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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Commonwealth v. Johnson (Lawyers Weekly No. 11-040-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-987 Appeals Court COMMONWEALTH vs. JAMIE B. JOHNSON. No. 15-P-987. Suffolk. May 3, 2016. – April 7, 2017. Present: Grainger, Meade, & Wolohojian, JJ. Global Positioning System Device. Bail. Due Process of Law, Pretrial detainees. Practice, Criminal, Motion to suppress, Required finding. Abuse Prevention. Protective Order. Constitutional Law, Search and seizure. Search and Seizure, Expectation of privacy, Consent. Consent. Complaint received and sworn to in the West Roxbury Division of the Boston Municipal Court Department on November 13, 2013. A pretrial motion to suppress evidence was heard by Mary Ann Driscoll, J, and the case was heard by her. Travis J. Jacobs for the defendant. Matthew Sears, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury-waived trial, the defendant was convicted of breaking and entering a building during the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 18, and larceny in an amount more than $ 250, in violation of G. L. c. 266, § 30. On appeal, the defendant claims error in the admission of data generated from a global positioning system (GPS) tracking device he agreed to wear as a condition of his release after being charged with violating an abuse prevention order, see G. L. c. 209A, § 7, and that the evidence was insufficient to support his convictions of breaking and entering a building during the daytime with the intent to commit a felony, and of larceny. We affirm. Background. a. Agreed-to GPS monitoring. On July 8, 2013, the defendant was charged with having committed various crimes stemming from an incident of domestic violence on Nancy Jones[1] that took place two days earlier in the Dorchester section of Boston (Dorchester case).[2] At the defendant’s arraignment, a judge of the Dorchester Division of the Boston Municipal Court Department (Dorchester judge) determined that, for various reasons,[3] the defendant should not be released on personal recognizance without surety, and instead required that he post bail in the amount of $ 2,500. The Dorchester judge imposed several conditions of pretrial release, which were reflected on a printed form provided to, and signed by, the defendant. The conditions included GPS monitoring, staying away from Jones’s home address in Dorchester, and staying away from Jones herself. The defendant signed this form on July 8, 2013, and, by […]
Commonwealth v. Johnson (Lawyers Weekly No. 10-018-16)
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-11876 COMMONWEALTH vs. KYLE L. JOHNSON. Plymouth. October 6, 2015. – February 12, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Identification of defendant in courtroom. Indictments found and returned in the Superior Court Department on March 11, 2013. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J. An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant. Karen A. Newirth, James L. Brochin, & Jennifer H. Wu, of New York, & R.J. Cinquegrana, for The Innocence Project & another, amici curiae, submitted a brief. Lisa Kavanaugh, Benjamin H. Keehn, Patrick Levin, Radha Natarajan, & Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. GANTS, C.J. The issue presented in this case is whether the motion judge, applying the common-law principles of fairness in Commonwealth v. Jones, 423 Mass. 99, 109 (1996), committed an abuse of discretion in allowing the defendant’s motion to suppress the victim’s identifications of the defendant as the intruder he had struggled with in his home. The judge found that, through no fault of the police, the identifications were “impermissibly tainted by the suggestive circumstances.” We provide guidance regarding the application of the Jones standard and conclude that the judge did not abuse his discretion in allowing the motion to suppress.[1] Background. We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge. See 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). On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with […]
Commonwealth v. Johnson (Lawyers Weekly No. 11-185-15)
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-1400 Appeals Court COMMONWEALTH vs. CAJOU JOHNSON. No. 14-P-1400. Essex. September 14, 2015. – December 9, 2015. Present: Green, Wolohojian, & Hanlon, JJ. Firearms. Practice, Criminal, Motion to suppress, Findings by judge. Constitutional Law, Search and seizure, Investigatory stop, Reasonable suspicion. Search and Seizure, Reasonable suspicion, Clothing. Indictments found and returned in the Superior Court Department on November 8, 2012. A pretrial motion to suppress evidence was heard by Timothy Q. Feeley, J, and the cases were heard by Howard J. Whitehead, J. Patrick Levin for the defendant. Philip Anthony Mallard, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. At issue is whether there was reasonable suspicion to stop and frisk the defendant, who did not match the particularized aspects of the descriptions provided by eyewitnesses who called 911 to report that there had been a shoot-out on a residential street. The defendant was, however, among the trees in a closed public park well after dark, close to the scene of the crime within minutes of its occurrence, wearing a “hoodie” pulled tightly around his face. In the circumstances presented, as described more fully below, we conclude that the seizure was reasonable and therefore there was no error in the denial of the defendant’s motion to suppress.[1] Background. We recite the facts as found by the motion judge. “On October 19, 2012, the [Lynn police department (LPD)] received eight 911 calls within a four minute span of time, starting at 10:09 pm. Each of the calls related to a ‘shots fired’ incident on Harwood Street. Several reported hearing the shots fired, but reported no observations of the actual shooting. Those calls could not pinpoint the exact location of the shooting. As many as twelve discharges were reported, involving at least two different weapons. A caller from Harwood Street reported seeing people shooting on that street. He reported the people to include black and/or Spanish, with a shooter observed to run toward Common Street. A caller from 82 Harwood Street reported guys in her backyard shooting guns, but it appeared that her neighbor had actually made the observations. Another caller reported observing shots fired at 66 Harwood Street. He observed the shooter as being a black male, wearing a black jacket and red bandana, shooting at another black male, and then […]
Reckis, et al. v. Johnson & Johnson, et al. (Lawyers Weekly No. 10-065-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11677 LISA RECKIS & another[1] vs. JOHNSON & JOHNSON & another.[2] Plymouth. December 1, 2014. – April 17, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Negligence, Pharmaceutical manufacturer, Defective product, Adequacy of warning, Causation, Causing loss of consortium. Consortium. Parent and Child, Consortium. Federal Preemption. Witness, Expert. Evidence, Expert opinion, Qualification of expert witness. Damages, Tort, Future damages, Future earning capacity, Conscious pain and suffering, Loss of consortium. Civil action commenced in the Superior Court Department on January 12, 2007. The case was tried before Christopher J. Muse, J., a motion for remittitur was heard by him, and motions for a new trial and for judgment notwithstanding the verdict were considered by him. The Supreme Judicial Court granted applications for direct appellate review. Joan A. Lukey (Charles C. Lifland, of California, & Justin J. Wolosz with her) for the defendants. Michael B. Bogdanow (Bradley M. Henry, Leo V. Boyle, & Victoria Santoro with him) for the plaintiffs. The following submitted briefs for amici curiae: David C. Spangler, Richard F. Kingham, & Robert A. Long, Jr., of the District of Columbia, & Paul W. Schmidt & Colleen Kelly for Consumer Healthcare Products Association. Lisa Blue Baron, Andre M. Mura, & Jeffrey R. White, of the District of Columbia, & Anthony Tarricone for American Association for Justice. Hugh F. Young, Jr., of Virginia, & David R. Geiger & Catherine C. Deneke for Product Liability Advisory Council, Inc. Martin Healy, Charles Alagero, Jeffrey N. Catalano, & Maria Davis for Massachusetts Bar Association & another. Charlotte E. Glinka, Elizabeth N. Mulvey, Thomas R. Murphy, & Jeffrey S. Beeler for Massachusetts Academy of Trial Attorneys. Martha Coakley, Attorney General, & Eric Gold, Assistant Attorney General, for the Attorney General. BOTSFORD, J. Samantha T. Reckis was seven years old in late 2003, when she developed toxic epidermal necrolysis (TEN), a rare but life-threatening skin disorder, after receiving multiple doses of Children’s Motrin. Children’s Motrin is an over-the-counter (OTC) medication with ibuprofen as its active ingredient, and is manufactured and sold by the defendants McNeil-PPC, Inc. (doing business as McNeil Consumer & Specialty Pharmaceuticals [McNeil]), and its parent company, Johnson & Johnson. The plaintiffs, Lisa and Richard Reckis, and their child, Samantha,[3] claim that Samantha developed TEN as […]
Commonwealth v. Johnson (Lawyers Weekly No. 10-003-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11567 COMMONWEALTH vs. KENNETH JOHNSON. Suffolk. September 2, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Request for jury instructions, Instructions to jury. Indictments found and returned in the Superior Court Department on June 11, 2001. Following review by the Appeals Court, 74 Mass. App. Ct. 1129 (2009), the cases were tried before Patrick F. Brady, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Brad P. Bennion for the defendant. Cailin M. Campbell, Assistant District Attorney (David S. Bradley, Assistant District Attorney, with her) for the Commonwealth. David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Natalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley, for American Psychological Association & another, amici curiae, submitted a brief. M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan, for the Innocence Network, amicus curiae, submitted a brief.2 ANTS, C.J. In Commonwealth v. Franklin, 465 Mass. 895, 912 (2013), we recognized “that eyewitness identification may be an important issue at trial even where no eyewitness made a positive identification of the defendant as the perpetrator, but where eyewitnesses have provided a physical description of the perpetrator or his clothing, or have identified a photograph in an array as someone who looks like the perpetrator,” and we declared that, “where requested by the defendant, a judge should provide specific guidance to the jury regarding the evaluation of such eyewitness testimony through some variation of the approved identification instruction.” Here, the eyewitnesses described only the defendant’s gender and race, and the color of his shorts; identified other individuals as the perpetrator when shown a live lineup; and made no in-court identification. The trial judge declined the defendant’s request to give a variant of the approved identification instruction that included the directive, “You may take into account whether a witness ever participated in an identification procedure and failed to identify the defendant as the perpetrator.” We conclude that the judge did not abuse his discretion in declining to give the proposed instruction where there was no positive identification and no other eyewitness testimony that significantly incriminated the defendant. Therefore, we affirm the defendant’s convictions.[1] Background. On December 10, 2004, the defendant was convicted by a Superior Court jury of (1) assault by […]
Commonwealth v. Johnson (and a companion case) (Lawyers Weekly No. 10-202-14)
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-11660 COMMONWEALTH vs. WILLIAM P. JOHNSON (and a companion case[1]). Essex. September 3, 2014. – December 23, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Criminal Harassment. Constitutional Law, Freedom of speech and press. Practice, Criminal, Required finding, Discovery, Disclosure of evidence, Loss of evidence by prosecution, Promise by prosecutor, Argument by prosecutor, Speedy trial, Venue. Evidence, Authentication. Complaints received and sworn to in the Lawrence Division of the District Court Department on October 16, 2008. Motions to dismiss were heard by Anthony P. Sullivan, J., Mark A. Sullivan, J., and James D. Barretto, J.; and the cases were tried before Michael A. Uhlarik, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert S. Sinsheimer (Lisa A. Parlagreco & Ronald J. Ranta with him) for William P. Johnson. Valerie A. DePalma (Susan H. McNeil with her) for Gail M. Johnson. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. Daniel J. Lyne & Theodore J. Folkman, for Eugene Volokh, amicus curiae, submitted a brief. CORDY, J. This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime. The defendants, William and Gail Johnson, were both convicted of criminal harassment. William[2] was also convicted of making a false, or “frivolous,” report of child abuse, G. L. c. 119, § 51A (c). Among other things, the defendants’ conduct included posting information about the victims online along with false statements about items that the victims allegedly either had for sale or were giving away, with the object of encouraging unwitting third parties to repeatedly contact and harass the victims at their home and on their telephone. The […]
Johnson, et al. v. Kindred Healthcare, Inc., et al. (Lawyers Weekly No. 10-009-14)
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‑11335 BARBARA JOHNSON & another,[1] as co-administratrices,[2] vs. KINDRED HEALTHCARE, INC., & others.[3] Plymouth. September 4, 2013. ‑ January 13, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Nursing Home. Health Care Proxy. Contract, Arbitration, Parties, Validity, Construction of contract. Arbitration, Arbitrable question. Agency, Scope of authority or employment. Statute, Construction. Words, “Health care decision.” Civil action commenced in the Superior Court Department on October 3, 2011. A motion to stay the proceedings and to compel arbitration was heard by Charles J. Hely, J. A proceeding for interlocutory review was heard in the Appeals Court by Gabrielle R. Wolohojian, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John Vail, of the District of Columbia (David J. Hoey with him) for the plaintiffs. Christopher R. Lavoie for the defendants. Kelly Bagby, of the District of Columbia & Rebecca J. Benson & Debra Silberstein, for National Academy of Elder Law Attorneys (Massachusetts Chapter) and another, amici curiae, submitted a brief. DUFFLY, J. This case presents the question whether a health care agent’s agreement with a health care facility to arbitrate disputes arising from the principal’s stay at that facility constitutes a “health care decision” binding on the principal pursuant to G. L. c. 201D, § 5.[4] The plaintiffs, administrators of the estate of Dalton Johnson, filed a complaint in the Superior Court against a national operator of nursing and rehabilitation centers, one of its subsidiary nursing homes and the operator of that nursing home, and two health care professionals, alleging, inter alia, negligence and seeking damages under the wrongful death statute, G. L. c. 229, § 2, as a result of the defendants’ care of Dalton[5] while he was a resident at the nursing home.[6] On May 24, 2007, Dalton executed a health care proxy pursuant to the Massachusetts health care proxy statute, G. L. c. 201D, §§ 1-17 (health care proxy statute). In it, he authorized his wife, Barbara Johnson, “as my Health Care Agent to make any and all health care decisions for me, except to the extent that I state otherwise.” Dalton was admitted to the nursing facility operated by Braintree Nursing, LLC, doing business as Braintree Manor Rehabilitation and Nursing Center (Braintree Nursing), in September, 2007. On August 6, 2008, Barbara, in her […]