, we vacate the order.[3] 1. Background. a. Facts. The parties in this case, whom we shall call the mother and the father, are divorced parents of four minor children. The initial complaint for divorce was filed in March, 2009. After more than two years of litigation, a judgment of divorce nisi entered […]
Minkina v. Frankl, et al. (Lawyers Weekly No. 11-114-14)
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-1480 Appeals Court NATALY MINKINA vs. LAURIE A. FRANKL & others.[1] No. 13-P-1480. Suffolk. May 12, 2014. – September 15, 2014. Present: Cypher, Kafker, & Hanlon, JJ. Attorney at Law, Malpractice, Withdrawal. Anti-Discrimination Law, Arbitration, Employment. Arbitration. Practice, Civil, Notice of appeal, Amendment of complaint, Costs. Civil action commenced in the Superior Court Department on May 11, 2009. A motion to strike expert testimony was heard by Edward P. Leibensperger, J.; a motion for leave to file a second amended complaint was considered by Janet L. Sanders, J.; and the case was heard by Peter M. Lauriat, J., on a motion for summary judgment. Richard L. Neumeier for the plaintiff. Kevin G. Powers (Robert S. Mantell with him) for the defendants. KAFKER, J. Nataly Minkina contends that her former counsel, Laurie A. Frankl, Jonathan J. Margolis, and Rodgers, Powers and Schwartz, LLP (hereinafter, collectively, RPS), committed legal malpractice during their representation of her in an employment discrimination action. More particularly, she claims that RPS mishandled its opposition to a motion to compel arbitration by failing to recognize that the reasoning in a then-controlling decision of this court, Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347 (1997) (Mugnano-Bornstein), would be rejected by the Supreme Judicial Court in a later decision, Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390 (2009) (Warfield). Minkina also contends that RPS breached its fiduciary duty to her when it withdrew from her representation after she criticized the performance of Frankl and other lawyers in the firm and accused at least Frankl of unprofessional conduct. In addition, Minkina contends that the judge abused his discretion in denying her second motion to amend her complaint. For the reasons stated below, we affirm the decision of the Superior Court judge rejecting the malpractice and breach of fiduciary duty claims and allowing the defendants’ motion for summary judgment. We also conclude that the denial of the second motion to amend the complaint was not an abuse of discretion. Background. In 2002, the plaintiff, Nataly Minkina, was hired as a physician by the Affiliate Physicians Group of Beth Israel Deaconess Medical Center (APG). At that time, she executed an employment agreement that contained an arbitration clause. The clause provided: “In the event that any dispute arising out of or relating […]
Commonwealth v. Holmes (Lawyers Weekly No. 10-161-14)
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-11557 COMMONWEALTH vs. MARLON HOLMES. September 12, 2014 Imprisonment, Credit for time served. Practice, Criminal, Sentence. This case is before the court for further appellate review. The Appeals Court, in a divided opinion, held that the defendant must be credited for time served on a sentence for a vacated conviction against sentences that he was serving on later convictions. Commonwealth v. Holmes, 83 Mass. App. Ct. 737 (2013). The Commonwealth argues that the defendant is not entitled to credit for time served on an earlier conviction that was unrelated to the later convictions, where he had completed serving the sentence before committing the new crimes. It argues further that allowing credit in such circumstances implicates the prohibition against banking time. We agree with the Commonwealth, and affirm the Superior Court’s order denying the defendant’s motion for credit. Background. The facts are fully set forth in the Appeals Court’s opinion. Commonwealth v. Holmes, supra at 737-738. In short, in 1997, the defendant pleaded guilty to unlawful possession of a controlled substance (class B) with intent to distribute. After he completed serving his sentence on that conviction in 1999, he was released. In 2003, the defendant pleaded guilty to two counts of unlawful possession of a firearm, both committed in 2002, and two subsequent offender counts in violation of G. L. c. 269, § 10G (b). He was sentenced to serve two concurrent terms of from twelve years to twelve years and one day and credited for his pretrial confinement. In 2005, while he was incarcerated for the 2003 convictions, the defendant moved to withdraw his guilty plea for the unrelated 1997 offense on the ground of ineffective assistance of counsel. That motion was allowed in 2006, and the underlying complaint for the 1997 offense was eventually dismissed.[1] In 2011, while still incarcerated, he filed a motion “for time served on reversed or revised prior sentences under [G. L. c. 279, § 33A(6)],” seeking credit for the earlier sentence that he had completed serving on the vacated 1997 conviction. A Superior Court judge denied his motion for credit. The defendant appealed. The Appeals Court reversed the denial of the defendant’s motion and credited him for the time that he had served on the vacated 1997 conviction against the sentences that he was serving on the 2003 convictions. Commonwealth v. Holmes, supra at […]
Commonwealth v. Wall (Lawyers Weekly No. 10-160-14)
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-09850 COMMONWEALTH vs. GREGORY A. WALL. Norfolk. May 9, 2014. – September 11, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, JJ.[1] Homicide. Intoxication. Malice. Evidence, Intoxication, Telephone conversation, Relevancy and materiality, Inflammatory evidence, State of mind, Impeachment of credibility, Medical record. Witness, Impeachment. Practice, Criminal, Capital case, State of mind, Assistance of counsel, Instructions to jury, Objections to jury instructions. Constitutional Law, Public trial. Indictment found and returned in the Superior Court Department on May 30, 2002. The case was tried before Judith Fabricant, J.; a motion for a new trial, filed on November 16, 2009, was heard by her; and a second motion for a new trial, filed on January 11, 2013, was considered by her. Matthew A. Kamholtz for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. CORDY, J. Just before midnight on May 3, 2002, police responded to 16 Sumner Street in Quincy after a neighbor telephoned to report that she had just witnessed the defendant, Gregory A. Wall, moving a trash barrel with a human leg protruding from it across their shared backyard. On arrival, the officers observed a trail of red droplets leading to the defendant’s back door. Through a window in the door, one of the officers observed the legs of someone standing next to a plastic bag containing two human feet. On entering the apartment, the officers discovered a horrific scene. A woman’s body had been dismembered. The defendant was found moments later in his bedroom closet, his clothes and hands stained with the victim’s blood. He would give several explanations to police, generally claiming that, after the victim came to his apartment, he passed out due to his consumption of alcohol and prescription medication (Ativan) and woke up to find the victim dead. He was taken to the Quincy Medical Center for observation, where doctors determined that his blood alcohol content (BAC) was 0.21 per cent. The defendant was charged with murder in the first degree, and the Commonwealth proceeded on theories of premeditation, extreme atrocity or cruelty, and felony-murder.[2] Defense counsel, relying on evidence of the defendant’s intoxication and statements the defendant made to police, alleged that a third party — most likely the victim’s boy friend — entered the house and killed the […]
Superintendent-Director of Assabet Valley Regional Vocational School District v. Speicher (Lawyers Weekly No. 10-159-14)
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-11563 SUPERINTENDENT-DIRECTOR OF ASSABET VALLEY REGIONAL VOCATIONAL SCHOOL DISTRICT vs. ANN MARIE SPEICHER. Suffolk. May 5, 2014. – September 11, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Arbitration, Authority of arbitrator, Judicial review, Award, School committee. Education Reform Act. Statute, Construction. School and School Committee, Arbitration, Suspension from employment. Public Employment, Suspension. Civil action commenced in the Superior Court Department on May 18, 2011. The case was heard by Paul E. Troy, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Tim D. Norris for the plaintiff. Sheilah F. McCarthy for the defendant. Will Evans & Quesiyah S. Ali, for Massachusetts Teachers Association, amicus curiae, submitted a brief. SPINA, J. In this case we are asked to decide whether an arbitrator exceeded his authority by reviewing the merits of a twenty-day suspension of a school librarian having professional teacher status. The librarian had been suspended for “conduct unbecoming” the librarian, pursuant to G. L. c. 71, § 42D. The arbitrator applied a just cause standard of review and overturned the suspension on the ground that the school district failed to meet its burden of proof. The school district filed an action to vacate the arbitrator’s award under G. L. c. 150C, § 11, and for declaratory relief under G. L. c. 231A. A judge in the Superior Court denied the school district’s motion for judgment on the pleadings, and allowed the librarian’s cross-motion for judgment on the pleadings, thereby confirming the arbitrator’s award. The school district appealed, and we transferred the case from the Appeals Court on our own motion. We hold that the arbitrator did not exceed his authority by reviewing the merits of the suspension. We further hold that the proper standard of review is whether the district sustained its burden of proving by a preponderance of the evidence the particular reason cited for the suspension. We affirm the judgment of the Superior Court.[1] 1. Background. The librarian, Ann Marie Speicher, had been employed as a school librarian for at least three consecutive school years by the Assabet Valley Regional School District (district) as of October 29, 2009. As such, she was considered a “teacher” under G. L. c. 71, § 41, and entitled to professional teacher status under […]
Commonwealth v. Quinn (Lawyers Weekly No. 10-158-14)
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-11554 COMMONWEALTH vs. KEVIN QUINN. Essex. May 6, 2014. – September 11, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Rape. Practice, Criminal, Cross-examination by prosecutor. Evidence, Cross-examination, Expert opinion, Communication with social worker, Relevancy and materiality. Rape-Shield Statute. Witness, Expert. Indictments found and returned in the Superior Court Department on August 29, 2007. The cases were tried before Leila R. Kern, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Eric S. Brandt, Committee for Public Counsel Services, for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. GANTS, J. This case requires us to examine the line that separates permissible expert testimony regarding the behavioral characteristics of sexually abused children from impermissible expert testimony that implicitly vouches for the credibility of the victim witness. Because we conclude that the prosecutor in this case, over objection, elicited expert testimony during cross-examination of the victim’s therapist that crossed that line, and because we conclude that the error was prejudicial, we vacate the defendant’s convictions and remand for a new trial. Background. A Superior Court jury convicted the defendant on one indictment alleging forcible rape of a child under sixteen years of age and two indictments alleging indecent assault and battery of a child under the age of fourteen.[1],[2] The Appeals Court affirmed the convictions. Commonwealth v. Quinn, 83 Mass. App. Ct. 759 (2013). We granted the defendant’s application for further appellate review. We summarize the evidence presented at trial. The defendant, the boy friend of the victim’s mother, lived with the victim and her mother for approximately ten years from July, 1997, to June, 2006. The victim testified that, in a short period of time after her seventh birthday in September, 1997, the defendant sexually abused her on three occasions. The incidents occurred in largely the same way: when her mother was not home in the evening, the defendant entered the victim’s playroom, grabbed her and reached under her nightgown and underwear, touched her chest, put his hands “all over [her] body,” and inserted his finger into her vagina. In the last of these incidents, the defendant forced her hand onto his penis and moved it up and down. She told the defendant that she was “going […]
Commonwealth v. Cahoon (Lawyers Weekly No. 11-112-14)
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-1999 Appeals Court COMMONWEALTH vs. KEVIN F. CAHOON. No. 12-P-1999. Barnstable. February 3, 2014. – September 10, 2014. Present: Cohen, Hines, & Maldonado, JJ.[1] Sex Offender. Constitutional Law, Sex offender, Self-incrimination. Evidence, Sex offender. Civil action commenced in the Superior Court Department on June 17, 2011. The case was tried before Robert C. Rufo, J. Joseph M. Kenneally for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth. COHEN, J. After a jury trial in Superior Court, the defendant was found to be a sexually dangerous person (SDP), pursuant to G. L. c. 123A, § 12. The defendant’s appeal presents two issues: (1) whether his motion for a directed verdict should have been allowed on the ground that the Commonwealth failed to establish that he is likely to reoffend sexually; and (2) whether the admission (without objection) of evidence that he terminated his participation in sex offender treatment entitles him to a new trial. We affirm. Background. On January 22, 1992, the defendant was convicted of one count of rape of a child and one count of indecent assault and battery on a child under fourteen years of age, arising from the molestation of his girlfriend’s three and one-half year old daughter.[2] Eight years into his sentence, on March 9, 2000, the defendant signed a waiver of confidentiality and began participating in sex offender treatment. He completed phases one and two; however, on June 1, 2001, he refused further treatment and therefore did not complete phases three and four.[3] On the issue of sexual dangerousness, the Commonwealth presented two expert witnesses, Dr. Carol Feldman, who testified as a forensic psychologist retained by the Commonwealth, and Dr. Michael Henry, who was assigned as a qualified examiner in the case. Dr. Feldman testified that the defendant “dropped out” and “refused” further treatment; Dr. Henry also testified that that the defendant “quit” and “dropped out.” Both experts linked the failure of the defendant to complete treatment to his risk of reoffense. The defendant presented four experts: Dr. Leonard Bard, Dr. Joseph Plaud, Dr. Katrin Rouse-Weir, and Dr. Michael Murphy, who was the other qualified examiner in the case. These experts also commented upon the limited extent of the defendant’s treatment, and one of them, Dr. Rouse-Weir, testified that “dropping out” of treatment is a factor […]
Commonwealth v. Torres (Lawyers Weekly No. 11-113-14)
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-1733 Appeals Court COMMONWEALTH vs. FELIX TORRES. No. 12-P-1733. Worcester. March 7, 2014. – September 10, 2014. Present: Katzmann, Rubin, & Carhart, JJ. Rape. Indecent Assault and Battery. Practice, Criminal, Public trial, Severance, Trial of indictments together, Mistrial. Constitutional Law, Public trial. Evidence, First complaint, Prior misconduct, Pattern of conduct, Relevancy and materiality, Redirect examination. Indictments found and returned in the Superior Court Department on September 12, 2006. The cases were tried before Bruce R. Henry, J.; a motion for a new trial, filed on January 21, 2011, was heard by him; and a motion for reconsideration was considered by him. Angela G. Lehman for the defendant. Stephen J. Carley, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from his convictions of seven counts of indecent assault and battery on a child and eight counts of rape of a child, and from the denials of his motions for a new trial and to reconsider. The defendant argues that the trial judge erred in concluding that the court room was not closed to the public, failing to sever the counts sua sponte, admitting improper first complaint testimony, and making various evidentiary rulings. We affirm. Background. The jury were presented with the following evidence. The defendant was in an intermittent relationship with Sonia Nieves. They had two children together, Kim[1] and David.[2] Nieves also had a child from a different relationship, Sara.[3] Nieves’s three sisters, Nina,[4] Ann,[5] and Beth,[6] occasionally lived with her and the defendant. The victims, Kim, Nina, and Ann, all testified at trial. Kim testified that the defendant touched her for the first time when she was seven or eight years old. He entered her bedroom while Sara was sleeping in the room and touched Kim’s breast, buttocks, and vagina with his hand. On another occasion, the defendant climbed into Kim’s bed, again while Sara was in the room, touched Kim’s vagina with his penis, and put his penis inside Kim’s mouth. He was silent during both incidents. Nina testified that the defendant touched her for the first time when she was eight years old. On that occasion, he approached Nina while she was doing laundry and put his penis inside her buttocks and vagina. Then, when Nina was eleven years old, the defendant entered her bedroom […]