Posts tagged "cases"

WorldWide TechServices, LLC v. Commissioner of Revenue, et al. (and three consolidated cases) (Lawyers Weekly No. 10-032-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12328   WORLDWIDE TECHSERVICES, LLC  vs.  COMMISSIONER OF REVENUE & another[1] (and three consolidated cases[2]).       Suffolk.     November 7, 2017. – February 22, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Taxation, Abatement, Sales and use tax.  Practice, Civil, Abatement, Intervention.  Administrative Law, Intervention.  Due Process of Law, Intervention in civil action.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Edward D. Rapacki for the intervener. John A. Shope (Michael Hoven also present) for the taxpayers. Daniel J. Hammond, Assistant Attorney General (Daniel A. Shapiro also present) for Commissioner of Revenue. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.     KAFKER, J.  Fifteen years and three Supreme Judicial Court decisions ago, this protracted case commenced regarding taxes imposed on computer service contracts.  The litigation began when purchasers of the service contracts filed a putative class action against the sellers,[3] claiming under G. L. c. 93A that the imposition of these taxes was unlawful and an unfair and deceptive practice.  The sellers successfully moved to compel arbitration pursuant to the terms of the computer service contracts, and a judge in the Superior Court eventually confirmed the award.  The next chapter in this tax saga, and the one we are required to decide today, then ensued. For the sole and express purpose of hedging their bets in response to the class action, the sellers had applied for tax abatements from the Commissioner of Revenue (commissioner) beginning in 2004.  The commissioner denied the applications, and the sellers petitioned the Appellate Tax Board (board).  The appellant, Econo-Tennis Management Corp., doing business as Dedham Health and Athletic Complex (Dedham Health), one of the consumers who purchased these service contracts, moved to intervene in the proceedings, which the board allowed.  Thereafter, the board, with certain exceptions, reversed the decision of the commissioner and allowed the abatements, ordering the parties to compute the amounts to be abated.  Taxes totaling $ 215.55 were imposed on the service contracts purchased by Dedham Health.[4]  After the class action litigation on the claims under G. L. c. 93A ended in the sellers’ favor, the sellers withdrew their tax abatement petitions with prejudice.  Dedham Health moved to strike the withdrawals.  The […]

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Posted by Massachusetts Legal Resources - February 22, 2018 at 4:04 pm

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Adoption of Garret (and two companion cases) (Lawyers Weekly No. 11-009-18)

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   17-P-79                                         Appeals Court   ADOPTION OF GARRET (and two companion cases[1]).     No. 17-P-79.   Hampden.     October 4, 2017. – January 22, 2018.   Present:  Agnes, Sacks, & Lemire, JJ.     Adoption, Care and protection, Dispensing with parent’s consent, Visitation rights.  Parent and Child, Adoption, Care and protection of minor, Dispensing with parent’s consent to adoption, Custody.  Minor, Care and protection, Custody, Visitation rights.       Petitions filed in the Hampden County Division of the Juvenile Court Department on August 2, 2012.   The cases were heard by Lois M. Eaton, J.     Katrina McCusker Rusteika for the mother. Madeline Weaver Blanchette for Garret & another. Briana Rose Cummings for Susan. Jeremy Bayless for Department of Children and Families. William B. Tobey, for the father, was present but did not argue.     AGNES, J.  This termination of parental rights case involves a blended family consisting of seven individuals:  the mother, the father, and their child, Susan; Garret and Elizabeth, the father’s children from a prior relationship; and Peter and Michael, the mother’s children from her prior marriage.  On August 2, 2012, the Department of Children and Families (DCF) filed two petitions pursuant to G. L. c. 119, § 24, in the Juvenile Court alleging that all five children were in need of care and protection.  A judge granted DCF temporary custody of Elizabeth that same day.  DCF was subsequently granted temporary custody of the remaining four children on August 21, 2012.  Both the mother and the father waived their rights to a temporary custody hearing on September 10, 2012.  The care and protection petitions were later consolidated. The termination trial occurred over the course of eleven days in 2014; twenty-three witnesses testified and over fifty exhibits were introduced in evidence.  The judge subsequently made 913 written findings of fact and seventy-one conclusions of law, including conclusions regarding the fourteen factors enumerated in G. L. c. 210, § 3(c), with respect to each parent.[2]  As relevant to this appeal, the judge found that the mother and the father were unfit to parent Susan and their other respective children both at the time of trial and into the future.[3]  All of the children were adjudicated in need of care and protection and were committed to the care of DCF pursuant to G. L. c. 119, § 26.  Pursuant to G. L. c. 210, § 3, the judge terminated […]

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Posted by Massachusetts Legal Resources - January 22, 2018 at 3:53 pm

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James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)

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-12325   JAMES B. NUTTER & COMPANY  vs.  ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]).       Suffolk.     October 2, 2017. – January 18, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Mortgage, Foreclosure.  Real Property, Mortgage.       Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively.   A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court.   The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court.     Daniel Bahls (Uri Strauss also present) for Brett Jamieson. Effie Gikas Tchobanian for the plaintiff. Elaine Benkoski, for Estate of Barbara A. Murphy & others, was present but did not argue.     GANTS, C.J.  In 2007 and 2008, three elderly homeowners obtained loans from James B. Nutter & Company (Nutter), secured by reverse mortgages on their homes.  A few years later, two of the borrowers died; the third took ill and could no longer live in her home.  Alleging default, Nutter now seeks to foreclose on the mortgages.  Rather than proceed directly to foreclosure, however, Nutter brought separate actions in the Land Court against each borrower or the executors of their estate,[3] seeking in each case a declaratory judgment allowing it to foreclose pursuant to the statutory power of sale. Each of the reverse mortgages adhered to Nutter’s standard form, which states in paragraph 20 that, in the event of default, “[l]ender may invoke the power of sale and any other remedies permitted by applicable law.”  The issue we must resolve is whether this language in the reverse mortgage incorporates the statutory power of sale as set forth in G. L. c. 183, § 21, and allows Nutter to foreclose on the mortgaged property in accordance with the requirements in § 21.  We hold that it does. Background.  1.  Reverse mortgages.  For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes.  See Consumer Financial Protection Bureau, Issue Brief:  The costs and risks of using a reverse mortgage to delay collecting Social Security, at 8 (2017).  In order to secure cash for their living expenses, many […]

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Posted by Massachusetts Legal Resources - January 18, 2018 at 10:26 pm

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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 […]

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Posted by Massachusetts Legal Resources - December 14, 2017 at 6:05 pm

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Commonwealth v. Johnson (and two companion cases) (Lawyers Weekly No. 11-153-17)

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   17-P-58                                         Appeals Court 17-P-59 17-P-70   COMMONWEALTH  vs.  ALEXANDER JOHNSON (and two companion cases[1]).     Nos. 17-P-58, 17-P-59, & 17-P-70.   Norfolk.     November 1, 2017. – December 12, 2017.   Present:  Milkey, Blake, & Singh, JJ.     Assault and Battery by Means of a Dangerous Weapon.  Evidence, Joint venturer.  Practice, Criminal, Dismissal, Indictment.       Indictments found and returned in the Superior Court Department on March 24, 2016.   Motions to dismiss were heard by Beverly J. Canone, J.     Varsha Kukafka, Assistant District Attorney, for the Commonwealth. Kathleen E. McKay for Alexander Johnson. Neil V. Madden for Jordan Williams. John M. Brinkman, for Michael Leary, was present but did not argue.     MILKEY, J.  A grand jury indicted Alexander Johnson, Jordan Williams, and Michael Leary for assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI).  See G. L. c. 265, § 15A(c)(i).  The indictments were based on a bar fight, during which Christopher Socha (the victim) was struck on the top of his head with a glass.  The Commonwealth’s theory was that Johnson was the one who struck the victim with the glass, and that Williams and Leary were criminally liable for aiding and abetting Johnson.[2] Johnson moved to dismiss so much of the ABDW-SBI indictment as alleged serious bodily injury, on the grounds that the evidence presented to the grand jury failed to establish probable cause that such injury occurred.  See generally Commonwealth v. McCarthy, 385 Mass. 160, 162-163 (1982).  Williams and Leary moved to dismiss the ABDW-SBI indictments against them in toto, arguing that the evidence before the grand jury failed to establish probable cause that they aided and abetted Johnson’s striking the victim with the glass.   Before us now is the Commonwealth’s appeal from the Superior Court order allowing all three McCarthy motions with respect to the ABDW-SBI indictments.[3]  For the reasons that follow, we reinstate the ABDW-SBI indictments against each defendant. Background.[4]  The bar fight.  The three defendants worked for a liquor wholesaler in Kingston.  On October 3, 2015, a Saturday, the company held its annual party at a Plymouth restaurant.  The party featured an “open bar,” and the defendants had a considerable amount to drink.[5]  Together with other partygoers, they then went to another local restaurant, the Waterfront Bar & Grille, to continue the festivities.  The bar area […]

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Posted by Massachusetts Legal Resources - December 12, 2017 at 4:00 pm

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Commonwealth v. Wiggins (and 28 companion cases) (Lawyers Weekly No. 10-146-17)

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-10975   COMMONWEALTH  vs.  MAXWELL WIGGINS, JR. (and twenty-eight companion cases[1]).       Hampden.     February 10, 2017. – September 6, 2017.   Present:  Gants, C.J., Hines, Lowy, & Budd, JJ.[2]     Homicide.  Home Invasion.  Robbery.  Evidence, Identification, Cross-examination by codefendant’s counsel, Relevancy and materiality, Photograph.  Identification.  Deoxyribonucleic Acid.  Practice, Criminal, Capital case, Identification of defendant in courtroom, Severance, Mistrial, Argument by prosecutor, Sentence.  Constitutional Law, Sentence.       Indictments found and returned in the Superior Court Department on September 25, 2007.   Pretrial motions to suppress evidence were heard by Cornelius J. Moriarty, J.; and the cases were tried before Peter A. Velis, J.     Alan Jay Black for Maxwell Wiggins, Jr. Jeffrey L. Baler for Swinkels Laporte. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.          BUDD, J.  On the evening of August 29, 2007, two armed and masked men entered a home in Springfield, assaulting and robbing its occupants at gunpoint.  As they left, the homeowner, Tracy Bennett, who was returning home, was shot and killed.  Swinkels Laporte and Maxwell Wiggins were identified as the assailants and, following a joint jury trial in the Superior Court, were found guilty of murder in the first degree, as well as other offenses related to the home invasion. On appeal, they primarily claim that witnesses were improperly allowed to identify them as the perpetrators during the trial.  They also raise various evidentiary issues, and claim error in the prosecutor’s closing argument.  Wiggins further challenges the denial of his motions to sever and for a mistrial, based on co-counsel’s cross-examination of a witness regarding a previously suppressed out-of-court identification.  Laporte separately challenges his nonmurder sentences.  Finally, both defendants seek relief pursuant to G. L. c. 278, § 33E. We discern no reversible error and, after a thorough review of the record, decline to reduce or set aside the verdicts under G. L. c. 278, § 33E.  Accordingly, we affirm the defendants’ convictions.  However, we remand for resentencing Laporte’s convictions of home invasion and armed robbery while masked. Background.  We summarize the facts the jury could have found, reserving certain details for discussion of the issues. Tracy Bennett lived with her adult daughter, Susan; her eighteen year old son, Daniel; Susan’s three young children; and a seventeen year old family friend, Angel Colon.[3]  The defendants were friends of […]

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Posted by Massachusetts Legal Resources - September 6, 2017 at 2:52 pm

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New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)

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-654                                        Appeals Court   NEW BEDFORD EDUCATORS ASSOCIATION  vs.  CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]).     No. 16-P-654.   Middlesex.     May 4, 2017. – August 23, 2017.   Present:  Trainor, Vuono, & Sullivan, JJ.     Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review.  Declaratory Relief.  Mandamus.  Board of Education.  Commonwealth, Education.  Education.  School and School Committee.  Labor, Public employment.     Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014.   After consolidation, motions to dismiss were heard by Kimberly S. Budd, J.     Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants.     VUONO, J.  In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J.  The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3]  The unions sought declaratory relief pursuant to G. L. c. 231A.  NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5.  The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction.  Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions.  On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing.  For the reasons […]

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Posted by Massachusetts Legal Resources - August 23, 2017 at 2:33 pm

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Commonwealth v. Cotto (and related cases) (Lawyers Weekly No. 12-092-17)

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Posted by Massachusetts Legal Resources - July 26, 2017 at 5:30 pm

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Commonwealth v. Leslie (and five companion cases) (Lawyers Weekly No. 10-072-17)

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-12176   COMMONWEALTH  vs.  BOBBY LESLIE (and five companion cases[1]).       Suffolk.     November 7, 2016. – May 9, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]     Firearms.  Practice, Criminal, Motion to suppress.  Constitutional Law, Search and seizure, Privacy.  Search and Seizure, Multiple occupancy building, Curtilage, Expectation of privacy.       Indictments found and returned in the Superior Court Department on December 16, 2014.   Pretrial motions to suppress evidence were heard by Charles M. Hely, J.   An application for leave to prosecute an interlocutory appeal was allowed by Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.  The Supreme Judicial Court granted an application for direct appellate review.     Zachary Hillman, Assistant District Attorney, for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for Bobby Leslie. MarySita Miles for Lacy Price.     HINES, J.  The defendants, Bobby Leslie and Lacy Price, were indicted on charges of unlawful possession of a sawed-off shotgun,[3] G. L. c. 269, § 10 (c); unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n); and possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h) (1).[4]  The indictments arose from a May, 2014, warrantless search of the porch and side yard of a three-family home in the Dorchester section of Boston where the defendant Price resided.  The search revealed a loaded sawed-off shotgun under the porch.  Leslie was arrested at the scene, and after further investigation, Price was arrested.  A judge of the Superior Court allowed the defendants’ motions to suppress the sawed-off shotgun on the ground that a warrant was required to search the area under the porch in light of Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013), and art. 14 of the Massachusetts Declaration of Rights. The Commonwealth filed a timely appeal from the allowance of the defendants’ motions to suppress.  A single justice of this court granted leave to pursue an interlocutory appeal and reported the case to the Appeals Court.  We allowed the defendants’ application for direct appellate review to clarify the application of the Jardines warrant requirement to a search in a multifamily home.  Following the analytical framework set out in Jardines, 133 S. Ct. at 1414-1417, we conclude that the side yard […]

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Posted by Massachusetts Legal Resources - May 9, 2017 at 2:45 pm

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Commonwealth v. Fulgiam (and 13 companion cases) (Lawyers Weekly No. 10-071-17)

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-11674   COMMONWEALTH  vs.  EARL T. FULGIAM (and thirteen companion cases[1]).       Suffolk.     October 11, 2016. – May 5, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.[2]     Homicide.  Felony-Murder Rule.  Robbery.  Firearms.  Cellular Telephone.  Constitutional Law, Search and seizure, Probable cause.  Search and Seizure, Warrant, Probable cause.  Probable Cause.  Evidence, Fingerprints, Expert opinion, Prior misconduct, Relevancy and materiality.  Witness, Expert.  Practice, Criminal, Capital case, Warrant.       Indictments found and returned in the Superior Court Department on December 21, 2011.   The cases were tried before Peter M. Lauriat, J.     Elizabeth Caddick for Earl T. Fulgiam. Esther J. Horwich for Michael T. Corbin. Zachary Hillman, Assistant District Attorney (John P. Pappas, Assistant District Attorney, also present) for the Commonwealth.          HINES, J.  On July 25, 2011, armed intruders entered the apartment occupied by the victims, Kevin Thomas, Jr., and Billie Marie Kee, who were robbed and killed.  In May, 2013, a Superior Court jury found the defendants, Earl T. Fulgiam and Michael T. Corbin, guilty as joint venturers of murder in the first degree of both victims based on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with armed robbery as the predicate felony.  The defendants also were convicted of unlawful possession of a firearm and unlawful possession of a large capacity feeding device.[3]  On appeal, the defendants assert error in the admission of (1) certain cellular telephone records in violation of their rights under art. 14 of the Massachusetts Declaration of Rights and the Fourth and Sixth Amendments to the United States Constitution; (2) fingerprint cards attributed to the defendants without proper authentication or reliability; and (3) expert testimony related to the fingerprint analysis.  Corbin independently claims that repeated references to gang affiliation created a substantial likelihood of a miscarriage of justice.  We affirm the convictions and decline to grant relief pursuant to G. L. c. 278, § 33E. Background.  We summarize the evidence as the jury could have found it, reserving additional facts for later discussion.  On July 25, 2011, a couple who lived on the second floor of an apartment building on Hyde Park Avenue, in the Hyde Park section of Boston, awoke to the sound of gunshots at around 11:55 P.M.  They heard between six and eight gunshots that the woman believed came from […]

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Posted by Massachusetts Legal Resources - May 5, 2017 at 5:44 pm

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