Commonwealth v. Nelson (Lawyers Weekly No. 11-073-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-808 Appeals Court COMMONWEALTH vs. RICHARD S. NELSON. No. 16-P-808. Middlesex. April 10, 2017. – June 5, 2017. Present: Kafker, C.J., Milkey, & Desmond, JJ. Jury and Jurors. Practice, Criminal, Jury and jurors, Challenge to jurors. Complaint received and sworn to in the Woburn Division of the District Court Department on February 27, 2013. The case was tried before Stacey Fortes-White, J. Robert L. Sheketoff for the defendant. Kristen M. Hughes, Assistant District Attorney, for the Commonwealth. KAFKER, C.J. The defendant, Richard S. Nelson, was convicted of operating a motor vehicle while under the influence of intoxicating liquor, third offense, G. L. c. 90, § 24(1)(a)(1), following a jury trial.[1] On appeal, the defendant claims that the trial judge erred by not excusing a juror[2] for cause who indicated that he was “a little” more likely to believe the testimony of a police officer than that of other witnesses, but agreed that he would be able to “keep an open mind,” “listen to all of the facts and evidence,” and “render a fair verdict.” Although the defendant eventually exhausted all of his peremptory challenges, he did not use one of his then-remaining peremptory challenges on this juror or ask for additional peremptory challenges, and stated that he was content with the jury on which the juror sat. We affirm, concluding that the judge did not abuse her discretion. We also provide some additional guidance regarding the follow-up questioning of the challenged juror. Background. At the beginning of jury empanelment, the judge reminded the parties that they each had two peremptory challenges[3] and needed to voice their objections to any jurors before the jury was sworn. The judge then directed a series of questions to the venire to probe their ability to be impartial. The judge asked whether any juror would be “more inclined to believe the testimony of a police officer over someone who is not a police officer solely because that individual is a police officer.” Four jurors, including juror number (no.) fourteen, raised their hands.[4] During the questioning of juror no. fourteen, the judge asked whether he would “give greater weight to the testimony of a police officer.” Juror no. fourteen responded that he would, “[b]y a little.” The judge then interjected, “[W]hat we’re trying to get here […]
Commonwealth v. Nelson (Lawyers Weekly No. 11-159-16)
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 11-P-1569 Appeals Court COMMONWEALTH vs. DAVID E. NELSON. No. 11-P-1569. Plymouth. September 14, 2016. – November 2, 2016. Present: Green, Wolohojian, & Massing, JJ. Controlled Substances. Constitutional Law, Conduct of government agents. Practice, Criminal, Conduct of government agents, Disclosure of evidence, New trial. Due Process of Law, Disclosure of evidence. Evidence, Disclosure of evidence, Certificate of drug analysis. Indictments found and returned in the Superior Court Department on February 1, 2008. A motion for a new trial, filed on December 17, 2012, was heard by Paul A. Chernoff, J., special judicial magistrate, and an order affirming the proposed order of the magistrate was entered by Thomas F. McGuire, Jr. Thomas C. Foley for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. In 2009, a jury convicted the defendant of various drug offenses.[1] The drugs at issue were tested and analyzed at the William A. Hinton State Laboratory Institute (Hinton lab or lab), but neither the misconduct by chemist Annie Dookhan nor the problems at that lab were discovered before trial. Once those issues came to light, the defendant moved for a new trial. A special magistrate[2] conducted an extensive evidentiary hearing and made detailed findings acknowledging the severity and the scope of Dookhan’s misconduct and the irregularities at the Hinton lab. Nonetheless, the special magistrate denied the defendant’s motion for new trial because Dookhan had not participated in testing, analyzing, or reviewing the drugs at issue in this case and there was no evidence to show or to suggest that the problems at the lab in any way affected the accuracy or the reliability of the testing of the drugs the defendant was accused of possessing. We affirm. The details of Dookhan’s egregious misconduct can be found in Commonwealth v. Scott, 467 Mass. 336, 338-342 (2014), and we accordingly do not repeat them here. In Scott, supra at 338, the Supreme Judicial Court held that a defendant seeking to withdraw a guilty plea after learning of Dookhan’s misconduct is entitled to a conclusive presumption of egregious government misconduct where Dookhan signed the certificate of drug analysis as primary or secondary chemist. The presumption of egregious government misconduct does not entitle a defendant to relief unless he also demonstrates a “nexus between the […]
Nelson v. Conservation Commission of Wayland (Lawyers Weekly No. 11-113-16)
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-1437 Appeals Court KENNETH TODD NELSON vs. CONSERVATION COMMISSION OF WAYLAND. No. 15-P-1437. Middlesex. May 16, 2016. – August 31, 2016. Present: Rubin, Milkey, & Neyman, JJ. Zoning, By-law, Wetlands. Municipal Corporations, Conservation commission, By-laws and ordinances. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on December 3, 2014. The case was heard by Peter B. Krupp, J., on a motion for judgment on the pleadings. George F. Hailer for the plaintiff. Mark J. Lanza for the defendant. RUBIN, J. The plaintiff[1] appeals from a judgment of the Superior Court affirming a determination by the conservation commission of Wayland (commission) that there are wetlands on his property.[2] That determination was made under Wayland’s wetlands and water resources protection by-law. See chapter 194 of the Wayland town code (2015) (by-law). Under the by-law’s definition, wetlands are protected more broadly than they are under the Wetlands Protection Act and the accompanying regulations. See § 194-1 of the by-law (“The purpose of this chapter is to provide a greater degree of protection of wetlands, buffer zones, and related water resources, than the protection of these resource areas provided under [G. L.] c. 131, § 40, and the Wetlands Regulations promulgated thereunder by the Massachusetts Department of Environmental Protection”). Compare § 194-2 of the by-law, with G. L. c. 131, § 40, and 310 Code Mass. Regs. §§ 10.01 et seq. (2014). The plaintiff agrees that the town has the authority to provide such broader protection, but argues that the commission’s decision here was not supported by substantial evidence. The plaintiff brought an action in the nature of certiorari (G. L. c. 249, § 4) in the Superior Court. The plaintiff moved for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). The judge denied the motion and upheld the commission’s decision. This appeal followed. The commission made two findings supporting its conclusion that the property at issue contains wetlands within the meaning of the by-law. These findings, in full, provide that “[p]lants including [r]ed [m]aple, American [e]lm, skunk cabbage, and other hydrophilic vegetation comprise at least 50% of the vegetational community.” Further, “[r]unoff water from surface drainage frequently collects above the soil surface.” Section 194-2 of the by-law defines “wetland” as “[w]et meadows, marshes, swamps, bogs, and other areas where groundwater, flowing […]
Categories: News Tags: 1111316, Commission, Conservation, Lawyers, Nelson, Wayland, Weekly
Commonwealth v. Nelson (Lawyers Weekly No. 10-072-14)
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‑11337 COMMONWEALTH vs. LARRY NELSON. Suffolk. January 10, 2014. ‑ April 17, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Practice, Criminal, Capital case, Argument by prosecutor, Instructions to jury, Question by jury. Jury and Jurors. Indictment found and returned in the Superior Court Department on May 15, 2008. The case was tried before Judith Fabricant, J. Leslie W. O’Brien for the defendant. Teresa K. Anderson, Assistant District Attorney (Gretchen Lundgren, Assistant District Attorney, with her) for the Commonwealth. IRELAND, C.J. On January 26, 2010, a jury convicted the defendant, Larry Nelson, of murder in the first degree on the theory of extreme atrocity or cruelty. Represented by new counsel on appeal, the defendant argues error in the prosecutor’s closing argument and in the judge’s instructions to the jury. We affirm the defendant’s conviction and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Background. The jury could have found the following facts. On October 12, 2007, Boston police officers, responding to a telephone call made from a resident of the victim’s apartment building, discovered the victim’s body inside his apartment. The victim’s identity was not immediately ascertainable because his body was in a state of decomposition. The victim’s body was on the floor in the front hallway about five or six feet from the main entrance. He was on his left side with his head toward the front door. His shirt was soaked in blood. There was a pool of dried blood underneath him, gaping wounds to his neck and face, and reddish-brown stains on the walls of both sides of the hallway. Emergency medical technicians arrived and pronounced the victim dead. He was sixty-four years of age. The victim had a total of twenty stab and incised wounds. He had six wounds to his head and neck, seven wounds to his torso area, and seven wounds on his upper extremities. The victim died as result of stab wounds to the head, neck, torso, and upper extremities, with perforations of the lung and subclavian artery, and associated hemorrhage. The medical examiner who conducted his autopsy expressed her opinion that the victim died within minutes from when his wounds were inflicted. The victim and the defendant knew each other. They […]
Genovesi v. Nelson, et al. (Lawyers Weekly No. 11-023-14)
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 13‑P‑661 Appeals Court LAWRENCE GENOVESI vs. ANDREW NELSON & others.[1] No. 13‑P‑661. Norfolk. December 9, 2013. ‑ March 5, 2014. Present: Grainger, Brown, & Carhart, JJ. Limitations, Statute of. Practice, Civil, Statute of limitations, Motion to dismiss. Notice. Fraud. Negligence, Misrepresentation. Fiduciary. Consumer Protection Act, Pleading, Securities transactions. Uniform Securities Act. Securities. Civil action commenced in the Superior Court Department on July 29, 2011. A motion to dismiss was heard by Paul E. Troy, J. Michael R. Perry for the plaintiff. Charles L. Solomont for Andrew Nelson. Christopher P. Litterio for Steven Ricciardi & another. GRAINGER, J. The plaintiff, Lawrence Genovesi, appeals from an order entered by a judge in the Superior Court allowing the defendants’ motions to dismiss his third amended complaint on statute of limitations grounds. Factual background. We recite those facts alleged in the complaint that plausibly suggest entitlement to relief, taking them as true for purposes of our review of the judge’s ruling on the motion to dismiss. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). In 2003 and 2004, Genovesi, who then was serving as board chair at Network Engines, Inc., realized a cash gain of approximately $ 3 million from his company’s stock participation plan. At the time, his home was encumbered by a $ 1.5 million mortgage subject to a prepayment penalty. Accordingly, Genovesi sought a low-risk liquid investment to ensure he would have cash on hand to discharge the mortgage when the prepayment penalty period expired. Genovesi, an unsophisticated investor, consulted with his financial advisor, Andrew Nelson, at Lehman Brothers, Inc. (Lehman), to identify an appropriate investment vehicle for his cash holdings. Nelson recommended that Genovesi invest in a collateralized debt obligation known as “Paragon CDO.” Nelson told Genovesi that the Paragon CDO investment presented low risk, similar to a United States Treasury or municipal bond. Nelson further represented that the Paragon CDO was comprised of AAA-rated debt and that Genovesi’s risk was limited only to the yield. At Nelson’s recommendation, Genovesi met with two additional Lehman sales agents, Steven Ricciardi and Gannon McCaffery. Ricciardi and McCaffery also advised Genovesi that the Paragon CDO was low risk, was comprised of AAA-rated debt, and that the risk profile was similar to that of a United States Treasury or municipal […]