Sullivan, et al. v. Connolly, et al. (Lawyers Weekly No. 11-012-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1563 Appeals Court KRISTEN SULLIVAN, administratrix,[1] & another[2] vs. THOMAS CONNOLLY & another.[3] No. 15-P-1563. Suffolk. December 14, 2016. – February 17, 2017. Present: Grainger, Sullivan, & Kinder, JJ. Negligence, Medical malpractice, Wrongful death, Spoliation of evidence. Wrongful Death. Minor, Wrongful death. Practice, Civil, Wrongful death, Instructions to jury, Opening statement, New trial, Bias of judge. Civil action commenced in the Superior Court Department on March 18, 2010. The case was tried before Linda E. Giles, J., and a motion for new trial was considered by her. Benjamin R. Novotny for the plaintiffs. Brooks L. Glahn for the defendants. GRAINGER, J. A jury in the Superior Court returned a defendants’ verdict in this medical malpractice suit and wrongful death action resulting from the death of an infant within three days of birth. The plaintiffs appeal, asserting claims of error in the judge’s evidentiary rulings, in her instructions to the jury and, in a more disturbing allegation, accusing the judge of persistent favoritism and biased conduct requiring a new trial. After a careful review of both the record appendix and the trial transcript in their entirety, we affirm the judgment. Moreover, for the reasons set forth below, we conclude that the allegations of judicial bias in the plaintiffs’ motion for a new trial are unfounded, and that they exemplify pleading material appropriate for a motion to strike as set forth in Mass.R.Civ.P. 12(f), 365 Mass. 754 (1974). We address the plaintiffs’ claims in the order briefed on appeal, noting that the claims of error are intertwined with the assertion of judicial bias. We refer to the factual assertions of the parties as they relate to the issues; the underlying facts are generally undisputed. Missing witness instruction. 1. Adverse inference. A central issue at trial related to fetal heart rate tracings. These tracings are electronically monitored to ensure that a fetus maintains a minimally healthy heart rate before and during delivery. The plaintiffs asserted that the defendants were negligent by failing to monitor the decedent’s tracings with appropriate care, failing to recognize that the tracings signaled an unacceptably slow (nonreassuring) heart rate and, consequently, failing to perform an urgently required cesarean section in a timely manner. The defendants asserted that the tracings indicated a reassuring heart rate, and that […]
Commonwealth v. Samuel S., a juvenile (Lawyers Weekly No. 10-033-17)
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-12135 COMMONWEALTH vs. SAMUEL S., a juvenile. Hampden. November 9, 2016. – February 17, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Youthful Offender Act. Delinquent Child. Global Positioning System Device. Juvenile Court, Delinquent child, Probation. Practice, Criminal, Juvenile delinquency proceeding, Probation. Complaint received and sworn to in the Hampden County Division of the Juvenile Court Department on August 21, 2014. Indictments found and returned in the Superior Court Department on October 3, 2014. Motions for relief from conditions of probation were heard by Judith J. Phillips, J., and a motion for reconsideration was considered by her. The Supreme Judicial Court granted an application for direct appellate review. Laura Chrismer Edmonds for the juvenile. Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth. Ryan M. Schiff & Caroline Alpert, Committee for Public Counsel Services, for Youth Advocacy Division of the Committee for Public Counsel Services, amicus curiae, submitted a brief. BOTSFORD, J. The juvenile was adjudicated both a youthful offender and a delinquent juvenile as the result of a single sexual assault. A Juvenile Court judge ordered the juvenile to register as a sex offender and to submit to global positioning system (GPS) monitoring, concluding that both consequences, under the relevant statutes, were mandatory. The juvenile argues that this conclusion was error. He argues first that the pertinent section of the sex offender registration statute, G. L. c. 6, § 178E (f), required the judge to make an individualized determination whether the juvenile must register as a sex offender because he was not “sentenced to immediate confinement” within the meaning of the statute. He also argues that the GPS monitoring statute, G. L. c. 265, § 47, as interpreted by this court in Commonwealth v. Hanson H., 464 Mass. 807 (2013), does not require youthful offenders to submit to GPS monitoring. We agree with the juvenile on both points. Accordingly, we vacate the judge’s decision.[1] Background. 1. Facts.[2] This case stems from a sexual assault that occurred in June, 2014. The juvenile, who was seventeen years old at the time, was at home with the victim, his five-year-old half-sister. The victim’s father returned home and entered the living room. There, he saw the victim […]
Adoption of Uday (Lawyers Weekly No. 11-011-17)
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 16-P-801 Appeals Court ADOPTION OF UDAY.[1] No. 16-P-801. Middlesex. January 5, 2017. – February 16, 2017. Present: Carhart, Massing, & Lemire, JJ. Adoption, Dispensing with parent’s consent. Minor, Adoption. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Indian Child Welfare Act. Practice, Civil, Adoption, Assistance of counsel. Petition filed in the Middlesex County Division of the Juvenile Court Department on May 9, 2013. The case was heard by Kenneth J. King, J. Daniel R. Katz for the father. Kari B. Kipf Horstmann for Department of Children and Families. Amy S. DiDonna for the child. MASSING, J. The father appeals from a decree terminating his parental rights with respect to his son, Uday.[2] He argues that the Department of Children and Families (department) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1912(a) (2012), that the department’s failure to make reasonable efforts to reunite him with the child vitiates the judge’s finding of parental unfitness, and that the finding of unfitness is unsupported in any event. We affirm. ICWA notice. The father contends that despite the department’s knowledge of Uday’s possible Cherokee ancestry, it failed to “notify the . . . Indian child’s tribe . . . of the pending [termination] proceedings.” 25 U.S.C. § 1912(a). He also claims that his attorney was ineffective for failing to assert an ICWA claim during the proceedings in the Juvenile Court. We permitted the department to file a supplemental record appendix in which the department submitted letters from the three federally recognized Cherokee tribes — the Cherokee Nation, the United Keetoowah Band of Cherokee Indians in Oklahoma, and the Eastern Band of Cherokee Indians — all to the effect that Uday does not qualify as an “Indian child” under 25 U.S.C. § 1903(4) (2012).[3] See Indian Entities Recognized and Eligible To Receive Services from the United States Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,385, 26,388 (2013) (listing tribal entities recognized as “Indian tribes” under 25 U.S.C. § 1903[4] and which must be notified of involuntary custody proceedings in which Indian child is involved). These responsive letters from the three Cherokee tribes demonstrate that the department in fact did comply with ICWA notice provision. While any ICWA claim the father or child may have had fails in […]
Western Investment LLC v. Deutsche Multi-Market Income Trust, et al. (Lawyers Weekly No. 12-009-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3082 BLS 1 WESTERN INVESTMENT LLC vs. DEUTSCHE MULTI-MARKET INCOME TRUST, DEUTSCHE STRATEGIC INCOME TRUST and the individual trustees thereof1 MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case presents a paradoxical claim by a shareholder against the trustees of two companies for strictly adhering to the plain provisions of the companies’ by-laws with respect to the election of board members. Plaintiff, Western Investment LLC, alleges that the application by the trustees of a duly adopted by-law, in existence for seven years, was a breach of fiduciary duty. For the reasons described below, Western’s complaint fails to state a valid claim. Defendants’ motion to dismiss must be granted. BACKGROUND The following facts are taken from the complaint, supplemented by documents referred to in the complaint such as the declarations of trust and the by-laws of the two defendant companies.2 1 Kenneth C. Froewiss, John W. Ballantine, Henry P. Becton, Jr., Dawn-Marie Driscoll, Keith R. Fox, Paul K. Freemen, Richard J. Herring, William McClayton, Rebecca W. Rimel, William N. Searcy, Jr., Jean Gleason Stromberg 2 Upon a motion to dismiss, the court is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint. See Harhen v. Brown, 431 Mass. 838, 1 Western is a long-time shareholder in two closed-end investment funds, defendants Duetsche Multi-Market Income Trust (“KMM”) and Duetsche Strategic Income Trust (“KST”). Western purchased shares in KMM in 1997 and in KST in 2002. Western brings this action to challenge the action of the trustees of the trusts in connection with the September 30, 2016, vote of shareholders for the election of trustees. KMM and KST are organized as Massachusetts business trusts. They are governed by declarations of trust and by-laws that for all purposes relevant to this litigation are substantively identical. The eleven individual defendants are trustees of the two trusts. They constitute the board of trustees of both KMM and KST. The boards are divided into three classes of trustees. Each class is elected for a three year term and the elections are staggered so that only one class of trustees is up for election per year. In 2016, four seats on the board were up for election. In the 2016 election, Western nominated a slate of four individuals to run against four incumbent members of the board. With respect to both KMM and KST, the Western nominees obtained more votes than the incumbent trustees. For the KMM election, in which 11.97 million, or 53.47% of the 22.39 million outstanding shares were present and voting, the Western nominees each obtained the vote of approximately 6.2 million shares, while the incumbents […]
Categories: News Tags: 1200917, Deutsche, Income, Investment, Lawyers, MultiMarket, Trust, Weekly, Western
Adoption of Yadira (and two companion cases) (Lawyers Weekly No. 10-030-17)
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-12113 ADOPTION OF YADIRA (and two companion cases).[1] Suffolk. November 7, 2016. – February 14, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Adoption, Dispensing with parent’s consent. Minor, Adoption. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Regulation. Practice, Civil, Adoption, Report. Petitions filed in the Suffolk Division of the Probate and Family Court Department on March 20, 2014. A motion to deny the petitions was heard by Virginia M. Ward, J. The Supreme Judicial Court granted an application for direct appellate review. Jeanne M. Kaiser for the mother. Brian Pariser for Department of Children and Families. Nena S. Negron for Yadira & others. Michael F. Kilkelly, for the father, was present but did not argue. BUDD, J. We granted an application for direct appellate review in this case to determine whether the Code of Federal Regulations, 45 C.F.R. § 400.115(c) (1998), allows the Department of Children and Families (department) to petition for termination of parental rights on behalf of unaccompanied refugee minors whose parents also are present in the United States. We hold that the regulations do allow such petitions. Background. In December, 2010, four minor siblings arrived in Massachusetts from a Nepalese refugee camp through the Federal Unaccompanied Refugee Minors Program (minor refugee program). See Custody of Victoria, 473 Mass. 64, 65 n.1 (2015). The department placed two of the children in a foster home in Fitchburg and the other two in a foster home in Ashby.[2] No later than April, 2013, the children’s mother and father had entered the United States and settled in North Dakota and Ohio, respectively. Since coming to the United States, both the mother and the father have had “very limited contact” with the children. In March, 2014, the department petitioned the Probate and Family Court to free the children for adoption by terminating parental rights pursuant to G. L. c. 210, § 3.[3] The mother moved to deny the department’s petition. The judge denied the mother’s motion and subsequently reported the matter to the Appeals Court. In her report, the judge framed the following question for the court’s consideration: “Is it permissible under the Code of Federal Regulations for the [department] to proceed to seek a termination of parental […]
Commonwealth v. French (Lawyers Weekly No. 10-031-17)
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-12012 COMMONWEALTH vs. ERIC S. FRENCH. February 14, 2017. Breaking and Entering. Larceny. Practice, Criminal, Required finding. Evidence, Fingerprints, Identification. Identification. Following a jury-waived trial in the District Court, a judge found the defendant, Eric S. French, guilty of breaking and entering in the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 18, and larceny of property over $ 250, in violation of G. L. c. 266, § 30 (1). The defendant appealed, arguing that the evidence was insufficient to support the convictions.[1] The Appeals Court, in a divided decision, affirmed the judgments. See Commonwealth v. French, 88 Mass. App. Ct. 477 (2015). The case is now before this court on further appellate review. Because we conclude that the evidence was not sufficient to find, beyond a reasonable doubt, that the defendant committed the crimes charged, we reverse. Background. The convictions stem from a break-in and robbery that occurred at a market in Springfield in August, 2013. At trial, one of the proprietors of the store testified that she closed the store at 6 P.M. on August 30. She returned to the store “during the night” after being notified of a break-in. When she arrived she saw that “[s]omebody had broken in on the side window and taken the panel out and climbed in.” She also testified that approximately $ 400 to $ 500 worth of cigarettes had been stolen. Several Springfield police officers also testified. Officer Eugene Rooke responded to a call to go to the market on the morning of August 31, and arrived there with his partner at approximately 7:20 A.M. When they arrived, they spoke with two men who lived next door to the store and who had alerted the police that a front window to the store was “missing.” Officer Rooke saw that the plexiglass window pane from the window located to the right of the front door had been removed and was set against the door. Photographs entered as exhibits at trial show the plexiglass leaning against the front door, next to the window frame from which it had been removed. Officer Rooke estimated that when the plexiglass was intact, inside the window frame, the top of it was more than six feet, four inches from the ground. Additionally, he saw a milk […]
Cardno ChemRisk, LLC v. Foytlin, et al. (Lawyers Weekly No. 10-032-17)
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-12082 CARDNO CHEMRISK, LLC vs. CHERRI FOYTLIN & another.[1] Suffolk. October 7, 2016. – February 14, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. “Anti-SLAPP” Statute. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on December 16, 2014. A special motion to dismiss was heard by Edward P. Leibensperger, J. The Supreme Judicial Court granted an application for direct appellate review. John H. Reichman, of New York (James E. Grumbach also present) for the defendants. Megan L. Meier, of Virginia (Samuel Perkins also present) for the plaintiff. Thomas R. Sutcliffe, Jeffrey J. Pyle, & Sarah R. Wunsch, for American Civil liberties Union of Massachusetts, amicus curiae, submitted a brief. LENK, J. On April 20, 2010, an oil rig operated by British Petroleum (BP), known as Deepwater Horizon, suffered a catastrophic explosion causing approximately 4.9 million barrels of oil to flow into the Gulf of Mexico, some forty miles off the coast of Louisiana. Three and one-half years after the oil spill, and during the ensuing multidistrict Federal litigation in New Orleans regarding BP’s liability for it, the defendants, both environmental activists, contributed an article appearing in the Huffington Post, an Internet Web site. That article, also known as a “blog posting,” contained criticism of the plaintiff, Cardno ChemRisk, LLC (ChemRisk), a scientific consulting firm that BP had retained to assess the toxic effects of the oil spill on cleanup workers. ChemRisk maintains that certain of these criticisms constitute actionable defamation. ChemRisk brought claims for defamation against both defendants, in Massachusetts and in New York.[2] The defendants filed a special motion to dismiss the Massachusetts suit under G. L. c. 231, § 59H, the “anti-SLAPP” statute. A Superior Court judge denied the motion, concluding that insofar as the Internet blog posting at issue did not concern or seek to advance the defendants’ own interests, but rather those of the cleanup workers, the defendants had not met their threshold burden of showing that the suit was based exclusively on the “exercise of [their] right of petition under the [C]onstitution,” as that phrase has been interpreted in our case law. G. L. c. 231, § 59H. We conclude, to the contrary, that the defendants were engaged in protected petitioning activity, which was the sole basis […]
Western Investment LLC v. Deutsche Multi-Market Income Trust, et al. (Lawyers Weekly No. 12-009-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3082 BLS 1 WESTERN INVESTMENT LLC vs. DEUTSCHE MULTI-MARKET INCOME TRUST, DEUTSCHE STRATEGIC INCOME TRUST and the individual trustees thereof1 MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case presents a paradoxical claim by a shareholder against the trustees of two companies for strictly adhering to the plain provisions of the companies’ by-laws with respect to the election of board members. Plaintiff, Western Investment LLC, alleges that the application by the trustees of a duly adopted by-law, in existence for seven years, was a breach of fiduciary duty. For the reasons described below, Western’s complaint fails to state a valid claim. Defendants’ motion to dismiss must be granted. BACKGROUND The following facts are taken from the complaint, supplemented by documents referred to in the complaint such as the declarations of trust and the by-laws of the two defendant companies.2 1 Kenneth C. Froewiss, John W. Ballantine, Henry P. Becton, Jr., Dawn-Marie Driscoll, Keith R. Fox, Paul K. Freemen, Richard J. Herring, William McClayton, Rebecca W. Rimel, William N. Searcy, Jr., Jean Gleason Stromberg 2 Upon a motion to dismiss, the court is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint. See Harhen v. Brown, 431 Mass. 838, 1 Western is a long-time shareholder in two closed-end investment funds, defendants Duetsche Multi-Market Income Trust (“KMM”) and Duetsche Strategic Income Trust (“KST”). Western purchased shares in KMM in 1997 and in KST in 2002. Western brings this action to challenge the action of the trustees of the trusts in connection with the September 30, 2016, vote of shareholders for the election of trustees. KMM and KST are organized as Massachusetts business trusts. They are governed by declarations of trust and by-laws that for all purposes relevant to this litigation are substantively identical. The eleven individual defendants are trustees of the two trusts. They constitute the board of trustees of both KMM and KST. The boards are divided into three classes of trustees. Each class is elected for a three year term and the elections are staggered so that only one class of trustees is up for election per year. In 2016, four seats on the board were up for election. In the 2016 election, Western nominated a slate of four individuals to run against four incumbent members of the board. With respect to both KMM and KST, the Western nominees obtained more votes than the incumbent trustees. For the KMM election, in which 11.97 million, or 53.47% of the 22.39 million outstanding shares were present and voting, the Western nominees each obtained the vote of approximately 6.2 million shares, while the incumbents […]
Categories: News Tags: 1200917, Deutsche, Income, Investment, Lawyers, MultiMarket, Trust, Weekly, Western
Commonwealth v. Accime (Lawyers Weekly No. 10-029-17)
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-12081 COMMONWEALTH vs. RICHIE ACCIME. Suffolk. November 9, 2016. – February 13, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Idle and Disorderly Person. Self-Defense. Practice, Criminal, Instructions to jury. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on July 19, 2011. The case was tried before Annette Forde, J. The Supreme Judicial Court granted an application for direct appellate review. Jeffrey A. Garland, Committee for Public Counsel Services, for the defendant. Donna Jalbert Patalano, Assistant District Attorney (Neil J. Flynn, Jr., Assistant District Attorney, also present) for the Commonwealth. Bettina Toner, Robert D. Fleischner, Jennifer Honig, Chetan Tiwari, & Phillip Kassel, for Center for Public Representation & another, amici curiae, submitted a brief. BOTSFORD, J. The defendant, Richie Accime, appeals from his disorderly conduct conviction under G. L. c. 272, § 53, claiming there was insufficient evidence to support it. The charge was brought against him in relation to his conduct as a patient in the psychiatric area of the emergency department at a hospital in Boston. Accime argues that in the circumstances of this case, the Commonwealth failed to prove he consciously disregarded a “substantial and unjustifiable risk of public inconvenience, annoyance, or alarm.” Emphasizing the setting-specific inquiry required by our case law, we agree with the defendant and reverse the judgment of conviction.[1] Background. a. Facts. Viewing the facts in the light most favorable to the Commonwealth, the jury could have found the following. In the afternoon of June 5, 2011, the defendant was brought by ambulance and against his will to the emergency department of a hospital. There he was involuntarily detained in a small room in the psychiatric area of the hospital’s emergency department. Although this detention was purportedly pursuant to G. L. c. 123, § 12 (a), which allows the temporary restraint and hospitalization of persons posing a serious risk of harm by reason of mental illness, according to the defendant, who testified at trial, he was shown no evidence of compliance with the procedures required by § 12 (a), nor was any such evidence produced at trial. When told he would likely be held in the hospital for two or three days, the defendant began to shout. Medical […]
Commonwealth v. Thomas (Lawyers Weekly No. 10-028-17)
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-12055 COMMONWEALTH vs. MARCUS THOMAS. Hampden. October 7, 2016. – February 13, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Constitutional Law, Identification. Due Process of Law, Identification, Identification of inanimate object. Evidence, Identification, Identification of inanimate object. Identification. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on April 3, 2015. Pretrial motions to suppress evidence were considered by Edward J. McDonough, Jr., J. Applications for leave to prosecute interlocutory appeals were allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the Commonwealth. Paul R. Rudof, Committee for Public Counsel Services, for the defendant. The following submitted briefs for amici curiae: David Zhang, of China, Karen A. Newirth, of New York, Joshua Asher, of Illinois, & Radha Natarajan & Kirsten Mayer for The Innocence Project, Inc. & another. Anthony D. Mirenda, Michael J. Licker, Melissa A. Stewart, & Chauncey Wood for Massachusetts Association of Criminal Defense Lawyers. GANTS, C.J. These interlocutory appeals from two rulings on motions to suppress raise three substantial issues regarding eyewitness identification. First, we consider what consequence, if any, is appropriate where a police officer who is showing a photographic array to an eyewitness fails to use the protocol that we outlined in Commonwealth v. Silva–Santiago, 453 Mass. 782, 797-798 (2009), despite our declaration in that opinion that we “expect” police to use the protocol in the future. Second, we examine whether, based on subsequent research, we should revisit the conclusion we reached in Silva–Santiago, supra at 798-799, and confirmed in Commonwealth v. Walker, 460 Mass. 590, 602-603 (2011), that the choice of a simultaneous rather than a sequential display of photographs in an array may be relevant to the weight to be given to an identification but does not affect its admissibility. The third issue concerns the identification of an inanimate object — a firearm. We determine whether suggestive police questioning and subsequent police confirmation appropriately may result in suppression of the identification of a firearm as the firearm used by the defendant during the commission […]