Commonwealth v. Leonard (and a companion case) (Lawyers Weekly No. 11-120-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1464 Appeals Court COMMONWEALTH vs. JULIE LEONARD (and a companion case[1]). No. 14-P-1464. Essex. February 11, 2016. – September 9, 2016. Present: Kafker, C.J., Rubin, & Agnes, JJ. Assault and Battery by Means of a Dangerous Weapon. Dangerous Weapon. Reckless Endangerment of a Child. Practice, Criminal, Complaint, Dismissal. Probable Cause. Complaints received and sworn to in the Gloucester Division of the District Court Department on January 14 and 17, 2013. Motions to dismiss were heard by Joseph W. Jennings, III, J. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. Matthew Wright Hemond for the defendants. AGNES, J. This is the Commonwealth’s appeal from the dismissal of one count of assault and battery by means of a dangerous weapon against defendant Julie Leonard, and one count each of child endangerment against defendants Julie Leonard and Mark Leonard.[2] We conclude that the complaints established probable cause for the elements of the crimes charged. Accordingly, we vacate the judgments of dismissal and order that the complaints be reinstated. Background. a. Police report. We recite the facts contained in the police report written by Detective Jeremiah Nicastro of the Gloucester police department in support of his application for the criminal complaints. On the evening of November 30, 2012, a group of youths (ages sixteen and seventeen) were invited to a party at the home of the defendants, Mark and Julie Leonard, the parents of one of the teens. The teens were supplied with alcohol by the twenty-three year old boyfriend of the defendants’ daughter, and were drinking vodka, beer, and tequila when Mark arrived home at 9:30 P.M. Mark joined his daughter and her friends in consuming beer. Julie arrived home around 11:00 P.M. and also joined them, consuming red wine. Mark smoked marijuana with his daughter and her boyfriend, and the drinking continued until around 2:00 A.M. One of the daughter’s friends, Susan,[3] aged sixteen, became “extremely ill and began to throw up” during the early morning hours, and stayed at the defendants’ home overnight. Susan asked Julie, who is a nurse, to take her to the hospital, but Julie explained that “if she [went] to the hospital they [would] give her an IV and put a tube down her throat.” Susan was also concerned that she would get […]
Tusino v. Zoning Board of Appeals of Douglas, et al. (and a companion case) (Lawyers Weekly No. 11-107-16)
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 15-P-1400 Appeals Court 14-P-1193 LOUIS C. TUSINO vs. ZONING BOARD OF APPEALS OF DOUGLAS & another[1] (and a companion case[2]). Nos. 15-P-1400 & 14-P-1193. Worcester. June 3, 2016. – August 25, 2016. Present: Vuono, Wolohojian, & Blake, JJ. Jurisdiction, Zoning. District Court, Jurisdiction, Appellate Division. Zoning, Appeal. Appeals Court, Jurisdiction. Practice, Civil, Zoning appeal, Appellate Division: appeal, Action in nature of mandamus, Moot case. Mandamus. Moot Question. Civil action commenced in the Uxbridge Division of the District Court Department on December 8, 2014. The case was heard by David B. Locke, J., on a motion for summary judgment. Civil action commenced in the Land Court Department on August 21, 2009. The case was heard by Robert B. Foster, J., on a motion for summary judgment. Gerald E. Shugrue for Louis C. Tusino. Henry J. Lane for Joseph Bylinski. Michael J. Kennefick for building commissioner of the town of Douglas, & another. WOLOHOJIAN, J. These two cases arise out of the construction of a house on a nonconforming lot in Douglas. The dispositive issue on appeal is whether we have jurisdiction over a direct appeal from a decision of the Uxbridge District Court in a zoning appeal under G. L. c. 40A, § 17. Concluding that we do not, we dismiss Tusino v. Zoning Board of Appeals of Douglas, 2015-P-1400 (zoning appeal). Because our disposition of this case renders moot Bylinski v. Guaranteed Builders, Inc., 14-P-1193 (mandamus appeal), we dismiss it as well. On July 8, 2008, Tusino obtained a building permit to build a house on a lot he owns in Douglas. Construction began in February, 2009, and Bylinski, who owns the adjacent property, immediately thereafter asked the building commissioner to revoke the permit. The commissioner denied that request, and Bylinski appealed to the zoning board (board). The appeal was constructively allowed, and the building permit was revoked. On appeal, the Superior Court affirmed the revocation of the permit. Tusino did not further appeal, and the Superior Court’s decision became final. Tusino thereafter applied to the board for a variance. This too was denied. He appealed the denial to the Land Court, which entered summary judgment against him. On February 21, 2014, in a memorandum and order issued pursuant to our rule 1:28, we affirmed the […]
Commonwealth v. Balboni (and three companion cases) (Lawyers Weekly No. 11-078-16)
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 14-P-697 Appeals Court 14-P-698 COMMONWEALTH vs. SCOTT BALBONI (and three companion cases[1]). Nos. 14-P-697 & 14-P-698. Middlesex. December 4, 2015. – July 1, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Burning of Property. Destruction of Property. Practice, Criminal, Motion to suppress, Affidavit. Search and Seizure, Probable cause, Affidavit. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Cellular Telephone. Witness, Cross-examination. Indictments found and returned in the Superior Court Department on July 14, 2009. Pretrial motions to suppress evidence were heard by Christine M. Roach, J., and the cases were tried before Elizabeth M. Fahey, J. Mark G. Miliotis for Samuel Doxsey. Patrick J. Noonan for Scott Balboni. Eric A. Haskell, Assistant District Attorney, for the Commonwealth. CYPHER, J. In these appeals from convictions of malicious burning of property, G. L. c. 266, § 5, and malicious destruction of property over $ 250, G. L. c. 266, § 127, the defendants, Samuel Doxsey and Scott Balboni, argue that (1) their motions to suppress documentary evidence obtained from third parties should have been allowed; (2) their motions to strike certain witness testimony were erroneously denied; and (3) the evidence of wilful and malicious burning was insufficient.[2] We affirm. 1. Background. We recite the evidence in the light most favorable to the Commonwealth. Additional details will be set forth in later sections as necessary. On the evening of April 4, 2009, Daniel Feehan threw a party at his apartment; Doxsey’s younger sister was in attendance. At the party, Feehan sexually assaulted Doxsey’s sister. As she attempted to leave the party, Feehan pulled down her shirt, exposing her chest to the other partygoers. After Doxsey’s sister left Feehan’s apartment, she telephoned Doxsey and told him that she had been assaulted at a party. Doxsey was a student at the University of New Hampshire, living at a fraternity house in Durham, New Hampshire. At around 4:00 A.M., after the party, the Lexington fire department responded to an alarm at an apartment complex where they found a pickup truck engulfed in flames.[3] Fire Captain John Wilson observed fire coming from the rear passenger compartment of the vehicle and flames rising from the exterior doors. On the side of the truck, Captain Wilson discerned “pour patterns” — uneven liquid patterns running down the vehicle’s surface — […]
Commonwealth v. Locke (and a companion case) (Lawyers Weekly No. 11-063-16)
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 15-P-552 Appeals Court 15-P-553 COMMONWEALTH vs. ANDREW K. LOCKE (and a companion case[1]). Nos. 15-P-552 & 15-P-553. Worcester. February 4, 2016. – June 7, 2016. Present: Cypher, Wolohojian, & Neyman, JJ. Controlled Substances. Practice, Criminal, Motion to suppress. Search and Seizure, Motor vehicle, Threshold police inquiry. Constitutional Law, Search and seizure, Investigatory stop. Threshold Police Inquiry. Complaints received and sworn to in the Dudley Division of the District Court Department on December 19, 2011. Pretrial motions to suppress evidence were heard by Gerald A. Lemire, J., and motions for reconsideration were considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. Barry A. Bachrach for Andrew K. Locke. Sean J. Gallagher for Tanik S. Kerr. CYPHER, J. Complaints issued in the District Court charging the defendants, Andrew K. Locke and Tanik S. Kerr, with trafficking in fifty pounds or more of marijuana, G. L. c. 94C, § 32E(a), and conspiracy to traffic in marijuana, G. L. c. 94C, § 40.[2] The Commonwealth appeals from the allowance of the defendants’ motions to suppress evidence and from the denials of its motions for reconsideration, arguing that the judge committed legal error when he concluded that “the odor of marijuana does not constitute reasonable suspicion of criminal activity or probable cause to believe that more than one ounce of marijuana” was present in the defendants’ vehicle. We are constrained to affirm the orders of suppression. See Commonwealth v. Cruz, 459 Mass. 459, 472 (2011) (Cruz); Commonwealth v. Overmyer, 469 Mass. 16, 17 (2014) (Overmyer); Commonwealth v. Craan, 469 Mass. 24 (2014) (Craan). We summarize the facts found by the judge after an evidentiary hearing, at which State police Troopers Scott Driscoll and Christopher Coscia both testified, supplemented by uncontested facts in the record. Craan, supra at 26. On December 17, 2011, Trooper Driscoll saw a white minivan make an erratic lane change on Route 84 in Sturbridge, nearly causing a collision. Trooper Driscoll continued to watch the minivan and clocked it in excess of the posted speed limits as it approached the tollbooths on Route […]
Commonwealth v. Mattier (and five companion cases) (Lawyers Weekly No. 10-065-16)
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 SJC-11924 SJC-11960 COMMONWEALTH vs. BRANDEN E. MATTIER (and five companion cases[1]). Suffolk. January 7, 2016. – May 13, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Larceny. False Impersonation & Identity Fraud. Fraud. Conspiracy. Attempt. Search and Seizure, Arrest. Evidence, Identity, Fraud, Conspiracy. Jury and Jurors. Practice, Criminal, Motion to suppress, Jury and jurors, Argument by prosecutor. Indictments found and returned in the Superior Court Department on August 29, 2013. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J., and the cases were tried before Jeffrey A. Locke, J. The Supreme Judicial Court granted applications for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for Branden E. Mattier. William S. Smith for Domunique D. Grice. Randall E. Ravitz, Assistant Attorney General (Gina M. Masotta, Assistant Attorney General, with him) for the Commonwealth. HINES, J. The defendants, Branden E. Mattier and his half-brother Domunique D. Grice, were convicted by a jury on indictments charging one count each of conspiracy to commit larceny, G. L. c. 274, § 7, and attempted larceny, G. L. c. 274, § 6. Mattier also was convicted on an indictment charging one count of identity fraud, G. L. c. 266, § 37E. The charges stemmed from an attempt by the defendants to defraud The One Fund Boston (One Fund) of approximately $ 2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon.[2] The judge imposed on each defendant a State prison sentence of from three years to three years and one day on the conspiracy count and three years’ probation on the attempted larceny count, to run from and after the committed sentence. Mattier was sentenced to an additional concurrent probationary term for his conviction of identity fraud. The defendants appealed, and we granted their applications for direct appellate review.[3] Although the appeals were not formally consolidated, we have treated them as such, given the substantial congruence of the issues raised by the defendants.[4] Mattier contends that his conviction of identity fraud fails as a matter of law because the charged conduct is insufficient to meet the elements of the statute. Both defendants claim that the judge erred in (1) denying the motion to suppress evidence obtained […]
Commonwealth v. Oliveira (and a companion case) (Lawyers Weekly No. 10-042-16)
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 SJC-11972 SJC-11973 COMMONWEALTH vs. JEMAUL R. OLIVEIRA (and a companion case[1]). Bristol. January 8, 2016. – March 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Inventory, Impoundment of vehicle. Complaints received and sworn to in the New Bedford Division of the District Court Department on March 19, 2013. Pretrial motions to suppress evidence were heard by Kathryn E. Hand, J. An application for leave to prosecute an interlocutory appeal was allowed by Duffly, 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 on its own initiative transferred the case from the Appeals Court. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for Jemaul R. Oliveira. Christopher DeMayo for Mitchell T. Violet. GANTS, C.J. The interlocutory appeal in these companion cases requires us to examine whether it was reasonable for the police to impound a vehicle lawfully parked in a department store lot and conduct an inventory search of the vehicle after the authorized driver of the vehicle was arrested for shoplifting. We conclude that where the driver had offered the police an alternative to impoundment that was lawful and practical under the circumstances, it was unreasonable and thus unconstitutional to impound the vehicle and conduct an inventory search. We therefore affirm the motion judge’s allowance of the defendants’ motions to suppress the fruits of the inventory search. Background. The defendants, Mitchell T. Violet and Jemaul R. Oliveira, were charged with shoplifting by concealing merchandise, in violation of G. L. c. 266, § 30A, and unlawfully carrying a firearm, in violation of G. L. c. 269, § 10 (a).[2] Both moved to suppress the firearm located during the inventory search of the vehicle that they used to travel to the department store. We summarize the facts found by the motion judge following the evidentiary hearing, supplemented where necessary with undisputed testimony that was implicitly credited by the judge. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015), citing Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). At about 4:30 P.M. on March 18, 2013, Dartmouth police Officers Robert St. Denis and […]
Commonwealth v. Dragotta (and one companion case) (Lawyers Weekly No. 11-021-16)
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 14-P-1796 Appeals Court COMMONWEALTH vs. HEATHER DRAGOTTA (and one companion case[1]). No. 14-P-1796. Essex. January 12, 2016. – February 25, 2016. Present: Kafker, C.J., Cohen, & Blake, JJ. Assault and Battery. Wanton or Reckless Conduct. Parent and Child, Duty to prevent harm. Child Abuse. Practice, Criminal, Hearsay, Witness. Evidence, Expert opinion, Hearsay. Witness, Expert. Indictments found and returned in the Superior Court Department on October 1, 2010. The cases were heard by Richard E. Welch, III, J. Jacob B. Stone for Steven Amos. Patrick Levin, Committee for Public Counsel Services, for Heather Dragotta. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. After a joint jury-waived trial in the Superior Court, defendant Heather Dragotta was convicted of wantonly or recklessly permitting another to commit an assault and battery upon her infant daughter causing bodily injury (head injury), and defendant Steven Amos was convicted on three indictments charging assault and battery upon the same child causing bodily injury (two rib fractures, head injury, and arm fracture).[2] On appeal, Dragotta and Amos both claim that the evidence was insufficient to sustain their convictions, and Amos adds that the expert testimony exceeded the permitted scope of such evidence. Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, the judge was warranted in finding the following. E.g., Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The victim was born on April 27, 2010, without any complications. Dragotta is the victim’s mother. Amos was Dragotta’s boyfriend but not the father of the child. On the evening of June 3, 2010, Dragotta and Amos brought the five and one-half week old infant to the Lawrence General Hospital emergency room because she was not using her right arm and cried when it was touched. The X-rays taken at the hospital showed that not only was the victim’s right arm fractured, but that her left arm was bowing. The fracture of the right arm was a displaced transverse fracture, meaning that the fracture went entirely across the bone and the two ends were slightly offset. These findings prompted the hospital to file a report of abuse with the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A (51A report). The victim was transferred to Boston Children’s Hospital, and Dr. […]
Adoption of Douglas (and five companion cases) (Lawyers Weekly No. 10-022-16)
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 SJC-11918 ADOPTION OF DOUGLAS (and five companion cases[1]). February 17, 2016. Adoption, Standing, Visitation rights, Care and protection. Parent and Child, Adoption, Care and protection of minor. Minor, Visitation rights, Care and protection. Practice, Civil, Care and protection proceeding, Assistance of counsel. Supreme Judicial Court, Superintendence of inferior courts. These cases are appeals of consolidated care and protection petitions concerning six children — Douglas, Tom, Brian, Mark, Cole, and Frank. The appeals are brought by the biological mother of the six children; by the biological father of the two oldest children (father I) — Douglas and Tom; and by four of the children — Douglas, Tom, Brian, and Mark. They appeal from the provisions of decrees of the Juvenile Court denying parental visitation after termination of the parental rights of the mother, father I, and the biological father of the four younger children (father II) — Brian, Mark, Cole, and Frank.[2] The Appeals Court, in a memorandum and order pursuant to its rule 1:28, dismissed the appeals of the mother and father I. It concluded that neither had standing to challenge the orders concerning visitation because their parental rights had been terminated after the consolidated hearings, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, were concluded, and they had not appealed from the entry of the termination decrees. See Adoption of Douglas, 87 Mass. App. Ct. 1118 (2015). With respect to the appeal of the four children, the Appeals Court affirmed the decrees of the Juvenile Court. Id. We granted further appellate review, and affirm the Juvenile Court judge’s decrees. Background. The Department of Children and Families (department) filed a care and protection petition on behalf of Douglas, Tom, Brian, and Mark, alleging neglect due to substance use and domestic abuse of all four children. The department subsequently filed a care and protection petition on behalf of Cole and Frank, and the two petitions were consolidated. On March 3, 2010, the mother, father I, and father II each stipulated to his or her current unfitness and that their respective children were in need of care and protection.[3] On June 3 or 4, 2013, each of the parents submitted a written stipulation acknowledging his or her current unfitness, agreeing to the issuance of a decree terminating his or her respective parental […]
Commonwealth v. Mitchell (and two companion cases) (Lawyers Weekly No. 11-010-16)
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 12-P-719 Appeals Court COMMONWEALTH vs. MARKEESE MITCHELL (and two companion cases[1]). No. 12-P-719. Suffolk. September 10, 2015. – January 28, 2016. Present: Green, Rubin, & Hanlon, JJ. Homicide. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Sentence, Severance, Confrontation of witnesses, Argument by prosecutor, Instructions to jury. Evidence, Voluntariness of statement, Statement of codefendant, Verbal completeness, Relevancy and materiality, Knife, Bias. Constitutional Law, Admissions and confessions, Voluntariness of statement, Sentence, Confrontation of witnesses. Indictments found and returned in the Superior Court Department on April 18, 2008. Pretrial motions to suppress evidence and to sever were heard by Charles J. Hely, J.; the cases were tried before Judith Fabricant, J., and a motion for a postconviction evidentiary hearing, filed on December 3, 2012, was heard by her. Richard L. Goldman for Terrance Pabon. Richard B. Klibaner for Pedro Ortiz. Jeanne M. Kempthorne for Markeese Mitchell. Amanda Teo, Assistant District Attorney (Mark A. Hallal, Assistant District Attorney, with her) for the Commonwealth. HANLON, J. After a jury trial, the defendants, Markeese Mitchell, Terrance Pabon, and Pedro Ortiz were convicted of murder in the second degree in connection with the stabbing death of Terrance Jacobs. Paul Goode also was indicted, tried with the defendants, and convicted of murder in the second degree. Goode’s direct appeal originally was consolidated with the others; however, by motion and pursuant to an order of this court, Goode’s appeal was severed. Goode’s statement to the police was admitted at trial and is the predicate for one of thedefendants’ common claims of error, under Bruton v. United States, 391 U.S. 123, 135-137 (1968). Pabon and Mitchell claim error in the denial of their respective motions to suppress their statements to the police. They also contend that, because they were between the ages of fourteen and seventeen when the crime occurred, they ought to have been afforded individualized sentencing, in light of Miller v. Alabama, 132 S. Ct. 2455 (2012), and Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013). In addition, some or all of the defendants claim error in the admission of Pabon’s statement to the police; certain evidentiary rulings at trial; certain remarks made by the prosecutor in closing argument; the denial of their request for a jury instruction on withdrawal from […]
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 […]