Posts tagged "companion"

Butler v. Turco, et al. (and a companion case) (Lawyers Weekly No. 11-036-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReportersjc.state.ma.us   17-P-814                                        Appeals Court 17-P-968   BRIAN BUTLER  vs.  THOMAS A. TURCO & others[1] (and a companion case[2]).     Nos. 17-P-814 & 17-P-968.   Worcester.     Suffolk.     February 5, 2018. – March 30, 2018.   Present:  Meade, Sullivan, & Wendlandt, JJ.     Imprisonment, Grievances.  Commissioner of Correction.  Constitutional Law, Imprisonment, Ex post facto law, Double jeopardy, Cruel and unusual punishment.  Due Process of Law, Prison regulation.  Practice, Civil, Dismissal.       Civil action commenced in the Superior Court Department on January 5, 2016.   A motion to dismiss was heard by David Ricciardone, J.   Civil action commenced in the Superior Court Department on November 13, 2015.   A motion to dismiss was heard by Paul D. Wilson, J.     Brian Butler, pro se. Owen McCants, pro se. Sheryl F. Grant for the defendants.     MEADE, J.  The plaintiffs, Brian Butler and Owen McCants, inmates supervised by the Massachusetts Department of Correction (department) and housed at MCI-Norfolk, each brought actions pro se challenging the consequences imposed on them pursuant to the department’s “Program Engagement Strategy” (PES).  The defendants filed motions to dismiss both complaints, which were allowed by two different judges.  The plaintiffs appeal, alleging what we construe to be[3] various constitutional infirmities in the PES program.  We consolidated the cases for hearing in this court, and now affirm. Background.  PES program.  In accordance with its mission to “promote public safety by managing offenders,” the department established “appropriate programming in preparation for [inmates’] successful reentry into the community,” such as the Sex Offender Treatment Program (SOTP).  However, the department is unable to mandate participation in such programs.  As a result, by 2012, a high percentage of offenders declined to attend recommended programs, spending their time in ways that did not address “the very issues that [would] decrease the likelihood that they recidivate.”[4]  Nevertheless, these inmates enjoyed the same privileges as “program compliant” offenders, such as single rooms, housing seniority, and institutional jobs.  In response, in December of 2013, the department announced it would implement PES, an incentivization structure for program participation.[5]  Under PES, privileges are awarded as incentives for inmates who voluntarily participate in programs and are withdrawn from inmates who refuse.  The department notified inmates about PES by amending its institutional procedures, hosting informational sessions for inmates, and creating informational flyers.  PES went into effect on January […]

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Posted by Massachusetts Legal Resources - March 30, 2018 at 2:18 pm

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King v. Shank, et al (and a companion case) (Lawyers Weekly No. 11-026-18)

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-809                                        Appeals Court 17-P-1096   CINDY KING  vs.  JOSEPH Z. SHANK & others[1] (and a companion case[2]).     Nos. 17-P-809 & 17-P-1096.   Suffolk.     November 1, 2017. – March 2, 2018.   Present:  Milkey, Blake, & Singh, JJ.     Municipal Corporations, Removal of public officer, Selectmen.  Elections, Recall.  Practice, Civil, Preliminary injunction.  Appeals Court, Appeal from order of single justice.  Injunction.       Civil action commenced in the Superior Court Department on March 24, 2017.   A motion for a preliminary injunction was heard by John T. Lu, J.   A proceeding for interlocutory review was heard in the Appeals Court by Green, J.   Civil action commenced in the Superior Court Department on June 9, 2017.   A motion for a preliminary injunction was heard by Gary V. Inge, J.     Ira H. Zaleznik (Benjamin W. O’Grady also present) for the defendants. John M. Dombrowski for Cindy King.     SINGH, J.  In February, 2017, the defendants, ten residents of the town of Townsend (town), petitioned to remove Cindy King and Gordon Clark from their positions as members of the town board of selectmen (board) by way of recall petitions.  The town board of registrars found the petitions to be in order, and the board scheduled a recall election for June, 2017.  King filed a complaint in Superior Court seeking a declaratory judgment that the recall petition was invalid and a preliminary injunction enjoining the recall election.  After a judge of the Superior Court denied the motion for a preliminary injunction, King filed a petition for interlocutory relief pursuant to G. L. c. 231, § 118, first par.  A single justice of this court issued the preliminary injunction enjoining the recall election as to King.  Clark then filed a parallel action in the Superior Court, citing the single justice’s order in the King litigation.  A different Superior Court judge allowed Clark’s motion and issued a preliminary injunction enjoining the recall election as to Clark. The defendants appeal the preliminary injunctions issued by the single justice in King’s case and the Superior Court judge in Clark’s case.  Both appeals are brought pursuant to G. L. c. 231, § 118, second par.  The town’s recall election remains stayed pending this appeal.  We reverse. Standard of review.  “We review the grant or denial of a preliminary injunction for abuse of discretion.”  Eaton v. Federal […]

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Posted by Massachusetts Legal Resources - March 2, 2018 at 5:16 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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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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Berger, et al. v. 2 Wyndcliff, LLC, et al. (and a companion case) (Lawyers Weekly No. 11-150-17)

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-336                                        Appeals Court   RALF BERGER & others[1]  vs.  2 WYNDCLIFF, LLC, & others[2] (and a companion case[3]).     No. 16-P-336.   Suffolk.     January 4, 2017. – December 5, 2017.   Present:  Maldonado, Sacks, & Shin, JJ.     Real Property, Restrictions, Covenant running with the land.       Civil actions commenced in the Land Court Department on November 1, 2013.   The cases were heard by Robert B. Foster, J., on motions for summary judgment.     Ellen Rappaport Tanowitz for Ralf Berger & others. Mark Bobrowski for 2 Wyndcliff, LLC, & others.     MALDONADO, J.  In this case, we consider whether certain restrictions on land were legally and effectively amended to extend the time period of their enforcement or whether they had expired.  The judge concluded the restrictions had expired.  For reasons different from those relied on by the judge, we affirm the judgment. Background.  On March 26, 1980, in the course of developing land she owned in Acton, Mabel Jenks McNiff executed an agreement of “protective covenants and easements” for the benefit of “future mortgagees, buyers, and owners of the land.”  The agreement was recorded, apparently on the same date.  McNiff thereafter sold off lots with the benefits and burdens of the agreement.  The parties are all owners of lots subject to the agreement. The agreement expressly provided that the covenants are to “run with the land” and bind the parties claiming under them “for a period of thirty (30) years from the date these covenants are recorded.”  The covenants limited construction on each lot to one single-family dwelling, with a two- or three-car garage, and “such other accessory structures as are commonly used as appurtenant to a single family dwelling.”  The agreement provided that the covenants “may be amended or revoked, in whole or in part, by an instrument signed by two thirds or more of the then owners of the lots covered hereby, said amendment or revocation to be effective upon recording thereof at the . . . Registry of Deeds.” More than two-thirds of the owners of the lots affected by the agreement amended the agreement in minor ways over the years, largely to alter the percentage of costs owners were required to contribute to maintain the roads.  On December 7, 2001, more than two thirds of the owners of the affected lots amended […]

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Posted by Massachusetts Legal Resources - December 5, 2017 at 7:25 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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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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International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci, et al. (and eight companion cases) (Lawyers Weekly No. 10-038-17)

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-12137   International Brotherhood of Electrical Workers LOCAL NO. 129 BENEFIT FUND[1]  vs.  JOSEPH M. TUCCI & others[2] (and eight consolidated cases[3]).       Suffolk.     November 7, 2016. – March 6, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Corporation, Stockholder’s derivative suit, Merger, Sale of assets, Valuation of stock, Board of directors.  Practice, Civil, Class action, Dismissal.       Civil actions commenced in the Superior Court Department on October 15, October 16, October 19, October 20, October 23, October 28, and October 29, 2015.   After consolidation, a motion to dismiss was heard by Edward P. Leibensperger, J.   The Supreme Judicial Court granted an application for direct appellate review.     Jason M. Leviton (Michael G. Capeci, of New York, & Joel A. Fleming also present) for International Brotherhood of Electrical Workers Local No. 129 Benefit Fund & others. Thomas J. Dougherty (Kurt Wm. Hemr also present) for Joseph M. Tucci & others. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Ian D. Roffman & Matthew J. Connolly, for Associated Industries of Massachusetts, amicus curiae, submitted a brief.     BOTSFORD, J.  In these consolidated cases, shareholders of a publicly traded corporation claim that a merger transaction proposed by the board of directors will result in the effective sale of the corporation for an inadequate price.  The question we consider is whether they may bring that claim directly against the board members, or must bring it as a derivative claim on behalf of the corporation.  We answer that the claim must be brought derivatively.[4] Background.  The plaintiffs appeal from the dismissal of their first amended class action complaint (complaint)[5] alleging breaches of fiduciary duty by the board of directors of EMC Corporation (EMC) arising from a merger between EMC and Denali Holding Inc. and Dell Inc. (collectively, Dell).  At the time that they commenced these actions, the plaintiffs were shareholders of EMC; the proposed merger would result in the shareholders receiving a cash payment in exchange for their EMC stock.  The plaintiffs’ complaint alleges that they bring the actions on behalf of a class consisting of “all other shareholders of EMC . . . who are or will be deprived of the opportunity to maximize the value of their shares of EMC […]

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Posted by Massachusetts Legal Resources - March 6, 2017 at 3:54 pm

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