Commonwealth v. Martinez (Lawyers Weekly No. 10-024-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12076 COMMONWEALTH vs. ADALBERTO MARTINEZ. Bristol. October 6, 2016. – February 7, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Obscenity, Child pornography. Constitutional Law, Search and seizure. Search and Seizure, Computer. Evidence, Information stored on computer. Complaint received and sworn to in the Fall River Division of the District Court Department on May 9, 2012. A pretrial motion to suppress evidence was heard by Kevin J. Finnerty, J., and the case was tried before him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michelle A. Dame for the defendant. Soshana E. Stern, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. The defendant, Adalberto Martinez, appeals from his conviction of possessing child pornography in violation of G. L. c. 272, § 29C. He challenges the denial of his motion to suppress computer evidence obtained pursuant to a search warrant. The gravamen of the defendant’s claim is that the police needed to do more to link the defendant to the place searched and the items seized before a warrant could validly issue. We affirm the denial of the motion to suppress and the conviction. Background. 1. IP addresses. All computers that connect to the Internet identify each other through a unique string of numbers known as an Internet protocol address (IP address). See Internet Corporation for Assigned Names and Numbers, Beginner’s Guide to Internet Protocol (IP) Addresses 2, 4 (2011) (ICANN Guide). In general, when a subscriber purchases Internet service from an Internet service provider (ISP), the ISP selects from a roster of IP addresses under its control and assigns a unique IP address to the subscriber at a particular physical address. See id. at 4, 6; United States v. Kearney, 672 F.3d 81, 89-90 & n.6 (1st Cir. 2012). See also Office of Legal Education, United States Department of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 65 (2009) (DOJ, Searching and Seizing Computers). The IP address assigned to a particular subscriber may change over time, but the ISP keeps a log of which IP address is assigned to each subscriber at any given moment in time. See Kearney, supra; DOJ, Searching and Seizing Computers, supra. In the early days of […]
Commonwealth v. Martinez (Lawyers Weekly No. 10-005-17)
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-11657 COMMONWEALTH vs. RAFAEL MARTINEZ. Essex. September 9, 2016. – January 5, 2017. Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ. Homicide. Evidence, Videotape, Relevancy and materiality, Inflammatory evidence, Consciousness of guilt. Practice, Criminal, Capital case, Redaction, Voir dire, Opening statement, Argument by prosecutor. Indictment found and returned in the Superior Court Department on June 29, 2011. The case was tried before Timothy Q. Feeley, J. Amy M. Belger for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. GAZIANO, J. The victim, Timothy Walker, was shot while seated and talking with two friends on the porch of his grandmother’s house in the Tower Hill section of Lawrence. Despite two eyewitnesses, and surveillance video recordings of the incident obtained from nearby businesses, police were unable to identify a suspect. Nine months after the victim’s death, a local television station featured the shooting in an “unsolved crime” series news broadcast that included portions of the surveillance footage showing the suspect, whose face was not discernable. The defendant watched the news broadcast with his girl friend’s mother and told her that he had been the shooter. At the defendant’s trial, the Superior Court judge allowed the admission in evidence, over the defendant’s objection, of a redacted version of the news broadcast. The jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. On appeal, the defendant’s principal argument is that the news broadcast should not have been admitted in evidence, or, alternatively, that it should have been more heavily redacted, because much of it was irrelevant, inflammatory, and highly prejudicial. The defendant also claims error in certain aspects of the judge’s conduct of the voir dire of the venire and two of the judge’s evidentiary rulings. Finally, the defendant contends that several statements in the prosecutor’s opening statement and closing argument were improper. We conclude that there was no abuse of discretion in the judge’s decision to allow admission of the news broadcast, and no error requiring reversal in the defendant’s other challenges. Having carefully examined the record pursuant to our duty under G. L. c. 278, § 33E, we discern no reason to order a new trial or to reduce the degree of guilt. We therefore affirm the defendant’s conviction. Facts. […]
Martinez v. Commonwealth (Lawyers Weekly No. 10-106-16)
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-12071 JONATHAN MARTINEZ vs. COMMONWEALTH. July 26, 2016. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Discovery, Subpoena. Jonathan Martinez appeals from a judgment of a single justice in the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. Martinez stands indicted for several drug offenses. Pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), he moved for issuance of a subpoena, seeking certain statistical data maintained or controlled by the registry of motor vehicles, which he claimed would be relevant to support his claim that he was subjected to selective enforcement and racial profiling.[1] A judge in the Superior Court denied the motion. Martinez’s G. L. c. 211, § 3, petition followed. We affirm the judgment. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Martinez to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Martinez has not done so. If Martinez is convicted of any offense, he will have the opportunity to raise his issues in the ordinary appellate process.[2] Discovery matters such as this are routinely addressed on direct appeal. See Deming v. Commonwealth, 438 Mass. 1007, 1007 (2002), citing Carr v. Howard, 426 Mass. 514, 517 n.3 (1998) (discovery disputes generally not appropriate for review under G. L. c. 211, § 3). The single justice neither erred nor abused his discretion by denying extraordinary relief. In addition, Martinez has not filed a memorandum pursuant to rule 2:21, but has filed only what appears to be a copy of the petition he filed in the county court. This does not comply with the rule. S.J.C. Rule 2:21 (2) (“The record appendix shall be accompanied by eight copies of a memorandum . . . in which the appellant must set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal . . . or by other available means” [emphasis added]). “The purpose of this requirement is to focus the court’s and counsel’s attention on the narrow question whether, regardless of the merits of the substantive claim of error, the petitioner has an adequate remedy apart […]
Martinez, et al. v. Waldstein (Lawyers Weekly No. 11-046-16)
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-455 Appeals Court FRANCISCO MARTINEZ, trustee,[1] & another[2] vs. THOMAS G. WALDSTEIN. No. 15-P-455. Middlesex. January 13, 2016. – April 29, 2016. Present: Cypher, Meade, & Neyman, JJ. Collateral Estoppel. Judgment, Preclusive effect. Negligence, Misrepresentation. Contract, Misrepresentation. Practice, Civil, Judgment on the pleadings, Affidavit. Subrogation. Civil action commenced in the Superior Court Department on July 2, 2014. The case was heard by Kimberly S. Budd, J., on a motion for judgment on the pleadings. Peter S. Brooks for the plaintiffs. Damian R. LaPlaca for the defendant. NEYMAN, J. Francisco Martinez, trustee of the Baystate Portfolio Trust (trust), and Eric AmRhein (collectively, plaintiffs), appeal from a judgment of the Superior Court dismissing their complaint alleging misrepresentation and violation of G. L. c. 93A, § 11, against the defendant, attorney Thomas G. Waldstein, on the basis of issue preclusion. This is the second appeal to this court arising out of the plan to purchase the mortgage and foreclose on a property located at 3 Ronald Road in Sudbury (the property) in order to eliminate junior mortgages on the property. See U.S. Bank, N.A. v. Martinez, 86 Mass. App. Ct. 1111 (2014) (Baystate I). The plaintiffs’ claims in the present action hinge on their allegation that they reasonably relied on Waldstein’s representations in an affidavit regarding mortgage priorities on the property. A Superior Court judge (motion judge) granted Waldstein’s motion for judgment on the pleadings, concluding that the plaintiffs could not establish that they reasonably relied on Waldstein’s representations because a different Superior Court judge (trial judge) had found otherwise in Baystate I.[3] The plaintiffs contend that the motion judge erred in applying issue preclusion because the issue of reasonable reliance was not actually litigated in Baystate I, and thus was neither identical to any issues raised in Baystate I nor essential to the judgment in Baystate I. We affirm. 1. Background. We first summarize the relevant facts from the motion judge’s decision on Waldstein’s motion for judgment on the pleadings, taking those facts stated by the plaintiffs as true. See Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974); Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (Jarosz). We then look to the entire record of Baystate I, with a view toward comparing the issues adjudicated therein with the issues raised by the plaintiffs in the present action. See Boyd […]
Commonwealth v. Martinez (Lawyers Weekly No. 11-070-15)
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-1087 Appeals Court COMMONWEALTH vs. KEYLA MARTINEZ.[1] No. 14-P-1087. Suffolk. March 3, 2015. – June 29, 2015. Present: Kantrowitz, Blake, & Massing, JJ. Motor Vehicle, Leaving scene of accident. Practice, Criminal, Required finding. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on March 7, 2013. The case was tried before Robert J. McKenna, Jr., J. Sandra E. Lundy for the defendant. Alison Taylor Holdway, Special Assistant District Attorney, for the Commonwealth. KANTROWITZ, J. In a case containing some rather odd facts, the defendant, Keyla Martinez, was convicted of leaving the scene of an automobile accident without making known her name, address, and vehicle registration number under G. L. c. 90, § 24(2)(a), despite her offer of the information. Providing the required information is necessary under the statute; in this case, the attempt to provide it was not adequate. Background. Around 12:15 A.M. on January 26, 2013, as the defendant was driving a station wagon on Main Street in Charlestown, she “sideswiped” the parked car of Jessica Cordiero, who was seated in the driver’s seat. At the time, Cordiero was speaking to her friend, whom she was dropping off at the friend’s residence.[2] After the crash, Cordiero could not exit her car from the driver’s side because of the damage. She had to move across her car’s interior and exit from the passenger side. The defendant’s station wagon stopped on the sidewalk. Cordiero began walking toward the defendant’s car. The defendant and a passenger both exited the station wagon. The defendant’s sister, who had been following the defendant in a third car, also pulled over. Strangely, the sister then entered the defendant’s station wagon and drove away, leaving the defendant and Cordiero.[3] Cordiero noted the license plate number on the station wagon, and her friend called the police. Cordiero then asked the defendant for her license and registration. The defendant responded that she did not have those materials as they were in her station wagon that had been driven away. The defendant, however, stated that the station wagon would return.[4] The defendant at some point told Cordiero that her children were also inside the station wagon. The defendant asked Cordiero not to call the police, stating, “I think we can take care of this between us.” Cordiero replied that […]
Commonwealth v. Martinez (Lawyers Weekly No. 11-136-14)
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-2063 Appeals Court COMMONWEALTH vs. JOSE MARTINEZ. No. 11-P-2063. Suffolk. April 10, 2014. – October 29, 2014. Present: Grainger, Rubin, & Hanlon, JJ. Alien. Constitutional Law, Assistance of counsel, Plea. Practice, Criminal, Assistance of counsel, Plea, Affidavit. Indictments found and returned in the Superior Court Department on June 1, 1998. A motion for a new trial, filed on September 6, 2011, was considered by Elizabeth B. Donovan, J., and a motion for reconsideration was considered by her. David Shaughnessy for the defendant. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth. HANLON, J. The defendant, Jose Martinez, citing Padilla v. Kentucky, 559 U.S. 356 (2010) (Padilla), appeals from the denial, without a hearing, of his motion for a new trial on the grounds of ineffective assistance of counsel, and from the denial of his motion for reconsideration. The significant issue is the appropriate weight to be given to a defendant’s failure to produce an affidavit from plea counsel, when the defendant makes a substantial showing that he attempted to obtain such an affidavit and counsel refused to respond. In the circumstances of this case, the defendant was entitled to an evidentiary hearing, with an opportunity to secure plea counsel’s presence by subpoena and for the judge to determine any credibility issues based on live testimony. Accordingly, we vacate the orders denying the defendant’s motions for new trial and for reconsideration and remand the matter for an evidentiary hearing. Background. On May 3, 1999, the defendant pleaded guilty in the Superior Court to distribution of a class B controlled substance, in violation of G. L. c. 94C, § 32A(a) (count one),[1] and conspiracy to violate the Controlled Substances Act, in violation of G. L. c. 94C, § 40 (count two).[2] The judge gave the “immigration warning” required by G. L. c. 278, § 29D, and then asked the defendant where he was born. The defendant answered that he was born in Guatemala, and the judge responded, “I have no way of knowing what the consequences will be in terms of deportation and all. That’s up to the Federal Naturalization Service and not anything I can control. You understand you’re running the risk, though?” The defendant responded, “Yes.” The judge then accepted the plea, finding that the defendant was “alert and intelligent and that his plea [was] made voluntarily with full knowledge […]
Commonwealth v. Martinez (Lawyers Weekly No. 11-046-14)
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 12‑P‑1758 Appeals Court COMMONWEALTH vs. NICHOLAS MARTINEZ. No. 12‑P‑1758. Worcester. November 6, 2013. ‑ May 7, 2014. Present: Trainor, Vuono, & Rubin, JJ. Home Invasion. Practice, Criminal, Required finding. Indictments found and returned in the Superior Court Department on November 10, 2009. The cases were tried before Janet Kenton‑Walker, J. William B. Van Lonkhuyzen for the defendant. Donna‑Marie Haran, Assistant District Attorney, for the Commonwealth. TRAINOR, J. At issue on appeal is whether G. L. c. 265, § 18C, applies to an assault of an individual who entered a dwelling after the defendant and codefendant had entered the dwelling and already had assaulted the persons who were present. This individual was not a legal occupant or legal resident of the apartment. We hold it does, so we affirm. Factual and procedural background. The defendant appeals from his convictions arising from the incident at 91 Nashua Street.[1] Specifically, on appeal the defendant argues it was error to deny his motion for a required finding of not guilty on one count of home invasion upon Francis Curran. We summarize the relevant evidence in the light most favorable to the Commonwealth. Commonwealth v. Stokes, 440 Mass. 741, 747 (2004). The defendant agreed with others to enter the third-floor apartment at 91 Nashua Street to rob the occupant of that apartment, David Bastarache, of money and drugs. The defendant and codefendant entered the main gate for 91 Nashua Street (which requires a code to open) and, then, entered the third-floor apartment. After entering the third-floor apartment, the defendant and the codefendant assaulted Bastarache and his guest. Curran, who lived in the second-floor apartment, heard the noise upstairs, and went to investigate carrying a baseball bat. After Curran entered the apartment, he proceeded down the hall. Curran saw the codefendant and the defendant come toward him. The codefendant grabbed the baseball bat, stabbed Curran twice, and pushed Curran into an open bedroom door. Based on this evidence, the jury convicted the defendant of home invasion against Curran. Discussion. The relevant part of the home invasion statute, G. L. c. 265, § 18C, inserted by St. 1993, c. 333, provides: “Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and […]
Martinez Rivera et al. v. Commerce Insurance Company, et al. (Lawyers Weekly No. 11-101-13)
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 12‑P‑483 Appeals Court EFRAIN MARTINEZ RIVERA[1] & another[2] vs. COMMERCE INSURANCE COMPANY & others.[3] No. 12‑P‑483. Hampden. March 19, 2013. ‑ August 16, 2013. Present: Cypher, Brown, & Cohen, JJ. Consumer Protection Act, Damages, Offer of settlement, Unfair or deceptive act. Damages, Consumer protection case, Loss of chance, Interest. Insurance, Settlement of claim, Unfair act or practice, Interest. Interest. Civil action commenced in the Superior Court Department on August 7, 2006. The case was heard by Cornelius J. Moriarty, II, J., and a motion to amend the judgment was also heard by him. Robert A. DiTusa for the plaintiffs. John F. Hurley, Jr., for Commerce Insurance Company. BROWN, J. This appeal concerns the proper measure of damages for loss of use in an unfair claim settlement practices case. The litigation began as a tort action that settled on the eve of trial in May, 2008, for the full policy limits of $ 1 million. After a bench trial of the G. L. c. 93A and c. 176D claims in March, 2010, a judge found that Commerce Insurance Company (Commerce) had failed to conduct a reasonable investigation and to effect a prompt, fair, and equitable settlement once liability was reasonably clear. Based on these violations, the judge, on amended findings, awarded the claimants, Efrain Martinez Rivera, his wife, and his three minor children (collectively, plaintiffs) actual damages in the amount of $ 55,000 (which, given the extent of Commerce’s bad faith, the judge trebled), plus attorney’s fees and costs. See G. L. c. 93A, § 9(3) and (4). On appeal, the plaintiffs challenge two aspects of the damages award. First, they argue that the judge erred by categorically denying their request for certain expenses from the tort phase of the case. Second, they claim that the judge erred by using a six percent interest rate in the damages calculus. We conclude that any reasonable tort-related litigation expenses incurred as a foreseeable result of Commerce’s c. 93A violations were compensable as actual damages. We find no abuse of discretion in the judge’s choice of interest rate. Accordingly, we affirm in part, vacate in part, and remand the case to the Superior Court for further proceedings consistent with this opinion. The underlying facts derived from the judge’s findings are no longer […]