Commonwealth v. Iacoviello (and three companion cases) (Lawyers Weekly No. 11-125-16)
OTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1818 Appeals Court COMMONWEALTH vs. ROBERT IACOVIELLO (and three companion cases[1]). No. 13-P-1818. Suffolk. April 8, 2016. – September 15, 2016. Present: Cypher, Katzmann, & Massing, JJ. Homicide. Practice, Criminal, Instructions to jury. Self-Defense. Wanton or Reckless Conduct. Intoxication. Evidence, Prior violent conduct. Accessory and Principal. Indictments found and returned in the Superior Court Department on December 20, 2007. The cases were tried before Patrick F. Brady, J., and a motion for a new trial, filed on May 6, 2014, was heard by him. Sara A. Laroche (Patricia L. Garin with her) for Robert Iacoviello. Willie J. Davis for James Heang. Cailin M. Campbell, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth. CYPHER, J. In the early morning hours of September 29, 2007, two groups converged in the dark near a baseball field behind Revere High School. One group consisted primarily of off-duty Revere police officers dressed in civilian clothes. The other group consisted of four local young men who were either members of or affiliated with a gang. Both groups had been drinking for much of the night. Heated, gang-related words were exchanged. Guns were fired from both sides. One person, off-duty Revere police Officer Daniel Talbot, was fatally wounded. A second person, defendant Robert Iacoviello, was charged with murder in the first degree, carrying a firearm without a license, and possession of a firearm without a firearm identification card. A third person, defendant James Heang, who had not been present during the fateful encounter, was charged with being an accessory after the fact in aid of Iacoviello and carrying a firearm without a license. In a joint trial, a jury found Iacoviello guilty of murder in the second degree, G. L. c. 265, § 1, and carrying a firearm without a license, G. L. c. 269, § 10(a).[2] The jury found Heang not guilty of carrying a firearm without a license, G. L. c. 269, § 10(a), but guilty of being an accessory after the fact, G. L. c. 274, § 4. The defendants appeal, raising issues they preserved during the proceedings below. Iacoviello primarily argues that the trial judge erred by declining to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. Heang primarily argues that the trial judge erred by prohibiting […]
Categories: News Tags: 1112516, cases, Commonwealth, companion, Iacoviello, Lawyers, three, Weekly
Trychon v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-124-16)
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-1316 Appeals Court STEPHEN TRYCHON vs. MASSACHUSETTS BAY TRANSPORATION AUTHORITY. No. 15-P-1316. Suffolk. May 16, 2016. – September 15, 2016. Present: Agnes, Massing, & Kinder, JJ. Massachusetts Bay Transportation Authority. Practice, Civil, Motion to dismiss. Employment, Termination, Retaliation. Civil action commenced in the Superior Court Department on February 11, 2014. A motion to dismiss was heard by Heidi E. Brieger, J. Kevin G. Powers for the plaintiff. Jeffrey A. Dretler for the defendant. AGNES, J. In this appeal, we must determine the legal sufficiency of Stephen Trychon’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute (whistleblower statute). A Superior Court judge allowed the MBTA’s motion, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint.[1] We conclude that Trychon has stated a plausible claim for relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Accordingly, we reverse the judgment. Standard of review. We review the order dismissing the complaint de novo, accepting the truth of all factual allegations and drawing all reasonable inferences in Trychon’s favor. See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 754 (2014). A complaint is sufficient to withstand a motion to dismiss if the factual allegations “plausibly suggest” an entitlement to relief, raising the right to relief “above the speculative level.” Harrington v. Costello, 467 Mass. 720, 724 (2014), quoting from Iannacchino, supra. See Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974). The factual content is sufficient if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014), quoting from Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “it . . . raise[s] a reasonable expectation that discovery will reveal evidence [of the alleged misconduct].” Lopez v. Commonwealth, 463 Mass. 696, 712 (2012), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In conducting the “context-specific” inquiry required by the plausibility standard, we must “draw on [our] judicial experience and common sense.” Lopez, supra, quoting from Ashcroft, supra at 679. “The critical question is whether the claim, viewed holistically, is made plausible by ‘the cumulative effect of the factual allegations’ […]
Categories: News Tags: 1112416, Authority, Lawyers, massachusetts, Transportation, Trychon, Weekly
Albright v. Boston Scientific Corporation (Lawyers Weekly No. 11-123-16)
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-633 Appeals Court DIANE ALBRIGHT vs. BOSTON SCIENTIFIC CORPORATION.[1] No. 15-P-633. Middlesex. April 15, 2016. – September 13, 2016. Present: Cypher, Katzmann, & Massing, JJ. Conflict of Laws. Negligence, Defective product, Design, Adequacy of warning, Duty to warn. Evidence, Relevancy and materiality, Rebuttal, Bias. Error, Harmless. Practice, Civil, Instructions to jury. Civil action commenced in the Superior Court Department on March 8, 2012. The case was tried before Diane M. Kottmyer, J. Jonathan D. Orent (Dennis A. Costigan with him) for the plaintiff. Robert T. Adams, of Missouri (Susan M. Donnelly Murphy with him) for the defendant. KATZMANN, J. The plaintiff Diane Albright, an Ohio resident, brought this action in the Superior Court against defendant Boston Scientific Corporation (BSC), a Massachusetts-based company, seeking damages for injuries that she sustained after having BSC’s “Pinnacle Pelvic Floor Repair” kit (Pinnacle device) surgically implanted to treat her pelvic organ prolapse (POP) condition.[2] BSC designed, manufactured, and marketed the Pinnacle device and sold it to the Ohio hospital where Albright’s surgery took place. After a three-week trial, a jury found for BSC on Albright’s claims of defective design and inadequate warning. On appeal, Albright challenges the exclusion of the medical application caution (caution) contained within the 2004 material safety data sheet (MSDS)[3] that had been provided to BSC by its supplier of the polypropylene material used to fabricate the mesh in the Pinnacle device. Albright offered the caution for the limited purpose of showing notice and knowledge on the part of BSC. Albright also claims error from the exclusion of two letters that the United States Food and Drug Administration (FDA) sent to BSC in 2012.[4] We conclude that, in the context of the case as it unfolded at trial, it was prejudicial error to exclude the proffered caution and FDA letters. The judgment in favor of BSC shall therefore be vacated and the case remanded to the Superior Court for a new trial. Background. There was evidence from which the jury could have found the following.[5] Surgeries. In 2008, Albright had surgery to treat POP symptoms involving her bladder. Dr. Jay Meyer performed a procedure[6] that did not involve the implantation of surgical mesh. Less than twelve months later, Albright experienced a recurrence of the bulging sensation in her […]
Categories: News Tags: 1112316, Albright, boston, Corporation, Lawyers, Scientific, Weekly
Vinnie v. Commonwealth (Lawyers Weekly No. 10-146-16)
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-12011 RAYMOND P. VINNIE vs. COMMONWEALTH. September 12, 2016. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Capital case. Mandamus. Practice, Civil, Action in nature of mandamus, Fraud. Fraud. The defendant, Raymond P. Vinnie, was convicted of murder in the first degree in 1993. In his first motion for a new trial he argued, among other things, that his trial counsel erred in not requesting, and the judge erred in not giving, an instruction to the jury that it could return a verdict of guilty of murder in the second degree. The motion judge, who was also the trial judge, denied the motion. The defendant’s appeal from that denial was consolidated with his direct appeal, and we affirmed both the conviction and the denial of the motion for a new trial. Commonwealth v. Vinnie, 428 Mass. 161 (1998), cert. denied, 525 U.S. 1007 (1998). Since then, the defendant has filed numerous additional postconviction motions, the latest of which was a “petition in the nature of mandamus pursuant to G. L. c. 249, § 5,” which he filed in the county court in 2015. A single justice denied the petition on the basis that mandamus relief was not appropriate because the defendant had another adequate remedy. The single justice also noted that even if he were to treat the petition as a subsequent motion for a new trial and, accordingly, consider it pursuant to the gatekeeper provision of G. L. c. 278, § 33E, he would deny it because the jury instruction issue was not “new and substantial.” After the single justice denied the petition, the defendant filed a notice of appeal, and, after his appeal was entered in this court, a brief. The Commonwealth subsequently filed a motion to dismiss, arguing that there is no right to appeal from the denial of a gatekeeper petition pursuant to G. L. c. 278, § 33E. The defendant, in turn, filed an opposition to the Commonwealth’s motion, arguing that what he filed in the county court was not a gatekeeper petition but, rather, a mandamus petition. Regardless whether we consider the petition pursuant to G. L. c. 249, § 5, or G. L. c. 278, § 33E, the defendant is not entitled to relief. As the Commonwealth correctly notes, a single justice’s decision, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, is final and unreviewable. Commonwealth v. Scott, […]
Eresian v. Merrill Lynch Credit Corporation, et al. (Lawyers Weekly No. 10-145-16)
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-12006 EVELYN J. ERESIAN vs. MERRILL LYNCH CREDIT CORPORATION[1] & others.[2],[3] September 12, 2016. Supreme Judicial Court, Superintendence of inferior courts. In the early 1990s, the petitioner, Evelyn J. Eresian, was the defendant in a summary process action in the Housing Court. The Appeals Court affirmed a judgment against Eresian in that action in 1993, and this court subsequently denied Eresian’s application for further appellate review. See Merrill Lynch Equity Mgt., Inc. v. Eresian, 34 Mass. App. Ct. 1125, S.C., 416 Mass. 1104 (1993). In the years since, Eresian has sought repeatedly, and unsuccessfully, to challenge the foreclosure that led to the summary process action. This case represents the latest iteration of those efforts. In 2015, Eresian filed a motion in the Appeals Court seeking to vacate that court’s 1993 decision. The Appeals Court’s response, as noted on its docket, was that “[t]he case is closed as the rescript has issued to the trial court. No action will be taken by the court on this or any future filing in this matter.”[4] Eresian subsequently filed a petition pursuant to G. L. c. 211, § 3, in the county court in which she asked the single justice to require the Appeals Court to review the jurisdictional issue. A single justice denied the petition, and Eresian timely filed a notice of appeal. Her appeal was entered in the full court on November 27, 2015. On January 22, 2016, Eresian asked for and received leave to extend the time for filing her brief to February 29, 2016. After Eresian failed to file her brief on or before that date, the defendants filed a motion to dismiss the appeal. Eresian, in turn, filed several documents in response to the motion to dismiss, including an opposition and a supplemental opposition. She has not yet, however, filed a brief, and we could dismiss her appeal on this basis alone — that she has failed to prosecute the appeal. She would fare no better even if we were to reach the merits. This case was not a proper use of G. L. c. 211, § 3. Eresian has already obtained appellate review of the summary process judgment, and she has not demonstrated that the remedy of ordinary appellate review was inadequate. There is no reason why she could not have raised her current jurisdictional claim in the Appeals […]
Callahan v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-122-16)
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-475 Appeals Court ELEANOR CALLAHAN vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1] No. 15-P-475. Suffolk. February 1, 2016. – September 12, 2016. Present: Cohen, Carhart, & Kinder, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide. Registrar of Motor Vehicles, Revocation of license to operate. License. Administrative Law, Decision. Civil actions commenced in the Superior Court Department on March 31, 2011, and January 21, 2014. After consolidation, the case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion to dismiss was also heard by him. Martin P. Desmery for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for the defendants. COHEN, J. The plaintiff sought judicial review of a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) denying her application for reinstatement of her driver’s license. On cross motions for judgment on the pleadings, a judge of the Superior Court ruled in favor of the board, and the plaintiff appealed to this court. The plaintiff argues that the board erred in determining that her 1989 conviction of “driving while ability is impaired,” in violation of the New York State Vehicle Traffic Law (VTL), is “substantially similar” to a Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), thereby subjecting her to lifetime revocation of her driver’s license as a result of her subsequent conviction of motor vehicle homicide while OUI. The plaintiff also argues that the board lacked the authority to reconsider an earlier decision granting her a restricted, hardship license. For the reasons that follow, we affirm. Background. The relevant facts are drawn from the administrative record and are not disputed. On October 30, 1988, the plaintiff was charged in Lewisboro, New York, with driving while intoxicated per se, pursuant to VTL § 1192.2; driving while intoxicated, pursuant to VTL § 1192.3; and driving left of the pavement marking, pursuant to VTL § 1126a. These charges were resolved on January 23, 1989, when the plaintiff pleaded guilty to the lesser charge of “driving while ability is […]
Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, et al. (Lawyers Weekly No. 11-121-16)
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-117 Appeals Court JOSEPH L. BURKE vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1] No. 15-P-117. Suffolk. March 16, 2016. – September 12, 2016. Present: Cohen, Katzmann, & Blake, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide. License. Registrar of Motor Vehicles, Revocation of license to operate. Administrative Law, Agency’s interpretation of statute. Statute, Construction, Retroactive application. Civil action commenced in the Superior Court Department on December 9, 2013. The case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by him. Brian K. Wells for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants. KATZMANN, J. In this appeal, we are again asked to consider whether a lifetime suspension is appropriate for a driver who, after having committed an operating under the influence (OUI) offense, causes a fatality in the course of a second OUI offense. Plaintiff Joseph Burke appeals from a judgment of the Superior Court upholding a decision of the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) that affirmed the denial by the Registrar of Motor Vehicles (registrar) of Burke’s application for reinstatement of his driver’s license pursuant to G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well as the registrar’s permanent revocation of that license, on the basis that Burke’s second drunk driving offense resulted in a fatality.[2] We affirm. Background. On February 27, 2000, Burke, was arrested for OUI after a motor vehicle accident in Rehoboth. On May 1, 2000, Burke admitted to sufficient facts for a finding of guilty of OUI in connection with the February incident but received the benefit of a continuance without a finding of guilty (CWOF) for one year until May 1, 2001, during which time he was placed on probation. The terms of his probation included a 180-day loss of license and an assignment to an alcohol education program. On August 6, 2000, while still on probation with his license suspended as a result of the incident the previous February, Burke drove a […]
Commonwealth v. Leonard (and a companion case) (Lawyers Weekly No. 11-120-16)
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-1464 Appeals Court COMMONWEALTH vs. JULIE LEONARD (and a companion case[1]). No. 14-P-1464. Essex. February 11, 2016. – September 9, 2016. Present: Kafker, C.J., Rubin, & Agnes, JJ. Assault and Battery by Means of a Dangerous Weapon. Dangerous Weapon. Reckless Endangerment of a Child. Practice, Criminal, Complaint, Dismissal. Probable Cause. Complaints received and sworn to in the Gloucester Division of the District Court Department on January 14 and 17, 2013. Motions to dismiss were heard by Joseph W. Jennings, III, J. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. Matthew Wright Hemond for the defendants. AGNES, J. This is the Commonwealth’s appeal from the dismissal of one count of assault and battery by means of a dangerous weapon against defendant Julie Leonard, and one count each of child endangerment against defendants Julie Leonard and Mark Leonard.[2] We conclude that the complaints established probable cause for the elements of the crimes charged. Accordingly, we vacate the judgments of dismissal and order that the complaints be reinstated. Background. a. Police report. We recite the facts contained in the police report written by Detective Jeremiah Nicastro of the Gloucester police department in support of his application for the criminal complaints. On the evening of November 30, 2012, a group of youths (ages sixteen and seventeen) were invited to a party at the home of the defendants, Mark and Julie Leonard, the parents of one of the teens. The teens were supplied with alcohol by the twenty-three year old boyfriend of the defendants’ daughter, and were drinking vodka, beer, and tequila when Mark arrived home at 9:30 P.M. Mark joined his daughter and her friends in consuming beer. Julie arrived home around 11:00 P.M. and also joined them, consuming red wine. Mark smoked marijuana with his daughter and her boyfriend, and the drinking continued until around 2:00 A.M. One of the daughter’s friends, Susan,[3] aged sixteen, became “extremely ill and began to throw up” during the early morning hours, and stayed at the defendants’ home overnight. Susan asked Julie, who is a nurse, to take her to the hospital, but Julie explained that “if she [went] to the hospital they [would] give her an IV and put a tube down her throat.” Susan was also concerned that she would get […]
Commonwealth v. Ellis (Lawyers Weekly No. 10-144-16)
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-11993 COMMONWEALTH vs. SEAN K. ELLIS. Suffolk. May 5, 2016. – September 9, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1] Practice, Criminal, New trial, Disclosure of evidence. Evidence, Exculpatory. Estoppel. Indictments found and returned in the Superior Court Department on October 27, 1993. Following review by this court, 432 Mass. 746 (2000), a motion for a new trial, filed on March 13, 2013, was heard by Carol S. Ball, J. A request for leave to appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk. Paul B. Linn, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with him) for the Commonwealth. Rosemary Curran Scapicchio (Jillise McDonough with her) for the defendant. GANTS, C.J. On September 14, 1995, a Superior Court jury found the defendant guilty of murder in the first degree and armed robbery in the killing of Boston police Detective John Mulligan. In 2000, we affirmed the defendant’s convictions and the denial of his motion for a new trial. Commonwealth v. Ellis, 432 Mass. 746, 765 (2000). In 2013, the defendant filed a second motion for a new trial based on newly discovered evidence regarding the victim’s participation in crimes of police corruption with several Boston police detectives who investigated his murder, and information provided to the police regarding possible third-party culprits. A Superior Court judge allowed the new trial motion, concluding that the newly discovered evidence cast real doubt on the justice of his convictions. We conclude that the judge did not abuse her discretion in ordering a new trial. Background. 1. Evidence at trial. The convictions at issue in this case arose from the defendant’s third trial. At the first trial, the jury found the defendant guilty of the illegal possession of two firearms without a license, but were unable to render verdicts on the murder and armed robbery indictments, and a mistrial was declared as to those indictments. The jury in the second trial were also unable to render verdicts on the murder and armed robbery indictments, resulting again in a mistrial. We recount the evidence presented at the defendant’s third trial. The victim had been a Boston police detective for seventeen years before his death. In the early […]