Jose v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 11-089-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-835 Appeals Court TOMAS JOSE vs. WELLS FARGO BANK, N.A. No. 15-P-835. Essex. May 6, 2016. – July 22, 2016. Present: Cohen, Green, & Hanlon, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Administrative Law, Agency’s interpretation of regulation. Civil action commenced in the Superior Court Department on March 5, 2012. The case was heard by Thomas Drechsler, J., on a motion for summary judgment. Thomas J. Gleason for the plaintiff. David Fialkow for the defendant. GREEN, J. Regulations promulgated by the Federal Department of Housing and Urban Development (HUD) require a mortgage lender to conduct a face-to-face meeting with defaulting borrowers before foreclosing on certain federally insured mortgages. The defendant, Wells Fargo Bank, N.A., (Wells Fargo), acknowledges that failure to comply with those regulations may serve as a basis to invalidate its foreclosure of the mortgage it held on the plaintiff’s property, but asserts that it qualifies for an exemption. We conclude that Wells Fargo does not qualify for the exemption from the face-to-face meeting requirement, and reverse so much of the judgment as dismissed that part of the plaintiff’s complaint. Background. On March 28, 2005, the plaintiff, Tomas Jose, executed a promissory note in the amount of $ 440,002 to refinance a prior mortgage loan on 499 Boston Street in Lynn (property). To secure the note, Jose granted a mortgage (mortgage) to Mortgage Electronic Registration Systems, Inc. (MERS), solely as nominee for the lender and the lender’s successors and assigns. The mortgage was insured by the Federal Housing Administration, and incorporated applicable HUD regulations by reference. More specifically, under par. 9(d) of the mortgage, acceleration or foreclosure of the mortgage is not authorized “if not permitted by regulations of the [HUD] Secretary.” On February 4, 2009, MERS assigned the mortgage to Wells Fargo. At all relevant times, Wells Fargo serviced Jose’s mortgage loan. Wells Fargo does not maintain a servicing branch within 200 miles of the property. However, Wells Fargo does maintain deposit and home loan origination branch offices within 200 miles of the property. Wells Fargo never scheduled or conducted a face-to-face meeting with Jose to discuss an alternative to foreclosure. Despite the absence of a face-to-face meeting, however, Wells Fargo and Jose entered into several forbearance agreements and three permanent modifications. Jose breached each […]
Commonwealth v. Gilman (Lawyers Weekly No. 11-088-16)
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-423 Appeals Court COMMONWEALTH vs. DAVID GILMAN. No. 15-P-423. Worcester. May 6, 2016. – July 21, 2016. Present: Cohen, Green, & Neyman, JJ. Rape. Indecent Assault and Battery. Evidence, Relevancy and materiality, Inflammatory evidence, Authentication, Best and secondary. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Argument by prosecutor, Voir dire, Jury and jurors. Jury and Jurors. Indictments found and returned in the Superior Court Department on April 23, 2010. The cases were tried before Peter B. Krupp, J. Diana Cowhey McDermott for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. GREEN, J. A Superior Court jury convicted the defendant, a middle school music teacher, of rape and three counts of indecent assault and battery on a child under fourteen, aggravated in the first instance by age difference and in all instances by reason of the defendant’s status as a mandated reporter. On appeal, he claims error in the admission of a number of “chat” messages he exchanged with the victim (a twelve year old student of his at the time of the assaults) on the social networking Web site Facebook. He also claims that he was deprived of his constitutional right to effective representation by counsel when his counsel promised the jury that the defendant would testify at trial, but then broke that promise when the defendant did not testify after the Commonwealth rested. We discern no cause to disturb the convictions, and affirm.[1] Background. We summarize the facts the jury could have found, viewed in a light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In the fall of 2008, the victim was a sixth grader at Leicester Middle School; the defendant was her music teacher. At the end of her sixth grade year, the victim went on a school-sponsored camping field trip. The defendant was a chaperone on that field trip, and he and the victim spent a lot of time together while on the trip. At the end of the trip, the defendant put his cellular telephone (cell phone) number and his name into the victim’s cell phone contact list, and they exchanged text messages frequently thereafter. Over the course of the following summer, which included another school-sponsored trip to the […]
Commonwealth v. Weaver (Lawyers Weekly No. 10-104-16)
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-10932 COMMONWEALTH vs. KENTEL MYRONE WEAVER. Suffolk. January 12, 2016. – July 20, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ. Homicide. Firearms. Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights by juvenile, Assistance of counsel, Public trial. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Capital case, Admissions and confessions, Voluntariness of statement, Waiver, Assistance of counsel, Public trial, Motion to suppress, New trial. Indictments found and returned in the Superior Court Department on December 5, 2003. A pretrial motion to suppress evidence was heard by Geraldine S. Hines, J.; the cases were tried before Stephen E. Neel, J.; and a motion for a new trial, filed on June 1, 2011, was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J. Ruth Greenberg for the defendant. John P. Zanini, Assistant District Attorney, for the Commonwealth. CORDY, J. On the evening of August 10, 2003, fifteen year old Germaine Rucker was shot and killed. The defendant, who was sixteen at the time of the shooting, subsequently admitted to committing the murder after prolonged questioning by the police and by his mother. Prior to trial, the defendant filed a motion to suppress his statements to the police. That motion was denied following an evidentiary hearing. In 2006, a jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation. He was also convicted of the unlicensed possession of a firearm. In 2011, the defendant filed a motion for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), claiming that he was denied the effective assistance of counsel in two respects: first, that counsel failed to adequately investigate the defendant’s claim that his statements to police were coerced because counsel did not consult with a mental health expert or present expert testimony about the voluntariness of those statements; second, that counsel failed to object to the closure of the court room during jury empanelment in violation of the defendant’s right to a public trial under the Sixth Amendment to the United States Constitution. The motion was bifurcated, and different judges considered, and ultimately rejected, the claims. The denial of the motion was consolidated with the defendant’s […]
Commonwealth v. Francis (Lawyers Weekly No. 10-103-16)
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-11988 COMMONWEALTH vs. DANIEL FRANCIS. Suffolk. March 8, 2016. – July 20, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Constitutional Law, Conduct of government agents. Due Process of Law, Disclosure of evidence, Presumption. Practice, Criminal, New trial, Conduct of government agents, Disclosure of evidence, Presumptions and burden of proof. Evidence, Certificate of drug analysis, Disclosure of evidence, Presumptions. Indictments found and returned in the Superior Court Department on March 13, 2006. The cases were tried before Frank M. Gaziano, J., and a motion for a new trial, filed on October 1, 2012, was considered by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David J. Rotondo for the defendant. Benjamin B. Selman, Committee for Public Counsel Services, for Committee for Public Counsel Services. Vincent J. DeMore, Assistant District Attorney, for the Commonwealth. GANTS, C.J. This is yet another in the series of cases arising from the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton drug lab). Here, the defendant was found guilty at trial of the trafficking and distribution of cocaine. At trial, certificates of drug analysis (drug certificates) were admitted in evidence, signed by Dookhan as an assistant analyst, that declared that the substances in question were cocaine and that set forth their weight. The defendant learned of Dookhan’s misconduct after trial, and now moves for a new trial based on that misconduct. At issue on appeal is whether a defendant found guilty at trial who moves for a new trial is entitled to the same conclusive presumption of “egregious government misconduct” that we applied in Commonwealth v. Scott, 467 Mass. 336, 352-354 (2014), to cases where a defendant seeks to withdraw his or her guilty plea after learning of Dookhan’s misconduct. We conclude that a defendant in these circumstances is entitled to the same conclusive presumption. The consequence of the conclusive presumption is that we deem it error to have admitted the drug certificates or comparable evidence regarding Dookhan’s drug analysis where the defendant had no knowledge of Dookhan’s misconduct and therefore no opportunity to challenge the admissibility or credibility of that evidence. We […]
Bank of America, N.A. v. Prestige Imports, Inc., et al. (Lawyers Weekly No. 11-087-16)
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-248 Appeals Court BANK OF AMERICA, N.A.[1] vs. PRESTIGE IMPORTS, INC., & others.[2] No. 15-P-248. Norfolk. January 11, 2016. – July 20, 2016. Present: Grainger, Rubin, & Milkey, JJ. Attorney at Law, Attorney-client relationship, Lien, Contingent fee agreement, Withdrawal. Damages, Quantum meruit. Civil action commenced in the Superior Court Department on February 1, 1991. A motion to adjudicate an attorney’s lien, filed on December 9, 2013, was heard by Patrick F. Brady, J. Steven J. Bolotin for George Deptula. Timothy J. Fazio (Jennifer L. Morse with him) for the defendants. RUBIN, J. In 1992, attorney George Deptula agreed to represent Prestige Imports, Inc., and its principals, Helmut Schmidt and his wife Renate Schmidt[3] (collectively, Prestige), on a contingent fee basis in litigation with South Shore Bank and, later, its acquirer, Bank of America, N.A. (Bank of America), in exchange for a nonrefundable retainer and a percentage of any recovery on Prestige’s counterclaims.[4] After victories at two trials and a reversal of those victories by this court, see Bank of America, N.A. v. Prestige Imports, Inc., 75 Mass. App. Ct. 741 (2009) (Prestige Imports), Deptula withdrew from the case without Prestige’s consent in April, 2010. Represented by different counsel, Prestige won a judgment of $ 27,031,568.12, including statutory interest, at a third trial. While that judgment was on appeal at this court, Deptula filed a notice of attorney’s fees lien pursuant to G. L. c. 221, § 50. Prestige brought a motion to adjudicate this lien, arguing that Deptula forfeited it by withdrawing without Prestige’s consent and without good cause. After a jury-waived trial, a Superior Court judge — who was also the trial judge for the third trial in the underlying litigation — ordered the entry of judgment for Prestige. Deptula appealed that judgment and, for the reasons stated infra, we reverse. Background. The litigation between Bank of America and Prestige involved claims by Bank of America for repayment of loans, and counterclaims by Prestige chiefly alleging Uniform Commercial Code violations, violation of G. L. c. 93A, and negligence, arising out of Bank of America’s handling of certain checks and its issuance of treasurer’s checks by which the comptroller of Prestige embezzled substantial funds from Prestige. Detailed facts about that litigation are set forth in Prestige Imports, supra at 742-752. We summarize here […]
Commonwealth v. Coates (Lawyers Weekly No. 11-086-16)
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 14-P-1547 Appeals Court COMMONWEALTH vs. RYAN COATES. No. 14-P-1547. Bristol. March 9, 2016. – July 15, 2016. Present: Cypher, Cohen, & Neyman, JJ. Indecent Assault and Battery. Obscenity, Dissemination of matter harmful to minor. Practice, Criminal, Required finding, Identification of defendant in courtroom. Evidence, Identification, Expert opinion, Relevancy and materiality. Witness, Expert. Identification. Internet. Indictments found and returned in the Superior Court Department on June 21, 2012 and August 9, 2012. The cases were tried before D. Lloyd Macdonald, J. Alexei Tymoczko for the defendant. Shoshana Stern, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Ryan Coates, of three counts of indecent assault and battery on a child under the age of fourteen, see G. L. c. 265, § 13B, and one count of disseminating matter harmful to a minor, see G. L. c. 272, § 28. On appeal, the defendant argues that the judge erred in excluding expert testimony that the defendant’s personality was inconsistent with the profile of a sex abuser, the Commonwealth’s graphic description of pornography was unduly prejudicial and created a substantial risk of a miscarriage of justice, and the Commonwealth presented insufficient evidence of identity to support the conclusion beyond a reasonable doubt that the defendant was the person who committed the indecent assaults and batteries.[1] Finding no merit in the defendant’s assertions, we affirm. Background. We summarize the facts that the jury could have found, reserving some details for later discussion of the issues raised by the defendant. The victim, A.E., was five years old at the time of trial. When A.E. was two years old, the defendant, who was her mother’s boy friend, moved in with her and her mother. The defendant was regarded as a father figure to A.E.; the three ate meals together and went on family outings; and the defendant shared parenting duties with A.E.’s mother, putting A.E. to bed at night, picking her up from day care, assisting in her toilet training, and babysitting her when her mother was not at home. Sometime between December, 2009, and May, 2012, before A.E. was toilet trained, the defendant began to sexually assault her. On occasions when A.E.’s mother was not at home, the defendant touched A.E.’s anus with his penis and stood behind her, rocking back and forth.[2] These […]
Fletcher Fixed Income Alpha Fund, Ltd., et al. v. Grant Thornton LLP, et al. (Lawyers Weekly No. 11-085-16)
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-830 Appeals Court FLETCHER FIXED INCOME ALPHA FUND, LTD., & another[1] vs. GRANT THORNTON LLP & others.[2] No. 15-P-830. Suffolk. January 6, 2016. – July 14, 2016. Present: Cypher, Grainger, & Meade, JJ. Auditor. Practice, Civil, Motion to dismiss. Jurisdiction, Nonresident, Long-arm statute. Due Process of Law, Jurisdiction over nonresident. Negligence, Misrepresentation, Proximate cause. Proximate Cause. Civil action commenced in the Superior Court Department on January 17, 2014. Motions to dismiss were heard by Janet L. Sanders, J. Rachel S. Fleishman, of New York (Philip Y. Brown with her) for the plaintiffs. Grant J. Esposito, of New York, for Grant Thornton LLP. William M. Connolly, of Pennsylvania, for EisnerAmper LLP & another. Jonathan D. Cogan, of New York, for SS&C Technologies, Inc. MEADE, J. The plaintiffs, Fletcher Fixed Income Alpha Fund, Ltd. (Alpha), and Massachusetts Bay Transportation Authority Retirement Fund (MBTARF), Alpha’s sole shareholder, appeal from the dismissal of their claims for accounting malpractice and negligent misrepresentation against certain entities that audited and administered Alpha, for failing to discover the fund manager’s fraud. The claims against the defendants, Grant Thornton LLP (Grant Thornton), and EisnerAmper LLP and EisnerAmper (Cayman) Ltd. (collectively, EisnerAmper), who served as auditors, were dismissed for lack of personal jurisdiction, a Superior Court judge ruling that the plaintiffs failed to show that their claims arose from the defendants’ transaction of business in Massachusetts. The claims brought by MBTARF against SS&C Technologies, Inc. (SS&C), a former Alpha administrator, were dismissed for failure to state a claim upon which relief can be granted, the judge reasoning that Alpha was insolvent by the time SS&C was hired, thereby negating the element of proximate cause. Pending their appeal to this court, the plaintiffs settled with EisnerAmper. As to the remaining defendants, the plaintiffs principally argue that in deciding the issue of specific jurisdiction, the judge should have taken into account a broader range of contacts between Grant Thornton and Massachusetts, and should have considered Grant Thornton’s knowledge that the audit reports would be sent to a Massachusetts entity. MBTARF also maintains that the judge held it to an incorrect pleading standard in dismissing its claims against SS&C for failure to allege facts to support causation. We affirm. Background. We summarize the undisputed facts from the judge’s February 23, […]
Commonwealth v. Szewczyk (Lawyers Weekly No. 11-083-16)
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-155 Appeals Court COMMONWEALTH vs. STANLEY F. SZEWCZYK. No. 15-P-155. Hampshire. December 14, 2015. – July 14, 2016. Present: Grainger, Hanlon, & Agnes, JJ. Dog. Animal. Practice, Criminal, Findings by judge. Complaint received and sworn to in the Northampton Division of the District Court Department on June 10, 2014. The case was heard by Jacklyn M. Connly, J. Thomas P. Vincent for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. HANLON, J. After a jury-waived trial in the District Court, the defendant was convicted of one count of cruelty to an animal in violation of G. L. c. 272, § 77. He now appeals, arguing that the judge erred in denying three of his eleven requests for rulings of law, pursuant to Mass. R. Crim. P. 26, 378 Mass. 897 (1979).[1] We affirm. Background. The judge heard the following facts. Amy Lovell moved with her partner and two children to a new home in Hatfield in October, 2013; the family planned to farm. The farm was also home to a cat, ten goats, approximately twenty-five chickens, and a sheepdog named Kiera. On January 26, 2014, Lovell noticed that Kiera, who had been tied with a nylon leash to the woodshed in Lovell’s yard, had chewed through the leash and wandered off the property.[2] Lovell and her partner got in their truck to search for the dog; they found her a short distance away standing uncharacteristically still in the middle of the street in front of the defendant’s house.[3] When they drove up, Lovell noticed the dog was holding up her hind leg. Whereas, normally, she would have jumped into the truck, this time, she had to be lifted into the truck to be brought home. Once there, Lovell noticed drops of blood on the kitchen floor and, when she looked closer, she found a small, round hole in the dog’s hind leg with blood coming from it. The dog whined and tried to lick the wound and was unable to walk. The next day, Lovell brought the dog to a veterinarian. An X-ray showed a pellet lodged deep in the dog’s left flank, very close to the bone. The dog was returned to the veterinarian two days later for surgery to remove the pellet; the doctor […]
Care and Protection of Vick (Lawyers Weekly No. 11-084-16)
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-1451 Appeals Court CARE AND PROTECTION OF VICK.[1] No. 15-P-1451. Plymouth. May 10, 2016. – July 13, 2016. Present: Cypher, Blake, & Henry, JJ. Parent and Child, Care and protection of minor, Custody of minor, Interference with parental rights. Minor, Care and protection, Custody. Petition filed in the Plymouth County Division of the Juvenile Court Department on November 25, 2013. The case was heard by John P. Corbett, J. Karen O. Young for the mother. Rizwanul Huda for the child. Sookyoung Shin, Assistant Attorney General, for Department of Children and Families. Dennis M. Toomey for the father. BLAKE, J. A judge of the Juvenile Court found that the child was in need of care and protection, that the mother was unfit to assume parental responsibility, and that the unfitness was likely to continue into the indefinite future. On appeal, the mother challenges the sufficiency of the evidence supporting the judge’s conclusion that she was unfit, contending that the evidence failed to establish a nexus between her parenting and a showing of harm to the child. She also claims that the judge did not conduct an evenhanded assessment of the evidence, and ignored the child’s preference to live with his mother. The child joins in these arguments. We affirm on the basis that the mother was unfit to assume parental responsibility due to neglect of the child. Background. We summarize the relevant facts and procedural history as set forth in the judge’s decision and as supported by the record, reserving other facts for later discussion. The parents met in high school and, shortly thereafter, the mother became pregnant. The child was born in February, 2002. Immediately after his birth, and for the next four and one-half years, the father was the child’s primary caretaker; during that time period, the father and child lived with the father’s mother. When the father lost his job, he placed the child in the mother’s care. In 2008, the father moved to Georgia, where he has extended family, because he was unable to find employment in Massachusetts. Despite the distance, the father maintained contact with the child’s schools and medical providers. From 2008 to 2013, the child spent most of his summers with the father in Georgia. In 2013, the mother resided […]
Commonwealth v. Lark (Lawyers Weekly No. 11-082-16)
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-411 Appeals Court COMMONWEALTH vs. MELVIN LARK, JR. No. 15-P-411. July 13, 2016. Assault and Battery. Parent and Child, Discipline. Practice, Criminal, Instructions to jury. Following a jury trial in the District Court, the defendant, Melvin Lark, Jr., was convicted of assault and battery. The victim was his fiancée’s eight year old son. On appeal, the defendant contends that the Commonwealth presented insufficient evidence to disprove his parental privilege defense and, in the alternative, that the judge’s instruction on parental privilege was erroneous.[1] We affirm. Background. A school counsellor at the victim’s school informed the victim’s mother that he needed a ride home because he had been involved in an altercation with another student. The mother, in turn, asked the defendant to pick up the victim from the school. Upon the defendant’s arrival, the victim refused to leave the school and then protested getting into the defendant’s Jeep. A passerby noticed the defendant yelling at the victim. She watched as he got into the back seat and the defendant got into the driver’s seat. Through the tinted windows, the passerby saw the defendant reach into the back seat and strike the victim several times. The victim had his hands up as the Jeep was “rocking.” In addition, the school counsellor saw the commotion in the Jeep from a school window. She ran outside, where she saw the defendant hitting the victim as he moved around in the back seat. The victim eventually jumped out of the Jeep and ran back to the school as the defendant drove away. At some point later, a friend of the victim’s mother came to collect him and noticed that he had a scratch over his eye. Parental privilege defense. Following the defendant’s conviction, the Supreme Judicial Court issued Commonwealth v. Dorvil, 472 Mass. 1 (2015), which refined the common-law parental privilege affirmative defense to a charge of assault and battery. The Dorvil framework provides that “a parent or guardian may not be subjected to criminal liability for the use of force against a minor child . . . provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and […]