Posts tagged "Smith"

Newton Presbyterian Church, et al. v. Smith, et al. (Lawyers Weekly No. 09-015-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. _ ______ ______ ______ _ 1784CV00804-BLS2 NEWTON PRESBYTERIAN CHURCH and THE PRESBYTERY OF BOSTON v. GARRETT SMITH and Others and NEWTON COVENANT CHURCH v. PRESB_Y__T_E_R__I_A_N__ C__H_U__R_C__H_ (USA) MEMORANDUM AND ORDER ALLOWING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION The parties to this lawsuit dispute who is entitled to use and control property belonging to the Newton Presbyterian Church (“NPC”), which is a member of the national Presbyterian denomination known as the Presbyterian Church (USA) (the “PCUSA”). Judge Sanders recently allowed Plaintiffs’ motion for partial summary judgment, ruling that they are entitled to enforce a ruling by the Presbytery of Boston that the remaining members of the NPC are entitled to use and control the disputed property, and that the break-away church members that now call themselves the Newton Covenant Church are not. Plaintiffs have now moved for a preliminary injunction that would begin to enforce Judge Sanders’ dispositive ruling by ordering Defendants to vacate the church’s real property, return all other property, and refrain from using the NPC property in a manner inconsistent with the prior determination of the Presbytery. For the reasons discussed below, the Court concludes that Plaintiffs are entitled to such relief. It will therefore ALLOW the motion and issue a preliminary injunction in the form requested by the Plaintiffs. Plaintiffs will remain free to let Defendants continue to worship in and make other use of the NPC building, at least for now. But that is for the Plaintiffs to decide. Defendants have no right to continue their use and occupation of the NPC property, now that Judge Sanders has determined that the Presbytery’s decision must be respected and enforced. – 2 – 1. Background. A majority of the NPC’s members voted in January 2017 to break away from the PCUSA and affiliate instead with the Evangelical Covenant Church. The Presbytery of Boston is the governing body for all PCUSA member churches in this area. It determined that the loyal Presbyterian members of the NPC are the true church, and that the break-away majority were no longer members of the NPC and had no power to take “any action purporting to affect the ownership, possession, use or status of the church property” or to change NPC’s name. The break-away majority, led by the Defendants, ignored these directions, changed the sign outside the church building to read “Newton Covenant Church,” and has occupied, kept possession, and been controlling use of all church property. The NPC and the Presbytery of Boston then brought this suit, seeking declaration “that the ecclesiastical determination of the Presbytery regarding the true NPC and who among its members is entitled to the use and control over the NPC […]

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Posted by Massachusetts Legal Resources - March 1, 2018 at 1:56 am

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Newton Presbyterian Church, et al. v. Smith, et al. (Lawyers Weekly No. 09-048-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2017-0804-BLS 2 NEWTON PRESBYTERIAN CHURCH and THE PRESBYTERY OF BOSTON Plaintiffs vs. GARRETT SMITH, et al.1 Defendants and NEWTON COVENANT CHURCH, Third Party Plaintiff, vs. PRESBYTERIAN CHURCH (USA), Third Party Defendant MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT This action arises from a dispute over the ownership of property of the Newton Presbyterian Church (“NPC”), a member of the national Presbyterian denomination known as the Presbyterian Church (USA) (the “PCUSA”). In January 2017, a breakaway faction within the NPC led by the individual defendants conducted a vote purporting to effect the departure of NPC from the Presbyterian Church in order to affiliate with a conservative evangelical organization called the Evangelical Covenant Church (“ECC”). Calling themselves the “Newton Covenant 1 Carmen Aldinger, Anders Brownworth, Thomas Devol, Harold Jones, Doris Kellom, Kristen Lucken, Roger Mark, Rosalind Picard, Daniel Romaine, Beatrice Yankey and the Newton Covenant Church. 2 Church” (“NCC”), the defendants assumed control over NPC’s bank accounts and other property, including the church building located at 75 Vernon Street in Newton. The Presbytery of Boston is the governing body for all PCUSA member churches in the greater Boston area, including the NPC. Pursuant to PCUSA’s Constitution (which includes provisions to deal with schisms within congregations), the Presbytery has determined that the loyal Presbyterian members of the NPC are the “true church” and that the NCC members controlled by the breakaway faction are no longer members of the NPC, with no power to control NPC property. This lawsuit seeks enforcement of this determination together with damages. The matter is now before the Court on plaintiffs’ Motion for Partial Summary Judgment on Count I seeking declaratory relief. This Court concludes that the motion must be Allowed, for following reasons. BACKGROUND In support of their motion, plaintiffs primarily rely on documents, the authenticity of which is not in question. Those documents together with other undisputed facts reveal the following. 2 A. The PCUSA Hierarchical Structure The PCUSA is a Protestant Christian denomination consisting of congregations and a hierarchy of four governing councils that make up “one church.” The four governing councils are — in ascending order–the session, the presbytery, the synod, and the General Assembly. A session, elected by a congregation, governs at the congregational level. A presbytery, made up of clergy and elders from congregations in a specific geographical area, governs the churches in 2 Although purporting to dispute most of the facts cited in the Rule 9(A)(b)(5) statement proffered by the plaintiffs, the defendants do not cite to any facts in the summary judgment record nor do they allege any particular facts to show that a genuine dispute indeed exists. […]

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Posted by Massachusetts Legal Resources - December 7, 2017 at 12:03 am

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Commonwealth v. Smith (Lawyers Weekly No. 11-138-17)

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-406                                        Appeals Court   COMMONWEALTH  vs.  ANTONIO A. SMITH.     No. 16-P-406.   Plymouth.     April 5, 2017. – October 27, 2017.   Present:  Meade, Hanlon, & Maldonado, JJ.     Controlled Substances.  Evidence, Expert opinion.  Witness, Expert.       Indictment found and returned in the Superior Court Department on July 11, 2014.   The case was tried before Robert C. Cosgrove, J.     Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth.     HANLON, J.  After a jury trial, the defendant was convicted of possession of a class B substance, crack cocaine, with intent to distribute.[1]  He now argues that the improper admission of an expert witness’s “profiling” testimony impinged on the jury’s fact-finding role and created a substantial risk of a miscarriage of justice.  For the following reasons, we affirm. Background.  We summarize the facts as the jury could have found them, based upon the evidence admitted.  On April 22, 2014, officers of the Brockton Police narcotics unit were watching an area near the intersection of North Cary Street and East Ashland Street.  At 9:30 A.M., Detective Mercurio observed a green Volvo driving slowly; the driver was talking on a cellular telephone while leaning her head out of the window and looking around at nearby parking lots.  After driving back and forth through the intersection, the Volvo came to a stop in the parking lot of a nearby liquor store that was closed.  Neither the driver, nor the other occupants, a male and a child in the backseat, got out of the car.  A few minutes later, the officers saw the defendant walking down North Cary Street; he went directly to the Volvo and got into the front passenger seat. About one minute later, the Volvo drove out of the parking lot and south on North Cary Street, turning onto Ashfield Drive, then stopping at an intersection on Anawan Street, a short distance from the original pick up location; the defendant got out of the car there.  Shortly afterwards, Mercurio drove his unmarked police car past the Volvo, which was stopped at the next intersection.  The defendant, having left the Volvo, was walking in the travel lane of the street in Mercurio’s direction; the detective then stopped his car and said “hey,” and the defendant walked […]

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Posted by Massachusetts Legal Resources - October 27, 2017 at 6:03 pm

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Smith, et al. v. City of Westfield, et al. (Lawyers Weekly No. 10-155-17)

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-12243   VIRGINIA B. SMITH & others[1]  vs.  CITY OF WESTFIELD & others.[2]       Hampden.     April 6, 2017. – October 2, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3]     Municipal Corporations, Parks, Use of municipal property.  Parks and Parkways.  Constitutional Law, Taking of property.  Due Process of Law, Taking of property.       Civil action commenced in the Superior Court Department on April 27, 2012.   The case was heard by Daniel A. Ford, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Thomas A. Kenefick, III (Mary Patryn also present) for the plaintiffs. Seth Schofield, Assistant Attorney General, for the Commonwealth, amicus curiae. Anthony I. Wilson (John T. Liebel also present) for city of Westfield. The following submitted briefs for amici curiae: Luke H. Legere & Gregor I. McGregor for Massachusetts Association of Conservation Commissions, Inc. Edward J. DeWitt for Association to Preserve Cape Cod, Inc. Sanjoy Mahajan, pro se. Phelps T. Turner for Conservation Law Foundation. Jeffrey R. Porter & Colin G. Van Dyke for Trustees of Reservations & others.     GANTS, C.J.  Article 97 of the Amendments to the Massachusetts Constitution, approved by the Legislature and ratified by the voters in 1972, provides that “[l]ands and easements taken or acquired” for conservation purposes “shall not be used for other purposes or otherwise disposed of” without the approval of a two-thirds roll call vote of each branch of the Legislature.  The issue on appeal is whether a proposed change in use of municipal parkland may be governed by art. 97 where the land was not taken by eminent domain and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes.  We conclude that there are circumstances where municipal parkland may be protected by art. 97 without any such recorded restriction, provided the land has been dedicated as a public park.  A city or town dedicates land as a public park where there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park.  Because the municipal land at issue in this case has been dedicated as a […]

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Posted by Massachusetts Legal Resources - October 2, 2017 at 4:58 pm

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Smith, et al. v. Unidine Corporation (Lawyers Weekly No. 12-097-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION Nos. 2015-2667 and 2015-3417 consolidated with No. 2016-3297 1 DONALD SMITH and MATTHEW ALES vs. UNIDINE CORPORATION MEMORANDUM AND ORDER ON SUMMARY JUDGMENT In this action under the Massachusetts Wage Act, G.L. c. 149, §§ 148, 150 (the “Act”), the employer, Unidine Corporation, and plaintiffs, former employees, cross move for summary judgment. The principal issue presented is whether the former employees are entitled to recover for the non-payment of commissions and a bonus. The employer says they are not because of the terms and conditions of the governing agreement for calculating and paying commissions and bonuses. The former employees assert that they should be paid the commissions as a matter of law under the Act.2 The resolution of the motion turns on both the terms and conditions of the written agreement regarding commissions and bonuses as well as the terms of the Act. The Act requires 1 These actions are consolidated into the lead case, Civil Action No. 2016-3297 BLS1. The plaintiff in No. 2016-3297 is Correna Lukas. Unidine and Lukas do not move for summary judgment in the lead case. 2 Plaintiffs also assert claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and “quantum meruit/unjust enrichment.” All claims are for nonpayment of commissions or bonus. 1 the timely payment of wages. Wages include commissions “when the amount of such commissions . . . has been definitely determined and has become due and payable . . . .” Id. The terms of the written agreement determine what has been “definitely determined” and what is “due and payable.” BACKGROUND The following facts, drawn from the parties’ Statement of Undisputed Material Facts, are undisputed. Unidine is in the business of providing dining management services to institutional clients such as hospitals, senior living facilities, universities, etc. Unidine employs Directors of Business Development (“DBDs”) to sell the services of Unidine and to develop and maintain relationships with client customers as the contracts with the client customers are performed. Plaintiffs, Donald Smith and Matthew Ales, were employed by Unidine as DBDs.3 DBDs earn a base salary and are eligible to participate in Unidine’s 2014 Sales Commission and Bonus Plan (the “Plan”) subject to its terms and conditions. DBDs, including Smith and Ales, acknowledge and sign the Plan each year. All of plaintiffs’ claims arise under the 2014 Plan. The Plan applies to contracts with client customers executed in 2014. Smith began work at Unidine on April 14, 2014, as an at-will employee, in the position of DBD. He was paid a base salary of $ 125,000 per year, and a signing bonus of $ 25,000. Smith was terminated […]

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Posted by Massachusetts Legal Resources - August 4, 2017 at 11:22 pm

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Sullivan v. Smith (Lawyers Weekly No. 11-174-16)

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-1626                                       Appeals Court   EARLINE SULLIVAN  vs.  CRAIG S. SMITH.     No. 15-P-1626.   Hampden.     September 20, 2016. – December 16, 2016.   Present:  Meade, Carhart, & Kinder, JJ.     Parent and Child, Child support.  Probate Court, General equity power, Notice.  Jurisdiction, Equitable.  Uniform Interstate Family Support Act.  Jurisdiction, Personal.  Due Process of Law, Jurisdiction over nonresident.  Practice, Civil, Service of process.  Notice.       Complaint in equity filed in the Hampden Division of the Probate and Family Court Department on November 12, 2014.   Judgment was entered by David G. Sacks, J.; a motion for postjudgment relief, filed on July 31, 2015, was considered by him; a motion to dismiss, filed on September 3, 2015, was heard by him; and a corrected order lifting a stay on child support payments was entered by him.     Ann E. Dargie for the defendant.     KINDER, J.  Craig S. Smith (Smith or father), a Georgia resident, appeals from a judgment and orders of the Probate and Family Court ordering him to pay postminority child support to Earline Sullivan (Sullivan or guardian), the former guardian of Smith’s unemancipated eighteen year old son.  On appeal, Smith argues that the Probate and Family Court lacked personal jurisdiction over him, and that the judgment is therefore void.  He also challenges the sufficiency of both service of the complaint and notice of the hearing at which the judgment entered.  We affirm, concluding that the long-arm provisions of the Uniform Interstate Family Support Act (UIFSA), G. L. c. 209D, § 2-201,[1] provide personal jurisdiction over Smith, that service of process was sufficient, and that he had adequate notice of the hearing. Background.  We summarize the relevant factual and procedural history from the undisputed facts set forth in the judge’s orders, as well as the verified complaint and the relevant dockets.  See Eccleston v. Bankosky, 438 Mass. 428, 429 (2003).  See also Brookline v. Goldstein, 388 Mass. 443, 447 (1983) (both trial judge and appellate court may take judicial notice of court records in related action); Jarosz v. Palmer, 436 Mass. 526, 530 (2002). Smith is the father of a son born on July 13, 1996.  Smith acknowledged paternity in an action brought first by the mother pursuant to G. L. c. 209C, and later by the Department of Revenue pursuant to G. L. c. 119A and G. L. c. 209C.  Smith was ordered […]

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Posted by Massachusetts Legal Resources - December 16, 2016 at 6:13 pm

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Commonwealth v. Smith (Lawyers Weekly No. 11-126-16)

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-413                                        Appeals Court   COMMONWEALTH  vs.  BRIAN SMITH.     No. 15-P-413.   Suffolk.     June 9, 2016. – September 15, 2016.   Present:  Carhart, Maldonado, & Henry, JJ.     Practice, Criminal, New trial, Disclosure of evidence.  Privileged Communication.  Evidence, Privileged communication, Motive, Disclosure of evidence.  Attorney at Law, Attorney-client relationship.  Cooperation with Government Agents.       Indictments found and returned in the Superior Court Department on May 3, 2005.   A motion for a new trial, filed on February 21, 2012, was considered by Janet L. Sanders, J.     Michelle Menken for the defendant. Zachary Hillman, Assistant District Attorney, for the Commonwealth.     CARHART, J.  The defendant appeals from the denial of his motion for a new trial without an evidentiary hearing.  Because we conclude that the defendant has raised several substantial issues, we remand the case to the Superior Court for an evidentiary hearing. Background.  1.  The trial.  On August 18, 2006, the defendant was convicted by a Suffolk County Superior Court jury of armed home invasion, armed assault with intent to murder, and unlawful possession of a firearm (the Suffolk County case).  His convictions were affirmed on appeal.  Commonwealth v. Smith, 75 Mass. App. Ct. 196 (2009) (Smith I), S.C., 458 Mass. 1012 (2010).  We summarize the facts underlying the convictions, which are set forth in full in Smith I. On the evening of March 13, 2005, Kenneth Lowe and his girlfriend Niki Semnack were in Lowe’s apartment in the Charlestown section of Boston, where Lowe had spent much of the evening ingesting “crack” cocaine.  Around 11:30 P.M., Lowe heard a knock at the door and saw the defendant through the peephole.  Lowe and the defendant had been friends for about eight months, and they usually smoked crack cocaine together.  Lowe opened the door, and the defendant told him that a friend was downstairs and wanted Lowe to “take him up the street.”[1]  Lowe declined, and, at that point, a white man wearing a “hoodie” with a bandana covering his face ran up the stairs holding a large silver gun.  Smith I, supra at 197. “Lowe immediately tried to close the door, but the defendant placed his foot in the doorway, leaving a two- to three-inch gap.  Lowe observed the masked man reach over the defendant and insert the gun into the apartment through the […]

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Posted by Massachusetts Legal Resources - September 15, 2016 at 10:18 pm

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Smith, et al. v. City of Westfield, et al. (Lawyers Weekly No. 111-08-16)

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-773                                        Appeals Court   VIRGINIA B. SMITH & others[1]  vs.  CITY OF WESTFIELD & others.[2]     No. 15-P-773.   Hampden.     April 14, 2016. – August 25, 2016.   Present:  Green, Trainor, & Milkey, JJ.     Municipal Corporations, Parks, Use of municipal property.  Parks and Parkways.  Constitutional Law, Taking of property.  Due Process of Law, Taking of property.     Civil action commenced in the Superior Court Department on April 27, 2012.   The case was heard by Daniel A. Ford, J.     Thomas A. Kenefick, III (Mary Patryn with him) for the plaintiffs. Anthony I. Wilson (John T. Liebel with him) for the defendants.   TRAINOR, J.  The plaintiffs, Virginia B. Smith and other Westfield residents (collectively, residents), appeal from a judgment for the defendants, the city of Westfield and others (collectively, Westfield), which vacated a preliminary injunction that, in effect, prohibited a school construction project at the John A. Sullivan Memorial Playground (playground).[3]  The residents challenge the judgment for two reasons.  First, they argue that the playground was sufficiently dedicated to invoke the protection of art. 97 of the Amendments to the Massachusetts Constitution, notwithstanding the fact that no documents were ever recorded that dedicated the land for art. 97 purposes.[4]  Second, the residents contend that the judge erred in concluding that a Statewide comprehensive outdoor recreation plan (SCORP) contradicts Mahajan v. Department of Envtl. Protection, 464 Mass. 604 (2013).  We affirm, as we conclude that the playground has not been designated for an art. 97 purpose in a manner sufficient to invoke its protection. Background.  This matter came before a Superior Court judge on cross motions for judgment based on an agreed statement of facts.  We summarize those facts, reserving some facts for later discussion.  On November 13, 1939, Westfield took title to the land in question for the purpose of satisfying a tax debt pursuant to G. L. (Ter. Ed.) c. 60, §§ 53 and 54.  In 1957, Westfield passed an ordinance recognizing the land as a playground and naming it the John A. Sullivan Memorial Playground.  In 1979, the Federal Land and Water Conservation Fund (LWCF) awarded Westfield a grant that, in part, was used to upgrade the playground.  A SCORP was required for Westfield to be eligible for that grant.  See 16 U.S.C. § 460l-8(d) (1976).[5]  The SCORP, which the residents assert applies to this matter, states:  […]

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Posted by Massachusetts Legal Resources - August 25, 2016 at 9:49 pm

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Commonwealth v. Smith (Lawyers Weekly No. 10-034-16)

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-11723   COMMONWEALTH  vs.  DONOVAN K. SMITH.       Worcester.     November 6, 2015. – March 11, 2016.   Present:  Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.     Homicide.  Robbery.  Attempt.  Felony-Murder Rule.  Constitutional Law, Admissions and confessions, Assistance of counsel.  Evidence, Admissions and confessions, Videotape.  Practice, Criminal, Admissions and confessions, Assistance of counsel, Capital case.       Indictments found and returned in the Superior Court Department on December 7, 2010.   A pretrial motion to suppress evidence was heard by Janet Kenton-Walker, J., and the cases were tried before John S. McCann, J.     Aziz Safar for the defendant. Susan M. Oftring, Assistant District Attorney, for the Commonwealth.     BOTSFORD, J.  A Superior Court jury found the defendant guilty of the attempted armed robbery and murder in the first degree of Michelle Diaz on theories of extreme atrocity or cruelty and felony-murder.  In this direct appeal from his convictions, the defendant challenges the admission in evidence of his videotaped statement to the police, and the admission of an enhanced recording of a statement made by the defendant while he was left alone during the police interrogation.  He requests relief pursuant to G. L. c. 278, § 33E.  We conclude that the failure of the police to honor the defendant’s right to terminate questioning, a claim the defendant did not raise below, created a substantial likelihood of a miscarriage of justice and requires the reversal of the defendant’s convictions; the defendant is entitled to a new trial. 1.  Background.  From the evidence presented at trial, the jury could have found the following.  On August 24, 2010, at approximately 12:45 P.M., Sara Ventura parked her automobile on Fairfax Road in Worcester.  As she was getting out of the vehicle, she heard a loud scream and looked in the direction of the scream.  She saw nothing, but a few seconds later, she heard what sounded like a gunshot.  She then saw a young African-American man running very quickly down the street.[1]  Around the same time, Carlos Tumer, who was in his apartment on Fairfax Road, heard a “pop” and looked outside the window, where he saw a woman, later identified as the victim, sitting in the driver’s seat of a Lexus automobile with the front passenger’s door open.  Tumer also noticed a dark-skinned man wearing a black shirt […]

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Posted by Massachusetts Legal Resources - March 11, 2016 at 7:08 pm

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Commonwealth v. Smith (Lawyers Weekly No. 10-056-15)

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-11624   COMMONWEALTH  vs.  RASHIDI J. SMITH. Plymouth.     December 4, 2014. – April 9, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide.  Constitutional Law, Waiver of constitutional rights by juvenile, Admissions and confessions.  Evidence, Admissions and confessions.  Practice, Criminal, Admissions and confessions.  Supreme Judicial Court, Superintendence of inferior courts.   Indictment found and returned in the Superior Court Department on August 17, 2007.   A pretrial motion to suppress evidence was heard by Jeffrey A. Locke, J., and the case was tried before him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Chauncey B. Wood for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. Rebecca Rose, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.     LENK, J.  The defendant appeals from his conviction of murder in the second degree in the death by shooting of fourteen year old Marvin Constant.  At the time of his arrest for the shooting, the defendant was seventeen years and five months old.  The Commonwealth’s evidence at trial included, among other things, incriminating statements that the defendant made to police after waiving his Miranda rights.  See Miranda v. Arizona, 384 U.S. 436 (1966).  The defendant sought, unsuccessfully, to suppress these statements.  He argues on appeal that their introduction at trial was error given our common-law rule that, ordinarily, a juvenile must be afforded a meaningful opportunity to consult with an “interested adult” before waiving his or her Miranda rights, since he did not have such an opportunity. The interested adult rule, as we have defined it to date, applies only to those who have not yet reached the age of seventeen.  Several years after the defendant was convicted, however, the Legislature enacted St. 2013, c. 84 (2013 act), which amended an array of statutory provisions to treat seventeen year olds as juveniles. The 2013 act does not affect the current case, both because it is prospective in its application and because it does not itself modify the interested adult rule, which is a creature of our common law.  We therefore affirm the defendant’s conviction.  Nevertheless, we take this opportunity to expand the reach of our rule to encompass seventeen year olds, but do so on a prospective basis.[1] 1.  Background.  a.  The […]

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Posted by Massachusetts Legal Resources - April 9, 2015 at 2:12 pm

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