Commonwealth v. Moore (Lawyers Weekly No. 11-035-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-944 Appeals Court COMMONWEALTH vs. ERIC MOORE. No. 15-P-944. Suffolk. December 5, 2017. – March 22, 2018. Present: Trainor, Meade, & Wolohojian, JJ. Motor Vehicle, Unauthorized use. Rules of Criminal Procedure. Probable Cause. Practice, Criminal, Complaint, Dismissal, Arraignment. Constitutional Law, Separation of powers. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 23, 2015. A motion to dismiss was heard by Myong Joun, J. Helle Sachse, Assistant District Attorney, for the Commonwealth. Bruce W. Carroll for the defendant. TRAINOR, J. The defendant, Eric Moore, was charged with, among other things, using a motor vehicle without authority (use without authority), in violation of G. L. c. 90, § 24(2)(a). At the arraignment hearing, the defendant orally moved to dismiss the charge of use without authority; the judge allowed the defendant’s motion prior to arraignment and proceeded to arraign the defendant on the remaining charges. The Commonwealth filed this timely appeal, arguing that the judge erred in dismissing the use without authority charge for two reasons: first, a complaint against an adult defendant, unlike one against a juvenile, cannot be dismissed prior to arraignment; and second, the complaint was supported by probable cause that the defendant used the motor vehicle without authority. For the reasons set forth infra, we reverse the dismissal of the charge of use without authority. Background. On March 23, 2015, the defendant was driving a rental car and was pulled over for failing to come to a complete stop at a stop sign. When the police officers asked the defendant for his license and registration, the defendant responded that he did not have a license in his possession. Upon a criminal justice information system query, the officers learned that the defendant’s out-of-State license was suspended. The officers then contacted the rental company and obtained a copy of the rental agreement for the vehicle, which provided that Nicole Hosier of Pittsfield was the only individual authorized to operate the rental car. The officers subsequently arrested the defendant for, among other things, use without authority, and towed the rental car. At the defendant’s arraignment hearing, defense counsel requested to be heard prior to the arraignment. Defense counsel asked the judge to dismiss the use without authority charge because the facts do “not […]
Commonwealth v. Moore (Lawyers Weekly No. 11-102-17)
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 15-P-946 Appeals Court COMMONWEALTH vs. ANTWOIN MOORE. No. 15-P-946. Plymouth. February 16, 2017. – August 10, 2017. Present: Kafker, C.J., Wolohojian, & Sacks, JJ. Motor Vehicle, Homicide. Homicide. Malice. Practice, Criminal, Required finding, Argument by prosecutor, Instructions to jury, Assistance of counsel, Verdict. Indictments found and returned in the Superior Court Department on November 16, 2012. The cases were tried before Frank M. Gaziano, J., and a motion to reduce the verdict was considered by him. Elizabeth Doherty for the defendant. Laurie S. Yeshulas, Assistant District Attorney, for the Commonwealth. SACKS, J. On October 12, 2012, at approximately 4:30 P.M., the defendant led police on a high-speed chase through the streets of Brockton, finally running a red light at a busy intersection and causing a seven-car collision resulting in the death of another driver, Marianne Kotsiopoulos. After a four-day trial, a jury found the defendant guilty of murder in the second degree, involuntary manslaughter,[1] and numerous other crimes arising out of the collision.[2] He now appeals his murder conviction and the trial judge’s denial of his postconviction motion to reduce the verdict pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). The defendant argues that (1) the evidence was insufficient to support a finding of third prong malice; (2) the Commonwealth’s closing argument was improper; (3) the judge erred in declining to instruct that manslaughter is a lesser included offense of murder; (4) counsel was ineffective in failing to request an “accident” instruction; and (5) the trial judge abused his discretion in declining to reduce the second degree murder verdict to a lesser offense. We affirm. The Commonwealth’s case. We recite the evidence and the reasonable inferences to be drawn from it in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Detectives Donahue and Carpenter of the Brockton police department were conducting an investigation into narcotics activity in an unmarked sport utility vehicle (the SUV). They observed a Chevrolet TrailBlazer sport utility vehicle, operated by the defendant, roll through a stop sign. The detectives decided to stop the TrailBlazer; they passed it on the left, illuminated their emergency lights, and parked in front of it at a forty-five degree angle. Detective Donahue, who was driving the […]
Commonwealth v. Moore (Lawyers Weekly No. 10-084-16)
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-11582 COMMONWEALTH vs. DWAYNE MOORE. Suffolk. February 10, 2016. – June 16, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Rules of Professional Conduct. Jury and Jurors. Practice, Criminal, Jury and jurors, Investigation of jurors, Deliberation of jury. Indictments found and returned in the Superior Court Department on January 7, 2011. A postconviction emergency motion for judicial intervention to prohibit inquiry of the jury, filed on July 23, 2015, was heard by Jeffrey A. Locke, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Teresa K. Anderson, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth. Chauncey B. Wood for the defendant. K. Neil Austin, Caroline S. Donovan, & David A.F. Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. BOTSFORD, J. We consider here five questions reported by a Superior Court judge to the Appeals Court concerning the effect of an amendment to Mass. R. Prof. C. 3.5 (c), as appearing in 471 Mass. 1428 (2015) (rule 3.5 [c]), regarding an attorney’s ability to communicate, postverdict, with jurors who deliberated on, or were discharged from, the attorney’s client’s case. Rule 3.5 (c) became effective on July 1, 2015. 1. Background. From February 13 to March 22, 2012, the defendant was tried in the Superior Court in Suffolk County on charges of murder in the first degree (four counts), G. L. c. 265, § 1; home invasion, G. L. c. 265, § 18C; armed robbery, G. L. c. 265, § 17; armed assault with intent to murder, G. L. c. 265, § 18 (b); aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c); carrying a firearm without a license, G. L. c. 269, § 10 (a); and trafficking in cocaine, G. L. c. 94C, § 32E (b). The jury were deadlocked on nine of the charges and found the defendant not guilty on the tenth (trafficking in cocaine). The trial judge declared a mistrial. On October 2, 2012, the defendant filed a motion for a change of venue on account of extensive media coverage, which […]
Commonwealth v. Moore (Lawyers Weekly No. 10-006-16)
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-11857 COMMONWEALTH vs. LAWRENCE MOORE. Bristol. October 6, 2015. – January 11, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Parole, Search and seizure, Burden of proof, Reasonable suspicion. Search and Seizure, Expectation of privacy, Presumptions and burden of proof, Reasonable suspicion. Practice, Criminal, Parole, Motion to suppress. Controlled Substances. Indictment found and returned in the Superior Court Department on April 25, 2013. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J. An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Rachel W. van Deuren, Assistant District Attorney, for the Commonwealth. Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. CORDY, J. In October, 2011, the New Hampshire parole board issued a certificate of parole to the defendant, Lawrence Moore, who was serving a sentence of from two and one-half to ten years for assault with a firearm. The defendant’s parole was transferred to the Commonwealth in May, 2012. On November 16, 2012, the defendant’s parole officer and others searched the defendant’s apartment without a warrant and seized seventeen “twists” of “crack” cocaine in the defendant’s bedroom drawer, as well as a digital scale and a gun lock. The defendant was indicted for possession of cocaine with intent to distribute, in violation of G. L. c. 94C, § 32A (c).[1] He filed a motion to suppress the evidence seized from his home, arguing that the search was unconstitutional under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.[2] After a hearing, the motion judge issued a written order allowing the defendant’s motion to suppress, holding that, while the search did not violate the Fourth Amendment, it was barred under art. 14. The motion judge concluded that art. 14 offers the same protections for parolees as it does for probationers, and, therefore, searches of a parolee’s residence must be supported by both reasonable suspicion and either a search warrant or a traditional exception to the search warrant […]
Moore v. Town of Billerica (Lawyers Weekly No. 11-073-13)
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‑1294 Appeals Court CAROL MOORE[1] vs. TOWN OF BILLERICA. No. 12‑P‑1294. Middlesex. March 1, 2013. ‑ June 7, 2013. Present: Grasso, Trainor, & Carhart, JJ. Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Governmental immunity. Negligence, Governmental immunity. Civil action commenced in the Superior Court Department on July 14, 2009. The case was heard by Garry V. Inge, J., on a motion for summary judgment. John J. Cloherty, III, for the defendant. Sean T. Goguen (George N. Panas with him) for the plaintiff. TRAINOR, J. The defendant, the town of Billerica (town), appeals from the denial of its motion for summary judgment on this suit brought under the Massachusetts Tort Claims Act (MTCA). In its motion for summary judgment, the defendant argued that it is immune from suit under G. L. c. 258, § 10(b) and (j), as appearing in St. 1978, c. 512, § 15, and immune from liability under the recreational use statute, G. L. c. 21, § 17C(a), as appearing in St. 1998, c. 268.[2] The judge denied the motion, citing “[g]enuine issues of material fact as to, inter alia, causation and . . . degree of discretion, if any, on the part of those in charge of maintaining the public property in question.” For the reasons that follow, we reverse the order. Background. We begin with a summary of the undisputed facts. The Kids Konnection playground in the town abuts the outfield fence of a little league baseball field. The playground is protected from flying baseballs by a high net supported by telephone poles. The net did not extend far enough toward right field to protect an area of the playground that contained a stage and picnic tables.[3] Both the playground and the baseball field were town property and were open to the public for use free of charge. On August 23, 2007, Carol Moore (Carol) brought her four year old daughter Shannon to the Kids Konnection playground.[4] There, Carol met her friends Vickie Stagliola and Angela Sargent, who brought their children to the playground as well. At the same time, several teenage boys were playing “home run derby” on the baseball field. The goal of the game was to hit baseballs over the fence, and Stagliola had seen a baseball hit the netting earlier that day. Shannon […]