Posts tagged "Ortiz"

Commonwealth v. Ortiz (Lawyers Weekly No. 10-026-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12273   COMMONWEALTH  vs.  ANTHONY C. ORTIZ.       Hampden.     October 3, 2017. – February 12, 2018.   Present (Sitting at Greenfield):  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Constitutional Law, Search and seizure.  Search and Seizure, Motor vehicle, Consent, Fruits of illegal search.  Consent.  Evidence, Result of illegal search.       Indictments found and returned in the Superior Court Department on March 25, 2015.   A pretrial motion to suppress evidence was heard by Edward J. McDonough, Jr., J.   An application for leave to prosecute an interlocutory appeal was allowed by Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.  The Supreme Judicial Court granted an application for direct appellate review.     Cynthia Cullen Payne, Assistant District Attorney (Bethany Lynch, Assistant District Attorney, also present) for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant.     GANTS, C.J.  In this case we must decide whether a driver’s consent to allow the police to search for narcotics or firearms “in the vehicle” authorizes a police officer to search under the hood of the vehicle and, as part of that search, to remove the vehicle’s air filter.  We hold that it does not.  A typical reasonable person would understand the scope of such consent to be limited to a search of the interior of the vehicle, including the trunk.  Because the police here exceeded this scope by searching under the hood and removing the air filter, and because the search was not otherwise supported by probable cause and was not a lawful inventory search, the Superior Court judge’s order granting the defendant’s motion to suppress is affirmed. Background.  We summarize the facts as found by the motion judge, supplemented by uncontroverted evidence that the judge explicitly or implicitly credited.  See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008).  On January 23, 2015, Officer Jared Hamel and Detective Boyle[1] of the Holyoke police department were on patrol in an unmarked police cruiser when they heard loud music coming from a vehicle.  The officers determined that the loud music posed a public safety hazard under a local ordinance that prohibits excessively loud music in a motor vehicle.  Officer Hamel activated the […]

Read more...

Posted by Massachusetts Legal Resources - February 12, 2018 at 4:22 pm

Categories: News   Tags: , , , ,

Commonwealth v. Ortiz (Lawyers Weekly No. 11-168-15)

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-927                                        Appeals Court COMMONWEALTH  vs.  JUAN ELADIO ORTIZ.     No. 14-P-927. Suffolk.     June 1, 2015. – October 26, 2015.   Present:  Sullivan, Maldonado, & Massing, JJ. Controlled Substances.  Practice, Criminal, Motion to suppress. Search and Seizure, Motor vehicle, Inventory, Container. Constitutional Law, Search and seizure.       Indictments found and returned in the Superior Court Department on March 27, 2013.   A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J., and a motion for reconsideration was considered by him.   An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.     David D. McGowan, Assistant District Attorney, for the Commonwealth. Eduardo Antonio Masferrer for the defendant.     MALDONADO, J.  The Commonwealth brings this interlocutory appeal challenging the suppression, after an evidentiary hearing, of cocaine and of any postarrest statements.  The Commonwealth contends that because a State trooper lawfully stopped and arrested the defendant for failing to signal before switching lanes and for driving with a suspended Massachusetts license, the trooper’s postarrest warrantless inventory search of the contents of the defendant’s vehicle, specifically a backpack that was in the vehicle, was proper and, therefore, it was error for the judge to allow the motion to suppress.  The motion judge concluded that the trooper undertook the inventory search, after stopping and arresting the defendant, as a pretext to conduct a search for investigative purposes.  We affirm the judge’s well-reasoned order of suppression. Facts.  We summarize the judge’s findings.  See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007); Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).  The defendant, Juan Eladio Ortiz, became the subject of surveillance in a Drug Enforcement Agency task force (DEA) investigation into cocaine trafficking.  In the course of their investigation, the DEA agents discovered that the defendant’s Massachusetts driver’s license and right to operate a motor vehicle in Massachusetts had been suspended, rendering the defendant subject to arrest at any point when he drove a motor vehicle in Massachusetts. The agents waited until the morning of February 28, 2013, when — according to an undisclosed source — the defendant would be transporting a kilogram of cocaine, to set in motion a plan for the defendant’s […]

Read more...

Posted by Massachusetts Legal Resources - October 26, 2015 at 7:09 pm

Categories: News   Tags: , , , ,

Ortiz v. Examworks, Inc. (Lawyers Weekly No. 10-036-15)

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-11584   FLOR ORTIZ[1]  vs.  EXAMWORKS, INC.[2] Suffolk.     November 3, 2014. – March 3, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Insurance, Motor vehicle personal injury protection benefits. Motor Vehicle, Insurance. Doctor, License to practice medicine. Statute, Construction. Privacy. Consumer Protection Act, Unfair or deceptive act. Practice, Civil, Complaint, Motion to dismiss. Words, “Physician.”       Civil action commenced in the Superior Court Department on September 7, 2012.   A motion to dismiss was heard by Thomas P. Billings, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.   Matthew T. LaMothe (Robert E. Mazow with him) for the plaintiff. Mark J. Ventola for the defendant. Matthew Iverson & Justin A. Brown, for Premier Insurance Company of Massachusetts, amicus curiae, submitted a brief. David O. Brink, Douglas R. Tillberg, & Melissa C. Buynell, for Government Employees Insurance Company, amicus curiae, submitted a brief.     BOTSFORD, J.  The third paragraph of G. L. c. 90, § 34M (§ 34M), the “personal injury protection” (PIP) statute, provides in part that an injured person claiming PIP benefits “shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required” in order “to assist in determining the amounts due” (emphasis added).  The threshold question in this case is the meaning of the word “physicians” in this provision.  More particularly, the question is whether the word “physicians” refers solely to medical doctors licensed under G. L. c. 112, § 2, or whether the term also includes additional types of licensed health care practitioners.  We interpret the statute to intend the broader definition of the word because it is the one most consonant with the statutory purpose.  Adopting this interpretation, we affirm the order of a Superior Court judge dismissing the plaintiff’s complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), but for somewhat different reasons from those that the judge provided. Facts.[3]  In June of 2011, the plaintiff, Flor Ortiz, was injured in an automobile accident in Massachusetts while riding in a car that Progressive Insurance Company (Progressive) insured.  Following the accident, Ortiz notified Progressive that he sought PIP benefits available under the insurance policy to pay for medical expenses that resulted from the accident.[4]  Progressive then engaged the defendant, […]

Read more...

Posted by Massachusetts Legal Resources - March 3, 2015 at 10:04 pm

Categories: News   Tags: , , , , ,

Commonwealth v. Ortiz (Lawyers Weekly No. 10-189-14)

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-11426   COMMONWEALTH  vs.  LUIS ORTIZ. Middlesex.     October 10, 2014. – November 26, 2014.   Present:  Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.     Homicide.  Firearms.  Practice, Criminal, Capital case.  Self-Defense.       Indictments found and returned in the Superior Court Department on June 24, 2010.   The cases were tried before Richard T. Tucker, J.     Dana Alan Curhan for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.     LENK, J.  The defendant appeals from his conviction of murder in the first degree, on a theory of deliberate premeditation, in the shooting death of Philip Meltzer.  Although the defendant concedes that the evidence was sufficient to support the jury’s verdict, and does not suggest that any error occurred at trial, he contends that the verdict was against the weight of the evidence.  The defendant asks that we exercise our power under G. L. c. 278, § 33E, to order a new trial or to reduce his conviction to a lesser degree of guilt.  Having reviewed the entire record, we decline to do so, and affirm the defendant’s conviction. Because the defendant maintains that the verdict was against the weight of the evidence, we summarize that evidence without drawing all inferences favorable to the Commonwealth.  See Commonwealth v. Franklin, 465 Mass. 895, 896 (2013). On May 29, 2010, the defendant’s sister, Angelie Ortiz,[1] was kidnapped by her former boy friend, Gilberto Cartagena.  Cartagena trapped Angelie and their two year old son in a van and drove to the Lowell home of his acquaintance, Timothy Brown.  Brown got into the van with Angelie and Cartagena and drove them to Lawrence.  Brown had given Cartagena a gun, and on the way to Lawrence, Cartagena pointed the gun at different parts of Angelie’s body, including her genitals, and threatened to kill her. At some point, Angelie inadvertently dialed her brother’s telephone number.  A resulting message on the defendant’s telephone’s voicemail recorded Angelie crying and screaming for several minutes. In Lawrence, Angelie escaped with her son.  She arranged for the defendant to meet them, and the defendant drove them to Angelie’s aunt’s home.  Angelie told the defendant that Cartagena had kidnapped her and her son and had threatened her with a gun. In the early hours of May 30, 2010, the defendant picked up Angelie and their cousin, Luis Fontanez.[2]  […]

Read more...

Posted by Massachusetts Legal Resources - November 26, 2014 at 5:21 pm

Categories: News   Tags: , , , ,

Commonwealth v. Ortiz (Lawyers Weekly No. 10-177-13)

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‑11298   COMMONWEALTH  vs.  LUIS ORTIZ.       Norfolk.     May 9, 2013.  ‑  September 27, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Controlled Substances.  Practice, Criminal, Stipulation, Presumptions and burden of proof.  Rules of Criminal Procedure.       Complaint received and sworn to in the Quincy Division of the District Court Department on July 7, 2010.   The case was tried before Mark S. Coven, J.   The Supreme Judicial Court granted an application for direct appellate review.     Robert L. Sheketoff for the defendant. Pamela L. Alford, Assistant District Attorney, for the Commonwealth.       BOTSFORD, J.  The defendant appeals from his convictions of distribution of a class B controlled substance, G. L. c. 94C, § 32A (c), and committing a drug offense within a school zone, G. L. c. 94C, § 32J.  The trial took place before a jury in 2011, more than two years after the United States Supreme Court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).  Before trial, the defendant’s trial counsel orally stipulated that the substance at issue was cocaine and both the Commonwealth and defendant effectively treated this as an established fact during trial, but the jury only became aware of the stipulation itself when the judge spoke of it during his final charge to the jury.  The defendant appeals from his convictions, arguing, among other claims, that because the stipulation never was presented to the jury, the Commonwealth failed to prove that the substance was cocaine and his motion for a required finding of not guilty should have been allowed.[1]  In a related vein, the defendant contends that any stipulation to an element of the crime charged must be recorded in a writing and signed by the defendant or at least the subject of a colloquy between the defendant and the trial judge, and the use of his trial counsel’s oral stipulation without any writing signed by the defendant, or any judicial colloquy, constituted error requiring a new trial.   To date, we have not established any particular method for the parties in a criminal case to handle trial stipulations about the existence of an element of a crime or of a material fact more generally.  Even if there were error in the manner the stipulation was handled in the present case, where the defendant […]

Read more...

Posted by Massachusetts Legal Resources - September 27, 2013 at 8:43 pm

Categories: News   Tags: , , , ,

Commonwealth v. Ortiz (Lawyers Weekly No. 11-115-13)

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‑456                                                                              Appeals Court   COMMONWEALTH  vs.  JASON ORTIZ.     No. 12‑P‑456. Essex.     December 7, 2012.  ‑  September 20, 2013. Present:  Cypher, Brown, & Cohen, JJ.     Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of confession.  Constitutional Law, Admissions and confessions, Voluntariness of statement.     Indictments found and returned in the Superior Court Department on May 28, 2010.   A pretrial motion to suppress evidence was heard by Gary V. Inge, J.   An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.     Ronald DeRosa, Assistant District Attorney, for the Commonwealth. James B. Krasnoo for the defendant.       COHEN, J.  The defendant stands indicted and is awaiting trial on charges of murder in the first degree (G. L. c. 265, § 1), armed robbery (G. L. c. 265, § 17), and carrying a dangerous weapon (G. L. c. 269, § 10), arising from the shooting of Luis Rodriguez at a party in Haverhill.  After an evidentiary hearing, a judge of the Superior Court allowed, in part, the defendant’s motion to suppress statements made during an interview with police.  Having obtained leave from a single justice of the Supreme Judicial Court, the Commonwealth brings this interlocutory appeal. Like the motion judge, we conclude that the nineteen year old defendant’s will was overborne by improper police interrogation tactics.  Those tactics included misrepresenting statements given by witnesses; informing the defendant that the interview was his “last chance” to tell his story; and assuring the defendant, who had been steadfast in denying that he had given the suspected shooter a gun, that he would not be culpable if the defendant had given the shooter the gun for a purpose other than to rob or kill the victim and that the shooter had acted like a “cowboy.”  However, unlike the motion judge, we further conclude that suppression is required of all statements made once the defendant’s will was overborne, and not merely selective statements pertaining to the gun. 1.  Standard of review.  The evidence before the motion judge consisted of the testimony of State Trooper Steven O’Connor at the motion hearing, the video recording of the defendant’s interview and a transcript thereof, and transcripts of […]

Read more...

Posted by Massachusetts Legal Resources - September 21, 2013 at 12:08 am

Categories: News   Tags: , , , ,