Adams v. Adams (Lawyers Weekly No. 10-182-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11488 NICHOLAS C. ADAMS vs. NANCY W. ADAMS. October 17, 2013. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Nicholas C. Adams (husband), appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.[1] We affirm. In 2011, we considered the husband’s appeal from a judgment of divorce from his wife, Nancy W. Adams. See Adams v. Adams, 459 Mass. 361 (2011). We vacated that part of the judgment that presently valued the husband’s partnership interest in Wellington Management Company, LLP, and remanded the case for further proceedings “directed solely at valuing that interest” as consistent with our opinion. Id. at 394. In all other respects, we affirmed the divorce judgment. Id. The husband’s current appeal stems from certain subsequent orders issued in the trial court that the husband claims violate our remand order. After remand, the trial judge referred the case to a special master to determine the valuation issue. Among other things, the order stated that the special master would only hear from witnesses who had testified in the initial proceedings (either in the trial court or before the special master). The husband thereafter filed a petition with a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking relief from the order limiting witnesses because he wished to call a new expert witness. In essence, the husband argued that no basis existed to limit witnesses to those who had previously testified, and that nothing in our remand order required such a limitation. The Appeals Court single justice denied the petition. The husband later filed a second petition pursuant to G. L. c. 231, § 118, first par., seeking relief from a subsequent order of the trial judge denying his motion for an instruction to the special master to “not exceed or otherwise depart from the mandate of the SJC” and overruling his objection to a discovery order issued by the special master. This second petition was also denied. The husband then filed his G. L. c. 211, § 3, petition in the county court, where he continued to press the same arguments that he raised in his two petitions pursuant to G. L. c. 231, § 118, first par. — that he should be allowed to call a new expert witness […]
Commonwealth v. Liebenbow (Lawyers Weekly No. 11-126-13)
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‑2163 Appeals Court COMMONWEALTH vs. CARL B. LIEBENOW, JR.[1] No. 11‑P‑2163. Berkshire. March 27, 2013. ‑ October 17, 2013. Present: Rapoza, C.J., Cypher, Berry, Sikora, & Milkey, JJ. Larceny. Intent. Practice, Criminal, Affirmative defense, Waiver of trial by jury. Constitutional Law, Waiver of constitutional rights. Mistake. Complaint received and sworn to in the Pittsfield Division of the District Court Department on August 12, 2010. The case was heard by Fredric D. Rutberg, J. Elizabeth Caddick for the defendant. James F. Petersen, Assistant District Attorney, for the Commonwealth. BERRY, J. The defendant was convicted of larceny under $ 250 for the theft of steel pipes and metal plates from a construction site. G. L. c. 266, § 30. At a bench trial, the defendant claimed as an affirmative defense that he lacked the requisite specific intent to steal because he honestly believed that the metal property was abandoned. This defense was unsuccessful. The trial judge determined that the defendant’s stated belief that the pieces of metal were abandoned property — notwithstanding that these metal construction materials were being stored on private property posted with no trespassing signs — even if considered as honest in the defendant’s subjective mind, was not objectively reasonable based on the case evidence. A majority of this court, as reflected by the expanded panel, affirms the conviction. We discern no error in the trial judge’s determination of guilt. The record reflects that the judge understood the law of the affirmative defense of mistake of fact and abandonment in the context of a larceny charge, and correctly applied that law in finding the defendant guilty on the evidence presented. The dissent discerns error in the judge’s guilty finding only by postulating a new formulation of the affirmative defense of mistake and abandonment. That new formulation is that a defendant’s subjectively held honest belief that property is abandoned need not be reasonable and may, indeed, be totally unreasonable. Neither that formulation, nor the dissent’s criticism that the judge incorrectly rejected the abandonment defense in making his finding, supports a reversal of the larceny conviction in this case. 1. Background of the trial and guilty finding. The following is a brief summary of the trial evidence and entry of the guilty finding. The construction site from which the defendant took the […]
Commonwealth v. Halstrom (and seven companion cases) (Lawyers Weekly No. 11-125-13)
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‑1276 Appeals Court COMMONWEALTH vs. MELISSA HALSTROM (and seven companion cases[1]). No. 11‑P‑1276. Essex. May 2, 2013. ‑ October 11, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Prostitution. Deriving Support From Child Prostitution. Intent. Practice, Criminal, Argument by prosecutor, Instructions to jury, Opening statement, Severance. Evidence, Argument by prosecutor, Credibility of witness, Intent, Joint venturer, Statement of codefendant. Words, “Induce.” Indictments found and returned in the Superior Court Department on October 31 and December 5, 2007. The case was tried before Kathe M. Tuttman, J. Nicole M. Procida for Melissa Halstrom. Jennifer Marie Petersen for Anthony Gorgoglione. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. SULLIVAN, J. The defendants appeal from multiple convictions of inducing a minor to become a prostitute, G. L. c. 272, § 4A, and deriving support from a minor prostitute, G. L. c. 272, § 4B. Both defendants argue that the jury instructions were erroneous with regard to the definition of “inducement,” that there was insufficient evidence as to inducement, and that the prosecutor’s closing argument was improper. The defendant, Melissa Halstrom, contends that the instruction regarding deriving support from prostitution was erroneous. The defendant, Anthony Gorgoglione, argues that his motion to sever should have been granted and that the prosecutor’s opening statement impermissibly referenced excluded evidence. We affirm. Background. We summarize the facts of the case, leaving additional facts for later discussion as needed. The case involved three minors, Gail, Beth, and Maureen (collectively, girls), ages sixteen to seventeen, who the Commonwealth maintained were persuaded to participate in a prostitution business operated by Halstrom with the assistance of Gorgoglione. Gail had known Halstrom since 2005, when Halstrom dated her father. When Gail was “kicked out” of her house during her freshman year of high school in 2005, she stayed with Halstrom for about a month. She remained close to Halstrom and visited her frequently. In the summer of 2007, Gail again lived with her father. Gail also socialized with Halstrom. During this period, Gail lost her job at a coffee shop and was unable to find another position. After her father received an eviction notice, Gail told Halstrom that she was worried about her family’s ability to pay the rent. Upon learning of the eviction notice, Halstrom told Gail about her work as an escort, which she […]
Alford, et al. v. Boston Zoning Commission, et al. (Lawyers Weekly No. 11-124-13)
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‑1579 Appeals Court MARK ALFORD & others[1] vs. BOSTON ZONING COMMISSION & others.[2] No. 12‑P‑1579. Suffolk. May 8, 2013. ‑ October 9, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Boston. Zoning, Amendment of by‑law or ordinance, Appeal, Educational use, Hearing, Judicial review. Quasi‑Judicial Tribunal. Administrative Law, Adjudicatory proceeding, Conflict of interest, Hearing. Practice, Civil, Zoning appeal. Constitutional Law, Right to hearing. Civil action commenced in the Superior Court Department on July 9, 2009. The case was heard by Frances A. McIntyre, J., on a motion for summary judgment. Orestes G. Brown for the plaintiffs. Michael K. Murray for Trustees of Boston College. Adam Cederbaum for Boston Zoning Commission. Denise A. Chicoine for Boston Redevelopment Authority. CARHART, J. The plaintiffs, who own property that abuts property owned by Boston College, appeal from summary judgment entered by a Superior Court judge, who determined that art. 29 of the Massachusetts Declaration of Rights does not apply to review and approval by the Boston zoning commission and the Boston Redevelopment Authority of Boston College’s Institutional Master Plan. The judge also ruled that the approval of the Institutional Master Plan was not arbitrary or capricious, and that the plaintiffs’ request to defer summary judgment pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), was without merit. We affirm. Background. In the spring of 2003, Boston College (BC) embarked on a strategic planning process to redevelop its Chestnut Hill and Brighton campuses. In November, 2003, the Catholic Archdiocese of Boston announced its intention to sell sixty-five acres of property located in Brighton. In May, 2004, BC purchased approximately forty-three of those acres and, in subsequent transactions in 2006 and 2007, purchased the remaining acreage. After BC finalized the purchases, it hired a campus architecture and planning firm to help develop a long-term comprehensive campus plan. Among BC’s main institutional objectives were to develop more “academic, residential and co-curricular facilities.” The plan was projected to cost $ 1.6 billion and span ten years. Under art. 80D of the Boston zoning code (art. 80D), when educational or health care institutions with more than 150,000 square feet seek to expand by more than 20,000 gross square feet, they must file for review an Institutional Master Plan (IMP) with the Boston Redevelopment Authority (BRA). See Bobrowski, Massachusetts […]
Commonwealth v. Salyer (Lawyers Weekly No. 11-123-13)
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‑128 Appeals Court COMMONWEALTH vs. ANGELINA SALYER. No. 12‑P‑128. Middlesex. November 15, 2012. ‑ October 4, 2013. Present: Trainor, Agnes, & Sullivan, JJ. Criminal Harassment. Practice, Criminal, False report, Motion in limine, Required finding, Assistance of counsel. Evidence, Relevancy and materiality, Privileged communication, Admitted de bene, Authentication of document. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Husband and Wife. Privileged Communication. Complaint received and sworn to in the Ayer Division of the District Court Department on October 27, 2009. The case was tried before Peter J. Kilmartin, J. Barbara Munro for the defendant. Anne Pogue Donohue, Assistant District Attorney, for the Commonwealth. AGNES, J. Following a trial by jury, the defendant, Angelina Salyer, was found guilty of making a false report of a crime in violation of G. L. c. 269, § 13A, and criminal harassment in violation of G. L. c. 265, § 43A(a). We conclude that because her attorney provided ineffective assistance of counsel in failing to object and move to strike certain inadmissible evidence, there must be a new trial on the charge of criminal harassment. Background. The jury could have found that beginning in 2001, the defendant and Richard Dicato were involved in a relationship and had two children together. At the end of their relationship, a dispute arose over custody of the children. A bitterly contested custody case ensued in the Probate Court and was ongoing in the fall of 2008. At some point in 2007, the defendant married Jeffrey Salyer (Jeffrey). During 2008, Jeffrey and the defendant lived in a home on Mason Road in Townsend. They remained married to each other at the time of the trial in the present case. Jeffrey frequently served as a babysitter for the defendant’s two children. In the fall of 2008, the defendant’s daughter accused Jeffrey of molesting her. Although the allegations were not supported and Jeffrey was promptly cleared, the Probate Court changed the schedule for the defendant’s visits with her children, who were living with Dicato. Prior to the accusations against Jeffrey, the defendant had had the right to unsupervised visits with her children twice a week, including whole weekends; after the allegations, she was only permitted to visit with her children one day per week, the visits had […]
Lawless v. Board of Registration in Pharmacy (Lawyers Weekly No. 10-180-13)
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‑11366 LEO M. LAWLESS vs. BOARD OF REGISTRATION IN PHARMACY. October 7, 2013. Supreme Judicial Court, Appeal from order of single justice. Pharmacy. Board of Registration in Pharmacy. Administrative Law, Adjudicatory proceeding, Hearing. License. Practice, Civil, Default, Review of administrative action. After the Board of Registration in Pharmacy (board) revoked Leo M. Lawless’s license to practice pharmacy for a minimum of two years, Lawless sought judicial review, pursuant to G. L. c. 112, § 62, from a single justice of this court. The single justice denied the petition for review and a motion for reconsideration, and Lawless appeals. There was no error. Background. Lawless has held a license to engage in practice as a pharmacist in the Commonwealth since 1974. Following his termination from a pharmacist position at Hanscom Air Force Base (Hanscom) based on “multiple patient safety adverse events,” the board issued a temporary order summarily suspending his pharmacist license. The board thereafter issued an order that Lawless “appear and show cause” why it should not suspend, revoke, or otherwise take action against his license pursuant to G. L. c. 112, § 61, and 247 Code Mass. Regs. §§ 2.00 (2013). The order alleged that Lawless failed accurately to fill and verify prescriptions on multiple occasions and otherwise to maintain the pharmacy; made threatening comments about a member of the pharmacy staff; left the pharmacy while on duty; and failed to comply with the board’s continuing education requirements. Lawless answered the order to show cause, as well as an amended order. An adjudicatory hearing was scheduled for March 26, 27, and 28, 2012.[1] At Lawless’s request, a fourth day, March 30, 2012, was added to permit him to call an expert witness. In advance of the hearing, Lawless served subpoenas for the release of documents and to procure the attendance of witnesses from Hanscom to testify on his behalf. At a prehearing conference on March 21, 2012, he sought continuance of the hearing on the basis that a staff judge advocate at Hanscom had objected to the subpoenas and returned them without action. The hearing officer ruled that the first two days of hearing would proceed as scheduled, with prosecuting counsel for the board presenting her case, and the remaining hearing dates would be continued to give Lawless an opportunity to seek enforcement of the subpoenas. […]
Commonwealth v. Fortunato (Lawyers Weekly No. 10-179-13)
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‑11314 COMMONWEALTH vs. JASON FORTUNATO. Middlesex. April 4, 2013. ‑ October 3, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Arraignment, Delay in commencement of prosecution, Motion to suppress, Admissions and confessions. Evidence, Admissions and confessions. Due Process of Law, Delay in commencement of prosecution. Indictments found and returned in the Superior Court Department on December 17, 2009. A pretrial motion to suppress evidence was heard by Leila R. Kern, J. An application for leave to prosecute an interlocutory appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Warren W. Lee, Assistant District Attorney (Jessica L. Noble, Assistant District Attorney, with him) for the Commonwealth. John Fennel, Committee for Public Counsel Services, for the defendant. BOTSFORD, J. The defendant stands indicted for armed robbery, G. L. c. 265, § 17, and being an habitual offender, G. L. c. 279, § 25. Citing Commonwealth v. Rosario, 422 Mass. 48, 56 (1996) (Rosario), a Superior Court judge allowed the defendant’s motion to suppress the admission of his prearraignment statements that were made more than six hours after arrest. The Commonwealth has appealed pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). We conclude that the six-hour rule set out in Rosario, which renders inadmissible statements made by an arrested defendant more than six hours after the arrest, applies to all the defendant’s statements at issue in this appeal because all the statements were the product of police questioning to which the Rosario rule applies. We therefore affirm the suppression order, for reasons somewhat different than the judge. Background. We summarize the facts the Superior Court judge (motion judge) found after an evidentiary hearing at which one police officer testified, supplemented by uncontested facts in the record. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On February 19, 2008, a man entered a bank in Reading, stated that he had a gun, and demanded that the bank teller give him money. He fled with a substantial amount of cash, but […]
J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-121-13)
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‑1760 Appeals Court J.W.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1760. Middlesex. June 6, 2013. ‑ October 3, 2013. Present: Vuono, Brown, & Sikora, JJ. Division of Administrative Law Appeals. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on September 15, 2011. The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings. Timothy J. Casey, Assistant Attorney General, for the defendants. Stephen M. Sheehy for the plaintiffs. BROWN, J. In a thoughtful and comprehensive seventy-six page decision, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the involuntary transfer of J.W., a severely intellectually disabled individual, from his residence at Malone Park 23 at the Fernald Developmental Center (FDC) to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3, as amended through St. 2010, c. 239, §§ 46-48. On review, a judge of the Superior Court concluded that while “there [was] no lack of substantial evidence for the decision,” the magistrate erred by limiting his consideration of J.W.’s best interest to placements at either Malone Park 23 or the single alternative proposed by the Department of Developmental Services (DDS). See G. L. c. 30A, § 14(7)(c). On this basis, judgment entered vacating DALA’s decision and remanding the matter to DALA for further proceedings. This appeal followed. Although we agree with the judge’s conclusion that substantial evidence supported DALA’s decision, we disagree with his statutory construction. Accordingly, we vacate the judgment of the Superior Court and remand the case for entry of a judgment affirming DALA’s decision. Because this appeal turns on an issue of statutory interpretation, we set out the terms of the governing transfer statute, G. L. c. 123B, § 3 (transfer statute or § 3), in some detail. The transfer statute provides a specific process that must be followed by DDS in every case where it seeks to transfer an intellectually disabled individual “from one residential facility for the intellectually disabled to another.” G. L. c. 123B, § 3, first par. The first paragraph of § 3 establishes that DDS must consult with the permanent guardians (or nearest relative) of the individual and give notice “at least forty-five days prior […]
Categories: News Tags: 1112113, department, Developmental, J.W., Lawyers, Services, Weekly
Williams, et al. v. Charles, et al. (Lawyers Weekly No. 11-122-13)
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‑1216 Appeals Court BRENT WILLIAMS, trustee,[1] & another[2] vs. JEAN BERNARD CHARLES & another.[3] No. 12‑P‑1216. Suffolk. April 4, 2013. ‑ October 3, 2013. Present: Kantrowitz, Brown, & Kafker, JJ. Practice, Civil, Dismissal, Standing. Corporation, Stockholder’s derivative suit, Close corporation, Derivative action. Fiduciary. Civil action commenced in the Superior Court Department on January 28, 2008. A pretrial motion to dismiss was heard by Margaret R. Hinkle, J., and the case was heard by Douglas H. Wilkins, J. Leonard M. Singer for the plaintiffs. Richard C. Bardi for the defendants. BROWN, J. In this appeal, we consider whether the plaintiffs, members of a Massachusetts limited liability company, have standing to bring derivative claims on the company’s behalf against the company’s manager, as provided in the Massachusetts Limited Liability Company Act, G. L. c. 156C, § 56. Brent Williams, as trustee of Frowmica Nominee Trust, and Carlo Noel appeal from the dismissal of claims they brought on behalf of Frowmica, LLC (Frowmica), as stated in their second amended verified complaint (second amended complaint), against the defendants, Jean Bernard Charles and Frowmica. The issue of standing turns primarily on whether Williams’s contribution to Frowmica, which was in the form of services rather than cash, should be included in calculating the votes of the members in favor of authorizing the derivative suit under the statute. We also consider whether the ownership interest of Charles’s mother, Anna Charles, should be deemed adverse to interests of Frowmica, and her interest therefore excluded from the vote, because of her relationship with Charles. We affirm. 1. Background. We take the facts from the second amended complaint. Frowmica was organized as a limited liability company pursuant to G. L. c. 156C, and in accordance with the terms and conditions set out in the “Frowmica Limited Liability Company Operating Agreement” (operating agreement). The purpose of Frowmica was to own and operate a taxicab business. To that end, Diamond Universal Corporation (Diamond) set out to purchase the assets of Bay State Taxi LLC (Bay State), and formed Frowmica to negotiate and finance the purchase. Diamond raised capital for the transaction, with the understanding that it would reserve a 32.93 percent ownership interest in Frowmica for itself, which was subsequently reduced to 31.29, and would allocate the remainder […]