Pugsley v. Police Department of Boston, et al. (Lawyers Weekly No. 10-133-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11740 SEAN PUGSLEY vs. POLICE DEPARTMENT OF BOSTON & others.[1] Suffolk. January 6, 2015. – July 31, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Boston. Municipal Corporations, Police. Police, Hiring. Anti-Discrimination Law, Sex, Bona fide occupational qualification. Employment, Discrimination. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on June 2, 2011. The case was heard by Carol S. Ball, J., on motions for summary judgment, and entry of final judgment was ordered by Frances A. McIntyre, J. The Supreme Judicial Court granted an application for direct appellate review. Joseph L. Sulman (David Isaac Brody with him) for the plaintiff. Nicole I. Taub for police department of Boston. Nicholas A. Ogden, Assistant Attorney General (Ronald F. Kehoe, Assistant Attorney General, with him) for Human Resources Division & another. The following submitted briefs for amici curiae: Jamie Ann Sabino & Leah Kaine for The Women’s Bar Association of Massachusetts. Ralph C. Martin & Lisa A. Sinclair for Northeastern University. Simone R. Liebman & Constance M. McGrane for Massachusetts Commission Against Discrimination. CORDY, J. The plaintiff, Sean Pugsley, brought a claim of sex discrimination against defendants Boston police department (department) and the Commonwealth’s Human Resources Division (division) alleging a violation of G. L. c. 151B and of the Massachusetts Civil Rights Act, G. L. c. 12, § 11I. The plaintiff’s claim arises from the department’s preferential treatment of females in hiring candidates for the December, 2010, police academy class. Summary judgment was entered for the defendants on the discrimination claim, G. L. c. 151B.[2] For the reasons stated herein, we vacate the judgment of the Superior Court and remand the case for entry of a judgment of dismissal for lack of standing. 1. Background. Under G. L. c. 31 and the division’s personnel administration rules (rules), the department appoints entry-level police officers from a “main certification” list generated by the division at the department’s request. The division creates this list by ranking candidates on an eligibility list according to their scores on the most recent civil service examination (examination). The eligibility list is then augmented by candidates for “reemployment,”[3] and candidates who possess statutory preferences, including veterans’ preferences. The candidates for reemployment are required to be placed first on the main certification list, followed by those with statutory preferences,[4] […]
Rosencranz v. Commonwealth (Lawyers Weekly No. 10-134-15)
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-11783 JAMES ROSENCRANZ vs. COMMONWEALTH. July 31, 2015. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Speedy trial, Complaint, Dismissal, Interlocutory appeal. James Rosencranz appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. That petition sought relief from the order of a Boston Municipal Court judge denying Rosencranz’s motion to dismiss a criminal complaint on the ground that he had not been brought to trial within the twelve-month period provided by Mass. R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996). The appeal is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). We affirm the judgment of the single justice. It is established that a defendant in a criminal case is not entitled to appeal from the denial of a motion to dismiss prior to trial. See Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002). It is also settled that G. L. c. 211, § 3, may not be used to circumvent that rule. Id. “Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.” Id. Rosencranz argues that the alleged violation of his right to a speedy trial cannot effectively be remedied through the ordinary appellate process because the pendency of the criminal proceedings in the meantime has ongoing collateral consequences for him; specifically, he contends that the pending case adversely affects his ability to practice law or to secure other employment.[1] We have previously considered and rejected arguments like this. The collateral consequences attendant to the pendency of criminal proceedings — such as “continued anxiety, community suspicion and other social and economic disabilities” — do not necessarily render the regular appellate process inadequate for speedy trial claims. Esteves v. Commonwealth, 434 Mass. 1003, 1003-1004 (2001) (distinguishing speedy trial claims from double jeopardy claims). See Owens v. Commonwealth, 465 Mass. 1010 (2013) (rejecting interlocutory review under G. L. c. 211, § 3, of denial of motion to dismiss based on claim of speedy trial violation); Cousin v. Commonwealth, 442 Mass. 1046 (2004) (same).[2] Judgment affirmed. The case was submitted […]
Categories: News Tags: 1013415, Commonwealth, Lawyers, Rosencranz, Weekly
Commonwealth v. Porter (Lawyers Weekly No. 11-082-15)
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-1668 Appeals Court COMMONWEALTH vs. KEVIN PORTER. No. 13-P-1668. Middlesex. December 8, 2014. – July 30, 2015. Present: Kafker, Grainger, & Agnes, JJ. Escape. Imprisonment, Escape. Penal Institution. Statute, Construction. Practice, Criminal, New trial, Plea. Complaint received and sworn to in the Lowell Division of the District Court Department on August 27, 2007. A motion for a new trial, filed on August 29, 2012, was heard by Patricia A. Dowling, J. Leslie B. Salter for the defendant. Randall F. Maas, Assistant District Attorney, for the Commonwealth. AGNES, J. This case presents a question not previously addressed by the Supreme Judicial Court or this court about the scope of the statute which punishes an escape or an attempted escape by “[a] prisoner of any penal institution.” G. L. c. 268, § 16.[1] In particular, we are asked to determine whether a person serving a house of correction sentence, which was ordered to be served on weekends, see G. L. c. 279, § 6A,[2] who fails to report by 6:00 P.M. on a particular weekend, as required by the terms of his sentence, has “escaped” within the meaning of § 16 because he “fail[ed] to return from any temporary release from said institution.” G. L. c. 268, § 16. For the reasons that follow, we answer that question in the affirmative, and we affirm the order denying the defendant’s motion to withdraw his guilty plea. Background. The essential facts are not in dispute. On December 14, 2007, the defendant, Kevin Porter, pleaded guilty to one count of escape from a penal institution in violation of G. L. c. 268, § 16, and was sentenced to ten days in a house of correction, to be served consecutively after completion of a sentence he was then currently serving.[3] At the time of his plea, the defendant was serving a house of correction sentence of one year, six months to serve, with the balance suspended for eighteen months. The sentencing judge specifically had ordered that sentence to be served on weekends, beginning on August 3, 2007. See G. L. c. 279, § 6A. On Friday, August 24, 2007, the defendant failed to appear by 6:00 P.M. to serve his weekend sentence as required by G. L. c. 279, § 6A. The defendant telephoned the house of correction to warn them […]
Commonwealth v. Roberts (Lawyers Weekly No. 10-132-15)
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-11825 COMMONWEALTH vs. JOSEPH L. ROBERTS. Plymouth. April 7, 2015. – July 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender. Practice, Criminal, Plea, Sentence, Waiver. Due Process of Law, Plea. Constitutional Law, Waiver of constitutional rights. Indictments found and returned in the Superior Court Department on November 8, 2002. A motion to withdraw a plea of guilty and for a new trial, filed on February 10, 2012, was heard by Raymond P. Veary, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. Jeanne M. Kempthorne for the defendant. Jeffrey G. Harris, for William J. Sylvester, amicus curiae, submitted a brief. CORDY, J. In 2005, the defendant pleaded guilty to several sexual offenses, including forcible rape, committed against three children. Neither his defense counsel nor the judge who accepted his guilty pleas informed the defendant that his sexual offense convictions could, pursuant to G. L. c. 123A, serve as a predicate for civil confinement as a sexually dangerous person for from one day to life. Although each conviction of forcible rape of a child carried a maximum sentence of life in prison, by pleading guilty to them the defendant obtained a sentence of from not less than nine to not more than thirteen years in the State prison. Subsequently, after learning of the possibility of a lifetime of civil confinement, the defendant moved to withdraw his guilty pleas. A judge in the Superior Court allowed the defendant’s motion on the ground that the failure of the plea judge to inform the defendant of possible civil commitment violated due process and Mass. R. Crim. P. 12 (c) (3) (B), as appearing in 442 Mass. 1511 (2004) (rule 12).[1] The fulcrum of the judge’s decision was an analogy to Padilla v. Kentucky, 559 U.S. 356, 369 (2010), a case in which the United States Supreme Court held that the failure of counsel to advise a noncitizen that his or her guilty plea likely would lead to deportation constituted ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. We conclude that the analogy to Padilla is inapt. Nonetheless, given the significant deprivation of liberty at stake, […]
Commonwealth v. Lopez (Lawyers Weekly No. 11-079-15)
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-1730 Appeals Court COMMONWEALTH vs. DANIEL LEE LOPEZ. No. 13-P-1730. Essex. November 10, 2014. – July 29, 2015. Present: Rubin, Brown, & Maldonado, JJ. Homicide. Felony-Murder Rule. Robbery. Practice, Criminal, Required finding, Instructions to jury, Lesser included offense. Evidence, Consciousness of guilt, Identification, Testimony before grand jury. Grand Jury. Witness. Indictments found and returned in the Superior Court Department on October 2, 2009, and February 28, 2011. After review by this court, 80 Mass. App. Ct. 390 (2011), the cases were tried before David Lowy, J. Amy M. Belger for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. RUBIN, J. The defendant was indicted on charges of first degree murder and unarmed robbery. After the trial court allowed a motion to dismiss so much of the murder indictment as was grounded on a theory of felony-murder, the Commonwealth appealed. We reversed that order, see Commonwealth v. Lopez, 80 Mass. App. Ct. 390 (2011) (Lopez I), and reinstated the indictment. An additional indictment was then brought against the defendant, charging manslaughter. On remand, after a jury trial, the defendant was acquitted of felony-murder, and was convicted of involuntary manslaughter on a theory of wanton and reckless conduct, and of unarmed robbery. On the involuntary manslaughter charge, he was sentenced to fifteen to eighteen years in State prison, and on the unarmed robbery charge he was sentenced to a subsequent five years of probation. He now appeals. We address each issue presented in turn. 1. Sufficiency of the evidence. The defendant argues first that the evidence was insufficient on the charge of involuntary manslaughter. The defendant’s argument is that the conduct that formed the basis of his involuntary manslaughter conviction (a single punch to the victim’s head) did not “involve[] a high degree of likelihood that substantial harm [would] result to another.” Commonwealth v. Welansky, 316 Mass. 383, 399 (1944) (internal citations omitted). This argument is difficult to maintain in light of our prior decision in Lopez I. We need not rehearse in detail the facts that the jury might have found viewing the evidence in the light most favorable to the Commonwealth, as they turned out to be essentially the same as those outlined in Lopez I, where the court examined the evidence before the grand […]
Commonwealth v. Fritz (Lawyers Weekly No. 10-131-15)
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-07763 COMMONWEALTH vs. SHAWN T. FRITZ. Suffolk. May 4, 2015. – July 29, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ. Homicide. Firearms. Constitutional Law, Public trial, Jury, Conduct of government agents, Confrontation of witnesses. Jury and Jurors. Evidence, Relevancy and materiality, Motive, Admission by silence, Expert opinion, Consciousness of guilt, Cross-examination, Credibility of witness. Witness, Expert, Credibility. Practice, Criminal, Capital case, New trial, Severance, Public trial, Jury and jurors, Empanelment of jury, Challenge to jurors, Conduct of government agents, Admissions and confessions, Confrontation of witnesses, Argument by prosecutor, Instructions to jury. Escape. Indictments found and returned in the Superior Court Department on December 19, 1994. The cases were tried before Vieri Volterra, J.; a motion for a new trial, filed on November 19, 2009, was considered by Mitchell H. Kaplan, J.; and a motion for a new trial, filed on December 9, 2011, was heard by Linda E. Giles, J. Rosemary Curran Scapicchio for the defendant. Paul B. Linn, Assistant District Attorney, for the Commonwealth. HINES, J. On October 24, 1996, a jury convicted the defendant, Shawn T. Fritz, of murder in the first degree of Albert Tyler Titcomb, III, on the theories of deliberate premeditation and extreme atrocity or cruelty, and of unlawful possession of a firearm.[1] The defendant’s appeal from his convictions was consolidated with his appeals from the denial of his first two motions for a new trial.[2] He raises a plethora of appellate issues and also asks that we exercise our power under G. L. c. 278, § 33E, to grant him a new trial or to reduce the verdict.[3] We affirm his convictions and the orders denying his motions for a new trial, and discern no basis to reduce the verdict or to order a new trial. Background. We summarize the facts the jury could have found. The victim was shot in the head five times at close range in the hallway of 17 Carney Court, an apartment building in the Charlestown section of Boston, at approximately 4 P.M. on November 22, 1994. He died as a result of his wounds. The murder weapon was never recovered. Five discharged .32 caliber automatic cartridge casings and two spent .32 caliber bullets were recovered in the vicinity of the victim’s body. Three […]
Lind, et al. v. Domino’s Pizza LLC, et al. (Lawyers Weekly No. 11-080-15)
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-928 Appeals Court MICHAEL A. LIND, coadministrator,[1] & another[2] vs. DOMINO’S PIZZA LLC & another.[3] No. 14-P-928. Hampden. March 12, 2015. – July 29, 2015. Present: Grainger, Meade, & Fecteau, JJ. Practice, Civil, Summary judgment, Change of ruling, Instructions to jury, New trial. Rules of the Superior Court. Negligence, Vicarious liability. Contract, Franchise agreement, Third party beneficiary. Negligence, Vicarious liability, Duty to prevent harm, Expert opinion. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Superior Court Department on June 16, 2009. A motion for summary judgment was heard by Constance M. Sweeney, J., and was reconsidered by Richard J. Carey, J.; the case was tried before him, the entry of separate and final judgment was directed by him, and a motion for a new trial was considered by him. John J. Egan for the plaintiffs. Paul G. Boylan (Kevin G. Kenneally & John F. Burke, Jr., with him) for the defendants. FECTEAU, J. Plaintiffs Michael Lind and Lisa Bishop, coadministrators of the estate of their son, Corey M. Lind (Corey), appeal from separate and final judgments entered in the Superior Court resolving all claims in favor of the defendants Domino’s Pizza LLC and Domino’s Pizza, Inc., in connection with the plaintiffs’ wrongful death action filed pursuant to G. L. c. 229, § 2.[4] The plaintiffs challenge as error the reconsideration and partial allowance by the judge, on the eve of trial, of the defendants’ motion for summary judgment.[5] The plaintiffs also challenge rulings made by the judge during trial excluding certain testimony and declining to give a particular jury instruction. Finally, the plaintiffs contend the judge erred in denying their motions for reconsideration and a new trial. We affirm. Background. The relevant facts are largely undisputed. In June, 2003, David Jenks, the president of Springfield Pie, Inc. (Springfield Pie), entered into a “Standard Franchise Agreement” (franchise agreement) with Domino’s Pizza LLC,[6] providing that Springfield Pie, the franchisee, would operate a Domino’s Pizza Store at 624 Boston Road in Springfield (Boston Road store or store). The franchise agreement generally provided that Springfield Pie would be bound by basic operational standards as set forth by Domino’s, but would otherwise exercise control over the day‑to‑day operations of the store. Springfield Pie hired Corey as a delivery driver in 2007 to work in the Boston Road […]
Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (and two companion cases) (Lawyers Weekly No. 10-130-15)
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-11818 ALFREDO TIRADO vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (and two consolidated cases[1]). Norfolk. Worcester. Suffolk. May 5, 2015. – July 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Carrier, License. Practice, Criminal, Conviction, Admission to sufficient facts to warrant finding, Continuance without a finding. Civil action commenced in the Superior Court Department on January 3, 2013. The case was heard by Kenneth J. Fishman, J., on a motion for judgment on the pleadings. Civil action commenced in the Superior Court Department on February 28, 2013. The case was heard by Robert B. Gordon, J., on a motion for judgment on the pleadings. Civil action commenced in the Superior Court Department on March 28, 2013. The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings. After consolidation of the cases in the Appeals Court, the Supreme Judicial Court granted an application for direct appellate review. David R. Marks, Assistant Attorney General, for the defendants. Dana Alan Curhan for Scott Channing. Ryan E. Alekman, for Alfredo Tirado, was present but did not argue. Cornelius J. Madera, III, for John J. Kelly, was present but did not argue. William A. Quade, for United States Department of Transportation Federal Motor Carrier Safety Administration, amicus curiae, submitted a brief. SPINA, J. In these consolidated appeals, we are asked to determine if a defendant’s admission to sufficient facts to warrant a finding of guilty and a judge’s continuance of the case without a finding (CWOF) constitute a “conviction” as that term is defined in G. L. c. 90F, § 1,[2] governing the licensure of commercial drivers. Judges in the Superior Court determined that it did not and vacated the decisions of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) upholding the suspension of the commercial drivers’ licenses (CDLs) at issue by the registrar of motor vehicles (registrar). The board and the registrar appealed. The Appeals Court consolidated the three appeals, and we granted the parties’ joint application for direct appellate review. As we explain, we […]