Commonwealth v. Brescia (Lawyers Weekly No. 10-077-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10686 COMMONWEALTH vs. JAMES E. BRESCIA. Middlesex. January 6, 2015. – May 8, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Practice, Criminal, New trial, Witness, Capital case. Witness, Credibility. Evidence, Credibility of witness. Indictments found and returned in the Superior Court Department on June 26, 2006. The cases were tried before Wendie I. Gershengorn, J., and a motion for a new trial, filed on April 15, 2011, was heard by Douglas H. Wilkins, J. Bethany Stevens, Assistant District Attorney, for the Commonwealth. Alan Jay Black for the defendant. LENK, J. At the defendant’s trial for murder and conspiracy, the theory of the prosecution was that the defendant had hired an assassin to kill the victim. The victim was a man with whom the defendant believed his wife was romantically involved. The defendant took the stand and testified on his own behalf, asserting that he had requested only that the victim be threatened or beaten, and that subsequently he had withdrawn from the arrangement altogether. The defendant was cross-examined on the same day and on the following day. After the jury were charged, the defendant was taken to the hospital, where it was determined that he had suffered a stroke. Testing later revealed that the stroke had occurred on the night between the first and second days of the defendant’s testimony. The jury, who never learned of the defendant’s stroke, returned guilty verdicts on both indictments. The defendant filed a motion for a new trial. Because the trial judge had retired, the motion was assigned to another judge, who held a four-day evidentiary hearing and issued a detailed written decision. The judge determined that the defendant’s then-undetected stroke had affected the course of his testimony in a manner that well might have damaged his credibility in the jury’s eyes. The outcome of the trial, the judge explained, had turned in large measure on the jury’s assessments of credibility. Concluding essentially that “justice may not have been done,” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the judge ordered a new trial. The Commonwealth appealed. We discern no significant error of law or abuse of discretion in the judge’s decision that a new trial was warranted, and we therefore affirm. 1. Background. a. The Commonwealth’s […]
Adoption of a Minor (Lawyers Weekly No. 10-076-15)
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-11797 ADOPTION OF A MINOR. Middlesex. March 2, 2015. – May 7, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Adoption, Parent’s consent. Parent and Child, Adoption. Minor, Adoption. Practice, Civil, Adoption. Notice. Consent. Words, “Lawful parent.” Petition filed in the Middlesex Division of the Probate and Family Court Department on April 25, 2014. A motion to proceed without further notice was heard by Jeffrey A. Abber, J., and a question of law was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Patience Crozier for the petitioners. Kari Hong, of California, & Mary L. Bonauto & Vickie Henry, for American Academy of Adoption Attorneys & others, amici curiae, submitted a brief. DUFFLY, J. The petitioners, J.S. and V.K, a married same-sex couple, filed a joint petition for adoption in the Probate and Family Court, seeking to adopt their son Nicholas.[1] Nicholas was born to J.S. in 2014, during the petitioners’ marriage. He was conceived through in vitro fertilization (IVF),[2] using a known sperm donor[3] selected by J.S. and V.K., whose names appear on his birth certificate. The petitioners sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth, or in the event of their relocation to a State where same-sex marriage is not recognized. The petitioners filed a motion to proceed with the adoption without further notice, arguing that, as Nicholas’s lawful parents, they could consent to the adoption, no other consent was necessary, and no notice to any other person was required under G. L. c. 210, § 4. While recognizing the petitioners as Nicholas’s legal parents in Massachusetts, a Probate and Family Court judge issued an interlocutory order denying the motion, and reserving and reporting to the Appeals Court the question “whether the lawful parents of a child must give notice to the known biological father/sperm donor pursuant to G. L. c. 210, § 2,” in conjunction with their petition for adoption. We transferred the case to this court on our own motion to consider the correctness of the judge’s ruling. See Roberts v. Enterprise Rent-A-Car Co. of Boston, Inc., 438 Mass. 187, 188 & n.4 (2002), citing O’Brien v. Dwight, 363 Mass. 256, 276 (1973).[4] We […]
Christakis v. Jeanne D’Arc Credit Union, et al. (Lawyers Weekly No. 10-075-15)
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-11758 PAGONA CHRISTAKIS vs. JEANNE D’ARC CREDIT UNION & others.[1] Suffolk. January 6, 2015. – May 6, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Lien. Bankruptcy, Discharge. Judgment, Default. Practice, Civil, Execution, Default. Civil action commenced in the Land Court Department on October 17, 2013. The case was heard by Keith C. Long, J., on motions for summary judgment, and a motion for entry of judgment by default was also heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David G. Baker for the plaintiff. Sandra M. Boulay for Jeanne D’Arc Credit Union. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. GANTS, C.J. The issue on appeal is whether judicial liens on real property remain valid after the owner of the property receives a discharge under Chapter 7 of the Bankruptcy Code. We conclude that the judicial liens survive the discharge where, as here, the Bankruptcy Court judge did not avoid them.[2] Background. The plaintiff, Pagona Christakis, filed a complaint in the Land Court to remove judicial liens that had attached to real property she owned in Billerica after three creditors obtained final judgments against her. Only one creditor defendant, Jeanne D’Arc Credit Union (credit union), filed an answer. The other two creditor defendants, Harvest Credit Management VII, LLC (Harvest), and Citibank (South Dakota), N.A. (Citibank), failed to respond. The plaintiff moved for entry of judgment by default against Harvest and Citibank and for summary judgment against the credit union; the latter cross-moved for summary judgment. In denying the plaintiff’s motions and allowing the credit union’s motion, the judge concluded that “[t]he defendants’ liens remain, subject to potential review by the [B]ankruptcy [C]ourt to determine if they impair exempt property.” The judge then entered judgment in favor of all the defendants, including the defaulting defendants. The plaintiff appealed, and we transferred the case to this court on our own motion. We summarize the relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiff. The defendants are creditors of the plaintiff, apparently for unpaid credit card bills.[3] Each defendant sued the plaintiff to collect the unpaid debt and obtained […]
Commonwealth v. Sylvia (Lawyers Weekly No. 11-042-15)
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 14-P-364 Appeals Court COMMONWEALTH vs. MICHAEL SYLVIA. No. 14-P-364. Bristol. January 9, 2015. – May 5, 2015. Present: Katzmann, Sullivan, & Blake, JJ. Arrest. Resisting Arrest. Practice, Criminal, Required finding. Indictment found and returned in the Superior Court Department on October 26, 2012. The case was tried before Robert J. Kane, J. Thomas C. Foley for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. KATZMANN, J. Having been convicted by a Superior Court jury of resisting arrest, the defendant appeals. He contends that the evidence was insufficient to support a conviction under the second prong of the resisting arrest statute, “using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B(a)(2), inserted by St. 1995, c. 276. We affirm. Background. Under the familiar standard, on appeal the evidence is viewed in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (citation omitted). Here, the analysis begins when Officer Kenneth Mendes advised the defendant that he was subject to arrest, and continues through the defendant’s flight and physical resistance to the officer’s efforts to place the defendant into physical custody. The officer first made contact with the defendant, for whom he had an arrest warrant, when, while patrolling in a cruiser with his partner in a high crime area, he noticed the defendant walking on a New Bedford street shortly before 2 A.M. The officer exited the cruiser and told the defendant that he had lawful authority to place him under arrest. The defendant, saying “no” and shaking his head in a manner understood by the officer to mean “no,” fled on foot. The officer observed the defendant continuously hold the waistband of his pants with one hand as he fled. Seeking to immobilize the defendant, the officer, while chasing him, deployed his “Taser”[1] to no effect. Eventually, the officer was able to grab onto the defendant’s shoulder and jacket, but the defendant was able to turn and shuck the jacket. The foot pursuit continued, as the defendant maintained his hold on the waistband of his pants, through a parking lot and […]
Doe No. 203108 v. Sex Offender Registry Board (Lawyers Weekly No. 11-043-15)
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-848 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 203108 vs. SEX OFFENDER REGISTRY BOARD. No. 13-P-848. Suffolk. November 5, 2014. – May 5, 2015. Present: Cypher, Fecteau, & Massing, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing, Substantial evidence. Practice, Civil, Waiver. Waiver. Civil action commenced in the Superior Court Department on July 24, 2009. The case was heard by Heidi E. Brieger, J., on a motion for judgment on the pleadings. Inna Landsman for the plaintiff. Patrick M. Grogan for the defendant. CYPHER, J. In Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass. App. Ct. 67, 75 (2012) (Doe No. 6904), we held that for the Sex Offender Registry Board (board) to carry out its statutory duty to classify incarcerated sex offenders according to their “current risk to reoffend,” the board must conduct its classification proceedings “at a reasonable time prior to release from incarceration.” In this appeal, Doe No. 203108 (Doe) claims that his classification hearing, held some seven months before his earliest possible release date (if parole were granted, December, 2009) and approximately twenty months before his ultimate release (in January, 2011) was unreasonably premature. In these circumstances — and because Doe did not raise this issue before the board but rather raised the claim for the first time during judicial review under G. L. c. 30A, § 14, of the final agency determination, eight months after his release — we conclude that the board did not act unreasonably. Accordingly, we affirm the Superior Court’s judgment affirming the board’s designation of Doe as a level three sex offender. Background. Doe’s obligation to register as a sex offender arises from two convictions of statutory rape, G. L. c. 265, § 23, involving a first victim, and from one conviction of assault with intent to commit rape, G. L. c. 265, § 24, involving a second victim. The statutory rape convictions are based on two separate incidents with a thirteen year old girl when Doe was eighteen. The assault with intent to rape conviction arises out of an incident with a twenty-one year old woman when Doe was nineteen. He pleaded guilty to all of the above charges on January 18, 2008.[1] Doe received concurrent State prison sentences of four to six years with respect to […]
Commonwealth v. Alphonse (Lawyers Weekly No. 11-044-15)
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-1944 Appeals Court COMMONWEALTH vs. GAETJENS ALPHONSE. No. 13-P-1944. Plymouth. December 2, 2014. – May 5, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Practice, Criminal, Argument by prosecutor, Instructions to jury, Sequestration of witnesses, Presence of defendant. Complaint received and sworn to in the Brockton Division of the District Court Department on May 29, 2012. The case was tried before James J. McGovern, J. Barry A. Bachrach for the defendant. Audrey Anderson, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Gaetjens Alphonse, of assault and battery.[1] The defendant asks us to reverse the conviction, arguing that he was prejudiced by the prosecutor’s improper closing argument, to which he objected. The defendant argues that the prosecutor’s remarks that the defendant had the opportunity to lie and tailor his testimony because he was not sequestered as were the other witnesses constituted reversible error, and that the judge’s curative instruction enhanced rather than cured the error.[2] We agree. 1. Factual background. The jury heard the following testimony. The wife of the defendant, Sandy Alphonse[3], testified that she arrived home with their two children — four and six years old — and their nephew at approximately 3:00 A.M. on May 27, 2012. Upon arrival, Sandy and the defendant began to argue. The six year old and the nephew went to their rooms, while Sandy carried the four year old inside the house. The nephew had Sandy’s cellular telephone (cell phone). While Sandy was carrying the four year old, the defendant began yelling and swearing at her and poked at her forehead. Sandy said to the defendant, “[O]h yeah, you want to hit me?” The defendant responded that he wanted to hit her and that she deserved it, but instead of hitting her, he said he was leaving. Sandy walked away from the defendant and went to her room. The defendant followed her. Sandy testified that the defendant then punched her in the face while she was holding their four year old child. Sandy put the child down, who was yelling for the defendant to stop, grabbed a broom, and hit the defendant in the back with the broom. The defendant went into the nephew’s room and locked the door. Sandy started yelling and said that if the defendant didn’t give her […]
Commonwealth v. Gordon (Lawyers Weekly No. 11-045-15)
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-1626 Appeals Court COMMONWEALTH vs. JAMES A. GORDON. No. 13-P-1626. Essex. November 14, 2014. – May 5, 2015. Present: Trainor, Agnes, & Maldonado, JJ. Search and Seizure, Emergency. Constitutional Law, Search and seizure. Practice, Criminal, Motion to suppress, Findings by judge. Complaint received and sworn to in the Peabody Division of the District Court Department on May 17, 2012. A pretrial motion to suppress evidence was heard by Richard A. Mori, J. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Jane D. Prince for the defendant. AGNES, J. In this case we consider whether the emergency aid exception to the warrant requirement justified the conduct of Peabody police officers who responded to a 911 telephone call about a disturbance in a particular apartment on Washington Street and then, based on additional information gathered at the scene, entered the apartment without a warrant. We conclude that the police had an objectively reasonable basis to conclude that the person who requested police assistance might be inside the apartment and in need of emergency aid, and that the warrantless entry did not violate the defendant’s rights under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. Accordingly, we reverse the order allowing the defendant’s motion to suppress evidence seized as a result of the execution of a search warrant following the warrantless entry.[1] Background. We draw the facts from the judge’s findings of fact, and additional evidence from the two witnesses (Officer Coup and Sergeant Zampitella) who testified at the hearing on the motion to suppress, and who were credited by the judge.[2] At approximately 8:20 P.M. on May 9, 2012, an unidentified female telephoned the Peabody police department on its recorded 911 telephone line from Paddy Kelly’s bar (bar), located at 154 Washington Street. The bar is part of a building that contains three residential apartments.[3] The caller reported a disturbance in apartment number one. Peabody police Officers Coup and Cecil, as well as Sergeant Zampitella, were dispatched to the scene, arriving within minutes. […]