Niedner v. Ortho-McNeil Pharmaceutical, Inc., et al. (Lawyers Weekly No. 11-131-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-1272 Appeals Court LESLIE NIEDNER, administratrix,[1] vs. ORTHO-McNEIL PHARMACEUTICAL, INC., & others.[2] No. 15-P-1272. Suffolk. May 5, 2016. – September 21, 2016. Present: Cypher, Blake, & Henry, JJ. Negligence, Duty to warn, Pharmaceutical manufacturer, Design, Defective product, Manufacturer. Contract, Warranty. Warranty. Negligence, Misrepresentation. Consumer Protection Act, Unfair or deceptive act. Conscious Pain and Suffering. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on September 21, 2010. The case was heard by Heidi E. Brieger, J., on a motion for summary judgment. Roopal P. Luhana, of New York, for the plaintiff. Susan M. Sharko, of New Jersey, for Ortho-McNeil Pharmaceutical, Inc., and others. BLAKE, J. Adrianna Duffy was a seventeen year old college student when she collapsed in her dormitory room and died of a pulmonary embolism. Duffy’s mother, Leslie Niedner, as administratrix of Duffy’s estate, filed a complaint against the defendants, Ortho-McNeil Pharmaceutical, Inc.; Johnson & Johnson; and Johnson & Johnson Pharmaceutical Research and Development, LLC (collectively, J & J), alleging multiple causes of action relating to J & J’s birth control product, Ortho Evra.[3] Following a hearing on J & J’s motion for summary judgment, a judge of the Superior Court allowed the motion and ordered the dismissal of the complaint in its entirety. We affirm. Background. The following undisputed facts are taken from the summary judgment record. Sara M. Nelson of the Massachusetts General Hospital Chelsea Healthcare Clinic was Duffy’s pediatrician from about October of 2004, until her death in 2009. In July, 2008, Duffy, accompanied by Niedner, met with Nelson to discuss birth control options. Nelson recommended and prescribed an oral birth control pill. The prescription was filled in July, August, and September of 2008. Duffy also used condoms when she was sexually active. At some point thereafter, Duffy discontinued her use of oral birth control pills. In June, 2009, Duffy decided that she needed a backup birth control method, again, in addition to condoms. She and Niedner met with Nelson on June 23, 2009, to discuss Duffy’s options. Duffy asked Nelson about the Ortho Evra patch (patch), as she wanted an easy and simple method of birth control. The patch prevents pregnancy by transferring synthetic forms of the hormones estrogen and progestin through the skin. Unlike oral birth […]
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Commonwealth v. Pearson (Lawyers Weekly No. 11-130-16)
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 15-P-896 Appeals Court COMMONWEALTH vs. WASHINGTON PEARSON. No. 15-P-896. Norfolk. June 7, 2016. – September 20, 2016. Present: Cypher, Grainger, & Kinder, JJ. Arrest. Search and Seizure, Arrest, Securing of premises, Fruits of illegal arrest, Warrant, Affidavit. Evidence, Result of illegal arrest. Practice, Criminal, Motion to suppress, Warrant, Affidavit. Indictments found and returned in the Superior Court Department on April 12, 2012. A pretrial motion to suppress evidence was heard by Kenneth J. Fishman, J., and the cases were tried before Raymond J. Brassard, J. Edward Crane for the defendant. Pamela Alford, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Washington Pearson, of four counts of breaking and entering in violation of G. L. c. 266, § 18, and four counts of larceny over $ 250 in violation of G. L. c. 266, § 30(1). On appeal, he argues that the motion judge erred in denying his motion to suppress evidence seized pursuant to a search warrant obtained following a warrantless arrest. We find no error by the motion judge. Following a pretrial hearing, the motion judge determined that warrants did not validly issue for the arrest of Jenell Johnson and the defendant in their apartment and, consequently, he allowed their motions to suppress statements made at the time of the arrests.[1],[2] He concluded, however, that evidence seized pursuant to the subsequently secured search warrant was untainted by the initial illegality and therefore admissible. The defendant claims that his motion to suppress should have been allowed in full because the search warrant was tainted by his prior unlawful arrest, and therefore could not constitute a genuinely independent source for the challenged evidence. “In reviewing a decision on a motion to suppress, ‘we accept the judge’s subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.’” Commonwealth v. Keefner, 461 Mass. 507, 515 (2012), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). “We make an independent determination of the correctness of the judge’s application of constitutional principles.” Commonwealth v. Cassino, 474 Mass. 85, 88 (2016) (quotation omitted). We recite the facts found by the motion judge after an evidentiary hearing, and supplement where necessary with undisputed testimony implicitly credited by the judge. Commonwealth v. Oliveira, 474 […]
Commonwealth v. Waller (Lawyers Weekly No. 11-129-16)
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 15-P-928 Appeals Court COMMONWEALTH vs. TASHA WALLER. No. 15-P-928. Essex. June 15, 2016. – September 20, 2016. Present: Green, Rubin, & Sullivan, JJ. Animal. Constitutional Law, Vagueness of statute. Due Process of Law, Vagueness of statute. Evidence, Expert opinion, Hearsay. Practice, Criminal, Required finding, Probation. Search and Seizure, Probationer. Complaint received and sworn to in the Lynn Division of the District Court Department on April 16, 2013. The case was heard by Cathleen E. Campbell, J. Sarah M. Unger for the defendant. Philip A. Mallard, Assistant District Attorney (Katelyn M. Giliberti, Assistant District Attorney, with him) for the Commonwealth. RUBIN, J. The defendant was convicted under the animal cruelty statute for starving to death her dog, Arthur, a miniature dachshund. The finding of guilt is affirmed, as is the condition of the defendant’s probation prohibiting her from owning “any pet or animal of any kind.” Under settled law, however, the condition of probation requiring the defendant to submit to suspicionless inspections of her home requires modification for which that aspect of the case will be remanded. Facts. We recite the facts as they could have been found by the judge, the fact finder in this bench trial, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth. Arthur. On the night of January 23, 2013, the defendant brought Arthur to the Massachusetts Veterinary Referral Hospital in Woburn. Arthur was nonresponsive and was brought immediately to the treatment area for emergency care. He was seen by Christina Valiant, an emergency care veterinarian. Dr. Valiant found Arthur in an extremely emaciated condition. She testified that he was “very, very, very thin”; that “his bones were all visible through his skin”; and that “he had no muscle mass.” He had physical indications of prolonged malnutrition: “a lot of the fur was rubbed away from the left side of his body.” Dr. Valiant also testified that Arthur “had scabs over the left side of his body where the fur had been rubbed away on the left side of his rib cage, on his elbow, on his knee, . . . on [his] hip,” on the “tip of his tail,” and on the “tip[s] of his ears.” Dr. Valiant testified that scabs and “pressure sores” come from […]
Commonwealth v. Warren (Lawyers Weekly No. 10-151-16)
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 11956 COMMONWEALTH vs. JIMMY WARREN. Suffolk. February 9, 2016. – September 20, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Firearms. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Reasonable suspicion. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on December 19, 2011. After transfer to the Central Division, a pretrial motion to suppress evidence was heard by Tracy-Lee Lyons, J., and the case was heard by Annette Forde, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Nelson P. Lovins for the defendant. Michael Glennon, Assistant District Attorney, for the Commonwealth. HINES, J. After a jury-waived trial in the Boston Municipal Court, the defendant, Jimmy Warren, was convicted of unlawful possession of a firearm, G. L. c. 269, § 10 (a).[2] The complaint arose from the discovery of a firearm after an investigatory stop of the defendant in connection with a breaking and entering that had occurred in a nearby home approximately thirty minutes earlier. Prior to trial, the defendant filed a motion to suppress the firearm and statements made after his arrest, arguing that police lacked reasonable suspicion for the stop. The judge who heard the motion denied it, ruling that, at the time of the stop, the police had reasonable suspicion that the defendant was one of the perpetrators of the breaking and entering. The defendant appealed, claiming error in the denial of the motion to suppress.[3] The Appeals Court affirmed, Commonwealth v. Warren, 87 Mass. App. Ct. 476, 477 (2015). We allowed the defendant’s application for further appellate review and conclude that because the police lacked reasonable suspicion for the investigatory stop, the denial of the motion to suppress was error. Therefore, we vacate the conviction. Background. We summarize the facts as found by the judge at the hearing on the motion to suppress, supplemented by evidence in the record that is uncontroverted and that was implicitly credited by the judge. Commonwealth v. Melo, 472 Mass. 278, 286 (2015). On December 18, 2011, Boston police Officer Luis Anjos was patrolling the Roxbury section of Boston in a marked police cruiser when, at 9:20 P.M., he received […]
Commonwealth v. Carter (Lawyers Weekly No. 10-150-16)
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-11525 COMMONWEALTH vs. VERNON T. CARTER. Plymouth. April 8, 2016. – September 19, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1] Homicide. Robbery. Firearms. Felony-Murder Rule. Assault and Battery. Joint Enterprise. Identification. Evidence, Identification, Joint venturer. Intoxication. Constitutional Law, Right to bear arms. Practice, Criminal, Capital case, Duplicative convictions, Witness, Assistance of counsel, Argument by prosecutor, Instructions to jury, Conduct of judge. Indictments found and returned in the Superior Court Department on December 30, 2009. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J., and the cases were tried before Raymond P. Veary, Jr., J. Russell C. Sobelman for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. HINES, J. In April, 2013, a jury convicted the defendant, Vernon T. Carter, of murder in the first degree of Scott Monteiro on a theory of felony-murder, based on the predicate felony of armed robbery.[2] The defendant was also convicted of armed robbery, assault and battery of Sheldon Santos, possession of a firearm, and possession of ammunition.[3] On appeal, the defendant asserts error in (1) admission of identifications obtained through procedures alleged to be suggestive; (2) testimony from a last-minute Commonwealth witness; (3) the prosecutor’s closing argument; (4) omission of jury instructions regarding involuntary manslaughter, “humane practice,” and intoxication; (5) judicial bias; and (6) firearms-related convictions without evidence that he was not licensed.[4] The defendant also argues that he is entitled to relief under G. L. c. 278, § 33E. We vacate, as duplicative, the defendant’s armed robbery conviction, because it was the predicate felony for his felony-murder conviction, the only theory on which the jury found him guilty of murder in the first degree. See Commonwealth v. Alcequiecz, 465 Mass. 557, 558 (2013). We affirm the defendant’s remaining convictions, and we discern no other basis to exercise our authority pursuant to G. L. c. 278, § 33E. Background. We summarize the evidence as the jury could have found it, reserving certain facts for later discussion. At approximately 10 P.M. on Friday, September 4, 2009, a group of twenty to thirty people, in their late teens or early twenties and generally from the Wareham area, gathered at a residence in Wareham for a “house party.” People were socializing and drinking, “[j]ust teenage and adolescent kids […]
Commonwealth v. Wood (Lawyers Weekly No. 11-128-16)
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-1389 Appeals Court COMMONWEALTH vs. JAMES WOOD. No. 14-P-1389. Middlesex. October 7, 2015. – September 16, 2016. Present: Katzmann, Rubin, & Wolohojian, JJ. Assault by Means of a Dangerous Weapon. Evidence, Illustrative exhibit, Best and secondary. Practice, Criminal, Instructions to jury, Argument by prosecutor. Indictments found and returned in the Superior Court Department on March 10, 2011. The cases were tried before Sandra L. Hamlin, J. Joseph J. Mazza for the defendant. Jessica Langsam, Assistant District Attorney, for the Commonwealth. KATZMANN, J. The defendant appeals from his conviction by a Superior Court jury of assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI). He challenges the admission in evidence of a compilation of portions of previously admitted exhibits that had been sequenced and highlighted by the Commonwealth, and the trial judge’s instruction on absence of right or excuse.[1] We affirm. Background. The jury could have found as follows. Around 9:20 P.M. on May 16, 2010, Carlos Serpa arrived at Lawrence Memorial Hospital suffering from multiple stab wounds: one to his back, two to his left leg, and one to his left arm. He had been driven to the hospital in his own vehicle[2] by his friend Michael Diceglie, who had insisted on securing Serpa medical treatment despite the latter’s protestations when he showed up bleeding at Diceglie’s front door. Although neither Serpa nor Diceglie telephoned 911, hospital personnel notified the police as required when a patient presents as a victim of a stabbing. When uniformed officers from the Medford police department arrived, Serpa — who was on probation following his release from prison on a sentence arising from armed robbery convictions — told the officers that he was stabbed by an unknown dark-skinned male in dark clothing, who tried to rob him as he was getting out of his vehicle in front of Diceglie’s apartment on Myrtle Street in Medford. The officers considered Serpa’s answers to their questions to be vague and likely not entirely truthful. One of the uniformed officers then visited Myrtle Street and located a blood trail, prompting him to secure the crime scene and notify detectives. Medford police Detectives Michael Goulding and Patricia Sullivan arrived at Myrtle Street later that same evening and began investigating the blood […]
Commonwealth v. Teixeira; Commonwealth v. Meade (Lawyers Weekly No. 10-149-16)
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-11929 SJC-11944 COMMONWEALTH vs. ANGELO TEIXEIRA. COMMONWEALTH vs. CHRISTOPHER A. MEADE. Suffolk. January 11, 2016. – September 16, 2016. Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Boston Municipal Court. District Court, Probable cause hearing. Practice, Criminal, Probable cause hearing, Discovery. Moot Question. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 2, 2015. The case was reported by Lenk, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 10, 2015. The case was heard by Spina, J. Valerie A. DePalma (Jeffrey M. Miller with her) for the defendants. Kathryn Leary, Assistant District Attorney, for the Commonwealth. John D. Donovan, Jr., Jesse M. Boodoo, Joshua D. Rovenger, & David M. Coriell, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. Benjamin H. Keehn, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. LENK, J. These cases stem from two unrelated, nonfatal shootings in the Roxbury section of Boston in June, 2015, and July, 2015. Angelo Teixeira was arrested for the first shooting, and Christopher Meade for the second. Meade and Teixeira each were charged by complaint in the Boston Municipal Court (BMC) with a number of felonies, including some that are outside the final jurisdiction of that court. Pursuant to G. L. c. 276, § 38, probable cause hearings were scheduled for each defendant to determine whether there was sufficient evidence to bind them over to the Superior Court for trial. The Commonwealth was ordered to provide the defendants with discovery in advance of those hearings. Noting that judges of the BMC and the District Court Department[2] are not explicitly authorized, either by statute or by the Massachusetts Rules of Criminal Procedure, to order discovery in preparation for probable cause hearings (prehearing discovery), the Commonwealth objected to the discovery orders and filed interlocutory appeals. In considering these cases, we must determine whether judges of the BMC may order prehearing discovery in the absence of specific authorization from G. L. c. 276, § 38, the Rules of Criminal Procedure, or any trial court standing order.[3] We conclude that, because such judges have inherent authority to issue orders essential to their capacity to decide cases, they […]
Commonwealth v. Adonsoto (Lawyers Weekly No. 10-148-16)
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-11978 COMMONWEALTH vs. GLENIS A. ADONSOTO. Norfolk. February 11, 2016. – September 16, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Motor Vehicle, Operating under the influence. Constitutional Law, Self-incrimination, Breathalyzer test, Confrontation of witnesses. Evidence, Breathalyzer test, Hearsay. Interpreter. Practice, Criminal, Interpreter, Hearsay, Confrontation of witnesses, Instructions to jury. Complaint received and sworn to in the Stoughton Division of the District Court Department on July 23, 2012. The case was tried before James H. McGuiness, Jr., J. The Supreme Judicial Court granted an application for direct appellate review. Christopher DeMayo for the defendant. Varsha Kukafka, Assistant District Attorney, for the Commonwealth. Eric R. Atstupenas, for Massachusetts Chiefs of Police Association, Inc., amicus curiae, submitted a brief. HINES, J. The defendant, Glenis A. AdonSoto, was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). The defendant, whose native language is Spanish, was stopped in the early morning hours of July 22, 2012, by a Stoughton police officer in response to a telephone call from a concerned driver. After the defendant was arrested and transported to the police station, the police secured the services of a telephonic language interpreter service to read the defendant her rights and instruct her on how to perform the breathalyzer test. The defendant did not properly perform the test during three attempts, producing no usable result. At the trial, the judge admitted in evidence the defendant’s failure to perform the breathalyzer test. The defendant appealed, asserting as error (1) the admission of her failure to produce a usable breathalyzer result, claiming that it should have been excluded as “refusal” evidence under G. L. c. 90, § 24 (1) (e); (2) the admission of the interpreter’s English language version of her statements as hearsay and a violation of her constitutional right of confrontation; (3) insufficiency of the evidence of impairment; and (4) prejudicial errors in the instructions to the jury. We granted the defendant’s application for direct appellate review. We affirm the conviction based on our conclusions that the failure to properly perform a breathalyzer test after giving consent is not inadmissible as refusal evidence; that the police-appointed interpreter acted as the defendant’s agent in the circumstances of […]
Commonwealth v. Coutu (Lawyers Weekly No. 11-127-16)
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 08-P-986 Appeals Court COMMONWEALTH vs. DAVID COUTU. No. 08-P-986. Middlesex. September 17, 2015. – September 15, 2016. Present: Katzmann, Meade, & Rubin, JJ. Burning of Property. Attempt. Practice, Criminal, Required finding. Indictment found and returned in the Superior Court Department on August 15, 2006. The case was tried before S. Jane Haggerty, J. After review by the Appeals Court, the Supreme Judicial Court denied leave to obtain further appellate review, but remanded the case to the Appeals Court for reconsideration. Amy M. Belger for the defendant. Randall F. Maas & Bethany Stevens, Assistant District Attorneys, for the Commonwealth. MEADE, J. In Commonwealth v. Coutu, 88 Mass. App. Ct. 686 (2015) (Coutu No. 1), this court affirmed the defendant’s convictions of aggravated rape, home invasion, mayhem, armed robbery, and kidnapping, and reversed his convictions of assault and battery by means of a dangerous weapon causing serious bodily injury and attempt to burn personal property. Thereafter, the Commonwealth sought further appellate review and challenged the reversal of the defendant’s conviction of attempt to burn personal property. The Supreme Judicial Court denied the application without prejudice and remanded the matter to this court.[1] Commonwealth v. Coutu, 474 Mass. 1103 (2016). On remand, we have been instructed to reconsider our reversal of that conviction (based on insufficient evidence) in light of Commonwealth v. LaBrie, 473 Mass. 757 (2016). Having done so, we now affirm the defendant’s conviction of attempt to burn personal property. The facts of this case are set out in detail in Coutu (No. 1), supra at 687-692. In broad outline, the defendant, a stranger to the victim, broke into her apartment by tunneling through the wall of an adjacent apartment with a crowbar, and then beat and raped the victim with the crowbar before setting fire to a box of items. Relative to the attempted arson, we recited the following facts, which occurred after the defendant repeatedly struck the victim’s head with the crowbar until she “was completely out”: “When the victim regained consciousness, she saw a pool of blood next to her and she smelled smoke. The smoke was coming from a box the defendant had stuck in a hole in the wall. She dragged the flaming box into the bathtub and retrieved a fire […]
Commonwealth v. Smith (Lawyers Weekly No. 11-126-16)
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 15-P-413 Appeals Court COMMONWEALTH vs. BRIAN SMITH. No. 15-P-413. Suffolk. June 9, 2016. – September 15, 2016. Present: Carhart, Maldonado, & Henry, JJ. Practice, Criminal, New trial, Disclosure of evidence. Privileged Communication. Evidence, Privileged communication, Motive, Disclosure of evidence. Attorney at Law, Attorney-client relationship. Cooperation with Government Agents. Indictments found and returned in the Superior Court Department on May 3, 2005. A motion for a new trial, filed on February 21, 2012, was considered by Janet L. Sanders, J. Michelle Menken for the defendant. Zachary Hillman, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from the denial of his motion for a new trial without an evidentiary hearing. Because we conclude that the defendant has raised several substantial issues, we remand the case to the Superior Court for an evidentiary hearing. Background. 1. The trial. On August 18, 2006, the defendant was convicted by a Suffolk County Superior Court jury of armed home invasion, armed assault with intent to murder, and unlawful possession of a firearm (the Suffolk County case). His convictions were affirmed on appeal. Commonwealth v. Smith, 75 Mass. App. Ct. 196 (2009) (Smith I), S.C., 458 Mass. 1012 (2010). We summarize the facts underlying the convictions, which are set forth in full in Smith I. On the evening of March 13, 2005, Kenneth Lowe and his girlfriend Niki Semnack were in Lowe’s apartment in the Charlestown section of Boston, where Lowe had spent much of the evening ingesting “crack” cocaine. Around 11:30 P.M., Lowe heard a knock at the door and saw the defendant through the peephole. Lowe and the defendant had been friends for about eight months, and they usually smoked crack cocaine together. Lowe opened the door, and the defendant told him that a friend was downstairs and wanted Lowe to “take him up the street.”[1] Lowe declined, and, at that point, a white man wearing a “hoodie” with a bandana covering his face ran up the stairs holding a large silver gun. Smith I, supra at 197. “Lowe immediately tried to close the door, but the defendant placed his foot in the doorway, leaving a two- to three-inch gap. Lowe observed the masked man reach over the defendant and insert the gun into the apartment through the […]