Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., et al. (Lawyers Weekly No. 10-074-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11901 KAMEE VERDRAGER vs. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., & others.[1] Suffolk. November 5, 2015. – May 31, 2016. Present: Botsford, Duffly, Lenk, & Hines, JJ. Anti-Discrimination Law, Employment, Sex, Termination of employment. Employment, Discrimination, Sexual harassment, Demotion, Retaliation, Termination. Unlawful Interference. Practice, Civil, Summary judgment, Discovery. Civil action commenced in the Superior Court Department on November 3, 2009. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Kamee Verdrager, pro se. Joan A. Lukey (Justin J. Wolosz with her) for the defendants. Ellen J. Messing, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief. LENK, J. General Laws c. 151B, § 4, prohibits employers from discriminating against employees on the basis of gender. It also prohibits them from retaliating against employees for engaging in “protected activity,” i.e., activity undertaken “to protest or oppose statutorily prohibited discrimination” (citation omitted). See Thirkield v. Neary & Hunter OB/GYN, LLC, 76 F. Supp. 3d 339, 350 (D. Mass. 2015) (interpreting G. L. c. 151B). Here, we are asked to determine whether summary judgment should have entered for the employer on an employee’s claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is “protected activity” for an employee to search for, copy, and share with the employee’s attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim. The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD), that she was being subjected to discriminatory treatment on the basis of her gender – treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm’s document management system for items that might prove her assertions of discrimination. […]
Commonwealth v. Villalobos (Lawyers Weekly No. 11-059-16)
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-497 Appeals Court COMMONWEALTH vs. ANTHONY VILLALOBOS. No. 14-P-497. Suffolk. September 10, 2015. – May 27, 2016. Present: Green, Rubin, & Hanlon, JJ. Homicide. Assault and Battery. Practice, Criminal, Required finding, Voir dire, Jury and jurors, Conduct of juror, Argument by prosecutor, New trial, Assistance of counsel, Admissions and confessions, Motion to suppress. Evidence, Joint venturer, Admissions and confessions. Indictments found and returned in the Superior Court Department on November 9, 2009. The cases were tried before Patrick F. Brady, J., and a motion for a new trial was heard by him. Elda S. James for the defendant. Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, with her) for the Commonwealth. HANLON, J. After a joint jury trial,[1] the defendant, Anthony Villalobos, was convicted of the lesser included offense of involuntary manslaughter of Jose Alicea and two counts of assault and battery, one on Gregory Pimental[2] and one on Omar Castillo.[3] He appeals from the convictions and also from the denial of his motion for a new trial, arguing that (1) the evidence was insufficient to support his convictions; (2) the judge erroneously failed to conduct a voir dire of allegedly sleeping jurors; (3) the prosecutor made improper and prejudicial statements during closing argument; and (4) trial counsel was ineffective in attempting to exclude at trial statements the defendant had made to the police, because counsel failed to raise the issue of whether the defendant had invoked his right to remain silent. We affirm. Background. The jury could have found the following facts. On August 20, 2009, the defendant and a large group of others attended the funeral of a friend in Lynn; many of the funeral attendees wore red and black tuxedos to honor the deceased. Later that night, a group of the attendees went to Club 33 in Boston, arriving in two limousines, a Porsche and a Cadillac, with most still wearing the red and black tuxedos. The defendant was part of this group but, instead of a tuxedo, he was wearing a white T-shirt, a black button down shirt with a picture of his deceased friend on the back, and black pants; the defendant also had long braided (or corn-rowed) hair. Also at Club 33 that night were the five victims.[4] At closing time, they […]
Categories: News Tags: 1105916, Commonwealth, Lawyers, Villalobos, Weekly
Commonwealth v. Thomas (Lawyers Weekly No. 11-058-16)
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-666 Appeals Court COMMONWEALTH vs. RICKY THOMAS. No. 13-P-666. Hampden. March 11, 2016. – May 26, 2016. Present: Meade, Sullivan, & Massing, JJ. Rape. Rape-Shield Statute. Evidence, Prior conviction, Impeachment of credibility. Witness, Impeachment. Practice, Criminal, Impeachment by prior conviction, New trial. Indictment found and returned in the Superior Court Department on March 23, 2010. The case was heard by Tina S. Page, J., and a motion for a new trial, filed on September 29, 2014, was considered by her. Joseph M. Kenneally for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury-waived trial, the defendant was convicted of aggravated rape, and the judge found him not guilty of kidnapping and assault with intent to rape. On appeal, he claims that the judge erred when she excluded evidence of the victim’s prior convictions; his conviction for aggravated rape was improper because there was no aggravating circumstance; and the judge abused her discretion when she denied his motion for a new trial without holding an evidentiary hearing. We affirm. 1. Background. The judge was entitled to find the following facts. Before the incident at issue, a friend had introduced the victim to the defendant, whom she knew as “Steve,” and the victim agreed to go with him to “hang out, party, chill, [and] smoke” “crack” cocaine. Their plans for that evening did not materialize. Several weeks later, the two again met on the street. The defendant asked the victim if she wanted to pick up where they left off, and also if she minded going to his house in Holyoke. The victim agreed and “jumped in [the defendant’s] car.” The two travelled to an apartment complex “that had two levels, one lower one, and one up a little hill and top level apartments.” The victim had never been there before, but she identified a photograph of a “top left window” as “the window of [the defendant’s] room.” On cross-examination, the victim made it clear that she went to the defendant’s apartment voluntarily “to party,” that is, “smoke, get high and chill.” The two entered the apartment, and the defendant directed the victim down a long, dark hallway to a room at the end of the hall on the left. The defendant went into a bathroom on […]
Opinion of the Justices to the Senate (Lawyers Weekly No. 10-073-16)
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-12092 OPINION OF THE JUSTICES TO THE SENATE. Beach. Public Land. Real Property, Beach, Littoral property. On May 26, 2016, the Justices submitted the following response to a question propounded to them by the Senate. To the Honorable the Senate of the Commonwealth of Massachusetts: The undersigned Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in an order adopted by the Senate on April 13, 2016, and transmitted to us the next day. For reasons outlined below, we are unable to answer specifically, either yes or no, the question as it has been presented to us. The order concerns a bill, House No. 753, that is presently pending in the Senate committee on Rules, entitled “An Act preserving public trust rights in land affected by ocean erosion.”[1] The order indicates that “the bill was reported favorably out of the joint committee on Environment, Natural Resources and Agriculture” before being referred to the Senate committee. The bill proposes an amendment to G. L. c. 91, § 35. Chapter 91 is the Massachusetts waterways statute; together with the regulations promulgated thereunder, it provides for extensive State regulation of the Commonwealth’s interest in tidelands and other coastal and inland waterways, including great ponds. Section 35 presently consists of one sentence: “The provisions of this chapter relative to great ponds shall apply only to ponds containing in their natural state more than ten acres of land, and shall be subject to any rights in such ponds which have been granted by the commonwealth.” The bill would add a second sentence to § 35, following the existing text, that states: “Where sea level rise, storms, or other natural processes have caused the landward or lateral movement of a barrier beach into an area which was previously occupied by the bottom of any Great Pond or onto any other public land, the portion of the barrier beach relocated into the former bottom of the Great [P]ond or onto other public land shall be and remain in public ownership.” The order further recites that “grave doubt exists whether the bill, if enacted, would comply with” art. 10 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution, and that “some decision must be made on the current bill prior to the […]
Commonwealth v. Neves (Lawyers Weekly No. 10-072-16)
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-11173 COMMONWEALTH vs. ADILSON F. NEVES. Plymouth. October 9, 2015. – May 25, 2016. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Felony-Murder Rule. Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement, Testimony before grand jury. Grand Jury. Practice, Criminal, Capital case, Admissions and confessions, Waiver, Voluntariness of statement, Grand jury proceedings, Transcript of testimony before grand jury, Sequestration of witnesses, Striking of testimony, Request for jury instructions. Indictment found and returned in the Superior Court Department on May 15, 2008. A pretrial motion to suppress evidence was heard by Christine M. Roach, J., and the case was tried before Jeffrey A. Locke, J. Jeffrey L. Baler for the defendant. Gail M. McKenna, Assistant District Attorney (Audrey Anderson, Assistant District Attorney, with her) for the Commonwealth. LENK, J. The defendant was convicted by a Superior Court jury of murder in the first degree on a theory of felony-murder in the 2008 shooting death of Edward Conley, a Brockton taxicab driver. Before us is the defendant’s appeal from his conviction. The defendant asserts error in four respects: (1) the failure to suppress statements later admitted in evidence that were made involuntarily to police, in violation of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-445 (1966) (Miranda); (2) the introduction over objection of a witness’s grand jury testimony after the witness claimed a loss of memory; (3) the failure to strike, upon request, another witness’s testimony after learning that he had violated a sequestration order; and (4) the failure to give a requested instruction on involuntary manslaughter. The defendant also seeks relief under G. L. c. 278, § 33E. While we conclude that some of the defendant’s statements to police were not made voluntarily and should not have been admitted, any error was harmless beyond a reasonable doubt. We also conclude that the judge’s rulings with respect to the contested witness testimony and the instruction on involuntary manslaughter were not in error. Having reviewed the entire record, we affirm the conviction and discern no reason to exercise our authority to grant extraordinary relief. 1. Factual background. We recite the facts the jury could have found, reserving certain details for later discussion. In early February, 2008, the defendant discussed […]
Commonwealth v. Stevenson (Lawyers Weekly No. 10-071-16)
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-11962 COMMONWEALTH vs. CARLOS G. STEVENSON. Dukes. February 11, 2016. – May 25, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines, JJ. Practice, Criminal, Indictment, Dismissal, Grand jury proceedings. Grand Jury. Evidence, Grand jury proceedings. Indictments found and returned in the Superior Court Department on October 6, 2014. A motion to dismiss the indictments was heard by Cornelius J. Moriarty, II, J. The Supreme Judicial Court granted an application for direct appellate review. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. Janice Bassil (John E. Oh with her) for the defendant. The following submitted briefs for amici curiae: Wendy J. Murphy for Women’s and Children’s Advocacy Project at New England Law|Boston. Kevin J. Curtin, Assistant District Attorney, for District Attorneys for the Berkshire, Bristol, Eastern, Middle, Norfolk, Northern, Northwestern, Plymouth, Suffolk, and Western Districts. John J. Barter & Chauncey B. Wood for Committee for Public Counsel Services & another. CORDY, J. On October 6, 2014, a grand jury returned six indictments against the defendant, Carlos Stevenson: one charging aggravated rape of a child with force, G. L. c. 265, § 22B; and five charging indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B.[1] The defendant filed a motion to dismiss the indictments, arguing, as is relevant to this appeal, that the evidence presented to the grand jury was insufficient because the Commonwealth offered only hearsay testimony from a single witness, the investigating officer. After a hearing, a judge of the Superior Court allowed the defendant’s motion to dismiss without prejudice. The judge concluded that, while an indictment generally may be based solely on hearsay, the Commonwealth’s exclusive reliance on such testimony in the present case constituted “extraordinary circumstances” that justified dismissal of the indictments. In particular, the judge determined that “there was no good reason for [the complainant] not to testify,” and the prosecutor’s decision not to seek her testimony deprived the defendant of the opportunity to obtain pretrial discovery.[2] The Commonwealth appealed the dismissal, and we granted the defendant’s application for direct appellate review. We conclude that this case does not present an extraordinary circumstance warranting a variance from our general approval of indictments that are returned on the basis of hearsay testimony. Therefore, the order of the […]
Federal National Mortgage Association v. Rego, et al. (Lawyers Weekly No. 10-069-16)
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-11927 FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. EDWARD M. REGO & another.[1] Essex. November 3, 2015. – May 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Summary Process, Appeal. Mortgage, Foreclosure. Real Property, Mortgage. Practice, Civil, Summary process, Counterclaim and cross-claim. Consumer Protection Act, Unfair act or practice. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Complaint filed in the Northeast Division of the Housing Court Department on August 31, 2012. Motions for partial summary judgment were heard by Timothy F. Sullivan, J., and a motion to dismiss counterclaims was also heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Weinhold for the defendants. Richard E. Briansky for the plaintiff. Thomas J. Santolucito & Danielle C. Gaudreau, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Daniel Bahls & Amanda Winalski, for Community Legal Aid, amicus curiae, submitted a brief. DUFFLY, J. The plaintiff, Federal National Mortgage Association (Fannie Mae), filed a complaint for summary process in the Housing Court to establish its right to possession of a house that had been owned by Edward M. Rego and Emanuela R. Rego (Regos) that Fannie Mae purchased at a foreclosure sale. In response, the Regos argued that the foreclosure sale conducted by the bank that held the mortgage on the property, GMAC Mortgage, LLC (GMAC), was void because GMAC’s attorneys had not been authorized by a prior writing to undertake the actions set forth in G. L. c. 244, § 14 (§ 14). The Regos also asserted an equitable defense and counterclaims pursuant to G. L. c. 93A. A Housing Court judge allowed Fannie Mae’s motion for summary judgment “as to possession only,” and scheduled a bench trial on the Regos’ counterclaims under G. L. c. 93A. Thereafter, Fannie Mae moved to dismiss the counterclaims for lack of subject matter jurisdiction; that motion was allowed. Final judgment for possession entered in favor of Fannie Mae, and the Regos appealed. We transferred the case to this court on our own motion. We are confronted with two issues in this appeal.[2] First, we consider the meaning of the language in § 14, authorizing “the attorney duly authorized by a writing under seal” to perform acts required by the statutory power of […]
Commonwealth v. Beal (Lawyers Weekly No. 10-070-16)
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-11938 COMMONWEALTH vs. DAUNTE BEAL.[1] Suffolk. December 10, 2015. – May 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Firearms. Assault and Battery by Means of a Dangerous Weapon. Assault by Means of a Dangerous Weapon. Practice, Criminal, Duplicative convictions, Sentence. Evidence, Prior violent conduct. Due Process of Law, Vagueness of statute. Indictments found and returned in the Superior Court Department on November 14, 2008, and January 30, 2009. The cases were tried before Thomas E. Connolly, J. The Supreme Judicial Court granted an application for direct appellate review. Jessica L. LaClair for the defendant. Teresa K. Anderson, Assistant District Attorney (Joseph F. Janezic, III, Assistant District Attorney, with her) for the Commonwealth. DUFFLY, J. This case arises from a shooting that occurred at a cookout in the Dorchester section of Boston on a summer night in 2008. The defendant was convicted by a Superior Court jury on indictments charging unlawful possession of a firearm, G. L. c. 269, § 10 (a); unlawful possession of ammunition, G. L. c. 269, § 10 (h); carrying a loaded firearm, G. L. c. 269, § 10 (n); assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265,§ 15A; and two counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b).[2] The indictments charging unlawful possession of a firearm also alleged that the defendant previously had been convicted of two violent crimes and thus was subject to enhanced penalties under the Massachusetts armed career criminal act, G. L. c. 269, § 10G (ACCA). In a separate trial following these convictions, the same jury found the defendant guilty of the subsequent offender portions of the indictments. The defendant appealed from his convictions, and we allowed his application for direct appellate review. The defendant argues that (1) the evidence was insufficient to prove assault and battery by means of a dangerous weapon causing serious bodily injury; (2) the convictions of two counts of assault by means of a dangerous weapon were duplicative of the conviction of assault and battery by means of a dangerous weapon causing serious bodily injury; and (3) the conviction of possession of ammunition is duplicative of the conviction of possession of a loaded firearm. He also contends that the evidence presented by the Commonwealth in support of his prior convictions was insufficient […]
Guardianship of B.V.G. (Lawyers Weekly No. 10-068-16)
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-11925 GUARDIANSHIP OF B.V.G. Norfolk. December 7, 2015. – May 23, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Guardian, Incompetent person. Probate Court, Guardian, Standing. Practice, Civil, Appointment of guardian, Intervention, Standing. Words, “Interested person.” Petition for guardianship filed in the Norfolk Division of the Probate and Family Court Department on February 16, 2011. A motion to intervene was heard by George F. Phelan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Anthony D. Martin (Jennifer L. Mikels with him) for the grandfather. Adam J. Nussenbaum for the father. Frederick M. Misilo, Jr., for The Arc of Massachusetts, Inc., amicus curiae, submitted a brief. DUFFLY, J. The maternal grandfather of B.V.G., a young woman with intellectual disabilities, sought to intervene in permanent guardianship proceedings pending in the Probate and Family Court on the petition of B.V.G.’s father, who had been appointed B.V.G.’s temporary guardian when she was eighteen years old.[1] The grandfather asserted that his relationship with B.V.G. has been restricted by her father in his capacity as temporary guardian, that B.V.G. has indicated expressly her desire to communicate with him and has sought contact with him via social media, and that such a relationship is in B.V.G.’s best interests. The grandfather filed a motion to intervene, pursuant to Mass. R. Civ. P. 24, 365 Mass. 769 (1974),[2] in the guardianship proceedings, seeking to limit the father’s ability to restrict B.V.G.’s access to the grandfather. Concluding that the grandfather lacked standing to intervene because he was not an “interested person” within the meaning of G. L. c. 190B, § 5-306 (c), a Probate and Family Court judge denied the motion. The grandfather appealed, and the Appeals Court affirmed the denial, on grounds other than those relied upon by the motion judge. See Guardianship of B.V.G., 87 Mass. App. Ct. 250 (2015). We allowed the grandfather’s petition for further appellate review.[3] General Laws c. 190B, § 5-306 (c), provides that the Probate and Family Court may, “on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, . . . limit the powers of a guardian . . . and thereby create a limited guardianship.” Based on our review of the record and the judge’s […]
Commonwealth v. Lodge (Lawyers Weekly No. 11-057-16)
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-1826 Appeals Court COMMONWEALTH vs. KENDALL T. LODGE. No. 14-P-1826. Suffolk. February 1, 2016. – May 20, 2016. Present: Trainor, Meade, & Sullivan, JJ. Firearms. Practice, Criminal, Opening statement, Conduct of prosecutor, Argument by prosecutor, Assistance of counsel. Constitutional Law, Assistance of counsel, Admissions and confessions. Due Process of Law, Assistance of counsel. Evidence, Admission by silence. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on July 29, 2011. The case was tried before Robert J. McKenna, Jr., J. N. John Magrisso for the defendant. Kathryn E. Leary, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury trial, the defendant was convicted of possession of a firearm without a license. On appeal, he claims that the prosecutor’s opening statement improperly appealed to emotion without a factual basis, that the prosecutor’s closing argument improperly commented on the defendant’s post-Miranda silence, and that he received ineffective assistance of counsel. We affirm. Background. On July 28, 2011, at approximately 11:45 P.M., Boston police officers responded to a disturbance on Hansborough Street in the Dorchester section of Boston. Upon arriving at Hansborough Street, Officer Robert Robichaud observed a large crowd of approximately forty people standing in the middle of the street yelling at one another. Upon seeing the marked police cruiser, the crowd began to disperse. At the same time, Officer Keith Monahan responded to the same disturbance in an unmarked police cruiser. As he parked and exited his cruiser, Monahan’s attention was immediately drawn to a blue Toyota Corolla automobile moving towards him because the middle passenger in the back seat, later identified as the defendant, was sitting “almost up against the ceiling.” Monahan made eye contact with the defendant, who looked “very surprised, [and] wide-eyed.” The defendant “immediately turned away, looked down towards his middle leg area and lunged forward very quickly.” After making these observations, Monahan told the driver of the Corolla to stop. The driver began to stop; however, once Monahan was within a few feet of the car, the driver accelerated. The driver only stopped when another police cruiser blocked the Corolla’s path. The police ordered the occupants out of the car and to keep their hands up; the defendant remained inside the car and kept his hands out of Monahan’s sight. […]