Commonwealth v. Blanchard (Lawyers Weekly No. 11-177-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-645 Appeals Court COMMONWEALTH vs. MICHAEL BLANCHARD. No. 14-P-645. Norfolk. October 2, 2015. – November 12, 2015. Present: Katzmann, Grainger, & Maldonado, JJ. Practice, Criminal, Jury and jurors, Deliberation of jury, Instructions to jury, Voir dire, Mistrial, Confrontation of witnesses, Required finding. Constitutional Law, Jury, Confrontation of witnesses. Jury and Jurors. Evidence, Expert opinion, Cross-examination. Witness, Cross-examination. Firearms. License. Indictments found and returned in the Superior Court Department on April 16, 2010. The cases were tried before Elizabeth M. Fahey, J. William S. Smith for the defendant. Pamela L. Alford, Assistant District Attorney (Gregory P. Connor, Assistant District Attorney, with her) for the Commonwealth. GRAINGER, J. The defendant was convicted by a jury in Superior Court of murder in the second degree, G. L. c. 265, § 1, and carrying a firearm without a license, G. L. c. 269, § 10(a).[1] On appeal, he asserts that the trial judge improperly denied his motion for a mistrial, erred in admitting testimony of a substitute medical examiner, erred in preventing his line of questioning on cross-examination, and that there was insufficient evidence to support the firearms conviction. We set forth the background of the case as it pertains to the issues on appeal. Background. After the jury had reached their verdicts, but before they were announced, the prosecutor was informed by a court officer that a white three-ring binder containing the judge’s copy of the motions in limine, including documents and photographs excluded from trial and a complete unredacted set of jail telephone call transcripts, had been delivered into the jury deliberations room.[2] The prosecutor alerted defense counsel and, after reviewing the binder together, they recognized that it was not in evidence. Outside the presence of the jury, counsel then brought this matter to the attention of the judge. The judge noted that the binder was not intended to be submitted to the jury. Upon inquiry, it was discovered that the binder had been inadvertently included with the exhibits brought over to the jury room. The judge stated to counsel: “I would be shocked if I don’t have to declare a mistrial if [the jury] did review it.” The judge then conducted individual voir dire examinations of each juror about the binder in accordance with Commonwealth v. Mejia, 461 Mass. 384, 393-396 (2012) (Mejia).[3] Several jurors recalled having looked through […]
Commonwealth v. Foxworth (Lawyers Weekly No. 10-182-15)
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-10993 COMMONWEALTH vs. SCOTT FOXWORTH. Middlesex. September 11, 2015. – November 12, 2015. Present: Gants, C.J., Spina, Botsford, & Duffly, JJ. Homicide. Conspiracy. Constitutional Law, Conduct of government agents. Evidence, Conversation between husband and wife, Threat, Prior conviction, Relevancy and materiality, Immunized witness. Practice, Criminal, Capital case, Motion to suppress, Conduct of government agents, Argument by prosecutor, Instructions to jury, Agreement between prosecutor and witness. Witness, Immunity. Indictments found and returned in the Superior Court Department on June 26, 2006. A pretrial motion to suppress evidence was heard by Leila R. Kern, J., and the cases were tried before her. Kenneth I. Seiger for the defendant. Bethany Stevens, Assistant District Attorney, for the Commonwealth. SPINA, J. The defendant was convicted of deliberately premeditated murder and conspiracy to commit murder.[1] On appeal he challenges (1) the denial of his motion to suppress statements he made to a jailhouse informant whom he alleged to be an agent of the Commonwealth; (2) the admission in evidence, allegedly in violation of the spousal disqualification rule, of statements his alleged coconspirator made to the coconspirator’s spouse; (3) the admission in evidence of his prior incarceration; (4) a statement by the prosecutor in closing argument that the defendant contends was improper comment on his right not to testify; and (5) the adequacy of the judge’s instruction concerning the jury’s consideration of the testimony of an immunized witness. The defendant also urges us to grant him a new trial pursuant to our powers under G. L. c. 278, § 33E. We affirm the convictions and decline to reduce the degree of guilt or order a new trial. 1. Background. The jury could have found the following facts. We reserve other details for discussion of the issues. On January 13, 2006, at approximately 7:45 A.M., the defendant shot the victim in the head shortly after the victim arrived at the parking garage at his place of employment in Newton, killing him. This was a contract killing in which the defendant was hired by James Brescia to kill the victim, who had been dating Brescia’s wife, Stacey Rock.[2] The victim had dated Rock when they were in high school and in college, before she married Brescia. Their relationship ended in 1996. Rock and Brescia were married […]
Commonwealth v. Bell (Lawyers Weekly No. 10-180-15)
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-11444 COMMONWEALTH vs. LASTARANDRE BELL. Hampden. December 5, 2014. – November 9, 2015. Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ. Homicide. Evidence, Admissions and confessions, Inflammatory evidence, Intoxication, Photograph, Relevancy and materiality, Voluntariness of statement. Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights. Practice, Criminal, Capital case, Motion to suppress, Admissions and confessions, Voluntariness of statement, Waiver, Argument by counsel, Instructions to jury. Waiver. Indictments found and returned in the Superior Court Department on February 13, 2007. Following review by this court, 460 Mass. 294 (2011), a pretrial motion to suppress evidence was heard by John S. Ferrara, J., and the case was retried before him on an indictment charging murder in the first degree. Leslie W. O’Brien for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant was indicted on charges of murder in the first degree, armed home invasion, arson of a dwelling house, and violations of an abuse prevention order in the January 29, 2007 death of Julie Ann Nieves,[1] who died as a result of complications arising from second and third degree burns over ninety per cent of her body that she sustained on January 7, 2007. In April, 2008, a Superior Court jury convicted the defendant of murder in the first degree on a theory of felony-murder,[2] armed home invasion, arson, and violations of an abuse prevention order. The defendant’s appeal from the denial of his motion for a new trial was consolidated with his direct appeal. Because the trial judge failed to instruct the jury on second-degree felony-murder with arson as the predicate felony, and because we concluded that the arson conviction merged with the murder conviction, we vacated the murder conviction and remanded the matter to the Superior Court either for entry of a verdict of guilty of felony-murder in the second degree, or for a new trial. See Commonwealth v. Bell, 460 Mass. 294, 295 (2011). We affirmed the other convictions. Id. At his second trial in December, 2012, before a different judge, a Superior Court jury found the defendant guilty of murder in the first degree on theories of premeditation, extreme atrocity or cruelty, and felony-murder. The defendant’s appeal from that conviction is now before […]
Aquacultural Research Corporation, et al. v. Austin, et al. (Lawyers Weekly No. 11-176-15)
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-1650 Appeals Court AQUACULTURAL RESEARCH CORPORATION & another[1] vs. ROSEMARIE AUSTIN & another.[2] Barnstable. October 1, 2015. – November 9, 2015. Present: Kafker, C.J., Katzmann, & Rubin, JJ. Moot Question. Practice, Civil, Moot case, Vacation of judgment. Civil action commenced in the Orleans Division of the District Court Department on November 12, 2010. The case was heard by Brian R. Merrick, J. Matthew L. McGinnis for Old Kings Highway regional historic district commission. Michele E. Randazzo for town of Dennis. Bruce P. Gilmore, for town of Yarmouth, amicus curiae, submitted a brief. KAFKER, C.J. The primary issue presented in this appeal is the proper application of mootness principles. In particular, we first must decide whether a legal challenge to a permitting process for a wind turbine is mooted by a conservation restriction precluding the construction of the wind turbine. If so, we then must decide the status of the unreviewed town committee, regional commission, and court decisions. We conclude that the case is moot and vacate all of the unreviewed decisions.[3] The procedural posture of the case is as follows. In 2010, Aquacultural Research Corporation (ARC) sought approval to construct a 242-foot-tall wind turbine on its property in the town of Dennis (town). Pursuant to the Old King’s Highway Regional Historic District Act (Act),[4],[5] ARC applied to the town’s Old King’s Highway regional historic district committee (town committee) for a certificate of appropriateness.[6] After the town committee issued the certificate, Rosemarie Austin, a town resident, appealed as an abutter[7] to the Old King’s Highway regional historic district commission (regional commission), pursuant to § 11 of the Act.[8] Austin claimed that the proposed wind turbine, which would be located approximately three-quarters of one mile from her property, would violate the Act and devalue her property. Following a hearing, the regional commission found that the town committee “exercised poor judgment in approving the 600-kilowatt wind turbine at the proposed location.”[9] Based on this finding, the regional commission annulled the town committee decision and denied ARC’s application for the certificate of appropriateness. ARC, and the town as intervener, then appealed to the Orleans Division of the District Court Department. Following a bench trial, a District Court judge revoked and reversed the decision of the regional commission and affirmed the decision of the town committee, finding […]
Categories: News Tags: 1117615, Aquacultural, Austin, Corporation, Lawyers, Research, Weekly
Moronta v. Nationstar Mortgage, LLC, et al. (Lawyers Weekly No. 11-175-15)
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-1805 Appeals Court ELNEDIS A. MORONTA vs. NATIONSTAR MORTGAGE, LLC & another.[1] No. 13-P-1805. Norfolk. December 10, 2014. – November 5, 2015. Present: Katzmann, Hanlon, & Maldonado, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Consumer Protection Act, Mortgage of real estate, Unfair act or practice. Practice, Civil, Consumer protection case, Summary judgment. Civil action commenced in the Superior Court Department on July 23, 2010. A motion for summary judgment was heard by John P. Connor, Jr., J., and a motion for reconsideration was heard by him; a motion for summary judgment was heard by Thomas A. Connors, J.; and judgment was entered by John P. Connor, Jr., J. Irene H. Bagdoian for the plaintiff. Dean J. Wagner for Signature Group Holdings, Inc. Jennifer J. Normand for Nationstar Mortgage, LLC. MALDONADO, J. Elnedis Moronta (the borrower) appeals from final judgments entered following the decisions of judges of the Superior Court granting motions for summary judgment for the defendants on the borrower’s claims that Fremont Investment & Loan (Fremont) and its assignee, Nationstar Mortgage, LLC (Nationstar), (i) violated an injunction imposed on Fremont and later extended to Fremont’s assignees foreclosing on his mortgage without the approval of the Attorney General, (ii) violated G. L. c. 93A by structuring a mortgage consisting of high-cost loans which Fremont had no reasonable expectation the borrower could repay, and misleading the borrower as to the viability of the transaction; (iii) violated c. 93A by using unfair and deceptive loan modification practices; and (iv) should be enjoined from evicting the borrower from his home. Because we conclude that the borrower has at least raised a question of fact on his c. 93A claim, we reverse. Background. On July 9, 2004, the borrower purchased the home located at 152 Independence Avenue in Quincy for $ 348,000 financed with a mortgage loan of $ 330,600 from Wells Fargo Bank, N.A. (Wells Fargo). The Wells Fargo loan was an adjustable rate loan with an initial rate of 5.25 percent and an initial monthly payment of $ 2,137.32, including taxes and insurance. The maximum interest rate was 11.25 percent. After the rate increased to approximately eight percent and his monthly payments increased to $ 2,884, the borrower had difficulty making his monthly mortgage payments along with his credit card debt of approximately $ 630 per month. […]
In the Matter of G.P. (Lawyers Weekly No. 10-179-15)
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 SJC-11911 IN THE MATTER OF G.P. Suffolk. September 10, 2015. – November 5, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Practice, Civil, Civil commitment, Standard of proof, Hearsay, Appeal, Moot case. Uniform Trial Court Rules for Civil Commitment Proceedings. Moot Question. Words, “Likelihood of serious harm,” “Very substantial risk.” Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 1, 2015. The case was reported by Lenk, J. Ann Grant (Robert H. Weber with her) for the petitioner. Julia Kobick, Assistant Attorney General, for the respondent. Sandra J. Staub & Robert D. Fleischner, for Mental Health Legal Advisors & others, amici curiae, submitted a brief. BOTSFORD, J. We consider here questions concerning proceedings under G. L. c. 123, § 35 (§ 35), a statute that authorizes the involuntary civil commitment of a person, for care and treatment, where there is a likelihood of serious harm as a result of the person’s alcoholism or substance abuse, or both. In May, 2015, a District Court judge ordered G.P., the petitioner, committed pursuant to § 35 to the Women’s Addiction Treatment Center (WATC), a facility operated by the Department of Public Health. After an unsuccessful appeal of the commitment order to the Appellate Division of the District Court, G.P. filed a petition for relief in the county court pursuant to G. L. c. 211, § 3, to challenge and vacate the order. A single justice reserved and reported the case. G.P. is no longer committed to the facility, rendering moot her challenge to the order of commitment. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000) (Baker). Nevertheless, we decide the case because it raises important issues concerning the operation of § 35 as well as the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse (uniform § 35 rules) scheduled to go into effect on February 1, 2016, and these issues are likely to evade review on account of the relatively short duration of a commitment under § 35. See, e.g., Baker, supra; Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978) (Hagberg).[1] See also Guardianship of V.V., 470 Mass. 590, 591-592 (2015). Background. On May 4, […]
Commonwealth v. Everett (Lawyers Weekly No. 11-174-15)
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-1761 Appeals Court COMMONWEALTH vs. JOSEPH EVERETT. No. 14-P-1761. November 3, 2015. Constitutional Law, Separation of powers. Executive. Boston Municipal Court. Practice, Criminal, Dismissal, Complaint. The Commonwealth appeals from an order dismissing -– over objection — a legally valid criminal complaint that charged the defendant with operating a motor vehicle after his license had been revoked, subsequent offense, G. L. c. 90, § 23.[1] The Commonwealth contends, and we agree, that here the judge, sitting in the Boston Municipal Court, lacked the authority to dismiss the complaint. For his part, the defendant asserts the judge erred only in failing to hold a hearing pursuant to Commonwealth v. Brandano, 359 Mass. 332, 337 (1971), prior to dismissing the matter. He requests a remand for a Brandano-type hearing in the interest of justice.[2] Because the Legislature replaced the Brandano procedure with a statutory alternative when it rewrote G. L. c. 278, § 18,[3] for cases arising in the Boston Municipal, District, and Juvenile Court departments, see Commonwealth v. Powell, 453 Mass. 320, 324 (2009), we reject this request and reverse. “[A] judge is not precluded from dismissing [a complaint] that [is] legally invalid.” Commonwealth v. Cheney, 440 Mass. 568, 575 n.12 (2003). A complaint may be found invalid for a variety of reasons including, for example, that it was issued without probable cause to believe a crime was committed, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), in violation of the double jeopardy clause, or where the evidence to be presented at trial is insufficient to support a conviction. See Commonwealth v. Gordon, 410 Mass. 498, 502 (1991). See also Commonwealth v. Manning, 75 Mass. App. Ct. 829, 832 (2009). However, “the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor.” Id. at 831-832. See Commonwealth v. Tim T., 437 Mass. 592, 594-597 (2002); Commonwealth v. Cheney, supra at 574-575. The dismissal here did not result from a legal defect in the complaint. Rather, the judge essentially articulated his view that the prosecution of this defendant would not be desirable, where the defendant had taken the steps necessary to get his license reinstated and was in need of a license to obtain employment.[4] We do not fault the judge for calling the matter to the […]
H.P. Hood LLC v. Allianz Global Risks US Insurance Company (Lawyers Weekly No. 11-173-15)
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-1605 Appeals Court H.P. HOOD LLC vs. ALLIANZ GLOBAL RISKS US INSURANCE COMPANY. No. 14-P-1605. Suffolk. September 2, 2015. – November 2, 2015. Present: Meade, Wolohojian, & Milkey, JJ. Contract, Insurance. Insurance, “All risk” policy, Construction of policy, Coverage, Property damage. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on November 5, 2010. The case was heard by Christine M. Roach, J., on motions for summary judgment. Steven L. Schreckinger for the plaintiff. Kristin A. Heres for the defendant. MILKEY, J. Plaintiff H.P. Hood LLC (Hood) suffered various losses when a bottled beverage it was producing for another company failed certain quality control measures. At issue is whether those losses are covered by the “all risks” property insurance policy that Hood had purchased from the defendant, Allianz Global Risks US Insurance Company (Allianz). On cross motions for summary judgment, a Superior Court judge ruled in Allianz’s favor, concluding that Hood’s losses fell within certain exclusions to the policy. Because we agree that any potentially covered losses are excluded, we affirm. Background. The product. The essential facts are not in dispute. The product at issue is a milk-based specialty drink marketed by Abbott Laboratories (Abbott) under the trade name Myoplex. Myoplex is a “shelf stable” beverage, meaning that it is designed to require refrigeration only after its bottles are opened. In order to ensure that the product does not spoil before that, it must be manufactured and bottled under strict aseptic conditions, and its bottles must stay hermetically sealed until consumers open them. The contract between Hood and Abbott. In November of 2008, Abbott and Hood entered into a contract under which Hood would produce at least forty million bottles of Myoplex in the first year. The contract, which was termed a “contract packaging agreement,” required Hood to conduct quality control testing. Attachments to the contract, and subsequent written and oral agreements, added specificity to the particular tests and protocols that Hood agreed to use. Some of the required testing was designed to ensure that the Myoplex was contaminant-free during the production and bottling process (that is, up until the point the bottles were ready for distribution). None of that testing revealed any contamination or other problems in any of the relevant bottles. Other testing was designed to ensure that the […]