Ceruolo v. Garcia, et al. (Lawyers Weekly No. 11-115-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1443 Appeals Court DAVID CERUOLO vs. MARTHA GARCIA & another.[1] No. 16-P-1443. Essex. June 5, 2017. – September 7, 2017. Present: Sullivan, Henry, & Shin, JJ. Practice, Civil, Default, Motion to dismiss. “Anti-SLAPP” Statute. Civil action commenced in the Superior Court Department on September 16, 2014. A special motion to dismiss was heard by Robert A. Cornetta, J., sitting by designation, and a motion to vacate default was considered by him. Kevin C. Cain for the defendants. Donald J. Hubbard for the plaintiff. SULLIVAN, J. The plaintiff, David Ceruolo (David) sued his ex-wife Lyllian Ceruolo (Lyllian),[2] and her mother, Martha Garcia (Garcia) for defamation and negligent and intentional infliction of emotional distress following the conclusion of a contentious divorce. The defendants were defaulted in the civil action, and moved unsuccessfully to remove the default. Lyllian and Garcia appeal from the entry of a final judgment after a hearing on assessment of damages, contending that the default should have been vacated. David cross-appealed regarding damages. We reverse the judgment and remand the case for further proceedings. Background. During a contentious divorce action, Lyllian and her mother made serious allegations regarding David’s conduct. A Probate and Family Court judge found the allegations unproven and untrue. Following the entry of final judgment in the divorce case, David filed this suit against Lyllian and Garcia. The defendants, represented by counsel, filed a notice of appearance and a notice of intent to file a special motion to dismiss pursuant to G. L. c. 231, § 59H, the “anti-SLAPP” statute. Thereafter, various procedural anomalies occurred. Because the timing of subsequent events is of importance here, we set out the timeline in some detail. On November 25, 2014,[3] Lyllian and Garcia timely filed the special motion to dismiss. The judge considered both the pleadings and the affidavit on file, as required by the statute. See G. L. c. 231, § 59H (“the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based”). The pleadings focused on conduct leading up to and during the divorce. The affidavit of damages filed by David made additional allegations not found in the complaint, including a general statement that there was an ongoing course of defamatory conduct after the entry of the decree. On […]
Commonwealth v. Garcia (Lawyers Weekly No. 10-062-17)
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-12125 COMMONWEALTH vs. DOUGLAS GARCIA. Essex. December 6, 2016. – April 21, 2017. Present (Sitting at Lawrence): Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Rape. Evidence, Conversation between husband and wife, Impeachment of credibility. Witness, Impeachment. Indictment found and returned in the Superior Court Department on August 4, 2010. The case was tried before Richard E. Welch, III, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. Michelle Menken for the defendant. LOWY, J. A Superior Court jury convicted the defendant of raping his nineteen year old stepdaughter, Sally.[1] The defendant was married to Sally’s mother. At trial, in response to a question that should not have been asked, the mother denied that she told Sally that the defendant had confessed to the crime in a private conversation between the spouses. Then, to impeach the mother, Sally was improperly permitted to testify to the contrary. We reverse because the trial judge’s admission of such highly prejudicial evidence regarding the defendant’s purported confession created a substantial risk of a miscarriage of justice. Background. The Commonwealth introduced the following evidence at trial. We reserve the circumstances of the erroneously admitted testimony for our analysis of the issue. After an argument with her boy friend, Sally spoke with her mother on the telephone and asked to stay at her apartment, where the defendant also lived. Although out of town, her mother told Sally that she could. Sally arrived at the apartment, greeted the defendant briefly, and went to bed in the spare bedroom. Several hours later, Sally was awakened by the feeling of someone’s hand in her vagina. She turned over to see the defendant, naked, lying next to her. Sally realized her pants and underwear were pulled down around her ankles. The defendant stood up, wrapped a towel around himself, and said, “I’m so sorry, . . . it’s all my fault.” He then left the room. Sally dressed, gathered her belongings, and left. At trial, in response to a question by the Commonwealth, the mother denied that she had told Sally that the defendant had confessed to her. Then, to impeach the mother, the Commonwealth […]
Commonwealth v. Garcia (Lawyers Weekly No. 11-016-16)
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-1238 Appeals Court COMMONWEALTH vs. DOUGLAS GARCIA. No. 14-P-1238. Essex. September 11, 2015. – February 16, 2016. Present: Vuono, Agnes, & Maldonado, JJ. Rape. Evidence, Conversation between husband and wife, First complaint. Indictment found and returned in the Superior Court Department on August 4, 2010. The case was tried before Richard E. Welch, III, J. Michelle Menken for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. VUONO, J. This appeal raises the issue whether the spousal disqualification set forth in G. L. c. 233, § 20, First, which bars a spouse from testifying “as to private conversations with the other,” applies when one spouse has disclosed the substance of a private conversation to a third party. The defendant was convicted by a jury of rape, G. L. c. 265, § 22 (b). The victim, whom we shall call Sally,[1] is the defendant’s stepdaughter. Sally was nineteen years old at the time of the offense, which occurred at the defendant’s home, where Sally was spending the night. Among several challenges to his conviction, the defendant claims that the judge erred by permitting the Commonwealth to introduce testimony about a conversation between himself and his wife, who also is Sally’s mother, in which he allegedly apologized to the mother and explained that he had been tired and, as a result, had confused Sally for the mother on the night of the incident. For the reasons that follow, we conclude that, even though the evidence of the conversation was admitted for the limited purpose of impeaching the mother’s credibility, the defendant is entitled to a new trial. Background. a. The Commonwealth’s case-in-chief. The jury could have found the following facts. On April 18, 2010, Sally was living with her boy friend in North Andover. The couple were arguing. Upon the advice of her mother, who was on vacation in Florida, Sally drove to her mother’s home in Lynn.[2] The house is a duplex; Sally’s family lived on the top floor and Sally’s aunt lived on the first floor. Sally arrived at about 11:00 P.M. and let herself into the house. She had a brief conversation with the defendant, who was in bed in his bedroom watching television. Sally was wearing a shirt and capri-style pants. She did not change before getting into bed in the spare room as […]
Commonwealth v. Garcia (Lawyers Weekly No. 11-140-15)
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 14-P-21 Appeals Court COMMONWEALTH vs. HECTOR GARCIA. No. 14-P-21. Bristol. December 1, 2014. – September 11, 2015. Present: Rubin, Milkey, & Carhart, JJ. Practice, Criminal, Waiver of appellate rights. Constitutional Law, Waiver of constitutional rights, Trial by jury. Search and Seizure, Reasonable suspicion. Complaint received and sworn to in the New Bedford Division of the District Court Department on April 13, 2012. A pretrial motion to suppress evidence was heard by Christopher D. Welch, J., and the case was heard by him. Matthew Malm for the defendant. Owen J. Murphy, Assistant District Attorney, for the Commonwealth. RUBIN, J. After a bench trial, the defendant was convicted of carrying an unlicensed firearm and of carrying a loaded firearm in violation of G. L. c. 269, § 10(a) and (n).[1] In this appeal, the defendant asserts that he is entitled to a new trial because his colloquy with the judge was inadequate to provide the judge with a basis for concluding that the defendant voluntarily and intelligently waived his right to a jury trial. He also argues that the judge improperly denied a motion to suppress. We address each of these in turn. 1. The colloquy. To be effective, a defendant and judge’s colloquy concerning the defendant’s waiver of the constitutional right to a jury trial must be sufficient to satisfy the judge that the waiver is “voluntary and intelligent.” Commonwealth v. Pavao, 423 Mass. 798, 802 (1996) (Pavao). There is also a statutory requirement of a signed written waiver. See G. L. c. 263, § 6. Here, the statute’s requirement was satisfied, as the defendant signed a waiver form. In addition, the defendant’s trial counsel signed a certificate, pursuant to G. L. c. 218, § 26A, affirming that he had explained the relevant protections afforded by a jury trial to the defendant. It is well settled that while statutorily required, such forms are inadequate by themselves to allow a judge to determine that a waiver of the right to a jury trial is voluntary and intelligent; although not constitutionally required, the Supreme Judicial Court requires a colloquy as a matter of sound judicial administration because “[s]o long as a colloquy occurs, the sole focus of [appellate] review is whether the colloquy has provided an evidentiary record upon which the trial judge could find the waiver of a […]
Commonwealth v. Garcia (Lawyers Weekly No. 10-179-14)
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-11127 COMMONWEALTH vs. JOONEL GARCIA. Essex. December 6, 2013. – October 29, 2014. Present: Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Home Invasion. Burglary. Armed Assault with Intent to Rob. Felony-Murder Rule. Joint Enterprise. Evidence, Joint venturer, Impeachment of credibility, Cross-examination, Redirect examination, Accident. Constitutional Law, Assistance of counsel. Practice, Criminal, Required finding, Instructions to jury, Assistance of counsel, Capital case. Witness, Impeachment, Cross-examination, Redirect examination. Indictments found and returned in the Superior Court Department on March 1, 2006. The cases were tried before David A. Lowy, J. Jeffrey L. Baler for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant was indicted on charges of murder in the first degree and five related offenses in connection with the death of Rafael Castro on August 26, 2004.1 A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, based on the underlying felonies of both home invasion and armed or assaultive burglary. The jury also found the defendant guilty of the other charges. The jury did not specify whether they found the defendant guilty of any of the offenses as a principal or as a joint venturer. On appeal, the defendant maintains that the evidence was insufficient to show that he shared the requisite intent to commit the crimes charged. The defendant contends also that his right to a fair trial was denied when he was not permitted to impeach a Commonwealth witness by confronting her with a child she observed outside the court room, whom she testified she believed to be her deceased child, although the witness was permitted on redirect examination to testify to the reasons she had formed that belief. In addition, the defendant asserts that a new trial is required because the judge erroneously declined to give two requested jury instructions, and because his counsel was ineffective for failing to object when the judge instructed that accident was not a defense to the killing. The defendant also requests that we exercise our authority to provide relief pursuant to G. L. c. 278, § 33E. We affirm the convictions, and discern no reason to grant a new trial or to reduce the verdict of murder in the first degree to a lesser degree of […]
Commonwealth v. Garcia (Lawyers Weekly No. 11-008-14)
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‑831 Appeals Court COMMONWEALTH vs. PEDRO GARCIA, JR. No. 11‑P‑831. Hampden. September 10, 2013. ‑ February 4, 2014. Present: Cohen, Katzmann, & Agnes, JJ. Jury and Jurors. Practice, Criminal, Jury and jurors, Deliberation of jury, Substitution of alternate juror. Indictment found and returned in the Superior Court Department on February 25, 2009. The case was tried before Peter A. Velis, J., and a motion for a new trial, filed on August 30, 2011, was considered by him. Ellen A. Jawitz for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth. COHEN, J. After a Superior Court jury trial, the defendant and a codefendant were found guilty of armed robbery, in violation of G. L. c. 265, § 17.[1] The charges arose from the theft at knifepoint of four dollars and two packages of cigarettes from a resident of a homeless shelter. In this appeal from his conviction, the defendant’s sole contention is that the judge’s discharge of a deliberating juror was procedurally defective.[2] We agree that the applicable protocols were not followed, and conclude that reversal is required. Background. On December 17, 2009, at 12:31 P.M., the jury were sent out to begin their deliberations. After the jurors left the courtroom, the judge was informed that a court officer had observed a juror taking notes during the charge. The juror in question, no. 31 (Juror 31), was brought into the courtroom. In response to questioning by the judge, Juror 31 acknowledged that he had taken notes during the judge’s instructions, explaining that he “didn’t think [he] would actually have the chance to remember much of it, and [he] was trying real hard to stay awake.” He also stated that, although he had not taken notes while witnesses were actually testifying, he had “jot[ted] down a few things” during breaks. He told the judge that he had not shared his notes with the other jurors and that he had never fallen asleep during the trial. He also said that on the first day of trial, the jury had asked one of the court officers whether they could take notes, but that no one had gotten back to them. He stated that they had discussed how they were “going to remember all these things and the jargon and all […]