Dow v. Casale (Lawyers Weekly No. 11-076-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑687 Appeals Court RUSSELL DOW vs. GREGORY CASALE. No. 12‑P‑687. Suffolk. November 8, 2012. ‑ June 19, 2013. Present: Cohen, Katzmann, & Wolohojian, JJ. Massachusetts Wage Act. Labor, Wages. Civil action commenced in the Superior Court Department on April 1, 2010. The case was heard by Peter M. Lauriat, J., on motions for summary judgment. W. Paul Needham (Mark A. Johnson with him) for the defendant. Elise Busny (Margaret M. Pinkham with her) for the plaintiff. COHEN, J. In this action pursuant to the Massachusetts Wage Act, G. L. c. 149, §§ 148,[1] 150[2] (Wage Act), Florida resident Russell Dow, an employee of Starbak, Inc.,[3] a corporation organized under the laws of Delaware, with a sole place of business in Massachusetts, brought suit against Starbak’s chief executive officer, Gregory Casale, a Massachusetts resident, seeking unpaid sales commissions of more than $ 100,000, certain unreimbursed expenses, wages in lieu of accrued vacation time, treble damages, and attorney’s fees. In defending Dow’s claim, Casale contended that it would be an impermissible “extraterritorial” application of the statute to permit Dow to avail himself of the private right of action provided in § 150, because Dow did not reside in Massachusetts and did not perform his work “primarily” in Massachusetts. On stipulated facts, a judge of the Superior Court concluded that Dow had more than sufficient “contacts” with Massachusetts to afford him the protection of the Wage Act. Accordingly, he ruled in favor of Dow on the parties’ cross motions for summary judgment, and entered separate and final judgment for Dow. See Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974). Casale appeals, again arguing that, as matter of law, the remedy provided by § 150 does not extend to Dow. After de novo review, see Crocker v. Townsend Oil Co., 464 Mass. 1, 5 (2012), we affirm. Facts. We summarize the stipulated facts that bear on the issue presented. At all relevant times, Starbak was a Massachusetts-based developer and manufacturer of video conferencing software and hardware. Dow began working for Starbak on January 3, 2006, and, throughout his tenure with the company, was its only salesperson. From March 15, 2007, until February 5, 2010, Dow held the title “director of sales.” His written employment agreement with Starbak provided that it “shall be […]
Pinney v. Commonwealth (Lawyers Weekly No. 10-030-18)
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-12197 FREDERICK PINNEY vs. COMMONWEALTH. February 15, 2018. Homicide. Constitutional Law, Double jeopardy. Practice, Criminal, Mistrial, Double jeopardy. Frederick Pinney is charged with murder in the first degree. After his first trial ended in a mistrial, he moved to dismiss the indictment on the basis that the evidence presented was legally insufficient to warrant a conviction, and therefore retrying him would violate the guarantee against double jeopardy. The trial judge denied the motion, and Pinney then filed a petition pursuant to G. L. c. 211, § 3, in the county court, seeking review of that decision. A single justice denied the petition, and Pinney appeals. We affirm. Background. Pinney was indicted in 2014 for the murder of Tayclair Moore. His trial commenced in January, 2016, and lasted several days. At the close of the Commonwealth’s case, Pinney moved for a required finding of not guilty, which the trial judge denied. He renewed the motion orally later that day at the close of all the evidence; the judge took no action on the motion at that time. Pinney renewed the motion again, in writing, several days later while the jury were deliberating; again the judge took no immediate action. After deliberating for several days, the jury reported to the judge that they were deadlocked, leading the judge to give them, the following day, an instruction pursuant to Commonwealth v. Rodriquez, 364 Mass. 87, 101–102 (1973) (Appendix A), and Commonwealth v. Tuey, 8 Cush. 1, 2–3 (1851). Later that day, the foreperson informed the judge that one of the deliberating jurors had discussed the deliberations with the alternate jurors. The judge conducted an individual voir dire of the jurors, determined that the deliberating and alternate jurors had improperly communicated, and concluded that the jurors had engaged in misconduct. On this basis, Pinney filed a motion for a mistrial that the judge allowed. The judge later denied Pinney’s renewed motion for a required finding of not guilty. Pinney subsequently filed a motion to dismiss the indictment, claiming that the evidence was insufficient to warrant a guilty verdict and that double jeopardy principles thus barred any retrial. The trial judge denied that motion as well. Discussion. In certain circumstances, allowing a retrial of a defendant whose first trial has ended in a mistrial would infringe on the defendant’s […]
Commonwealth v. Dobson (Lawyers Weekly No. 11-130-17)
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-670 Appeals Court COMMONWEALTH vs. JANERA W. DOBSON. No. 16-P-670. Suffolk. March 10, 2017. – October 3, 2017. Present: Milkey, Hanlon, & Lemire, JJ. Assault and Battery by Means of a Dangerous Weapon. Parent and Child, Discipline. Child Abuse. Practice, Criminal, Required finding. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on May 5, 2014. The case was heard by Catherine K. Byrne, J. Peter A. O’Karma for the defendant. Kathryn E. Leary, Assistant District Attorney, for the Commonwealth. HANLON, J. On December 16, 2014, following a jury-waived trial in the Dorchester Division of the Boston Municipal Court, the defendant, Janera W. Dobson, was convicted of assault and battery by means of a dangerous weapon; she had been charged with striking her five year old child in the face with a leather belt. See G. L. c. 265, § 15A(b). On appeal, she contends that the Commonwealth failed to prove that her behavior was not privileged as parental discipline. We affirm. Background. We recite the facts as the judge could have found them. At approximately 5:20 P.M. on May 2, 2014, Boston Police Officer Brendon Cahill received a radio call to respond to an incident at 45 School Street, in the Dorchester section of Boston. There, he encountered a five year old child and his father standing outside the building. The child had a four-inch-long straight red mark on his leg, and another red mark on his face.[1] After speaking to the father, Cahill entered a second-floor apartment at 45 School Street and spoke with the child’s mother, the defendant. She told him that she had struck her child with a belt in an attempt to discipline him, and that she had intended to hit his buttocks, but had missed and hit him in the face. Cahill requested that detectives come to the scene to photograph the child’s injuries. The defendant was charged with assault and battery by means of a dangerous weapon, a belt. At trial, the Commonwealth’s evidence consisted of Cahill’s testimony and three black and white photographs of the child with the marks; the defendant offered only her own testimony. She testified that she had “spanked [her son] with a belt” because “in his [kindergarten] classroom there were people […]
A.P. v. M.T. (Lawyers Weekly No. 11-113-17)
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-202 Appeals Court A.P. vs. M.T. No. 16-P-202. Essex. January 6, 2017. – September 1, 2017. Present: Kafker, C.J., Hanlon, & Agnes, JJ.[1] Civil Harassment. Harassment Prevention. Evidence, Cross-examination, Identification. Identification. Complaint for protection from harassment filed in the Essex County Division of the Juvenile Court Department on October 30, 2015. The case was heard by Mark Newman, J. Benjamin L. Falkner for the defendant. HANLON, J. After a hearing, a Juvenile Court judge extended a civil harassment order, pursuant to G. L. c. 258E, against a juvenile (the defendant, M.T.) who, along with another boy, was accused of committing an indecent assault and battery on a four year old neighbor girl (the plaintiff, A.P.). M.T. now appeals the ex parte order and the extension, arguing that (1) the evidence was insufficient to support the issuance of the order; (2) the judge abused his discretion in limiting the cross-examination of A.P.’s mother (mother); and (3) the mother’s in-court identification of M.T. and the other boy was improper. M.T. asks this court to vacate the order and expunge all records or, in the alternative, to vacate the order and remand for further proceedings.[2] We affirm. Background.[3] A.P. and M.T. and their families live on a cul-de-sac. Their properties border one another, and are separated by a fence. The other boy’s property is in the same cul-de-sac, but does not border A.P.’s property. At the time of the incident, A.P. was four years old and had developmental delays related to speaking and expression. At the ex parte hearing, A.P.’s father (father) appeared alone and testified that he was at work when he received a telephone call from the mother.[4] The father summarized the events as the mother had relayed them to him: “[A.P.] was in the backyard in our fenced-in yard playing. We have a swing set, jungle gym, and some toys. And my wife’s Vietnamese. She’s pretty protective, generally won’t let the kids out of her sight for more than [ten] to [twenty] minutes, if that. So I don’t know how long she was out there. “But my wife went to the back door and hollered [A.P.]’s name. And our jungle gym sort of blocks — there’s a blind spot right behind the jungle gym. And [A.P.] came […]
The Gillette Company v. Provost, et al. (Lawyers Weekly No 12-040-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1584CV00149-BLS2 ____________________ THE GILLETTE COMPANY v. CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING, and SHAVELOGIC, INC. ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The Gillette Company alleges that four former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette’s confidential information. Gillette claims that in so doing Defendants violated G.L. c. 93A, the individual defendants breached non-disclosure agreements with Gillette, and all five Defendants engaged in a civil conspiracy. It also claims that ShaveLogic’s patents and patent applications should be subjected to a constructive trust in favor of Gillette. Gillette does not claim that any of the individual defendants breached a covenant not to compete with Gillette. The parties previously stipulated to the dismissal with prejudice of Gillette’s trade secret claims.1 ShaveLogic claims, in turn, that Gillette intentionally interfered with prospective business relations and violated c. 93A, by threatening to bring and then filing baseless legal claims in an attempt to keep ShaveLogic from entering the market for so-called wet-shaving products. The parties have filed cross-motions for summary judgment on all remaining claims and counterclaims. The Court concludes that Defendants are entitled to summary judgment in their favor on Gillette’s remaining claims because Gillette cannot prove that Defendants misused any of Gillette’s confidential information or that the individual defendants breached any non-disclosure agreement. The Court 1 The Court (Salinger, J.) previously ordered the dismissal with prejudice of Gillette’s claims against three other defendants. It dismissed Gillette’s claims that ShaveLogic’s general counsel breached fiduciary duties that he owed as a former Gillette patent counsel and that ShaveLogic’s CEO, its president, and the other individual defendants aided and abetted that alleged breach of fiduciary duty and conspired to bring it about. – 2 – also concludes that Gillette is not entitled to summary judgment on ShaveLogic’s counterclaims because a reasonable fact finder could conclude that Gillette had deliberately brought baseless claims in an attempt to bully ShaveLogic out of the market. The Court will schedule a final pre-trial conference to discuss trial of ShaveLogic’s counterclaims. 1. Gillette’s Claims. Defendants are entitled to summary judgment in their favor on Gillette’s remaining claims because the undisputed material facts show that Gillette has “no reasonable expectation of proving” at least one element of each of its claims. See Boazava v. Safety Ins. Co., 462 Mass. 346, 350 (2012). “A nonmoving party’s failure to establish an essential element of her claim ‘renders all other facts immaterial’ and mandates summary judgment in favor of the moving party.” Roman v. Trustees of Tufts College, 461 Mass. 707, 711 (2012), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). 1.1. Unfair Competition—G.L. c. […]
The Gillette Company v. Provost, et al. (Lawyers Weekly No. 12-040-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1584CV00149-BLS2 ____________________ THE GILLETTE COMPANY v. CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING, and SHAVELOGIC, INC. ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The Gillette Company alleges that four former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette’s confidential information. Gillette claims that in so doing Defendants violated G.L. c. 93A, the individual defendants breached non-disclosure agreements with Gillette, and all five Defendants engaged in a civil conspiracy. It also claims that ShaveLogic’s patents and patent applications should be subjected to a constructive trust in favor of Gillette. Gillette does not claim that any of the individual defendants breached a covenant not to compete with Gillette. The parties previously stipulated to the dismissal with prejudice of Gillette’s trade secret claims.1 ShaveLogic claims, in turn, that Gillette intentionally interfered with prospective business relations and violated c. 93A, by threatening to bring and then filing baseless legal claims in an attempt to keep ShaveLogic from entering the market for so-called wet-shaving products. The parties have filed cross-motions for summary judgment on all remaining claims and counterclaims. The Court concludes that Defendants are entitled to summary judgment in their favor on Gillette’s remaining claims because Gillette cannot prove that Defendants misused any of Gillette’s confidential information or that the individual defendants breached any non-disclosure agreement. The Court 1 The Court (Salinger, J.) previously ordered the dismissal with prejudice of Gillette’s claims against three other defendants. It dismissed Gillette’s claims that ShaveLogic’s general counsel breached fiduciary duties that he owed as a former Gillette patent counsel and that ShaveLogic’s CEO, its president, and the other individual defendants aided and abetted that alleged breach of fiduciary duty and conspired to bring it about. – 2 – also concludes that Gillette is not entitled to summary judgment on ShaveLogic’s counterclaims because a reasonable fact finder could conclude that Gillette had deliberately brought baseless claims in an attempt to bully ShaveLogic out of the market. The Court will schedule a final pre-trial conference to discuss trial of ShaveLogic’s counterclaims. 1. Gillette’s Claims. Defendants are entitled to summary judgment in their favor on Gillette’s remaining claims because the undisputed material facts show that Gillette has “no reasonable expectation of proving” at least one element of each of its claims. See Boazava v. Safety Ins. Co., 462 Mass. 346, 350 (2012). “A nonmoving party’s failure to establish an essential element of her claim ‘renders all other facts immaterial’ and mandates summary judgment in favor of the moving party.” Roman v. Trustees of Tufts College, 461 Mass. 707, 711 (2012), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). 1.1. Unfair Competition—G.L. c. […]
Commonwealth v. Johnson (Lawyers Weekly No. 11-040-17)
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-987 Appeals Court COMMONWEALTH vs. JAMIE B. JOHNSON. No. 15-P-987. Suffolk. May 3, 2016. – April 7, 2017. Present: Grainger, Meade, & Wolohojian, JJ. Global Positioning System Device. Bail. Due Process of Law, Pretrial detainees. Practice, Criminal, Motion to suppress, Required finding. Abuse Prevention. Protective Order. Constitutional Law, Search and seizure. Search and Seizure, Expectation of privacy, Consent. Consent. Complaint received and sworn to in the West Roxbury Division of the Boston Municipal Court Department on November 13, 2013. A pretrial motion to suppress evidence was heard by Mary Ann Driscoll, J, and the case was heard by her. Travis J. Jacobs for the defendant. Matthew Sears, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury-waived trial, the defendant was convicted of breaking and entering a building during the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 18, and larceny in an amount more than $ 250, in violation of G. L. c. 266, § 30. On appeal, the defendant claims error in the admission of data generated from a global positioning system (GPS) tracking device he agreed to wear as a condition of his release after being charged with violating an abuse prevention order, see G. L. c. 209A, § 7, and that the evidence was insufficient to support his convictions of breaking and entering a building during the daytime with the intent to commit a felony, and of larceny. We affirm. Background. a. Agreed-to GPS monitoring. On July 8, 2013, the defendant was charged with having committed various crimes stemming from an incident of domestic violence on Nancy Jones[1] that took place two days earlier in the Dorchester section of Boston (Dorchester case).[2] At the defendant’s arraignment, a judge of the Dorchester Division of the Boston Municipal Court Department (Dorchester judge) determined that, for various reasons,[3] the defendant should not be released on personal recognizance without surety, and instead required that he post bail in the amount of $ 2,500. The Dorchester judge imposed several conditions of pretrial release, which were reflected on a printed form provided to, and signed by, the defendant. The conditions included GPS monitoring, staying away from Jones’s home address in Dorchester, and staying away from Jones herself. The defendant signed this form on July 8, 2013, and, by […]
Commonwealth v. Cruz (Lawyers Weekly No. 11-103-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-1160 Appeals Court COMMONWEALTH vs. MIGUEL CRUZ. No. 11-P-1160. Suffolk. March 1, 2016. – August 18, 2016. Present: Cypher, Cohen, & Neyman, JJ. Controlled Substances. “School Zone” Statute. Practice, Criminal, New trial, Public trial, Assistance of counsel. Constitutional Law, Public trial, Assistance of counsel. Words, “Preschool.” Indictments found and returned in the Superior Court Department on March 6, 2008. The cases were tried before Regina L. Quinlan, J., and a motion for a new trial, filed on August 22, 2012, was heard by Raymond J. Brassard, J. James E. Methe for the defendant. Matthew P. Landry, Assistant Attorney General, for the Commonwealth. CYPHER, J. Following a jury trial, the defendant, Miguel Cruz, was convicted of two counts of trafficking in cocaine, G. L. c. 94C, § 32E(b); two counts of distribution of cocaine, G. L. c. 94C, § 32A(c); and four counts of distributing drugs in a school zone, G. L. c. 94C, § 32J. On the defendant’s consolidated appeal from his convictions of the four school zone violations and the denial of his motion for a new trial, the primary issue is whether a child care facility that enrolls younger than school aged children can qualify as a “preschool” within the meaning of the school zone statute. Concluding that it does, and finding no merit in the defendant’s remaining claims, we affirm. Background. Taken in the light most favorable to the Commonwealth, the evidence showed that, on four occasions between November 20, 2007, and December 12, 2007, the defendant sold cocaine to a police officer working undercover.[1] Three of the drug transactions occurred at a street address located approximately 259 feet from the parking lot of the East Boston YMCA, and a fourth transaction was conducted in a vehicle parked 173 feet and 4 inches from the same YMCA property.[2] A private, nonprofit social service organization, the East Boston YMCA operates within its building a health center, teen programs, and the East Boston Child Care Center (center). The center is licensed as a child care facility by the Massachusetts department of early education and care. It is also accredited by the National Association for the Education of Young Children, which assesses the center’s staffing levels and the educational capabilities of its teachers. Ninety-three children between the ages of fifteen months […]
Commonwealth v. Hyde (and seven companion cases) (Lawyers Weekly No. 11-192-15)
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 12-P-867 Appeals Court COMMONWEALTH vs. JAMES C. HYDE (and seven companion cases[1]). No. 12-P-867. Essex. June 12, 2015. – December 21, 2015. Present: Cohen, Green, & Trainor, JJ. Insurance, Motor vehicle insurance, Fraud and concealment, Defrauding insurer. Motor Vehicle, Insurance. Fraud. Larceny. Practice, Criminal, Instructions to jury, Grand jury proceedings, Indictment. Grand Jury. Evidence, Intent, Inference, Grand jury proceedings, Relevancy and materiality, Prior misconduct, Testimony before grand jury, Credibility of witness. Probable Cause. Witness, Credibility. Indictments found and returned in the Superior Court Department on April 4, 2008. The cases were tried before Howard J. Whitehead, J. Edward Foye (David Meier with him) for James C. Hyde. Sarah E. Dolven for Omar Castillo. Argie K. Shapiro, Assistant Attorney General (William R. Freeman, Special Assistant Attorney General, with her) for the Commonwealth. COHEN, J. Following a multi-year inquiry by investigators from the Massachusetts Insurance Fraud Bureau and the city of Lawrence police department, a grand jury indicted the defendants, James C. Hyde, Michael H. Kaplan, and Omar Castillo, for crimes arising from the submission of fraudulent automobile insurance claims.[2] The defendants later were tried together before a Superior Court jury. Hyde, an attorney at the law firm of Berger & Hyde, P.C., was convicted of two counts each of motor vehicle insurance fraud (see G. L. c. 266, § 111B), larceny over $ 250 (see G. L. c. 266, § 30), and attempted larceny over $ 250 (see G. L. c. 274, § 6). Kaplan, a chiropractor and owner of the Kaplan Chiropractic clinic, was convicted of three counts of motor vehicle insurance fraud, and two counts each of larceny over $ 250 and attempted larceny. Castillo, an employee of Kaplan Chiropractic, was convicted of one count each of motor vehicle insurance fraud and larceny over $ 250. Before us are the appeals of Hyde and Castillo.[3] Hyde’s convictions resulted from insurance claims submitted on behalf of clients purporting to have been injured in two staged automobile accidents — one alleged to have occurred on October 1, 2002, and the other alleged to have occurred on December 20, 2002. Hyde’s primary contention on appeal is that the Commonwealth failed to establish at both the grand jury and petit jury stages of the case that he knew that these particular accidents were staged. On this ground, he maintains that both his […]
Commonwealth v. Cole (Lawyers Weekly No. 10-201-15)
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-11346 COMMONWEALTH vs. LESLIE COLE. Bristol. October 9, 2015. – December 18, 2015. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Evidence, Medical record, Consciousness of guilt, Hearsay, Expert opinion. Deoxyribonucleic Acid. Witness, Expert. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Capital case, Hearsay, Instructions to jury, Confrontation of witnesses, Discovery, Argument by prosecutor, Required finding. Indictments found and returned in the Superior Court Department on March 3, 2006. The cases were tried before Robert J. Kane, J. James E. Methe for the defendant. Mary O’Neil, Assistant District Attorney, for the Commonwealth. SPINA, J. A Superior Court jury convicted the defendant, Leslie M. Cole, of the murder in the first degree of Rudolph Santos (victim) on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, in violation of G. L. c. 265, § 1.[1] On appeal, the defendant contends that (1) the trial judge erred by admitting in evidence unredacted medical records purportedly belonging to the defendant, together with related testimony from a nurse practitioner, and by instructing the jury on consciousness of guilt; (2) the admission of expert testimony concerning the statistical significance of deoxyribonucleic acid (DNA) evidence violated the defendant’s constitutional right to confront witnesses; (3) the trial judge erred by admitting in evidence the victim’s T-shirt, notwithstanding a purported discovery violation by the Commonwealth; (4) the prosecutor made improper remarks during her opening statement and her closing argument; and (5) the judge erred in denying the defendant’s motion for required findings of not guilty. The defendant also requests that we exercise our authority under G. L. c. 278, § 33E, to reduce the conviction of murder to a lesser degree of guilt or to order a new trial. For the reasons detailed below, we affirm the defendant’s convictions and decline to grant relief pursuant to G. L. c. 278, § 33E. 1. Background. We summarize the facts the jury could have found, reserving further details for our discussion of the alleged errors. Shortly before Christmas in 2005, the defendant and William Fields, who sold drugs together, discussed the possibility of robbing an unspecified drug dealer in order to resolve a cash flow problem. One day when the two men were visiting the New Bedford home of Fields’s friend, Shannon Almeida, they asked her if she knew anyone […]