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2016-2017

This section contains summaries of all decisions rendered by the Supreme Judi-cial Court during its recently completed (though unofficial) “term” — which ran from Sept. 1, 2016 to Aug. 31, 2017. The full texts of SJC opinions are available at www.masslawyersweekly.com.

APPEALSGatekeeper provision - Single justice

Where a single justice denied leave to appeal from the denial of the sev-enth motion for a new trial filed a de-fendant who was convicted in 1969 of two counts of murder in the first degree and two counts of assault with intent to rob, the defendant’s appeal must be dis-missed because the denial of leave was fi-nal and unreviewable.

Commonwealth v. Robinson (Lawyers Weekly No. 10-087-17) (2 pages) (Re-script) David J. Nathanson, of Wood & Nathanson, for the defendant; Teresa K. Anderson for the commonwealth (Docket No. SJC-11907) (May 25, 2017).

G.L.c. 211, §3Where a petitioner who was convict-

ed of first-degree murder in 1989 filed a petition for extraordinary relief under G.L.c. 211, §3, claiming that an incom-plete transcript prevented the Supreme Judicial Court from considering on ap-peal his claim of a conflict of interest on the part of defense counsel, a single jus-tice’s decision to deny the petition must be affirmed because the petitioner has an adequate alternative remedy — to seek postconviction relief in the trial court.

Zagranski v. Commonwealth (Law-yers Weekly No. 10-112-17) (3 pages) (Re-script) Richard Zagranski, pro se; Eva M. Badway for the commonwealth (Docket No. SJC-12171) (June 27, 2017).

G.L.c. 211, §3Where (1) a Superior Court order was

entered permanently enjoining a plain-tiff from filing any action without the prior approval of a regional administra-tive judge or his or her designee and (2) the plaintiff subsequently sought relief pursuant to G.L.c. 211, §3 after a Land Court judge denied a motion for leave to file and serve a proposed complaint, the petition was correctly denied by a single justice, as the plaintiff had adequate rem-edies in the ordinary appellate process.

Bishay v. Land Court Department of the Trial Court (Lawyers Weekly No. 10-138-17) (2 pages) (Rescript) (Docket No. SJC-12304) (Aug. 18, 2017).

G.L.c. 211, §3 - Appellate Division of the Superior Court

Where a petition sought relief under G.L.c. 211, §3 from a decision of the Ap-pellate Division of the Superior Court in-creasing his sentence for armed robbery, a single justice neither erred nor abused her discretion by denying relief.

Cucinelli v. Commonwealth (Lawyers Weekly No. 10-069-17) (2 pages) (Re-script) (Docket No. SJC-12221) (May 3, 2017).

G.L.c. 211, §3 - BailWhere two sureties filed a G.L.c. 211,

§3 petition after $50,000 in bail they posted was forfeited, the petition was correctly denied by a single justice be-cause of the availability of relief through the normal appellate process.

Commonwealth v. Baratieri (Lawyers Weekly No. 10-147-16) (3 pages) (Re-script) (SJC) Appealed from a decision by Duffly, J., sitting as single justice. Adriana Contartese for the petitioners; Erin J. An-derson for the commonwealth (Docket No. SJC-12065) (Sept. 12, 2016).

G.L.c. 211, §3 - BondWhere a plaintiff filed a G.L.c. 211, §3

petition following the denial of his re-quest for the return of a bond posted in District Court in connection with an ap-peal from a summary process judgment, a single justice’s decision to deny the petition should be upheld because the plaintiff had an adequate remedy in the ordinary appellate process.

Bishay v. District Court Department of the Trial Court (Lawyers Weekly No. 10-139-17) (2 pages) (Rescript) (Docket No. SJC-12267) (Aug. 18, 2017).

G.L.c. 211, §3 - Competency to stand trial

Where a single justice denied a G.L.c. 211, §3 petition relating to proceedings to evaluate the petitioner’s competency to stand trial on criminal charges in the District Court, the single justice’s deci-sion must be upheld because of the pe-titioner’s failure to set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.

Howell v. Brockton Division of the Dis-trict Court Department (Lawyers Weekly No. 10-068-17) (2 pages) (Docket No. SJC-12217) (May 3, 2017).

G.L.c. 211, §3 - DiscoveryWhere a petitioner under G.L.c. 211,

§3 argued that his case against the Pa-role Board could not proceed in the tri-al court without his requested discovery, the petitioner has not made, and cannot make, a showing that “review of the tri-al court decision cannot adequately be obtained on appeal from any final ad-verse judgment in the trial court or by other available means,” so a single jus-tice’s decision to deny the petition must be affirmed.

Riva v. Massachusetts Parole Board (Lawyers Weekly No. 10-136-17) (2 pages) (Rescript) (Docket No. SJC-12270) (Aug. 18, 2017).

G.L.c. 211, §3 - Disqualification

Where the petitioner, an attorney who has been indicted by a Hampden County grand jury on charges of rape and inde-cent assault and battery, sought relief un-der G.L.c. 211, §3 after a Superior Court judge denied his motion to disqualify the Hampden County district attorney’s of-fice from prosecuting the case, the peti-tion was properly denied, as the ruling

on the disqualification issue is the very type of ruling that is routinely reviewed on appeal from a conviction.

Martin v. Superior Court Department of the Trial Court (Lawyers Weekly No. 10-137-17) (2 pages) (Rescript) Alan J. Black for the petitioner (Docket No. SJC-12288) (Aug. 18, 2017).

G.L.c. 211, §3 - Double jeopardy

Where a petitioner who was indict-ed on multiple counts under G.L.c. 272, §105(b), sought relief from a single jus-tice under G.L.c. 211, §3, the single jus-tice did not err in denying the petition, as any double jeopardy violation claimed by the petitioner could be pursued in a direct appeal.

Wassilie v. Commonwealth (Lawyers Weekly No. 10-135-17) (2 pages) (Re-script) Edmund R. St. John III for the pe-titioner (Docket No. SJC-12306) (Aug. 18, 2017).

G.L.c. 211, §3 - Interlocutory rulings

Where the defendant in a criminal case in the Cambridge Division of the District Court Department in which he is charged with criminal harassment filed two separate petitions pursuant to G.L.c. 211, §3, requesting (1) the removal of the presiding trial court judge as well as the assistant district attorney repre-senting the commonwealth and (2) re-versal of several trial court rulings de-nying his motions for discovery, the pe-titions were correctly denied by a sin-gle justice based on the petitioner’s fail-ure to file “a memorandum of not more than ten pages ... in which the appellant must set forth the reasons why review of the trial court decision cannot adequate-ly be obtained on appeal from any final adverse judgment in the trial court or by other available means.”

Afrasiabi v. Commonwealth (Law-yers Weekly No. 10-067-17) (3 pages) (Rescript) (Docket Nos. SJC-12146 and 12147) (May 3, 2017).

G.L.c. 211, §3 - Medical malpractice

Where a single justice denied a G.L.c. 211, §3, petition seeking relief from the Superior Court’s “failure to docket and recognize his appeal of ” z medical mal-practice tribunal’s ruling, there was no error because the state courts no lon-ger had jurisdiction over his case at that point.

Washington v. Gagliani (Lawyers Weekly No. 10-077-17) (4 pages) (Re-script) Derrick Washington, pro se; Tory A. Weigand, of Morrison Mahoney, for the defendant (Docket No. SJC-12026) (May 12, 2017).

G.L.c. 211, §3 - Summary process

Where a petitioner sought G.L.c. 211, §3 relief after a judgment was entered against her in a summary process action in 1993, the petition must be denied be-cause (1) the petitioner has not filed a brief and (2) the petition lacks merit.

Eresian v. Merrill Lynch Credit Corpo-ration, et al. (Lawyers Weekly No. 10-145-16) (3 pages) (Rescript) (SJC) Evelyn J. Er-esian, pro se; Meredith Swisher and Rob-ert Stetson, both of Bernkopf Goodman, for John Paul Scheffer and another (Dock-et No. SJC-12006) (Sept. 12, 2016).


Where a single justice denied a peti-tion for review in a dispute arising out of a summary process proceeding, that rul-ing must be affirmed in light of the peti-tioner’s failure to meet his burden to cre-ate a record.

Pare v. Harmony House, Inc. (Law-yers Weekly No. 10-066-17) (2 pages) (Rescript) (Docket No. SJC-12169) (May 3, 2017).


Where a petitioner sought relief pur-suant to G.L.c. 211, §3, following entry of judgment in a Housing Court summa-ry process action, the petitioner has not demonstrated that she cannot otherwise obtain adequate appellate review, so a single justice’s decision to deny the peti-tion must be affirmed.

Hodges v. Thorup (Lawyers Weekly No. 10-140-17) (2 pages) (Rescript) (Docket No. SJC-12309) (Aug. 18, 2017).

Interlocutory appeal - Rule 2:21

Where a doctor filed a G.L.c. 211, §3, petition after his motion to dismiss a complaint was denied in Superior Court, the appeal must be dismissed because of the doctor’s failure to comply with S.J.C. Rule 2:21.

Padmanabhan v. Yout (Lawyers Weekly No. 10-090-17) (2 pages) (Rescript) Bha-ranidharan Padmanabhan, pro se; Kim-berly A. Dougherty, of Janet, Jenner, and Suggs, for the respondent (Docket No. SJC-12266) (May 26, 2017).

Leave - Single justice - G.L.c. 278, §33E

Where (1) a defendant was convicted of murder in the first degree by reason of deliberate premeditation, (2) he recent-ly filed, in the Superior Court, a motion to vacate, set aside or correct sentence, which was denied, and (3) the defendant then applied to a single justice for leave to appeal from the denial of that motion pursuant to G.L.c. 278, §33E, the defen-dant cannot appeal from the single jus-tice’s decision to deny the leave request, as the single justice’s ruling is “final and unreviewable.”

Commonwealth v. Wampler (Lawyers Weekly No. 10-134-17) (2 pages) (Re-script) Larry D. Wampler Jr., pro se; Jamie Michael Charles for the commonwealth (Docket No. SJC-12333) (Aug. 18, 2017).

Medical license - Disciplinary proceeding - Certiorari

Where a petitioner subject to a disci-plinary proceeding before the Board of

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Registration in Medicine sought relief in the nature of certiorari, a single jus-tice did not err in dismissing the peti-tion as premature given the lack of ad-ministrative finality.

Padmanabhan v. Board of Registra-tion in Medicine, et al. (Lawyers Weekly No. 10-111-17) (4 pages) (Rescript) Bha-ranidharan Padmanabhan, pro se; Sam-uel M. Furgang for the Board of Regis-tration in Medicine and another (Docket No. SJC-12119) (June 27, 2017).

Mootness - G.L.c. 211, §3Where a status conference on the pe-

titioner’s Superior Court claims was continued, (1) his request for a stay of the proceedings pending the resolve of his federal claims is now moot and (2) even if the proceedings continue once the federal claims are resolved, he has the adequate alternative remedy of ap-pealing from any adverse judgment against him in the trial court.

Padmanabhan v. Centers for Medicare & Medicaid Services (Lawyers Weekly No. 10-019-17) (3 pages) (Rescript) Ap-pealed from an order by Hines, J., sit-ting as single justice. Bharanidharan Padmanabhan, pro se (Docket No. SJC-12181) (Jan. 24, 2017).

Mootness - Police searchWhere a petitioner charged with child

pornography sought relief from a Supe-rior Court order authorizing computers and digital storage devices seized from his home to be searched for child por-nography, the petitioner’s appeal from a single justice’s decision to deny the pe-tition must be dismissed as moot since the search has taken place.

In the Matter of a Grand Jury Investi-gation (Lawyers Weekly No. 10-086-17) (2 pages) (Rescript) Andrew W. Pilts-er Cowan for the petitioner; Varsha Ku-kafka and Anne S. Yas for the common-wealth (Docket No. SJC-12249) (May 25, 2017).

New trial - MurderWhere a single justice denied leave

to appeal from the denial of a defen-dant’s motion for a new trial on charges of murder in the first degree and assault with intent to rob, the single justice’s de-cision is final and unreviewable.

Commonwealth v. McGrath (Lawyers Weekly No. 10-085-17) (1 page) (Re-script) Kathleen M. McCarthy for the defendant; Teresa K. Anderson for the commonwealth (Docket No. SJC-11909) (May 25, 2017).

SDP - CommitmentWhere a Superior Court judge issued

an order temporarily committing the petitioner to the Massachusetts Treat-ment Center as a sexually dangerous person, the petitioner was properly de-nied interlocutory relief from that or-der on the ground that he has an ade-quate remedy in the ordinary appel-late process.

Affirmed.Schumacher v. Commonwealth (Law-

yers Weekly No. 10-065-17) (3 pages) (Rescript) Joseph M. Kenneally for the petitioner; Shanan L. Buckingham for the commonwealth (Docket No. SJC-12248) (May 3, 2017).

ARBITRATIONPolice - Termination - Choke hold

Where a Superior Court judge con-firmed an arbitrator’s award reinstating a Boston police officer terminated for us-ing a choke hold in arresting an unarmed suspect for disorderly conduct and mak-ing false statements in the ensuing de-partmental investigation, the judgment must be upheld because the award nei-ther exceeds the arbitrator’s authority nor violates public policy.

City of Boston v. Boston Police Pa-trolmen’s Association (Lawyers Week-ly No. 10-118-17) (23 pages) (Hines, J.) Case was heard by Curran, J., in Superi-or Court. Kay H. Hodge and Geoffrey R. Bok, both of Stoneman, Chandler & Mill-er, for the plaintiff; Alan H. Shapiro and John M. Becker, both of Sandulli Grace, for the defendant (Docket No. SJC-12077) (July 12, 2017).

ATTORNEYSApparent authority - Loan

Where a judge held an attorney lia-ble in negligence for a default on a “side loan” obtained from the plaintiff by an individual acting on behalf of the attor-ney, the judgment must be reversed be-cause the evidence was insufficient to hold the attorney liable under an “appar-ent authority” theory.

Fergus v. Ross (Lawyers Weekly No. 10-127-17) (14 pages) (Lowy, J.) Case heard by McIntyre, J., in Superior Court; Ar-nold E. Cohen for the defendant; Gordon E. Feener (Danielle F. Wehrli also present) for the plaintiff (Docket No. SJC-12231) (Aug. 2, 2017).

Disbarment - Mortgage modifications

Where a single justice disbarred an at-torney, that order should be upheld de-spite the attorney’s claim that his mis-conduct warrants a public reprimand rather than disbarment.

In the Matter of Zak, David (Lawyers Weekly No. 10-055-17) (11 pages) (Re-script) Gregory M. Sullivan for the re-spondent (Docket No. SJC-12073) (April 10, 2017).

Drug court - CPCSWhere a judge removed Committee

for Public Counsel Services attorneys from Lowell drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court, a reversal is warranted because of CPCS’s sole and independent authority to assign counsel for indigent defendants.

Deputy Chief Counsel for the Public De-fender Division of the Committee for Pub-lic Counsel Services, et al. v. Acting First Justice of the Lowell Division of the Dis-trict Court Department (Lawyers Weekly No. 10-084-17) (18 pages) (Hines, J.) Case reported by Duffly, J., sitting as single jus-tice. Paul R. Rudof (Ryan M. Schiff also present) for the plaintiffs; Bethany L. Ste-vens for the defendant (Docket No. SJC-12121) (May 24, 2017).

Indefinite suspensionWhere a single justice suspend-

ed an attorney indefinitely, that order should be upheld based on the attor-ney’s misconduct in the course of real es-tate transactions.

In the Matter of Greene (Lawyers Week-ly No. 10-184-16) (7 pages) (Rescript) (SJC) Appealed from a decision by Spina, J., sitting as single justice. Evan A. Greene, pro se (Docket No. SJC-11935) (Dec. 2, 2016).

SuspensionWhere a single justice suspended an

attorney from the practice of law for 27 months, as recommended by the Board of Bar Overseers, that decision must be upheld because the attorney has not met his burden under S.J.C. Rule 2:23(b).

In the Matter of Diviacchi, Valeria-no (Lawyers Weekly No. 10-172-16) (12 pages) (Rescript) (SJC) (Docket No. SJC-12025) (Nov. 2, 2016).

SuspensionWhere the respondent attorney (1)

falsely represented to two suppliers that his client had not received any prior cash advances against her settlement and (2) failed to comply with his client’s written instructions concerning the settlement proceeds, a single justice properly sus-pended him from the practice of law for two months.

In the Matter of David M. Hass (Law-yers Weekly No. 10-095-17) (7 pages) (Rescript) (Docket No. SJC-12131) (May 31, 2017).

Suspension - False HUD-1 closing statements

Where a single justice suspended an attorney from the practice of law for two years, the sanction is not markedly dis-parate from those entered in similar cas-es, so it should be upheld.

In the Matter of Greene, Barry D. (Law-yers Weekly No. 10-096-17) (5 pages) (Re-script) (Docket No. SJC-12132) (May 31, 2017).

CIVIL PRACTICECommitment - Continuance

Where a respondent against whom a civil commitment petition had been filed requested a continuance, that re-quest should have been granted in or-der to allow time for his counsel to pre-pare an adequate defense and for an in-dependent medical examiner to com-plete a psychiatric evaluation.

In the Matter of N.L. (Lawyers Week-ly No. 10-044-17) (11 pages) (Lowy, J.) Motion for a continuance heard by Sra-gow, J., and the petitions also heard by her. Karen Owen Talley for the respon-dent; Diane M. Geraghty Hall for the petitioner; Anna Krieger, Robert D. Fleischner, Jennifer Honig and Phillip Kassel, for Center for Public Represen-tation and another, amici curiae, sub-mitted a brief (Docket No. SJC-12183) (March 14, 2017).

Counterclaim - District CourtWhere a District Court judge dis-

missed a compulsory counterclaim, that was error despite a reasonable like-lihood that the counterclaim would result in the recovery of more than $25,000.

Rockland Trust Company v. Langone (Lawyers Weekly No. 10-098-17) (12 pages) (Lowy, J.) Case considered by Spi-na, J., sitting as single justice. Jason W. Morgan, of Drohan Toccio & Morgan, for the plaintiff; Dana Alan Curhan for the defendant (Docket No. SJC-12129) (June 1, 2017).

SDP - Antisocial personality disorder

Where a defendant was found to be a sexually dangerous person pursuant to G.L.c. 123A and was committed to the Massachusetts Treatment Center for an indeterminate period of from one day to life, the commitment order must be affirmed because the commonwealth proved that, as a result of a diagnosis of antisocial personality disorder, the de-fendant would be likely to engage in sex-ual offenses if not confined.

Commonwealth v. George (Lawyers Weekly No. 10-107-17) (20 pages) (Hines, J.) Case tried before Beverly J. Cannone, J., in Superior Court. David B. Hirsch for the defendant; Nathaniel R. Beaudoin for the commonwealth (Docket No. SJC-12173) (June 21, 2017).

Sex offender - Internet - Reclassification

Where the Sex Offender Registry Board has claimed that it should be per-mitted to publish information on the In-ternet about Level 2 sex offenders when-ever an attempt to reclassify such an of-fender as a Level 3 offender has failed, that claim must be rejected because no reclassification has occurred.

Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Week-ly No. 10-109-17) (17 pages) (Gants, C.J.) Motion for a preliminary injunction heard by Brieger, J., in Superior Court. Andrew S. Crouch for John Doe, Sex Offender Reg-istry Board No. 326573, and another; John P. Bossé for the defendant; Dana Gold-blatt, for Committee for Public Counsel Services, amicus curiae, submitted a brief (Docket No. SJC-12182) (June 23, 2017).

CIVIL SERVICE

Assistant clerk-magistrate - Removal

Where the clerk-magistrate of the Sa-lem Division of the District Court De-partment removed the plaintiff from her position as an assistant clerk-magistrate of that court, the removal was not for “ar-bitrary or capricious reasons,” so it must be upheld.

Perullo v. Advisory Committee on Per-sonnel Standards (Lawyers Weekly No. 10-064-17) (23 pages) (Botsford, J.) Case heard by Fahey, J., on motions for judg-ment on the pleadings. John F. Tocci and Cary P. Gianoulis, both of Tocci & Lee, for the plaintiff; Suleyken D. Walker for the defendant (Docket No. SJC-12095) (April 24, 2017).

Deputy assistant register - Removal

Where the chief justice of the Probate & Family Court approved a decision by the register of the Berkshire Division of the Probate & Family Court to remove the deputy assistant register’s designa-tion, a single justice of the SJC did not abuse his discretion or commit an er-ror of law in denying a petition for relief from that decision.

Oggiani v. Chief Justice of the Tri-al Court, et al. (Lawyers Weekly No. 10-007-17) (3 pages) (Rescript) (SJC) Petition heard by Spina, J., sitting as single jus-tice. Joan E. Oggiani, pro se; Carrie Bene-don for the respondents (Docket No. SJC-12120) (Jan. 6, 2017).

APPEALSContinued from page 29



2016-201731

CONSUMER PROTECTION

G.L.c. 93A - Auto repairsWhere the plaintiff owner and oper-

ator of a fleet of luxury motor coach-es brought suit against a defendant that was hired to perform repair work on one those of vehicles, alleging that, by not recording the plaintiff ’s verbal re-quest in writing, the defendant violat-ed G.L.c. 93A, §2(a), as interpreted by 940 Code Mass. Regs. §5.05(2), that reg-ulation is applicable even though the plaintiff is a business and not a consumer.

Limoliner, Inc. v. Dattco, Inc. (Lawyers Weekly No. 10-141-16) (16 pages) (Lenk, J.) (SJC) Certification of a question of law by the 1st U.S. Circuit Court of Ap-peals. Robert E. Curtis Jr. for the plaintiff; Christopher S. Williams for the defendant (Docket No. SJC-12033) (Sept. 7, 2016).

G.L.c. 93A - Demand letterA plaintiff need not serve a G.L.c. 93A

demand letter on a defendant that either lacks a place of business in Massachusetts or does not keep assets in Massachusetts.

Moronta v. Nationstar Mortgage, LLC, et al. (Lawyers Weekly No. 10-190-16) (4 pages) (Rescript) (SJC) Appealed from a decision by Connor, J., in Norfolk Superi-or Court. Irene H. Bagdoian for the plain-tiff; Matthew A. Gens for the defendant (Docket No. SJC-12042) (Dec. 22, 2016).

CONTRACTPrivatization - Mental health - Pacheco Law

Where the Auditor of the Common-wealth approving a proposed privat-ization contract under which the Mas-sachusetts Behavioral Health Partner-ship, a privately owned state-wide men-tal health provider, would take over from the Department of Mental Health the provision of mental health services in the Southeast region of Massachusetts, the auditor did not abuse her discretion in determining that DMH’s privatization proposal met the requirements of the Pa-checo Law.

Service Employees International Union, Local 509, et al. v. Auditor of the Com-monwealth, et al. (Lawyers Weekly No. 10-186-16) (24 pages) (Lenk, J.) (SJC) Case reported by Spina, J., sitting as sin-gle justice. Ian O. Russell, Katherine D. Shea, both of Pyle, Rome, Ehrenberg, and James F. Lamond, of McDonald, Lamond & Canzoneri, with him) for the plaintiffs; Bryan F. Bertram (Daniel J. Hammond, with him) for the defendants (Docket No. 12126) (Dec. 9, 2016).

Privatization - Pacheco LawWhere a Superior Court judge dis-

missed a plaintiff union’s complaint for a declaration that the defendant Depart-ment of Mental Health violated the Pa-checo Law by renewing a contract that the union claims to be a privatization contract, the complaint should not have been dismissed, as the union has raised an issue regarding whether the original contract was invalid.

Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16) (24 pages) (Lenk, J.) (SJC) Case heard by Sanders, J., on motions for judgment on the pleadings. Ian O. Russell and Kather-ine D. Shea, both of Pyle, Rome, Ehren-berg, for the plaintiff; Iraida J. Álvarez for

the Department of Mental Health; Carl Valvo, of Cosgrove, Eisenberg & Kiley, and Ariel G. Sullivan, of Bowditch & Dewey, for Advocates, Inc., & others, were present but did not argue; Mark G. Matuschak and Robert Kingsley Smith, both of Hale & Dorr, for Pioneer Institute, Inc., were present but did not argue; Anita S. Licht-blau and Robert E. Cowden III, both of Casner & Edwards, submitted a brief for Massachusetts Council of Human Services Providers, Inc., and others, amici curiae (Docket No. SJC-12035) (Nov. 22, 2016).

CORPORATEDerivative action - Merger

Where shareholders of a publicly trad-ed corporation claimed that a merger transaction proposed by the board of di-rectors would result in the effective sale of the corporation for an inadequate price, that claim must be brought as derivative claim on behalf of the corporation, not directly against the board members.

International Brotherhood of Electri-cal Workers Local No. 129 Benefit Fund v. Tucci, et al. (and eight companion cases) (Lawyers Weekly No. 10-038-17) (21 pag-es) (Botsford, J.) Motion to dismiss heard by Leibensperger, J., in Superior Court. Ja-son M. Leviton, of Block & Leviton (Mi-chael G. Capeci, of New York, and Joel A. Fleming, of Block & Leviton, also present) for International Brotherhood of Electrical Workers Local No. 129 Benefit Fund and others; Thomas J. Dougherty and Kurt Wm. Hemr, both of Skadden, Arps, Slate, Meagher & Flom, for Joseph M. Tucci and others; John Pagliaro and Martin J. Ne-whouse, for New England Legal Foun-dation, amicus curiae, submitted a brief; Ian D. Roffman and Matthew J. Connol-ly, both of Nutter, McClennen & Fish, sub-mitted a brief for Associated Industries of Massachusetts, amicus curiae (Docket No. SJC-12137) (March 6, 2017).

Inspection - RecordsWhere a judge dismissed with prej-

udice a plaintiff shareholder’s demand to inspect records of the defendant cor-poration, the judge applied an incorrect standard in determining whether the plaintiff had a proper purpose for re-questing the records.

Chitwood v. Vertex Pharmaceuticals, Inc. (Lawyers Weekly No. 10-046-17) (22 pages) (Gants, C.J.) Case heard by Sand-ers, J., in Superior Court. Steven J. Pur-cell, of New York (Justin Sherman, of New York, and Mitchell J. Matorin also present) for the plaintiff; R. Todd Cronan and Wil-liam B. Brady, both of Goodwin Procter, for the defendant; Ben Robbins and Mar-tin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief (Docket No. SJC-12101) (March 20, 2017).

Termination - CauseWhere a plaintiff executive of the de-

fendant corporation was terminated, a Superior Court judge committed no er-ror in finding that the termination was not for cause.

Balles v. Babcock Power Inc. (Lawyers Weekly No. 10-039-17) (28 pages) (Lenk, J.) Case heard by Wilkins, J., in Superi-or Court. Mark C. Fleming and Jonathan A. Cox, both of Wilmer, Cutler, Pickering, Hale and Dorr, for the defendant; Thom-as J. Carey Jr. and Jody L. Newman, both of Collora, LLP, for the plaintiff; Ben Rob-bins & Martin J. Newhouse, for New En-gland Legal Foundation, amicus curiae,

submitted a brief (Docket No. SJC-12112) (March 6, 2017).

CRIMINAL

Application for complaint - Police officer

Where a Boston police officer alleged that her supervisor committed an assault and battery against her, but her applica-tion for a criminal complaint was denied for lack of probable cause, a single jus-tice properly denied (1) a rehearing on her application and (2) her request for a broader ruling requiring that appli-cations for criminal complaints made against police officers be automatically transferred to a judge outside the police officer’s jurisdiction, rather than being heard by a clerk-magistrate.

In the Matter of an Application for a Criminal Complaint (Lawyers Weekly No. 10-088-17) (4 pages) (Rescript) Brooks A. Ames for the petitioner; Douglas I. Lou-ison, of Louison, Costello, Condon & Pfaff, for the respondent (Docket No. SJC-12062) (May 25, 2017).

Arson - New trialWhere a defendant was convicted in

1983 of one count of arson in a dwelling house and eight counts of murder in the second degree, a new trial must be or-dered based on (1) psychiatric expert ev-idence that the defendant suffered from delirium tremens (DTs) at the time of his confession and (2) fire science expert ev-idence about new protocols for evaluat-ing the source of a fire.

Commonwealth v. Rosario (Lawyers Weekly No. 10-075-17) (23 pages) (Budd, J.) Motion for a new trial heard by Tutt-man, J., in Superior Court. Jessica Lang-sam (Thomas F. O’Reilly also present) for the commonwealth; Lisa M. Kavanaugh (Andrea Petersen also present) for the de-fendant; M. Chris Fabricant, Karen Ne-wirth, James C. Dugan, Vincent P. Ian-nece, Lara S. Kasten and Kathryn J. Ran-ieri, of New York, Stephanie Roberts Har-tung and Sharon L. Beckman, for New En-gland Innocence Project and others, amici curiae, submitted a brief (Docket No. SJC-12115) (May 11, 2017).

Assault - Household - Dating relationship

Where the defendant was convicted of assault and battery on a family or house-hold member in violation of G.L.c. 265, §13M(a), the conviction must be upheld because the evidence warranted a find-ing beyond a reasonable doubt that the defendant was involved in a “substantive dating relationship” with the person he was charged with assaulting.

Commonwealth v. Dustin (Lawyers Weekly No. 10-182-16) (7 pages) (Re-script) (SJC) Michael A. Waryasz for the defendant; Melissa Weisgold Johnsen for the commonwealth; Max Bauer, for Ty-rone Stampley, amicus curiae, submit-ted a brief (Docket No. SJC-12036) (Nov. 23, 2016).

Bail - Financial resourcesIn setting a bail amount, whether un-

der G.L.c. 276, §57 or §58, a judge must consider a defendant’s financial resourc-es, but is not required to set bail in an amount the defendant can afford if oth-er relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his ap-pearance at trial.

Brangan v. Commonwealth (Lawyers Weekly No. 10-143-17) (35 pages) (Hines, J.) Case heard by Lenk, J., sitting as sin-gle justice. Merritt Schnipper for the peti-tioner; Amal Bala for the commonwealth; Shira Diner and Ryan M. Schiff, for Com-mittee for Public Counsel Services, amicus curiae, submitted a brief (Docket No. SJC-12232) (Aug. 25, 2017).

Bail forfeitureWhere a petitioner argued that that

double or triple bail was wrongly im-posed in connection with his larceny case, but a single justice denied his G.L.c. 211, §3 petition and instead directed that the petitioner could seek, in the Superi-or Court, return of certain forfeited bail, there was no error.

Tavares v. Commonwealth (Lawyers Weekly No. 10-178-16) (4 pages) (Re-script) (SJC) Daniel D. Tavares, pro se; Su-sanne G. Reardon for the commonwealth (Docket No. SJC-11829) (Nov. 10, 2016).

Breaking and entering - Larceny - Probable cause

Where a Boston Municipal Court judge dismissed charges of breaking and entering and larceny for lack of prob-able cause, those counts of the com-plaint must be reinstated, but on differ-ent grounds from those relied on by the Appeals Court.

Commonwealth v. Hardin (Lawyers Weekly No. 10-185-16) (4 pages) (Re-script) (SJC) Motions heard by Gobourne, J., in Boston Municipal Court. Timothy St. Lawrence for the defendant; Zachary Hill-man for the commonwealth (Docket No. SJC-12067) (Dec. 6, 2016).

Burglarious instrumentsWhere two defendants were convicted

of burglarious instruments, the convic-tions must be reversed because the evi-dence of intent was insufficient.

Commonwealth v. Squires; Common-wealth v. Angier (Lawyers Weekly No. 10-050-17) (19 pages) (Hines, J.) (Gaziano, J., with whom Botsford and Lowy, JJ., join, dissenting) Cases tried before McGuiness, J., in District Court. Kathleen J. Hill for Steven E. Angier; Carolyn L. Hely (Mi-chael P.J. McGee also present) for the com-monwealth; Patrick A. Michaud for John F. Squires III (Docket Nos. SJC-12086 and 12087) (March 27, 2017).

Child pornography - Lascivious intent

Where a defendant has been convicted of child pornography, the lower court did not err in denying his motions to sup-press, but the case must be remanded for a restitution hearing.

Commonwealth v. Molina (Lawyers Weekly No. 10-023-17) (37 pages) (Bots-ford, J.) Motion to suppress heard by Ka-plan, J.; cases were heard by Davis, J., and a motion for restitution considered by him. Ethan C. Stiles for the defendant; Ryan E. Ferch (Nancy Ruthstein also pres-ent) for the commonwealth (Docket No. SJC-12022) (Feb. 7, 2017).

Child rape - First complaint - Battered woman defense

Where a jury convicted a defendant of three counts of raping her 14-year-old niece, the verdicts must be set aside be-cause the trial judge erroneously applied the first complaint rule and should not have excluded the defendant’s proffered


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expert evidence on battered wom-an syndrome.

Commonwealth v. Asenjo (Lawyers Weekly No. 10-131-17) (19 pages) (Hines, J.) Cases tried before James F. Lang, J., in Superior Court. Emily A. Cardy for the defendant; David F. O’Sullivan (Jennifer S. Kirshenbaum also present) for the com-monwealth (Docket No. SJC-12227) (Aug. 15, 2017).

Child rape - Limitations - Corroboration

A conviction of certain sex offenses against children, if based on an indict-ment returned more than 27 years after the offense, must be supported by inde-pendent, corroborating evidence relat-ing to the specific criminal act or acts of which a defendant is accused, not un-charged misconduct.

Commonwealth v. White (Lawyers Weekly No. 10-165-16) (36 pages) (Lenk, J.) (SJC) Case tried before Chin, J., in Su-perior Court. Kathryn Hayne Barnwell for the defendant; Robert C. Thompson for the commonwealth (Docket No. SJC-11919) (Oct. 19, 2016).

Credit for time servedWhere a defendant was denied credit

for time being served in a house of cor-rection for one set of offenses while he was awaiting trial and sentencing in the Superior Court on a second, unrelated set of offenses, the defendant is not en-titled as of right to the credit he seeks, but the order must nonetheless be vacat-ed and the matter remanded because the judge did not consider whether to exer-cise his authority to impose a concurrent state prison sentence nunc pro tunc to the commencement of a house of correc-tion sentence then being served.

Commonwealth v. Lydon (Lawyers Weekly No. 10-089-17) (3 pages) (Re-script) Jeffrey A. Garland for the defen-dant; Helle Sachse for the commonwealth (Docket No. SJC-12289) (May 26, 2017).

CSLI - WiretapWhere the defendant appeals from

his murder conviction and from the de-nial of his motion for a new trial, both must be affirmed because (1) the defen-dant was not deprived of the effective as-sistance of trial counsel when his attor-ney decided not to introduce cell site lo-cation information (CSLI) and (2) there was no error in the motion judge’s deter-mination that a witness’s testimony was sufficiently attenuated from suppressed wiretap evidence to dissipate the taint of illegality.

Commonwealth v. Long (Lawyers Weekly No. 10-035-17) (24 pages) (Gazia-no, J.) (SJC) Motions to suppress evidence heard by Sanders, J.; cases were tried be-fore Fishman, J., and a motion for a new trial heard by him. Robert F. Shaw Jr. on appeal for the defendant; Pamela Alford (Craig F. Kowalski also present) for the commonwealth (Docket No. SJC-11253) (Feb. 24, 2017).

Discovery - District Court/BMC Trial Division

Where two Boston Municipal Court judges issued discovery orders prior to hearings on whether probable cause ex-isted to bind two cases over to the Supe-rior Court, the judges acted within their inherent judicial authority in issuing the

discovery orders.Commonwealth v. Teixeira; Common-

wealth v. Meade (Lawyers Weekly No. 10-149-16) (26 pages) (Lenk, J.) (SJC) Val-erie A. DePalma (Jeffrey M. Miller with her) for the defendants; Kathryn Leary for the commonwealth; John D. Donovan Jr., of Ropes & Gray, Jesse M. Boodoo, Josh-ua D. Rovenger and David M. Coriell, of Ropes & Gray, for Massachusetts Associ-ation of Criminal Defense Lawyers, am-icus curiae, submitted a brief; Benjamin H. Keehn, for Committee for Public Coun-sel Services, amicus curiae, submitted a brief (Docket Nos. SJC-11929 and 11944) (Sept. 16, 2016).

Disorderly conduct - ER psychiatric area

Where a defendant was convicted of disorderly conduct, the conviction must be reversed because there was insuffi-cient evidence that he recklessly created a risk of public inconvenience, annoy-ance or alarm.

Commonwealth v. Accime (Lawyers Weekly No. 10-029-17) (17 pages) (Bots-ford, J.) Case tried before Forde, J., in Bos-ton Municipal Court. Jeffrey A. Garland for the defendant; Donna Jalbert Patala-no (Neil J. Flynn Jr. also present) for the commonwealth; Bettina Toner, Robert D. Fleischner, Jennifer Honig, Chetan Tiwari and Phillip Kassel, for Center for Public Representation and another, amici curiae, submitted a brief (Docket No. SJC-12081) (Feb. 13, 2017).

Dookhan scandal - ProtocolWhere petitioners and the Commit-

tee for Public Counsel Services have re-quested that thousands of drug convic-tions be vacated because of the miscon-duct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute, the solution should instead be a three-prong protocol to be implemented by a sin-gle justice.

Bridgeman, et al. v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-014-17) (75 pages) (Gants, C.J.) (Lenk, J., with whom Budd, J., joins, concurring) (Hines, J., dissenting) Case re-ported by Botsford, J., sitting as single jus-tice. Matthew R. Segal (Daniel N. Marx, Adriana LaFaille and Carlton E. Williams also present) for the petitioners; Benja-min H. Keehn (Nancy J. Caplan and Eric Brandt also present) for the Committee for Public Counsel Services; Quentin R. Weld for the District Attorney for the Essex Dis-trict; Susanne M. O’Neil for the District Attorney for the Norfolk District; Vincent J. DeMore for the District Attorney for the Suffolk District; the following were present but did not argue: Robert J. Bender and Hallie White Speight for the District At-torney for the Middlesex District; Gail M. McKenna for the District Attorney for the Plymouth District; Brian S. Glenny for the District Attorney for the Cape & Islands District; Aaron M. Katz for Massachusetts Association of Criminal Defense Lawyers, amicus curiae; the following submitted briefs for amici curiae: Joseph S. Dowdy and Christine C. Mumma, of North Caro-lina, John Roddy and Denise McWilliams for New England Innocence Project and another; Janet Moore, of Ohio, and Pa-tricia A. DeJuneas for National Associa-tion for Public Defense; Anthony A. Sci-belli and Elizabeth A. Ritvo for Boston Bar Association; Daniel K. Gelb, Chauncy B. Wood, Naveen Ganesh and Peter Walk-ingshaw for National Association of Criminal Defense Lawyers and another

(Docket No. SJC-12157) (Jan. 18, 2017).

Double jeopardy - Felony-murder

Where (1) a jury convicted a defen-dant of first-degree murder, armed home invasion and armed assault with intent to rob, (2) he was granted a new trial on the murder charge and (3) was later acquit-ted, the other two convictions must be affirmed despite the defendant’s double jeopardy claim.

Commonwealth v. Resende (Lawyers Weekly No. 10-003-17) (25 pages) (Gazia-no, J.) (SJC) Cases tried before Chin, J., and a motion for a new trial heard by him; cer-tain of the cases retried before Hely, J.; and motions to reinstate a conviction and for release from unlawful restraint heard by Chin, J., in Superior Court. Jonathan Sha-piro and Molly Gayle Campbell, both of Stern, Shapiro, Weissberg & Garin, for the defendant; Mary E. Lee for the common-wealth; David Lewis, Anthony Mirenda, & Richard G. Baldwin, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief (Docket No. SJC-11997) (Jan. 3, 2017).

Double jeopardy - Larceny - Receiving stolen property

Where a defendant was acquitted on a charge of receipt of stolen proper-ty, neither principles of double jeopar-dy nor equitable principles barred a sub-sequent prosecution for larceny of the same property.

Commonwealth v. Rodriguez (Lawyers Weekly No. 10-021-17) (16 pages) (Budd, J.) Motion to dismiss heard by Edmonds, J., in District Court. Roger L. Michel Jr. for the commonwealth; Timothy St. Lawrence for the defendant (Docket No. SJC-12093) (Feb. 1, 2017).

False report - Deputy sheriffWhere a defendant was convicted

of making a false report of a crime to a police officer in violation of G.L.c. 269, §13A, the conviction must be vacated because the defendant’s report of a sexu-al assault was made not to a police officer but to a deputy sheriff employed at the Worcester County house of correction.

Commonwealth v. Gernrich (Lawyers Weekly No. 10-011-17) (16 pages) (Hines, J.) Case heard by LoConto, J., in District Court. Darla J. Mondou for the defendant; Michelle R. King for the commonwealth (Docket No. SJC-12078) (Jan. 12, 2017).

Fingerprint - Break-inWhere, following a jury-waived trial

in District Court, a judge found the de-fendant guilty of breaking and entering in the daytime with the intent to com-mit a felony and larceny of property over $250, both judgments must be reversed because the only identification evidence — the defendant’s fingerprint on a win-dow that was accessible to the general public — was not sufficient to find, be-yond a reasonable doubt, that the defen-dant committed the crimes.

Commonwealth v. French (Lawyers Weekly No. 10-031-17) (5 pages) (Re-script) Case heard by LoConto, J., in Springfield District Court. Joseph Visone for the defendant; Alyson C. Yorlano for the commonwealth (Docket No. SJC-12012) (Feb. 14, 2017).

Fraudulent check - InferenceWhere a jury convicted the defen-

dant on four counts of larceny by utter-ing a false check, the convictions must be

affirmed despite the unconstitutionality of a jury instruction on the defendant’s knowledge and intent.

Commonwealth v. Littles (Lawyers Weekly No. 10-113-17) (17 pages) (Lowy, J.) Case tried before Uhlarik, J., in Dis-trict Court. Philip A. Mallard (Lindsay M. Nasson also present) for the common-wealth; Joseph K. Kenyon Jr. for the defen-dant (Docket No. 12238) (June 28, 2017).

Habitual criminal statuteWhere a Superior Court judge dis-

missed the habitual offender portions of the indictments against a defendant, the dismissal order must be affirmed be-cause the commonwealth failed to pro-vide the grand jury with sufficient evi-dence of two prior convictions arising from separate incidents or episodes of criminal behavior.

Commonwealth v. Garvey (Lawyers Weekly No. 10-073-17) (17 pages) (Budd, J.) Motion to dismiss heard by Ball, J., in Superior Court. Zachary Hillman (Kath-leen Celio also present) for the common-wealth; Robert A. O’Meara (Joseph M. Perullo also present) for the defendant (Docket No. SJC-12110) (May 9, 2017).

Harassment - Freedom of speech

Where a defendant was convicted of criminal harassment based on anony-mous letters he allegedly sent to a Re-hoboth town selectman and the select-man’s wife, (1) the defendant’s convic-tion of criminal harassment of the select-man must, on free speech grounds, be re-versed, with that count of the complaint ordered dismissed and (2) the defen-dant’s conviction of criminal harassment of the selectman’s wife must be set aside, with a remand ordered for a new trial on the issue of whether the letters constitut-ed true threats.

Commonwealth v. Bigelow (Lawyers Weekly No. 10-153-16) (50 pages) (Bots-ford, J.) (Duffly, J., with whom Spina and Hines, JJ., join, dissenting) (SJC) Case tried before Phillips, J., in District Court. Diana Cowhey McDermott on appeal for the defendant; David B. Mark for the commonwealth (Docket No. SJC-11974) (Sept. 27, 2016).

Impoundment - Police interview

Where a judge who suppressed a video recording of a defendant’s police inter-view later denied the defendant’s motion to impound the video, the judge com-mitted no abuse of discretion in light of the presumption of public access to judi-cial records.

Commonwealth v. Chism, et al. (Law-yers Weekly No. 10-004-17) (26 pages) (Gants, C.J.) (SJC) Case heard by Duffly, J., sitting as single justice. Jonathan M. Al-bano and Emma D. Hall, both of Morgan, Lewis & Bockius, for Boston Globe Media Partners, LLC; Patrick Levin for the de-fendant; Zachary C. Kleinsasser, of Green-berg Traurig, for Eagle Tribune Publish-ing Company, Inc., was present but did not argue (Docket No. SJC-11939) (Jan. 4, 2017).

Incompetence - DismissalWhere a defendant was found incom-

petent to stand trial on a charge of assault and battery by means of a dangerous weapon, he will be eligible for dismissal after one-half of the maximum statutory sentence for that offense — or earlier if appropriate in the interest of justice.

CRIMINALContinued from page 31



2016-201733

Commonwealth v. Calvaire (Lawyers Weekly No. 10-010-17) (11 pages) (Budd, J.) case was reported by Cordy, J., sitting as single justice. M. Barusch (Beth L. Eisen-berg also present) for the defendant; Darcy A. Jordan for the commonwealth (Docket No. SJC-12084) (Jan. 11, 2017).

Ineffective assistance - Mental health expert

Where the defendant was found guilty of first-degree murder on theories of deliberate premeditation and extreme atrocity or cruelty, the judgment must be upheld despite her claims that her coun-sel was ineffective in failing to consult with a mental health expert regarding (1) a defense of mental impairment, in-cluding impeaching the commonwealth’s mental health expert; (2) the suppres-sion of statements made by the defendant during two police interviews; and (3) the defendant’s competency to stand trial.

Commonwealth v. Field (Lawyers Weekly No. 10-126-17) (16 pages) (Lowy, J.) Case before Hely, J., in Superior Court, and a motion for a new trial heard by him. Elizabeth Caddick on appeal for the de-fendant; Stacey L. Gauthier for the com-monwealth (Docket No. SJC-11403) (Aug. 1, 2016).

Kidnapping - Domestic violence - Jury selection

Where a defendant was convicted of kidnapping and assault and battery aris-ing out of an incident of domestic vio-lence, (1) the judge committed no revers-ible error in denying the defendant’s pe-remptory challenge of a female juror or in admitting prior bad act evidence and (2) there was sufficient evidence to support his kidnapping conviction.

Commonwealth v. Oberle (Lawyers Weekly No. 10-037-17) (22 pages) (Bots-ford, J.) Cases tried before Brassard, J., in Superior Court. Merritt Schnipper for the defendant; Michael McGee for the com-monwealth (Docket No. SJC-12149) (Feb. 28, 2017).

Mandamus - Gatekeeper petition

Where the defendant seeks postconvic-tion relief after his motion for a new tri-al was denied, he is not entitled to relief regardless of whether his petition is con-sidered a mandamus petition pursuant to G.L.c. 249, §5, or a gatekeeper petition under G.L.c. 278, §33E.

Vinnie v. Commonwealth (Lawyers Weekly No. 10-146-16) (3 pages) (Re-script) (SJC) Petition heard by Spina, J., sitting as single justice. Raymond P. Vin-nie, pro se; Tracey A. Cusick for the com-monwealth (Docket No. SJC-12011) (Sept. 12, 2016).

Manslaughter - Limitations - Waiver

Where a defendant charged with mur-der requested a jury instruction on the lesser included offense of manslaugh-ter, the trial judge acted correctly by not granting that request absent an agreement by the defendant to waive the statute of limitations defense to manslaughter.

Commonwealth v. Shelley (Lawyers Weekly No. 10-141-17) (27 pages) (Lowy, J.) (Budd, J., with whom Lenk and Hines, JJ., join, dissenting) Cases tried before Ken-ton-Walker, J., in Superior Court. Robert L. Sheketoff for the defendant; Laura Kir-shenbaum for the commonwealth (Docket No. SJC-12209) (Aug. 24, 2017).

Misleading a police officerStatements are not misleading within

the meaning of G.L.c. 268, §13B, unless, given the information known to police at the time the statements were made, the statements reasonably could have led police to pursue a materially different course of investigation.

Commonwealth v. Paquette (Lawyers Weekly No. 10-169-16) (22 pages) (Lenk, J.) (SJC) Cases tried before Kinder, J., in Superior Court. Thomas D. Frothingham for the defendant; Steven E. Gagne for the commonwealth; Yale Yechiel N. Robinson, pro se, amicus curiae, submitted a brief (Docket No. SJC-12028) (Oct. 27, 2016).

Misleading a police officer - Swallowing of evidence

Where a defendant was charged with misleading a police officer based on evi-dence that she swallowed what was be-lieved to be heroin, a Boston Municipal Court order dismissing the charge must be affirmed because the defendant’s al-leged conduct was neither intended to create a false impression in the mind of another nor reasonably likely to lead the investigation in a materially different, or wrong, direction.

Commonwealth v. Tejeda (Lawyers Weekly No. 10-061-17) (7 pages) (Budd, J.) Motion to dismiss heard by David Weing-arten, J., and a motion for reconsideration considered by him. Jason Shaffer (Robert E. Proctor and Colin Doyle also present) for the defendant; Zachary Hillman (Alex-andra I. Halprin also present) for the com-monwealth (Docket No. SJC-12187) (April 20, 2017).

Mistrial - Manifest necessityWhere a defendant was retried for fire-

arm possession after a mistrial was de-clared, the constitutional rule against dou-ble jeopardy was not violated, as there was a manifest necessity to declare a mistrial because of the conduct of defense counsel.

Commonwealth v. Bryan (Lawyers Weekly No. 10-016-17) (17 pages) (Ga-ziano, J.) Case heard by Duffly, J., sitting as single justice. Nicholas Brandt (Greg-ory D. Henning also present) for the com-monwealth; Paul J. Davenport, of Jeruchim & Davenport, for the defendant on appeal (Docket No. SJC-12140) (Jan. 20, 2017).

MurderWhere a defendant argues that (1) the

trial judge abused her discretion in ex-cluding evidence, admitting a witness’s testimony and allowing the common-wealth to impeach an alibi witness; (2) the commonwealth improperly invoked sympathy for the victim’s family during its closing argument; and (3) he should not have been sentenced to life in prison with-out the possibility of parole because he was only 18 at the time of the shooting, none of his arguments merits reversal of his murder conviction.

Commonwealth v. Chukwuezi (Lawyers Weekly No. 10-155-16) (24 pages) (Lenk, J.) (SJC) Cases tried before Giles, J., in Supe-rior Court. Stephen Paul Maidman for the defendant; Zachary Hillman for the com-monwealth (Docket No. SJC-11579) (Sept. 29, 2016).

MurderWhere a jury convicted a defendant

of murder in the first degree by extreme atrocity or cruelty, as well as assault and battery by means of a dangerous weap-on, the convictions should be upheld de-spite the defendant’s assertion of error in

(1) the limitation of his right to cross-ex-amine the medical examiner, (2) the de-nial of his motion to suppress statements, (3) the denial of the motion for a mistri-al after the jurors were exposed to inad-missible evidence, (4) the admission of hearsay testimony by one of the common-wealth’s expert witnesses, (5) the deni-al of the motion for a mistrial related to improper statements made during closing arguments, (6) the denial of the motion to dismiss on double jeopardy grounds for prosecutorial misconduct and (7) the de-nial of a requested jury instruction.

Commonwealth v. Durand (Lawyers Weekly No. 10-160-16) (30 pages) (Hines, J.) (SJC) Cases tried before Kane, J., in Su-perior Court. Gary G. Pelletier (Timothy J. Bridl with him) for the defendant; Tara L. Blackman for the commonwealth (Docket No. SJC-11221) (Oct. 7, 2016).

MurderWhere a jury convicted the defendant

of murder in the first degree on a theory of extreme atrocity or cruelty, the convic-tion must be affirmed because (1) the de-fendant has not shown that the presence of police officers caused those who testi-fied before the grand jury to feel coerced or intimidated, (2) the defendant was not entitled to a special prosecutor, (3) it was not error for the trial judge to permit a witness to testify that on the day of the homicide the defendant lifted his hood-ie to show her a large knife during a dis-pute about a debt and (4) the judge did not commit reversible error in allowing a commonwealth expert to testify about whether it was possible to match the de-fendant’s shoes to prints found in the vic-tim’s blood.

Commonwealth v. Holley (Lawyers Weekly No. 10-188-16) (26 pages) (Budd, J.) (SJC) Case tried before Kane, J., and a motion for a new trial considered by him. David H. Mirsky and Joanne T. Petito, both of Mirsky & Petito, for the defendant. Shoshana Stern for the commonwealth (Docket No. SJC-11385) (Dec. 19, 2016).

MurderWhere two defendants were indicted

on charges of first-degree murder, carry-ing a firearm without a license, carrying a loaded firearm without a license, and armed robbery, the convictions must be affirmed despite their assertions of error in (1) the denial of their motions to sup-press evidence, (2) the joinder at trial of indictments for two separate incidents, (3) portions of the prosecutor’s closing argument, (4) the sufficiency of the evi-dence of armed robbery and felony-mur-der, and (5) additional errors pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981).

Commonwealth v. Mendez (and 11 com-panion cases) (Lawyers Weekly No. 10-034-17) (24 pages) (Budd, J.) Motions to sup-press heard by Dupuis, J., and a motion for joinder also heard by her; and cases tried before Macdonald, J., in Superior Court. Cathryn A. Neaves for Charles Mendez; Jennifer H. O’Brien for Tacuma Massie; Yul-mi Cho for the commonwealth (Dock-et Nos. SJC-11869 and SJC-11870) (Feb. 22, 2017).

MurderWhere the defendant claims that the

judge erred in denying his motion for a required finding of not guilty of murder in the first degree and unlawful posses-sion of a firearm, there was no error, as the evidence was indeed sufficient to prove his guilt.

Commonwealth v. Cooley (Lawyers Weekly No. 10-119-17) (13 pages) (Budd, J.) Cases tried before Rup, J., in Superior Court, and a motion for a new trial heard by her. Stephen Paul Maidman on appeal for the defendant; David L. Sheppard-Brick for the commonwealth (Docket No. SJC-11691) (July 13, 2017).

MurderWhere a Superior Court jury convict-

ed the defendant of first-degree murder and felony-murder, the convictions must be affirmed despite his assertions of error in (1) the denial of his motion to suppress statements; (2) the admission of hearsay testimony from various witnesses; (3) the denial of a requested DiGiambattista jury instruction; (4) the denial of his motion for a mistrial following the jury’s exposure to inadmissible evidence; and (5) certain improper statements made in the prose-cutor’s closing argument.

Commonwealth v. Santana (Lawyers Weekly No. 10-133-17) (34 pages) (Hines, J.) Motion to suppress heard by Budd, J.; second motion to suppress heard by How-ard J. Whitehead, J.; third motion to sup-press heard by Welch, J.; and cases tried before Lowy, J., in Superior Court. Eliza-beth Caddick for the defendant; Kenneth E. Steinfield for the commonwealth (Docket No. SJC-12039) (Aug. 17, 2017).

Murder - Armed robberyWhere a jury convicted a defendant of

murder in the first degree, armed rob-bery, assault and battery, possession of a firearm, and possession of ammunition, the defendant’s armed robbery conviction must be vacated as duplicative because it was the predicate felony for his felo-ny-murder conviction, the only theory on which the jury found him guilty of mur-der in the first degree.

Commonwealth v. Carter (Lawyers Weekly No. 10-150-16) (29 pages) (Hines, J.) (SJC) Motion to suppress heard by Mc-Guire, J., and cases tried before Veary, J., in Superior Court. Russell C. Sobelman for the defendant; Gail M. McKenna for the com-monwealth (Docket No. SJC-11525) (Sept. 19, 2016).

Murder - ArsonWhere a defendant was convicted of

first-degree murder and arson, the con-victions must be upheld despite his claims that (1) the evidence introduced at tri-al was insufficient to support his convic-tions; (2) expert witnesses were allowed to testify about the substance of forensic test-ing results obtained by other analysts, in violation of his right to confrontation un-der the Sixth Amendment to the United States Constitution; (3) his custodial state-ments to police were obtained without a valid Miranda waiver and were involun-tary; and (4) the motion judge abused his discretion in denying the defendant’s mo-tion for a new trial without an evidentia-ry hearing.

Commonwealth v. Sanchez (Lawyers Weekly No. 10-052-17) (31 pages) (Gazia-no, J.) Cases tried before Velis, J., and a mo-tion for a new trial considered by Mason, J., in Superior Court. Elaine Pourinski for the defendant; Bethany C. Lynch for the com-monwealth (Docket No. SJC-11360) (April 5, 2017).

Murder - Criminal responsibility

Where a defendant was convicted of breaking into his former girlfriend’s


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home and murdering their 6-year-old daughter, his convictions must be af-firmed despite his contentions that (1) there was insufficient evidence that he was criminally responsible at the time of the killing; (2) his trial counsel provid-ed ineffective assistance of counsel by ad-mitting in his opening statement that the defendant’s conduct was “not psychot-ic”; (3) the prosecutors made improper remarks during their opening statement and closing argument; and (4) the judge’s instruction regarding the consequenc-es of a verdict of not guilty by reason of lack of criminal responsibility created a substantial likelihood of a miscarriage of justice.

Commonwealth v. Griffin (Lawyers Weekly No. 10-175-16) (27 pages) (Gants, C.J.) (SJC) Cases tried before Garsh, J., in Superior Court. Neil L. Fishman for the defendant; Yul-mi Cho for the common-wealth (Docket No. SJC-11524) (Nov. 4, 2016).

Murder - DNAWhere a defendant who was convicted

of first-degree murder in 1994 moved for a new trial in 2005, the trial judge did not err in denying that motion despite DNA analysis of blood evidence from the de-fendant’s shoes.

Commonwealth v. DiBenedetto (Law-yers Weekly No. 10-142-16) (26 pages) (Botsford, J.) (SJC) Motion for a new tri-al was heard by Mulligan, J., in Superi-or Court. Wendy H. Sibbison (Dennis A. Shedd with her) for the defendant; Zach-ary Hillman, Assistant District Attorney, for the Commonwealth; David B. Hird, Cecile Farmer and Vanshika Vij, of the District of Columbia, Patrick O’Toole Jr. and Evan Miller, both of Weil, Gotshal & Manges, submitted a brief for The Inno-cence Project, amicus curiae (Docket No. SJC-10658) (Sept. 8, 2016).

Murder - DriverWhere a defendant was convicted of

first-degree murder based on the com-monwealth’s allegation that she drove a vehicle that dropped off four people, in-cluding her boyfriend, who carried out a fatal shooting at an intersection, the conviction must be reversed because (1) the evidence was insufficient to al-low the jury to conclude beyond a rea-sonable doubt that the defendant was the driver and (2) the evidence did not allow the jury to conclude, beyond a reason-able doubt, that she knew of or shared the coventurers’ lethal intent, as is re-quired for a conviction of deliberately premeditated murder committed by way of joint venture.

Commonwealth v. Gonzalez (Lawyers Weekly No. 10-140-16) (42 pages) (Lenk, J.) (Cordy, J., concurring in part and in the judgment) (SJC) Case tried before Ames, J., in Superior Court. Robert F. Shaw Jr. for the defendant on appeal; David F. O’Sul-livan for the commonwealth (Docket No. SJC-11731) (Sept. 6, 2016).

Murder - Expert testimony - Eyewitness

Where a defendant, on appeal from a murder conviction, argues that the judge erred (1) in not allowing the admission of testimony by an expert on eyewitness identification and (2) in allowing the admission of testimony concerning ev-idence seized from a vehicle the defen-dant was driving several months after

the shooting, there is no reason to dis-turb the conviction nor to grant extraor-dinary relief under G.L.c. 278, §33E.

The matter is remanded to the Superi-or Court solely for consideration of his pending motion to revise and revoke his sentence.

Commonwealth v. Snyder (Lawyers Weekly No. 10-143-16) (23 pages) (Lenk, J.) (SJC) Case tried before Mulligan, J., in Superior Court. Dana Alan Curhan (Vic-toria L. Nadel and Roger Witkin with him) on appeal for the defendant; Steph-anie Martin Glennon for the common-wealth (Docket No. SJC-09203) (Sept. 8, 2016).

Murder - Expert testimony - Prosecutor’s closing

Where a defendant was convicted of first-degree murder on a theory of delib-erate premeditation, the judgment must be upheld despite his contentions that (1) the trial judge erred by permitting the commonwealth’s expert witness to testify that he had premeditated the killing, (2) the same expert was impermissibly per-mitted to state the basis of her opinion on direct examination and (3) the prose-cutor made statements not supported by evidence during closing arguments.

Commonwealth v. Goddard (Lawyers Weekly No. 10-027-17) (13 pages) (Lowy, J.) (SJC) Cases tried before Tucker, J., in Superior Court. Robert S. Sinsheimer for the defendant; Ellyn H. Lazar-Moore for the commonwealth (Docket No. SJC-11955) (Feb. 9, 2017).

Murder - Fingerprints - TextsWhere a jury found two defendants

guilty of first-degree murder, the con-victions must be upheld because (1) the failure of defense counsel to object to the admission of text messages did not cre-ate a substantial risk of a miscarriage of justice and (2) fingerprint cards attribut-ed to the defendants were admissible as business records.

Commonwealth v. Fulgiam (and 13 companion cases) (Lawyers Weekly No. 10-071-17) (48 pages) (Hines, J.) (Lowy, J., concurring) Cases tried before Lauriat, J., in Superior Court. Elizabeth Caddick on appeal for Earl T. Fulgiam; Esther J. Horwich on appeal for Michael T. Corbin; Zachary Hillman (John P. Pappas also present) for the commonwealth (Docket No. SJC-11674) (May 5, 2017).

Murder - Gang evidenceWhere the defendant was convicted of

first-degree murder, the judgment must be upheld despite his contentions that (1) the commonwealth presented insuf-ficient evidence to support his convic-tion as both the shooter and as a know-ing participant with shared intent to kill; (2) the judge abused her discretion in admitting prejudicial gang evidence; (3) the prosecutor’s opening statement and closing argument were improper; (4) the judge allowed inadmissible statements, which unfairly bolstered the common-wealth’s theory of gang retaliation and al-lowed improper interpretive testimony; (5) trial counsel provided ineffective as-sistance of counsel; and (6) the motion judge erroneously denied the defendant’s motion to dismiss the indictments.

Commonwealth v. Barbosa (Lawyers Weekly No. 10-144-17) (32 pages) (Hines, J.) Cases tried before McEvoy, J., in Superi-or Court. Patricia A. DeJuneas, of Sibbison & DeJuneas, on appeal for the defendant; Teresa K. Anderson (Patrick M. Hag-gan also present) for the commonwealth

(Docket No. SJC-11720) (Aug. 25, 2017).

Murder - Grand jury testimony

Where the defendants, who were each found guilty of first-degree murder and related offenses, raise various evidentia-ry issues and challenge (1) the substan-tive admission of a witness’s grand jury testimony, (2) various statements in that testimony they claim are independently inadmissible, (3) certain portions of the prosecutor’s opening statement, (4) the jury instructions on immunized witness testimony and (5) the denial of their mo-tions to sever, there is no error warrant-ing reversal and no reason to reduce or set aside the verdicts under G.L.c. 278, §33E.

Commonwealth v. Depina (and a com-panion case) (Lawyers Weekly No. 10-043-17) (31 pages) (Lenk, J.) Cases tried before Chin, J., in Superior Court. Rose-mary Curran Scapicchio for Esau DePi-na; Stephen Neyman for Isaiah Monteiro; Audrey Anderson for the commonwealth (Docket Nos. SJC-11794 and SJC-11932) (March 13, 2017).

Murder - Ineffective assistance - Criminal responsibility

Where a defendant was convicted of first-degree murder on the theories of deliberate premeditation and extreme atrocity or cruelty, the judgments should not be disturbed, as the defendant was not denied effective assistance of coun-sel, nor was he denied the meaningful opportunity to present a complete de-fense based on the judge’s decision not to give certain jury instructions.

Commonwealth v. Gulla (Lawyers Weekly No. 10-053-17) (11 pages) (Budd, J.) Cases tried before Billings, J., and a motion for a new trial heard by him. Ste-phen Paul Maidman for the defendant; Ja-mie Michael Charles (Casey E. Silvia also present) for the commonwealth (Docket No. SJC-11361) (April 5, 2017).

Murder - Ineffective assistance - Criminal responsibility

Where the defendant, the victim’s es-tranged husband, was convicted of armed home invasion and murder in the first degree on theories of deliber-ate premeditation and extreme atrocity or cruelty, his convictions as well as or-ders denying his motions for a new trial must be affirmed despite his contention that his trial counsel was constitution-ally ineffective in failing to investigate and to present a defense of lack of crimi-nal responsibility.

Commonwealth v. Holland (Lawyers Weekly No. 10-060-17) (28 pages) (Hines, J.) Cases tried before Connolly, J., and mo-tions for a new trial heard by him. Kev-in S. Nixon on appeal for the defendant; Tracey A. Cusick for the commonwealth (Docket No. SJC-08737) (April 19, 2017).

Murder - Insanity - Home invasion

Where the defendant conceded that he had killed his 6-year-old cousin, but ar-gued that he was not guilty by reason of insanity, his conviction of murder in the first degree must be affirmed despite his various claims of error.

Because the evidence was insufficient with respect to the charge of home inva-sion, that conviction must be reversed.

Commonwealth v. Bois (Lawyers Week-ly No. 10-177-16) (38 pages) (Lenk, J.) (SJC) Cases tried before Sanders, J., in Su-perior Court, and a motion for a new tri-al heard by her. Dennis Shedd on appeal for the defendant; Tracey A. Cusick for the commonwealth (Docket No. SJC-10725) (Nov. 10, 2016).

Murder - Joint ventureWhere the defendant, who was con-

victed of stabbing death his cousin to death, argues that (1) a statement he made to police was not voluntary and should not have been admitted at trial, (2) there were errors in the jury instruc-tions and certain evidentiary rulings, (3) the judge abused his discretion in failing to dismiss several jurors for cause, (4) the prosecutor’s closing argument was improper, and (5) his mandatory sen-tence of life in prison without the possi-bility of parole violates the United States Constitution and the Massachusetts Declaration of Rights, there was no er-ror warranting reversal, nor any reason to reduce the verdict or order a new trial under G.L.c. 278, §33E.

Commonwealth v. Colton (Lawyers Weekly No. 10-070-17) (31 pages) (Lenk, J.) Motion to suppress heard by Spurlock, J., and case tried before Chernoff, J., in Su-perior Court. Michael J. Traft for the de-fendant; Casey E. Silvia for the common-wealth (Docket No. SJC-08772) (May 4, 2017).

Murder - Joint venture - Speedy trial

Where a defendant was convicted as a joint venturer of first-degree murder, armed robbery and assault and battery by means of a dangerous weapon, (1) there was sufficient evidence to convict him of each crime, (2) the judge cor-rectly denied his motion to dismiss on speedy trial grounds and (3) the evi-dence he contests, including his state-ments to police, was properly admitted at trial.

Commonwealth v. Williams (Lawyers Weekly No. 10-164-16) (33 pages) (Lenk, J.) (SJC) Cases tried before Agostini, J., in Superior Court. Kathleen M. McCarthy for the defendant; Katherine E. McMahon for the commonwealth (Docket No. SJC-11656) (Oct. 17, 2016).

Murder - Manslaughter instructions

Where the defendant claims that al-though he admittedly killed his wife, the trial evidence, and particularly his own trial testimony, entitled him to instruc-tions on both voluntary and involun-tary manslaughter, the absence of those instructions did not constitute error re-quiring reversal of his conviction or a new trial.

Commonwealth v. Felix (Lawyers Weekly No. 10-056-17) (21 pages) (Bots-ford, J.) Motion to suppress heard by Hen-ry, J.; case tried before Tuttman, J., and a motion for a new trial heard by her. Leslie W. O’Brien for the defendant; Jane A. Sul-livan for the commonwealth (Docket No. SJC-11692) (April 12, 2017).

Murder - Newly discovered evidence

Where a defendant who was convict-ed of first-degree murder and armed robbery was granted a new trial by a Su-perior Court judge, the judge commit-ted no abuse of discretion in finding that a new trial was warranted by (1) newly




2016-201735

discovered evidence regarding the vic-tim’s participation in crimes of police corruption with several Boston police detectives who investigated his mur-der and (2) information provided to the police regarding possible third-par-ty culprits.

Commonwealth v. Ellis (Lawyers Week-ly No. 10-144-16) (40 pages) (Gants, C.J.) (SJC) Motion for a new trial heard by Ball, J., in Superior Court. Paul B. Linn (Edmond J. Zabin with him) for the com-monwealth; Rosemary Curran Scapicchio (Jillise McDonough with her) for the de-fendant (Docket No. SJC-11993) (Sept. 9, 2016).

Murder - News broadcastWhere a defendant confessed to mur-

der while watching a news broadcast with his girlfriend’s mother, there was no abuse of discretion in the judge’s de-cision to allow admission of the news broadcast, nor was there any error re-quiring reversal in the judge’s conduct of the voir dire of the venire, in two of the judge’s evidentiary rulings, or in the prosecutor’s opening statement and closing argument.

Commonwealth v. Martinez (Lawyers Weekly No. 10-005-17) (26 pages) (Ga-ziano, J.) (SJC) Case tried before Fee-ley, J., in Superior Court. Amy M. Belger for the defendant; Kenneth E. Steinfield for the commonwealth (Docket No. SJC-11657) (Jan. 5, 2017).

Murder - Pipe bombWhere the defendant left the victim a

mail package containing a pipe bomb, there was no reversible error in his first-degree murder conviction despite his claims that (1) the admission of tes-timony by a jailhouse informant violat-ed his confrontation rights; (2) a ballis-tics expert improperly testified to a re-port prepared by an unavailable expert; (3) testimony by the commonwealth’s wire expert should have been excluded; (4) the commonwealth failed to estab-lish the reliability of computer forensics evidence; and (5) the admission of the victim’s prior recorded testimony and limitations on the defendant’s ability to attack its veracity violated his confron-tation rights.

Commonwealth v. Caruso (Law-yers Weekly No. 10-013-17) (38 pages) (Lowy, J.) (SJC) Motion to suppress heard by Grabau, J., and case tried before him. David A.F. Lewis on appeal for the defen-dant; Jessica Langsam (Elizabeth Dun-igan also present) for the commonwealth (Docket No. SJC-09656) (Jan. 13, 2017).

Murder - Reduced chargeWhere a defendant convicted of sec-

ond-degree murder has argued that his conviction should be reduced to man-slaughter, the trial judge, who has since been appointed to the Supreme Judicial Court, should be assigned the task of reviewing anew the defendant’s motion to reduce the verdict.

Commonwealth v. Grassie (Lawyers Weekly No. 10-006-17) (35 pages) (Bots-ford, J.) (Lowy, J., concurring) (SJC) Cas-es tried before Gaziano, J., and a re-newed motion for a required finding of not guilty considered by him. Kenneth H. Anderson, of Byrne & Anderson, and Greg L. Johnson, of Yannetti Law Firm, for the defendant; Robert C. Thompson for the commonwealth; Argie K. Shapiro, for the Attorney General, amicus cur-iae, submitted a brief (Docket No. SJC-12061) (Jan. 6, 2017).

Murder - Toxicology report - Confrontation

Where a jury convicted a defendant of second-degree murder, the conviction must be upheld despite (1) trial coun-sel’s unreasonable strategic decision not to introduce evidence of the defendant’s intoxication on the night of the shoot-ing, (2) trial counsel’s erroneous fail-ure to object to references to the web-site MassMostWanted and (3) the med-ical examiner’s testimony about the re-sults of a toxicology report created by another analyst pursuant to the autopsy on the victim.

Commonwealth v. Montrond (Lawyers Weekly No. 10-081-17) (24 pages) (Lenk, J.) (Lowy, J., concurring) Cases tried be-fore Troy, J.; motion for a new trial and a motion for postconviction discovery con-sidered by him; motion for a new trial heard by McGuire, J., in Superior Court. Leslie W. O’Brien for the defendant; Lau-rie Yeshulas for the commonwealth (Dock-et No. SJC-10834) (May 17, 2017).

Murder - Transferred intentWhere a defendant was convicted of

first-degree murder and related offens-es arising from a drive-by shooting inci-dent, the trial judge did not err by (1) de-nying his motion for a required finding of not guilty; (2) admitting in evidence items seized from an apartment building owned by his parents; (3) permitting ju-rors to pose certain questions to witness-es; (4) admitting or excluding certain tes-timonial evidence; and (5) declining to instruct the jury on the theory of trans-ferred intent.

Commonwealth v. Gomes (Lawyers Weekly No. 10-168-16) (29 pages) (Bots-ford, J.) (SJC) Cases tried before Brassard, J., in Superior Court. David Keighley for the defendant; Teresa K. Anderson (Julie Sunkle Higgins and Gretchen Lundgren with her) for the commonwealth (Docket No. SJC-11427) (Oct. 26, 2016).

Murder - Voluntary intoxication - Jury instructions

Where the defendant was convicted of two counts of murder in the first degree, armed assault with intent to murder, armed home invasion and unlawful pos-session of a firearm, his convictions must be upheld despite his contentions that (1) the jury instruction on criminal respon-sibility and voluntary intoxication was erroneous; (2) other jury instructions were fatally flawed; and (3) the prosecu-tor’s closing argument was improper.

Commonwealth v. Muller (Lawyers Weekly No. 10-117-17) (32 pages) (Hines, J.) Cases tried before Tucker, J., in Su-perior Court. Deirdre L. Thurber for the defendant on appeal; Susan M. Oftring for the commonwealth (Docket No. SJC-10809) (July 11, 2017).

‘Negative profiling’ - Intent to distribute

A jury verdict finding a defendant guilty of possession of cocaine with in-tent to distribute must be reversed be-cause the admission in evidence of so-called “negative profiling” testimony, suggesting that the defendant did not look like a “crack” cocaine addict, gave rise to a substantial risk of a miscarriage of justice.

Commonwealth v. Horne (Lawyers Weekly No. 10-008-17) (15 pages) (Lenk, J.) (SJC) Cases tried before Giles, J., in Su-perior Court. Rebecca A. Jacobstein for

the defendant; Justin Florence, of Ropes & Gray, for Massachusetts Association of Criminal Defense Lawyers and others, amici curiae; Teresa K. Anderson for the commonwealth (Docket No. SJC-12068) (Jan. 10, 2017).

Open and gross lewdnessWhere a defendant was convicted of

open and gross lewdness and lascivious behavior in violation of G.L.c. 272, §16, the conviction must be reversed because of insufficient evidence that an MBTA detective who witnessed his conduct was ‘in fact’ subjectively alarmed or shocked.

Commonwealth v. Maguire (Lawyers Weekly No. 10-002-17) (11 pages) (Hines, J.) (SJC) Case tried before Poole, J., in Bos-ton Municipal Court. Bradford R. Stan-ton for the defendant; Matthew T. Sears (Ashley E. Polin with him) for the com-monwealth (Docket No. SJC-12013) (Jan. 3, 2017).

OUI - InterpreterWhere a defendant has argued that

a police officer should not have been permitted to testify at trial about state-ments the defendant made to a po-lice-appointed interpreter after she was arrested on suspicion of drunk driving, the argument must be rejected despite the defendant’s hearsay- and confronta-tion-based contentions.

Further, the trial judge did not err in admitting into evidence the defen-dant’s failure to produce a usable breath test result.

Commonwealth v. Adonsoto (Lawyers Weekly No. 10-148-16) (26 pages) (Hines, J.) (SJC) Case tried before McGuiness, J., in District Court. Christopher DeMayo on appeal for the defendant; Varsha Kukaf-ka for the commonwealth; Eric R. Atstu-penas, for Massachusetts Chiefs of Police Association, Inc., amicus curiae, submit-ted a brief (Docket No. SJC-11978) (Sept. 16, 2016).

Plea - Sex offender registration

Where a defendant plead guilty in 2002 to indecent assault and battery, his counsel was not constitutionally in-effective by advising the defendant that he would need to “register” without ex-plaining the consequences of sex offend-er registration.

Commonwealth v. Sylvester (Lawyers Weekly No. 10-176-16) (23 pages) (Hines, J.) (SJC) Motion to withdraw plea of guilty heard by Orfanello, J., in District Court. Jeffrey Harris, of Good Schneider Corm-ier, on appeal for the defendant; Susanne M. O’Neil for the commonwealth; Mer-ritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submit-ted a brief (Docket No. SJC-11966) (Nov. 9, 2016).

Plea agreement - Specific performance

Where a defendant who in 2013 was convicted of first-degree murder sought to enforce a 1994 plea agreement under which he agreed to plead guilty to second-degree murder, a judge should not have granted that request, as the 1994 agreement did not involve an enforceable promise regarding parole eligibility.

Commonwealth v. Francis (Lawyers Weekly No. 10-129-17) (10 pages) (Lowy, J.) Appealed from a decision by Giles, J., in Su-perior Court. Mary E. Lee for the common-wealth; Leslie W. O’Brien for the defendant (Docket No. SJC-12118) (Aug. 11, 2017).

Probation - Double jeopardyWhere a defendant has challenged the

imposition of eight years of probation, the challenge has merit under the Dou-ble Jeopardy Clause.

Commonwealth v. Pacheco (Lawyers Weekly No. 10-091-17) (19 pages) (Gazia-no, J.) A motion to vacate sentence, filed on June, 18, 2008, was heard by Kern, J., and a motion to correct and clarify sen-tence, filed on Nov. 30, 2014, was heard by Tuttman, J., in Superior Court. Rebecca Kiley for the defendant; Michael Klunder for the commonwealth (Docket No. SJC-12212) (May 30, 2017).

Probation - FeesA defendant whose motion to with-

draw his guilty plea was allowed because of the involvement of chemist Annie Dookhan was not entitled to the return of the probation supervision fees and the victim-witness assessment that the de-fendant paid.

Commonwealth v. Martin (Lawyers Weekly No. 10-183-16) (13 pages) (Hines, J.) (SJC) Motion to withdraw guilty plea heard by Mary Hogan Sullivan, J., and motions for the return of seized property heard by Coven, J., in District Court. Ilse Nehring for the defendant; Susanne M. O’Neil for the commonwealth (Docket No. SJC-12056) (Nov. 25, 2016).

Responsibility - ‘Presumption of sanity’

Where a defendant was convicted of resisting arrest and assaulting police offi-cers, the conviction must be affirmed de-spite the fact that the defendant called a forensic psychologist who described the defendant’s lengthy mental health histo-ry and opined that the defendant was not criminally responsible.

Commonwealth v. Lawson (Lawyers Weekly No. 10-171-16) (23 pages) (Gants, C.J.) (SJC) Case heard by Coyne, J., in Boston Municipal Court. Christopher De-Mayo for the defendant; John P. Zanini for the commonwealth (Docket No. SJC-11996) (Oct. 28, 2016).

‘School zone’ - Passing vehicleWhere a defendant was convicted of

committing a drug offense within 100 feet of a public park, the conviction must be reversed because the ‘school zone’ statute cannot be applied to the defen-dant, who at the time of the offense was stopped at a red light while a passenger in a motor vehicle.

Commonwealth v. Peterson (Lawyers Weekly No. 10-001-17) (13 pages) (Ga-ziano, J.) (SJC) Motion to dismiss heard by Sinnott, J., in Boston Municipal Court. Matthew T. Sears (Amanda Read Casci-one with him) for the commonwealth; J. Scott Lauer, Committee for Public Coun-sel Services, for the defendant (Docket No. SJC-12097) (Jan. 3, 2017).

Sentencing - LandlordWhere a defendant landlord, who was

convicted of assault and battery after pushing a tenant who is Muslim down a flight of stairs, was sentenced to a term of incarceration of two years in a house of correction, six months to serve, with the balance suspended for a period of two years, the defendant’s sentence does not “shock the conscience and offend funda-mental notions of human dignity,” so it should be upheld.

The lower court did not err in impos-ing as a special condition of probation


362016-2017



that the defendant provide a written dis-closure to prospective tenants that she had been convicted of assaulting a tenant and had had several harassment preven-tion orders issued against her.

The defendant’s argument that a sec-ond condition of probation, requiring her to attend an introductory class on Islam, would violate her constitutional rights need not be addressed because it was not raised in the trial court.

Commonwealth v. Lenk (Lawyers Weekly No. 10-152-16) (22 pages) (Lenk, J.) (SJC) Case tried before Yee, J., and a motion for resentencing heard by him. Kimberly M. Peterson for the defendant; Mary F.P. O’Neill for the commonwealth (Docket No. SJC-11957) (Sept. 21, 2016).

Sentencing - Mandatory minimum terms

Where a judge imposed a sentence that departed downward from the min-imum term mandated by state statute, the sentencing decision must be re-versed because the Legislature has not yet enacted into law sentencing guide-lines recommended by the Massachu-setts Sentencing Commission.

Commonwealth v. Laltaprasad (Law-yers Weekly No. 10-163-16) (21 pag-es) (Botsford, J.) (SJC) Case reported by Cordy, J., sitting as single justice. Thomas C. Maxim for the commonwealth; Mat-thew R. Segal (Keith J. Nicholson, Adri-ana Lafaille and Nancy Gertner with him) for the defendant; Benjamin H. Keehn, Paul R. Rudof, Barbara J. Dou-gan, Michael B. Keating, of Foley Hoag, Daniel N. Marx, of Fick & Marx, and Daniel McFadden, of Foley Hoag, sub-mitted a brief for Committee for Pub-lic Counsel Services and others, amici curiae; Emma Quinn-Judge, Monica R. Shah, both of Zalkind Duncan & Ber-nstein, and Daniel K. Gelb, of Gelb & Gelb, submitted a brief for The Consti-tution Project and others, amici curiae (Docket No. SJC-11970) (Oct. 14, 2016).

Statutory rape - Sex offender registration

Where the defendant, a 22-year-old woman, was convicted of raping a 14-year-old boy and two 13-year-old boys, in violation of G.L.c. 265, §23, the convictions should be upheld despite the defendant’s claims that (1) the in-criminating statements she made to po-lice should have been suppressed, (2) the video recording of these statements that was shown at trial should have been further redacted, (3) the prose-cutor’s closing argument was improper and (4) the trial judge’s lack of authority to relieve her from registering as a sex offender under G.L.c. 6, §178E(f), con-stitutes a due process violation, as ap-plied to her.

Commonwealth v. Hammond (Law-yers Weekly No. 10-122-17) (31 pages) (Lowy, J.) (Hines, J., concurring in part and dissenting in part, with whom Lenk and Budd, JJ., join) Motion to suppress evidence heard by Chin, J.; cases tried before Moriarty, J., and a motion for postverdict relief heard by him. Nancy A. Dolberg for the defendant; Stacey L. Gauthier for the commonwealth (Docket No. SJC-12096) (July 21, 2017).

VALOR Act - Pretrial diversion

Where the pretrial diversion statute has been amended by the VALOR Act, a judge has discretion to continue without a finding or to dismiss a charge against a qualifying veteran or service member of operating a motor vehicle while under the influence of alcohol or drugs, second or subsequent offense, notwithstanding the provisions of G.L.c. 90, §24, which generally proscribe such dispositions.

Commonwealth v. Morgan (Lawyers Weekly No. 10-058-17) (29 pages) (Lenk, J.) Motion for pretrial diversion heard by Pearson, J., and questions of law report-ed by her to the Appeals Court. Melissa Weisgold Johnsen for the Commonwealth; Elizabeth Hugetz (Benjamin H. Keehn also present) for the defendant; John C. Mooney, for John C. Mooney and anoth-er, amici curiae, submitted a brief (Docket No. SJC-12114) (April 18, 2017).

Wantonness - Recklessness - Assault and battery

Where a defendant was convicted of wantonly or recklessly permitting anoth-er person to commit an assault and bat-tery that resulted in bodily injury to her infant daughter, the evidence was insuf-ficient to establish that her conduct was wanton or reckless, so the conviction must be reversed.

Commonwealth v. Dragotta (Lawyers Weekly No. 10-048-17) (17 pages) (Budd, J.) Cases heard by Welch, J., in Superior Court. Patrick Levin on appeal for the de-fendant; Marcia H. Slingerland for the commonwealth (Docket No. SJC-12186) (March 21, 2017).

DAMAGESPostjudgment interest - Sovereign immunity

Postjudgment interest could not be added to an award of punitive damag-es, costs and counsel fees against a public employer under G.L.c. 151B, §9.

Brown v. Office of the Commission-er of Probation (Lawyers Weekly No. 10-161-16) (11 pages) (Lenk, J.) (SJC) Mo-tion for postjudgment interest considered by Troy, J., and judgment entered by him. Jonathan J. Margolis and Beth R. Myers, both of Rodgers, Powers & Schwartz, for the plaintiff; Sally A. VanderWeele for the Office of the Commissioner of Proba-tion; Jamie Goodwin, of Sandulli Grace, submitted a brief for Massachusetts Em-ployment Lawyers Association and oth-ers, amici curiae (Docket No. SJC-11987) (Oct. 11, 2016).

DOMESTIC RELATIONS

Alimony - Duration - Overtime - Health insurance

Where (1) a divorce judgment was en-tered in New York in 2008 and (2) more than four years later, the wife sought and obtained an alimony award in Massa-chusetts Probate & Family Court, the du-rational limit must be deemed to have started on the date alimony was award-ed, not the date of the New York di-vorce judgment.

Snow v. Snow (Lawyers Weekly No. 10-025-17) (17 pages) (Gants, C.J.) Case heard by Dacyczyn, J., in Probate & Fam-ily Court. Brigid M. Hennessey and Buffy D. Lord, both of Donovan & O’Connor,

for the husband; Lindsay D. DiSantis and David R. Cianflone, both of Cianflone & Cianflone, for the wife (Docket No. SJC-12102) (Feb. 9, 2017).

Alimony - Durational limitsWhere a judge ordered a divorced de-

fendant’s alimony obligation to cease in 2020, the judge committed no abuse of discretion by declining to award the plaintiff alimony beyond the duration-al limits of the Alimony Reform Act of 2011.

Popp v. Popp (Lawyers Weekly No. 10-094-17) (3 pages) (Rescript) Appealed from a decision by Gorman, J., in Probate & Family Court. Richard M. Novitch and Elaine M. Epstein, both of Todd & Weld, for the wife; Patricia A. DeJuneas, of Sib-bison & DeJuneas, for the husband (Dock-et No. SJC-12228) (May 31, 2017).

Alimony - Phase-in scheduleWhere a plaintiff who was divorced in

2002 filed a complaint in 2013 for modi-fication of his alimony obligation, an or-der dismissing that complaint must be affirmed on the ground that it was filed prematurely under the Alimony Reform Act, which became effective on March 1, 2012.

George v. George (Lawyers Weekly No. 10-181-16) (12 pages) (Lowy, J.) (SJC) Complaint for modification heard by Stah-lin, J., in Probate & Family Court. Brian J. Kelly for Clifford E. George; Matthew P. Barach (Alessandra Petrucelli with him) for Jacquelyn A. George (Docket No. SJC-12059) (Nov. 23, 2016).

Alimony Reform Act - Retroactivity

The application of the Alimony Re-form Act’s durational limits to alimo-ny agreements that predate the statute is not unconstitutionally retroactive, as the statute does not attach “new legal con-sequences to events completed before its enactment.”

Van Arsdale v. Van Arsdale (Lawyers Weekly No. 10-093-17) (10 pages) (Lowy, J.) Complaint for modification heard by Sahagian, J., in Probate & Family Court. David E. Cherny and Erin M. Shapiro, both of Atwood & Cherny, for the wife; Paul M. Kane and Allison R. McNulty, both of McGrath & Kane, for the husband (Docket No. SJC-12223) (May 31, 2017).

EMPLOYMENT

Medical marijuana - Disability - Discrimination

Where a plaintiff who was prescribed medical marijuana for her Crohn’s dis-ease lost out on a job because of her fail-ure to pass the defendant employer’s drug test, a Superior Court judgment dismiss-ing the plaintiff ’s handicap discrimina-tion claim must be vacated and the case remanded for a determination of wheth-er the employer can meet its burden to show that the plaintiff ’s use of medical marijuana is not a reasonable accommo-dation because it would impose an un-due hardship on the employer’s business.

Barbuto v. Advantage Sales and Mar-keting, LLC, et al. (Lawyers Weekly No. 10-120-17) (27 pages) (Gants, C.J.) Mo-tion to dismiss heard by Tochka, J., in Su-perior Court. Matthew J. Fogelman, Fo-gelman & Fogelman, and Adam D. Fine, of Vicente Sederberg LLC, for the plaintiff; Michael K. Clarkson, of Ogletree, Deak-ins, Nash, Smoak & Stewart, and M. Tae

Phillips for the defendants; the following submitted briefs for amici curiae: Eliza-beth Milito, of the District of Columbia, and Gregory D. Cote, of McCarter & En-glish, for NFIB Small Business Legal Cen-ter; Reid M. Wakefield and Constance M. McGrane for Massachusetts Commission Against Discrimination; David A. Russ-col, of Zalkind Duncan & Bernstein, and Chetan Tiwari for Massachusetts Em-ployment Lawyers Association and others (Docket No. SJC-12226) (July 17, 2017).

Misclassification - PreemptionWhere defendant companies were

awarded summary judgment on a claim by plaintiff delivery drivers that they were misclassified as independent con-tractors, the judgment must be vacat-ed because, although ‘prong two’ of the Massachusetts independent contractor statute is preempted by the Federal Avi-ation Administration Authorization Act, the remainder of the statute is severable and applicable to the plaintiffs.

Chambers, et al. v. RDI Logistics, Inc., et al. (Lawyers Weekly No. 10-187-16) (32 pages) (Lenk, J.) (SJC) Emergency motion for a protective order considered by Moses, J.; motion for reconsideration considered by him; and case heard by him on motions for summary judgment. Harold L. Lichten and Peter M. Delano, both of Lichten & Liss-Riordan, for the plaintiffs; Michael T. Grant and Andrew J. Fay, both of LeClair-Ryan, for the defendants (Docket No. SJC-12080) (Dec. 16, 2016).

Perceived handicap - Essential duties

Where a plaintiff police officer who was limited to desk duty after suffering head injuries during mixed martial arts bouts brought a handicap discrimina-tion claim under G.L.c. 151B, an award of summary judgment for the defendant city must be vacated because there are facts in dispute as to whether the officer is a qualified handicapped person capa-ble of performing the full duties of a pa-trol officer without posing an unaccept-ably significant risk of serious injury to himself or others.

Gannon v. City of Boston (Lawyers Weekly No. 10-059-17) (26 pages) (Gants, C.J.) Case heard by Wilkins, J., on a mo-tion for summary judgment, and a motion for reconsideration considered by him. Harold L. Lichten and Adelaide H. Paga-no, both of Lichten & Liss-Riordan, for the plaintiff; Nicole I. Taub for the defendant; Simone R. Liebman & Constance M. Mc-Grane, for the Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief; Robert S. Mantell, of Powers, Jodoin, Margolis & Mantell, sub-mitted a brief for Massachusetts Employ-ment Lawyers Association, amicus curiae (Docket No. SJC-12136) (April 18, 2017).

Wage Act - Pre-judgment interest

Where a settlement agreement has been reached in a class action under the Massachusetts Wage Act, statutory pre-judgment interest must added to the amount of lost wages and other benefits awarded as damages pursuant to G.L.c. 149, §150, but must not be added to the additional amount of the award arising from the trebling of those damages.

George, et al. v. National Water Main Cleaning Company, et al. (Lawyers Week-ly No. 10-110-17) (18 pages) (Gants, C.J.) Question of law certified by the U.S. Dis-trict Court for the District of Massachu-setts; Adam J. Shafran and Jonathon D.




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Friedmann, both of Rudolph Friedmann, for the plaintiffs; Richard L. Alfred, Dawn Reddy Solowey and Anne S. Bider, all of Seyfarth Shaw, for the defendants; John Pagliaro and Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief; Annette Gon-thier Kiely, Kathy Jo Cook, of KJC Law Firm, Thomas R. Murphy and Timothy J. Wilton, for Massachusetts Academy of Trial Attorneys, amicus curiae, submit-ted a brief (Docket No. SJC-12191) (June 26, 2017).

EVIDENCEExcited utterance - 911 call

Where a motion judge ordered that the recording of a 911 call made by the defendant’s 6-year-old son, in which the son said “my dad just choked my mom,” be excluded on the ground that the boy’s voice appeared “calm,” the order must be vacated because the motion judge failed to consider other relevant factors in de-termining whether the statement quali-fied as an excited utterance.

Commonwealth v. Baldwin (Lawyers Weekly No. 10-063-17) (3 pages) (Re-script) Suzanne L. Renaud for the defen-dant; Ronald E. DeRosa for the common-wealth (Docket No. SJC-12188) (April 21, 2017).

Expert - Qualified examiner - SDP

Where a jury found a petitioner no longer sexually dangerous in a proceed-ing brought pursuant to G.L.c. 123A, §9, the verdict must be upheld, as the trial judge committed no error by instruct-ing the jurors that in order to find the petitioner sexually dangerous, they must credit the expert opinion testimony of the qualified examiner.

Green, petitioner (Lawyers Weekly No. 10-159-16) (13 pages) (Hines, J.) (SJC) Case heard by Pierce, J., and a motion for a new trial was heard by him. Mary P. Murray for the commonwealth; Michael A. Nam-Krane for the petitioner; Joseph M. Ken-neally, for Committee for Public Counsel Services, amicus curiae, submitted a brief (Docket No. SJC-11999) (Oct. 4, 2016).

Eyewitness identification - Protocol

A failure by detectives to follow the protocol outlined in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009), standing alone, did not warrant suppression of a witness’s identification of a criminal defendant.

Commonwealth v. Thomas (Lawyers Weekly No. 10-028-17) (30 pages) (Gants, C.J.) Motions to suppress evidence were considered by McDonough, J., in Superi-or Court. Heidi M. Ohrt-Gaskill for the commonwealth; Paul R. Rudof for the de-fendant; the following submitted briefs for amici curiae: David Zhang, of China, Kar-en A. Newirth, of New York, Joshua Ash-er, of Illinois, and Radha Natarajan and Kirsten Mayer for The Innocence Project, Inc. and another; Anthony D. Mirenda, Mi-chael J. Licker, Melissa A. Stewart, all of Fo-ley Hoag, and Chauncey Wood, of Wood & Nathanson, for Massachusetts Association of Criminal Defense Lawyers (Docket No. SJC-12055) (Feb. 13, 2017).

Identity - Idiosyncratic conduct

Where a jury found a defendant guilty of murdering and dismembering

three victims, the trial judge did not err in admitting into evidence photographs from the defendant’s home showing an-atomical drawings from a medical text-book with images of human dissections and amputation of body parts, some of which were presented as a collage hung on the wall.

Commonwealth v. Veiovis (Law-yers Weekly No. 10-121-17) (47 pages) (Gants, C.J.) (Lowy, J., with whom Lenk, J., joins, dissenting) Cases tried before Kinder, J., in Superior Court. Dana Alan Curhan (Christie L. Nader also present) for the defendant; David F. Capeless for the commonwealth (Docket No. SJC-12017) (July 19, 2017).

Murder - Closing argumentWhere a defendant alleges that the

prosecutor exceeded the bounds of per-missible closing argument by engaging in a personal attack on the defendant’s expert witness, referencing facts not in evidence and appealing to juror sympa-thy, some of the prosecutor’s statements were indeed inappropriate, but they do not warrant reversal of his conviction.

The judge also did not abuse her dis-cretion in allowing the prosecutor to in-troduce evidence of uncharged miscon-duct by the defendant to demonstrate his state of mind.

Commonwealth v. Rutherford (Law-yers Weekly No. 10-045-17) (20 pag-es) (Gaziano, J.) Cases tried before Ken-ton-Walker, J., in Superior Court. Jen-nifer H. O’Brien for the defendant; El-lyn H. Lazar-Moore for the common-wealth (Docket No. SJC-12094) (March 16, 2017).

OUI - Blood alcohol test - Confrontation

Where a District Court judge allowed a drunk driving defendant’s motion in li-mine to exclude evidence of a post-ac-cident blood alcohol test, a single jus-tice did not err in reversing that decision pursuant to G.L.c. 233, §79.

Commonwealth v. Ackerman (Law-yers Weekly No. 10-054-17) (3 pages) (Re-script) Commonwealth’s petition pursuant to G.L.c. 211, §3, considered by Cordy, J., sitting as single justice. Andrea C. Har-rington for the defendant; Megan L. Rose (Joseph A. Pieropan also present) for the commonwealth (Docket No. SJC-11983) (April 5, 2017).

Prior bad acts - EntrapmentWhere a defendant who raised the af-

firmative defense of entrapment was con-victed by a jury of distribution of heroin, the conviction must be reversed because the trial judge erroneously permitted the commonwealth to introduce evidence of three prior convictions from 1991, 1993 and 1994.

Commonwealth v. Denton (Lawyers Weekly No. 10-099-17) (9 pages) Case tried before James F. Lang, J., in Superior Court. James E. Methe for the defendant; Quentin R. Weld (Elin H. Graydon also present) for the commonwealth (Docket No. SJC-12272) (June 1, 2017).

Spousal disqualificationWhere a Superior Court jury convict-

ed a defendant of raping his 19-year-old stepdaughter, the verdict must be set aside because of the trial judge’s er-roneous admission of highly prejudicial evidence regarding the defendant’s pur-ported confession to his wife, the vic-tim’s mother.

Commonwealth v. Garcia (Lawyers Weekly No. 10-062-17) (12 pages) (Lowy, J.) Case tried before Welch, J., in Superior Court. Catherine Langevin Semel for the commonwealth; Michelle Menken for the defendant (Docket No. SJC-12125) (April 21, 2017).

FREEDOM OF INFORMATION

Public records - Safety - Privacy

Where a Superior Court judge found that information contained on animal health certificates in the custody of the Department of Agricultural Resources was not subject to disclosure in response to a public records request, a remand is necessary for consideration of whether the exemptions contained in G.L.c. 4, §7, Twenty-sixth (n) and (c), are applicable.

People for the Ethical Treatment of An-imals, Inc. v. Department of Agricultural Resources, et al. (Lawyers Weekly No. 10-105-17) (27 pages) (Lenk, J.) Case heard by Muse, J., in Superior Court. David Mil-ton, of the Law Offices of Howard Fried-man, for the plaintiff; Amy Spector for the defendants; Laura Rótolo and Jessie Ross-man, for American Civil Liberties Union of Massachusetts, amicus curiae, submit-ted a brief; Jessica White, for Prisoners’ Legal Services of Massachusetts, amicus curiae, submitted a brief (Docket No. SJC-12207) (June 14, 2017).

IMMIGRATION

Detainer - State cooperationNothing in the statutes or common

law of Massachusetts authorizes court officers to arrest and hold an individual solely on the basis of a federal civil immi-gration detainer beyond the time that the individual would otherwise be entitled to be released from state custody.

Lunn v. Commonwealth, et al. (Law-yers Weekly No. 10-123-17) (34 pages) Case reported by Lenk, J., sitting as sin-gle justice. Emma C. Winger (Mark Flem-ing, of New York, and Alyssa Hackett also present) for the petitioner; Joshua S. Press, of the District of Columbia, for the Unit-ed States; Jessica V. Barnett (Allen H. Forbes and Sara A. Colb also present) for the commonwealth and another; the fol-lowing submitted briefs for amici curiae: Sabrineh Ardalan, of New York, Philip L. Torrey, Mark C. Fleming and Laila Ameri for Immigration and Refugee Clinical Pro-gram at Harvard Law School; Christopher N. Lasch, of Colorado, for David C. Balu-arte and others; Karen Pita Loor for Crim-inal Defense Clinic at Boston University School of Law; Omar C. Jadwat, of New York, Spencer E. Amdur, of Pennsylvania, Cody H. Wofsy, of California, Matthew R. Segal, Jessie J. Rossman, Laura Róto-lo, Carlton E. Williams, Kirsten V. Mayer, Kim B. Nemirow and Laura Murray-Tjan for Bristol County Bar Advocates, Inc. and others (Docket No. SJC-12276) (July 24, 2017).

INSURANCE

Counterclaim - Duty to defendAn insurance company with a con-

tractual duty to defend a policyholder was not required to prosecute an affir-mative counterclaim on the policyhold-er’s behalf.

Mount Vernon Fire Insurance Company

v. Visionaid, Inc. (Lawyers Weekly No. 10-108-17) (30 pages) (Gaziano, J.) (Gants, C.J., with whom Lenk, J., joins, dissenting) Kenneth R. Berman (Heather B. Repicky also present) for the defendant; James J. Duane III (Scarlett M. Rajbanshi also present) for the plaintiff; the following sub-mitted briefs for amici curiae: Marshall Gilinsky for United Policyholders; Laura Foggan, of the District of Columbia, and Rosanna Sattler for American Insurance Association and others; Michael F. Ayl-ward for American International Group, Inc., and another (Docket No. SJC-12142) (June 22, 2017).

G.L.c. 93A - Multiple damages - Post-judgment interest

Post-judgment interest should not have been included in the “amount of the judgment” that was trebled because of an insurer’s willful and knowing violation of G.L.c. 93A.

Anderson, et al. v. National Union Fire Insurance Company of Pittsburgh PA, et al. (Lawyers Weekly No. 10-022-17) (18 pages) (Gaziano, J.) Case heard by Da-vis, J., and motions to alter or amend the judgment also heard by him. Kathleen M. Sullivan for National Union Fire Insur-ance Company of Pittsburgh PA; Leonard H. Kesten and Richard E. Brody, both of Brody, Hardoon, Perkins & Kesten, for the plaintiffs (Docket No. SJC-12108) (Feb. 2, 2017).

JUDGESFamilial relationship - ADA

Where a defendant who waived his right to a jury trial was convicted of rape and indecent assault and battery on a person age 14 or older, the convictions should be affirmed, as (1) trial judge’s failure to inform the defendant of his fa-milial relationship with a member of the prosecuting attorney’s office during the jury-waiver colloquy was not error and (2) although defense counsel’s failure to inform the defendant of the trial judge’s familial relationship with a member of the prosecuting attorney’s office consti-tuted behavior “falling measurably below that which might be expected from an or-dinary fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), coun-sel’s failure to do so was not prejudicial.

Commonwealth v. Duart (Lawyers Weekly No. 10-132-17) (20 pages) (Hines, J.) Motion for a new trial heard by Hely, J., in Superior Court. Afton M. Templin on appeal for the defendant; Elizabeth A. Sweeney for the commonwealth (Docket No. SJC-12302) (Aug. 17, 2017).

JURY AND JURORSExcluded evidence

Where jurors during their delibera-tions were exposed to the contents of a binder belonging to the trial judge that contained copies of various motions, photographs and transcripts, including materials that had been excluded as evi-dence at trial, the trial judge properly as-sessed the extent of the jurors’ exposure to the binder through voir dire and thus did not err in denying the defendant’s motion for a mistrial.

Commonwealth v. Blanchard (Law-yers Weekly No. 10-036-17) (7 pages) (Rescript) Motions heard by Sanders, J., in Superior Court. William S. Smith


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for the defendant; Pamela Alford (Greg-ory P. Connor also present) for the com-monwealth (Docket No. SJC-12041) (Feb. 27, 2017).

Peremptory challenge - RaceWhere a defendant was convicted by

a Superior Court jury of murder in the first degree on theories of deliberate pre-meditation and extreme atrocity or cru-elty, the evidence at trial was sufficient to sustain the defendant’s convictions, but the judge’s failure to require an explana-tion of the prosecutor’s peremptory chal-lenge of a prospective juror who is Afri-can-American requires the convictions be vacated.

Commonwealth v. Jones (Lawyers Weekly No. 10-106-17) (40 pages) (Lenk, J.) Cases tried before Giles, J., and a mo-tion to set aside the verdict heard by her. James L. Sultan and Kerry A. Haberlin, both of Rankin & Sultan, for the defen-dant; Matthew T. Sears (Julie Sunkle Hig-gins also present) for the commonwealth (Docket No. SJC-12027) (June 20, 2017).

JUVENILE

GPS monitoring - Sex offender registration

Where juvenile who was adjudicat-ed both a youthful offender and a de-linquent juvenile as the result of a sin-gle sexual assault was ordered to register as a sex offender and to submit to glob-al positioning system monitoring, (1) the sex offender registration statute, G.L.c. 6, §178E(f), required the judge to make an individualized determination whether the juvenile must register as a sex offend-er because he was not ‘sentenced to im-mediate confinement’ within the mean-ing of the statute and (2) the GPS mon-itoring statute, G.L.c. 265, §47, as inter-preted by this court in Commonwealth v. Hanson H., 464 Mass. 807 (2013), does not require youthful offenders to submit to GPS monitoring.

Commonwealth v. Samuel S., a juve-nile (Lawyers Weekly No. 10-033-17) (25 pages) (Botsford, J.) Motions for re-lief from conditions of probation heard by Phillips, J., and a motion for reconsider-ation considered by her. Laura Chrismer Edmonds for the juvenile; Cynthia Cullen Payne for the commonwealth; Ryan M. Schiff & Caroline Alpert submitted a brief for Youth Advocacy Division of the Com-mittee for Public Counsel Services, amic-us curiae (Docket No. SJC-12135) (Feb. 17, 2017).

Jurisdiction - MurderWhere (1) a juvenile was indicted in

Superior Court for first-degree murder and for related offenses and (2) the Supe-rior Court judge dismissed the non-mur-der indictments, the dismissal order must be reversed under G.L.c. 119, §74.

Commonwealth v. Soto (Lawyers Weekly No. 10-026-17) (11 pages) (Hines, J.) Mo-tion to dismiss heard by Lauriat, J., in Su-perior Court. Helle Sachse (Mark A. Hal-lal and Montez D. Haywood also present) for the commonwealth; Benjamin L. Falk-ner, of Krasnoo/Klehm, for the defendant (Docket No. SJC-12074) (Feb. 9, 2017).

Murder - Appeal - GatekeeperWhere a juvenile’s first-degree mur-

der conviction was affirmed on appeal,

his subsequent challenge to the denial of his motion for a new trial is subject to the gatekeeper provision (G.L.c. 278, § 33E).

Commonwealth v. James (Lawyers Weekly No. 10-125-17) (7 pages) (Hines) Case reported by Hines, J., sitting as sin-gle justice. Rosemary Curran Scapicchio (Dennis M. Toomey also present) for the defendant; Mary E. Lee for the common-wealth (Docket No. SJC-12196) (Aug. 1, 2017).

ParoleWhen a juvenile is sentenced for a

non-murder offense or offenses and the aggregate time to be served prior to parole eligibility exceeds that appli-cable to a juvenile convicted of murder, the sentence cannot be reconciled with art. 26 of the Massachusetts Declaration of Rights unless, after a hearing on the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478 (2012), the judge makes a finding that the circumstanc-es warrant treating the juvenile more harshly for parole purposes than a juve-nile convicted of murder.

Commonwealth v. Perez (Law-yers Weekly No. 10-142-17) (24 pag-es) (Hines, J.) (Lowy, J., with whom Cy-pher, J., joins, dissenting) Motion for re-sentencing considered by Ford, J., and a motion for reconsideration considered by him. Elizabeth Caddick for the defen-dant; Elizabeth Dunphy Farris (Kath-erine E. McMahon also present) for the commonwealth; Merritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submitted a brief (Docket No. SJC-12251) (Aug. 25, 2017).

LABORAffirmative support - CBA - Duty to bargain

Where two public employee unions claimed that a letter sent to the Legisla-ture by the Secretary of the Executive Of-fice of Administration and Finance con-stituted a labor law violation, that claim must be rejected because the secretary’s inclusion of information about the an-ticipated fiscal effects of a legislative de-cision to fund the collective bargain-ing agreements in his request for an ap-propriation did not violate G.L.c. 150E, §7(b), or constitute a prohibited practice.

Commissioner of Administration and Finance v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 10-076-17) (16 pages) (Lowy, J.) Ap-pealed from a decision of the Division of Labor Relations. Robert L. Quinan Jr. for the plaintiff; T. Jane Gabriel for the defen-dant; Alan H. Shapiro and John M. Beck-er, both of Sandulli Grace, for the inter-vener; Mathew D. Jones, for Massachu-setts Teachers Association, amicus curiae, submitted a brief (Docket No. SJC-12208) (May 12, 2017).

Privilege - Union representation

A defendant employer, charged by a plaintiff union member with discrim-ination and retaliation, should be al-lowed to obtain during the discovery process communications between the plaintiff and her union representatives and between union representatives act-ing in their official capacity.

Chadwick v. Duxbury Public School, et al. (Lawyers Weekly No. 10-158-16) (20 pages) (Hines, J.) (SJC) Motion to com-pel discovery heard by Yessayan, J., in

Superior Court. Jonathan J. Margolis and Beth R. Myers, both of Rodgers, Powers & Schwartz, for the plaintiff; John J. Clo-herty III, of Pierce, Davis & Perritano, for the defendants; the following submit-ted briefs for amici curiae: Ava R. Barbo-ur, of Michigan, Matthew D. Jones, Ira C. Fader, James A.W. Shaw, Jasper Groner, both of Segal Roitman, Haidee Morris, Matthew E. Dwyer, of Dwyer Duddy and Esposito, Eric P. Klein and Kather-ine D. Shea, of Pyle Rome Ehrenberg, for Massachusetts Teachers Association and others; Paul T. Hynes & Michael R. Keefe for Professional Fire Fighters of Massa-chusetts; Stephen J. Finnegan, of Finneg-an & Bearse, and Christopher J. Petrini for Massachusetts Association of School Committees, Inc., and another (Docket No. SJC-12054) (Oct. 4, 2016).

LANDLORD AND TENANT

Eviction - Mandamus - Final judgment

Where two petitioners moved for en-try of final judgment in a suit over an eviction, their appeal from a denial of petitions filed pursuant to G.L.c. 211, §3, and G.L.c. 249, §4, must be denied for lack of any showing that the error they allege could not be remedied through the normal appellate process.

Bishay, et al. v. Clerk of the Superior Court in Norfolk County (Lawyers Week-ly No. 10-018-17) (3 pages) Appealed from a decision by Botsford, J., sitting as single justice. Bahig F. Bishay, pro se; Robert E. Kelley for National Investigations, Inc., and others (Docket No. SJC-12153) (Jan. 23, 2017).

LICENSES AND PERMITS

Gaming Commission - CasinoWhere a lawsuit was filed challeng-

ing the Massachusetts Gaming Com-mission’s award of a gaming license to a limited liability company for a casino in Everett, an order dismissing all but one count of the complaint must be reversed in part, as a plaintiff group of citizens plausibly stated a claim for relief under the open meeting law.

City of Revere, et al. v. Massachusetts Gaming Commission (Lawyers Weekly No. 10-042-17) (39 pages) (Botsford, J.) Appealed from a decision by Sanders, J., in Superior Court. Kenneth S. Leonetti, Christopher E. Hart and Michael Hoven, all of Foley Hoag, for the intervener; Pa-tricia L. Davidson, of Mirick, O’Connell, DeMallie & Lougee, for the city of Revere; David S. Mackey, Mina S. Makarious and Melissa C. Allison, all of Anderson & Kreiger, for the defendant (Docket Nos. SJC-12111 and 12177) (March 10, 2017).

Medicine - SuspensionWhere a physician filed a petition for

relief in the nature of certiorari after the Board of Registration in Medicine de-nied his motion to stay a suspension of his license to practice, a single justice did not err in denying the petition based on the physician’s failure to fulfill the condi-tions of reinstatement he agreed to.

Langan v. Board of Registration in Medicine (Lawyers Weekly No. 10-103-17) (5 pages) (Rescript) Petition heard by Hines, J., sitting as single justice. Mi-chael L. Langan, pro se; Bryan F. Bertram

for the Board of Registration of Medicine (Docket No. SJC-12242) (June 13, 2017).

MORTGAGESForeclosure - Notice

Where a plaintiff seeks a declaration that the defendant bank’s foreclosure of the mortgage on his home was inval-id and seeks to quiet title to the proper-ty, a Superior Court judge properly al-lowed the bank’s motion to dismiss the complaint because the bank’s failure to comply with G.L.c. 244, §15A, by failing to send the postforeclosure notices re-quired by the statute, did not render the foreclosure void.

Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Week-ly No. 10-020-17) (5 pages) (Rescript) Motions heard by Henry, J., in Superior Court. Adam T. Sherwin for the plaintiff; Marissa I. Delinks, of Hinshaw & Culb-ertson, for Deutsche Bank Trust Company Americas; Francis J. Nolan, John Pagliaro & Martin J. Newhouse, for New England Legal Foundation and others, amici cur-iae, submitted a brief (Docket No. SJC-12075) (Jan. 30, 2017).

Notice - Paragraph 22The holding in Pinti v. Emigrant Mtge.

Co., 472 Mass. 226, 227, 232 (2015) — that a foreclosure by statutory power of sale is invalid unless the notice of de-fault strictly complies with paragraph 22 of the standard mortgage — should be applied in any case in which the is-sue was timely and fairly asserted in the trial court or on appeal before July 17, 2015.

Federal National Mortgage Associa-tion v. Marroquin, et al. (Lawyers Week-ly No. 10-074-17) (16 pages) (Gants, C.J.) Case heard by David D. Kerman, J., on motions for summary judgment. Cody J. Cocanig for the plaintiff; Dayne Lee (Eloise P. Lawrence also present) for Elvitria M. Marroquin; Joshua T. Gutier-rez, Daniel D. Bahls and Andrew S. Web-man, for Lewis R. Fleischner and anoth-er, amici curiae, submitted a brief (Dock-et No. SJC-12139) (May 11, 2017).

MOTOR VEHICLESDouble jeopardy - OUI

Where the commonwealth charged a defendant under G.L.c. 90, §24, under both the “per se” and “impaired ability” theories, a jury verdict for the defendant under the “impaired ability” theory did not preclude the commonwealth from retrying the defendant under the “per se” theory.

Commonwealth v. Hebb (Lawyers Weekly No. 10-116-17) (9 pages) (Hines, J.) Case reported by Spina, J., sitting as single justice. Christopher DeMayo for the defendant; Donna-Marie Haran for the commonwealth; Timothy St. Lawrence, pro se, amicus curiae, submitted a brief (Docket No. SJC-12158) (June 30, 2017).

Leaving scene of accident - Driveway

Where a judge found a defendant guilty of knowingly causing damage to another automobile in a private drive-way and leaving without identifying himself to the owner under G.L.c. 90, §24(2)(a), the conviction must be af-firmed because the prohibition set forth in §24(2)(a) against leaving the scene after causing property damage without

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providing identification does not in-clude as an element of the crime that the accident causing the damage oc-curred on a public way.

“[T]he plain language of the portion of G.L.c. 90, §24(2)(a), under which the defendant was convicted does not con-tain a public way element. The statute is unambiguous; the rule of lenity does not apply.”

Commonwealth v. LeBlanc (Law-yers Weekly No. 10-170-16) (10 pages) (Budd, J.) (Gants, C.J., with whom Lenk, J., joins, concurring) (SJC) Case heard by David S. Ross, J., in District Court. Leslie H. Powers for the defendant; Thomas H. Townsend for the commonwealth (Dock-et No. SJC-12066) (Oct. 28, 2016).

OUI - DetentionThe commonwealth could not seek

pretrial detention without bail of a de-fendant who (1) was twice convicted of operating a motor vehicle while un-der the influence of alcohol and (2) has been charged with OUI, third offense, as G.L.c. 276, §58A, requires three OUI convictions before a defendant can be so detained.

Commonwealth v. Dayton (Law-yers Weekly No. 10-100-17) (11 pag-es) (Hines, J.) A motion for pretrial de-tention was heard by Agostini, J., and a question of law was reported by him. Ryan D. Smith for the defendant; Joseph G.A. Coliflores for the commonwealth (Docket No. SJC-12213) (June 1, 2017).

MUNICIPAL

Needle access programWhere a plaintiff was ordered by

the defendant town to cease and desist from distributing hypodermic needles, the town’s order must be vacated be-cause G.L.c. 94C, §27, and G.L.c. 111, §215, do not prohibit the plaintiff from engaging in free distribution of hypo-dermic needles.

AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, et al. (Law-yers Weekly No. 10-104-17) (18 pages) (Lenk, J.) Motion for a preliminary in-junction heard by Veary, J., and the case was reported by Robert C. Rufo, J., in Su-perior Court. Bennett H. Klein (Andrew Musgrave also present) for the plaintiff; Charles S. McLaughlin Jr. (Ruth J. Weil also present) for the defendants; Andrew H. DeVoogd, of Mintz, Levin, Cohn, Fer-ris, Glovsky & Popeo, Kate F. Stewart and Tiffany M. Knapp submitted a brief for Massachusetts Infectious Diseases Society and others, amici curiae (Docket No. SJC-12224) (June 14, 2017).

Suspension - Workers’ compensation

Where the defendant city terminat-ed the workers’ compensation benefits of a plaintiff employee who had been indicted on charges relating to misuse of controlled substances, the termi-nation of benefits was unlawful under G.L.c. 268A.

Benoit v. City of Boston (and a con-solidated case) (Lawyers Weekly No. 10-080-17) (17 pages) (Lenk, J.) Motions to dismiss heard by Giles, J., and Wilson, J., in Superior Court. John M. Becker, of Sandulli Grace, for the plaintiff; E. David Susich (Thomas A. Pagliarulo also pres-ent) for the defendant (Docket No. SJC-12204) (May 16, 2017).

NEGLIGENCEContinuing treatment - Medical malpractice

The statute of limitations for a medi-cal malpractice claim does not begin to run while the plaintiff and the defendant physician continue to have a doctor-pa-tient relationship and the plaintiff con-tinues to receive treatment from the phy-sician for the same or a related condition.

Parr, et al. v. Rosenthal (Lawyers Week-ly No. 10-139-16) (48 pages) (Gants, C.J.) (Cordy, J., dissenting in part) (SJC) Case tried before Murtaugh, J., and a motion for a new trial heard by him. Myles W. McDonough, of Sloane & Walsh (James S. Hamrock Jr., of Hamrock & Tocci, with him) for the defendant; David J. Gallagh-er, of Regnante, Sterio & Osborne, for the plaintiffs; Annette Gonthier Kiely, Adam R. Satin, of Lubin & Meyer, and Thomas R. Murphy submitted a brief for Massa-chusetts Academy of Trial Attorneys, am-icus curiae; John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief (Docket No. SJC-12014) (Sept. 2, 2016).

PARENT AND CHILDGuardianship - Removal - Appointed counsel

Where (1) the mother of a minor child petitioned for the removal of the child’s maternal grandmother as guardian of the child and (2) the guardian moved for the appointment of counsel, a Probate & Family Court judge should be instructed to consider whether appointing counsel would materially assist in determining the best interests of the child.

Guardianship of K.N. (Lawyers Weekly No. 10-057-17) (10 pages) (Lowy, J.) Mo-tion by the child for appointment of coun-sel for the guardian heard by Dunn, J., in Probate & Family Court. Claudia Leis Bolgen, of Bolgen & Bolgen, for the child; Deborah W. Kirchwey for the mother; Ste-phen H. Merlin, for the guardian, was present but did not argue; Maura Healey and Abigail B. Taylor for the Attorney General, amicus curiae, submitted a brief (Docket No. SJC-12195) (April 13, 2017).

Same-sex couple - Presumed parent

A plaintiff ’s complaint to establish le-gal parentage to the defendant’s two bi-ological children conceived by means of in vitro fertilization should not have been dismissed, as “a person may estab-lish herself as a child’s presumptive par-ent under G.L.c. 209C, §6(a)(4), in the absence of a biological relationship with the child.”

Partanen v. Gallagher (Lawyers Weekly No. 10-157-16) (22 pages) (Lenk, J.) (SJC) Motion to dismiss was heard by Jeffrey A. Abber, J., in Probate & Family Court. Mary Lisa Bonauto (Elizabeth A. Rob-erts, of Roberts & Sauer, Teresa Harkins La Vita, Patience Crozier, & Joyce Kauff-man with her) for the plaintiff; Jennifer M. Lamanna for the defendant; the fol-lowing submitted briefs for amicus cur-iae: C. Thomas Brown, of Ropes & Gray, for Greater Boston Legal Services and oth-ers; Emily R. Shulman, Brook Hopkins and Adam M Cambier, of WilmerHale, for American Academy of Assisted Repro-ductive Technology Attorneys and others; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer, Assis-tant Attorneys General, for the Attorney

General; Shannon Minter, of California, Marco J. Quina and Emma S. Winer, both of Foley Hoag, for 42 law professors and another (Docket No. SJC-12018) (Oct. 4, 2016).

SIJ status - FindingsWhere a Probate & Family Court judge

declined to make special findings regard-ing two applications for special immi-grant juvenile status, that was error de-spite the judge’s determination that nei-ther child would be entitled on the mer-its to SIJ status.

Guardianship of Yosselin Guadalupe Penate; Department of Revenue v. Lopez, et al. (Lawyers Weekly No. 10-102-17) (19 pages) (Hines, J.) Motions for special find-ings of fact heard by Virginia M. Ward, J., in Probate & Family Court. Valquiria C. Ribeiro, of Lider, Fogarty & Ribeiro, for Marvin H. Penate; Jennifer B. Luz and Joshua M. Daniels, both of Goodwin Procter, for E.G; Elizabeth Badger, of Nut-ter, McClennen & Fish, for Kids in Need of Defense and others, amici curiae; the fol-lowing submitted briefs for amici curiae: Benjamin C. Mizer, William C. Peachey, Erez Reuveni and Joseph A. Darrow, of the District of Columbia, for the Unit-ed States; Mary K. Ryan and Meghan S. Stubblebine, both of Nutter, McClennen & Fish, for American Immigration Law-yers Association, New England Chapter, and others (Docket Nos. SJC-12138 and 12184) (June 9, 2017).

Termination - Unaccompanied refugee minors

Where the Department of Children and Families petitioned for the termina-tion of the parental rights of the mother and father of refugees from Nepal, such a petition is permissible under feder-al regulations.

Adoption of Yadira (and two compan-ion cases) (Lawyers Weekly No. 10-030-17) (10 pages) (Budd, J.) Motion to deny the petitions heard by Ward, J., in Probate & Family Court. Jeanne M. Kaiser for the mother; Brian Pariser for Department of Children and Families; Nena S. Negron for Yadira and others; Michael F. Kilkelly, for the father, was present but did not argue (Docket No. SJC-12113) (Feb. 14, 2017).

PRISONSCounsel fees - Solitary confinement

An award of counsel fees and costs to an inmate under 42 U.S.C. §1988(b) must be upheld, as he was a prevailing party despite the fact that he had been discharged from “special management unit” detention.

LaChance v. Commissioner of Correc-tion, et al. (Lawyers Weekly No. 10-167-16) (30 pages) (Gants, C.J.) (SJC) Mo-tion for counsel fees was heard by Rob-ert A. Cornetta, J., and a motion for re-consideration considered by him. William D. Saltzman for the defendants; James R. Pingeon for the plaintiff (Docket No. SJC-12016) (Oct. 21, 2016).

Parole - DisabilityWhere a Superior Court judge dis-

missed a plaintiff inmate’s certiorari complaint alleging that the denial of his request for parole amounted to disabili-ty discrimination, the judgment must be vacated on procedural grounds.

Crowell v. Massachusetts Parole Board

(Lawyers Weekly No. 10-078-17) (17 pag-es) (Budd, J.) Motion to dismiss heard by Yessayan, J., and a motion for reconsid-eration considered by him. Tabitha Co-hen (John D. Fitzpatrick, of Pingitore & Fitzpatrick, also present) for the plaintiff; Todd M. Blume for the defendant; James R. Pingeon, for American Civil Liberties Union of Massachusetts and others, amici curiae, submitted a brief (Docket No. SJC-12203) (May 15, 2017).

Solitary confinement - Mootness

Where a Superior Court judge dis-missed a putative class action brought by inmates challenging their placement in “special management units” in non-disciplinary administrative segregation, the dismissal order must be reversed be-cause the complaint is not moot despite the fact that the named plaintiffs were no longer confined in SMUs.

Cantell, et al. v. Commissioner of Cor-rection, et al. (Lawyers Weekly No. 10-166-16) (19 pages) (Botsford, J.) (SJC) Motions to dismiss and for class certifica-tion heard by Fahey, J., in Superior Court. Bonita Tenneriello for the plaintiffs; Sher-yl F. Grant for the defendants; the follow-ing submitted briefs for amici curiae: Amy Fettig and Jamelia N. Morgan, of the Dis-trict of Columbia, Phillip Kassell, Mat-thew R. Segal and Jessie J. Rossman for American Civil Liberties Union and oth-ers; Ruth A. Bourquin, Deborah Harris, Margaret E. Monsell and Jamie A. Sabino for Massachusetts Law Reform Institute and others; Adam Sanders, pro se (Docket No. SJC-12015) (Oct. 21, 2016).

PUBLIC UTILITIES

Natural gas - Refund - PipelineWhere a “local distribution compa-

ny” received a refund from a natural gas pipeline operator, a “marketer” of nat-ural gas was not entitled to a share of that refund.

Energy Express, Inc. vs. Department of Public Utilities (Lawyers Weekly No. 10-128-17) (19 pages) (Lowy, J.) Case report-ed by Lowy, J., sitting as single justice. Wil-liam S. Harwood, of Verrill Dana, for the plaintiff; Kirk G. Hanson for the defen-dant; Shaela McNulty Collins and Ken-neth W. Christman, for Bay State Gas Company, amicus curiae, submitted a brief (Docket No. 12262) (Aug. 3, 2017).

REAL PROPERTY

EasementWhere the defendant Martha’s Vine-

yard Land Bank Commission created a hiking trail that included a parcel of land that was not intended to benefit from the plaintiff inn’s 40-foot wide easement, the easement could not, under Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965), be used to benefit the parcel.

Taylor, et al. v. Martha’s Vineyard Land Bank Commission (Lawyers Weekly No. 10-162-16) (16 pages) (Lenk, J.) (SJC) Motion for summary judgment heard by Sands, J., and the remaining issues also heard by him. Diane C. Tillotson, of He-menway & Barnes, for the defendant; Gordon M. Orloff, of Rackemann, Saw-yer & Brewster, for the plaintiffs; Jeffrey T. Angley and Nicholas P. Shapiro, both of Phillips & Angley, submitted a brief for Roma III, Ltd., amicus curiae; Greg D. Peterson, Mark S. Furman and Matthew


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S. Furman, all of Tarlow, Breed, Hart & Rodgers, submitted a brief for Sarah A. Kent, amicus curiae (Docket No. SJC-11963) (Oct. 11, 2016).

RETIREMENTPart-time town employee

Where the Stoneham retirement board granted a part-time school em-ployee’s retroactive request for mem-bership based on a nine-week period in 2001 when she worked over 30 hours per week, but denied the request for the sub-sequent time during which she remained a part-time employee, the Contributory Retirement Appeal Board correctly re-versed the Stoneham retirement board’s decision based on G.L.c. 32, §3.

Retirement Board of Stoneham v. Con-tributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-189-16) (19 pag-es) (Lowy, J.) (SJC) Case heard by Ull-mann, J., on motions for judgment on the pleadings. Douglas S. Martland for Contributory Retirement Appeal Board; Thomas F. Gibson for Christine DeFelice; Michael Sacco for the plaintiff (Docket No. SJC-12098) (Dec. 22, 2016).

Pension - Forfeiture - CrimeWhere a Boston Municipal Court

judge reversed the State Retirement Board’s decision that required the forfei-ture of the pension of the former Speaker of the Massachusetts House of Represen-tatives, the board’s decision must be rein-stated based on a guilty plea to obstruc-tion of justice.

State Board of Retirement v. Finneran, et al. (Lawyers Weekly No. 10-051-17) (19 pages) (Lenk, J.) Case reported by Lenk, J., sitting as single justice. David R. Marks for the plaintiff; Nicholas Poser (Thomas R. Kiley, of Cosgrove, Eisenberg & Kiley, also present) for Thomas M. Finneran (Docket No. SJC-12069) (April 5, 2017).

SEARCH AND SEIZURE

Cellphone - SchoolWhere police investigating an armed

robbery and shooting at a convenience store seized without a warrant the de-fendant’s cellphone from his public high school, where it was being held pursu-ant to school policy, and 68 days later obtained a warrant to search the phone, the evidence obtained during that search was correctly suppressed, as (1) an of-ficer’s opinion that the device was like-ly to contain evidence of the crime did not provide probable cause for the sei-zure and (2) the commonwealth has not met its burden of demonstrating that the delay of 68 days between the seizure and the application for a search warrant was reasonable.

Commonwealth v. White (Lawyers Weekly No. 10-154-16) (24 pages) (Lenk, J.) (SJC) Motion to suppress heard by Brady, J., in Superior Court. Cailin M. Campbell (David J. Fredette with her) for the commonwealth; J.W. Carney Jr. and Danya F. Fullerton, both of Carney & Bassil, for the defendant; the following submitted briefs for amici curiae: David A.F. Lewis, Alexis L. Shapiro and Chris-tine Dieter, both of Goodwin Procter, for Massachusetts Association of Criminal Defense Lawyers; Vivek Krishnamurthy

and Andrew J. Sellars for American Civ-il Liberties Union of Massachusetts; Alan Butler and John Tran, of the District of Columbia, Marc Rotenberg, and Caitri-ona Fitzgerald for Electronic Privacy In-formation Center; Afton M. Templin for Committee for Public Counsel Services (Docket No. SJC-11917) (Sept. 28, 2016).

Child pornography - Home computer

Where a defendant has been convict-ed of possessing child pornography, his motion to suppress was correctly denied, as a search warrant affidavit established probable cause to search his apartment for computer evidence related to the suspected possession or distribution of child pornography.

Commonwealth v. Martinez (Lawyers Weekly No. 10-024-17) (25 pages) (Bots-ford, J.) Motion to suppress heard by Fin-nerty, J., and the case tried before him. Mi-chelle A. Dame, of Goodhines Law Offices, for the defendant; Soshana E. Stern for the commonwealth (Docket No. SJC-12076) (Feb. 7, 2017).

Curtilage - Multifamily homeA loaded sawed-off shotgun found

during a warrantless search of the porch and side yard of a three-family home must be suppressed, as the side yard of the home was a “constitutionally protect-ed area.”

Commonwealth v. Leslie (and five com-panion cases) (Lawyers Weekly No. 10-072-17) (19 pages) (Hines, J.) Motions to suppress evidence heard by Hely, J., in Superior Court. Zachary Hillman for the commonwealth; Patrick Levin for Bob-by Leslie; MarySita Miles for Lacy Price (Docket No. SJC-12176) (May 9, 2017).

Digital cameras - ArrestDigital cameras may be seized incident

to arrest, but the search of data contained in such cameras falls outside the scope of the search incident to arrest exception to the warrant requirement.

Commonwealth v. Mauricio (Lawyers Weekly No. 10-130-17) (20 pages) (Hines, J.) Motion to suppress heard by Finigan, J., and case tried before him. Mathew B. Zin-droski for the defendant; Stephen C. Na-deau Jr. (Shawn Guilderson also present) for the commonwealth (Docket No. SJC-12254) (Aug. 14, 2017).

Inventory search - Rental vehicle - Unauthorized use

Where a judge suppressed a handgun, ammunition and statements made by the driver of a rental vehicle pursuant to an inventory search, (1) the impound-ment of the vehicle was improper be-cause the fact that the defendant’s name was not on the rental agreement did not provide probable cause to believe that he was operating it in violation of the use without authority statute, G.L.c. 90, §24(2)(a); and (2) the inevitable discov-ery doctrine does not apply because it is not certain as a practical matter that the officers would have executed a default warrant and impounded the vehicle on that basis.

Commonwealth v. Campbell (Law-yers Weekly No. 10-156-16) (22 pag-es) (Lenk, J.) (SJC) Motion to suppress heard by Johnson, J., in Boston Munici-pal Court. Helle Sachse for the common-wealth; Rebecca A. Jacobstein (Aditi Goel with her) for the defendant (Docket No. SJC-11980) (Sept. 30, 2016).

Nexus - Drugs - SafeWhere a safe seized from a vehicle was

searched pursuant to a warrant, the safe’s contents should have been suppressed because the affidavit in support of the warrant provided an insufficient nexus between the safe and illegal activity.

Commonwealth v. Mora (Lawyers Weekly No. 10-115-17) (17 pages) (Budd, J.) Motion to suppress heard by Lemire, J, in Superior Court. Richard J. Shea for the defendant; Ellyn H. Lazar-Moore for the commonwealth (Docket No. SJC-12170) (June 29, 2017).

Public school - BackpackEvidence found by a police officer re-

sponding to a report of an unauthorized person on the property of Milton High School should have been suppressed, as (1) the police officer lacked reasonable articulable suspicion that the defendant had committed a crime, (2) the circum-stances of the encounter with the defen-dant did not warrant a reasonable belief that the defendant was armed and dan-gerous to the officer or others and (3) the search was not permissible under any ex-ception to the warrant requirement.

Commonwealth v. Villagran (Law-yers Weekly No. 10-145-17) (35 pages) (Hines, J.) (Lowy, J., with whom Cypher, J., joins, dissenting) Motion to suppress heard by Diane E. Moriarty, J., and cases tried before Robert P. Ziemian, J., in Dis-trict Court. Mathew B. Zindroski for the defendant; Laura A. McLaughlin (Da-vid M. Ringius also present), for the com-monwealth (Docket No. SJC-12239) (Aug. 29, 2017).

Reasonable suspicion - FlightWhere a defendant was convicted of

unlawful possession of a firearm, the conviction must be reversed because the firearm was found during an investiga-tory stop that was not supported by rea-sonable suspicion.

Commonwealth v. Warren (Lawyers Weekly No. 10-151-16) (20 pages) (Hines, J.) (SJC) Motion to suppress heard by Ly-ons, J., and case heard by Forde, J., in Bos-ton Municipal Court. Nelson P. Lovins for the defendant; Michael Glennon for the commonwealth (Docket No. SJC-11956) (Sept. 20, 2016).

Shots fired - Reasonable suspicion

Where a defendant moved to suppress a firearm found in his possession by the Cambridge police, the suppression mo-tion should have been allowed, as a re-port of a shooting nearby did not pro-vide reasonable suspicion for stopping the defendant.

Commonwealth v. Meneus (Lawyers Weekly No. 10-009-17) (19 pages) (Hines, J.) Motion to suppress heard by LaMothe, J., and a motion for reconsideration con-sidered by him; and case was heard by Ho-gan, J., in District Court. David Gerson for the defendant; Randall F. Maas for the commonwealth (Docket No. SJC-12105) (Jan. 11, 2017).

Traffic stop - Chapter 209AWhere a defendant moved to suppress

evidence obtained by a police officer who stopped the defendant’s vehicle in order to serve a civil abuse prevention order, G.L.c. 209A could not authorize the stop in the absence of a constitutional justifi-cation, such as a warrant, reasonable sus-picion of criminal activity or a civil traf-fic violation, or a reasonable belief that

emergency intervention is required.Commonwealth v. Sanborn (Lawyers

Weekly No. 10-114-17) (11 pages) (Lowy, J.) (Gants, C.J., with whom Gaziano and Budd, JJ., join, concurring) Motion to sup-press heard by LoConto, J., and a ques-tion of law reported by him. Ellyn H. La-zar-Moore for the commonwealth; Mer-ritt Schnipper (Robert M. Cassesso Jr. also present) for the defendant (Docket No. SJC-12202) (June 29, 2017).

Traffic stop - DurationOnce a police officer has completed

the investigation of a defendant’s civ-il traffic violations, and the facts do not give rise to reasonable suspicion of crim-inal activity, the officer is required to per-mit the defendant to drive away.

Commonwealth v. Cordero (Lawyers Weekly No. 10-097-17) (19 pages) (Gazia-no, J.) Motion to suppress heard by Agos-tini, J., in Superior Court. Merritt Schnip-per for the defendant; Joseph G.A. Coli-flores for the commonwealth (Docket No. SJC-12210) (June 1, 2017).

Traffic stop - FirearmWhere a Superior Court judge allowed

a defendant’s motion to suppress evi-dence seized during a search of the vehi-cle he had been driving, the order must be reversed because the stop was pred-icated on reasonable suspicion of crim-inal activity, given (1) a citizen’s report that the defendant was carrying a gun in a suspicious manner and (2) the fact that it was 1:30 a.m. in a deserted, residential location close to a high-crime area.

Commonwealth v. Edwards (Lawyers Weekly No. 10-015-17) (17 pages) (Bots-ford, J.) (SJC) Motion to suppress heard by Salinger, J., in Superior Court. Greg L. Johnson, of Yannetti Law Firm, for the de-fendant; Matthew T. Sears for the com-monwealth (Docket No. SJC-11989) (Jan. 20, 2017).

Traffic stop - Radio broadcastA firearm found in a vehicle should

have been suppressed because the com-monwealth satisfied neither the basis of knowledge test nor the veracity test re-garding a radio broadcast informing the police to be on the lookout for the vehicle.

Commonwealth v. Pinto (Lawyers Weekly No. 10-017-17) (10 pages) (Lowy, J.) Motion to suppress heard by Sinnott, J., and cases tried before her. Rebecca Ki-ley for the defendant; Amanda Teo for the commonwealth (Docket No. SJC-12134) (Jan. 23, 2017).

Vehicle - Impoundment - High-crime area

Where a District Court judge or-dered the suppression of evidence found during an inventory search of a vehicle that was impounded by the police, the suppression order must be affirmed be-cause the judge did not err in finding that impoundment was not reasonably neces-sary based on the totality of the evidence.

Commonwealth v. Crowley-Chester (Lawyers Weekly No. 10-041-17) (6 pag-es) (Rescript) Patrick A. Michaud for the defendant; Cynthia Cullen Payne for the commonwealth (Docket No. SJC-12128) (March 9, 2017).

Warrantless entry - Emergency - ‘Smell like drugs’

Where a defendant moved to suppress evidence obtained during two warrant-less police entries into his residence, an order allowing the suppression motion

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should be affirmed, as the emergency aid exception to the warrant requirement did not apply.

Commonwealth v. Tuschall (Lawyers Weekly No. 10-040-17) (16 pages) (Lowy, J.) Motions to suppress heard by Billings, J., in Superior Court. Randall F. Maas for the commonwealth; Jessica LaClair for the defendant (Docket No. SJC-12151) (March 8, 2017).

SOCIAL SERVICESMassHealth - ‘Countable’ assets

Neither the grant in an irrevocable trust of a right of use and occupancy in a primary residence to an applicant nor the retention by an applicant of a life estate in his or her primary residence makes the equity in the home owned by the trust a countable asset for the pur-pose of determining Medicaid eligibility for long-term care benefits.

Daley v. Secretary of the Executive Of-fice of Health and Human Services, et al.; Nadeau v. Director of the Office of Med-icaid (Lawyers Weekly No. 10-092-17) (30 pages) (Gants, C.J.) Cases heard by Curran, J., and Frison, J., on motions for judgment on the pleadings. Lisa Neeley, of Mirick O’Connell, and Patrick Tinsley, of Fletcher Tilton, for Lionel C. Nadeau; Bri-an E. Barreira for Mary E. Daley; Ronald M. Landsman, of Maryland, for Nation-al Academy of Elder Law Attorneys, Inc.; Elizabeth Kaplan and Julie E. Green, As-sistant Attorneys General, for Director of the Office of Medicaid and another; Patri-cia Keane Martin, of Pabian & Russell, for National Academy of Elder Law Attorneys (Massachusetts Chapter), was present but did not argue; Leo J. Cushing and Thom-as J. McIntyre, both of Cushing & Dolan, submitted a brief for Real Estate Bar As-sociation for Massachusetts, Inc., amic-us curiae (Docket Nos. SJC-12200 and 12205) (May 30, 2017).

TAXATIONExcise - Manufacturing corporation

Where the Appellate Tax Board de-termined that a biotechnology compa-ny qualified as a manufacturing corpo-ration for tax years 1998 through 2004, the board’s determination must be up-held based on the genetic modification undertaken by the company.

Genentech, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-012-17) (27 pages) (Botsford, J.) Appeal from a de-cision of the Appellate Tax Board. Cather-ine A. Battin, of Illinois (Richard C. Call, of McDermott Will & Emery, also pres-ent) for the taxpayer; Brett M. Goldberg (Jamie E. Szal also present) for Commis-sioner of Revenue (Docket No. SJC-12083) (Jan. 12, 2017).

Exemption - ReligionWhere the Appellate Tax Board found

that a religious shrine’s welcome cen-ter and maintenance building were not exempt from municipal real estate tax-ation, the board erred, as the dominant purpose of each is religious worship or instruction.

The shrine is not entitled to an abate-ment, however, for (1) a former convent leased to a nonprofit organization for use as a safe house for battered wom-en or (2) a wildlife sanctuary exclusively managed by the Massachusetts Audubon

Society in accordance with a conserva-tion easement.

Shrine of Our Lady of La Salette Inc. v. Board of Assessors of Attleboro (Lawyers Weekly No. 10-049-17) (23 pages) (Gants, C.J.) Appealed from a decision of the Ap-pellate Tax Board. Diane C. Tillotson and Ryan P. McManus, both of Hemenway & Barnes, for the taxpayer; Michael R. Sid-dall and James M. Hannifan, both of Sid-dall & Siddall, for the board of assessors of Attleboro; Heidi A. Nadel, of Cross Nadel, submitted a brief for Massachusetts Coun-cil of Churches and others, amici curiae; Felicia H. Ellsworth, of Wilmer, Cutler, Pickering, Hale and Dorr, Eric L. Hawkins and William R. O’Reilly Jr., for Roman Catholic Archbishop of Boston and others, amici curiae, submitted a brief (Docket No. SJC-12021) (March 22, 2017).

Proportionality - Telephone company property

Where two telephone companies have challenged property tax assessments by the city of Boston, the challenge must be rejected because the assessments did not violate the proportionality requirement of the Massachusetts Constitution.

Verizon New England Inc. v. Board of Assessors of Boston (and a consolidated case) (Lawyers Weekly No. 10-173-16) (20 pages) (Botsford, J.) (SJC) Appealed from a decision of the Appellate Tax Board. William Hazel, of Chu, Ring & Hazel, for the taxpayers; Anthony M. Ambriano, of Sassoon & Cymrot, for board of asses-sors of Boston; Maura Healey and Dan-iel J. Hammond, for Attorney General and another, amici curiae, submitted a brief; Kenneth W. Gurge, for Massachusetts Municipal Association and others, amici curiae, submitted a brief (Docket No. SJC-12034) (Nov. 2, 2016).

Sales tax - ‘Drop shipment’ rule

Where a Massachusetts wholesaler has challenged a decision by the Commis-sioner of Revenue holding the wholesal-er responsible for paying the Massachu-setts sales tax on merchandise ordered from an out-of-state retailer but deliv-ered in the commonwealth, the challenge must be rejected, as the “drop shipment” rule is consistent with state law and is not unconstitutional.

D & H Distributing Company v. Com-missioner of Revenue (Lawyers Week-ly No. 10-124-17) (18 pages) (Cypher, J.) Appealed from a decision of the Appellate Tax Board. Philip S. Olsen and Jonathan A. Block, both of Pierce Atwood, for the taxpayer; Julie E. Green for the Commis-sioner of Revenue (Docket No. SJC-12260) (July 31, 2017).

TORTDefamation - Immunity

Where a plaintiff who was removed from her position as chair of the Sex Of-fender Registry Board filed a complaint alleging defamation by then Governor Deval Patrick, a motion to dismiss the two defamation counts should have been allowed because the plaintiff ’s complaint does not assert facts sufficient to demon-strate that Patrick’s statements to the me-dia were made with actual malice.

Edwards v. Commonwealth, et al. (Lawyers Weekly No. 10-101-17) (24 pag-es) (Gaziano, J.) Motions to dismiss heard by Welch, J., in Superior Court. Michael J. Pineault, of Clements & Pineault, for De-val Patrick; William H. Sheehan III and

Thomas J. Flannagan, both of MacLean, Holloway, Doherty, Ardiff & Morse, for the plaintiff (Docket No. SJC-12175) (June 8, 2017).

SLAPPA special motion to dismiss a claim

could be denied under the anti-SLAPP statute, G.L.c. 231, §59H, based on a showing that the claim was not “brought primarily to chill” the moving party’s le-gitimate exercise of its right to petition.

Blanchard, et al. v. Steward Carney Hospital, Inc., et al. (Lawyers Weekly No. 10-082-17) (35 pages) (Lenk, J.) Special motions to dismiss heard by Giles, J., in Superior Court. Jeffrey A. Dretler and Jo-seph W. Ambash, both of Fisher & Phil-lips, for the defendants; Dahlia C. Ru-davsky and Ellen J. Messing, both of Mess-ing, Rudavsky & Weliky, for the plain-tiffs; Donald J. Siegel and Paige W. McK-issock, both of Segal Roitman, submitted a brief for Massachusetts AFL-CIO, am-icus curiae (Docket No. SJC-12141) (May 23, 2017).

SLAPPWhere a plaintiff filed a special motion

to dismiss abuse of process and G.L.c. 93A counts asserted by a plaintiff ad-joining building owner, a remand must be ordered for a determination of wheth-er or not the abuse of process claim was brought primarily to chill the defendants’ legitimate petitioning activity.

477 Harrison Ave., LLC v. JACE Bos-ton, LLC, et al. (Lawyers Weekly No. 10-083-17) (26 pages) (Lenk, J.) Special mo-tion to dismiss heard by Curran, J., in Su-perior Court. Mark S. Furman and Emily C. Shanahan, both of Tarlow, Breed, Hart & Rodgers, for the defendants; Andrew E. Goloboy and Ronald W. Dunbar Jr. for the plaintiff (Docket No. SJC-12150) (May 23, 2017).

SLAPP - DefamationWhere defendants in a defamation suit

filed a special motion to dismiss under the anti-SLAPP statute, a Superior Court judge erred in denying the motion, as the defendants’ statements qualified as peti-tioning activity despite the fact that they were made not on the defendants’ own behalf but on behalf of workers engaged in cleaning up the British Petroleum oil spill in the Gulf of Mexico.

Cardno ChemRisk, LLC v. Foytlin, et al. (Lawyers Weekly No. 10-032-17) (20 pages) (Lenk, J.) Special motion to dis-miss heard by Leibensperger, J., in Supe-rior Court. John H. Reichman, of New York (James E. Grumbach, of Boston Law Collaborative, also present) for the defen-dants; Megan L. Meier, of Virginia (Sam-uel Perkins, of Brody, Hardoon, Perkins & Kesten, also present) for the plaintiff; Thomas R. Sutcliffe, Jeffrey J. Pyle, both of Prince Lobel Tye, and Sarah R. Wunsch submitted a brief for American Civil Lib-erties Union of Massachusetts, amic-us curiae (Docket No. SJC-12082) (Feb. 14, 2017).

WILLS AND TRUSTSCharitable trust - Res judicata

Where the trustee of the Adams Tem-ple and School Fund has challenged a 1972 single justice decision authoriz-ing a lease of the Adams Academy, the challenge must be rejected based on the doctrine of res judicata.

DeGiacomo v. City of Quincy, et al. (Lawyers Weekly No. 10-179-16) (22

pages) (Gants, C.J.) (SJC) Case heard by Spina, J., on motions for summary judg-ment. James R. DeGiacomo and Susan J. Baronoff, both of Murtha Cullina, for the plaintiff; James S. Timmins for the city of Quincy; Barry S. Pollack (Phillip Rakhunov with him) for Quincy Histori-cal Society (Docket No. SJC-11940) (Nov. 15, 2016).

Decanting - DivorceWhere the beneficiary of a 1983 trust

created by his father requested that the trust assets be decanted into a new spendthrift trust created in 2011, the decanting is allowed under Massachu-setts law.

Ferri, et al. v. Powell-Ferri, et al. (Law-yers Weekly No. 10-047-17) (29 pages) (Gaziano, J.) (Gants, C.J., with whom Lenk and Budd, JJ., join, concurring) Certification of a question of law to the Supreme Judicial Court by the Connecti-cut Supreme Court. Charles L. Solomont and Nathaniel Bruhn, both of Morgan, Lewis & Bockius, for the plaintiffs; Jeffrey J. Mirman for Paul John Ferri, Jr.; Ken-neth Walton, of Lewis Brisbois Bisgaard Smith, and Patricia B. Gary, of Donovan Hatem, for Nancy Powell-Ferri (Docket No. SJC-12070) (March 20, 2017).

WORKERS’ COMPENSATION

‘Bodily injury’ - Correction officer - Inmate violence

Where a plaintiff correction officer sought additional compensation for an accelerated heart rate caused by the stress of breaking up inmate fights, the claim must be denied because no “bodi-ly injury” has been shown.

Modica v. Sheriff of Suffolk Coun-ty, et al. (Lawyers Weekly No. 10-079-17) (7 pages) (Budd, J.) Case heard by Wilkins, J., on motions for summary judgment. Noah A. Winkeller, of Land-man & Akashian, for the plaintiff; Allen H. Forbes for the defendants (Docket No. SJC-12201) (May 15, 2017).

Recoupment - Insolvent insurer

Where the Massachusetts Insurers Insolvency Fund reached an $85,000 lump sum settlement with an injured bank employee after the insurance com-pany that issued a workers’ compensa-tion policy to the bank was placed into liquidation, the fund is entitled to re-coup that sum from the bank as a “high net worth” insured.

Massachusetts Insurers Insolvency Fund v. Berkshire Bank (Lawyers Weekly No. 10-174-16) (15 pages) (Botsford, J.) (SJC) Case heard by Kaplan, J., on mo-tions for summary judgment. Gregory P. Deschenes and Kurt Mullen, both of Nix-on Peabody, for the plaintiff; Owen Gal-lagher (Gordon Prescott with him) for the defendant (Docket No. SJC-12019) (Nov. 3, 2016).

bail appeals g.l.c. 211, §3 - masslawyersweekly.com · baratieri (lawyers weekly no. 10-147-16) (3...

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