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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Harris Acquisition Trust, et al. v. Botwinik, et al. (Lawyers Weekly No. 09-059-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-01214-BLS1 HARRIS ACQUISITION TRUST1 & others2 vs. DAN BOTWINIK & another3 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS This case presents a dispute between two investors regarding a real estate opportunity in Maine. Plaintiff, Jeffrey S. Baker, alleges various wrongdoings by defendant, Dan Botwinik. In his First Amended Complaint (FAC), Baker asserts relief under twelve (12) separate counts. The counts include claims for breach of fiduciary duty, breach of contract, breach of the covenant of good faith and fair dealing, intentional and negligent misrepresentation, violation of G.L. c. 93A, negligence and conversion. Defendants move to dismiss under Mass. R. Civ. P. 12(b)(6) only two of those counts: Counts VII (violation of Chapter 93A) and VIII (negligence). For the reasons stated below, defendants’ motion to dismiss will be allowed, in part, and denied, in part. BACKGROUND The facts as revealed by the FAC, and the documents attached to the FAC, are as follows. 1 By its trustee Jeffrey S. Baker. 2 Salem Real Estate Investment, LLC; First Day Realty Trust, by its trustee Jeffrey S. Baker; and Jeffrey S. Baker. 3 Cougar Capital Management, Inc. Botwinik is engaged in the business of real estate investment, acquisition, and management related to commercial real estate throughout New England. Botwinik is the founder and principal of defendant, Cougar Capital Management, Inc., through which Botwinik operates. Cougar is, essentially, the alter ego of Botwinik, so the two defendants will be referred to collectively as “Botwinik” in this memorandum unless more specificity is required. Botwinik seeks investors to provide capital for real estate acquisition and development. In the spring of 2016, Botwinik had a contract to acquire a residential apartment building located at 25 Hartford Street, Rumford, Maine (Property). The Property was formerly a hotel. During April and May of 2016, Botwinik had numerous telephone conferences and meetings in Boston4 with Baker regarding a potential acquisition of the Property. Initially, Botwinik sought a $ 200,000 investment from Baker to assist in the acquisition of the Property. In exchange, Baker would receive equity in the project. Botwinik provided a written offering memorandum to Baker, which represented returns of up to 17% per annum on the investment. Botwinik also represented that he would secure additional financing to provide the remaining funds necessary for acquisition and construction. Baker represented that he had the financing lined up. Finally, Botwinik represented that he had the experience and expertise to develop the property. Baker agreed to invest $ 200,000 in the project in reliance upon Botwinik’s representations. Botwinik formed Maine Coon Management, LLC (MCM) to be the vehicle to hold title to the Property. The membership interests of […]
Hyannis Anglers Club, Inc., et al. v. Harris Warren Commercial Kitchens, LLC (and a consolidated case) (Lawyers Weekly No. 11-063-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-34 Appeals Court HYANNIS ANGLERS CLUB, INC., & others[1] vs. HARRIS WARREN COMMERCIAL KITCHENS, LLC[2] (and a consolidated case[3]). No. 16-P-34. Barnstable. October 14, 2016. – May 23, 2017. Present: Vuono, Massing, & Sacks, JJ. Consumer Protection Act, Unfair or deceptive act, Attorney’s fees, Damages. Fraud. Deceit. Damages, Consumer protection case, Deceit. Civil actions commenced in the Superior Court Department on September 6, 2011, and April 29, 2013. After consolidation, the case was tried before Christopher J. Muse, J., and a motion for attorney’s fees and costs was heard by him. Stephen Soule & Clyde K. Hanyen, Jr., for Hyannis Anglers Club, Inc., & another. John J. Lang for Harris Warren Commercial Kitchens, LLC. VUONO, J. Shortly after 5:00 A.M. on August 27, 2010, a fire erupted in the kitchen of a restaurant in Hyannis owned by Oceans Harbors, LLC (Harbors). The blaze originated in a “Pitco Frialator” (fryer),[4] a cooking appliance, which, some twelve hours earlier, had purportedly been repaired by a technician employed by Harris Warren Commercial Kitchens, LLC (Harris), a firm engaged in repairing commercial kitchen equipment. The restaurant operated on the first floor of a two-story building owned by Hyannis Anglers Club, Inc. (Anglers Club). The Anglers Club, Harbors, and their insurer, Certain Underwriters at Lloyd’s London (Underwriters), brought this action against Harris seeking damages for the losses caused by the fire and for violations of G. L. c. 93A, §§ 2 and 11.[5] Following a trial in the Superior Court, a jury found that Harris was negligent, and the plaintiffs were awarded $ 686,496.44, exclusive of costs and statutory interest.[6] Thereafter, the trial judge, who had reserved for himself the plaintiffs’ claim under c. 93A, entered findings, rulings, and an order in which he concluded that Harris had violated c. 93A when its employee, for whom Harris was vicariously liable, disabled a safety switch on the fryer, concealed this fact from Harbors, and falsified the associated work documentation in violation of the Attorney General’s rules and regulations regarding repairs and services, 940 Code Mass. Regs. § 3.08(1)(e) (1993). The judge ruled that this deceptive conduct “caused the fire that damaged plaintiffs’ businesses and property.” However, the judge declined to find, as the plaintiffs alleged, that Harris had wilfully or knowingly violated c. 93A, a ruling that foreclosed an award of […]
Commonwealth v. Harris (Lawyers Weekly No. 10-109-14)
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‑11191 COMMONWEALTH vs. LAURENCE BYNUM HARRIS.[1] Plymouth. March 12, 2014. ‑ June 18, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, & Lenk, JJ. Homicide. Constitutional Law, Admissions and confessions, Voluntariness of statement, Self-incrimination. Evidence, Admissions and confessions, Voluntariness of statement, Expert opinion, Rebuttal, Intent, Competency. Witness, Expert, Self-incrimination. Intent. Mental Impairment. Due Process of Law, Competency to stand trial. Practice, Criminal, Capital case, Motion to suppress, Admissions and confessions, Voluntariness of confession, Required finding, Competency to stand trial, Defendant’s competency, Argument by prosecutor. Indictment found and returned in the Superior Court Department on November 5, 2007. A pretrial motion to suppress evidence was heard by Jeffrey A. Locke, J., and the case was tried before Barbara A. Dortch-Okara, J. Elizabeth Caddick for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. In September, 2011, a jury convicted the defendant, Laurence Bynum Harris, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel on appeal, the defendant argues error in (1) the denial of his motion to suppress statements; (2) the denial of his motions for required findings of not guilty; (3) the admission of expert rebuttal testimony; and (4) the prosecutor’s closing argument. We affirm the order denying the defendant’s motion to suppress and affirm his conviction. We discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Motion to suppress statements. a. Background and standard of review. Prior to trial, the defendant moved to suppress statements he made to police officers and “all fruits thereof,” claiming, as relevant here, that his Federal and State constitutional rights were violated because his statements had not been voluntarily made. After conducting an evidentiary hearing, the motion judge denied the motion. In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). We summarize the judge’s findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 […]
Commonwealth v. Harris (Lawyers Weekly No. 10-026-13)
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‑10862 COMMONWEALTH vs. HASSAUN HARRIS. Suffolk. October 5, 2012. ‑ February 12, 2013. Present: Ireland, C.J., Spina, Cordy, Gants, & Duffly, JJ. Homicide. Evidence, Relevancy and materiality, Self‑defense. Practice, Criminal, Capital case, Argument by prosecutor, Instructions to jury. Self‑Defense. Indictment found and returned in the Superior Court Department on December 28, 2006. The case was tried before Christine M. McEvoy, J. Leslie W. O’Brien for the defendant. Donna Jalbert Patalano, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, with her) for the Commonwealth. IRELAND, C.J. On February 4, 2008, a jury convicted the defendant, Hassaun Harris, of murder in the first degree on the theory of deliberate premeditation. Represented by new counsel on appeal, the defendant argues error in (1) the admission of evidence; (2) the prosecutor’s closing argument, and (3) the judge’s instructions to the jury. The defendant also seeks relief pursuant to G. L. c. 278, § 33E. We affirm the defendant’s conviction and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Facts. As an initial matter, the defendant admitted that he had stabbed and killed the victim during an argument. The main issue at trial was whether the defendant had acted in self-defense. a. The Commonwealth’s case. We summarize the facts the jury could have found, reserving certain details for discussion in conjunction with specific issues raised. After a long relationship that developed into dating and cohabitation, the defendant and Tanetta Williams ended their relationship in March or May of 2006. After the breakup, however, Williams kept in contact with the defendant because she helped take care of his son. She also continued to manage the defendant’s finances and was a “payee” for payments he received due to an illness. Shortly after 9 P.M. on October 12, 2006, Williams and the victim, who was a friend, drove to a restaurant in the Hyde Park section of Boston. Williams and the victim went to the counter inside the restaurant, and Williams ordered some food. She and the victim found a booth across from the register, sat down, and proceeded to use their cellular telephones. At 9:20 P.M., Williams received a call from the defendant. Williams testified that the telephone call was brief because she “was on the other line.” The defendant only […]