Commonwealth v. Lopes (Lawyers Weekly No. 10-003-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11587 COMMONWEALTH vs. CRISOSTOMO LOPES. Suffolk. September 8, 2017. – January 10, 2018. Present: Gants, C.J., Lenk, Budd, & Kafker, JJ. Homicide. Jury and Jurors. Evidence, Relevancy and materiality, Prior misconduct, Cross-examination. Practice, Criminal, Capital case, Challenge to jurors, Argument by prosecutor. Indictment found and returned in the Superior Court Department on July 1, 2010. The case was heard by Patrick F. Brady, J. Alan Jay Black for the defendant. Janis DiLoreto Smith, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, also present) for the Commonwealth. KAFKER, J. The defendant, Crisostomo Lopes, pulled the fourteen year old victim off a motorized scooter and held him, while the codefendant, a juvenile, shot him multiple times at close range. The victim succumbed to a gunshot wound to his chest shortly thereafter. After a jury trial, both the defendant and his codefendant were convicted of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty.[1] In his appeal, the defendant claims that reversal of his conviction is required because the judge erred by: (1) failing to find that the Commonwealth’s peremptory challenges of prospective jurors were improper; (2) allowing evidence of the defendant’s gang affiliation and the victim’s brother’s knowledge of neighborhood gang activity; (3) precluding the defendant from cross-examining a police officer witness on prior misconduct; and (4) allowing the prosecutor to make improper and prejudicial statements during the Commonwealth’s closing argument. For the reasons stated below, we conclude that there has been no reversible error, and after a thorough review of the record, we decline to exercise our authority under G. L. c. 278, § 33E, to reduce or set aside the verdict of murder in the first degree. Therefore, we affirm the defendant’s conviction. Background. We summarize the facts that the jury could have found, reserving certain details for discussion of the legal issues. The victim was fourteen years old and lived on Norton Street in the Dorchester section of Boston. On May 30, 2010, the victim had been riding a scooter around Dorchester that was being driven by his fifteen year old brother. Each was wearing a helmet, but different styles. They were riding the scooter on Inwood Street, approaching Olney Street, when the brother almost hit the defendant, who […]
Boston Segway Tours, Inc., et al. v. Danley, et al. (Lawyers Weekly No. 09-066-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIV. NO. 15-1498 BLS 2 BOSTON SEGWAY TOURS, INC. and IAN MEYER, Plaintiffs, vs. ALLAN DANLEY and EASTERA PHOU Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT This case began as a dispute over ownership interests in a company, Boston Segway Tours, Inc. (BST) that offers Boston tours by the use of Segways. Plaintiff Ian Meyer claimed that he was the full owner, whereas the defendant Allan Danley claimed that he was the owner. Beyond the question of ownership, each party asserted multiple common law counts against the other, as well as violations of Chapter 93A. Following a jury -waived trial on the limited question of ownership, this Court issued a written opinion determining that Meyer was the full owner. See Findings of Fact and Rulings of Law dated January 12, 2016 (the January 2016 Decision). Shortly thereafter, Danley filed for bankruptcy and a Trustee was appointed by the Bankruptcy Court. The Trustee, on behalf of Danley, filed an Amended Counterclaim in this action. The case is now before the Court on Cross Motions for Partial Summary Judgment as to the Amended Counterclaim. Plaintiff seeks summary judgment in his favor on the following counts of the Amended Counterclaim: Count I (breach of contract), Count II (monies owed), Count III (unjust enrichment), Count IV (fraud), Count V (breach of the covenant of good faith and fair dealing) and Count VI (violation of chapter 93A). Before the hearing on the plaintiff’s motion, the defendant agreed to dismiss Counts IV through VI, so that those counts are no longer at issue. As to the remaining Counts (I through III), the defendant cross moved for summary judgment in his favor. The basis for these counts is Danley’s claim that he provided consulting services and equipment to BST and Meyer for which he is entitled to payment. Those counts also encompass Danley’s claim that he loaned Meyer $ 73,200 which has not been fully repaid. This Court concludes that Danley is entitled to summary judgment in his favor as to liability, with the precise amount of damages to be determined at later hearing. The Court reaches this conclusion based on the fact findings it rendered in its January 2016 Decision. As explained in that decision, Danley had originally formed the Segway tour company under the name Boston by Segway, but in 2011 decided to sell it to Meyer. This Court found that in order to facilitate that transfer of ownership: Danley agreed to lease his fleet of Segways to the new company and would front the startup costs by way of a personal […]
Meunier, et al. v. Market Strategies, Inc. (Lawyers Weekly No. 09-067-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT Civ. No. 2016-1546-BLS2 JOHN J. MEUNIER, CHRISTY M. WHITE, and JOHN J. MEUNIER 2012 IRREVOCABLE TRUST Plaintiffs vs. MARKET STRATEGIES, INC., Defendant Consolidated with: Civ. No. 2016-3592-BLS2 MARKET STRATEGIES INC., Plaintiff, COGENT RESEARCH HOLDINGS, LLC Defendant MEMORANDUM OF DECISION AND ORDER ON MARKET STRATEGIES, INC.’S MOTION TO DISMISS These consolidated cases arise from the sale of Cogent Research, LLC (Cogent) to Market Strategies, Inc., (MSI). To facilitate the sale, the individual owners of Cogent – John Meunier, Christy White and the John Meunier 2012 Irrevocable Trust – transferred their equity interest in Cogent to a holding company, Cogent Research Holdings, LLC (CRH) which then transferred its equity interest in Cogent to MSI. In return, MSI agreed to make an initial payment of $ 8 million, and additional payments (described as Delayed and Contingent Payments) three years later totaling $ 5.1 million. The terms of the sale were memorialized in an Equity Unit Purchase Agreement (EUPA), a Subordination Agreement, and a Senior Credit Agreement, all dated May 2, 2013. MSI made the initial payment but has failed to pay any portion of the Delayed or Contingent Payments (together, the Remaining Payments), which became due on April 30, 2016. The case is now before the Court on MSI’s Motion to Dismiss the Counterclaim asserted against it by CRH in one of the two consolidated actions, Civ. No. 16-03592. This Court concludes that the Motion must be DENIED. In support of the Motion, MSI relies on certain terms of the Subordination Agreement which subordinate the Remaining Payments to a more senior debt that MSI has with a separate lender, the Private Bank (the Bank). Section 2.3 of that Agreement states that MSI will not make and CRH will not accept any of the Remaining Payments if doing so would cause MSI to default on its debt to the Bank. Section 2.4 prevents CRH from taking any “Enforcement Action” (a defined term in the Agreement) in an effort to collect payment from MSI until MSI’s debt to the Bank is paid in full. MSI argues that because the Bank has not been paid in full and because any payment to CRH would place it in default with the Bank, the unambiguous terms of the Subordination Agreement prevent CRH from seeking to collect the Remaining Payments, thus requiring dismissal of its Counterclaim. A fair reading of the Counterclaim, however, reveals that more is involved here than the straightforward application of certain contractual provisions. The Counterclaim alleges among other things that MSI has conspired with the Bank to commit accounting fraud so as […]
Shachoy v. Conrades, et al. (Lawyers Weekly No. 09-068-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2017-02621-BLS2 MEREDITH CLARK SHACHOY, individually and derivatively on behalf of LONGFELLOW VENTURE PARTNERS I, LLC And TECH SQUARE PRINCIPALS 2 LLC, Plaintiff vs. GEORGE CONRADES, individually and as trustee of the GEORGE CONRADES REVOCABLE TRUST, and as manager of TECH SQUARE TRADING (GP) LLC, WILLIAM WILSON, as manager of LONGFELLOW VENTURE PARTNERS, and CONRADES FAMILY, LLC Defendants, And LONGFELLOW VENTURE PARTNERS I, LLC and TECH SQUARE PRINCIPALS 2 LLC Nominal Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS FOR REAL ESTATE ATTACHMENTS AND FOR TRUSTEE PROCESS ATTACHMENTS Plaintiff Meredith Shachoy instituted this action asserting various rights as a minority shareholder of Longfellow Venture Partners I, LLC (LVP). Specifically, she claims that she has been frozen out of LVP and, in her derivative claim, that LVP had been improperly managed by the defendant George Conrades. On September 8, 2017, this Court denied Shachoy’s request for a injunctive relief, concluding that not only had she failed to satisfy the requirements of Packaging Industries v. Cheney, 380 Mass. 609 (1980) but also that she came before the Court with “unclean hands.” The defendants answered and asserted counterclaims against Shachoy alleging that she had misappropriated millions of dollars from LVP and breached her contractual and fiduciary obligations. In December, the parties were once again before this Court for hearing on defendants’ motions to attach real estate and bank accounts in Shachoy’s name. On December 21, 2017, this Court allowed both motions in the amount of $ 5,000,000. This memorandum sets forth the basis for that decision. Under Rules 4.1 and 4.2, Mass.R.Civ.P., a party is entitled to an attachment if he can demonstrate a reasonable likelihood of recovering judgment equal to or greater than the amount requested and there is no liability insurance available to satisfy such judgment. Shachoy offers no evidence as to liability insurance. As to the defendants’ likelihood of recovering judgment against her, the Court has considered the affidavits submitted by all parties and makes the following findings: According to bank and corporate records, Shachoy withdrew more $ 9.8 million from LVP from 2009 until the time of her termination in September 2016. About $ 1.7 million of that sum was transferred directly to her husband’s company, CMS, LLC. Another $ 8.1 million was paid directly to her. Shachoy does not dispute this figures. An examination of credit card and bank records also shows that Shachoy charged approximately $ 400,000 to LVP and/or Conrades for what she claims were business expenses. The description of those charges, however, raise serious questions as to whether they are indeed business-related. They include: $ 5,600 at […]
Commonwealth v. Knowles (Lawyers Weekly No. 11-004-18)
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-1409 Appeals Court COMMONWEALTH vs. LAWRENCE KNOWLES. No. 16-P-1409. Suffolk. November 3, 2017. – January 10, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Witness, Cross-examination. Practice, Criminal, Cross-examination by prosecutor, Admissions and confessions, Voluntariness of statement, Waiver. Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights. Waiver. Evidence, Cross-examination, Admissions and confessions, Voluntariness of statement. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on January 15, 2014. The case was tried before Tracy-Lee Lyons, J. A motion to stay execution of sentence, filed in the Appeals Court on June 24, 2016, was heard by Carhart, J. Lauren A. Montana for the defendant. Paul B. Linn, Assistant District Attorney (Amanda Read Cascione, Assistant District Attorney, also present) for the Commonwealth. MASSING, J. This appeal requires us to apply the rule prohibiting cross-examination by innuendo, most recently enunciated in Commonwealth v. Peck, 86 Mass. App. Ct. 34 (2014) (Peck), to the cross-examination of three defense witnesses: an expert witness, a lay witness, and the defendant himself. A jury in the Central Division of the Boston Municipal Court Department found the defendant guilty of two counts of unlawful possession of a loaded firearm in violation of G. L. c. 269, § 10(a), (n). The primary issues at trial were whether the defendant knowingly possessed the two firearms found near his truck and, in this regard, whether his threatening statements to police officers and subsequent waiver of his Miranda rights were voluntary. We conclude that the prosecutor’s cross-examination of the defendant was proper and that the cross-examination of the defendant’s lay witness was improper but not prejudicial. We further hold that Peck does not apply to the cross-examination of expert witnesses and that the defendant’s statements and Miranda waiver were voluntary.[1] Accordingly, we affirm. Background. 1. Commonwealth’s case. At 2:45 A.M. on January 12, 2014, Boston police Officers Mario Santillana and Jose Acosta were dispatched to the parking lot behind a building on Centre Street in the Jamaica Plain section of Boston. The defendant was seated in the driver’s seat of a parked red truck, alone, crouched down with his hands folded under his arms, staring straight ahead. Santillana knocked on the closed window to get the defendant’s attention. The defendant muttered […]
Roma, III, Ltd. v. Board of Appeals of Rockport (Lawyers Weekly No. 10-002-18)
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-12278 ROMA, III, LTD. vs. BOARD OF APPEALS OF ROCKPORT. Suffolk. September 6, 2017. – January 8, 2018. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Municipal Corporations, By-laws and ordinances. Zoning, Validity of by-law or ordinance, Private landing area. Federal Preemption. Civil action commenced in the Land Court Department on March 12, 2015. The case was heard by Robert B. Foster, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Jackie Cowin for the defendant. Nicholas Preston Shapiro (Robert K. Hopkins also present) for the plaintiff. Maura Healy, Attorney General, & Elizabeth N. Dewar, State Solicitor, for division of aeronautics of the Department of Transportation, amicus curiae, submitted a brief. GANTS, C.J. A judge of the Land Court barred the town of Rockport (town) from enforcing a zoning bylaw that prohibited the use of land for a private heliport without some form of approval, variance, or special permit because the bylaw had not been approved by the division of aeronautics of the Department of Transportation (division). The issue on appeal is whether cities and towns may exercise their zoning authority to determine whether land in their communities may be used as a noncommercial private restricted landing area, here a heliport, or whether they may do so only with the approval of the division because the exercise of such zoning authority is preempted by the State’s aeronautics statutes, G. L. c. 90, §§ 35-52 (aeronautics code). We hold that there is no clear legislative intent to preempt local zoning enactments with respect to noncommercial private restricted landing areas, and that a city or town does not need the prior approval of the division to enforce a zoning bylaw that requires some form of approval, variance, or special permit for land to be used as a private heliport.[1] Background. Roma, III, Ltd. (plaintiff), is the owner of 1.62 acres of oceanfront property in Rockport (property). The property, improved by a single-family residence, is located in what is classified as a residential A zoning district. Ron Roma (Roma) is licensed as a helicopter pilot and regularly uses the helicopter he owns to travel to his various family homes, business engagements, and other activities. Roma does not operate his helicopter for […]
Boston Scientific Corporation v. Takahashi, et al. (Lawyers Weekly No. 09-060-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, so SUPERIOR COURT CIVIL ACTION 2017-02976 BLS 2 BOSTON SCIENTIFIC CORPORATION, Plaintiff vs. LYNN TAKAHASHI, GENE ZIGRA, JONATHAN OLSEN, and NUVECTRA CORPORATION Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS FOR FORUM NON CONVENIENS This is an action against three former employees of the plaintiff Boston Scientific Corporation (Boston Scientific) and their current employer, the Nuvectra Corporation (Nuvectra) alleging misappropriation of confidential information and violations of a nonsolicitation clause in the individual defendants’ employment agreements with plaintiff. Each of those agreements contains clauses designating Massachusetts as the forum and Massachusetts law as the governing law for any legal disputes arising from the agreements. The defendants now move to dismiss the action based on the doctrine of forum non conveniens. This Court concludes that the Motion must be Denied. In support of their Motion, the defendants point out that at all relevant times, the former employees worked and resided in California. Before their departure in September of this year, they worked for Boston Scientific’s sale team in the Los Angeles area; they currently work for Nuvectra, a competitor of Boston Scientific, as part of its sales team in the same geographical region. Relying on G.L.c. 223 § 5A, the defendants argue that “the interest of substantial justice” supports dismissal of this action because the balance of private and public concerns favor a California forum. Gianocostas v. Interface Grp.-Massachusetts Inc., 450 Mass. 715, 723 (2008). In particular, they argue that California’s strong policy against the enforcement of restrictive covenants suggests that this case is best decided in a California forum. This Court is not convinced. The doctrine of forum non conveniens “leaves much to the discretion of the court to which plaintiff’s resorts…” Gulf Oil Corp., v. Gilbert, 330 U.S. 501, 508 (1947) (outlining the public and private concerns a court should consider in applying the doctrine). However, this Court must exercise that discretion keeping in mind that there is a strong presumption in favor of plaintiff’s choice of forum. “Assuming jurisdiction and venue are proper, dismissal on the ground of forum non conveniens will rarely be granted; ‘unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’” Kearsarge Metallurgical Corp. v. Peerless Ins. Co., 383 Mass. 162 , 169 (1981) (footnote omitted), quoting from New Amsterdam Cas. Co. v. Estes, 353 Mass. 90 , 95 (1967). See also Joly v. Albert Larocque Lumber, Ltd., 397 Mass. 43 (1986). In the instant case, the defendants face an additional hurdle in convincing this Court that dismissal is warranted in that each of the employment agreements designates Massachusetts as an appropriate forum. Indeed, in one of […]
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Misra, et al. v. Credico (USA LLC, et al. (Lawyers Weekly No. 09-061-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2017-2731-BLS 2 KANIKA MISRA, CRAIG LEVINE, individually And on behalf of all others similarly situated , Plaintiffs vs. CREDICO (USA) LLC, DFW CONSULTANTS, INC., and JASON WARD Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANT CREDICO (USA) LLC’S MOTION TO DISMISS OR IN THE ALTERNATIVE TO STAY This putative class action alleges a failure to pay minimum wage and overtime in violation of G.L.c. 149 § 148 and G.L.c. 151 § 1B and a misclassification of plaintiffs as independent contractors in violation of G.L.c. 149 § 148B. The defendant, Credico (USA) LLC (Credico) is also a named defendant in two federal court actions filed in the Southern District of New York. Martin v. Sprint/United Management Co., Civ. A. No. 15-05237 (Martin) and Vasto v. Credico (USA) LLC, Civ. A. No. 15-09298 (Vasto). Both actions make fact allegations against Credico similar to the instant case, and the plaintiffs in this action, Kanika Misra and Craig Levine, affirmatively opted in to the Vasto action so as to be bound by its resolution. Both Vasto and Martin, however, are brought under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq.., which differs in important respects from Massachusetts wage and hours laws. This action was originally filed in Norfolk Superior Court under docket number 1683-0951. On December 7, 2016, Credico moved to dismiss or in the alternative sought a stay on the grounds that the two earlier filed actions (handled by the same federal judge in New York) should proceed to resolution first. Defendant also sought a transfer to the Business Litigation Session, which plaintiffs opposed. Ultimately, the case was transferred on August 28, 2017, and the defendant’s motion was scheduled for hearing October 26, 2017. Before that hearing took place, the federal court in the Martin action had granted Credico’s motion for summary judgment. On October 27, 2017 (a day after the hearing before this Court on the instant motion), the federal court granted Credico’s motion for summary judgment in the Vasto action. Because Credico’s motion to dismiss or stay was premised on its position that this case should not go forward because these other actions were pending, the motion is now moot. When plaintiffs notified this Court of the Vasto decision, Credico responded that it intended to seek dismissal of this case based on a different argument – namely, that plaintiffs are barred from pursuing their Massachusetts claims on the grounds of collateral estoppel. Plaintiffs already raised this issue — and presented strong arguments as to why collateral estoppel does not bar this action – when they opposed […]
Fratea v. Unitrends, Inc., et al. (Lawyers Weekly No. 09-062-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-3182 BLS 2 MICHAEL FRATEA, on behalf of himself And all others similarly situated, Plaintiff vs. UNITRENDS, INC., BRADLEY MILLER, and PAUL BRADY Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This is an action alleging both statutory and common law claims for failure to pay overtime compensation. In particular, the plaintiff alleges violations of the Massachusetts Wage Act, G.L.c. 149 § 148, and the Massachusetts Fair Wages Act, G.L.c. 151 § 1A and § 1B. Plaintiff Michael Fratea was a salesman for the defendant Unitrends from December 2015 until March 2016, when he left the company. On his last day of employment, Fratea received a separation agreement (the Agreement) containing a Release of all claims in exchange for a lump sum payment of $ 1,875. He signed and returned the Agreement to the company one week later. See Declaration of Lisa Crawford and Exhibit A attached thereto.[1] The defendants now move to dismiss the Complaint on the basis of this Release. This Court concludes that the Motion must be ALLOWED. The Release states in relevant part that Fratea releases Unitrends and its officers and agents (defined as the “Releasees”) from all claims: …arising out of or in connection with (i) your employment with [Unitrends] or termination thereof; (ii) any and all federal, state or local law, constitution or regulation regarding either employment, employment benefits…(iii) any Massachusetts state or local laws respecting employment, including but not limited to, the Massachusetts Wage Payment Act (M.G.L.c. 149 148)…(iv) breach of contract (express or implied) or breach of the implied covenant of good faith and fair dealing…(vi) any other tort, statutory or common law cause of action. ¶ 2(a) of Agreement. As consideration for this Release, Fratea acknowledged the receipt of $ 1,875 in “Separation Pay.” Under a section entitled “Representations,” Fratea acknowledged that this payment represents “complete and unconditional payment, settlement, accord and/or satisfaction with respect to all obligations and liabilities of the Releasees to You [Fratea] including, without limitation, all claims for back wages” and that all compensation owed by the company to the plaintiff has been paid in full. ¶ 4 of Agreement. Section 18 contains a similar acknowledgment, stating that the Separation Pay is in ‘full settlement of all possible claims you might have or ever had, against the Company” and that in executing the Agreement, Fratea is specifically agreeing to the Release. The Agreement by its terms gave Fratea fourteen days to consider it and at the end of the document, states in bold face and all capital letters that he should […]