Commonwealth v. Zabek (Lawyers Weekly No. 11-135-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1292 Appeals Court COMMONWEALTH vs. TIMOTHY A. ZABEK. No. 13-P-1292. Franklin. March 5, 2014. – October 28, 2014. Present: Kafker, Fecteau, & Agnes, JJ. Attorney at Law, Attorney as witness, Conflict of interest, Withdrawal. Constitutional Law, Assistance of counsel. Practice, Criminal, New trial, Assistance of counsel. Witness, Attorney as witness. Conflict of Interest. Indictments found and returned in the Superior Court Department on November 16, 2009. The cases were tried before John A. Agostini, J., and a motion for a new trial was considered by him. William A. Korman for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. AGNES, J. It is a cardinal principle of both Federal and State law that the right to the effective assistance of counsel requires that the defendant not only have an opportunity to obtain the advice and guidance of counsel, but also to rely on the undivided loyalty of counsel to represent the defendant “with full force and zealousness.” Commonwealth v. Perkins, 450 Mass. 834, 850 (2008), quoting from Commonwealth v. Downey, 65 Mass. App. Ct. 547, 553 (2006). ”A conflict of interest arises whenever an attorney’s regard for one duty, such as that owed to a third party or in service of his own interests, leads the attorney to disregard another duty, such as that owed to his client.” Perkins, supra at 851. See Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986) (“An actual or genuine conflict of interest arises where the independent professional judgment of trial counsel is impaired, either by his own interests, or the interests of another client”) (internal quotation marks omitted). In the present case, a serious, potential conflict of interest became apparent shortly before trial commenced. Appropriate steps were taken by the judge to identify the risks of defense counsel’s continued representation of the defendant. The judge was warranted in concluding that, based on the evidentiary landscape prior to trial, defense counsel’s prospective testimony as the sole witness to a statement made by one of the victims would not be required. We commend the judge for conducting a thorough colloquy with the defendant prior to the trial to ensure that the defendant was fully informed of his attorney’s potential conflict of interest and could make a voluntary decision to continue to have counsel represent him. See Perkins, […]
Faulk, et al. v. CVS Caremark Corporation, et al. (Lawyers Weekly No. 10-175-14)
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-11650 CAROLYN O. FAULK & another[1] vs. CVS CAREMARK CORPORATION & others.[2] October 24, 2014. Supreme Judicial Court, Superintendence of inferior courts. The petitioners, Carolyn O. Faulk and Stanley D. Howard, appeal from a judgment of a single justice of this court denying their petition pursuant to G. L. c. 211, § 3. We affirm. The petitioners commenced an action in the Superior Court against Faulk’s former employer, respondent CVS Caremark Corporation, and two of her former supervisors, respondents Danny Ramoutarsingh and David Seetaram. The complaint alleged that the respondents wrongfully terminated Faulk’s employment, and included claims of, among other things, age and gender discrimination in violation of G. L. c. 151B. The complaint also stated that Howard had provided financial support to Faulk after CVS Caremark terminated her employment, and that he seeks damages (essentially, reimbursement) from CVS Caremark on that basis. In their G. L. c. 211, § 3, petition the petitioners complained primarily about two events that occurred in the trial court: the denial of Faulk’s request for the appointment of counsel and the respondents’ successful motion to dismiss Howard’s claims on the basis that he lacks standing. After a separate and final judgment entered against Howard, he filed a notice of appeal in the trial court, on January 21, 2014. On the same date, the petitioners also filed, in the Appeals Court, a motion to stay the trial court proceedings. On January 27, 2014, while the motion to stay was pending, the respondents filed a motion for sanctions in the trial court. Then, after a single justice of the Appeals Court denied the motion to stay, the petitioners filed their G. L. c. 211, § 3, petition on February 7, 2014. In addition to seeking relief from the denial of Faulk’s request for counsel and the dismissal of Howard’s claims, the petitioners also sought a stay of the then-scheduled hearing on sanctions. A single justice of this court denied the petition on February 12, 2014. On that same date, the trial court allowed the respondents’ motion for sanctions and dismissed the petitioners’ underlying complaint without prejudice. Because the petitioners’ complaint has been dismissed, their claim regarding the denial of Faulk’s motion for the appointment of counsel, as well as their efforts to stay the trial court proceedings, are moot. See Rasten v. Northeastern Univ., 432 Mass. 1003 (2000), cert. […]
Thou v. Russo (Lawyers Weekly No. 11-134-14)
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-1610 Appeals Court MONYRETH THOU, administrator,[1] vs. JOSEPH RUSSO. No. 13-P-1610. Middlesex. June 3, 2014. – October 23, 2014. Present: Cypher, Brown, & Agnes, JJ. Medical Malpractice, Tribunal, Bond, Standard of care. Negligence, Medical malpractice, Doctor. Doctor. Civil action commenced in the Superior Court Department on April 17, 2012. A motion to dismiss was heard by Maureen B. Hogan, J. John N. Lewis for the plaintiff. Gisela M. DaSilva for the defendant. CYPHER, J. The plaintiff, administrator of the estate of Sophal Chan Chin (decedent), appeals from a Superior Court judgment dismissing his malpractice action against the defendant doctor, Joseph Russo, following an adverse decision of a medical malpractice tribunal and the plaintiff’s failure to post a bond. See G. L. c. 231, § 60B. We agree with the plaintiff that his offer of proof was sufficient. Background.[2] The decedent died from cardiac arrest after liposuction and abdominoplasty[3] procedures performed at Milton Hospital (hospital) by Russo on May 17, 2011. As detailed by Russo in his operation report, after the decedent was brought into the operating room, a general anesthesia was induced. In performing the liposuction procedure, Russo utilized a tumescent solution[4] containing xylocaine (lidocaine) and epinephrine delivered through “several small stab incisions” into the areas to be suctioned. Approximately one liter of tumescent solution was infused into each side of her waist. In treating the medial thigh and knee areas, approximately 600 milliliters of tumescent solution were infused. When the upper arms were treated, approximately 300 to 400 milliliters of tumescent solution were infused into each upper arm. Russo recorded that the total infusion was 3,800 milliliters (or 3.8 liters). No tumescent solution use was reported for the abdominoplasty. The two procedures took place between 1:30 P.M. and approximately 6:00 P.M. Russo reported that, as the abdominal wound was about one-half closed, at about 6:03 P.M., the anesthesiologist reported a sudden drop in the decedent’s blood pressure. Code emergency procedures immediately were instituted and performed over the next one and one-half hours. The decedent briefly was stabilized to a normal blood pressure and was transferred to the intensive care unit. After about one hour, she suffered cardiac arrest, was unable to be resuscitated, and was declared dead at 9:50 P.M.[5] The plaintiff filed a complaint in the Superior Court on April 17, 2012, alleging […]
Town of Athol v. Professional Firefighters of Athol, Local 1751, I.A.F.F. (Lawyers Weekly No. 10-174-14)
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 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-11640 TOWN OF ATHOL vs. PROFESSIONAL FIREFIGHTERS OF ATHOL, LOCAL 1751, I.A.F.F. October 23, 2014 Fire Fighter, Municipality’s liability. Labor, Fire fighters, Health benefit plan, Arbitration, Collective bargaining. Municipal Corporations, Fire department, Insurance, Collective bargaining. Public Employment, Collective bargaining. Contract, Collective bargaining contract. This appeal arises from an action in the Superior Court challenging an arbitrator’s determination that the town of Athol (town) violated its collective bargaining agreement (CBA) with the Professional Firefighters of Athol, Local 1751, I.A.F.F. (union) by unilaterally increasing copayment amounts that union members pay for medical services under their health insurance plans. The judge confirmed the portion of the arbitration award compelling the parties to bargain collectively over changes to copayment rates, but vacated two remedial aspects of the award. The Appeals Court affirmed.[1] We granted the union’s application for further appellate review to address the question whether the Superior Court judge erred in vacating any portion of the award. We reverse in part and remand for the entry of a judgment confirming the award in its entirety. Background. After the town unilaterally increased copayment amounts for medical services, the union filed a grievance under the parties’ CBA. It alleged that health insurance benefits are mandatory subjects of collective bargaining, and that any changes must be brought to successor contract bargaining. An arbitrator concluded that such changes are a mandatory subject of collective bargaining and that the town violated the CBA by making the changes unilaterally. As a remedy, the arbitration award required the town, among other things, to restore the cost and structure of copayments to the status quo ante and to make union members whole for economic losses resulting from the change in copayment rates. The town filed a complaint in the Superior Court seeking to vacate the award and for other relief. Discussion. Except in the narrow circumstances described in G. L. c. 150C, § 11, a judge may not vacate an arbitrator’s award. Bureau of Special Investigations v. Coalition of Pub. Safety, 430 […]
Pelullo v. Croft, et al. (Lawyers Weekly No. 11-133-14)
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-28 Appeals Court ANTHONY PELULLO, trustee,[1] vs. PAUL R. CROFT & another.[2] No. 13-P-28. October 22, 2014. Zoning, Board of appeals: decision, Building inspector, Issuance of permit, Judicial review, Lot. Practice, Civil, Zoning appeal, Summary judgment. Words, “Lot depth.” The sole issue before us is the correct interpretation of a provision of the town of Natick’s (Natick) zoning by-law which requires a minimum lot depth of 125 feet for the construction of a single family home in a residential zoning district known as an “RSA” district. Natick Zoning Bylaws, Table IV-B, Intensity Regulations by Zoning District (2008) (by-law). The term “lot depth” is not defined in the by-law. However, the by-law provides that undefined terms “shall have their ordinarily accepted meanings or such as the context may imply.” For substantially the same reasons stated by the Land Court judge in his memorandum of decision allowing the plaintiff’s motion for summary judgment, we affirm.[3] The essential facts are not in dispute. On July 12, 2010, the defendant, Paul R. Croft, applied to Natick’s building inspector for a permit to construct a single family home at 15 Upland Road in Natick (lot 1A). The plaintiff, an abutter, filed an opposition on grounds that lot 1A did not meet the by-law’s minimum 125 foot lot depth requirement. The building inspector issued the permit reasoning that in cases involving “odd-shaped lots,” the “depth is determined by established practices and procedures of the Building Department which involve a calculation of lot depth on an angle in conjunction with a determination as to satisfaction of all other applicable dimensional requirements.” The board of appeals of Natick (board) affirmed the building inspector. The meaning of the term lot depth as used in the by-law “is a question of law . . . to be determined by the ordinary principles of statutory construction.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981). Here, the by-law specifically states that undefined terms “shall have their ordinarily accepted meanings or such as the context may imply.” This provision is not a license to give undefined terms in a municipal by-law a meaning that suits the personal views of those charged with its enforcement. Rather, in such cases an undefined term like lot depth must be given “a reasonable construction.” Kramer v. Zoning […]
Commonwealth v. LaChance (Lawyers Weekly No. 10-173-14)
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-11494 COMMONWEALTH vs. EDMUND D. LaCHANCE, JR. Middlesex. April 7, 2014. – October 21, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Public trial, Jury, Waiver of constitutional rights, Assistance of counsel. Practice, Criminal, Public trial, Empanelment of jury, Waiver, Assistance of counsel. Jury and Jurors. Waiver. Indictments found and returned in the Superior Court Department on December 16, 1999. Following review by the Appeals Court, 58 Mass. 1111 (2003), a motion for a new trial was considered by Raymond J. Brassard, J. The Supreme Judicial Court granted an application for direct appellate review. Alba Doto Baccari for the defendant. Michael A. Kaneb, Assistant District Attorney, for the Commonwealth. Richard C. Felton, pro se, amicus curiae, submitted a brief. CORDY, J. This court is again faced with a defendant’s postconviction claim of ineffective assistance of counsel predicated on the failure of trial counsel to object to a court room closure during jury empanelment. See Commonwealth v. Alebord, 467 Mass. 106, 111-114, cert. denied, 134 S. Ct. 2830 (2014); Commonwealth v. Morganti, 467 Mass. 96, 100-105 (2014). This time we are required to address a question not previously reached, that is, whether prejudice from the deficiency of trial counsel in this respect must be affirmatively established as part of the claim or is to be presumed because of the structural nature of the underlying public trial right that trial counsel failed to raise. 1. Background. On April 20, 2001, a Superior Court jury convicted the defendant of aggravated rape, kidnapping, indecent assault and battery, and assault by means of a dangerous weapon. The defendant — represented by new counsel — filed a timely notice of appeal, and on August 5, 2003, a panel of the Appeals Court affirmed his conviction in an unpublished decision pursuant to that court’s rule 1:28. Commonwealth v. LaChance, 58 Mass. App. Ct. 1111 (2003), cert. denied, 540 U.S. 1202 (2004). The defendant filed two motions for a new trial in 2003 and 2004, which were denied by the trial judge in a single order on April 15, 2004. The defendant again timely filed a notice of appeal, and a panel of the Appeals Court affirmed the judge’s denial of his two motions for a new trial on May 10, 2005. Commonwealth v. LaChance, […]
Commonwealth v. Evans (Lawyers Weekly No. 10-172-14)
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-10873 COMMONWEALTH vs. THOMAS EVANS. Middlesex. November 8, 2013. – October 20, 2014. Present: Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ.1 Homicide. Robbery. Felony-Murder Rule. Malice. Practice, Criminal, Capital case, Required finding, Argument by prosecutor. Evidence, Consciousness of guilt, Expert opinion. Witness, Expert. Deoxyribonucleic Acid. Indictments found and returned in the Superior Court Department on October 15, 2007. The cases were tried before Raymond J. Brassard, J. Leslie W. O’Brien for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney (John C. Verner, Assistant District Attorney, with her) for the Commonwealth. DUFFLY, J. The defendant was indicted for the armed robbery and murder of Paula Doherty. The victim was last seen alive on Saturday, September 30, 2006, at her Medford residence, where she, a friend, the defendant, and the defendant’s nephew had been using cocaine. When the friend left at 5:30 P.M. that afternoon, the defendant had passed out in a chair in the victim’s room and the victim was preparing to go to sleep. On Monday, October 2, after the victim failed to return telephone calls, the friend went to the victim’s house to check on her, and discovered the body of the victim, who had been beaten to death. A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, with armed robbery as the predicate felony. On appeal, the defendant contends that the trial judge erred in denying his motions for a required finding of not guilty, because the circumstantial evidence of guilt was insufficient to establish that the defendant was at the scene of the crime during the period when the victim was robbed and killed. The defendant argues also that the judge erred in allowing the admission of expert testimony concerning the potential absence of blood on the victim’s killer. We conclude that there was no error requiring reversal and, after a careful review of the record, that there is no reason to exercise our authority under G. L. c. 278, § 33E, to order a new trial or to reduce the conviction to a lesser degree of guilt. 1. Facts. Based on evidence introduced at trial, the jury could have found the following. a. Events of September 28 to 30, 2006. The victim sold cocaine from her residence, […]
Auto Flat Car Crushers, Inc. v. Hanover Insurance Company (Lawyers Weekly No. 10-170-14)
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-11477 AUTO FLAT CAR CRUSHERS, INC. vs. HANOVER INSURANCE COMPANY. Norfolk. May 5, 2014. – October 15, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ.[1] Insurance, Insurer’s obligation to defend, Coverage. Consumer Protection Act, Insurance, Availability of remedy, Damages, Unfair or deceptive act. Contract, Insurance, Performance and breach, Damages, Indemnity. Damages, Consumer protection case, Breach of contract. Indemnity. Declaratory Relief. Environment, Environmental cleanup costs. Civil action commenced in the Superior Court Department on May 20, 2009. A motion for partial summary judgment was heard by E. Susan Garsh, J.; motions for partial summary judgment were heard by Elizabeth B. Donovan, J.; a motion for summary judgment on the remaining issue was heard by Raymond P. Veary, Jr., J.; and the case was reported to the Appeals Court by Kenneth J. Fishman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Donald V. Jernberg (John J. McMaster with him) for the plaintiff. Aaron R. White for the defendant. The following submitted briefs for amici curiae: John P. Ryan & Harry A. Pierce for Massachusetts Insurance Federation, Inc. Jonathan M. Feigenbaum for United Policyholders. J. Michael Conley, Hans R. Hailey, Thomas R. Murphy, & Danielle M. Spang for Massachusetts Academy of Trial Attorneys. LENK, J. The plaintiff’s insurer refused to defend or to indemnify the plaintiff in connection with an environmental dispute involving the Department of Environmental Protection (DEP). Several years later, the plaintiff, having by then funded both its own defense and the environmental remediation ordered, brought suit against the insurer, alleging breach of contract and seeking declaratory relief; on a motion for partial summary judgment, the plaintiff obtained declaratory relief establishing the insurer’s duty to defend. The plaintiff then amended its complaint to assert a claim under G. L. c. 93A, § 11 (§ 11), arising out of the insurer’s failure to defend; the insurer did not avail itself of the statutory mechanism permitting a defendant to limit its liability to single damages by tendering with its answer a written offer of settlement. See G. L. c. 93A, § 11, fifth par. Thereafter, and while reserving its rights as to its pending claims, the plaintiff accepted reimbursement from the insurer, with interest, for its expenses in litigating and resolving the DEP matter. It […]
Commonwealth v. Vincent (Lawyers Weekly No. 10-169-14)
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-11177 COMMONWEALTH vs. DAVID W. VINCENT, THIRD. Berkshire. April 11, 2014. – October 14, 2014. Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.[1] Homicide. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Assistance of counsel, Arraignment, Delay in commencement of prosecution, Waiver, Capital case. Evidence, Admissions and confessions, Voluntariness of statement. Constitutional Law, Admissions and confessions, Voluntariness of statement, Assistance of counsel, Waiver of constitutional rights, Delay in commencement of prosecution. Due Process of Law, Assistance of counsel, Delay in commencement of prosecution. Indictment found and returned in the Superior Court Department on July 24, 2009. A pretrial motion to suppress evidence was heard by John A. Agostini, J.; the case was tried before him; and a motion for a new trial was considered by him. Greg T. Schubert for the defendant. John P. Bossé, Assistant District Attorney, for the Commonwealth. DUFFLY, J. On the morning of June 3, 2009, police received reports from staff at a regional medical center in Pittsfield that a woman had been admitted with life-threatening injuries that might have resulted from a domestic dispute. The woman, Rebecca Moulton, was the girl friend of the defendant. Early that afternoon, the defendant went to the Pittsfield police station; after an initial interview with police, which was not recorded at his request, he was arrested for aggravated assault and battery. In a subsequent interview that he requested after booking, again not recorded at his request, the defendant made additional incriminating statements. Moulton died the following day, and the defendant thereafter was arraigned on charges of murder in the first degree. At trial, the defendant conceded that he had beaten Moulton, but asserted that he had not intended to cause her grievous injury or death. The theory of defense was that, as a result of his addiction to, and consumption of, large amounts of alcohol, cocaine, and marijuana on the night in question, the defendant lacked the requisite intent to support a conviction of murder in the first degree. A Superior Court jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty.[2] The defendant’s appeal from his conviction was consolidated with his appeal from the denial of his motion for a new trial. […]