Segal v. Genitrix, LLC, et al. (Lawyers Weekly No. 10-199-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12291 ANDREW SEGAL vs. GENITRIX, LLC, & others.[1] Suffolk. September 5, 2017. – December 28, 2017. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Massachusetts Wage Act. Limited Liability Company. Agency, What constitutes. Practice, Civil, Instructions to jury. Civil action commenced in the Superior Court Department on February 23, 2009. The case was tried before Paul D. Wilson, J., and a motion for a new trial was heard by him. The Supreme Judicial Court granted an application for direct appellate review. Thomas H. Dupree, Jr. (Matthew S. Rozen, of the District of Columbia, Peter M. Durney, & Julianne C. Fitzpatrick also present) for H. Fisk Johnson, III, & another. Timothy J. Wilton (Kathy Jo Cook also present) for the plaintiff. Jonathan A. Karon, Thomas R. Murphy, Matthew J. Fogelman, & Danielle Jurema Lederman, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. KAFKER, J. A jury found the defendants, H. Fisk Johnson, III, and Stephen Rose, two former board members and investors in Genitrix, LLC (Genitrix or company), personally liable under G. L. c. 149, § 148 (Wage Act), for failing to pay wages owed to the former president of Genitrix, Andrew Segal. The defendants moved for judgment notwithstanding the verdict and a new trial. Both motions were denied, and the defendants appealed. We granted the defendants’ application for direct appellate review and conclude that the Wage Act does not impose personal liability on board members, acting only in their capacity as board members, or investors engaged in ordinary investment activity. Rather, to impose such liability, the statute requires that the defendants be “officers or agents having the management” of a company. G. L. c. 149, § 148. The defendants were not designated as company officers and had limited agency authority. Indeed, the only officer having the management of the company was the plaintiff, not the defendants. We therefore conclude that there was insufficient evidence to satisfy the statutory requirements and reverse the denial of the motion for judgment notwithstanding the verdict.[2] Background. Because the defendants contend that the trial judge erred in denying their motion for judgment notwithstanding the verdict, we construe the facts in the light most favorable to the […]
Santiago, et al. v. Rich Products Corporation, et al. (Lawyers Weekly No. 11-158-17)
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-504 Appeals Court KELVIN SANTIAGO & others[1] vs. RICH PRODUCTS CORPORATION & others.[2] No. 16-P-504. Middlesex. September 8, 2017. – December 28, 2017. Present: Milkey, Hanlon, & Shin, JJ. Negligence, Spoliation of evidence, School. Food. School and School Committee, Liability for tort. Practice, Civil, Instructions to jury, Summary judgment. Civil action commenced in the Superior Court Department on August 21, 2006. A motion for summary judgment was heard by Garry V. Inge, J.; the case was tried before Bruce R. Henry, J., and the entry of judgment was ordered by him. Marc Diller (Jonathon D. Friedmann also present) for the plaintiffs. Myles W. McDonough for Rich Products Corporation & others. Hannah B. Pappenheim, Assistant City Solicitor (Elliott Veloso, Assistant City Solicitor, also present) for city of Lowell. SHIN, J. Kelvin Santiago (Kelvin) suffered traumatic brain damage after choking on meatballs served in the cafeteria of a city of Lowell (city) public school. He and his parents filed suit against the city and Rich Products,[3] the company that produced and sold the meatballs, asserting negligence and breach of the implied warranty of merchantability, among other claims. A judge allowed the city’s motion for summary judgment, and, after seventeen days of trial, a jury returned a verdict in Rich Products’ favor.[4] On appeal the plaintiffs claim error in the trial judge’s denial of their request for an adverse-inference instruction against Rich Products for alleged spoliation of documentary evidence and in the motion judge’s allowance of summary judgment for the city. We conclude that the trial judge did not abuse his discretion in declining to give a spoliation instruction because the plaintiffs failed to establish the necessary factual predicate that Rich Products lost or destroyed the missing evidence when it knew or should have known of a potential lawsuit. We further conclude that the motion judge correctly ordered the entry of summary judgment for the city because no rational jury could have found that its employees acted negligently. For these reasons we affirm the judgment. Background. 1. The choking incident. The basic facts regarding what occurred during the incident are not in dispute. In 2004 Rich Products began producing meatballs to sell to schools through the Federal government’s National School Lunch Program. The meatballs contained a binding agent called Profam 974, which […]
CALM Golf, Inc. v. Read, et al. (Lawyers Weekly No. 09-055-17)
COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 13-01214 CALM GOLF, INC. vs. RENE J. READ, IN HIS CAPACITY AS TOWN MANAGER OF THE TOWN OF DUXBURY, AND ROBERT TROY, ESQ. MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This action arises out of an award to plaintiff, CALM Golf, Inc.(“Calm”), from the Town of Duxbury (represented by its Town Manager, Rene Read) (“Duxbury”), to operate the North Hill Country Club and Golf Course (“North Hill”).1 Calm alleges that Duxbury is liable to it for breach of contract (Count I), violation of Chapter 93A (Count IV), and violation of the Massachusetts Public Bidding Statute, G. L. 30(b) (Count VI). Before the Court is Duxbury’s motion for summary judgment. A proper review of the record shows that the core facts are largely undisputed. It also shows that this case boils down to two simple, controlling propositions. First, did Duxbury’s award to Calm equate to a contract, either express or implied? Second, was Duxbury required to conclude a formal contract with Calm despite the fact that, as the result of litigation brought by a disappointed bidder – the thenextant manager of North Hill, Johnson Golf Management, Inc. (“Johnson) – this Court ordered Duxbury not to contract with Calm but rather to continue its contract with Johnson? 1 Count II, alleging misrepresentation against Duxbury, and Counts III and V, all of the counts against defendant Robert Troy, were previously dismissed by this Court. As the answer to both questions is “no,” Duxbury’s motion for summary judgment 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. In September 2008, Duxbury published a Request for Proposal (“RFP”) pursuant to G.L. 30B for a five-year contract to operate North Hill. Johnson was then the manager of North Hill. Calm and Johnson bid for the contract. In December 2008, and for reasons not relevant here, Duxbury rejected all bids. On December 12, 2008, Johnson sued Duxbury in this Court (Middlesex Superior Court) in Johnson Golf v. Town of Duxbury, et al., 08-04641, arising from the bid process (“the Johnson Litigation”). On January 8, 2009, the Court in the Johnson Litigation issued a temporary restraining order requiring that “Johnson Golf Management Inc., shall continue to manage the North Hill Country Club Golf Course until such time as defendant Town of Duxbury has awarded a new management contract pursuant to G.L. c. 30B rebidding process that is to begin on January 9, 2009 or until further order of the Court.” On or about January 9, 2009, Duxbury issued a second RFP […]
Board of Selectmen of the Town of Hull, et al. v. Healey (Lawyers Weekly No. 09-054-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00161 BOARD OF SELECTMEN OF THE TOWN OF HULL & THE TOWN MANAGER OF THE TOWN OF HULL vs. MAURA HEALEY, ATTORNEY GENERAL MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS In this action, plaintiffs Board of Selectmen of the Board of Hull and the Board Manager of the Board of Hull (collectively “the Board”) seek certiorari review under G. L. c. 249, §4, of a decision made by defendant Attorney General, Maura Healey (“the Attorney General”) that the Board violated Opening Meeting Law, G. L. c. 30A, §21(b)(3), by failing to publicly identify unions in collective bargaining disputes and a claimant in a matter in civil litigation prior to entering executive session to discuss strategy with respect to these matters. Before the Court are cross-motions for judgment on the pleadings. The Board seeks an order reversing the Attorney General’s decision and for declaratory relief, and the Attorney General seeks affirmation of her determination. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, the Board’s motion for judgment on the pleadings is ALLOWED, the Attorney General’s cross-motion for judgment on the pleadings is DENIED, the Attorney General’s order that the Board amend its minutes reflecting the meetings in dispute is VACATED, and this matter is REMANDED to the Attorney General for further review consistent with this decision. The Town’s motion for further declaratory relief is DENIED. 2 FACTS Claims for judicial review of administrative agency proceedings are resolved through motions for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Massachusetts Superior Court Standing Order 1-96, §4. The Court’s “review shall be confined to the record.” Id. at §5. “Such record ‘shall consist of … the entire proceedings.’” Id. at §2, quoting G. L. c. 30A, §14. The record in this case, and the relevant law, show the following. Plaintiff Board is a public body, and plaintiff Town Manager of the Town of Hull is the Chief Administrative Officer of the Town of Hull. Defendant Maura Healey is the Attorney General of the Commonwealth of Massachusetts. The Open Meeting Law, G. L. c. 30A, §§18-25 (“OML”), requires that, “[e]xcept as provided in section 21, all meetings of a public body shall be open to the public.” G.L. c. 30A, §20(a). Section 21 of the OML allows “[a] public body [to] meet in executive session” for an enumerated purpose, which includes “[t]o discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.” G. […]
Reichenbach, et al. v. Haydock, et al. (Lawyers Weekly No. 11-157-17)
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-1427 Appeals Court MARGARET J. REICHENBACH & another[1] vs. TIMOTHY G. HAYDOCK & another.[2] No. 16-P-1427. Bristol. September 6, 2017. – December 21, 2017. Present: Wolohojian, Agnes, & Wendlandt, JJ. “Anti-SLAPP” Statute. Constitutional Law, Right to petition government. Practice, Civil, Motion to dismiss. Massachusetts Civil Rights Act. Civil action commenced in the Superior Court Department on October 1, 2015. A special motion to dismiss was considered by Robert J. Kane, J., and a motion for reconsideration was considered by him. Daniel C. Perry for the defendants. Robert B. Feingold (Heidi A. Nadel also present) for the plaintiffs. WOLOHOJIAN, J. In 2008, the plaintiffs bought an oceanfront property with the plan to demolish the existing house and build a new residence. Two of the neighbors (the defendants, Timothy Haydock and Barbara Moss) vigorously objected and are alleged to have for years employed a variety of means — some petitioning activity within the meaning of the “anti-SLAPP” statute, G. L. c. 231, § 59H, some not — designed to block the project. This suit arises out of that campaign, which the plaintiffs allege deprived them of their constitutional right to enjoy their property in violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 11I (the MCRA).[3] We are not here concerned with the merits of that claim. Instead, we deal in this interlocutory appeal[4] only with the denial of the defendants’ special motion to dismiss pursuant to the anti-SLAPP statute. That motion was decided before Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141 (2017), which was not handed down until after this appeal was already pending. Despite the timing, Blanchard applies,[5] and applying its approach to the first prong of the Duracraft framework, see Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998), we affirm. Background.[6] All of the real estate involved in this case was once owned by Clara Frothingham in the Nonquitt area of South Dartmouth, located on the shores of Buzzards Bay. In 1979, the Frothingham land was subdivided into eight lots, which were conveyed to members of Frothingham’s family. Defendant Timothy Haydock (whom we are given to understand is part of the Frothingham family) acquired one of those lots in 1991 (the Haydock lot); he also has a one-sixth interest in another family […]
C.R.S. v. J.M.S. (Lawyers Weekly No. 11-156-17)
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-1234 Appeals Court C.R.S. vs. J.M.S. No. 16-P-1234. Barnstable. March 1, 2017. – December 20, 2017. Present: Hanlon, Blake, & Neyman, JJ. Abuse Prevention. Protective Order. Complaint for protection from abuse filed in the Falmouth Division of the District Court Department on May 29, 2016. A motion to extend a protective order was heard by Don L. Carpenter, J. James R. McMahon, III, for the defendant. HANLON, J. The defendant appeals from the issuance of an abuse prevention order pursuant to G. L. c. 209A, arguing that both the ex parte order and the extended order after notice were wrongly issued.[1] We affirm the order after notice and dismiss the appeal from the ex parte order as it has been superseded by the extended order after notice that was issued properly. Background. On May 29, 2016, a District Court judge, on call for emergency matters, issued an emergency ex parte abuse prevention order (ex parte order) pursuant to G. L. c. 209A, § 5, ordering the defendant not to abuse the plaintiff; not to contact her, directly or indirectly; and to stay fifty yards away from her. The defendant also was ordered to vacate and stay away from the plaintiff’s residence.[2] Two days later, on May 31, 2016, a different judge held a hearing after notice, following the defendant’s arraignment on a criminal charge for the incident that gave rise to the ex parte order. Both the defendant, who was represented by counsel, and the plaintiff testified at the hearing. The plaintiff told the judge that the defendant had been emotionally abusive for eleven years and that she believed that he had a drinking problem. She said that she was “scared for [herself] and for [her] daughter.” The plaintiff recounted at least two incidents of physical abuse. In one incident the previous summer, while they were on vacation in the State of Washington, the defendant had “pushed [her] down, pushed [her] against a wall,” as “he [had] many times before that.” In the other incident, the two were arguing verbally; she explained, “[T]hen that morning I said I was going to leave. And he told me I couldn’t take [their daughter]. And I went down the hallway to get some things. And he grabbed me and pushed […]
Commonwealth v. Piantedosi (Lawyers Weekly No. 10-198-17)
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-11802 COMMONWEALTH vs. CHRISTOPHER PIANTEDOSI. Middlesex. October 6, 2017. – December 18, 2017. Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ. Homicide. Mental Impairment. Intoxication. Insanity. Evidence, Intoxication, Insanity, Expert opinion. Witness, Expert. Constitutional Law, Fair trial. Due Process of Law, Fair trial. Fair Trial. Practice, Criminal, Capital case, Fair trial, Instructions to jury, Acquittal by reason of insanity. Indictments found and returned in the Superior Court Department on June 7, 2012. The cases were tried before Diane M. Kottmyer, J. Robert S. Sinsheimer (Lisa A. Parlagreco also present) for the defendant. Emily K. Walsh, Assistant District Attorney (Nicole L. Allain, Assistant District Attorney, also present) for the Commonwealth. GAZIANO, J. A jury in the Superior Court found the defendant guilty of murder in the first degree in the stabbing death of his longtime girl friend, on theories of deliberate premeditation and extreme atrocity or cruelty.[1] At trial, the defendant conceded that he had killed the victim but asserted that he lacked criminal responsibility for her death due to his involuntary intoxication from having taken prescribed antidepressant medications. In this direct appeal from his convictions, the defendant challenges the judge’s refusal to permit a defense expert to testify on direct examination to hearsay statements made by the defendant; the introduction of testimony by the Commonwealth’s expert concerning what “drove” the defendant’s behavior; and the judge’s failure to instruct the jury that the consequences of a verdict of not guilty by reason of insanity would include a potential psychiatric commitment for life. In addition, the defendant asks this court to exercise its extraordinary authority under G. L. c. 278, § 33E, to reduce the verdict to murder in the second degree. For the reasons that follow, we affirm the defendant’s convictions and, after a thorough review of the entire trial record, decline to grant relief pursuant to G. L. c. 278, § 33E. Background. We summarize the facts that the jury could have found, reserving other details for later discussion of particular issues. Commonwealth’s case. The victim and the defendant were involved in an eighteen-year relationship and had a daughter, Alexa,[2] who was a teenager at the time of these events. The victim had a son from another relationship, whom she and the defendant were raising as their child. The four lived […]
Categories: News Tags: 1019817, Commonwealth, Lawyers, Piantedosi, Weekly
Dell’Isola v. State Board of Retirement, et al. (Lawyers Weekly No. 11-154-17)
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-963 Appeals Court MICHAEL DELL’ISOLA vs. STATE BOARD OF RETIREMENT another[1]. No. 16-P-963. Suffolk. September 8, 2017. – December 15, 2017. Present: Rubin, Neyman, & Henry, JJ. Retirement. Public Employment, Forfeiture of pension. Correction Officer. Civil action commenced in the Superior Court Department on December 31, 2014. The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings. David R. Marks, Assistant Attorney General, for State Board of Retirement. Nicholas Poser for the plaintiff. HENRY, J. Michael Dell’Isola was a correction officer when he committed the crime of possession of cocaine. The State Retirement Board (board) subsequently conducted a hearing and made factual findings that Dell’Isola came into possession of the cocaine only as a result of an arrangement with an inmate who had been in his custody and who at the time remained in the custody of the Middlesex County sheriff’s office. This case thus requires us to consider whether, pursuant to G. L. c. 32, § 15(4), Dell’Isola’s conviction requires forfeiture of his retirement allowance.[2] General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.” Because how Dell’Isola came into possession of the cocaine was factually linked to his position as a correction officer, we hold that his criminal offense falls within the purview of § 15(4) and he is ineligible to receive a retirement allowance. Background. In September, 2012, a jury convicted Dell’Isola of one charge of possession of cocaine. The board later held a hearing regarding Dell’Isola’s application for a superannuation allowance. The board made the following findings of fact based on an evidentiary hearing and largely based on a transcript of Dell’Isola’s own statements during a postarrest interview with the State police. In 2011, Dell’Isola was a sergeant and a senior correction officer with the Middlesex County sheriff’s office, having served in the office since 1982. An inmate under Dell’Isola’s supervision at the Middlesex County jail in Cambridge, identified only as “George,” offered Dell’Isola “a large amount of cash” and told Dell’Isola to contact George’s mother.[3] Dell’Isola met with […]
Categories: News Tags: 1115417, Board, Dell’Isola, Lawyers, Retirement, state, Weekly
State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)
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-965 Appeals Court STATE BOARD OF RETIREMENT vs. BRIAN O’HARE & another.[1] No. 16-P-965. Suffolk. September 8, 2017. – December 15, 2017. Present: Rubin, Neyman, & Henry, JJ. Retirement. Public Employment, Forfeiture of pension, Police. Police, Regulations. Police Officer. State Police. Civil action commenced in the Superior Court Department on January 29, 2015. The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings. David R. Marks, Assistant Attorney General, for State Board of Retirement. Eric B. Tennen for Brian O’Hare. HENRY, J. Brian O’Hare was a sergeant with the Massachusetts State police when he committed the Federal crime of using the internet to entice a person under eighteen to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty. This case presents the question whether the State Board of Retirement (board) correctly ordered forfeiture of O’Hare’s retirement allowance under G. L. c. 32, § 15(4).[2] General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.” Because we hold that O’Hare’s actions had a direct legal link to his position with the State police, we conclude that O’Hare’s conviction required forfeiture pursuant to § 15(4). Background. Brian O’Hare served with the Massachusetts State police for twenty years and, in 2006, held the rank of sergeant and was a patrol supervisor and shift commander. Between August, 2005, and February, 2006, O’Hare communicated online with an individual whom he believed to be a fourteen year old boy. O’Hare used a family computer while off duty to communicate with the “youth.” The youth was later revealed to be an undercover Federal Bureau of Investigation (FBI) agent. In February, 2006, O’Hare was arrested by the FBI after arriving at a prearranged meeting place to meet the youth for sexual purposes. In October, 2006, O’Hare resigned from the State police while under Federal indictment. In February, 2007, O’Hare pleaded guilty to one charge of using the internet to attempt to coerce and entice a child under the age of eighteen to engage in unlawful sexual activity, […]
Commonwealth v. Holley (and five companion cases) (Lawyers Weekly No. 10-197-17)
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-12130 COMMONWEALTH vs. REGINALD HOLLEY (and five companion cases[1]). Suffolk. September 8, 2017. – December 14, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ. Homicide. Robbery. Firearms. Joint Enterprise. Felony-Murder Rule. Search and Seizure, Warrant, Probable cause. Constitutional Law, Probable cause. Probable Cause. Cellular Telephone. Jury and Jurors. Evidence, Joint enterprise, Prior misconduct. Practice, Criminal, Capital case, Motion to suppress, Warrant, Instructions to jury, Jury and jurors, Deliberation of jury, Substitution of alternate juror, Severance. Indictments found and returned in the Superior Court Department on December 12, 2012. Pretrial motions to suppress evidence were heard by Patrick F. Brady, J., and the cases were tried before him. Elizabeth A. Billowitz for Reginald Holley. Neil L. Fishman for Oasis Pritchett. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. LENK, J. On the morning of October 17, 2012, Alfonso Rivas was in his apartment building anticipating a sale of marijuana to Reginald Holley when Rivas was fatally shot in the head. Holley and Oasis Pritchett were convicted of felony-murder in the first degree, armed robbery, and possession of a firearm without a license, as joint venturers, in connection with the victim’s death. Prior to trial, both defendants had moved unsuccessfully to suppress text messages obtained from their cellular service provider. The text messages, which were introduced at trial, contained incriminating statements involving the defendants’ plan to steal marijuana from the victim on the morning of the shooting. In this direct appeal, Holley and Pritchett challenge the sufficiency of the evidence supporting their felony-murder convictions and the introduction of their text messages at trial. They argue also that the judge erred in declining to instruct the jury on felony-murder in the second degree, and in dismissing a deliberating juror who was ill. Pritchett argues separately that the judge erred by denying his motion to sever, admitting evidence of prior bad acts, and declining to instruct the jury on the requirements of the hearsay exemption concerning joint venturer statements. Each defendant also requests relief under G. L. c. 278, § 33E. We affirm the convictions and, after careful review of the record, decline to set aside the verdicts or reduce the degree of guilt pursuant to our authority under G. L. c. 278, § 33E. Facts. We recite the facts the jury […]