Commonwealth v. Langley (Lawyers Weekly No. 09-029-18)
1 COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT Criminal No. 17-64 COMMONWEALTH vs. COREY LANGLEY MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS Defendant Corey Langley is charged with two counts of possession of a substance, material, article, explosive, or ingredient which could be used to make a destructive or incendiary device or substance in violation of G.L. c. 266, § 102(a)(i) (Counts 001 and 002), and two counts of secreting, throwing, launching, or otherwise placing an explosive or incendiary device in violation of G.L. c. 266, § 102A (Counts 003 and 004). Defendant moves to dismiss under Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), arguing the grand jury heard insufficient evidence to support the indictments. After hearing,1 for the following reasons, the motion is ALLOWED. BACKGROUND The grand jury heard the following evidence: On January 13, 2017, Holbrook Police Department Detective Scott Glover received a call to the effect that two possible explosive devices were located at 44 Poole Circle in Holbrook (“the Property”). When Det. Glover responded to the scene, he observed in the Property’s 1 At the hearing on December 19, 2017, I allowed the Commonwealth’s request for a significant amount of time (until February 27, 2018) to file a written opposition. Despite the accommodation, the Commonwealth has not filed an opposition. 2 backyard near the gate (i) a white bleach bottle with a hole cut into the cap and a pair of underwear on or near the bottle, and (ii) a Crisco bottle filled with nails and batteries, which had a hole cut in its top and a wick coming out of the hole. Det. Glover contacted the State Police Bomb Squad. James Morgan, the owner of the Property, told Det. Glover that after midnight on the previous night, he had heard a loud noise in the woods, like something running away, but he did not see anything. Mr. Morgan reported that the next morning, he observed a bleach bottle in the backyard and a Crisco oil bottle and a burned pair of underwear in the wooded area outside the backyard gate to the Property. Mr. Morgan also said that he noticed that the gate had been sprayed with a liquid. The State Police responded to the scene, photographed the evidence, and made sure it was safe to remove the two bottles from the area. Mr. Morgan told Det. Glover that a number of teenagers were staying in a house on the other side of the wooded area behind the Property, including possibly the defendant; and they were the only people Mr. Morgan believed may have put the objects in his yard. Another Holbrook police officer, Officer Sterling, walked back behind the Property until he […]
Butler v. Turco, et al. (and a companion case) (Lawyers Weekly No. 11-036-18)
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; SJCReportersjc.state.ma.us 17-P-814 Appeals Court 17-P-968 BRIAN BUTLER vs. THOMAS A. TURCO & others[1] (and a companion case[2]). Nos. 17-P-814 & 17-P-968. Worcester. Suffolk. February 5, 2018. – March 30, 2018. Present: Meade, Sullivan, & Wendlandt, JJ. Imprisonment, Grievances. Commissioner of Correction. Constitutional Law, Imprisonment, Ex post facto law, Double jeopardy, Cruel and unusual punishment. Due Process of Law, Prison regulation. Practice, Civil, Dismissal. Civil action commenced in the Superior Court Department on January 5, 2016. A motion to dismiss was heard by David Ricciardone, J. Civil action commenced in the Superior Court Department on November 13, 2015. A motion to dismiss was heard by Paul D. Wilson, J. Brian Butler, pro se. Owen McCants, pro se. Sheryl F. Grant for the defendants. MEADE, J. The plaintiffs, Brian Butler and Owen McCants, inmates supervised by the Massachusetts Department of Correction (department) and housed at MCI-Norfolk, each brought actions pro se challenging the consequences imposed on them pursuant to the department’s “Program Engagement Strategy” (PES). The defendants filed motions to dismiss both complaints, which were allowed by two different judges. The plaintiffs appeal, alleging what we construe to be[3] various constitutional infirmities in the PES program. We consolidated the cases for hearing in this court, and now affirm. Background. PES program. In accordance with its mission to “promote public safety by managing offenders,” the department established “appropriate programming in preparation for [inmates’] successful reentry into the community,” such as the Sex Offender Treatment Program (SOTP). However, the department is unable to mandate participation in such programs. As a result, by 2012, a high percentage of offenders declined to attend recommended programs, spending their time in ways that did not address “the very issues that [would] decrease the likelihood that they recidivate.”[4] Nevertheless, these inmates enjoyed the same privileges as “program compliant” offenders, such as single rooms, housing seniority, and institutional jobs. In response, in December of 2013, the department announced it would implement PES, an incentivization structure for program participation.[5] Under PES, privileges are awarded as incentives for inmates who voluntarily participate in programs and are withdrawn from inmates who refuse. The department notified inmates about PES by amending its institutional procedures, hosting informational sessions for inmates, and creating informational flyers. PES went into effect on January […]
Spencer v. Civil Service Commission, et al. (Lawyers Weekly No. 10-046-18)
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-12326 LUIS S. SPENCER vs. CIVIL SERVICE COMMISSION & another.[1] Suffolk. December 4, 2017. – March 27, 2018. Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ. Commissioner of Correction. Public Employment, Resignation. Civil Service, Decision of Civil Service Commission, Termination of employment, Findings by commission. Jurisdiction, Civil Service Commission. Words, “Termination of his service.” Civil action commenced in the Superior Court Department on December 8, 2015. The case was heard by Robert N. Tochka, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David A. Russcol (Monica R. Shah also present) for the plaintiff. Jesse M. Boodoo, Assistant Attorney General, for the defendants. KAFKER, J. The issue presented is whether Luis S. Spencer, who resigned under pressure as Commissioner of Correction (commissioner) in the midst of a public investigation of his oversight of Bridgewater State Hospital, has a right, pursuant to G. L. c. 30, § 46D, to revert to a tenured civil service correction officer II position he last held in 1992. Upon his resignation and the denial of his request to revert, Spencer filed an appeal with the Civil Service Commission (commission). The commission concluded that the right to revert to a civil service position applies only to involuntary terminations, not voluntary resignations, and because Spencer voluntarily resigned, no “termination of his service” had occurred within the meaning of G. L. c. 30, § 46D. Spencer brought a complaint against the commission and the Department of Correction (department), seeking judicial review of the commission’s decision. A judge in the Superior Court affirmed the commission’s decision. Spencer appealed, and we transferred his appeal to this court on our own motion. We conclude that § 46D does not provide a right to revert in these circumstances and that the commission’s interpretation of this ambiguous statutory language is reasonable, as it applies the same rules for reversion to managers as it does to all other civil service employees and avoids the type of manipulation of retirement benefits at issue here. Accordingly, we affirm the decision of the commission. Background. a. Statutory framework. Under the Commonwealth’s civil service statutory scheme, a number of rank and file and lower level management positions, particularly in public safety, are […]
Miranda v. A Justice of the Superior Court Department of the Trial Court (Lawyers Weekly No. 10-047-18)
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-12308 CHRISTIAN MIRANDA vs. A JUSTICE OF THE SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT. March 27, 2018. Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Action in nature of certiorari. Practice, Criminal, Postconviction relief, Discovery. Christian Miranda appeals from a judgment of the county court denying his petition for relief in the nature of certiorari pursuant to G. L. c. 249, § 4. Miranda, who has been convicted in the Superior Court of certain drug-related offenses, filed a motion to intervene in a separate criminal case also pending in the Superior Court at that time, apparently seeking to participate in postconviction discovery that was proceeding in that case. After a hearing, the motion was denied. Miranda’s petition sought relief from that denial. As there is no basis in the Rules of Criminal Procedure or other law for a defendant to intervene in another defendant’s unrelated criminal case, Miranda cannot show that relief in the nature of certiorari is necessary “to correct [a] substantial error of law apparent on the record.” State Bd. of Retirement v. Woodward, 446 Mass. 698, 703 (2006). See Republican Co. v. Appeals Court, 442 Mass. 218, 227 n.14 (2004) (intervention is “a concept foreign to criminal procedure”). Moreover, Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), provides the mechanism for Miranda to seek postconviction discovery in his own case. The single justice neither erred nor abused his discretion by denying relief. Judgment affirmed. Greg T. Schubert for the plaintiff. Thomas E. Bocian, Assistant Attorney General, for the defendant. Full-text Opinions
Commonwealth v. Grundman (Lawyers Weekly No. 10-045-18)
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; SJCReportersjc.state.ma.us SJC-12264 COMMONWEALTH vs. MICHAEL C. GRUNDMAN. Barnstable. November 9, 2017. – March 22, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Sex Offender. Global Positioning System Device. Practice, Criminal, Sentence, Probation. Indictments found and returned in the Superior Court Department on October 19, 2012. A motion to correct a clerical error in sentence, filed on September 24, 2014, was heard by Gary A. Nickerson, J., and motions for reconsideration were considered by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Andrew S. Crouch for the defendant. Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth. LOWY, J. The defendant pleaded guilty to two indictments charging five counts of rape of a child and was sentenced to a term of incarceration and a term of probation. Despite the provisions of G. L. c. 265, § 47, mandating that defendants convicted of certain sex offenses, including rape of a child, be subject to global positioning system (GPS) monitoring as a condition of any term of probation, that condition was not announced in open court when the defendant’s sentence was imposed.[1] At issue here is whether the judge erred in resentencing the defendant to include the GPS monitoring condition approximately ten months after the defendant was originally sentenced. We conclude that because the defendant here did not receive actual notice from the sentencing judge, at the time of sentencing, that GPS monitoring was included as a special condition of his probation, and because the resentencing occurred after the sixty-day period in which an illegal sentence may be corrected under Mass. R. Crim. P. 29 (a) (1), as appearing in 474 Mass. 1503 (2016), the belated imposition of GPS monitoring must be vacated. See Commonwealth v. Selavka, 469 Mass. 502, 513-514 (2014). Background. Following a plea colloquy, the defendant pleaded guilty to five counts of rape of a child, involving two victims. The defendant’s sentencing hearing occurred approximately two months later, when a Superior Court judge sentenced him to a term of two years in a house of correction and a ten-year term of probation (with special conditions) to be served concurrently with his term of incarceration. In open court, the clerk announced that the defendant’s sentence would […]
Commonwealth v. Moore (Lawyers Weekly No. 11-035-18)
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-944 Appeals Court COMMONWEALTH vs. ERIC MOORE. No. 15-P-944. Suffolk. December 5, 2017. – March 22, 2018. Present: Trainor, Meade, & Wolohojian, JJ. Motor Vehicle, Unauthorized use. Rules of Criminal Procedure. Probable Cause. Practice, Criminal, Complaint, Dismissal, Arraignment. Constitutional Law, Separation of powers. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 23, 2015. A motion to dismiss was heard by Myong Joun, J. Helle Sachse, Assistant District Attorney, for the Commonwealth. Bruce W. Carroll for the defendant. TRAINOR, J. The defendant, Eric Moore, was charged with, among other things, using a motor vehicle without authority (use without authority), in violation of G. L. c. 90, § 24(2)(a). At the arraignment hearing, the defendant orally moved to dismiss the charge of use without authority; the judge allowed the defendant’s motion prior to arraignment and proceeded to arraign the defendant on the remaining charges. The Commonwealth filed this timely appeal, arguing that the judge erred in dismissing the use without authority charge for two reasons: first, a complaint against an adult defendant, unlike one against a juvenile, cannot be dismissed prior to arraignment; and second, the complaint was supported by probable cause that the defendant used the motor vehicle without authority. For the reasons set forth infra, we reverse the dismissal of the charge of use without authority. Background. On March 23, 2015, the defendant was driving a rental car and was pulled over for failing to come to a complete stop at a stop sign. When the police officers asked the defendant for his license and registration, the defendant responded that he did not have a license in his possession. Upon a criminal justice information system query, the officers learned that the defendant’s out-of-State license was suspended. The officers then contacted the rental company and obtained a copy of the rental agreement for the vehicle, which provided that Nicole Hosier of Pittsfield was the only individual authorized to operate the rental car. The officers subsequently arrested the defendant for, among other things, use without authority, and towed the rental car. At the defendant’s arraignment hearing, defense counsel requested to be heard prior to the arraignment. Defense counsel asked the judge to dismiss the use without authority charge because the facts do “not […]
Vinnie v. Superintendent, Massachusetts Correctional Facility, Norfolk (Lawyers Weekly No. 10-044-18)
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-12299 RAYMOND P. VINNIE vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTE, NORFOLK. March 21, 2018. Supreme Judicial Court, Superintendence of inferior courts. In 1993, Raymond P. Vinnie was convicted of murder in the first degree. After plenary review, we affirmed the conviction and the denial of his motion for a new trial. Commonwealth v. Vinnie, 428 Mass. 161, cert. denied, 525 U.S. 1007 (1998), overruled on another ground by Commonwealth v. Paulding, 438 Mass. 1 (2002). In 2016, Vinnie filed a petition for a writ of habeas corpus pursuant to G. L. c. 248, § 1, in the county court, arguing that he was unlawfully imprisoned pursuant to a void mittimus. A single justice of this court transferred the petition to the Superior Court. A judge in that court denied relief. Vinnie then filed a motion in the county court, seeking to reinstate his petition on the ground that the Superior Court judge made various procedural and substantive errors. The same single justice denied the motion without a hearing. Vinnie appeals from that ruling. The single justice properly denied Vinnie’s motion to reinstate the petition. The Superior Court judge’s decision denying habeas relief was reviewable in the ordinary appellate process. After habeas relief was denied in the Superior Court, Vinnie “could have obtained review by this court only if he was granted leave by a single justice pursuant to the gatekeeper provision of G. L. c. 278, § 33E. He cannot circumvent the gatekeeper provision by filing his petition in the county court in the first instance.” Tyree v. Commonwealth, 449 Mass. 1034, 1034 (2007), cert. denied, 554 U.S. 926 (2008). There was no basis to “reinstate” the petition in the county court. Judgment affirmed. Raymond P. Vinnie, pro se. Eric A. Haskell, Assistant Attorney General, for the respondent. Full-text Opinions
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Commonwealth v. G.F. (Lawyers Weekly No. 10-043-18)
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; SJCReportersjc.state.ma.us SJC-12388 COMMONWEALTH vs. G.F. Suffolk. November 9, 2017. – March 20, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Sex Offender. Constitutional Law, Sex offender. Due Process of Law, Sex offender. Practice, Civil, Sex offender, Civil commitment, Verdict. Civil action commenced in the Superior Court Department on December 24, 2010. A motion to modify the temporary order of confinement and for an order of custody conditions, filed on October 17, 2016, was heard by Douglas H. Wilkins, J., and questions of law were reported by him to the Appeals Court. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 24, 2016. The case was heard by Gaziano, J., and the matter was reported by him to the Appeals Court. After consolidation in the Appeals Court, the Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph M. Kenneally (Michael F. Farrington also present) for G.F. John P. Zanini, Assistant District Attorney, for the Commonwealth. GAZIANO, J. This case concerns G. L. c. 123A, the statute governing civil commitment of sexually dangerous persons (SDP). Prior to civilly committing an individual under this statute, the Commonwealth must obtain a unanimous jury verdict finding that the individual is sexually dangerous.[1] G. L. c. 123A, § 14 (d). Subject to certain exceptions, the trial to determine sexual dangerousness must be held within sixty days after the Commonwealth files a petition for trial. G. L. c. 123A, § 14 (a). During this time, the individual is to be temporarily confined. See G. L. c. 123A, § 14 (e); Commonwealth v. Pariseau, 466 Mass. 805, 808 (2014). In this case, the Commonwealth filed a petition seeking to commit the petitioner as an SDP in December, 2010. Following years of delay and three mistrials, the petitioner remains confined without a finding that he is sexually dangerous. He contends that substantive due process and the SDP statute require dismissal of the Commonwealth’s petition. A judge of the Superior Court concluded that continued confinement violated the petitioner’s substantive due process rights, ordered his release, and then stayed that order and reported a number of questions. We conclude that the SDP statute permits a fourth trial in the circumstances of this case. While due process would impose a limit on the number of retrials […]
Charlie’s Project LLC, et al. v. T2B LLC, et al. (Lawyers Weekly No. 09-028-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV03350-BLS2 ____________________ CHARLIE’S PROJECT LLC and ANNA K. HERNANDEZ v. T2B LLC, BRANDON McDANIEL, and NICOLE McDANIEL ____________________ MEMORANDUM AND ORDER DENYING DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND DISMISS Charlie’s Project LLC (“CP”) and its founder Anna Hernandez have sued T2B LLC for allegedly breaching two contracts that concern the sale and delivery by T2B of clothes designed by Ms. Hernandez. Plaintiffs also claim that T2B, its founder Brendon McDaniel, and his spouse Nicole McDaniel have engaged in unfair and deceptive acts or practices in violation of G.L. c. 93A, that all three Defendants misappropriated CP’s designs, logos, marketing materials, and name, and that T2B and Nicole McDaniel have defamed Plaintiffs. Defendants have moved to dismiss this action. Their main argument is that all of Plaintiffs’ claims are subject to a mandatory arbitration clause contained in a third contract among T2B, Hernandez, and others. They also assert, in the alternative, that this action must be filed in Delaware under an allegedly mandatory forum selection clause in the LLC Agreement. The Court will DENY the motion to dismiss. The question whether the parties’ dispute must be arbitrated is for the Court to resolve. Though the parties to the third contract adopted the American Arbitration Association’s rules, and thereby agreed that the arbitrability of disputes arising under that contract must be decided by an arbitrator, that provision is not implicated here. Hernandez never agreed that the arbitrability of disputes arising under or out of the first two contracts would be decided by an arbitrator. Nor did she agree to arbitrate claims under those contracts, neither of which contains an arbitration provision. Finally, Defendants’ arguments regarding choice of forum are unavailing because the forum selection clause in the LLC Agreement does not apply here and, in any case, it is permissive not mandatory. 1. Factual Background. In 2012 Ms. Hernandez started a business that she called “Charlie’s Project.” Her aims, on behalf of her son Charlie, were to design and – 2 – sell children’s and women’s clothing that would help raise awareness about autism and Down syndrome, and to support charitable organizations with proceeds from selling such clothing. Although Hernandez did business under the name “Charlie’s Project” for several years, she did not form the corporate entity Charlie’s Project LLC (“CP”) until January 17, 2017, shortly after entering into the contracts at issue here. 1.1. The Distribution and Services Agreements. In the fall of 2016, Branden McDaniel proposed that he help distribute Charlie’s Project products. Ms. Hernandez agreed. Mr. McDaniel and two other people formed defendant T2B LLC as a Delaware limited liability company on December 1, 2016. Three days later T2B and Hernandez entered […]