Commonwealth v. Jones (Lawyers Weekly No. 10-031-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10944 COMMONWEALTH vs. RYAN JONES. Bristol. November 10, 2017. – February 20, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Homicide. Mental Impairment. Developmentally Disabled Person. Constitutional Law, Sentence, Cruel and unusual punishment. Practice, Criminal, Competency to stand trial, Sentence. Indictment found and returned in the Superior Court Department on August 17, 2006. A hearing on the defendant’s competency to stand trial was held before D. Lloyd Macdonald, J., and the case was tried before Gary A. Nickerson, J. Brett J. Vottero for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. Gaziano, J. A Superior Court jury found the defendant guilty of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty in the death of Valerie Oransky on July 22, 2006. Prior to and during trial, the defendant maintained that he was not competent to stand trial due to an organic brain injury he had suffered as an infant and a current diagnosis of pervasive developmental disorder not otherwise specified. The defendant was the subject of competency hearings before five different Superior Court judges, and was found competent to stand trial at the first, third, fourth, and fifth hearings. At trial, his defense was that he was not criminally responsible. On appeal, the defendant argues that the judge who conducted his third competency hearing erred in finding him competent to stand trial notwithstanding testimony from both prosecution and defense experts that the defendant was not competent. He also argues that a mandatory sentence of life in prison without the possibility of parole, imposed on a developmentally disabled individual, constitutes cruel and unusual punishment in violation of Federal and State constitutional rights. Finally, the defendant asks us to use our extraordinary power under G. L. c. 278, § 33E, to order a new trial or reduce the verdict. For the reasons that follow, we affirm the conviction and decline to exercise our authority to grant relief under G. L. c. 278, § 33E. Procedural history. In August, 2006, a grand jury indicted the defendant on one charge of murder in the first degree. He was arraigned in the Superior Court in September, 2006, and pleaded not guilty. In October, 2007, defense counsel filed a motion seeking an examination of the defendant for […]
Jones, et al. v. Massachusetts Department of Children & Families (Lawyers Weekly No. 09-001-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 1784CV00586 THERESE JONES and MAXWELL JONES BY HIS MOTHER AND NEXT FRIEND, THERESE JONES v. MASSACHUSETTS DEPARTMENT OF CHILDREN & FAMILIES MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS This case arises out of the decision of defendant Massachusetts Department of Children and Families (“DCF”) to take emergency custody of minor plaintiff Maxwell Jones (“Maxwell”). This decision followed a statutorily mandated investigation in which DCF learned that plaintiff Therese Jones (“Ms. Jones”) had left her three-year old son sleeping alone in a Marriott hotel room while she drank with friends at the hotel bar. Plaintiffs’ Complaint concedes that Ms. Jones left the infant Maxwell alone in her hotel room when she “ran into a few work friends and had a few drinks,” but insists that she “checked in on her son every ten to fifteen minutes.” Plaintiffs have brought negligence claims against DCF, asserted under the Massachusetts Tort Claims Act, G.L. c. 258 (the “MTCA”). Plaintiffs contend that Ms. Jones “ha[d] never been arrested, had no criminal record, and had no previous contact or investigation with DCF,” facts that DCF purportedly “failed to investigate.” In these circumstances, plaintiffs charge, the decision to take Maxwell into emergency custody and remove him from the care of his mother was “wrongful.” DCF has now moved to dismiss the Complaint, both for failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1). DCF maintains that the Complaint sets forth no facts plausibly suggesting negligence on the part of DCF. DCF alternatively argues that even otherwise viable negligence claims of the type asserted by the plaintiffs in this case must be dismissed, because they fall within the MTCA’s “discretionary function” exemption, G.L. c. 258, _ 10(b). DISCUSSION At the outset, the Court expresses doubt that the plaintiffs have stated viable claims for negligence, as the facts pleaded in the Complaint do no more than attach conclusory labels – viz., a “failure to investigate” and a “wrongful” decision to assume custody of the minor child – to the conduct of the defendant. Beyond such labels, the Complaint sets forth no facts permitting a plausible inference that DCF’s investigative actions and decisions were improper in any respect. Plaintiffs stress that Ms. Jones “checked in on her son every ten to fifteen minutes,” but do not dispute that Ms. Jones left the child unattended in a strange hotel room for substantial periods of time while she consumed alcohol in a bar. DCF […]
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Commonwealth v. Jones (Lawyers Weekly No. 10-156-17)
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-12255 COMMONWEALTH vs. RICHARD JONES. Essex. May 4, 2017. – October 4, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Child Abuse. Rape. Indecent Assault and Battery. Evidence, Medical record, Production on demand, Privileged record, Cross-examination, Prior misconduct. Indictments found and returned in the Superior Court Department on March 27, 2009. Motions for summonses for the production of records were heard by Timothy Q. Feeley, J., and the cases were tried before him. The Supreme Judicial Court granted an application for direct appellate review. Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. David F. O’Sullivan, Assistant District Attorney (Kimberly Faitella, Assistant District Attorney, also present) for the Commonwealth. Meagen K. Monahan, Anthony D. Mirenda, Madeleine K. Rodriguez, Jeremy W. Meisinger, Stacy A. Malone, & Lindy L. Aldrich, for Victim Rights Center & others, amici curiae, submitted a brief. LOWY, J. The defendant appeals from his convictions stemming from his sexual abuse of his two daughters. He argues that (1) a Superior Court judge abused his discretion by refusing to issue summonses pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), regarding the release of the mental health and counselling records of the younger of the daughters, Diane;[2] and (2) the judge’s restriction of the defendant’s cross-examination of Diane was an abuse of discretion. We affirm the convictions.[3] Background. In 2005 or 2006, when Diane was in the seventh grade and eleven or twelve years old, she stayed home from school one day. She was sitting on a couch watching television and her father was at a nearby computer when a commercial with sexual themes came on the air. After a discussion regarding sex sparked by the commercial, the defendant sat down next to Diane and she wound up in his lap. The defendant then slid his hand under Diane’s pants and underwear and touched her vagina. Diane pushed her father’s hand away and ran upstairs to her room. In the fall of 2008, when Diane was a fourteen year old freshman in high school, she started acting out in school. Due to her behavior she was referred to a psychiatrist and also met with a therapist at a counselling center. At around the same time, […]
Commonwealth v. Jones (Lawyers Weekly No. 12-095-17)
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT Docket No. 17-49 COMMONWEALTH vs. DENNIS LEE JONES MEMORANDUM AND ORDER ON COMMONWEALTH’S MOTIONS (1) FOR PRODUCTION OF A PIN ACCESS CODE, AND (2) TO REOPEN EVIDENCE OR FOR RECONSIDERATION Defendant Dennis Lee Jones is charged with trafficking a person for sexual servitude in violation of G.L. c. 265, § 50(a), and deriving support from the earnings of a prostitute in violation of G.L. c. 272, § 7. On June 26, 2017, I held a hearing and took under advisement the Commonwealth’s Motion for an Order Requiring Production of a PIN (Personal Identification Number) Access Code (Docket #14) to unlock a cellular telephone under Commonwealth v. Gelfgatt (“Gelfgatt”), 468 Mass. 512 (2014). The next day, the Commonwealth filed a Motion to Reopen Evidence in Motion Hearing to Compel Defendant to Produce PIN Code for Cellular Telephone Seized Pursuant to Search Warrant or/in the Alternative Request for Reconsideration Upon Denial of Commonwealth’s Motion to Compel (Docket #17)1 seeking to file an affidavit by Woburn Police Sgt. Det. Brian McManus.2 After further hearing on July 19, 2017, the motion to reopen is ALLOWED and the motion to compel is DENIED. 1 To the extent the Commonwealth sought “reconsideration,” it was premature because I had not yet decided the Gelfgatt motion, although the Commonwealth did not know how quickly I might have decided the issue. 2 The documents before me refer to Mr. McManus as Sergeant Detective and also as Detective Sergeant. For consistency, I refer to him herein as “Sgt. Det. McManus.” 2 I. The Motion to Reopen The trial court has considerable discretion to determine whether to permit additional evidence after a hearing and even after a motion has been decided. See, e.g., Mass. R. Crim. P. 13(a)(5) (where “substantial justice requires, the judge . . . may permit a pretrial motion which has been heard and denied to be renewed”); Commonwealth v. Pagan, 73 Mass. App. Ct. 369, 374-375 (2008). It is in the interest of substantial justice that the issue presented in the Gelfgatt motion be decided on the most complete and accurate record available. The motion raises an important question about whether the Commonwealth will be able to access potentially relevant information from a cellular telephone believed to belong to defendant. Even if I were to decide the question on the factual record as it existed on June 26, 2017, nothing would prevent the Commonwealth from seeking to renew its motion in the interest of “substantial justice.” Defendant has not demonstrated that he will be prejudiced if I were to consider the additional information. None of the material additional information was new to the defendant. Defendant has had an opportunity to […]
Commonwealth v. Jones (Lawyers Weekly No. 10-106-17)
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-12027 COMMONWEALTH vs. MAURICE JONES. Suffolk. January 10, 2017. – June 20, 2017. Present: Gants, C.J., Lenk, Hines, & Budd, JJ. Homicide. Jury and Jurors. Practice, Criminal, Jury and jurors, Empanelment of jury, Challenge to jurors, Hearsay, Instructions to jury. Evidence, Identity, Consciousness of guilt, Hearsay. Constitutional Law, Self-incrimination. Indictments found and returned in the Superior Court Department on June 26, 2013. The cases were tried before Linda E. Giles, J., and a motion to set aside the verdict was heard by her. James L. Sultan (Kerry A. Haberlin also present) for the defendant. Matthew T. Sears, Assistant District Attorney (Julie Sunkle Higgins, Assistant District Attorney, also present) for the Commonwealth. LENK, J. The defendant was convicted by a Superior Court jury of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty in connection with the shooting death of Dinoriss Alston on April, 17, 2012.[1] The identity of the shooter was the central issue at trial. On appeal, the defendant challenges the sufficiency of the evidence, and also asserts a number of errors in the trial proceedings. He maintains that the judge erred in failing to require the Commonwealth to explain its peremptory challenge of a prospective juror; improperly allowed the admission of evidence as to the defendant’s refusal to go to the hospital to be shown to the surviving witness and as to a police radio broadcast describing the shooter; incorrectly instructed the jury that circumstantial evidence would suffice while failing to instruct that mere presence was not enough; and improperly limited the defendant’s cross-examination of a Commonwealth witness. The defendant asserts also that he received ineffective assistance of counsel and requests relief under G. L. c. 278, § 33E. We conclude that, while the evidence at trial was not by any means overwhelming, it was sufficient to sustain the defendant’s convictions. The judge’s failure to require an explanation of the prosecutor’s peremptory challenge of a prospective juror who is African-American, however, requires the convictions be vacated. We address other claimed errors only insofar as they may recur at any new trial. Background. Because the defendant challenges the sufficiency of the evidence, we discuss in some detail the facts the jury could have found. The shooting. On the afternoon of April 17, […]
Commonwealth v. Jones (Lawyers Weekly No. 10-159-15)
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-11775 COMMONWEALTH vs. CLAUZELL JONES. Worcester. March 2, 2015. – September 21, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Rape. Rape-Shield Statute. Deoxyribonucleic Acid. Constitutional Law, Confrontation of witnesses, Public trial. Evidence, Expert opinion, Scientific test, Hearsay, Chain of custody, Sexual conduct. Witness, Expert. Practice, Criminal, Confrontation of witnesses, Public trial, Instructions to jury. Indictments found and returned in the Superior Court Department on March 17, 2009. The cases were tried before David Ricciardone, J., and a motion for a new trial, filed on July 5, 2013, was heard by him. The Supreme Judicial Court granted an application for direct appellate review. Kathleen M. O’Connell for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. Brad A. Compston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. LENK, J. The defendant was indicted on charges of rape, in violation of G. L. c. 265, § 22 (b), and furnishing alcohol to a minor, in violation of G. L. c. 138, § 34. At trial, the defendant testified both that his sexual contact with the victim did not involve penetration and that it was consensual. To establish the element of penetration necessary to sustain a conviction of rape, the Commonwealth offered, in addition to the victim’s testimony, results of deoxyribonucleic acid (DNA) testing that purportedly identified the defendant’s saliva on “intimate” swabs taken from the victim’s vagina. To prove that the sexual contact was nonconsensual, the Commonwealth offered, among other evidence, testimony concerning the victim’s conduct shortly after the alleged rape occurred. The defendant was convicted by a Superior Court jury in May, 2011, on both indictments. On appeal, the defendant argues that the judge erred in allowing the Commonwealth to introduce, through the testimony of an expert witness who was not present when the victim’s “rape kit” examination was performed, evidence concerning how the various swabs that the expert tested were collected. The defendant further contends that the judge violated his right to a public trial by holding, pursuant to G. L. c. 233, § 21B (rape shield law), an in camera hearing to determine the admissibility of evidence relating to the victim’s prior sexual contact with the individual to whom the victim first reported the alleged rape (first complaint witness). Finally, the defendant challenges […]
Commonwealth v. Jones (Lawyers Weekly No. 10-054-15)
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-11717 COMMONWEALTH vs. ROBERT JONES. Middlesex. December 1, 2014. – April 9, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Indecent Assault and Battery. Obscenity, Dissemination of matter harmful to minor. Statute, Validity. Constitutional Law, Freedom of speech and press. Practice, Criminal, Argument by prosecutor. Indictments found and returned in the Superior Court Department on April 26, 2012. The cases were tried before Maureen B. Hogan, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Anne M. Paruti, Assistant District Attorney (Jessica L. Langsam, Assistant District Attorney, with her) for the Commonwealth. GANTS, C.J. A Superior Court jury convicted the defendant on two indictments charging indecent assault and battery on a child under fourteen, in violation of G. L. c. 265, § 13B, and one indictment charging dissemination of matter harmful to minors, in violation of G. L. c. 272, § 28.[1] The defendant presents two claims on appeal. First, he contends that, during the time period alleged in the indictment, § 28 was facially overbroad because it did not explicitly require the Commonwealth to prove that the defendant knew that the person receiving the harmful matter was a minor. Second, he argues that the prosecutor’s closing argument created a substantial risk of a miscarriage of justice by suggesting that the defendant would have committed further sexual offenses against one of the child victims had the child not moved away. We conclude that, during the relevant time period, § 28 was not unconstitutionally overbroad because we interpret the statute to have implicitly required knowledge that the recipient was a minor as an element of the crime. We also conclude that the prosecutor’s suggestion that the defendant would have committed further sexual offenses against the victim was improper but, in the context of the entire closing argument, did not create a substantial risk of a miscarriage of justice. We therefore affirm the convictions. Background. The two victims were the defendant’s nephews, sons of two different sisters of the defendant. In 2006, one victim, C.J., who was approximately eleven years old, moved with his mother and younger brother to Woburn, which is also where the defendant was living at C.J.’s grandmother’s house. A few days during each school week, and […]
Commonwealth v. Jones (Lawyers Weekly No. 11-027-13)
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 10‑P‑1635 Appeals Court COMMONWEALTH vs. WILBERT JONES. No. 10‑P‑1635. Plymouth. November 9, 2012. ‑ February 15, 2013. Present: Meade, Sikora, & Carhart, JJ. Firearms. Constitutional Law, Search and seizure, Reasonable suspicion, Right to bear arms. Search and Seizure, Reasonable suspicion, Protective frisk. Evidence, Firearm. Complaint received and sworn to in the Brockton Division of the District Court Department on June 22, 2009. A pretrial motion to suppress evidence was heard by Julie J. Bernard, J., and the case was heard by Paul J. McCallum, J. Sarah G.J. Clymer for the defendant. Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth. SIKORA, J. At the conclusion of a jury-waived trial, a judge of the District Court found the defendant guilty of carrying a firearm without a license, G. L. c. 269, § 10(a); possession of a firearm without a firearm identification card (FID card), G. L. c. 269, § 10(h)(1); and drinking alcohol in public, in violation of a Brockton city ordinance.[1] The defendant appeals from his convictions of the two firearms-related offenses upon the grounds (1) that the patfrisk search of his person uncovering the unauthorized firearm lacked justification; and (2) that the convictions violated his right to keep and bear arms under the Second Amendment to the United States Constitution, as applied through the due process clause of the Fourteenth Amendment. For the following reasons, we affirm the judgments. Facts. Two officers testified at the pretrial suppression hearing, State police Troopers Michael McCarthy and Carlton Jackson. The evidence developed at the hearing permitted the motion judge to find as follows. At approximately 9:45 P.M. on June 19, 2009, McCarthy, Jackson, and a Brockton police officer were patrolling an area of Brockton in an unmarked cruiser. The area had a history of firearm offenses, narcotics violations, and homicide. The officers spotted the defendant as he walked unsteadily in the street and drank from an apparent bottle wrapped in a brown paper bag. They pulled over and approached him on foot. From close range they saw more clearly the neck of a green bottle and smelled the aroma of alcohol. The defendant acknowledged that he was drinking beer. When the officers removed the brown bag, they found a forty-ounce bottle of beer. Trooper Jackson asked the defendant whether he possessed any objects which might […]
Jones, et al. v. Boykan, et al. (Lawyers Weekly No. 10-016-13)
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‑11276 SJC-11095 LUCY JONES & others[1] vs. RONALD BOYKAN & others.[2] Hampden. October 2, 2012. ‑ February 6, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, & Gants, JJ. Judgment, Default, Relief from judgment, Amendment. Damages, Civil rights, Attorney’s fees. Practice, Civil, Default, Entry of judgment, Vacation of judgment, Damages, Affirmative defense, Waiver, Attorney’s fees, Costs. Civil Rights, Damages, Attorney’s fees. Jurisdiction, Superior Court. Civil action commenced in the Superior Court Department on June 12, 2003. A motion for judgment of default, filed on June 7, 2004, was heard by Peter A. Velis, J., a hearing on an assessment of damages was held before him, and motions to vacate judgment were also heard by him. After review by the Appeals Court, a motion for attorney’s fees and costs was considered in the Appeals Court by Barbara A. Lenk and Frederick L. Brown, JJ. The Supreme Judicial Court granted leave to obtain further appellate review. A motion to amend judgment, filed on January 17, 2012, was heard by Peter A. Velis, J. The Supreme Judicial Court granted an application for direct appellate review. Garry Teixeira for Lucy Jones & others. Patricia Bobba Donovan (Lisa C. deSousa, Associate City Solicitor, with her) for Ronald Boykan & others. BOTSFORD, J. This case arises out of a violent altercation in 1999 involving the plaintiffs, Lucy Jones, Nicole Jones, William Owens, and Sierra Jones, and the defendant, Officer Ronald Boykan of the Springfield police department (department). More than thirteen years later, with a procedural history that features missteps by many, the case arrives before us on limited further appellate review. See Jones v. Boykan, 79 Mass. App. Ct. 464 (2011) (Jones II). In Jones II, the Appeals Court ordered the reinstatement of a 2004 default judgment against Boykan and the defendant city of Springfield (city). Id. at 471. We also have before us on direct appellate review an order of the Superior Court dated March 30, 2012, that amended the 2004 default judgment to correct a clerical error and that reinstated it. For the reasons we explain hereafter, we conclude that the case must be remanded to the Superior Court for another hearing to assess damages. 1. Background. The Appeals Court’s decision describes the factual background underlying this case. See Jones […]