Commonwealth v. Zhan Tang Huang (and 14 companion cases) (Lawyers Weekly No. 11-010-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1299 Appeals Court 13-P-1301 COMMONWEALTH vs. ZHAN TANG HUANG[1] (and fourteen companion cases[2]). Nos. 13-P-1299 & 13-P-1301. Norfolk. May 8, 2014. – February 11, 2015. Present: Rubin, Wolohojian, & Maldonado, JJ. Homicide. Wanton or Reckless Conduct. Fire. Constitutional Law, Search and seizure. Search and Seizure, Exigent circumstances. Practice, Criminal, Severance, Motion to suppress, Admissions and confessions. Joint Enterprise. Evidence, Joint venturer, Photograph. Indictments found and returned in the Superior Court Department on August 19, 2009. Pretrial motions to suppress evidence were heard by Wendie I. Gershengorn, J.; a motion to sever was heard by Kenneth J. Fishman, J., and the cases were tried before him. Amy M. Belger for Zhan Tang Huang. Patrick H. Reddington (Kevin J. Reddington with him) for Andy Zhan Ting Huang. Varsha Kukafka, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. Terri Knight and her husband, Oudah Frawi, together with their sons Ali (one year old) and Hassan (two months old), lived in a one-bedroom basement apartment within a multi-unit residential building at 100 Robertson Street in Quincy. The family slept together in the bedroom. The apartment did not comply with numerous codes, including those requiring that there be a second exit from the bedroom, that windows be large enough to allow a person to escape through them, and that there be operational smoke and carbon monoxide detectors. As a result, when an accidental fire broke out in the living room in the predawn hours of March 25, 2009, while the family was asleep, no smoke alarms signaled the danger. By the time Frawi awoke and (carrying Ali in his car seat) attempted to escape through the living room, the several-hundred-degree fire was too intense for him to reach the only exit. He retreated to the bedroom where he and both his sons died from burns and smoke inhalation. Knight was severely injured by the time firefighters rescued her from the bedroom, but she survived. 100 Robertson Street is a four-unit residential building in which two additional “illegal” units had been added: one in the basement and one in the attic. The building was bought at auction in August, 2007, as an investment by defendant Andy Zhan Ting Huang (Andy) and his sister-in-law, Jinny Ma, who is married to Andy’s brother, Zhan Tang Huang […]
Commonwealth v. Douglas (and five companion cases) (Lawyers Weekly No. 11-124-14)
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-1992 Appeals Court COMMONWEALTH vs. JASON DOUGLAS (and five companion cases[1]). No. 12-P-1992. Suffolk. January 13, 2014. – September 30, 2014. Present: Cypher, Rubin, & Hines, JJ.[2] Firearms. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Threshold police inquiry, Protective frisk. Evidence, Firearm. Threshold Police Inquiry. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on September 28, 2011. Pretrial motions to suppress evidence were heard by Janet L. Sanders, J. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Elisabeth Martino, Assistant District Attorney (Joseph Janezic, Assistant District Attorney, with her) for the Commonwealth. Michael Tumposky for Jason Douglas. Daniel R. Katz for Wayne Steed. CYPHER, J. This is an appeal by the Commonwealth after a single justice of the Supreme Judicial Court allowed the Commonwealth’s petition under Mass.R.Crim.P. 15, as appearing in 422 Mass. 1501 (1996). In ruling on the defendants’ motions to suppress, a judge in the Superior Court held that the seizure by police officers of a firearm found under a passenger’s seat during a “patfrisk” of the interior of a motor vehicle was impermissible because, although the stop of the vehicle was justified, the police had exceeded the permissible scope of the search when they looked under the passenger’s seat before the occupants returned to the vehicle. Specifically, the judge reasoned that “[a]ny suspicion which might have been prompted by any movement (or lack thereof) by the car’s occupants was dispelled by the removal and pat frisk of each individual’s person.”[3] We reverse the order allowing the motions to suppress. 1. Standard of review. ”[W]e accept the motion judge’s subsidiary findings of fact absent clear error.” Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). ”We review de novo the judge’s application of constitutional principles.” Commonwealth v. Martin, 467 Mass. 291, 301 (2014). We must assess the reasonableness of a police officer’s actions based upon the “circumstances confronting the officer in the field, not those facing the judge in the tranquility of the courtroom.” Commonwealth v. Dedominicis, 42 Mass. App. Ct. 76, […]
City of Brockton v. Energy Facilities Siting Board (No. 1) (and two consolidated cases) (Lawyers Weekly No. 10-131-14)
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-11406 CITY OF BROCKTON vs. ENERGY FACILITIES SITING BOARD (No. 1) (and two consolidated cases[1]). Suffolk. March 4, 2014. – July 31, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Energy Facilities Siting Board. Public Utilities, Energy company, Electric company. Electric Company. Massachusetts Environmental Policy Act. Administrative Law, Decision, Judicial review, Substantial evidence. Environment, Air pollution, Environmental impact report. Municipal Corporations, Electric plant, Water supply. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on August 24, August 28, and September 2, 2009. After consolidation, the case was reported by Spina, J. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. John L. Holgerson for town of West Bridgwater. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. The following submitted briefs for amici curiae: Veronica Eady for Conservation Law Foundation. Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. Crosby, & Priya A. Lane for Lawyers’ Committee for Civil Rights and Economic Justice. Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the River Coalition. BOTSFORD, J. Brockton Power Company LLC (Brockton Power, or company) filed a petition pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), with the Energy Facilities Siting Board (board) to construct and operate a 350-megawatt combined-cycle energy generating facility (facility) powered by natural gas and ultra-low sulfur distillate (ULSD) on a 13.2-acre lot in the city of Brockton (city). After extensive hearings, the board approved Brockton Power’s petition, with conditions. The city, the town of West Bridgewater (town), and a group of residents of the city and the town (residents), all interveners in the proceedings before the board (collectively, interveners), filed appeals in the county court pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5.[3] A single justice reserved and reported the case to the full court.[4] On appeal the interveners argue[5] that the board (1) failed to adopt and apply the 2002 environmental justice policy that is a binding environmental protection policy of the Commonwealth; (2) improperly relied on the National Ambient Air Quality Standards for […]
Commonwealth v. Rutledge (and 16 companion cases) (Lawyers Weekly No. 11-088-14)
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-965 Appeals Court COMMONWEALTH vs. ROBERT RUTLEDGE (and sixteen companion cases[1]). No. 13-P-965. July 25, 2014. Firearms. Constitutional Law, Stop and frisk, Search and seizure, Probable cause. Search and Seizure, Protective frisk, Container, Exigent circumstances, Probable cause. Probable Cause. Practice, Criminal, Motion to suppress. The defendants were charged with, inter alia, numerous firearms offenses. A judge in the Superior Court allowed the defendants’ motions to suppress a firearm seized after a warrantless search of a backpack following an investigatory stop of a motor vehicle. The Commonwealth appeals, contending that a preliminary patfrisk of the backpack was not necessary as a prerequisite to the search. We affirm. 1. Background. After an evidentiary hearing on the motions, the judge found the following facts. On July 13, 2011, a 911 operator in Brockton received a call from Roseangela Andrade. She explained to the operator that, while on the telephone with her boyfriend, she overheard an argument erupt between her current boyfriend and her former boyfriend, Jaemill Horton. Andrade further reported that, during the argument, Horton allegedly pulled a gun on her boyfriend, threatening to kill him if Andrade refused to drop her pending charges against Horton. Andrade advised the operator that Horton drove a black Acura automobile, with registration number “749-GH7.” Initial dispatch to the scene of the alleged altercation returned nothing. After following up with Andrade, officers determined that the vehicle was an Infiniti, with registration number “759-GH7,” and that Horton had an active matter pending in the Taunton Division of the District Court Department. At that time, the police initiated a general broadcast advising the officers to look for a black Infiniti, explaining that a gun had been pulled and threats made in connection with a pending court case. Officer Michael Minnock heard the general dispatch, but did not respond to the area. A little over an hour later, Minnock spotted the suspect vehicle and observed its occupants making furtive movements. Minnock activated his emergency lights and siren and stopped the vehicle. At that time, Horton, who was driving, exited the vehicle. In response, Officer Minnock exited his cruiser, drew his firearm, and ordered Horton to get back into the vehicle. Horton, however, did not comply. The front seat passenger, Rutledge, also exited the vehicle and was ordered toreenter. Instead, both Horton and Rutledge fled […]
Commonwealth v. Hunt (and three companion cases) (Lawyers Weekly No. 11-148-13)
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‑544 Appeals Court COMMONWEALTH vs. SHAWN HUNT (and three companion cases[1]). No. 12‑P‑544. Bristol. April 10, 2013. ‑ December 20, 2013. Present: Rubin, Fecteau, & Hines, JJ. Homicide. Grand Jury. Practice, Criminal, Grand jury proceedings, Conduct of prosecutor, Disclosure of evidence, Indictment, Dismissal, Capital case. Evidence, Grand jury proceedings, Testimony before grand jury, Identification, Exculpatory, Disclosure of evidence, Credibility of witness, Prior inconsistent statement, Indictment. Identification. Indictments found and returned in the Superior Court Department on January 23, 2009. Motions to dismiss the indictments were heard by Gary A. Nickerson, J. William M. McCauley, Assistant District Attorney (Tara L. Blackman, Assistant District Attorney, with him) for the Commonwealth. Joseph F. Krowski for Jonathan Michael Pittman. Robert S. Sinsheimer for Shawn Hunt. HINES, J. The defendants, Shawn Hunt and Jonathan Michael Pittman, were indicted for murder in the first degree and carrying a firearm without a license by a Bristol County grand jury. After a grand jury witness, the victim’s mother, admitted to fabricating her identification of the defendants as the perpetrators of the crime, a judge allowed the defendants’ motions to dismiss the indictments without prejudice. The Commonwealth now appeals from the order allowing the motions to dismiss, claiming that the judge erred in ruling that the presentation of the witness’s false identification impaired the integrity of the grand jury proceedings. Although we conclude that the judge committed no error in his assessment of the Commonwealth’s conduct in presenting the evidence to the grand jury, we reverse because the evidence was otherwise sufficient to sustain the indictment. 1. Background. On November 20, 2003, Alberto “Tito” Gonzalez was killed by shots fired from a passing motor vehicle in New Bedford. In the immediate aftermath of the crime, the police investigation identified the defendants as possible suspects. The Bristol County district attorney, however, declined to present the case against these defendants (hereinafter, the Gonzalez case) to a grand jury. Almost five years later, a newly elected district attorney presented the Gonzalez case to three successive grand juries, culminating on January 23, 2009, in indictments of the defendants for murder in the first degree and carrying a firearm without a license. On the eve of trial, the Commonwealth learned that Fernanda Gonzalez, the victim’s mother, had fabricated her grand jury testimony identifying Pittman […]
Bank of America, N.A. v. Rosa (and three consolidated cases) (Lawyers Weekly No. 10-198-13)
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‑11330 BANK OF AMERICA, N.A. vs. CEFERINO S. ROSA (and three consolidated cases[1]). Essex. September 9, 2013. ‑ December 18, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure. Summary Process. Housing Court, Jurisdiction. Practice, Civil, Summary process, Affirmative defense, Counterclaim and cross‑claim. Jurisdiction, Summary process, Housing Court, Equitable. Uniform Summary Process Rules. Rules of Civil Procedure. Statute, Construction. Summary process. Complaints filed in the Northeast Division of the Housing Court Department, two on February 6, 2012, and one each on January 20, 2012, and April 2, 2012, respectively. Motions to strike and to dismiss affirmative defenses and counterclaims were heard by David D. Kerman, J. Proceedings for interlocutory review were heard in the Appeals Court by Mary T. Sullivan, J., and the cases were consolidated and reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Phoebe N. Coddington, of North Carolina (Jennifer E. Greaney & Stephen C. Reilly with her) for Bank of America, N.A., & another. Thomas J. Santolucito (Rachel B. Meisterman with him) for Federal Home Loan Mortgage Corporation. Richard M.W. Bauer (Eloise P. Lawrence with him) for Ceferino S. Rosa & others. Marylyn E. Flores (David S. Flores with her) for Gerard J. Cioffi. Benjamin O. Adeyinka, for The Real Estate Bar Association of Massachusetts, Inc., & another, amici curiae, submitted a brief. Arielle Cohen & Charles Delbaum, for National Consumer Law Center, amicus curiae, submitted a brief. SPINA, J. In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure. Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank’s right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims. In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G. L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply […]
Commonwealth v. DeGennaro (and 13 companion cases) (Lawyers Weekly No. 11-128-13)
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 11‑P‑1398 Appeals Court 11-P-1383 COMMONWEALTH vs. PETER DeGENNARO (and thirteen companion cases[1]). Nos. 11‑P‑1398 & 11-P-1383. Middlesex. September 11, 2012. ‑ October 21, 2013. Present: Meade, Sikora, & Wolohojian, JJ. Embezzlement. Fraud. Home Improvement Contractors. Contract, Construction contract, Trustee. Escrow. Real Property, Purchase and sale agreement. Trust. Practice, Criminal, Motion for a required finding, Instructions to jury, Presumptions and burden of proof, Findings by judge. Evidence, Intent, Presumptions and burden of proof. Intent. Statute, Construction. Indictments found and returned in the Superior Court Department on September 11, 2007. Ten cases were tried before Sandra L. Hamlin, J., and four cases were heard by Thomas P. Billings, J. Judith Ellen Pietras for Peter DeGennaro. Kevin J. Curtin, Assistant District Attorney, & Max Bauer for the Commonwealth. Elizabeth Dembitzer for Charlene Connors. SIKORA, J. This appeal requires interpretation of a seldom litigated criminal statute. The defendant, building contractor Peter DeGennaro, engaged through various business entities in the construction and improvement of residential homes. The codefendant, Charlene Connors, participated in the operations of the entities. At the conclusion of a five-day trial, a Superior Court jury convicted each defendant of five counts of embezzlement of funds deposited with them by two customers. In accordance with purchase and sale agreements presented by the defendants for the construction of homes, the customers had advanced the funds to DeGennaro for placement in escrow accounts. DeGennaro and Connors depleted the escrow funds; the building entities did not perform the promised construction. On appeal, DeGennaro contends, inter alia, that the fiduciary embezzlement statute under which the Commonwealth prosecuted him does not apply to the charged conduct, and that his conduct constituted only a civil breach of contract, not a criminal violation. Connors presents the same arguments and challenges the sufficiency of the evidence of her role as a joint venturer in the charged offenses.[2] By a separate bench trial of both defendants addressing transactions with different customers, a second Superior Court judge convicted DeGennaro, alone, of four counts of contractor fraud, three for failure to complete contractual renovation of existing homes and one for nonpayment of a subcontractor for materials and services. On appeal DeGennaro challenges the validity of the indictments and the sufficiency of the evidence. For the following reasons, we affirm all convictions from the […]
Commonwealth v. Halstrom (and seven companion cases) (Lawyers Weekly No. 11-125-13)
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 11‑P‑1276 Appeals Court COMMONWEALTH vs. MELISSA HALSTROM (and seven companion cases[1]). No. 11‑P‑1276. Essex. May 2, 2013. ‑ October 11, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Prostitution. Deriving Support From Child Prostitution. Intent. Practice, Criminal, Argument by prosecutor, Instructions to jury, Opening statement, Severance. Evidence, Argument by prosecutor, Credibility of witness, Intent, Joint venturer, Statement of codefendant. Words, “Induce.” Indictments found and returned in the Superior Court Department on October 31 and December 5, 2007. The case was tried before Kathe M. Tuttman, J. Nicole M. Procida for Melissa Halstrom. Jennifer Marie Petersen for Anthony Gorgoglione. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. SULLIVAN, J. The defendants appeal from multiple convictions of inducing a minor to become a prostitute, G. L. c. 272, § 4A, and deriving support from a minor prostitute, G. L. c. 272, § 4B. Both defendants argue that the jury instructions were erroneous with regard to the definition of “inducement,” that there was insufficient evidence as to inducement, and that the prosecutor’s closing argument was improper. The defendant, Melissa Halstrom, contends that the instruction regarding deriving support from prostitution was erroneous. The defendant, Anthony Gorgoglione, argues that his motion to sever should have been granted and that the prosecutor’s opening statement impermissibly referenced excluded evidence. We affirm. Background. We summarize the facts of the case, leaving additional facts for later discussion as needed. The case involved three minors, Gail, Beth, and Maureen (collectively, girls), ages sixteen to seventeen, who the Commonwealth maintained were persuaded to participate in a prostitution business operated by Halstrom with the assistance of Gorgoglione. Gail had known Halstrom since 2005, when Halstrom dated her father. When Gail was “kicked out” of her house during her freshman year of high school in 2005, she stayed with Halstrom for about a month. She remained close to Halstrom and visited her frequently. In the summer of 2007, Gail again lived with her father. Gail also socialized with Halstrom. During this period, Gail lost her job at a coffee shop and was unable to find another position. After her father received an eviction notice, Gail told Halstrom that she was worried about her family’s ability to pay the rent. Upon learning of the eviction notice, Halstrom told Gail about her work as an escort, which she […]
Commonwealth v. Moody (and four companion cases) (Lawyers Weekly No. 10-152-13)
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‑11277 COMMONWEALTH vs. CORY A. MOODY (and four companion cases[1]). Berkshire. April 1, 2013. ‑ August 9, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Eavesdropping. Evidence, Wiretap. Constitutional Law, Federal preemption. Federal Preemption. Practice, Criminal, Warrant. Search and Seizure, Warrant. Cellular Telephone. Indictments found and returned in the Superior Court Department on December 17, 2010. Pretrial motions to suppress evidence were heard by Daniel A. Ford, J., and a question of law was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Timothy M. Farris for Devin Newman. Edmund R. St. John, III, for Cory A. Moody. Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Dana A. Curhan & Matthew R. Segal for American Civil Liberties Union of Massachusetts. Martha Coakley, Attorney General, & Jessica V. Barnett & Patrick Hanley, Assistant Attorneys General, for the Attorney General. Michael J. Iacopino, of New Hampshire, Veronica J. White, Benjamin Leatherman, Peter Ettenberg, Frank Camera, Peter Clifford, & Max D. Stern, for Jorge Areiza & others. CORDY, J. The defendants, Cory A. Moody and Devin Newman, were separately indicted for various violations of the Controlled Substances Act, G. L. c. 94C, stemming from their alleged involvement in an organized group engaged in drug trafficking in Berkshire County. In particular, Moody was indicted for one count of trafficking in cocaine, G. L. c. 94C, § 32E (b); one count of distribution of cocaine, G. L. c. 94C, § 32A (c); and two counts of conspiracy to violate the drug laws, G. L. c. 94C, § 40.[2] For his part, Newman was indicted for one count of conspiracy to traffic in cocaine, G. L. c. 94C, § 40. Prior to trial, the defendants filed separate motions to suppress the fruits of several search warrants issued under the Massachusetts wiretap statute, G. L. c. 272, § 99, which authorized the interception of calls and text messages sent over their cellular telephones. The defendants argued that the interception of these forms of communication was beyond the scope of authority provided under G. L. c. 272, § 99 and, thus, preempted by the cognate provisions of the Federal wiretap statute, 18 U.S.C. §§ 2510 et seq. (2006 & Supp. V 2011). In a consolidated decision, the motion judge denied the […]
Commonwealth v. Morgan RV Resorts, LLC, et al. (and five companion cases) (Lawyers Weekly No. 11-089-13)
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‑119 Appeals Court COMMONWEALTH vs. MORGAN RV RESORTS, LLC, & others[1] (and five companion cases[2]). No. 13‑P‑119. Suffolk. May 23, 2013. ‑ July 9, 2013. Present: Cypher, Kafker, & Sullivan, JJ. Judge. Practice, Civil, Disqualification of judge. Civil action commenced in the Superior Court Department on August 22, 2011. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on February 17, 2012. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on December 14, 2010. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on July 31, 2009. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on March 3, 2011. A motion for recusal was heard by Elizabeth M. Fahey, J. Civil action commenced in the Superior Court Department on January 5, 2012. A motion for recusal was heard by Elizabeth M. Fahey, J. Leave to prosecute interlocutory appeals was allowed in the Appeals Court by Kafker, J., and Sullivan, J. Christa A. Arcos (Scott D. Burke with her) for Carmel Gilberti. Jonathan B. Engel, Assistant Attorney General (Mychii Snape, Assistant Attorney General, with him) for the Commonwealth. KAFKER, J. The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case. Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality. We agree that there is no basis for recusal on the grounds of actual bias. However, given the protracted litigation, the judge’s personal involvement in the lawsuit, the amount at stake, and the judge’s inconsistent rulings on prior recusal motions, “an objective appraisal of whether this was ‘a proceeding in which [her] impartiality might reasonably be questioned’” compels the conclusion that recusal was warranted. Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 (1972). Accordingly, we reverse […]