Afrasiabi v. Commonwealth (Lawyers Weekly No. 10-208-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11982 KAVEH L. AFRASIABI vs. COMMONWEALTH. December 31, 2015. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Kaveh Afrasiabi, is the defendant in a criminal case in the Cambridge Division of the District Court Department in which he is charged with a single count of criminal harassment in violation of G. L. c. 265, § 43A (a). He filed a motion to dismiss the complaint, alleging, among other things, that the clerk‑magistrate heard and considered perjured testimony at the show cause hearing and issued the complaint on that basis.[1] A judge in the District Court denied the motion. The petitioner then filed a pleading in the county court seeking relief pursuant to G. L. c. 211, § 3, which a single justice of this court denied without a hearing. The petitioner now appeals to the full court from the judgment of the single justice. This is the third time that this petitioner has pursued an appeal to the full court that is subject to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), but has failed to comply with the rule. See Afrasiabi v. Commonwealth, 466 Mass. 1007, 1007 (2013); Afrasiabi v. Rooney, 432 Mass. 1006, 1007 (2000). The rule requires an appellant to file a memorandum setting forth “the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” The petitioner has not filed such a memorandum; instead, he simply refiled in the full court the exact same pleading he filed in the county court — with the original date crossed out and a new date written in — which completely fails to address the single issue identified by the rule. “Failure to comply with the rule in a case where it applies is a separate and sufficient reason for us to decline to disturb the single justice’s judgment.” Rasten v. Northeastern Univ., 432 Mass. 1003, 1003 (2000), cert. denied, 531 U.S. 1168 (2001), cited with approval in Afrasiabi v. Rooney, supra. The petitioner fares no better on the merits. Here, as in the petitioner’s two previous cases, the single justice properly declined to employ the court’s extraordinary power of general superintendence because the petitioner had an adequate alternative remedy. Specifically, he can challenge the District Court’s denial of his motion to dismiss in […]
Commonwealth v. Gonzalez (Lawyers Weekly No. 10-207-15)
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-11411 COMMONWEALTH vs. STEVEN GONZALEZ. Hampden. September 11, 2015. – December 30, 2015. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ. Homicide. Firearms. Alibi. Evidence, Alibi. Constitutional Law, Assistance of counsel. Practice, Criminal, Capital case, Assistance of counsel, Instructions to jury, Cross-examination by prosecutor, Argument by prosecutor, Presumptions and burden of proof. Indictments found and returned in the Superior Court Department on December 17, 2008. The cases were tried before Mary-Lou Rup, J., and a motion for a new trial, filed on July 22, 2013, was considered by her. Joseph A. Hanofee for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. GANTS, C.J. At approximately 5 P.M. on October 17, 2008, a man approached the victim, Alexander Gautier, and shot him in the face at close range with a sawed-off shotgun, killing him. A Superior Court jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation.[1] The defendant claims on appeal that he is entitled to a new trial because he was denied the effective assistance of counsel. He contends, first, that his trial attorney called an alibi witness to testify in his defense without first interviewing her, which resulted in the witness providing testimony contradicting the defendant’s own alibi testimony. Second, he contends that his attorney should have called certain individuals to testify in his defense who witnessed the immediate aftermath of the shooting, and whose testimony would have created a reasonable doubt regarding the identification of him as the shooter. We conclude that these alleged errors were not “likely to have influenced the jury’s conclusion.” See Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). We therefore affirm the defendant’s convictions. Background. The evidence supported the following facts. The victim had controlled the sale of narcotics in the low-rise apartment buildings in the area of 244-266 Locust Street in Springfield, but left for Puerto Rico when a warrant issued for his arrest. In the victim’s absence, Sammy Ramos (Sammy), a friend who operated an automobile dealership on Locust Street, took over the drug business on the block, and permitted others to sell drugs there, including two brothers, both named Jose Rodriguez. Also during the victim’s absence, Jasson Gonzalez (Jasson) […]
Commonwealth v. Kaeppeler (Lawyers Weekly No. 10-206-15)
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-11855 COMMONWEALTH vs. DAVID J. KAEPPELER. Barnstable. September 9, 2015. – December 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ. Search and Seizure, Emergency, Consent, Plain view. Practice, Criminal, Instructions to jury, Request for jury instructions. Indictments found and returned in the Superior Court Department on April 15, 2011. A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J., and the cases were tried before him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert L. Sheketoff for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth. HINES, J. After a jury trial in the Superior Court, the defendant, David J. Kaeppeler, was convicted of rape, G. L. c. 265, § 22 (b); drugging for sexual intercourse, G. L. c. 272, § 3; and drugging to confine, G. L. c. 265, § 26B.[1] The convictions were based on events that occurred during a party at the defendant’s home in the early morning hours of May 21, 2010. Two of the guests became seriously ill after ingesting tequila supplied by the defendant. After learning that the defendant might also be ill, the police entered the defendant’s home to perform a well-being check under the “emergency aid” exception to the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. While there, the police seized two tequila bottles, one of which was later found to contain 1, 4-Butanediol, which when ingested is converted into gamma-hydroxy butyric acid (GHB), a so-called “date rape” drug. In this appeal, the defendant challenges the denial of a motion to suppress the two tequila bottles seized during the well-being check. We conclude that the police had objectively reasonable grounds to believe that the defendant may have been injured or in need of immediate medical assistance but that the seizure of the evidence was unreasonable for two reasons: (1) the seizure occurred after the defendant departed for the hospital in an ambulance and while the police remained in his home without his consent; and (2) the police retained the evidence for investigative purposes without verifying its relevance to the emergency justifying their entry into the defendant’s home. Therefore, the motion to suppress should have been allowed. The […]
Commonwealth v. Nsubuga (Lawyers Weekly No. 11-194-15)
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-1899 Appeals Court COMMONWEALTH vs. EDWARD KIZITO NSUBUGA. No. 14-P-1899. Middlesex. November 2, 2015. – December 29, 2015. Present: Agnes, Sullivan, & Blake, JJ. Alien. Practice, Criminal, Plea, Admission to sufficient facts to warrant finding, New trial. Statute, Amendment, Effective date. Constitutional Law, Judiciary, Referendum, Initiative petition. Complaint received and sworn to in the Waltham Division of the District Court Department on April 26, 2004. A motion to withdraw an admission to sufficient facts, filed on March 18, 2014, was heard by Tobin N. Harvey, J. Edward Crane for the defendant. Elizabeth Jane May, Assistant District Attorney, for the Commonwealth. SULLIVAN, J. The defendant, Edward Kizito Nsubuga, appeals from the denial of his motion to withdraw an admission to sufficient facts. The defendant contends that he was entitled to receive the statutory immigration warnings set forth in the 2004 amendments to G. L. c. 278, § 29D, as appearing in St. 2004, c. 225, § 1 (amended statute), and that the immigration warnings he received were inadequate to place him on notice that an admission to sufficient facts might result in deportation from the United States. We conclude that the 2004 amendments to the statute were not in effect at the time of his admission, and affirm. Background. The defendant was charged with assault and battery in violation of G. L. c. 265, § 13A(a), on April 26, 2004. A citizen of Uganda, he was a lawful resident alien of the United States at the time of the arrest. On October 21, 2004, the defendant admitted to sufficient facts. The defendant was provided with an immigration warning that comported with G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254 (1996 statute).[1] His case was continued without a finding, and the defendant was placed on probation. Approximately one year later, the case was dismissed. The warnings provided under the 1996 statute[2] informed the defendant that a plea of guilty might result in immigration consequences, but did not explicitly state that an admission to sufficient facts might also have immigration consequences. In January of 2014, the defendant was arrested by an agent of the office of the United States Immigration and Customs Enforcement. Deportation proceedings ensued. The defendant then filed a motion to withdraw his admission to sufficient facts. He argued that at the time of his admission he was not […]
Commonwealth v. Hernandez (Lawyers Weekly No. 10-205-15)
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-11574 COMMONWEALTH vs. ARIEL HERNANDEZ. Middlesex. October 9, 2015. – December 29, 2015. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Robbery. Armed Home Invasion. Home Invasion. Firearms. Felony-Murder Rule. Evidence, Firearm. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Motor vehicle, Probable cause, Inevitable discovery. Practice, Criminal, Capital case, Motion to suppress, Severance, Trial of indictments together. Indictments found and returned in the Superior Court Department on December 10 and 22, 2009. A pretrial motion to suppress evidence was heard by Thomas P. Billings, J., and the cases were tried before him. Dana Alan Curhan for the defendant. Casey E. Silvia, Assistant District Attorney, for the Commonwealth. HINES, J. Based on an armed robbery that occurred during the evening of October 22, 2009, and an armed home invasion and double murder that occurred several hours later, a jury convicted on indictments charging the defendant with two counts of armed robbery; two counts of murder in the first degree on the theory of felony-murder (with armed home invasion and attempted armed robbery as the underlying felonies); and one count each of home invasion, unlawful possession of ammunition, and possessing a firearm without a license. The defendant’s trial was joined with the trials of two codefendants, cousins Karon and Jamal McDougal,[1] on each of their indictments charging two counts of felony murder and one count of home invasion, and with Jamal’s indictments for firearms offenses. Karon and Jamal were acquitted of all charges. On appeal, the defendant argues (1) error in the denial of his motion to suppress the firearm used in the armed robbery and murders and (2) error in the joinder of trial with his codefendants and in the joinder of the armed robbery charges and charges relating to the home invasion. We affirm the order denying the defendant’s motion to suppress as well as the defendant’s convictions, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Motion to suppress. a. Background. Prior to trial, the defendant filed a motion to suppress the firearm evidence, claiming, on State and Federal constitutional grounds, that police lacked probable cause for the warrantless search and the search exceeded the bounds of a proper inventory search. The […]
Wing v. Commissioner of Probation (Lawyers Weekly No. 10-204-15)
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-11842 ELMER WING vs. COMMISSIONER OF PROBATION. Suffolk. September 8, 2015. – December 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Criminal Records. Evidence, Criminal records, Disclosure of evidence, Impeachment of credibility. Practice, Criminal, Record, Disclosure of evidence, Discovery, Witness, Confrontation of witnesses. Statute, Construction. Constitutional Law, Access to criminal records, Witness, Confrontation of witnesses. Due Process of Law, Disclosure of evidence, Impeachment by prior conviction. Witness, Impeachment. Destruction of Property. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 12, 2015. The case was reserved and reported by Cordy, J. Adam M. Bond for the plaintiff. Sarah M. Joss, Special Assistant Attorney General, for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth. HINES, J. In this appeal we decide whether a criminal defendant’s right to disclosure of a prospective witness’s criminal record under the mandatory discovery provisions of G. L. c. 218, § 26A, and Mass. R. Crim. P. 14 (a) (1) (D), as amended, 444 Mass. 1501 (2005), extends to a criminal record sealed under G. L. c. 276, § 100A. Elmer Wing, who stands charged with malicious destruction of property over $ 250 on a complaint issued in the Wareham Division of the District Court Department, sought an order compelling production of the complaining witness’s sealed criminal record. A judge denied the motion. The matter is now before us on a single justice’s reservation and report of Wing’s petition for relief under G. L. c. 211, § 3, to the full court. Wing claims that the mandatory disclosure required by G. L. c. 218, § 26A, and rule 14 (a) (1) (D) is not subject to an exception for sealed criminal records. He also claims that disclosure is necessary to effect his constitutional right to confrontation of the complaining witness. Reading the potentially conflicting statutes harmoniously, as we are obliged to do, we conclude that G. L. c. 218, § 26A, and rule 14 (a) (1) (D) do not require disclosure of criminal records sealed pursuant to G. L. c. 276, § 100A.[1] We conclude also that Wing has failed to establish a constitutional right to disclosure for confrontation purposes where he seeks only impeachment based on the witness’s prior criminal conviction. Background. We summarize only those aspects of the procedural history pertinent to the resolution of the issues presented in this appeal. Although the facts underlying the charge of malicious […]
Commonwealth v. St. Louis (Lawyers Weekly No. 10-203-15)
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-11862 COMMONWEALTH vs. RICHARD J. ST. LOUIS. Berkshire. September 8, 2015. – December 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Indecent Assault and Battery on a Person with an Intellectual Disability. Indecent Assault and Battery on a Retarded Person. Indecent Exposure. Intellectually Disabled Person. Mentally Retarded Person. Constitutional Law, Vagueness of statute, Assistance of counsel, Ex post facto law. Due Process of Law, Vagueness of statute. Practice, Criminal, Instructions to jury, Required finding, New trial, Assistance of counsel. Consent. Indictments found and returned in the Superior Court Department on October 24, 2011. The cases were tried before John A. Agostini, J., and a motion for a new trial was considered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael J. Hickson for the defendant. John P. Bossé, Special Assistant District Attorney, for the Commonwealth. SPINA, J. In this case, we are asked to examine whether the term “intellectual disability” in G. L. c. 265, § 13F (indecent assault and battery on a person with an intellectual disability), renders the statute unconstitutionally vague. On the effective date of November 2, 2010, the Legislature amended the statute substituting the term “mentally retarded person” with “person with an intellectual disability” as well as the words “be mentally retarded” with “have an intellectual disability.” St. 2010, c. 239, §§ 71-72. These amendments were part of a broad legislative scheme that purged the term “mentally retarded” from the General Laws. St. 2010, c. 239 (“An Act eliminating the word ‘retardation’ from the General Laws”). As a result, G. L. c. 265, § 13F, now states: “Whoever commits an indecent assault and battery on a person with an intellectual disability knowing such person to have an intellectual disability shall . . . be punished . . . .” The term “intellectual disability” is not defined by the statute. The defendant was convicted on four indictments alleging indecent assault and battery on a person with an intellectual disability,[1] one indictment alleging indecent exposure, and one indictment alleging accosting or annoying a person of the opposite sex. The crimes were alleged to have occurred between on or about January 1, 2008, which was before the effective date of the statutory amendments, and […]
Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, et al. (Lawyers Weekly No. 10-202-15)
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-11800 CHRIS E. MALING vs. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, & others.[1] Suffolk. September 8, 2015. – December 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Patent. Conflict of Interest. Attorney at Law, Conflict of interest, Attorney-client relationship, Representation of differing interests. Civil action commenced in the Superior Court Department on April 25, 2013. A motion to dismiss was heard by Janet L. Sanders, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Thomas M. Bond for the plaintiff. Erin K. Higgins (Christopher K. Sweeney with her) for the defendants. Paul A. Stewart, of California, & Sara E. Hirshon, for Knobbe, Martens, Olson & Bear, LLP, & others, amici curiae, submitted a brief. Heather B. Repicky & Lauren E. Ingegneri, for Boston Patent Law Association, amicus curiae, submitted a brief. CORDY, J. In this case we consider whether an actionable conflict of interest arises under Mass. R. Prof. C. 1.7, as appearing in 471 Mass. 1335 (2015), when attorneys in different offices of the same law firm simultaneously represent business competitors in prosecuting patents on similar inventions, without informing them or obtaining their consent to the simultaneous representation.[2] The plaintiff, Chris E. Maling, engaged the defendant law firm Finnegan, Henderson, Farabow, Garrett & Dunner, LLP (Finnegan), including the three individual attorneys named in this suit, to represent him in connection with the prosecution of patents for Maling’s inventions for a new screwless eyeglass. After obtaining his patents, Maling learned that Finnegan had been simultaneously representing another client that competed with Maling in the screwless eyeglass market. Maling then commenced this action, alleging harm under various legal theories resulting from Finnegan’s failure to disclose the alleged conflict of interest. A judge in the Superior Court dismissed Maling’s complaint for failure to state a claim under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Maling appealed, and we transferred the case to this court on our own motion. We conclude that the simultaneous representation by a law firm in the prosecution of patents for two clients competing in the same technology area for similar inventions is not a per se violation of Mass. R. Prof. Conduct 1.7. We further conclude that based on the facts […]
Commonwealth v. Dorisca (Lawyers Weekly No. 11-193-15)
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-1971 Appeals Court COMMONWEALTH vs. JOSENER DORISCA. No. 13-P-1971. Plymouth. September 11, 2015. – December 23, 2015. Present: Vuono, Agnes, & Maldonado, JJ. Homicide. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses, Harmless error, Argument by prosecutor. Evidence, Previous testimony of unavailable witness, Unavailable witness, Relevancy and materiality. Witness, Unavailability. Error, Harmless. Indictment found and returned in the Superior Court Department on June 27, 2008. The case was tried before Richard J. Chin, J. Andrew S. Crouch for the defendant. Jessica R. Heaton, Assistant District Attorney, for the Commonwealth. AGNES, J. The purpose of the confrontation clause is “‘to put beyond the possibility of alteration except by the people themselves the principle already established as a part of the common law that the witnesses should confront the accused face to face’ . . . [in order to] ‘exclude any evidence by deposition, which could be given orally in the presence of the accused.’” Commonwealth v. Bergstrom, 402 Mass. 534, 544-545 (1988), quoting from Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), and Commonwealth v. Slavski, 245 Mass. 405, 413 (1923).[1] See Coy v. Iowa, 487 U.S. 1012, 1015-1016 (1988). There are only limited exceptions to this right. Bergstrom, 402 Mass. at 545-546. One such exception is when the prosecution demonstrates that a witness is unavailable to testify during the trial, and that she has made a statement out-of-court that is sufficiently trustworthy and reliable to qualify for admission under a recognized exception to the hearsay rule. Id. at 545. In this case, in which the defendant was tried before a jury and convicted of murder in the second degree, we must decide whether the judge erred in concluding that the witness was unavailable without requiring the Commonwealth to provide additional information about her condition and without considering whether alternative arrangements were feasible as required by Commonwealth v. Housewright, 470 Mass. 665, 671-673 (2015). Although the judge did not have the benefit of Housewright, we conclude that it is applicable to this case,[2] and that it was error to admit the witness’s deposition in evidence. However, we also conclude that the erroneous admission of the videotaped deposition was harmless beyond a reasonable doubt. Background. 1. The shooting death of the victim. On June 8, 2008, the victim and the defendant attended […]
Commonwealth v. Hyde (and seven companion cases) (Lawyers Weekly No. 11-192-15)
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 12-P-867 Appeals Court COMMONWEALTH vs. JAMES C. HYDE (and seven companion cases[1]). No. 12-P-867. Essex. June 12, 2015. – December 21, 2015. Present: Cohen, Green, & Trainor, JJ. Insurance, Motor vehicle insurance, Fraud and concealment, Defrauding insurer. Motor Vehicle, Insurance. Fraud. Larceny. Practice, Criminal, Instructions to jury, Grand jury proceedings, Indictment. Grand Jury. Evidence, Intent, Inference, Grand jury proceedings, Relevancy and materiality, Prior misconduct, Testimony before grand jury, Credibility of witness. Probable Cause. Witness, Credibility. Indictments found and returned in the Superior Court Department on April 4, 2008. The cases were tried before Howard J. Whitehead, J. Edward Foye (David Meier with him) for James C. Hyde. Sarah E. Dolven for Omar Castillo. Argie K. Shapiro, Assistant Attorney General (William R. Freeman, Special Assistant Attorney General, with her) for the Commonwealth. COHEN, J. Following a multi-year inquiry by investigators from the Massachusetts Insurance Fraud Bureau and the city of Lawrence police department, a grand jury indicted the defendants, James C. Hyde, Michael H. Kaplan, and Omar Castillo, for crimes arising from the submission of fraudulent automobile insurance claims.[2] The defendants later were tried together before a Superior Court jury. Hyde, an attorney at the law firm of Berger & Hyde, P.C., was convicted of two counts each of motor vehicle insurance fraud (see G. L. c. 266, § 111B), larceny over $ 250 (see G. L. c. 266, § 30), and attempted larceny over $ 250 (see G. L. c. 274, § 6). Kaplan, a chiropractor and owner of the Kaplan Chiropractic clinic, was convicted of three counts of motor vehicle insurance fraud, and two counts each of larceny over $ 250 and attempted larceny. Castillo, an employee of Kaplan Chiropractic, was convicted of one count each of motor vehicle insurance fraud and larceny over $ 250. Before us are the appeals of Hyde and Castillo.[3] Hyde’s convictions resulted from insurance claims submitted on behalf of clients purporting to have been injured in two staged automobile accidents — one alleged to have occurred on October 1, 2002, and the other alleged to have occurred on December 20, 2002. Hyde’s primary contention on appeal is that the Commonwealth failed to establish at both the grand jury and petit jury stages of the case that he knew that these particular accidents were staged. On this ground, he maintains that both his […]