Commonwealth v. Sullivan (Lawyers Weekly No. 10-186-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11808 COMMONWEALTH vs. GERALD SULLIVAN. Middlesex. April 7, 2017. – November 16, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ. Homicide. Felony-Murder Rule. Armed Home Invasion. Deoxyribonucleic Acid. Practice, Criminal, Witness, Hearsay, Confrontation of witnesses, Disclosure of evidence, Capital case. Evidence, Hearsay, Expert opinion, Disclosure of evidence, Exculpatory, Qualification of expert witness, Impeachment of credibility. Witness, Police officer, Expert, Impeachment, Competency, Credibility. Constitutional Law, Confrontation of witnesses. Due Process of Law, Disclosure of evidence. Indictments found and returned in the Superior Court Department on June 30, 2011. The cases were tried before S. Jane Haggerty, J., and a motion for a new trial, filed on September 9, 2015, was heard by Edward P. Leibensperger, J. Leslie W. O’Brien for the defendant. Jessica Langsam, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, also present) for the Commonwealth. GAZIANO, J. A Superior Court jury convicted the defendant of felony-murder, with the predicate felony of armed home invasion, in the shooting death of Johnny Hatch on February 18, 2011.[1] In this direct appeal, the defendant argues that the evidence was insufficient to support his convictions. He also challenges several evidentiary rulings concerning the introduction of testimony about deoxyribonucleic acid (DNA) found on objects at the crime scene, and testimony concerning the use of a DNA profile of the defendant stored in the Combined DNA Index System (CODIS) database, which was described to the jury as a “national database.” In addition, the defendant maintains that the motion judge erred in denying his motion for a new trial on the ground that the Commonwealth did not provide exculpatory evidence concerning a forensic scientist’s failure to pass required proficiency tests. We conclude that the evidence was sufficient to support the convictions, and that none of the asserted errors in the trial proceedings requires a new trial. Further, having carefully reviewed the record, pursuant to our duty under G. L. c. 278, § 33E, we discern no reason to exercise our extraordinary authority to grant a new trial or to reduce the verdict to a lesser degree of guilt. Facts. We recite the facts the jury could have found, reserving certain facts for later discussion. At approximately 10 P.M. on February 18, 2011, John and Darlene Vieira[2] were in their apartment in West Medford. […]
Commonwealth v. Bolton (Lawyers Weekly No. 11-144-17)
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-960 Appeals Court COMMONWEALTH vs. SCOTT JOSEPH BOLTON. No. 16-P-960. Worcester. October 18, 2017. – November 16, 2017. Present: Massing, Kinder, & Ditkoff, JJ. Jurisdiction, Of crime. District Attorney. Constitutional Law, Place of trial. Practice, Criminal, Place of trial, District Attorney, Plea, New trial. Indictment found and returned in the Superior Court Department on November 18, 2011. Motions for relief from unlawful restraint and for a new trial, filed on March 24, 2016, were considered by James R. Lemire, J. Michael J. Hickson for the defendant. Donna-Marie Haran, Assistant District Attorney, for the Commonwealth. MASSING, J. In 1980 the Legislature decreed that the town of Bellingham, which is located within Norfolk County, “shall be considered to be within the jurisdiction of Worcester county” “[f]or the purpose of all civil and criminal matters.” St. 1980, c. 550, § 3. After pleading guilty in Worcester County Superior Court to an indictment issued by a Worcester County grand jury for an unarmed robbery that he committed in Bellingham, the defendant, Scott Joseph Bolton, filed a motion for relief from unlawful restraint seeking to vacate the conviction and dismiss the indictment on the grounds that the district attorney for the middle district[1] lacked authority to prosecute, and that the Worcester County grand jury lacked jurisdiction to return indictments with respect to, crimes alleged to have occurred in Bellingham. The judge who had accepted the guilty plea having denied his motion, the defendant appeals.[2] Concluding that the Legislature validly transferred jurisdiction over crimes committed in Bellingham to Worcester County, and that the defendant’s indictment and prosecution in Worcester County by the district attorney for the middle district did not violate his constitutional rights, we affirm. Jurisdiction of criminal matters related to Bellingham. A Worcester County grand jury issued a five-count indictment charging the defendant with unarmed robbery as a habitual offender and four misdemeanor violations of the automobile laws. The robbery took place in a Bellingham bank; the defendant was the getaway driver. Accepting an agreed-upon recommendation, a Superior Court judge sitting in Worcester County sentenced the defendant to a term of six to eight years with respect to the unarmed robbery charge, the Commonwealth agreed to dismiss the habitual offender component of the indictment, and the remaining guilty pleas were placed on file. […]
Wells Fargo Bank, N.A. v. Comeau (Lawyers Weekly No. 11-143-17)
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-335 Appeals Court WELLS FARGO BANK, N.A., trustee,[1] vs. NANCY P. COMEAU. No. 16-P-335. Essex. November 3, 2016. – November 15, 2017. Present: Agnes, Blake, & Desmond, JJ. Subrogation. Mortgage, Priority. Real Property, Mortgage. Civil action commenced in the Superior Court Department on June 17, 2013. The case was heard by Timothy Q. Feeley, J., on motions for summary judgment. Andrew S. Lee for the plaintiff. Gregory N. Eaton for the defendant. AGNES, J. Where, as in this case, the doctrine of equitable subrogation is invoked by a mortgagee, it usually refers to a situation in which that party claims that because it has paid the obligation of another person or entity, it is entitled to be put into the shoes of the party it has paid in order to recover from the person or entity that had the obligation.[2] In the present case, on the other hand, the plaintiff, Wells Fargo Bank, N.A., as trustee for WAMU Mortgage Pass Through Certificates Series 2005-PR2 Trust (Wells Fargo), asks us to employ the doctrine of equitable subrogation to impose on a surviving spouse an obligation to pay the balance of a note that her deceased husband was obligated to pay when he refinanced their home in circumstances in which the surviving spouse was a party to neither the note nor the accompanying mortgage. For the reasons that follow, we reject this novel argument as fundamentally at odds with the framework established by the Supreme Judicial Court in East Boston Sav. Bank v. Ogan, 428 Mass. 327 (1998). Background. Nancy P. Comeau (Nancy) and her husband, William L. Comeau (William),[3] owned a residence as tenants by the entirety in Groveland (locus), which, as of September 22, 2003, was encumbered by a mortgage to the Haverhill Co-Operative Bank (Haverhill) in the amount of $ 150,000. Both William and Nancy were mortgagors-grantors on that mortgage to Haverhill, but Nancy was not a signatory to the note. There is no evidence that Nancy represented, directly or indirectly, that she was bound by the terms of the note. Two years later, in 2005, William refinanced the 2003 loan by executing a note in his name only to Washington Mutual Bank, F.A. (Washington Mutual), in the amount of $ 300,000 secured […]
Brangan v. Commonwealth (Lawyers Weekly No. 10-185-17)
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-12284 JAHMAL BRANGAN vs. COMMONWEALTH. Suffolk. September 7, 2017. – November 14, 2017. Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ. Practice, Criminal, Double jeopardy, Indictment, Conduct of prosecutor, Argument by prosecutor. Robbery. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 19, 2016. The case was considered by Lowy, J. Merritt Schnipper for the defendant. Amal Bala, Assistant District Attorney, for the Commonwealth. CYPHER, J. The petitioner, Jahmal Brangan, appeals from the denial, by a single justice of the county court, of his petition for relief from the denial of his motion to dismiss the indictment against him for armed robbery while masked by the trial judge, after the Commonwealth’s closing argument led to a mistrial. Brangan argues that principles of double jeopardy forbid his retrial because the Commonwealth did not present sufficient evidence to sustain a guilty finding or, alternatively, the prosecutor’s misconduct was so egregious that it warranted a dismissal of the indictment. We affirm the decision of the single justice. Background. The following facts are taken from Commonwealth v. Brangan, 475 Mass. 143 (2016), and from the trial record.[1] In January, 2014, a bank in Springfield was robbed. The robber entered the bank with his face obscured by a hat and sunglasses. He was wearing gloves. His nose and his cheeks were nonetheless visible. He approached a teller’s window, but that window was closed so the teller asked him to move to another teller window. He then approached a second teller window and handed a note to that teller. The note stated that the robber had a weapon and demanded all of the teller’s cash. The teller complied and gave the robber an envelope with less than $ 1,000 in cash. The robber fled, and the police arrived shortly thereafter. The police processed the note for fingerprints within hours of the crime. On the note, the police found Brangan’s thumbprint. They also found a right palm print that was unusable for determining a match. Brangan was arrested. At trial, both bank tellers testified about the robber’s appearance. The tellers each described her recollection of the robber’s race, skin tone, and nose shape and size. One teller described the robber as having acne scars on his […]
135 Wells Avenue, LLC v. Housing Appeals Committee, et al. (Lawyers Weekly No. 10-184-17)
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-12253 135 WELLS AVENUE, LLC vs. HOUSING APPEALS COMMITTEE & others.[1] Suffolk. April 6, 2017. – November 13, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2] Municipal Corporations, Property, Use of municipal property. Real Property, Deed, Restrictions. Housing. Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals: jurisdiction. Permit. Civil action commenced in the Land Court Department on January 14, 2016. The case was heard by Robert B. Foster, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Daniel P. Dain for the plaintiff. Maura E. O’Keefe, Assistant City Solicitor (Jonah Temple, Assistant City Solicitor, also present) for zoning board of appeals of Newton & another. Pierce O. Cray, Assistant Attorney General, for Housing Appeals Committee. Paul E. Bouton, Stephen P. LaRose, & Christopher R. Minue, for Citizens’ Housing and Planning Association, amicus curiae, submitted a brief. GAZIANO, J. The plaintiff, 135 Wells Avenue, LLC (135 Wells), owns a 6.3-acre parcel of land in Newton (site), in an area known as Wells Avenue Office Park (property), which is zoned for limited manufacturing use. As is all of the property, the site is subject to a restrictive covenant owned by the city of Newton (city); among other things, the city’s deed restriction permits only certain of the uses ordinarily allowed in a limited manufacturing zone, limits the size and setbacks of buildings, and requires that a certain portion of the land remain open space. The city also owns an abutting 30.5-acre parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use. 135 Wells seeks to construct a 334-unit residential rental unit complex on the site, with eighty-four of the units (twenty-five per cent) reserved as affordable housing, pursuant to G. L. c. 40B, §§ 20-23. In order to proceed with development of the project, in May, 2014, 135 Wells asked the city’s board of aldermen (aldermen) to amend the deed restriction to allow a residential use at the site, and to permit construction in the nonbuild zone; the aldermen declined to modify the deed restriction. At the same time, 135 Wells applied to the city’s zoning board of appeals (ZBA)[3] for a comprehensive permit to develop the mixed-income project. The […]
Braintree Property Associates, LP v. Marzouki, et al. (Lawyers Weekly No. 09-038-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00144 BRAINTREE PROPERTY ASSOCIATES, LP vs. FRANCO MARZOUKI, DR. WU, LLC, D.B.A EMACK & BOLIOS AND ROBERT ROOK and FRANCO MARZOUKI, CROSS-CLAIM PLAINTIFF, vs. ROBERT ROOK, CROSS-CLAIM DEFENDANT MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This action arises out of a lease agreement between the property owner, plaintiff, Braintree Property Associates, LP (“Braintree”), the lease holder, defendant Dr. Wu, LLC, d/b/a Emack & Bolios (“Wu”), for which Robert Rook is the sole owner and manager. Defendants Rook and Franco Marzouki guaranteed Wu’s obligations to Braintree. There is no dispute that Wu breached its lease by vacating the property it leased from Braintree before its lease was up. Plaintiff moves for summary judgment on its claims against Wu, Rook and Marzouki. All defendants oppose. Wu and Rook cross-move for summary judgment against Braintree, improbably claiming that Braintree is entitled to no lost rent at all under the terms of Braintree’s own Lease, which Braintree opposes. Marzouki moves for summary judgment on his cross-claim for indemnification from Rook, which Rook opposes. The issue at the core of this case is a straight-forward dispute about the measure of damages arising from Wu’s undisputed breach of its lease with Braintree. Based on the lease 2 and the undisputed facts, in consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, plaintiff’s motion for summary judgment is ALLOWED. Wu’s cross-motion for summary judgment is DENIED. For other reasons, Marzuki’s motion for summary judgment on his cross-claim against Rook is DENIED. FACTS In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983). Braintree operates the South Shore Plaza, a shopping mall in Braintree. Rook is the sole owner and manager of Wu, which does business as Emack & Bolios, an ice cream seller. On or about July 25, 2011, Wu, as tenant, entered into a lease (“Lease”) with Braintree for commercial space at the South Shore Plaza. The lease had a five-year term and required Wu to pay rent and fees. The lease term was to commence May 1, 2011 and end May 1, 2016. On or about July 25, 2011, defendants Marzouki and Rook each executed a joint and several guaranty of Wu’s lease obligations. Beginning in June, 2014, Wu stopped paying rent, and did not pay any rent thereafter. Neither Rook nor Marzouki made good on the rent Wu failed […]
Clairmont, et al. v. Amer Sports Winter & Outdoor Company, et al. (Lawyers Weekly No. 09-039-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 14-00505 FRANCIS CLAIRMONT AND GEORGE CLAIRMONT vs. AMER SPORTS WINTER & OUTDOOR COMPANY & another1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT, AMER SPORTS WINTER & OUTDOOR COMPANY’S, MOTION FOR SUMMARY JUDGMENT This action arises out of a January 15, 2011 incident in which the plaintiff, Francis Clairmont (“Clairmont’), tripped and fell while wearing a pair of boots manufactured by defendant Amer Sports Winter & Outdoor Company (“Amer Sports”). Clairmont’s Complaint against Amer Sports alleges negligence (Count I), defective design (Count II), breach of warranty (Count III), and failure to warn (Count IV) in connection her accident. Clairmont’s husband and co-plaintiff, George Clairmont, also asserts a claim for loss of consortium in the Complaint (Count IX). This matter is before the Court on Amer Sports’ motion for summary judgment on all of the Plaintiffs’ claims. For the following reasons, Amer Sports’ motion is ALLOWED. BACKGROUND The following relevant facts are either undisputed or presented in the light most favorable to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56. On or about January 15, 2011, Plaintiff Francis Clairmont (“Francis”) was shopping at the Derby Street Shoppes in Hingham. She was wearing a pair of Solomon Gore-tex Contragrip 1 Eastern Mountain Sports, Inc. 2 ankle high hiking boots (“the Boots”) at the time. Amer Sports manufactured the Boots. The Boots have a “speed lacing” design, which includes a rigid J-shaped hook comprised of a curved neck and a fastening tail, through which the laces pass to tie each of the Boots. As Francis exited the store, the lace of the left boot caught on the hook of her right boot. She fell forward as her legs became entangled and was injured. Plaintiffs present no expert testimony on the design of the speed laces, and have adduced no evidence that Amer Sports knew, or had reason to know, of any similar accidents or occurrences caused by the speed laces. Amer Sports contends that manufacturers have used the patented speed lacing design for more than one-hundred years, and that this design is popular on hiking boots, work boots, and ice skates. DISCUSSION I. Standard of Review Summary judgment is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. […]
Moses v. Mitchell, et al. (Lawyers Weekly No. 09-040-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 16-0823 MOONIE MOSES1 vs. LISA MITCHELL, REBECCA DONAHUE, JOHN P. FREITAS, CHRISTOPHER ANDERSON, ANDREW DEVALLES, AND BRIAN SCHWENK MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS Plaintiff Moonie Moses, an inmate at Old Colony Correctional Center (“OCCC”), brings this case in the nature of certiorari under G.L. c. 249, §4, against Lisa Mitchell, Rebecca Donahue, John P. Freitas, Christopher Anderson, Andrew DeValles, and Brian Schwenk (“Defendants”), officials and employees of OCCC, alleging violations of Department of Correction regulations governing discipline he received as the result of a disciplinary report (or D-Report). Before the Court is Moses’ motion for judgment on the pleadings. The Defendants oppose and cross-move for judgment on the pleadings. After hearing, and in consideration of the parties’ memoranda of law and oral arguments, the Court ALLOWS Plaintiff’s motion for judgment on the pleadings and DENIES Defendants’ motion. FACTS In D-Report 345786, Correctional Officer John Freitas alleged that on August 24, 2015, Moses insulted and threatened him. Specifically, Freitas alleged that Moses “called this officer ‘a piece of shit and then continued to say if you were in my neighborhood in Dorchester I wish 1 The case file, identifying plaintiff as “Moses Moonie,” reverses Mr. Moses’ first and last names. 2 you would take a bullet to the head.’” Moses was charged with four offenses – threatening another with bodily harm, in violation of Disciplinary Code Section 3-04; use of obscene, abusive or insolent language or gesture, in violation of Disciplinary Code Section 3-26; conduct which disrupts the normal operation of the facility of unit, in violation of Disciplinary Code Section 3-27; and violation of any departmental rule or regulation, in violation of Disciplinary Code Section 4-11. Although the D-Report reads as if Moses’ alleged statement was made directly to Freitas, it is undisputed that it was not. Instead, whatever statement Moses made was heard by Correctional Officer Oana T. Farese, who reported it to Freitas. Indeed, the record of the disciplinary hearing reflects Freitas’ statement that “[s]he [Farese] told me she heard the statements. I don’t recall when she told me. … I asked Moses did he say it. He said it was misinterpreted. I’m going to go with what the CO tells me.” Freitas’ statement makes clear that Moses’ position was that what he said had been misunderstood, which is his position before this Court. Farese’s testimony, which Freitas credited, was thus critical in deciding whether any offense had occurred and any discipline was appropriate. Moses thus requested, pursuant to the regulations that governed the proceeding, that Farese be produced as a witness at the disciplinary hearing, proffering that she could […]
Care and Protection of a Minor (Lawyers Weekly No. 10-182-17)
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-12403 CARE AND PROTECTION OF A MINOR. November 10, 2017. Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Notice of appeal. Notice, Timeliness. The father of a child who is the subject of a care and protection proceeding in the Norfolk County Division of the Juvenile Court Department filed a petition pursuant to G. L. c. 211, § 3, with a single justice of this court seeking relief pursuant to the court’s general superintendence power. The father is an attorney who is representing himself. The record of material he has put before us is confusing, to say the least. It appears that the child has been removed from his parents’ custody and that the father contests the removal. In his G. L. c. 211, § 3, petition he sought, among other things, a jury trial in the care and protection proceeding. He also claimed that the Department of Children and Families has violated his due process rights and that “non-party participants” in the care and protection proceeding should have been sequestered during certain motion hearings in the Juvenile Court. The single justice denied the petition without a hearing on May 5, 2017. The petitioner then filed a petition for a writ of certiorari with the United States Supreme Court on May 10, 2017. While the certiorari petition was pending, the petitioner filed a motion with the single justice, on August 7, 2017, for leave to file a late notice of appeal from the denial of the G. L. c. 211, § 3, petition. The single justice denied the motion on September 12, 2017. The petitioner then filed a notice of appeal from the denial of that motion, and his appeal was entered in this court on September 22, 2017. Shortly thereafter, the United States Supreme Court denied his certiorari petition, on October 2, 2017. The petitioner’s appeal to this court involves only the denial of his motion for leave to file a late notice of appeal. The single, very limited issue that is properly before us is whether the single justice erred or abused his discretion in denying that motion. Nevertheless, the multitude of papers that the petitioner has filed in this court focus almost exclusively on the underlying merits of his G. L. c. 211, § 3, petition, and address only minimally the issue of the late notice of appeal. He has […]
Commonwealth v. Shipps (Lawyers Weekly No. 10-183-17)
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-12168 COMMONWEALTH vs. WILLIAM M. SHIPPS, JR. November 10, 2017. Practice, Criminal, Postconviction relief, Stay of proceedings. William M. Shipps, Jr., was convicted of murder in the first degree, armed assault in a dwelling house, and armed robbery in 1984. This court affirmed the convictions. Commonwealth v. Shipps, 399 Mass. 820, 840 (1987). Shipps has since filed, in the Superior Court, several motions for postconviction relief, including, most recently, a motion for “post-verdict juror inquiries. ” A judge other than the trial judge (who had retired) denied the motion after a nonevidentiary hearing. Shipps then filed, in the county court, a gatekeeper application seeking leave to appeal pursuant to G. L. c. 278, § 33E. At the same time, he also filed a motion to stay action on the application pending completion of a transcript of the nonevidentiary hearing on the underlying motion. He claimed that staying action pending completion of the transcript would allow him to file a more comprehensive application. Shipps’s application and motion to stay were filed on September 21, 2015. The single justice held the application in abeyance for approximately ten months. On July 29, 2016, no transcript having been filed, the single justice denied the application on the basis that it did not raise a new and substantial issue. In so doing, the single justice implicitly declined to stay the matter any further. Shipps appeals only from the denial of a further stay.[1] He argues that the single justice’s refusal to stay the matter further denied him the ability to prepare and present a comprehensive gatekeeper application. Shipps filed his application and his motion to stay in September, 2015. He had ample time — almost a year — to file a more detailed application, even without a transcript from the nonevidentiary hearing on his underlying motion. He has presented no argument why the motion judge’s detailed written decision, combined with the relevant papers filed in the trial court, including his own motion and the Commonwealth’s opposition, did not provide him with all that he needed to present a comprehensive application. A transcript of a nonevidentiary hearing on the motion was not necessary and would have added little, if anything.[2] So too for the single justice, who had before him all the relevant materials that were before the motion judge. He […]