Moses v. Mitchell, et al. (Lawyers Weekly No. 09-040-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 16-0823 MOONIE MOSES1 vs. LISA MITCHELL, REBECCA DONAHUE, JOHN P. FREITAS, CHRISTOPHER ANDERSON, ANDREW DEVALLES, AND BRIAN SCHWENK MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS Plaintiff Moonie Moses, an inmate at Old Colony Correctional Center (“OCCC”), brings this case in the nature of certiorari under G.L. c. 249, §4, against Lisa Mitchell, Rebecca Donahue, John P. Freitas, Christopher Anderson, Andrew DeValles, and Brian Schwenk (“Defendants”), officials and employees of OCCC, alleging violations of Department of Correction regulations governing discipline he received as the result of a disciplinary report (or D-Report). Before the Court is Moses’ motion for judgment on the pleadings. The Defendants oppose and cross-move for judgment on the pleadings. After hearing, and in consideration of the parties’ memoranda of law and oral arguments, the Court ALLOWS Plaintiff’s motion for judgment on the pleadings and DENIES Defendants’ motion. FACTS In D-Report 345786, Correctional Officer John Freitas alleged that on August 24, 2015, Moses insulted and threatened him. Specifically, Freitas alleged that Moses “called this officer ‘a piece of shit and then continued to say if you were in my neighborhood in Dorchester I wish 1 The case file, identifying plaintiff as “Moses Moonie,” reverses Mr. Moses’ first and last names. 2 you would take a bullet to the head.’” Moses was charged with four offenses – threatening another with bodily harm, in violation of Disciplinary Code Section 3-04; use of obscene, abusive or insolent language or gesture, in violation of Disciplinary Code Section 3-26; conduct which disrupts the normal operation of the facility of unit, in violation of Disciplinary Code Section 3-27; and violation of any departmental rule or regulation, in violation of Disciplinary Code Section 4-11. Although the D-Report reads as if Moses’ alleged statement was made directly to Freitas, it is undisputed that it was not. Instead, whatever statement Moses made was heard by Correctional Officer Oana T. Farese, who reported it to Freitas. Indeed, the record of the disciplinary hearing reflects Freitas’ statement that “[s]he [Farese] told me she heard the statements. I don’t recall when she told me. … I asked Moses did he say it. He said it was misinterpreted. I’m going to go with what the CO tells me.” Freitas’ statement makes clear that Moses’ position was that what he said had been misunderstood, which is his position before this Court. Farese’s testimony, which Freitas credited, was thus critical in deciding whether any offense had occurred and any discipline was appropriate. Moses thus requested, pursuant to the regulations that governed the proceeding, that Farese be produced as a witness at the disciplinary hearing, proffering that she could […]
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. Mitchell (Lawyers Weekly No. 10-108-14)
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‑11487 COMMONWEALTH vs. MARCUS MITCHELL. Bristol. February 3, 2014. ‑ June 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Eavesdropping. Evidence, Wiretap. Search and Seizure, Electronic surveillance, Warrant. Practice, Criminal, Interlocutory appeal, Motion to suppress, Warrant. Indictments found and returned in the Superior Court Department on May 6, 2011. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J. An application for leave to file an interlocutory appeal was allowed by Spina, J. in the Supreme Judicial Court for the county of Suffolk. David B. Mark, Assistant District Attorney, for the Commonwealth. Richard B. Klibaner for the defendant. GANTS, J. Under the Massachusetts electronic surveillance statute, G. L. c. 272, § 99 F, the Commonwealth is required to obtain a warrant before it may conduct an “interception,” which is defined as the secret recording or transmitting of the contents of any wire or oral communication without the consent of all parties to the communication. G. L. c. 272, § 99 B 4. However, under the “one-party consent exception,” set forth in § 99 B 4, “it shall not constitute an interception for an investigative or law enforcement officer . . . to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined [under § 99 B 7].” The primary issue presented on appeal is the scope of the one-party consent exception, that is, whether a telephone call recorded by the police between the defendant and a cooperating witness is an “interception” requiring a warrant under § 99 F, where the cooperating witness, despite being instructed by a law enforcement officer to elicit information regarding a “designated offense,” instead elicits information only about a subsequent unrelated crime that is not a “designated offense.” A Superior Court judge concluded that the recording was not made “in the course of an investigation of a designated offense,” and therefore allowed the defendant’s motion to suppress the recording, because the cooperating witness did not attempt to discuss the “designated offense” during the recorded telephone call. We reverse the allowance of […]