Commonwealth v. Rakes (Lawyers Weekly No. 10-154-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10046 COMMONWEALTH vs. JAMES M. RAKES. Norfolk. April 7, 2017. – September 29, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ. Homicide. Joint Enterprise. Grand Jury. Evidence, Grand jury proceedings, Exculpatory, Prior misconduct, Joint venturer, Hearsay, Statement of codefendant, Criminal records, Prison record. Criminal Records. Practice, Criminal, Capital case, Indictment, Grand jury proceedings, Fair trial, Argument by prosecutor, Instructions to jury. Indictments found and returned in the Superior Court Department on April 1, 2002. A motion to dismiss was heard by John C. Cratsley, J.; the cases were tried before Judith Fabricant, J., and a motion for a new trial, filed on November 6, 2013, was heard by her. Alan Jay Black for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. LENK, J. In the summer of 1987, Jay B. Schlosser and his girl friend, Heather Buchannan, were shot and killed in the Westwood home they shared with John D. Sweeney. In 2005, the defendant was convicted by a Superior Court jury as a joint venturer on two counts of murder in the first degree on the theories of felony murder, deliberate premeditation, and extreme atrocity or cruelty. His coventurer, James P. Ridge, had been tried separately at an earlier trial and had been convicted of the victims’ murders.[1] The defendant appeals from his convictions and from the subsequent denial of his motion for a new trial. He maintains that the indictments should have been dismissed because the evidence supporting them was insufficient and because the Commonwealth’s presentation impaired the integrity of the grand jury by failing to disclose exculpatory evidence, introducing prior bad acts, and commenting on the defendant’s invocation of his right to remain silent. As to the trial, the defendant challenges the sufficiency of the evidence and claims structural error and ineffective assistance of counsel in connection with a purported court room closure during jury selection. He also asserts error in the admission of certain hearsay evidence concerning the joint venture, in the prosecutor’s closing, and in the jury instructions on reasonable doubt. He requests relief under G. L. c. 278, § 33E. We affirm the convictions and the order denying the motion for a new trial, and, after careful review of the record, decline to set aside the verdicts or […]
Commonwealth v. Leary (Lawyers Weekly No. 11-129-17)
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 15-P-470 Appeals Court 16-P-949 COMMONWEALTH vs. DANIEL LEARY. Nos. 15-P-470 & 16-P-949. Hampden. January 18, 2017. – September 29, 2017. Present: Green, Agnes, & Desmond, JJ. Motor Vehicle, Homicide, Operating under the influence. Intoxication. Evidence, Breathalyzer test, Field sobriety test, Intoxication, Unavailable witness, Previous testimony of unavailable witness, Videotape. Witness, Unavailability. Practice, Criminal, Argument by prosecutor, Instructions to jury, Lesser included offense, Assistance of counsel, Motion to suppress, Execution of sentence. Indictment found and returned in the Superior Court Department on April 27, 2011. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J.; the case was tried before Tina S. Page, J.; and a motion to reduce the verdict was heard by Edward J. McDonough, Jr., J. A renewed motion to stay execution of sentence, which was filed in the Appeals Court on June 8, 2016, was considered by Trainor, J. Barbara Munro for the defendant. Amal Bala, Assistant District Attorney, for the Commonwealth. AGNES, J. Following a nine-day jury trial in the Superior Court, the defendant, Daniel Leary, was convicted of motor vehicle homicide by reckless or negligent operation while under the influence of alcohol. See G. L. c. 90, § 24G(a). The case comes before us by two routes: the defendant’s direct appeal, and his appeal from an order of a single justice of this court denying his renewed motion to stay execution of his sentence pending the direct appeal.[1] For the reasons that follow, we affirm. Background. We recite the facts as the jury could have found them, reserving several details for later discussion. On March 25, 2011, at approximately 3:30 P.M., Peter Desrosiers came to the defendant’s house with a “thirty-pack” of beer. The defendant was preparing motorcycles for a “motor cross” race the next day. About one hour later, the defendant took his motorcycle to the racetrack, in Southwick, and Desrosiers followed in his truck, bringing the beer with him. At the racetrack, the defendant continued his preparations for the next day’s race. At approximately 9:00 P.M., the defendant and Desrosiers left the racetrack together in Desrosiers’s truck to pick up another motorcycle at the defendant’s cousin’s friend’s home, in West Springfield. The defendant drove because Desrosiers felt drunk, having consumed as many as one dozen beers by this […]
Calvao, et al. v. Raspallo (Lawyers Weekly No. 11-128-17)
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-1143 Appeals Court MANUEL J. CALVAO & another[1] vs. KATHLEEN E. RASPALLO. No. 16-P-1143. Barnstable. May 31, 2017. – September 29, 2017. Present: Green, Wolohojian, & Ditkoff, JJ. Condominiums, Common area, Master deed. Real Property, Condominium, Restrictions. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on December 14, 2011. The case was heard by Christopher J. Muse, J., on a motion for summary judgment, and a motion for equitable relief, assessment of damages, and entry of final judgment was heard by him. Peter S. Farber for the defendant. Brian J. Wall for the plaintiffs. DITKOFF, J. The defendant, Kathleen Raspallo, appeals from a Superior Court judgment requiring her, inter alia, to remove an addition she constructed on condominium common area assigned to the exclusive use of her unit. Construing G. L. c. 183A, § 5, we determine that a unit owner may not annex exclusive use common area[2] to her unit without the unanimous consent of the other unit owners holding a legal interest in that common area. Discerning no error in the judge’s other conclusions, we affirm. Background. We summarize the relevant facts of this case as presented to the judge on motion for summary judgment and the subsequent equitable relief hearing. The Tall Pines Condominium in the town of Dennis consists of two units separated by approximately thirty-two feet. Manuel and Brenda Calvao own unit 1, and Kathleen Raspallo owns unit 2, which she has used as her full-time residence since she purchased it in 2003. The vast majority of the common area is designated for the exclusive use of one or the other unit. The master deed grants unit 1 forty-six percent of the beneficial interest in the condominium and unit 2 fifty-four percent of the beneficial interest. In 2011, Raspallo began renovations on her unit, which included an approximately 111 square foot addition built on common area designated for her exclusive use. In order to acquire the necessary permits from the town, Raspallo had the condominium developer, Robert David, who was the sole condominium trustee, unilaterally appoint Raspallo as the sole trustee. Despite the Calvaos’ objections, Raspallo obtained the permits and completed renovations in 2012. The Calvaos promptly filed the present action in Superior Court, both on their own behalf and derivatively […]
Brining v. Donavan (Lawyers Weekly No. 09-002-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-3422-BLS1 JENNIFER BRINING, individually and as Trustee of the Jennifer Brining Living Trust and for the Benefit of SENDLATER, INC., in a Derivative Capacity vs. JOHN J. DONAVAN, SENDLATER, INC., SENDLATER II HOLDINGS, LLC AND SIL ENTERPRISES, LLC MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS INTRODUCTION This case is before the Court on the nominal defendant Sendlater, Inc.’s (Sendlater) motion to dismiss. The exact nature of the motion to dismiss is complicated by the unusual procedural history of this case which informs the basis for the motion that Sendlater has filed. The plaintiff, Jennifer Brining, is a shareholder in Sendlater, a corporation established under the laws of Vermont in 2014. Although she is by far the largest investor in Sendlater, having invested approximately $ 1.3 million of the approximately $ 2.5 million invested in the company, she is a minority shareholder owning only just over 11% of the company, as of May, 2017.1 She originally filed her complaint asserting only direct claims against the defendants who are John J. Donovan and two companies that he or his wife control (collectively, for simplicity, 1 The court has not been provided with a capitalization chart. While the company’s value, if any, may have deteriorated since Brining made her investment, the court has seen no evidence that any valuation of the company was ever undertaken, although the value assigned a share varied dramatically over the past three years. 2 Donovan). In general, Brining alleged that nearly all of the money invested in Sendlater was taken by Donovan, then a Director and effectively the manager of Sendlater, and used for his personal affairs, not for the benefit of Sendlater. She asserted various causes of action based on that conduct. At a hearing on requests for preliminary relief convened in November, 2016, the court (Liebensparger, J.) commented that the claims asserted by Brining appeared to be claims for corporate waste, which were claims that belonged to Sendlater and not to an individual investor. Apparently prompted by this remark, on November 30, 2016, Brining’s attorney sent counsel for Sendlater a Mass.R.Civ.P. 23.1 demand letter demanding that Sendlater’s board of directors (the Board) cause the company to bring suit against Donovan. On December 13, 2016, Brining amended her complaint to allege that a demand had been sent, but the Board had not responded.2 During additional hearings held in early 2017 to address discovery disputes and requests for protective orders, the court ruled that while the form of the demand sent to the Board was unusual, it was adequate to inform the Board of the allegedly wrongful actions undertaken by Donovan and to request […]
American Catalog Mailers Association, et al. v. Heffernan (Lawyers Weekly No. 09-003-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1772 BLS1 AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE vs. MICHAEL J. HEFFERNAN, in his capacity as Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE MEMORANDUM OF DECISION AND ORDER ENTERING DECLARATORY JUDGMENT ON COUNT I OF PLAINTIFFS’ VERIFIED COMPLAINT In this case, the plaintiff trade associations1 challenge the validity of Directive 17-1 issued by the Commissioner of the Massachusetts Department of Revenue (the Commissioner and the DOR, respectively) on April 3, 2017 (the Directive). The Directive is entitled: “Requirement that Out-of-State Internet Vendors with Significant Massachusetts Sales Must Collect Sales or Use Tax.” In effect, it requires that, beginning on July 1, 2017, large internet vendors who do not have places of business in Massachusetts, but have made a minimum number of product sales for delivery into Massachusetts, collect and remit to the DOR Massachusetts sales or use taxes. This is a new policy, as these internet vendors were not previously required to collect sales or use taxes from their online customers who place orders for goods to be delivered in Massachusetts. The plaintiffs’ verified complaint (the complaint) is pled in four counts: Count One asserts that the Directive was issued in violation of the 1 Plaintiff American Catalog Mailers Association is a trade association representing companies engaged in catalog marketing. Plaintiff NetChoice is a trade association of internet companies engaged in online sales. 2 Massachusetts Administrative Procedure Act (G.L. c. 30A, the APA); Count Two asserts that the Directive is preempted by the federal Internet Tax Freedom Act (47 U.S.C. § 151, the IFTA); Count Three asserts that the Directive violates the Commerce Clause of the United States Constitution; and Count Four asserts that the Directive violates the Due Process Clause of the United States Constitution. The case came before the court on June 27, 2017, three days before the Directive was to take effect, on the plaintiffs’ motion for a preliminary injunction enjoining the Commissioner from enforcing the Directive. In their moving papers, the plaintiffs relied on Counts One and Two in pressing their request for preliminary injunctive relief. At the hearing, both the plaintiffs and the Commissioner agreed that as to Count One, which alleges that the Directive was invalid because not promulgated as a regulation pursuant to the APA, there were no facts in dispute, the issue had been fully briefed, and that Count could be resolved as a matter of law on the materials submitted. In consideration of the parties’ memoranda and oral arguments, the court finds that the Directive established a new policy that substantially altered the rights and interests of the regulated parties and therefore had to be promulgated pursuant to sections 2 […]
American Catalog Mailers Association, et al. v. Heffernan (Lawyers Weekly No. 09-004-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1772 BLS1 AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE vs. MICHAEL J. HEFFERNAN, in his capacity as Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE ORDER ON DEFENDANT’S EMERGENCY MOTION TO VACATE MEMORANDUM OF DECISION AND ORDER ENTERING DECLARATORY JUDGMENT ON COUNT I AND REVISED ORDER FOR THE ENTRY OF FINAL JUDGMENT On June 28, 2017, this Court issued a Memorandum of Decision and Order Entering Declaratory Judgment on Count I of Plaintiff’s Verified Complaint (the Decision). The Decision concluded with the following Order: For the foregoing reasons, Final Judgment shall enter (a) as to Count One of the Complaint, declaring that the Directive is a regulation promulgated without compliance with Sections 2 or 3 of G.L. Chapter 30A and, therefore, invalid; and (b) as to Counts Two through Four dismissing these counts without prejudice. Apparently also on June 28, 2017, the defendant (DOR) revoked the Directive and filed with the court pleadings entitled: “Defendant’s Notice of Immediate Revocation of Department of Revenue Directive 17-1” and “Defendant’s Notice of Objection to Entry of Final Declaratory Judgment on Count I.” The Decision was, however, completed and signed by the Court well before it received these two pleadings. Thereafter, the DOR filed the pending motion in which it asks the court to vacate the Decision. 2 The court denies the motion to the extent that it requests that the Decision be vacated. Count I of the complaint presented a pure issue of law. The parties submitted what appeared to be comprehensive briefs addressing it. There was a lengthy oral argument on the issue on June 27, 2017. The Directive was to go into effect on July 1, 2017. During argument, the DOR rejected the court’s suggestion that it voluntarily delay the date by which internet retailers would have to be in compliance with the Directive. During argument, the court made quite clear its intention to enter a final judgment on Count One (and dismiss the other counts), if it concluded that the Directive was a regulation, as it was undisputed that it had not been promulgated following the procedures required by the Administrative Procedures Act. The DOR expressed no objection to this approach until the following day. By then, the Court had completed and signed the Decision while the matters raised by Count One were still actively in dispute between the parties to this litigation. However, before the separate Final Judgment required by Mass.R.Civ.P. 58 (a) could issue, the court learned that the Directive had been revoked “effective immediately.” It is the court’s understanding that, thereafter, the DOR began the process of promulgating the Directive as a regulation in accordance with the APA. […]
Commonwealth v. Shane S., a juvenile (Lawyers Weekly No. 11-126-17)
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 15-P-1746 Appeals Court COMMONWEALTH vs. SHANE S., a juvenile. No. 15-P-1746. Suffolk. February 14, 2017. – September 27, 2017. Present: Green, Meade, & Agnes, JJ. Firearms. Practice, Criminal, Motion to suppress. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Pursuit, Reasonable suspicion. Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on January 7, 2015. Indictment found and returned in the Superior Court Department on March 12, 2015. Following joinder of the delinquency complaint and youthful offender indictment, a pretrial motion to suppress evidence was heard in the Juvenile Court by Peter M. Coyne, J., and the case was heard by him. Rebecca L. Rose for the juvenile. Teresa K. Anderson, Assistant District Attorney, for the Commonwealth. AGNES, J. This appeal follows a jury-waived trial which resulted in a determination that the juvenile was a youthful offender by unlawfully possessing a firearm in violation of G. L. c. 269, § 10(a), and delinquent by reason of carrying a loaded firearm without a firearm identification card in violation of G. L. c. 269, § 10(n). The juvenile was committed to the custody of the Department of Youth Services until age twenty-one. The sole question on appeal is whether the motion judge, who also was the trial judge, erred in denying the juvenile’s pretrial motion to suppress evidence. More particularly, the juvenile contends that he was unlawfully seized by the police without reasonable suspicion or probable cause, and that the firearm and ammunition offered in evidence at his trial should have been suppressed as the fruits of that claimed unlawful seizure. We affirm. Background. Two Boston police officers testified at the hearing on the juvenile’s motion to suppress. The following account is based on the judge’s findings of fact and other testimony by the officers, which the judge implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). On January 6, 2015, Officer Eric Merner responded to a radio broadcast that a person on conditional release from a pending criminal charge, Dion Ruiz, was in a global positioning system (GPS) exclusion zone in the area of Washington and Ruggles Streets in Boston.[1] Officer Merner received a picture of Ruiz on his cellular telephone (cell phone), and proceeded to the area to search […]
Commonwealth v. Green (Lawyers Weekly No. 11-127-17)
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-396 Appeals Court COMMONWEALTH vs. DARRYL S. GREEN. No. 16-P-396. Barnstable. May 3, 2017. – September 27, 2017. Present: Green, Wolohojian, Massing, Shin, & Ditkoff, JJ. Larceny. Building. Evidence, Admissions and confessions, Corroborative evidence. Practice, Criminal, Admissions and confessions, Sentence. Indictment found and returned in the Superior Court Department on June 12, 2015. The case was heard by Robert C. Rufo, J. Eric W. Ruben for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. DITKOFF, J. The defendant appeals after his conviction at a jury-waived trial of stealing in a building, G. L. c. 266, § 20, arising out of his theft of $ 240 from the home of his recently murdered neighbors. This case requires us to consider the nature of the corroboration required to support a conviction based on a defendant’s confession and to discern the dividing line between property stolen from a building and property stolen from the custody of a person in the building. Concluding that the confession was adequately corroborated and that the evidence made out the crime of stealing in a building, we affirm.[1] Background. Sometime between the evening of June 11, 2013, and the early morning of June 12, 2013, Crystal Perry and Kristofer Williams were murdered in their home in Falmouth by persons unknown. At approximately 1:30 A.M. on June 12, police found their bodies in the kitchen and living room, surrounded by blood. The front door had been forced open and “[t]he house . . . had been . . . ransacked,” but jewelry and a wallet remained in the house. The defendant was a neighbor of the victims and suffered from a heroin addiction. The defendant had been working as a mason’s assistant for approximately two and one-half years. His boss paid him in cash at the end of each day, and the defendant “never had cash the next day.” When the defendant’s boss picked up the defendant the morning of June 12, the defendant showed him cash and said, “Let’s go get this,” meaning that they should purchase heroin together. It was more money than the defendant had been paid the day before. The defendant and his boss then purchased $ 200 to $ 300 of heroin. The defendant’s boss also noticed that the defendant was wearing rubber boots […]
Brown v. Woods Mullen Shelter/Boston Public Health Commission (Lawyers Weekly No. 09-001-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 16-805-C JASON BROWN v. WOODS MULLEN SHELTER/ BOSTON PUBLIC HEALTH COMMISSION MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Jason Brown, appearing pro se, has brought what appears to be a three-claim complaint against the owner-operator of the Woods Mullen Shelter, a public homeless shelter located in Boston. All claims arise out of the plaintiff’s expulsion from the shelter on August 10, 2014, when Woods Mullen staff informed Mr. Brown that he would not be permitted to enter the facility as a resident with even medically prescribed marijuana.[1] As a matter of policy, the Boston Public Health Commission (which manages the shelter) does not allow marijuana or other controlled substances – whether for medical reasons or otherwise – onto its property. According to Commission Director of Emergency Shelter Services Elizabeth Henderson, “[t]he Commission is constantly striving to monitor and remove substances from the shelter, whether that is [sic] marijuana, alcohol, drugs, unmarked prescription drugs and other similar substances. The Commission treats marijuana of any nature as it does alcohol and prohibits it from its shelters.” (Henderson Aff. at para. 6)(emphasis supplied).[2] Plaintiff refused to leave the shelter, and shelter staff summoned the Boston Police. When efforts by the police to escort plaintiff off of the site were unsuccessful, Mr. Brown was arrested for trespassing. Plaintiff has brought claims for negligence, negligent infliction of emotional distress and unspecified “civil rights” violations. These claims are addressed exclusively to Mr. Brown’s expulsion from the Woods Mullen Shelter by the Boston Public Health Commission, and do not reach his arrest at the hands of the Boston Police Department.[3] The defendant has moved for summary judgment on all counts. The Court conducted a hearing in respect to this motion on August 28, 2017, at which hearing the plaintiff and counsel for Woods Mullen Shelter/Boston Public Health Commission appeared and presented arguments. For the reasons which follow, the defendant’s Motion for Summary Judgment shall be ALLOWED IN PART and DENIED IN PART. DISCUSSION The defendant’s first contention is that the Complaint’s claims for negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment of such claims to the Commission’s chief executive. The Court agrees. Under G.L. c. 258, _ 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G.L. c. 258, _ 1 as its “nominal chief executive officer or board,” within two years after the cause of action arose. In the case of the Boston Public Health Commission, the chief executive […]
Koe v. Commissioner of Probation, et al. (Lawyers Weekly No. 10-153-17)
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-12160 KRISTI KOE[1] vs. COMMISSIONER OF PROBATION & another.[2] Suffolk. May 1, 2017. – September 27, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[3] Sex Offender. Practice, Criminal, Record. Due Process of Law, Sex offender, Retroactive application of statute. Statute, Retroactive application. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 18, 2016. The case was reported by Hines, J. Beth Eisenberg (Catherine J. Hinton also present) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendants. CYPHER, J. In this case, we confront part of a statute that retroactively prohibits the plaintiff from ever sealing the record of her sex offenses because she was once classified as a level two sex offender, even though the Sex Offender Registry Board (SORB) has determined that the plaintiff no longer poses any cognizable degree of dangerousness or risk of reoffending, no longer believes that she should be classified as a level two sex offender, and has relieved her of the obligation to register as a sex offender. The plaintiff argues that, as a applied to her, the retroactive statutory prohibition on sealing sex offenses violates her due process rights under the Massachusetts Declaration of Rights. Because we agree with the plaintiff that the challenged portion of this statute, as applied to her, is retroactive and unreasonable, we conclude that it cannot be enforced against her. Background. We summarize the following facts from findings made by a Superior Court judge and by a SORB hearing panel, as well as from other record materials. Underlying offense and classification. In 1995, Kristi Koe was found guilty by a Superior Court jury of one count of rape and abuse of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B. The offenses occurred in 1990, when Koe was twenty-two years old. The victim was a twelve year old girl who was then living with Koe and Koe’s sister. Over a ten-day period, Koe engaged in various sexual acts with the victim. As a result of her convictions, SORB recommended, and Koe accepted, a classification as a level two sex offender, pursuant to […]