R.M. Packer Co., Inc. v. Marmik, LLC, et al. (Lawyers Weekly No. 11-179-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1638 Appeals Court R.M. PACKER CO., INC. vs. MARMIK, LLC & others.[1] No. 14-P-1638. Dukes. September 2, 2015. – November 25, 2015. Present: Meade, Wolohojian, & Milkey, JJ. Massachusetts Oil and Hazardous Material Release Prevention Act. Hazardous Materials. Damages, Hazardous waste contamination, Attorney’s fees. Contribution. Practice, Civil, Attorney’s fees, Costs, Findings by judge. Department of Environmental Protection. Civil action commenced in the Superior Court Department on May 8, 2009. The case was heard by Gary A. Nickerson, J., and a motion for attorney’s fees and costs was heard by him. John D. Curran for the plaintiff. Marilyn H. Vukota for Vineyard Port Hole, Inc. WOLOHOJIAN, J. At issue is whether R.M. Packer Co. (Packer) was properly found liable for attorney’s fees and costs under G. L. c. 21E, § 4A(f), after it unsuccessfully sought contribution from the defendants for costs to clean up an oil spill. In three circumstances, the statute requires that reasonable attorney’s fees and costs be awarded against a plaintiff who has sued seeking contribution for environmental clean-up costs. Those three circumstances are “[i]f the court finds that (1) the plaintiff did not participate in negotiations or dispute resolution in good faith; (2) the plaintiff had no reasonable basis for asserting that the defendant was liable, or (3) the plaintiff’s position with respect to the amount of the defendant’s liability pursuant to the provisions of this chapter was unreasonable.” G. L. c. 21E, § 4A(f), inserted by St. 1992, c. 133, § 294. Here, after a bench trial, a judge found that Packer had no reasonable basis for asserting its claim against the defendant Dockside at the time it filed suit, and accordingly awarded fees and costs under § 4A(f)(2). The judge reached this conclusion despite the fact that, before Packer filed its complaint, the Department of Environmental Protection (DEP) had issued a notice of responsibility to Dockside, stating that it had reason to believe that Dockside was a “[p]otentially [r]esponsible [p]erson.” Packer argues that DEP’s position vis à vis Dockside’s potential responsibility provided a reasonable basis upon which Packer could sue Dockside for contribution. Hence, Packer argues, the judge erred in awarding fees and costs under § 4A(f)(2). We do not need to reach this issue because, on the facts found by the judge (and not challenged on appeal), the award was independently proper under […]
Commonwealth v. Garrett (Lawyers Weekly No. 10-190-15)
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-11852 COMMONWEALTH vs. RAHEEM B. GARRETT. Berkshire. September 8, 2015. – November 25, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Robbery. Firearms. Evidence, Firearm, Exculpatory. Practice, Criminal, Indictment, Instructions to jury, Assistance of counsel, Lesser included offense. Indictments found and returned in the Superior Court Department on December 16, 2011. The cases were tried before John A. Agostini, J. The Supreme Judicial Court granted an application for direct appellate review. Michael J. Hickson for the defendant. John P. Bossé, Special Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant was convicted by a Superior Court jury on three indictments charging armed robbery with a firearm while masked, in violation of G. L. c. 265, § 17, the armed robbery statute.[1] To prove that the defendant was armed with a “firearm,” the Commonwealth relied on evidence that the defendant used a BB gun to perpetrate each of the robberies. The defendant appealed from his convictions, and we allowed the Commonwealth’s petition for direct appellate review. The defendant contends that the evidence was insufficient to support his convictions because a BB gun is not a “firearm” within the meaning of the armed robbery statute. The defendant maintains also that the indictments were facially invalid, certain errors in the jury instructions require reversal, and his trial counsel provided constitutionally ineffective assistance in several respects. Because we conclude that a BB gun does not satisfy the statutory requirement of a “firearm” within the meaning of G. L. c. 265, § 17, the defendant’s convictions of armed robbery by means of a firearm cannot stand. Accordingly, those convictions must be vacated, and the matter remanded to the Superior Court for entry of judgments of guilt on the lesser included offense of unarmed robbery. Background. We recite the facts the jury could have found, reserving certain facts for later discussion of individual issues. In 2011, the defendant was experiencing financial difficulties after he and his then live-in girl friend, Laura Methe, lost their jobs and were unable to find new employment. In an effort to improve their financial circumstances, the defendant and Methe robbed stores in the city of Pittsfield. To commit the robberies, the defendant used a BB gun that he and Methe had purchased for that purpose at a […]
Scholz, et al. v. Delp; Scholz v. Boston Herald, Inc., et al. (Lawyers Weekly No. 10-189-15)
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-11511 SJC-11621 DONALD THOMAS SCHOLZ & another[1] vs. MICKI DELP. DONALD THOMAS SCHOLZ vs. BOSTON HERALD, INC., & others.[2] Suffolk. November 4, 2014. – November 25, 2015. Present: Spina, Botsford, Duffly, & Lenk, JJ. Libel and Slander. Practice, Civil, Summary judgment, Costs. Civil action commenced in the Superior Court Department on October 12, 2007. The case was heard by John C. Cratsley, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Civil action commenced in the Superior Court Department on March 11, 2010. The case was heard by Frances A. McIntyre, J., on a motion for summary judgment, and a motion for costs was heard by her. The Supreme Judicial Court granted an application for direct appellate review. Nicholas B. Carter (Edward Foye & Seth J. Robbins with him) for the plaintiffs. Kathy B. Weinman for Micki Delp. Jeffrey S. Robbins for Boston Herald, Inc. Bruce D. Brown & Gregg P. Leslie, of the District of Columbia, & Cynthia A. Gierhart, of New York, for Reporters Committee for Freedom of the Press & others, amici curiae, submitted a brief. DUFFLY, J. In the mid-1970s, Donald Thomas Scholz, a musician, composer, recording engineer, and record producer, founded the rock band “Boston.” After many years playing in the band, Brad Delp, who was its lead singer, committed suicide on March 9, 2007. The Boston Herald, Inc., published three stories regarding Brad’s suicide, written by columnists Gayle Fee and Laura Raposa, who relied on information from Brad’s former wife, Micki Delp,[3] and various unnamed “insiders” and “friends.” Scholz filed an action for defamation in the Superior Court against Micki, arguing that the statements made by her and reported in the newspaper articles insinuated that Scholz was responsible for Brad’s suicide. Scholz later brought an action in the Superior Court for defamation and intentional infliction of emotional distress against the Boston Herald, Inc., and its two columnists (collectively, the Herald), based on the same statements as reported in the three articles. The two cases were consolidated in the Superior Court after Micki had filed a motion for summary judgment. In August, 2011, a Superior Court judge allowed Micki’s motion, Scholz appealed, and the […]
Commonwealth v. Watkins (Lawyers Weekly No. 10-188-15)
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-09950 COMMONWEALTH vs. KYLE WATKINS. Bristol. January 9, 2015. – November 24, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ. Homicide. Identification. Evidence, Identification, Disclosure of evidence, Exculpatory, Third-party culprit, Hearsay. Due Process of Law, Disclosure of evidence. Practice, Criminal, Capital case, Motion for a required finding, New trial, Disclosure of evidence, Agreement between prosecutor and witness, Prosecutor’s conflict of interest, Conduct of prosecutor, Assistance of counsel. Indictments found and returned in the Superior Court Department on September 25, 2003. The cases were tried before E. Susan Garsh, J., and a motion for a required finding of not guilty or, in the alternative, for a new trial, filed on March 21, 2011, was heard by her. Janet H. Pumphrey for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. DUFFLY, J. In June, 2005, a Superior Court jury found the defendant guilty of murder in the first degree in the April 26, 2003, shooting death of Paul Coombs on a New Bedford street.[1] The defendant appealed from his convictions and also filed in the Superior Court a motion for a required finding of not guilty, pursuant to Mass. R. Crim. P. 25(b)(2), as amended, 420 Mass. 1502 (1995), or, in the alternative, for a new trial, pursuant to Mass. R. Crim. P. 30(a), as appearing in 435 Mass. 1501 (2001). The defendant’s motion for a stay of appeal was allowed so that he could pursue his motion in the Superior Court. After conducting an extensive evidentiary hearing, the motion judge, who had been the trial judge, denied both requests made in the motion. The defendant’s appeal from that denial was consolidated with his direct appeal.[2] The defendant argues, as he did in his motion for a new trial, that there was insufficient evidence to sustain his conviction. He argues further that a new trial is required because the Commonwealth failed to make mandatory disclosures of exculpatory evidence; the judge abused her discretion in allowing the Commonwealth’s motion to exclude evidence of a third-party culprit, and in denying the defendant’s motion to exclude hearsay testimony; there was prosecutorial misconduct; and his counsel was ineffective. The defendant also asks that we exercise our extraordinary power under G. L. c. 278, § 33E, to reduce the degree of guilt. We […]
Commonwealth v. Chappell (Lawyers Weekly No. 10-187-15)
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-11687 COMMONWEALTH vs. DESHAWN CHAPPELL. Suffolk. September 11, 2015. – November 23, 2015. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ. Homicide. Deoxyribonucleic Acid. Constitutional Law, Confrontation of witnesses, Fair trial. Evidence, Expert opinion, Consciousness of guilt, State of mind, Insanity. Witness, Expert. Insanity. Mental Health. Practice, Criminal, Capital case, State of mind, Confrontation of witnesses, Instructions to jury. Indictment found and returned in the Superior Court Department on March 24, 2011. The case was tried before by Jeffrey A. Locke, J. Stephen Neyman for the defendant. Matthew T. Sears, Assistant District Attorney (Edmund J. Zabin, Assistant District Attorney, with him) for the Commonwealth. BOTSFORD, J. On January 20, 2011, Stephanie Moulton, a residential counsellor at a mental health facility in Revere, was killed while she was at work. The defendant, a resident of the facility, was charged with her murder. Principally at issue at the defendant’s subsequent jury trial was his mental state at the time of the killing; the defendant presented a defense of lack of criminal responsibility. On October 28, 2013, the jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation. In his appeal from the conviction, the defendant argues that the trial judge erred by (1) permitting the Commonwealth to present evidence concerning deoxyribonucleic acid (DNA) testing through an expert witness who had not performed the DNA testing herself; (2) impermissibly limiting the direct examination of the defendant’s primary mental health expert witness; (3) providing the jury with an inadequate instruction regarding the consequences of a verdict of not guilty by reason of lack of criminal responsibility; and (4) failing to limit the jury’s consideration of evidence of consciousness of guilt solely to the issue of the defendant’s mental state at the time the crime was committed. He also requests relief under G. L. c. 278, § 33E. We affirm the defendant’s conviction, and after a thorough review of the record, we decline to grant relief pursuant to G. L. c. 278, § 33E. 1. Background.[1] a. The offense. We summarize the facts the jury could have found. Prior to January, 2011, the defendant was a resident of Perkins House, a moderate-intensity, residential mental health facility in the Charlestown section of Boston.[2] Following an altercation […]
Trapp, et al. v. Roden, et al. (Lawyers Weekly No. 10-186-15)
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-11863 RANDALL TRAPP & another[1] vs. GARY RODEN[2] & others.[3] Worcester. October 5, 2015. – November 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Commissioner of Correction. Imprisonment. Religion. Contract, Settlement agreement, Performance and breach. Civil action commenced in the Superior Court Department on September 30, 2010. The case was heard by Cornelius J. Moriarty, II, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard C. McFarland for the defendants. Jarrett M. Scarpaci for the plaintiffs. The following submitted briefs for amici curiae: Maggie Ellen Filler for Prisoners’ Legal Services. Joel West Williams, of Pennsylvania, & Gabriel S. Galanda, of Washington, for Huy. Yale Yechiel N. Robinson, pro se. DUFFLY, J. Randall Trapp and Robert Ferreira, who are adherents of Native American religious practices, are both incarcerated at Department of Correction (DOC) facilities. In 2010, Trapp and Ferreira filed an amended complaint in the Superior Court contending, among other things, that the DOC’s closure of the purification lodge[4] at the Souza-Baranowski Correctional Center (SBCC) violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc-1 et seq. (2012) (RLUIPA); art. 2 of the Massachusetts Declaration of Rights; and a settlement agreement reached in 2003 to resolve a prior lawsuit brought by Trapp against the DOC. The complaint named Gary Roden, Commissioner of Correction, and two DOC employees at the Massachusetts Correctional Institution at Norfolk (MCI-Norfolk) as defendants. After a jury-waived trial in July, 2012, a Superior Court judge concluded that the closure of the lodge at SBCC violated the plaintiffs’ rights under all three asserted theories, and entered a declaratory judgment in favor of the plaintiffs on those claims.[5] The DOC appealed, and we transferred the case to this court on our own motion. We conclude that the closure of the lodge at SBCC violates RLUIPA and the settlement agreement. Accordingly, we do not reach the constitutional question.[6] Background. The dispute at the crux of this case dates back two decades. In 1995, Trapp and four other inmates (Ferreira was not among them) filed a complaint in the Superior Court asserting that the DOC had violated their rights to exercise their religion. After extensive litigation over a number of years, in 2003 the parties […]
Monteiro v. Commonwealth (Lawyers Weekly No. 10-185-15)
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-11782 ROBERT E. MONTEIRO vs. COMMONWEALTH. November 20, 2015. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Assistance of counsel. The petitioner, Robert E. Monteiro, was convicted of murder in the first degree in 1983. This court affirmed the conviction. See Commonwealth v. Monteiro, 396 Mass. 123 (1985). Since then, Monteiro has filed, among other things, two motions for a new trial in the trial court and an earlier application in the county court requesting leave to appeal pursuant to G. L. c. 278, § 33E, all of which have been denied. See Commonwealth v. Monteiro, 451 Mass. 1009 (2008). He has also sought, unsuccessfully, the appointment of counsel to assist with various postconviction motions. Most recently he filed, in the county court, a “Petition to Invoke the Extraordinary Power of the Supreme Judicial [Court] Pursuant to G. L. c. 211, § 3, and G. L. c. 278, § 33E, to Answer the New and Substantial Question Related to G. L. c. 278A, § 5.” A single justice denied the petition, and Monteiro appeals. In December, 2013, Monteiro filed, in the trial court, “Defendant’s Pro Se Motion for Appointment of Counsel to Prepare and File for Forensic and Scientific Analysis Pursuant to G. L. c. 278A.” A judge referred the motion to the Committee for Public Counsel Services (CPCS) for screening. CPCS had previously declined to appoint counsel to represent Monteiro in connection with other postconviction efforts and declined again to do so here. The judge denied Monteiro’s motion, as well as his subsequent motion for reconsideration, and Monteiro then filed his petition in the county court, asking the court to order the judge to appoint counsel or, in the alternative, to grant him leave to appeal, pursuant to G. L. c. 278, § 33E, from the denial of the motion for appointment of counsel. To the extent that Monteiro sought relief pursuant to G. L. c. 211, § 3, the single justice properly denied his petition on the basis that he has an adequate alternative remedy. He can pursue, pro se, a motion for forensic or scientific analysis pursuant to G. L. c. 278A in the trial court. If he does so, and he receives an adverse ruling, he would then be free to seek leave to appeal from that ruling, pursuant to G. L. c. 278, § 33E, including any claim that the trial court erred in denying his request for appointment of counsel. Monteiro […]
Commonwealth v. Cadet (Lawyers Weekly No. 10-184-15)
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-10505 COMMONWEALTH vs. PIERRE P. CADET. Plymouth. April 10, 2015. – November 18, 2015. Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Constitutional Law, Public trial, Assistance of counsel. Practice, Criminal, New trial, Public trial, Assistance of counsel, Argument by prosecutor, Hearsay, Instructions to jury, Capital case. Evidence, Hearsay, State of mind. Protective Order. Self-Defense. Indictment found and returned in the Superior Court Department on December 17, 2004. The case was tried before by Frank M. Gaziano, J., and a motion for a new trial, filed on March 28, 2013, was heard by him. James M. Doyle for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth. DUFFLY, J. In May, 2007, the defendant was convicted by a Superior Court jury of murder in the first degree on the theory of extreme atrocity or cruelty in the stabbing death of his girl friend, Betina Francois. At trial, the defendant did not contest that he had stabbed the victim, but argued that he had done so in self-defense, after she became enraged and attacked him with two knives. In March, 2013, while his appeal from his conviction was pending, the defendant filed in this court a motion for a new trial; the appeal was stayed, and the motion was remanded to the Superior Court. The defendant’s appeal from the denial of that motion was consolidated with his direct appeal. We conclude that, although there were improprieties in the prosecutor’s conduct at trial, including in his cross-examination of the defendant and in his closing argument, they did not create a substantial likelihood of a miscarriage of justice. Accordingly, we affirm the defendant’s conviction and the denial of his motion for a new trial. Having conducted a thorough review pursuant to our duty under G. L. c. 278, § 33E, we discern no reason to reduce the verdict or to order a new trial. Background. We recite some of the facts that the jury could have found, reserving additional facts for discussion of the issues raised. 1. Commonwealth’s case. At the time of the victim’s death in late September, 2004, she and the defendant had been involved in a romantic relationship for three years. They had purchased a triple-decker house in Brockton in 2002, and lived there in the first-floor […]
Seales v. Boston Housing Authority (Lawyers Weekly No. 11-178-15)
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; SJCReportersjc.state.ma.us 14-P-1551 Appeals Court TINA SEALES vs. BOSTON HOUSING AUTHORITY. No. 14-P-1551. Suffolk. October 6, 2015. – November 16, 2015. Present: Cohen, Meade, & Agnes, JJ. Boston Housing Authority. Housing Authority. Municipal Corporations, Housing authority. Practice, Civil, Action in nature of certiorari. Administrative Law, Hearing, Substantial evidence, Judicial review. Evidence, Hearsay. Controlled Substances. Civil action commenced in the Boston Division of the Housing Court Department on January 23, 2014. The case was heard by Jeffrey M. Winik, J., on a motion for judgment on the pleadings. Angela Marcolina for the defendant. Alex Mitchell-Munevar for the plaintiff. MEADE, J. Tina Seales is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8.” The program is administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012), and related HUD regulations. In August of 2013, Seales received notice that the BHA proposed to terminate her participation in the program due to serious or repeated violation of her lease. Seales appealed the proposed termination. Following an informal hearing, a hearing officer, by a decision dated January 2, 2014, upheld the termination of Seales’s Section 8 housing subsidy. Thereafter, Seales successfully sought relief in the nature of certiorari under G. L. c. 249, § 4, in the Housing Court. On appeal from that judgment, the BHA claims that the judge erred in determining that the hearing officer improperly found that criminal or illegal activity occurred on the rental premises that constituted a serious violation of Seales’s Section 8 lease. We reverse. Background. Seales resided at 25 Drayton Avenue in the Dorchester section of Boston. She was a participant in the BHA’s Section 8 program and had been receiving Section 8 housing benefits for approximately fifteen years. Seales lived with her three children, then ages sixteen, seventeen, and nineteen. In August of 2013, Seales received notice that the BHA proposed to terminate her participation in the program due to a family member having engaged in drug-related activity and serious or repeated violation of her lease.[1] The BHA based its allegations on a Boston police incident report, a leased housing recertification questionnaire, family obligations, and the lease itself. 1. The incident report. According to the Boston police incident report, on July 9, 2013, police Officers Femino, […]
Commonwealth v. Mogelinski (Lawyers Weekly No. 10-183-15)
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-11856 COMMONWEALTH vs. MATTHEW A. MOGELINSKI. Franklin-Hampshire. September 8, 2015. – November 13, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Juvenile Court, Jurisdiction, Delinquent child. Jurisdiction, Juvenile Court, Juvenile delinquency proceeding, Transfer hearing. Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing, Nolle prosequi. Youthful Offender Act. Delinquent Child. Complaint received and sworn to in the Franklin and Hampshire Counties Division of the Juvenile Court Department on February 4, 2014. A motion to dismiss was heard by Judith J. Phillips, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. John T. Ouderkirk, Jr., for the defendant. LENK, J. In this case, we address an issue precipitated by our decision in Commonwealth v. Mogelinski, 466 Mass. 627 (2013) (Mogelinski I). There, we decided, among other things, that the Juvenile Court did not have jurisdiction over youthful offender indictments, G. L. c. 119, § 54, that issued after the defendant’s eighteenth birthday, notwithstanding the prior existence of timely filed delinquency complaints, involving much the same facts, on which nolle prosequi was subsequently entered. In the wake of our decision, the youthful offender indictments were dismissed. The Commonwealth thereafter filed, in the Juvenile Court, a delinquency complaint essentially identical to those where nolle prosequi was previously entered in order to seek a transfer hearing. See G. L., c. 119, § 72A. The question before us is whether the Juvenile Court has jurisdiction to proceed on the basis of the newly filed complaint. We conclude that it does. 1. Background and prior proceedings. On May 10, 2011, delinquency complaints were filed against the defendant alleging two counts of rape of a child under sixteen, G. L. c. 265, § 23, and three counts of indecent assault and battery of a child under fourteen, G. L. c. 265, § 13B. The defendant was then less than two weeks shy of his eighteenth birthday.[1] A summons issued on May 11, 2011, ordering the defendant to appear in the Juvenile Court on May 31, 2011. Between the date the summons issued and the date of the court appearance, the defendant turned eighteen. The defendant appeared in Juvenile Court on May 31, 2011, and was duly arraigned on the delinquency complaints. In December, 2011, the Commonwealth sought […]
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