Silva v. Todisco Services, Inc. (Lawyers Weekly No. 09-027-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Todisco Services, Inc., towed Christopher Silva’s motor vehicle without his consent from a private parking lot. This was a “trespass tow,” made at the request of the property owner or manager pursuant to G.L. c. 266, § 120D. Silva alleges that the mileage charge and fuel surcharge imposed by Todisco were illegal because the invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a Department of Public Utilities (“DPU”) regulation that establishes maximum rates for involuntary tows. Silva asserts claims for violation of G.L. c. 93A, declaratory relief, negligent misrepresentation, intentional fraud, and unjust enrichment. Silva has moved to certify a class of plaintiffs whose passenger vehicles were towed without their consent by Todisco, either as a trespass tow or as a “police tow” made at the request of a local police department, and who were assessed similar surcharges without being provided information required by the DPU regulation. Todisco asserts that this action is moot because Todisco tendered payment of the full treble damages Silva seeks for himself under G.L. c. 93A. In the alternative Todisco urges the Court either to deny class certification completely or to certify a narrower class consisting only of people subjected to trespass tows. The Court concludes that Todisco’s attempt to “pick off” the named plaintiff did not moot Silva’s individual claims or the class action. It will allow the class certification motion in part and, in the exercise of its discretion, will certify a class of “trespass tow” plaintiffs for the purposes of the claims asserted under c. 93A and for declaratory relief. But it will deny the motion to the extent that Silva seeks to include “police tow” plaintiffs in the class, and to the extent that he seeks to certify a class with respect to the misrepresentation, fraud, and unjust enrichment claims. – 2 – 1. Effect of Tender to Named Plaintiff. Todisco argues that Silva’s individual claims are moot, and that therefore class certification is inappropriate,1 because Todisco has already tendered the maximum amount of compensation that Silva himself could possibly recover in this action. Silva (or his son acting on his behalf) paid Todisco $ 169.00 to regain his vehicle after Todisco had towed it. In May 2017, almost 20 months after Silva filed this suit, Todisco sent Silva a check for three times that amount ($ 507.00). Todisco said in its cover letter that it tendered this payment “without any conditions and/or restrictions.” Silva responded by saying […]
Commonwealth v. Harris (Lawyers Weekly No. 11-031-18)
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 17-P-123 Appeals Court COMMONWEALTH vs. JESSE HARRIS. No. 17-P-123. Suffolk. December 18, 2017. – March 19, 2018. Present: Green, C.J., Vuono, Wolohojian, Kinder, & Englander, JJ. Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Threshold Police Inquiry. Firearms. Evidence, Firearm, Knife, Flight. Practice, Criminal, Stipulation, Motion to suppress. Indictments found and returned in the Superior Court Department on November 13, 2015. A pretrial motion to suppress evidence was heard by Robert N. Tochka, J., and the cases were heard by Robert B. Gordon, J., on a statement of agreed facts. Rosemary Daly for the defendant. Meghan Joyce, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth. ENGLANDER, J. This case raises an issue as to the reasonableness of police conduct when the police engaged with, and ultimately stopped and seized, persons walking in a public area. The defendant appeals from his convictions of illegal possession of a firearm and carrying a loaded firearm without a license, claiming that (1) the firearm was seized in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and (2) the trial judge failed to conduct the necessary waiver colloquy before convicting the defendant based upon stipulated facts. Because, as the Commonwealth acknowledges, the required colloquy did not occur, the judgments must be vacated and the findings set aside. That leaves the search and seizure issue, which has been fully briefed and argued and which bears on any future proceedings. See Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289 (2009). The seizure of the gun resulted from what began as a “casual” encounter between the defendant, his two companions, and the Northeastern University (university) police, outdoors on a September afternoon in the middle of the university’s campus. The defendant contends that he and his companions were stopped or seized, for constitutional purposes, without the required reasonable suspicion, and that the gun accordingly must be suppressed. A Superior Court judge denied the defendant’s pretrial motion to suppress the gun, concluding that the initial conversations with police were consensual and that no stop occurred until after the police officers had observed a knife on the defendant’s person, at […]
Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)
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 17-P-174 Appeals Court WILLIAM A. BRUNO, trustee,[1] & another[2] vs. ZONING BOARD OF APPEALS OF TISBURY & others.[3] No. 17-P-174. Suffolk. November 9, 2017. – March 19, 2018. Present: Meade, Shin, & Ditkoff, JJ. Subdivision Control, Approval not required, Zoning requirements. Zoning, Enforcement, Nonconforming use or structure. Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations. Limitations, Statute of. Civil action commenced in the Land Court Department on May 2, 2014. The case was heard by Gordon H. Piper, J., on motions for summary judgment. Douglas A. Troyer for the plaintiffs. Howard M. Miller for Samuel Goethals & another. Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury. DITKOFF, J. The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos’ request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals). The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot. We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan. As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board. Background. The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury. The Goethals’ property (Lot 1) and the Brunos’ property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930’s. The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960. In 1978, the planning board of Tisbury […]
Citadel Realty, LLC v. Endeavor Capital North, LLC, et al. (Lawyers Weekly No. 11-033-18)
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 16-P-735 Appeals Court CITADEL REALTY, LLC vs. ENDEAVOR CAPITAL NORTH, LLC, & others.[1] No. 16-P-735. Suffolk. November 7, 2017. – March 19, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Practice, Civil, Interlocutory appeal, Motion to dismiss, Declaratory proceeding. Lis Pendens. Declaratory Relief. Mortgage, Foreclosure, Discharge. Notice, Foreclosure of mortgage. Real Property, Mortgage. Civil action commenced in the Superior Court Department on January 29, 2016. A special motion to dismiss was heard by William F. Sullivan, J. Jonas A. Jacobson for the plaintiff. Scott K. DeMello (Rosemary A. Traini also present) for the defendants. WENDLANDT, J. This appeal presents occasion to clarify the scope of this court’s review of an interlocutory order denying a special motion to dismiss brought pursuant to G. L. c. 184, § 15, the lis pendens statute. Here, the defendants sought to dismiss the entire action, including (1) one claim supporting the memorandum of lis pendens and affecting title, and (2) other claims that were not the basis for the lis pendens. We hold that our review is limited to those portions of the interlocutory order supporting the memorandum of lis pendens. Citadel Realty, LLC (Citadel), filed a complaint in the Superior Court against the defendants, seeking to void the foreclosure sale of Citadel’s real property in the Dorchester section of Boston (property). In addition, Citadel sought damages and reformation of the underlying mortgages. Following the filing of its verified amended complaint, Citadel filed a motion for approval of a memorandum of lis pendens, pursuant to G. L. c. 184, § 15(b), which was allowed. The defendants filed a motion opposing the approval of the memorandum of lis pendens and seeking to dismiss the complaint, which was, in part, a special motion to dismiss pursuant to G. L. c. 184, § 15(c). The motion was denied. The defendants filed the present interlocutory appeal from the denial of their motion to dismiss, purporting to appeal the motion judge’s decision declining to dismiss both the claim supporting the lis pendens and affecting title, and the claims that did not support the lis pendens. Background. We set forth the facts from the verified pleadings and affidavits that were before the judge. G. L. c. 184, § 15(c). In 2011, Mario Lozano approached Endeavor Capital, LLC (Endeavor),[2] seeking a loan in connection with the property. […]
Commonwealth v. Sutherland (Lawyers Weekly No. 11-034-18)
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-44 Appeals Court COMMONWEALTH vs. ADMIRAL SUTHERLAND. No. 17-P-44. Hampden. January 19, 2018. – March 19, 2018. Present: Blake, Neyman, & Ditkoff, JJ. Controlled Substances. Evidence, Profile, Expert opinion, Authentication, Chain of custody. Witness, Expert. Practice, Criminal, Required finding, New trial, Assistance of counsel. Indictment found and returned in the Superior Court Department on October 13, 2010. The case was tried before John A Agostini, J., a motion for a new trial was considered by him, and a motion for reconsideration was considered by him. Barbara J. Sweeney for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. BLAKE, J. Following a jury trial in the Superior Court, the defendant, Admiral Sutherland, was convicted of possession with intent to distribute heroin. Thereafter, he pleaded guilty to a charge that it was a subsequent offense. His motions for a new trial and for reconsideration were denied without a hearing. On appeal, the defendant claims that the admission of improper so-called “negative profiling” evidence amounted to reversible error, that there was insufficient evidence that the substance was heroin, and that it was an abuse of discretion to deny his motion for new trial. We affirm. Background. The jury could have found the following facts. On September 11, 2010, Massachusetts State police Trooper Luis Rodriguez was conducting a community walk through[1] in Springfield. Rodriguez noticed a black Nissan being driven by the defendant, who he knew did not have a valid driver’s license. After the defendant parked the Nissan, Rodriguez arrested him for driving with a suspended license. While searching the defendant, Rodriguez found a package of cigarettes, which contained three bundles. Each bundle contained ten bags of what Rodriguez believed to be heroin. Rodriguez also found a small bag of what he believed to be marijuana in the defendant’s possession. Within earshot of the defendant, Rodriguez discussed with another trooper his intention to apply for a warrant to search the defendant’s home. Upon their arrival at the State police barracks, the defendant asked to use the telephone to arrange transportation for his daughter. Rodriguez dialed the telephone number provided by the defendant and handed him the telephone. The defendant said into the receiver, “They’re coming. They’re coming.” Rodriguez immediately ended the telephone call and asked the […]
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Rafferty v. Merck & Co., Inc., et al. (Lawyers Weekly No. 10-041-18)
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-12347 BRIAN RAFFERTY vs. MERCK & CO., INC., & another.[1] Middlesex. November 6, 2017. – March 16, 2018. Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ. Negligence, Pharmaceutical manufacturer, Adequacy of warning, Duty to warn, Standard of care. Actionable tort. Public Policy. Consumer Protection Act, Unfair or deceptive act, Trade or commerce. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on October 10, 2013. A motion to dismiss was heard by Kenneth J. Fishman, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Emily E. Smith-Lee for the plaintiff. Richard L. Neumeier (Aaron Rice, of Mississippi, & David L. Johnson, of Tennessee, also present) for Merck & Co., Inc. The following submitted briefs for amici curiae: Michael X. Imbroscio & Gregory L. Halperin, of the District of Columbia, & Paul W. Schmidt for Pharmaceutical Research and Manufacturers of America & others. Mark C. Fleming & Tyler L. Sparrow for International Association of Defense Counsel. Hugh F. Young, Jr., of Virginia, & David R. Greiger & Richard G. Baldwin for Product Liability Advisory Council, Inc. Kannon K. Shanmugam, Allison Jones Rushing, & Connor S. Sullivan, of the District of Columbia, & Jennifer G. Wicht for Chamber of Commerce of the United States of America. Lawrence G. Cetrulo, Kyle E. Bjornlund, Elizabeth S. Dillon, & Brian D. Fishman for Massachusetts Defense Lawyers Association. GANTS, C.J. Under Federal law, a manufacturer of a generic drug must provide its users with a warning label that is identical to the label of the brand-name counterpart. See PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011) (PLIVA). The issue on appeal is whether a plaintiff who alleges that he was injured from his use of a generic drug, because of a failure to warn of the drug’s side effects, may bring a common-law general negligence claim and a statutory claim under G. L. c. 93A against the brand-name drug manufacturer that created the warning label. Applying our general principles of tort law and as a matter of public policy, we conclude that the plaintiff may not bring a negligence claim against the brand-name manufacturer for a failure to warn. We […]
Commonwealth v. Brown (Lawyers Weekly No. 10-042-18)
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-12313 COMMONWEALTH vs. JOHNELLE M. BROWN. Middlesex. November 7, 2017. – March 16, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Assault and Battery. Intimidation of Witness. Witness, Intimidation. District Court, Jurisdiction. Practice, Criminal, New trial, Assistance of counsel, Instructions to jury, Sentence, Allocution, Restitution. Restitution. Complaint received and sworn to in the Cambridge Division of the District Court Department on May 2, 2014. The case was tried before Michele B. Hogan, J.; a restitution hearing was held before Daniel C. Crane, J.; and a motion for postconviction relief was heard by Hogan, J. The Supreme Judicial Court granted an application for direct appellate review. Luke Rosseel for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness intimidation. After beginning the sentencing hearing, the trial judge revoked the defendant’s bail and delayed sentencing for four days. After reconvening, the judge imposed a sentence of a one-year commitment to a house of correction, suspended for two years, probation, and restitution. The defendant disputes the District Court’s jurisdiction over the witness intimidation prosecution. The defendant also appeals from the denial of her motion for a new trial, revocation of bail, and order of payment of restitution. We affirm. Facts. We recite the facts as the jury could have found them, reserving certain facts for later discussion. Mahboobe Aria and Mehdi Aria[1] managed a restaurant. On April 6, 2014, the restaurant closed at 2:30 A.M. At approximately 2:40 A.M., Mahboobe and Mehdi were completing tasks relevant to closing the restaurant. Mehdi was outside, cleaning the outdoor seating. Mahboobe was inside. The defendant and a man arrived in an automobile and parked outside the restaurant. The man was not identified by name at trial, but the defendant’s motion for a new trial, appellate brief, and affidavits identify this man as Tyrell Carr. Carr remained in the automobile while the defendant went into the restaurant. Mahboobe was near the cash register when the defendant walked into the restaurant. Mahboobe told the defendant that the restaurant was closed. The defendant said that she needed to use the bathroom. Mahboobe refused to allow the defendant to […]
Boston Restoration Resources, Inc. v. Pitts, et al. (Lawyers Weekly No. 09-026-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 17-1142-C BOSTON RESTORATION RESOURCES, INC. v. LORENZO PITTS, INCORPORATED, WILLETTA PITTS-GIVENS, REBECCA MAUTNER, LESLIE BOS, and JAMAICA PLAIN NEIGHBORHOOD DEVELOPMENT CORPORATION MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO QUASH DEPOSITION SUBPOENA TO KEEPER OF RECORDS OF UNITED HOUSING MANAGEMENT, LLC Plaintiff Boston Restoration Resources, Inc. (“BRI”) has brought a Rule 45(d) motion to quash a document subpoena served on non-party United Housing Management, LLC. The thrust of BRI’s motion is that the subpoena is unreasonably over-broad and burdensome, and seeks documents relevant only to a previously asserted theory of damages it has since abandoned. United Housing Management has to date defied the subpoena served upon it, but has not joined this motion. Mass. R. Civ. P. 45(f)(3) provides that “[a]ny person subject to a subpoena under this rule may move the court (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.” Inasmuch as BRI is not “the person subject to subpoena” under Rule 45, and does not maintain that production of the documents sought thereby would invade any legal right or privilege it has in the same, it lacks standing to assert objections on behalf of United Housing Management. See In re Stone & Webster Securities Litigation, 2006 WL 2818489, at *2-3 (D. Mass. 2006) (a party has no standing to object to a subpoena directed to a non-party); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena addressed to a non-party witness.”). See generally P. Lauriat et al., Discovery, 49A Mass. Practice _ 8:23, at 289 and n.21 (3d ed. 2017) (“In general a party has no standing to assert objections to a subpoena on behalf of a non-party.”). It is true, as BRI points out, that “[a] party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.” Enargy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014). See also P. Lauriat, supra, 49A Mass. Practice _ 8:23, at 289 (“A party may assert objections as to a subpoena served on a non-party … where the objections relate to rights of that party rather than the non-party.”). This is not the case in BRI’s present motion. BRI […]
In the Matter of E.C. (Lawyers Weekly No. 10-039-18)
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-12230 IN THE MATTER OF E.C. Plymouth. November 9, 2017. – March 15, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Incompetent Person, Commitment. Practice, Civil, Civil commitment. Petition for civil commitment filed in the Brockton Division of the District Court Department on March 4, 2013. The case was heard by Beverly J. Cannone, J., and a motion for reconsideration was also heard by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Beth L. Eisenberg for E.C. Edward J. O’Donnell for Bridgewater State Hospital. Lester D. Blumberg, for Department of Mental Health, amicus curiae, submitted a brief. GAZIANO, J. In this appeal, we consider whether the dismissal of the criminal charge pending against the respondent, E.C., required his release from commitment to Bridgewater State Hospital (Bridgewater), where the charge was dismissed after the period of commitment had expired, and a petition to extend the commitment had yet to be decided. E.C. was charged in the Boston Municipal Court Department with malicious destruction of property. Following a hearing pursuant to G. L. c. 123, § 16 (b), a judge of that court found E.C. not competent to stand trial and ordered him committed to Bridgewater for a period of six months. After that period had expired, Bridgewater filed a petition in the District Court Department to extend the commitment for an additional period of one year, pursuant to G. L. c. 123, § 16 (c). While the petition for an extension was pending, the criminal charge against E.C. was dismissed. Bridgewater moved to file an amended petition to modify its pending G. L. c. 123, § 16 (c), petition to a petition for civil commitment pursuant to G. L. c. 123, §§ 7 and 8. E.C. opposed the motion and argued that Bridgewater was required to release him because the criminal charge had been dismissed. A District Court judge concluded that Bridgewater had no authority to hold E.C. pursuant to G. L. c. 123, § 16 (c), after the criminal charge had been dismissed and his original commitment had expired; denied Bridgewater’s petition to amend; and ordered E.C. discharged.[1] The Appellate Division of the District Court affirmed that judgment, and the Appeals Court reversed. See Matter of E.C., 89 Mass. App. Ct. 813 (2016). We allowed E.C.’s application for further appellate review. We conclude […]
Commonwealth v. Wright (Lawyers Weekly No. 10-040-18)
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-11950 COMMONWEALTH vs. JOSEPH WRIGHT. Essex. November 10, 2017. – March 15, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ. Homicide. Constitutional Law, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement, Expert opinion, Exculpatory, Intoxication. Mental Impairment. Intoxication. Practice, Criminal, Capital case, Admissions and confessions, Voluntariness of statement, Discovery, Assistance of counsel, Preservation of evidence. Witness, Expert. Indictments found and returned in the Superior Court Department on June 28, 2012. A pretrial motion to suppress evidence was heard by Richard E. Welch, III, J., and the cases were tried before Howard J. Whitehead, J. David H. Mirsky (Joanne T. Petito also present) for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. CYPHER, J. The defendant, Joseph Wright, appeals from two convictions of murder in the first degree. He urges the reversal of his convictions on four grounds. First, he contends that the pretrial motion judge erroneously denied his motion to suppress statements he made to Canadian law enforcement officers. Second, he argues that the trial judge committed a reversible error in ordering the pretrial disclosure of the defendant’s mental health expert’s report regarding the defendant’s mental condition at the time of the crimes, which the prosecution had in its possession during its subsequent cross-examination of the defendant. Third, the defendant argues that the evidence at trial demonstrates his lack of criminal responsibility for the murders, and relatedly, that his trial counsel’s failure to argue a lack of criminal responsibility defense before the jury constitutes ineffective assistance of counsel. Fourth, he argues that State police investigators failed to collect certain evidence relevant to his intoxication at the time of the crimes, thereby denying the defendant his right to a “complete defense.” Having considered the defendant’s arguments, and, more broadly, “the whole case on the law and the facts” pursuant to our duty under G. L. c. 278, § 33E, Commonwealth v. Howard, 469 Mass. 721, 747 (2014), we affirm the convictions. Factual and procedural background. We recite the facts the jury could have found in the light most favorable to the Commonwealth, but we reserve certain details of the facts and proceedings for discussion of the individual issues. The defendant does not dispute that he killed […]