Commonwealth v. Rivera (Lawyers Weekly No. 11-090-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-331 Appeals Court COMMONWEALTH vs. JAVIER RIVERA. No. 16-P-331. Bristol. April 5, 2017. – July 17, 2017. Present: Milkey, Sullivan, & Desmond, JJ. Possession of Burglarious Instruments. Constitutional Law, Identification. Due Process of Law, Identification. Identification. Practice, Criminal, Required finding, Motion to suppress, Argument by prosecutor. Complaint received and sworn to in the Fall River Division of the District Court Department on March 27, 2014. A pretrial motion to suppress evidence was heard by Kevin J. Finnerty, J., and the case was tried before him. Meghan K. Oreste for the defendant. Robert P. Kidd, Assistant District Attorney, for the Commonwealth. SULLIVAN, J. The defendant, Javier Rivera, appeals from his conviction of possession of a burglarious instrument, in violation of G. L. c. 266, § 49.[1] The defendant contends that (1) the evidence was insufficient to show that he possessed a burglarious instrument with intent to commit a crime, (2) the showup procedure was unnecessarily suggestive, and (3) the prosecutor argued facts not in evidence in his closing argument. We affirm. Sufficiency. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), a reasonable jury could find that on the night of March 27, 2014, at around 1:45 A.M., a witness saw two men across the street from his home. The street was otherwise deserted.[2] The men were standing in front of a convenience store, wearing dark clothing.[3] While one of the men was banging on the door with a bar or a crowbar, the other was standing facing the street and looking in both directions. Periodically, both men walked away to check the street. Eventually, they left and the witness called the police. When an officer arrived, he noticed that the door to the convenience store had been pried open at the bottom, and there was a softball-sized hole in the door. Another officer, who also arrived at the scene, drove around the immediate area with the car windows open searching for two men who fit the witness’s description. After driving for approximately ten minutes he saw two men in dark clothing about one-half mile from the store. The officer also heard “somebody drop some kind of metallic object, like a hard object fell on the ground” near the […]
Commonwealth v. Rivera (Lawyers Weekly No. 10-178-15)
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-11700 COMMONWEALTH vs. LUIS FERNANDO RIVERA, JR. October 29, 2015. Practice, Criminal, Postconviction relief, Disqualification of judge. The defendant, Luis Fernando Rivera, Jr., was convicted on two indictments charging murder in the first degree and one indictment charging unlawful carrying of a firearm. See Commonwealth v. Rivera, 424 Mass. 266 (1997), cert. denied, 525 U.S. 934 (1998). After we affirmed the convictions, a Superior Court judge denied the defendant’s motion for a new trial, and a single justice of this court, on December 14, 2004, denied his application for leave to appeal, pursuant to G. L. c. 278, § 33E. In May, 2014, the defendant filed a motion in the county court asking the same single justice to reconsider his 2004 ruling and, on reconsideration, to recuse himself and to assign the matter to a different justice. The single justice allowed the motion to reconsider, denied the request for recusal, and, on reconsideration, again denied the application for leave to appeal. The defendant appealed. In an unpublished order, we allowed this appeal to proceed as to the recusal issue only. We stated that it would be incumbent on the defendant to demonstrate that his request for recusal was timely, and that the single justice abused his discretion in denying the request.[1] Appealability of recusal ruling. A single justice’s denial of an application for leave to appeal pursuant to the gatekeeper provision of G. L. c. 278, § 33E, is “final and unreviewable.” See Commonwealth v. Companonio, 472 Mass. 1004, 1005 (2015), and cases cited (“It cannot be appealed to the full court; it is not subject to review under G. L. c. 211, § 3; and it cannot be collaterally attacked”). In very limited circumstances, however, involving certain types of motions that are ancillary to the gatekeeper application and “intended to enhance the likelihood that a single justice . . . , acting as gatekeeper, would allow [the defendant] to appeal from the denial . . . of his . . . motion for a new trial,” we have allowed the single justice’s rulings to be reviewed on appeal. Fuller v. Commonwealth, 419 Mass. 1002, 1003 (1994). See Parker v. Commonwealth, 448 Mass. 1021, 1023 n.3 (2007). The defendant’s request that the single justice recuse himself is such a motion. If it were otherwise, a defendant whose application was denied […]
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 […]
Commonwealth v. Rivera (Lawyers Weekly No. 11-058-13)
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 11‑P‑1674 Appeals Court COMMONWEALTH vs. JOHNNY RIVERA. No. 11‑P‑1674. Middlesex. February 6, 2013. ‑ May 7, 2013. Present: Trainor, Katzmann, & Sikora, JJ. Rape. Evidence, First complaint, Hearsay, Medical record, Relevancy and materiality. Practice, Criminal, Hearsay, Subpoena. Subpoena. Indictment found and returned in the Superior Court Department on November 29, 2007. A pretrial motion for the production of records was heard by Thomas A. Connors, J., and the case was tried before Thomas P. Billings, J. Amy M. Belger for the defendant. John T. Mulcahy, Assistant District Attorney, for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant on one indictment charging rape, G. L. c. 265, § 22(b).[1] The main issue of this appeal is the admissibility of first complaint testimony in circumstances in which the alleged victim had complained initially about the defendant’s physical abuse but then waited one week to complain about sexual abuse. The defendant contests also the trial judge’s admission of purported hearsay evidence and a separate judge’s pretrial denial of the defendant’s motion to subpoena the victim’s treatment records from a community health center. For the following reasons, we affirm. Background. The jury heard the following testimony. The victim and the defendant began dating in October, 2006. They moved into a hotel in December, 2006, and the next month into an apartment in Melrose. The victim paid for the furnishings of the apartment and paid all of the rent. Her young son lived with the couple. From December onward, the defendant asserted control over the victim. He took possession of her money, credit cards, identification cards, and keys. He would accompany her to the bank and force her to give him money. He took possession also of her cellular telephone and monitored her conversations by forcing her to talk on the “speaker phone.” The victim described a course of mental, verbal, physical, and sexual abuse. In February, 2007, he began to coerce sexual relations, including oral, vaginal, anal, and, on one occasion, digital penetration. The physical abuse included punching, kicking, and slapping, and resulted in bruises to her ribs, back, and head. The physical and sexual abuse continued even after the victim became pregnant in or about early May of 2007. On May 12, the defendant agreed to travel to the […]