Adoption of Douglas (and five companion cases) (Lawyers Weekly No. 10-022-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11918 ADOPTION OF DOUGLAS (and five companion cases[1]). February 17, 2016. Adoption, Standing, Visitation rights, Care and protection. Parent and Child, Adoption, Care and protection of minor. Minor, Visitation rights, Care and protection. Practice, Civil, Care and protection proceeding, Assistance of counsel. Supreme Judicial Court, Superintendence of inferior courts. These cases are appeals of consolidated care and protection petitions concerning six children — Douglas, Tom, Brian, Mark, Cole, and Frank. The appeals are brought by the biological mother of the six children; by the biological father of the two oldest children (father I) — Douglas and Tom; and by four of the children — Douglas, Tom, Brian, and Mark. They appeal from the provisions of decrees of the Juvenile Court denying parental visitation after termination of the parental rights of the mother, father I, and the biological father of the four younger children (father II) — Brian, Mark, Cole, and Frank.[2] The Appeals Court, in a memorandum and order pursuant to its rule 1:28, dismissed the appeals of the mother and father I. It concluded that neither had standing to challenge the orders concerning visitation because their parental rights had been terminated after the consolidated hearings, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, were concluded, and they had not appealed from the entry of the termination decrees. See Adoption of Douglas, 87 Mass. App. Ct. 1118 (2015). With respect to the appeal of the four children, the Appeals Court affirmed the decrees of the Juvenile Court. Id. We granted further appellate review, and affirm the Juvenile Court judge’s decrees. Background. The Department of Children and Families (department) filed a care and protection petition on behalf of Douglas, Tom, Brian, and Mark, alleging neglect due to substance use and domestic abuse of all four children. The department subsequently filed a care and protection petition on behalf of Cole and Frank, and the two petitions were consolidated. On March 3, 2010, the mother, father I, and father II each stipulated to his or her current unfitness and that their respective children were in need of care and protection.[3] On June 3 or 4, 2013, each of the parents submitted a written stipulation acknowledging his or her current unfitness, agreeing to the issuance of a decree terminating his or her respective parental […]
Commonwealth v. Mitchell (and two companion cases) (Lawyers Weekly No. 11-010-16)
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 12-P-719 Appeals Court COMMONWEALTH vs. MARKEESE MITCHELL (and two companion cases[1]). No. 12-P-719. Suffolk. September 10, 2015. – January 28, 2016. Present: Green, Rubin, & Hanlon, JJ. Homicide. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Sentence, Severance, Confrontation of witnesses, Argument by prosecutor, Instructions to jury. Evidence, Voluntariness of statement, Statement of codefendant, Verbal completeness, Relevancy and materiality, Knife, Bias. Constitutional Law, Admissions and confessions, Voluntariness of statement, Sentence, Confrontation of witnesses. Indictments found and returned in the Superior Court Department on April 18, 2008. Pretrial motions to suppress evidence and to sever were heard by Charles J. Hely, J.; the cases were tried before Judith Fabricant, J., and a motion for a postconviction evidentiary hearing, filed on December 3, 2012, was heard by her. Richard L. Goldman for Terrance Pabon. Richard B. Klibaner for Pedro Ortiz. Jeanne M. Kempthorne for Markeese Mitchell. Amanda Teo, Assistant District Attorney (Mark A. Hallal, Assistant District Attorney, with her) for the Commonwealth. HANLON, J. After a jury trial, the defendants, Markeese Mitchell, Terrance Pabon, and Pedro Ortiz were convicted of murder in the second degree in connection with the stabbing death of Terrance Jacobs. Paul Goode also was indicted, tried with the defendants, and convicted of murder in the second degree. Goode’s direct appeal originally was consolidated with the others; however, by motion and pursuant to an order of this court, Goode’s appeal was severed. Goode’s statement to the police was admitted at trial and is the predicate for one of thedefendants’ common claims of error, under Bruton v. United States, 391 U.S. 123, 135-137 (1968). Pabon and Mitchell claim error in the denial of their respective motions to suppress their statements to the police. They also contend that, because they were between the ages of fourteen and seventeen when the crime occurred, they ought to have been afforded individualized sentencing, in light of Miller v. Alabama, 132 S. Ct. 2455 (2012), and Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013). In addition, some or all of the defendants claim error in the admission of Pabon’s statement to the police; certain evidentiary rulings at trial; certain remarks made by the prosecutor in closing argument; the denial of their request for a jury instruction on withdrawal from […]
Commonwealth v. Hyde (and seven companion cases) (Lawyers Weekly No. 11-192-15)
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 12-P-867 Appeals Court COMMONWEALTH vs. JAMES C. HYDE (and seven companion cases[1]). No. 12-P-867. Essex. June 12, 2015. – December 21, 2015. Present: Cohen, Green, & Trainor, JJ. Insurance, Motor vehicle insurance, Fraud and concealment, Defrauding insurer. Motor Vehicle, Insurance. Fraud. Larceny. Practice, Criminal, Instructions to jury, Grand jury proceedings, Indictment. Grand Jury. Evidence, Intent, Inference, Grand jury proceedings, Relevancy and materiality, Prior misconduct, Testimony before grand jury, Credibility of witness. Probable Cause. Witness, Credibility. Indictments found and returned in the Superior Court Department on April 4, 2008. The cases were tried before Howard J. Whitehead, J. Edward Foye (David Meier with him) for James C. Hyde. Sarah E. Dolven for Omar Castillo. Argie K. Shapiro, Assistant Attorney General (William R. Freeman, Special Assistant Attorney General, with her) for the Commonwealth. COHEN, J. Following a multi-year inquiry by investigators from the Massachusetts Insurance Fraud Bureau and the city of Lawrence police department, a grand jury indicted the defendants, James C. Hyde, Michael H. Kaplan, and Omar Castillo, for crimes arising from the submission of fraudulent automobile insurance claims.[2] The defendants later were tried together before a Superior Court jury. Hyde, an attorney at the law firm of Berger & Hyde, P.C., was convicted of two counts each of motor vehicle insurance fraud (see G. L. c. 266, § 111B), larceny over $ 250 (see G. L. c. 266, § 30), and attempted larceny over $ 250 (see G. L. c. 274, § 6). Kaplan, a chiropractor and owner of the Kaplan Chiropractic clinic, was convicted of three counts of motor vehicle insurance fraud, and two counts each of larceny over $ 250 and attempted larceny. Castillo, an employee of Kaplan Chiropractic, was convicted of one count each of motor vehicle insurance fraud and larceny over $ 250. Before us are the appeals of Hyde and Castillo.[3] Hyde’s convictions resulted from insurance claims submitted on behalf of clients purporting to have been injured in two staged automobile accidents — one alleged to have occurred on October 1, 2002, and the other alleged to have occurred on December 20, 2002. Hyde’s primary contention on appeal is that the Commonwealth failed to establish at both the grand jury and petit jury stages of the case that he knew that these particular accidents were staged. On this ground, he maintains that both his […]
Commonwealth v. Tewolde (and five companion cases) (Lawyers Weekly No. 11-154-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1689 Appeals Court COMMONWEALTH vs. YONAS TEWOLDE (and five companion cases[1]). No. 13-P-1689. Suffolk. January 5, 2015. – October 1, 2015. Present: Katzmann, Sullivan, & Blake, JJ. Homicide. Constitutional Law, Admissions and confessions, Voluntariness of statement, Self-incrimination, Grand jury, Search and seizure, Probable cause. Practice, Criminal, Admissions and confessions, Grand jury proceedings, Motion to suppress. Witness, Privilege, Self-incrimination. Search and Seizure, Expectation of privacy, Probable cause. Probable Cause. Cellular Telephone. Indictments found and returned in the Superior Court Department on July 8, 2011. Pretrial motions to suppress evidence were heard by Charles J. Hely, J. Applications for leave to prosecute interlocutory appeals were allowed by Fernande R. V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by her to the Appeals Court. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Elda S. James for Karl Prescott. Matthew A. Kamholtz for Yonas Tewolde. KATZMANN, J. This is an interlocutory appeal taken from rulings in a suppression proceeding, and presents the following questions: whether a statement, given in an interview prior to grand jury testimony by a defendant who had been subpoenaed to testify after previously asserting that he did not wish to speak without an attorney, was voluntary; whether testimony before the grand jury was given in violation of the privilege against self-incrimination; and whether cellular tower data and cell site location information were obtained in violation of the protections against unreasonable searches and seizure. The case arises from the shooting murder of Paul Fagan. The two defendants here, Yonas Tewolde and Karl Prescott, were each indicted on charges of murder in the first degree of Paul Fagan, unlawful possession of a firearm, and unlawful possession of a loaded firearm. They were both subpoenaed to testify before a grand jury; they did so testify, and subsequently moved to suppress that testimony. Tewolde also submitted to an interview on June 7, 2010, prior to his grand jury testimony, and moved to suppress his interview statements. A Superior Court judge (motion judge) allowed both of Tewolde’s motions to suppress, suppressing the interview statements on the grounds that Tewolde’s submission to the interview was involuntary and suppressing the grand jury testimony on the grounds that he should not have been compelled to testify […]
Commonwealth v. Estabrook (and nine companion cases) (Lawyers Weekly No. 10-167-15)
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-11833 COMMONWEALTH vs. JASON ESTABROOK (and nine companion cases[1]). Middlesex. May 7, 2015. – September 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Cellular Telephone. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Expectation of privacy, Probable cause, Warrant, Affidavit, Fruits of illegal search. Probable Cause. Evidence, Result of illegal search. Practice, Criminal, Warrant, Affidavit. Indictments found and returned in the Superior Court Department on December 6, 2012. Pretrial motions to suppress evidence were heard by Kathe M. Tuttman, J. Applications for leave to file interlocutory appeals were allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by her. George E. Murphy, Jr., for Jason Estabrook. Daniel Beck (Susan M. Costa with him) for Adam Bradley. Jamie Michael Charles, Assistant District Attorney (David Marc Solet, Assistant District Attorney, with him) for the Commonwealth. Andrew Sellars, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. BOTSFORD, J. In this case, we consider again a search of historical cellular site location information (CSLI).[2] See Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass. 837 (2015). The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley’s cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant. The defendants also sought suppression of statements they each made to police in 2012, following the receipt of Bradley’s CSLI. A judge of the Superior Court denied the motions after an evidentiary hearing; the defendants filed these interlocutory appeals. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). Returning to an issue briefly touched on in Augustine, 467 Mass. at 255 n.37, we conclude that a defendant’s reasonable expectation of privacy protected under art. 14 of the Massachusetts Declaration of Rights is not violated where the Commonwealth requests up to six hours of historical CSLI without obtaining a search warrant. In this case, however, […]
Adoption of Eden (and two companion cases) (Lawyers Weekly No. 11-139-15)
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-220 Appeals Court ADOPTION OF EDEN (and two companion cases[1]). No. 14-P-220. Worcester. October 2, 2014. – September 11, 2015. Present: Green, Rubin, & Agnes, JJ. Minor, Care and protection. Parent and Child, Care and protection of minor. Practice, Civil, Care and protection proceeding. Child Abuse. Petition filed in the Worcester Division of the Juvenile Court Department on January 4, 2011. Following review by this court, 87 Mass. App. Ct. 1109 (2015), the case was heard by Anthony J. Marotta, J. Tamar M. Gureghian for the mother. S. Michael Fournier for the father. Roy Vincent Montoya for Department of Children and Families. Christine M. Durkin for the children. RUBIN, J. This case involves the proper role of allegations in decisions involving the termination of parental rights, and the proper role of the appellate courts in reviewing those decisions. Both the mother and the father appealed in this case from decrees terminating their parental rights to their three minor children, Eden, Sam, and Mark. We affirmed the decrees with respect to the mother, but remanded the father’s case to the Juvenile Court judge for clarification of the basis of his decision with respect to the father. See Adoption of Eden, 87 Mass. App. Ct. 1109 (2015). The judge issued supplemental findings of fact and conclusions of law, and we now affirm. 1. Background. There was never any doubt in this case that the evidence was sufficient to support the termination of the father’s parental rights. See Adoption of Peggy, 436 Mass. 690, 701 (2002) (“Before a judge may award permanent custody of the child to the department, the judge must find, by clear and convincing evidence, that the natural parent is unfit to further the welfare and best interests of the child”). In his original findings of fact and conclusions of law, the judge documented many specific instances of behavior that either harmed the children or placed the children at a great risk of harm. Among other things, the judge found, and it is not contested, that Eden, the oldest child, was left at home when she was five years old to babysit the then one year old middle child, Sam, who has sickle cell anemia. After the Department of Children and Families (department) obtained custody of the children, parental visits with the […]
Commonwealth v. Melucci (and six companion cases) (Lawyers Weekly No. 11-124-15)
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-1116 Appeals Court COMMONWEALTH vs. MICHAEL J. MELUCCI (and six companion cases[1]). No. 14-P-1116. Bristol. June 2, 2015. – August 31, 2015. Present: Cypher, Vuono, & Grainger, JJ. Practice, Criminal, Dismissal, Continuance. Complaints received and sworn to in the Taunton Division of the District Court Department on April 29, 2013. The complaints were ordered dismissed by Gregory L. Phillips, J. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. CYPHER, J. The Commonwealth appeals from orders of the District Court dismissing with prejudice the complaints against the defendants charging various firearms offenses.[2] We reverse. Background. The defendants were arraigned in April, 2013, and the cases were scheduled for probable cause hearings in June, 2013. After requests for a continuance made by defense counsel, the probable cause hearings were rescheduled for August, 2013. Due to court congestion in August, 2013, the hearings were continued to September, 2013. At the September, 2013, hearing date, at least one defense attorney did not appear and the case was again continued to November, 2013.[3] For reasons unclear from the docket, the hearings were then continued to two dates in January, 2014, and then to February, 2014. No objection appears on the dockets. At the time of the probable cause hearing in February, 2014, the assistant district attorney assigned to the cases was on trial in Superior Court and was therefore unable to appear in District Court. A different assistant district attorney appearing on behalf of the Commonwealth asked for a continuance, noting for the judge that the cases were “going to be a disposition.” The judge denied the Commonwealth’s request and, sua sponte, dismissed the cases with prejudice for want of prosecution.[4] In March, 2014, the parties filed joint motions to vacate the dismissals with supporting affidavits from the assistant district attorney assigned to the cases and defense counsel. The affidavits detailed the plea negotiations between the parties and defense counsel averred that the defendants did not suffer any prejudice from the repeated continuances. The judge denied the motions without a hearing. The Commonwealth now appeals.[5] Discussion. “Dismissal with prejudice is appropriate in cases of egregious prosecutorial misconduct or on a showing of prejudice (or a substantial threat thereof), or irremediable harm to the defendant’s opportunity to obtain a fair trial.” Commonwealth v. Hernandez, 421 Mass. 272, 277 (1995) (quotation […]
Commonwealth v. McGhee (and seven companion cases) (Lawyers Weekly No. 10-138-15)
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-11821 COMMONWEALTH vs. TYSHAUN McGHEE (and seven companion cases[1]). Suffolk. April 6, 2015. – August 13, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Exploitation of People. Trafficking. Deriving Support from Prostitution. Statute, Validity, Construction. Due Process of Law, Vagueness of statute. Constitutional Law, Vagueness of statute, Freedom of association. Grand Jury. Witness, Cross-examination, Impeachment, Bias. Evidence, Cross-examination, Testimony before grand jury, Impeachment of credibility, Bias, Prior misconduct, Sexual conduct. Rape-Shield Statute. Practice, Criminal, Grand jury proceedings, Transcript of testimony before grand jury, Assistance of counsel, Confrontation of witnesses, Sentence. Words, “Commercial sexual activity.” Indictments found and returned in the Superior Court Department on December 19, 2012. The cases were tried before Diane M. Kottmyer, J. The Supreme Judicial Court granted an application for direct appellate review. Sharon Dehmand for Tyshaun McGhee. David M. Jellinek for Sidney McGee. Matthew T. Sears, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Amy Farrell, pro se. Maura Healey, Attorney General, & Susanne G. Reardon, Assistant Attorney General, for the Attorney General. Julie Dahlstrom, Felicia H. Ellsworth, Tasha Bahal, & Michelle L. Sandals for Ascentria Care Alliance & others. SPINA, J. In this case, we are asked to consider, for the first time, the constitutionality of the Massachusetts sex trafficking statute. On November 21, 2011, the Legislature approved “An Act relative to the commercial exploitation of people,” which criminalized sexual servitude, forced labor, and organ trafficking as of its effective date of February 19, 2012. St. 2011, c. 178, §§ 1-31. The portions of the enactment at issue here, pertaining to the trafficking of persons for sexual servitude, were codified at G. L. c. 265, §§ 49, 50. See St. 2011, c. 178, § 23. General Laws c. 265, § 50 (a), states, in relevant part: “Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means . . . another person to engage in commercial sexual activity . . . or causes a person to engage in commercial sexual activity . . . or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be […]
Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (and two companion cases) (Lawyers Weekly No. 10-130-15)
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-11818 ALFREDO TIRADO vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (and two consolidated cases[1]). Norfolk. Worcester. Suffolk. May 5, 2015. – July 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Carrier, License. Practice, Criminal, Conviction, Admission to sufficient facts to warrant finding, Continuance without a finding. Civil action commenced in the Superior Court Department on January 3, 2013. The case was heard by Kenneth J. Fishman, J., on a motion for judgment on the pleadings. Civil action commenced in the Superior Court Department on February 28, 2013. The case was heard by Robert B. Gordon, J., on a motion for judgment on the pleadings. Civil action commenced in the Superior Court Department on March 28, 2013. The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings. After consolidation of the cases in the Appeals Court, the Supreme Judicial Court granted an application for direct appellate review. David R. Marks, Assistant Attorney General, for the defendants. Dana Alan Curhan for Scott Channing. Ryan E. Alekman, for Alfredo Tirado, was present but did not argue. Cornelius J. Madera, III, for John J. Kelly, was present but did not argue. William A. Quade, for United States Department of Transportation Federal Motor Carrier Safety Administration, amicus curiae, submitted a brief. SPINA, J. In these consolidated appeals, we are asked to determine if a defendant’s admission to sufficient facts to warrant a finding of guilty and a judge’s continuance of the case without a finding (CWOF) constitute a “conviction” as that term is defined in G. L. c. 90F, § 1,[2] governing the licensure of commercial drivers. Judges in the Superior Court determined that it did not and vacated the decisions of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) upholding the suspension of the commercial drivers’ licenses (CDLs) at issue by the registrar of motor vehicles (registrar). The board and the registrar appealed. The Appeals Court consolidated the three appeals, and we granted the parties’ joint application for direct appellate review. As we explain, we […]
Commonwealth v. Kelly (and 11 companion cases) (Lawyers Weekly No. 10-026-15)
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-11616 COMMONWEALTH vs. AMANDA KELLY (and eleven companion cases[1]). Plymouth. October 7, 2014. – February 20, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Assault or Battery for the Purpose of Intimidation. Civil Rights. Practice, Criminal, Instructions to jury, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on August 14, 2008. The cases were tried before Paul E. Troy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kirsten A. Zwicker Young (Glen A. Tagliamonte with her) for Amanda Kelly. Meghan E. Tafe Vadakekalam for Christopher M. Bratlie. Thomas C. Foley for Kevin P. Shdeed. Kristin Freeman, Assistant District Attorney, for the Commonwealth. Steven M. Freeman, Melissa Garlick, Lauren A. Jones, & Seth M. Marnin, of New York, & Michael N. Sheetz & Adam S. Gershenson, for Anti-Defamation League & others, amici curiae, submitted a brief. SPINA, J. This case arises from events that transpired shortly after midnight on June 12, 2008, during a house party in Marshfield where multiple guests, who are Caucasian, committed acts of physical violence against Tizaya Robinson, who is African-American. Following a jury trial in the Superior Court, the defendant, Amanda Kelly, was convicted of, among other offenses, a violation of civil rights with bodily injury, G. L. c. 265, § 37, and assault and battery for the purpose of intimidation resulting in bodily injury, G. L. c. 265, § 39 (b).[2] Her codefendants, Christopher M. Bratlie and Kevin P. Shdeed, each were convicted of a violation of civil rights without bodily injury, and assault and battery for the purpose of intimidation without bodily injury. Bratlie also was convicted of assault and battery as a lesser included offense of assault and battery by means of a dangerous weapon (shod foot), and assault and battery. All three defendants appealed their convictions to the Appeals Court, and we transferred their cases to this court on our own motion. Principal among the several claims of error is the defendants’ contention that the judge failed to instruct the jury properly that in order to convict the defendants of assault and battery for the purpose of intimidation, the jury must find that race was a “substantial factor” motivating the commission of the unlawful conduct. We conclude that […]