September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 185 masslawyersweekly.com 25

2011 - 2012 year in review

IRELAND SPINA CORDY BOTSFORD GANTS DUFFLY LENK

This section contains summaries of all appeal to the Appeals Court from any final decisions rendered by the Supreme Judi- judgment. G.L.c. 211, §3 G.L.c. 211, §3 - cial Court during its recently completed Fennick v. Kittredge, et al. (Lawyers Week- Where a petitioner sought relief pursuant to Double jeopardy (though unofficial) “term” — which ran ly No. 10-143-11) (1 page) (Rescript) (SJC) G.L.c. 211, §3 on the theory that his appellate Where a petitioner claiming a double from Sept. 1, 2011 to Aug. 31, 2012. The full Kevin D. Fennick, pro se; Margaret A. Rubi- counsel did not communicate with him before jeopardy violation sought relief under G.L.c. texts of SJC opinions are available at mass- no, of Rafanelli & Kittredge, for the defendants filing a brief in the direct appeal or before oral 211, §3, an order denying the petition must lawyersweekly.com. (Docket No. SJC-10890) (Sept. 21, 2011). argument in that case, a single justice did not err as a matter of law or abuse his discretion in be affirmed in light of appellate review pre- denying the petition without a hearing. viously obtained by the petitioner. G.L.c. 211, §3 Gullick v. Commonwealth (Lawyers Week- Chen v. Commonwealth (Lawyers Weekly No. 10-058-12) (3 pages) (Rescript) (SJC) Where a single justice denied a petition ly No. 10-082-12) (2 pages) (Rescript) (SJC) ADMINISTRATIVE Ronald Gullick, pro se; Kenneth E. Steinfield Michael A. Contant for the petitioner (Dock- for extraordinary relief, that decision should et No. SJC-11113) (April 19, 2012). be affirmed given the paucity of the record. for the commonwealth (Docket No. SJC- Landfill - Site assignment - Dempsey v. Chief of Police of Somerville 11081) (May 22, 2012). (Lawyers Weekly No. 10-178-11) (1 page) (Re- G.L.c. 211, §3 - Limitations Standing script) (SJC) Petition heard by Spina, J., sit- G.L.c. 211, §3 Where a petitioner indicted for aggra- Where plaintiffs filed an appeal from a de- ting as single justice. John Dempsey, pro se; Ja- Where a single justice denied the peti- vated rape sought relief on the theory that cision of the defendant board of health of son D. Grossfield, for the defendant, was tioner relief pursuant to G.L.c. 211, §3, the the indictment was time-barred, a single Southbridge approving a “minor modification” present but did not argue (Docket No. SJC- decision must be affirmed given that review justice properly denied the petition based to the site assignment for an existing landfill 11029) (Dec. 13, 2011). of the trial court decision could be obtained on the availability of other adequate av- and related processing facility in that town un- on appeal by other available means. enues for relief. der G.L.c. 111, §150A, the appeal must fail on Salomon S.A. v. LaFond (Lawyers Weekly Garden v. Commonwealth (Lawyers Weekly the merits and for lack of standing. G.L.c. 211, §3 No. 10-131-12) (2 pages) (Rescript) (SJC) Pe- No. 10-161-11) (2 pages) (Rescript) (SJC) John Board of Health of Sturbridge, et al. v. Board Where a single justice denied a petition tition heard by Botsford, J., sitting as single M. Goggins for the petitioner; Joseph J. Reilly III of Health of Southbridge, et al. (Lawyers Week- under G.L.c. 211, §3, the petitioner is not en- justice. Christopher P. Flanagan and Kara and Ellyn H. Lazar-Moore for the common- ly No. 10-031-12) (24 pages) (Botsford, J.) titled to extraordinary relief and thus the de- Thorvaldsen, both of Wilson, Elser, wealth (Docket No. SJC-11038) (Nov. 15, 2011). (SJC) Motion to dismiss heard by Kern, J., and cision must be affirmed. Moskowitz, Edelman & Dicker, for the peti- case heard by Kenton-Walker, J., on a motion Fennick v. Kittredge (Lawyers Weekly No. tioner (Docket No. SJC-11198) (July 27, 2012). for judgment on the pleadings; Kirstie L. Pec- 10-185-11) (1 page) (Rescript) (SJC) (Dock- ci for 28 10-citizen groups; Robert C. Kirsch, et No. SJC-11065) (Dec. 30, 2011). G.L.c. 211, §3 - of Wilmer Cutler Pickering Hale and Dorr, for G.L.c. 211, §3 - Application Mortgage payments Southbridge Recycling and Disposal Park, Inc.; for criminal complaint Where a petitioner sought G.L.c. 211, §3 Sarah Turano-Flores, of Nutter McClennen & G.L.c. 211, §3 relief from a decision by an Appeals Court Fish, for board of health of Southbridge, was Where a petitioner sought G.L.c. 211, §3 Where petitioners sought extraordinary re- single justice affirming a Housing Court or- present but did not argue; the following sub- relief after her application for a criminal lief under G.L.c. 211, §3, from the dismissal of der requiring the petitioner to make period- mitted briefs for amici curiae: Christopher D. complaint against her neighbor was denied, their appeal from a final judgment of the Su- ic payments to a mortgage lender during the Ahlers, of Vermont, for Toxics Action Center; a single justice committed no error in deny- perior Court, a single justice correctly denied pendency of his appeal from an adverse judg- Thomas A. Mackie, of Mackie Shea O’Brien, ing the petition for lack of standing. the petition on the ground that the dismissal ment in an underlying summary process ac- for National Solid Wastes Management Asso- Ellis, petitioner (Lawyers Weekly No. 10- of the appeal was not an interlocutory ruling. tion, the petition was properly denied because ciation; Martha Coakley and Sookyoung Shin 163-11) (2 pages) (Rescript) (SJC) Jeremy T. Picard, et al. v. Sartini (Lawyers Weekly No. the petitioner had an alternative remedy. for the commonwealth; Shanna Cleveland, Pe- Robin for the petitioner; John E. Sutherland, 10-041-12) (2 pages) (Rescript) (SJC) Philip J. Saffran v. Novastar Mortgage, Inc. (Lawyers ter Shelley and Margaret Van Deusen for Con- of Brickley, Sears & Sorett, for the respondent Laffey, of Marshall & Laffey, for the petition- Weekly No. 10-111-12) (2 pages) (Rescript) servation Law Foundation and another (Docket No. SJC-11042) (Nov. 15, 2011). ers (Docket No. SJC-11082) (March 19, 2012). (SJC) Elliot S. Saffran, pro se (Docket No. SJC- (Docket No. SJC-10852) (Feb. 22, 2012). 11170) (July 2, 2012). G.L.c. 211, §3 G.L.c. 211, §3 - Where a petitioner sought relief pursuant Civil commitment G.L.c. 211, §3 - APPEALS to G.L.c. 211, §3 after a judge in the District Where (1) a petition for discharge from Court denied her motion to dismiss a com- Bridgewater State Hospital was dismissed Probation - Recusal plaint charging her with leaving the scene of and (2) the petitioner then sought relief Where a petitioner sought relief pursuant G.L.c. 211, §3 property damage and operating a motor ve- pursuant to G.L.c. 211, §3, the petition was to G.L.c. 211, §3, following a probation vio- Where a single justice denied a petition hicle with a suspended license, a single justice properly denied based on the existence of lation proceeding in District Court, a single under G.L.c. 211, §3, in which the petition- committed no error in denying the petition. another remedy. justice of this court committed no error in er sought relief from one or more orders of Forknall v. Commonwealth (Lawyers Faria, petitioner (Lawyers Weekly No. 10- denying the petition. the Superior Court, there was no error, as the Weekly No. 10-060-12) (2 pages) (Rescript) 168-11) (2 pages) (Rescript) (SJC) Appealed Erickson v. Commonwealth (Lawyers Week- petitioner had an adequate remedy in the (SJC) Sinclair T. Banks for the petitioner from a decision by Duffly, J., sitting as single jus- ly No. 10-062-12) (2 pages) (Rescript) (SJC) ordinary appellate process, namely, a direct (Docket No. SJC-11151) (April 19, 2012). tice (Docket No. SJC-11001) (Nov. 21, 2011). Continued on page 26 Massachusetts Lawyers Weekly September 17, 2012 26 masslawyersweekly.com Cite this page 41 MLW 186

No. 10-059-12) (2 pages) (Rescript) (SJC) 110-12) (2 pages) (Rescript) (SJC) Petition plaintiff and third-party defendants in a real APPEALS William H. Wolf, pro se (Docket No. SJC- heard by Gants, J., sitting as single justice. Jen- property dispute against two defendants, a Continued from page 25 11142) (April 19, 2012). nifer H. O’Brien for the petitioner (Docket No. remand must be ordered because the judge SJC-11162) (July 2, 2012). failed to engage in a sufficiently searching Heidi K. Erickson, pro se; Douglas J. Humphrey review of whether the attorney was a nec- for the commonwealth (Docket No. SJC-11017) Immunity - Witnesses essary witness. (April 24, 2012). Where two witnesses sought relief under Smaland Beach Association, Inc. v. Geno- G.L.c. 211, §3, from Superior Court orders ARBITRATION va, et al. v. Bartlett, et al. (Lawyers Weekly No. granting them immunity pursuant to G.L.c. 10-003-12) (27 pages) (Cordy, J.) (SJC) Mo- G.L.c. 211, §3 - SDP 233, §§20C-20E, and ordering them to testi- tions for disqualification of counsel and for Where the petitioner, who was commit- fy in the criminal trial of two defendants, an Teacher - Termination reconsideration heard by Chin, J., in Superi- ted to the Massachusetts Treatment Center order of a single justice denying the petition or Court. Lee P. Alfieri for Smaland Beach As- Where an arbitrator upheld the dismissal in 1966 as a sexually dangerous person, filed must be affirmed on the ground that the wit- sociation, Inc., and others; Robert Kraus, of of a public school teacher, the arbitration a petition for relief pursuant to G.L.c. 211, nesses have not shown that they cannot ob- Kraus & Hummel, for the defendants (Dock- award did not contravene the separation of §3, his failure to demonstrate the absence or tain adequate relief from the challenged or- et No. SJC-10859) (Jan. 5, 2012). powers and thus it should be upheld. inadequacy of alternative remedies war- ders in the normal process of appellate review. ranted the denial of the petition. Atwater v. Commissioner of Education, et al. Vaccari, et al., petitioners (Lawyers Week- (Lawyers Weekly No. 10-165-11) (26 pages) (Ire- Healey v. Commissioner of Correction ly No. 10-150-11) (10 pages) (Botsford, J.) Mandamus - (Lawyers Weekly No. 10-129-12) (2 pages) land, C.J.) (SJC) Case heard by Hogan, J., on mo- (SJC) Case heard by Spina, J., sitting as single tions for summary judgment. Garrick F. Cole BBO investigation (Rescript) (SJC) Petition heard by Gants, J., justice. Michael A. Cioffi for the petitioners; sitting as single justice. Jeffrey M. Healey, pro and Gerard A. Butler Jr., both of Smith & Dug- Where a petitioner sought an order com- Susanne G. Reardon for the commonwealth gan, for the plaintiff; Amy Spector for Commis- se (Docket No. SJC-11088) (July 27, 2012). (Docket No. SJC-10914) (Oct. 13, 2011). pelling the Board of Bar Overseers to cause sioner of Education; Geoffrey R. Bok and Colby the Office of the Bar Counsel to reopen dis- C. Brunt, both of Stoneman, Chandler & Miller, ciplinary proceedings against several attor- G.L.c. 211, §3 - Leave to pursue for Manchester Essex Regional School District; neys as to whom she had filed one or more Matthew D. Jones, for Massachusetts Teachers grievances, the petition was correctly denied Second Amendment interlocutory appeal Association, amicus curiae, submitted a brief; by a single justice for lack of any private right Where a petitioner sought relief pursuant Where a single justice of the SJC denied a Michael J. Long, of Long & DiPietro, Joshua R. of action. to G.L.c. 211, §3 after a Boston Municipal defendant’s motion for leave to pursue an in- Coleman, of Collins, Loughran & Peloquin, and In the Matter of a Request for an Investi- Court judge denied his motion to dismiss a terlocutory appeal from a Superior Court’s de- Stephen J. Finnegan, of Finnegan & Bearse, for gation of Attorneys (Lawyers Weekly No. 10- charge of unlawfully carrying a firearm, the nial of the defendant’s suppression motion, the Massachusetts Association of School Commit- 166-11) (2 pages) (Rescript) (SJC) Appealed petition was correctly denied by a single jus- single justice’s order is not subject to review. tees, Inc., and another, amici curiae, submitted from a decision by Gants, J., sitting as single a brief (Docket No. SJC-10817) (Nov. 21, 2011). tice of the SJC in light of other adequate av- Bonilla v. Commonwealth (Lawyers Week- justice. Julia M. Heath, pro se; Michael enues for obtaining appellate relief. ly No. 10-152-11) (1 page) (SJC) Appealed Fredrickson for Board of Bar Overseers Grand-Pierre v. Commonwealth (Lawyers from a decision by Duffly, J., sitting as single (Docket No. SJC-10957) (Nov. 21, 2011). Weekly No. 10-179-11) (2 pages) (Rescript) justice. Romiules Bonilla, pro se (Docket No. Union grievance (SJC) Petition heard by Gants, J., sitting as sin- SJC-11046) (Oct. 13, 2011). Where the Appeals Court vacated a Su- gle justice. David F. Segadelli for the petition- perior Court judge’s decision to confirm an Mediation - Resignation er (Docket No. SJC-10954) (Dec. 14, 2011). arbitration award, the confirmation judg- Where an attorney whose resignation Mandamus ment should instead have been affirmed. from the practice of law was accepted as a Where a petitioner, who could have American Federation of State, County, and disciplinary sanction wishes to work as a G.L.c. 211, §3 - Sentence sought leave to appeal from the denial of his Municipal Employees, Council 93, AFL-CIO v. mediator, a remand is necessary for a deter- Where a petitioner sought G.L.c. 211, §3 motion for appointment of counsel, his School Department of Burlington (Lawyers mination of whether such work would be relief from a sentence he received on a kid- mandamus petition or both, petitioned for Weekly No. 10-083-12) (3 pages) (Rescript) (SJC) appropriate. napping conviction, the petition was cor- a writ of mandamus, a single justice did not Brian M. Maser, of Kopelman & Paige, for the In the Matter of: Bott, Anthony Raoul rectly denied because of the petitioner’s fail- abuse her discretion in denying the petition defendant; Karen E. Clemens for the plaintiff (Lawyers Weekly No. 10-096-12) (16 pages) (Docket No. SJC-10928) (May 22, 2012). ure to demonstrate that he cannot otherwise given that other relief is available. (Duffly, J.) (SJC) Petition reported by Bots- obtain adequate appellate review. Birks v. Green (Lawyers Weekly No. 10-090- ford, J., sitting as single justice. Judy A. Lev- Jones v. Commonwealth (Lawyers Weekly 12) (2 pages) (Rescript) (SJC) (Docket No. enson, of Brody, Hardoon, Perkins & Kesten, No. 10-011-12) (3 pages) (Rescript) (SJC) Ap- SJC-11040) (May 31, 2012). for the petitioner; Dorothy Anderson, Assis- pealed from a decision by Gants, J., sitting as ATTORNEYS tant Bar Counsel; Alisha R. Bloom, Deirdre single justice. Victoria L. Nadel for the peti- Heatwole, Rudolph Kass, David A. Hoffman tioner (Docket No. SJC-11080) (Jan. 17, 2012). Mootness - GPS monitoring and Thomas R. Marton, of Lourie & Cutler, Where (1) a Superior Court judge re- Discipline - Res judicata submitted a brief for Community Dispute Set- G.L.c. 211, §3 - Sentencing quired a criminal defendant to wear a glob- Where bar counsel has recommended tlement Center, Inc., and others, amici curiae al positioning system (GPS) device as a con- that an attorney be suspended for one year (Docket No. SJC-10935) (June 5, 2012). Where (1) a defendant was tried in the Su- dition of his pretrial release on bail and (2) and one day, that recommendation should perior Court, convicted of several offenses the defendant sought relief from that order be adopted despite the attorney’s claim that and sentenced, (2) the Appellate Division of pursuant to G.L.c. 211, §3, his appeal from a such a suspension would violate the doc- Privilege - ‘At issue’ waiver - the Superior Court modified one of his three single justice’s decision to deny the §3 peti- trine of res judicata in light of penalties im- sentences and (3) the commonwealth’s G.L.c. tion must be dismissed as moot in light of posed by a Probate & Family Court judge Work product 211, §3 petition challenging the Appellate Di- the fact that the defendant has been con- for the same conduct. Where a Superior Court judge issued a dis- vision’s decision was denied by a single jus- victed and is no longer released on bail. In the Matter of Weiss, Richard S. (Lawyers covery order requiring the plaintiff’s counsel tice of the SJC, the single justice committed Aldrich v. Commonwealth (Lawyers Week- Weekly No. 10-146-11) (3 pages) (Rescript) in a separate Land Court action to produce no clear error of law or abuse of discretion. ly No. 10-153-11) (2 pages) (Rescript) (SJC) (SJC) Richard S. Weiss, pro se; Roger Geller, documents from that proceeding and required Commonwealth v. Barros (Lawyers Week- Petition heard by Cordy, J., sitting as single Assistant Bar Counsel (Docket No. SJC- her attorney to answer specified questions in ly No. 10-154-11) (4 pages) (Rescript) (SJC) justice. Robert Aldrich, pro se; Stephen C. Hoc- 10962) (Sept. 27, 2011). writing, the defendants have not shown enti- Petition heard by Botsford, J., sitting as single tor for the commonwealth (Docket No. SJC- tlement to discovery of communications pro- justice. Kris C. Foster and Edmond Zabin for 10824) (Oct. 14, 2011). tected by the attorney-client privilege under a the commonwealth; Christopher P. Belezos for Discipline - Standing theory of “at issue” waiver, but may discover the defendant (Docket No. SJC-10906) (Oct. Where a petitioner sought disciplinary the other requested information that qualifies 14, 2011). OUI - Guilty plea - action against an attorney who, acting in as “fact” work product because the defendants Sentencing his capacity as a hearing officer for the Ex- have shown a substantial need for the materi- ecutive Office of Elder Affairs, had con- al and cannot without undue hardship obtain G.L.c. 211, §3 - Stay Where a petitioner, who pleaded guilty to ducted an administrative hearing and is- it from another source. Where a petitioner in a divorce proceed- OUI and was sentenced, sought G.L.c. 211, sued a final decision reducing home care McCarthy v. Slade Associates, Inc., et al. ing sought a stay of a court order for sale of §3 relief from an order vacating the guilty services to the petitioner’s husband, the pe- (and two companion cases) (Lawyers Week- the former marital home, the case has be- plea, the petition was correctly denied in titioner’s request was correctly denied by a ly No. 10-140-12) (38 pages) (Botsford, J.) come moot since the sale occurred. light of other avenues for appellate relief. single justice on the basis of a lack of any (SJC) Motions for discovery and for sanctions Blonde v. Antonelli (Lawyers Weekly No. Sarantakis v. Commonwealth (Lawyers private right of action. heard by Muse, J., in Superior Court. Thomas 10-130-12) (2 pages) (Rescript) (SJC) Petition Weekly No. 10-162-11) (2 pages) (Rescript) Gorbatova v. Semuels (Lawyers Weekly No. M. Elcock, of Prince, Lobel, Glovsky & Tye, for heard by Botsford, J., sitting as single justice. (SJC) Michael Talty for the petitioner; Sarah 10-085-12) (2 pages) (Rescript) (SJC) Petition Regan McCarthy; Robert J. Muldoon Jr. and Brian J. Kelly for the petitioner (Docket No. C. Fallon for the commonwealth (Docket No. heard by Lenk, J., sitting as single justice. Matthew C. Moschella, both of Sherin & Lod- SJC-11197) (July 27, 2012). SJC-11037) (Nov. 15, 2011). Valentina P. Gorbatova, pro se; Arlene Beth gen, for Burns & Levinson LLP and another; Marcus for Joel M. Semuels (Docket No. SJC- Richard A. Oetheimer and Allison Wannop, 11105) (May 23, 2012). both of Goodwin Procter, for Seamen’s Sav- G.L.c. 211, §3 - Subpoenas Recording - Wiretap ings Bank; Benjamin E. Zehnder for Slade As- Where a petitioner sought relief under G.L.c. Where a petitioner sought interlocutory sociates, Inc., and another; Michael P. Roche, 211, §3 from an order quashing five subpoe- review of an evidentiary order regarding a Disqualification - of Murphy & Riley, for Lester J. Murphy, was nas, the petition was correctly denied by a sin- recording, the petition was correctly denied present but did not argue; Marissa I. Delinks, gle justice on the ground that relief could be based on the availability of relief through the Necessary witness of Hinshaw & Culbertson, for Christopher J. obtained through normal appellate means. ordinary appellate process. Where a Superior Court judge disquali- Snow, was present but did not argue (Docket Wolf v. Commonwealth (Lawyers Weekly Wadja, petitioner (Lawyers Weekly No. 10- fied an attorney from representing them the No. SJC-11009) (Aug. 10, 2012). September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 187 masslawyersweekly.com 27

John D. Lawrence for National Conference of Suspension – Due process – SDP - Delay Bar Examiners and others; Simone R. Lieb - Health insurance - Jury trial Where (1) a plaintiff was confined in a man and Catherine C. Ziehl for Massachu - Qualified aliens treatment center for 16 days more than the setts Commission Against Discrimination Where a single justice ordered that an Where a legislative appropriation denied statutory maximum and (2) this delay was (Docket No. SJC-10898) (April 13, 2012). attorney be suspended indefinitely, that or not justified by any extraordinary circum - state subsidies for the purchase of health in - should be affirmed, as the findings of mis - stances, the commonwealth’s petition for civ - surance to a category of noncitizen immi - conduct are supported by substantial evi - il commitment must be dismissed. grants lawfully residing in the commonwealth, dence, the attorney’s due process rights Gangi v. Commonwealth (Lawyers Week - that denial cannot withstand strict scrutiny. were not violated and he is not entitled to ly No. 10-070-12) (9 pages) (Lenk, J.) (SJC) CIVIL SERVICE Finch, et al. v. Commonwealth Health In - a jury trial. John Fennel for David Gangi; Kenneth E. Ste - surance Connector Authority, et al. (Lawyers In the Matter of Gargano, Paul A. (Lawyers infield for the commonwealth (Docket No. Weekly No. 10-002-12) (27 pages) (Cordy, J.) Weekly No. 10-167-11) (6 pages) (Rescript) SJC-11006) (May 7, 2012). Furlough plan (SJC) Wendy Parmet (Lorianne Sainsbury- (SJC) Appealed from a decision by Cordy, J., Where plaintiffs commenced an action in Wong with her) for the plaintiffs; Kenneth W. sitting as single justice. Paul A. Gargano, pro Superior Court claiming that the defendants Salinger for the intervener; Carl Valvo, for se; Jeffrey D. Woolf, Assistant Bar Counsel SDP - Menace wrongfully subjected them to a mandatory Commonwealth Health Insurance Connector (Docket No. SJC-11018) (Nov. 21, 2011). Authority, was present but did not argue; the Where the commonwealth petitioned for furlough plan that was ordered by the gov - following submitted briefs for amici curiae: the commitment, as a sexually dangerous ernor, a judgment dismissing the complaint Doreena Wong, Justin Ma, Daniel S. Floyd, person, of a defendant who since 1986 has must be affirmed based on the plaintiffs’ fail - Minae Yu, Jordan Bekier, Christopher been convicted of open and gross lewdness ure to offer a valid statutory basis to challenge Punongbayan and Kimberly Lewis, of Cali - BANKRUPTCY and lascivious behavior (G.L.c. 272, §16) or the implementation of the furlough plan. fornia; Andrew Kang, of Illinois; Miriam Ye - indecent exposure (G.L.c. 272, §53) eight Massachusetts State Police Commissioned ung, of New York; Erin E. Oshiro, Jessica S. times, the petition must be denied for lack Officers Association, et al. v. Commonwealth, Chia and Priscilla Huang, of the District of Homestead - Trust of proof that the defendant is a menace to et al. (Lawyers Weekly No. 10-076-12) (12 Columbia; and Jacinta S. Ma for Asian Pa - the health and safety of other persons. pages) (Ireland, C.J.) (SJC) Motion to dismiss Where a U.S. Bankruptcy Court judge has cific American Legal Center and others; Vic - Commonwealth v. Suave (Lawyers Week - heard by Roach, J., in Superior Court. Timo - certified a question asking whether “the toria Pulos for Massachusetts Law Reform In - ly No. 10-138-11) (12 pages) (Spina, J.) (SJC) thy M. Burke for the plaintiffs; Daniel J. Ham - holder of a beneficial interest in a trust which stitute and others; Ara B. Gershengorn, Katie Case heard by Feeley, J., in Superior Court. mond for the defendants (Docket No. SJC- holds title to real estate and attendant Marie Perry, John Reinstein and Laura Roto - Kenneth E. Steinfield for the commonwealth; 10946) (May 11, 2012). dwelling in which such beneficiary resides lo for American Civil Liberties Union of Mas - William A. Korman, of Rudolph Friedmann, acquire[s] an estate of homestead in said sachusetts; Sarah F. Anderson, Nancy J. for the defendant; Brownlow M. Speer, sub - land and building under G.L.c. 188, §1,” the Lorenz and Jan M. Stiefel for Chinese Pro - mitted a brief for Committee for Public Coun - question should be answered in the negative gressive Association and others (Docket No. sel Services, amicus curiae, (Docket No. SJC- under the 2004 version of the homestead CONSTITUTIONAL SJC-11025) (Jan. 5, 2012). statute. 10851) (Sept. 16, 2011). Boyle v. Weiss (Lawyers Weekly No. 10-028- 12) (12 pages) (Botsford, J.) (SJC) Certifica - Filing fees - Traffic citation Turnpike - Tolls tion of a question of law to the Supreme Ju - Where (1) a motorist was issued a $100 Where the defendant Massachusetts dicial Court by the United States Bankruptcy citation, (2) a clerk-magistrate found him re - Turnpike Authority has used toll revenues Court for the District of Massachusetts. CIVIL RIGHTS sponsible for the violation charged, (3) a Dis - to pay for overhead, maintenance and capi - Thomas F. Fleming for the plaintiff; Steven trict Court judge later found him not re - tal costs associated with nontolled roads, Weiss and David K. Webber, both of Shatz, sponsible and (4) the motorist then moved bridges and tunnels, the plaintiffs have failed Schwartz & Fentin, for the defendant (Dock - Free speech - Lecture - for a refund of the filing fees he had been re - to show that the authority’s practice is un - et No. SJC-10933) (Feb. 16, 2012). College quired to pay, a denial of that motion did not constitutional. Where a plaintiff veterinarian brought suit violate the Equal Protection Clause or the Murphy, et al. v. Massachusetts Turnpike under the Massachusetts Civil Rights Act af - Ex Post Facto Clause of the Constitution. Authority (Lawyers Weekly No. 10-116-12) ter she was excluded from a publicly adver - Police Department of Salem v. Sullivan (21 pages) (Gants, J.) (SJC) Motion to dismiss BANKS AND BANKING tised lecture on the defendant college’s cam - (Lawyers Weekly No. 10-139-11) (14 pages) heard by Smith, J., and case reported by him. pus entitled, “Dangers of Feeding Your Pet a (Gants, J.) (SJC) Case heard by Mori, J., and Donald M. Griswold, of Reed Smith, and Raw Diet,” an award of summary judgment a motion to refund filing fees heard by him. Orestes G. Brown, of Metaxas Brown Pidgeon, Client account - Negligence for the defendant must be affirmed on the Ralph C. Sullivan, pro se; William W. Porter for the plaintiffs; Kenneth W. Salinger for the Where a plaintiff client, whose attorney ground that the circumstances of the plain - for the Attorney General and another; defendant; Richard P. Schweitzer, of the Dis - misappropriated funds in a client account at tiff’s exclusion from the lecture did not Stanislav Gayshan, Ariele Lessing and trict of Columbia, Richard Pianka and Prasad the defendant bank, brought suit seeking to amount to an interference with any claimed Christopher J. Pavlow, pro se, amici curiae, Sharma, of Virginia, and Mark K. Molloy, for hold the bank liable, no liability can be im - free speech right. submitted a brief (Docket No. SJC-10790) American Trucking Associations, Inc., and posed here even though the bank failed to Roman v. Trustees of Tufts College, et al. (Sept. 21, 2011). others, amici curiae, submitted a brief (Dock - notify the Board of Bar Overseers of dis - (Lawyers Weekly No. 10-043-12) (20 pages) et No. SJC-10987) (July 12, 2012). honored checks issued on the client account (Duffly, J.) (SJC) Case heard by Kaplan, J., on a more than six months before the plaintiff motion for summary judgment. John J. Finn and Freedom of speech and press wired funds into that account. Michael A. Finn, both of Finn & Finn, for the - ‘Live streaming’ Go-Best Assets Limited v. Citizens Bank of plaintiff; Scott P. Lewis, of Anderson & Kreiger, CONTRACT Massachusetts (Lawyers Weekly No. 10-132- and Dickens Mathieu for the defendants; David Where court orders have restricted a ra - 12) (24 pages) (Gants, J.) (SJC) Appealed from Himelfarb, of McCarter & English, and John Re - dio station’s broadcasting of court proceed - a decision by van Gestel, J., in Superior Court. instein submitted a brief for American Civil Lib - ings over the Internet, those restrictions Incapacity - Mental Donn A. Randall and Carol E. Kamm, both erties Union of Massachusetts, amicus curiae; must be vacated on constitutional grounds. of Bulkley, Richardson & Gelinas, for the de - Alan D. Rose and Lisa A. Tenerowicz, both of Commonwealth v. Barnes (Lawyers Week - impairment - Settlement Rose, Chinitz & Rose, submitted a brief for Bab - ly No. 10-038-12) (29 pages) (Botsford, J.) (SJC) fendant; Erik H. Langeland for the plaintiff Where a plaintiff’s request for an order son College and others, amici curiae (Docket No. Varsha Kukafka for the commonwealth; John (Docket No. SJC-11015) (July 30, 2012). enforcing a settlement agreement was de - SJC-10822) (March 21, 2012). Fennel for Charles Diorio; Lawrence S. Elswit nied based on a Superior Court judge’s con - (Christopher T. Bavitz with him) for trustees clusion that, due to mental impairment, one of Boston University (Docket Nos. SJC-11035, of the defendants lacked the capacity to con - Public accommodation - 11036 and 11052) (March 14, 2012). CIVIL PRACTICE tract at the time of agreement, the judge’s de - Lactation cision must be reversed because the evidence Where the defendant National Board of Governor’s Council - was insufficient to support a determination Commitment - SDP Medical Examiners (NBME) refused to give a of incapacity. Where a defendant was found to be a sex - plaintiff medical student additional break time Absence Sparrow v. Demonico, et al. (Lawyers Week - ually dangerous person as defined in and a suitable environment during the Unit - Where the Governor has sent the SJC a ly No. 10-009-12) (21 pages) (Duffly, J.) (SJC) G.L.c. 123A, §1, and was committed to the ed States medical licensing examination in letter asking whether it is constitutionally re - Motion to confirm settlement agreement heard Massachusetts Treatment Center for an in - which to express breast milk for her nursing quired that the Governor be physically pres - by Henry, J., in Superior Court. Kevin B. Nu - determinate period of from one day to life, daughter, the plaintiff is entitled to summary ent at and presiding over an assembly of the gent, of Nugent & Nugent, for David D. De - there were errors in the admission of evi - judgment under the Massachusetts public ac - Executive Council in order for the Lieu - monico; Christopher W. Driscoll for the plain - dence and in the judge’s instructions of law commodation discrimination statute. tenant Governor to vote on matters before tiff (Docket No. SJC-10868) (Jan. 13, 2012). that, when considered together with the im - Currier v. National Board of Medical Ex - the council, provided that the chair of the proprieties in the prosecutor’s closing argu - aminers (Lawyers Weekly No. 10-054-12) (34 Governor is not vacant by reason of the Gov - ment, require reversal and a new trial. pages) (Ireland, C.J.) (SJC) Case heard by Con - ernor’s death, absence from the common - Payment bond - Waiver Commonwealth v. Hunt (Lawyers Weekly nors, J., on motions for summary judgment. wealth or other incapacity, the SJC responds Where a provision in a subcontract pur - No. 10-122-12) (31 pages) (Gants, J.) (SJC) Marisa L. Pizzi, of Bowditch & Dewey, for the that the Lieutenant Governor remains a ported to waive the subcontractor’s right to Case tried before Locke, J., in Superior Court. plaintiff; Joseph F. Savage Jr., of Goodwin Proc - member of the Council but may not vote on pursue payment under a bond obtained by Brandon L. Campbell for the defendant; ter, and Suzanne Williams, of Pennsylvania, matters of advice and consent until the Gov - the general contractor, that provision is un - Christine M. Kiggen for the commonwealth; for the defendant; the following submitted ernor returns to preside over the Council. enforceable on public policy grounds. Michael F. Farrington, pro se, amicus curiae, briefs for amici curiae: Gerald Calnen for Opinion of the Justices to the Governor Costa v. Brait Builders Corporation, et al. submitted a brief (Docket No. SJC-11004) Academy of Breastfeeding Medicine; Robert (Lawyers Weekly No. 10-044-12) (19 pages) (Lawyers Weekly No. 10-133-12) (22 pages) (July 16, 2012). A. Burgoyne, of the District of Columbia, and (SJC) (Docket No. SJC-11114) (March 27, 2012). Continued on page 28 September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 188 28 masslawyersweekly.com

be ordered because a youthful offender ad - that the trial judge acted out of a desire to pre - fore the convictions must be affirmed. CONTRACT judication of carjacking should not have empt an acquittal by the jury and (2) the com - Commonwealth v. Stewart (Lawyers Week - Continued from page 27 been used as a predicate offense. monwealth presented sufficient evidence to ly No. 10-160-11) (25 pages) (Ireland, C.J.) (SJC) Commonwealth v. Anderson (Lawyers support a conviction on both the assault and Cases tried before Agnes, J. in Superior Court. (Spina, J.) (SJC) Case tried before Rufo, J., and Weekly No. 10-035-12) (29 pages) (Gants, J.) breaking and entering charges. Stewart T. Graham Jr. on appeal for the defen - a motion to alter or amend judgment heard (SJC) Motion to suppress heard by Hely, J., and Parreira v. Commonwealth (Lawyers Week - dant; Stephen J. Carley for the commonwealth by him. Stephen Schultz, of Engel & Schultz, case tried before Spurlock, J., in Superior ly No. 10-113-12) (14 pages) (Lenk, J.) (SJC) (Docket No. SJC-10728 ) (Nov. 10, 2011). for Brait Builders Corporation; Danielle An - Court. Kathryn Karczewska Ohren (Joe Grif - Case reported by Gants, J., in the Supreme Ju - drews Long, of Robinson & Cole, for Arch In - fin with her) for the defendant; Kathleen Ce - dicial Court. Estera Halpern for the defendant; surance Company; Eric S. Kupperstein, of lio for the commonwealth; Rose King, for Casey E. Silvia for the Commonwealth (Dock - Firearm possession - License Kupperstein and Kupperstein, for the plain - Youth Advocacy Department of the Com - et No. SJC-10976) (July 9, 2012). Where a jury convicted a defendant of the tiff; Carolyn M. Francisco and Michael T. mittee for Public Counsel Services, amicus cu - unlawful possession of a firearm outside of Mullaly, both of Corwin & Corwin, submit - riae, submitted a brief (Docket No. SJC- his residence or place of business in viola - ted a brief for Associated Subcontractors of 10925) (March 9, 2012). Double jeopardy - tion of G.L.c. 269, §10(a), the conviction Massachusetts, Inc., amicus curiae (Docket must be affirmed despite the common - No. SJC-11011) (Aug. 1, 2012). Jury instruction wealth’s failure to offer proof that the defen - Armed robbery - Where a jury convicted a defendant at a sec - dant did not possess a firearm license. Assault by means of a ond trial, a jury instruction given at the second Commonwealth v. Gouse (Lawyers Week - trial was not a violation of the double jeopardy ly No. 10-050-12) (33 pages) (Cordy, J.) (SJC) CRIMINAL dangerous weapon clause, so the convictions must be affirmed. Motion to suppress heard by Kane, J., and cas - Commonwealth v. Phim (Lawyers Weekly es tried before him. Sharon Dehmand for the Where a defendant was convicted of No. 10-099-12) (18 pages) (Lenk, J.) (SJC) armed robbery and assault by means of a defendant; Shoshana E. Stern for the com - Accessory - Murder Cases tried before Haggerty, J., in Superior monwealth (Docket No. SJC-10958) (April 10, dangerous weapon, the convictions were not Court. Aziz Safar for the defendant; Anne Where a defendant was found guilty of 2012). duplicative. Pogue Donohue for the commonwealth being an accessory before the fact to mur - Commonwealth v. Muller (Lawyers Week - (Docket No. SJC-10897) (June 14, 2012). der, the conviction must be affirmed despite ly No. 10-037-12) (2 pages) (Rescript) (SJC) the defendant’s assertions that (1) there were Appealed from a judgment entered by Spur - Firearms - errors relating to the testimony of two key lock, J., in Superior Court. Estera Halpern for Double jeopardy - Mistrial Subsequent offender prosecution witnesses, (2) the trial judge’s the defendant; Hallie White Speight for the Where a judge declared a mistrial after the Where a defendant has been convicted of instruction concerning consciousness of commonwealth (Docket No. SJC-10891) jurors became deadlocked in a prosecution for unlawful possession of a firearm, unlawful guilt was erroneous and (3) his trial counsel (March 9, 2012). was ineffective in several respects, both the deriving support from prostitution, double possession of a loaded firearm and unlaw - defendant’s conviction and the denial of his jeopardy principles do not preclude a retrial. ful possession of ammunition without a motion for a new trial must be affirmed. Change of venue - Ray v. Commonwealth (Lawyers Weekly firearm identification (FID) card, the con - Commonwealth v. Burgos (Lawyers Weekly No. 10-125-12) (9 pages) (Lenk, J.) (SJC) Case victions should be affirmed despite the de - No. 10-057-12) (35 pages) (Botsford, J.) (SJC) G.L.c. 211, §3 reported by Gants, J., sitting as single justice. fendant’s Second Amendment challenge. Case tried before Ford, J., and a motion for a Where the commonwealth has filed a pe - Anne Rousseve for the defendant; Paul B. Linn Commonwealth v. Eberhart (Lawyers Week - new trial heard by him. John M. Thompson and tition under G.L.c. 211, §3 challenging a Ju - for the commonwealth (Docket No. SJC- ly No. 10-051-12) (18 pages) (Cordy, J.) (SJC) Linda J. Thompson, both of Thompson & venile Court judge’s decision to allow a mo - 11156) (July 24, 2012). Cases tried before Ford, J., in Superior Court. Thompson, on appeal for the defendant; Di - tion for a change of venue, a single justice’s Michael J. Fellows for the defendant; Katherine anne M. Dillon for the commonwealth (Dock - order denying the petition must be affirmed E. McMahon for the commonwealth (Docket et No. SJC-07678) (April 17, 2012). because the petition lacks merit and the Drug certificates - No. SJC-11074) (April 10, 2012). commonwealth has not demonstrated a ba - Search warrant - sis for extraordinary relief. ‘Antique firearm’ defense Commonwealth v. Tobias T., a juvenile, et al. Personal appearance First-degree murder Where two defendants were convicted of (Lawyers Weekly No. 10-053-12) (3 pages) (Re - Where a defendant was convicted of drug of - Where the defendant was convicted of carrying a firearm without a license, pos - script) (SJC) Julia D. Holler for the common - fenses, a new trial must be ordered because the murder in the first degree, the conviction session of ammunition without a firearm wealth; John H. Cunha Jr., of Cunha & Hol - erroneous admission of the drug certificates should be affirmed, as (1) the evidence was identification card and possession of a comb, for Tobias T.; William E. Gens (Mehmet was not harmless beyond a reasonable doubt. sufficient to support a conviction of murder loaded firearm, the convictions must be re - Baysan with him) for Vicente V. (Docket Nos. Prior to any retrial, a judicial inquiry must on the theory of extreme atrocity or cruelty, (2) no substantial risk of a miscarriage of jus - versed and the cases remanded because the SJC-11033 and 11034) (April 12, 2012). be made regarding whether the police offi - judge erred in denying the defendants the cer who applied for a search warrant ex - tice was created by the prosecutor’s argument opportunity to offer the affirmative defense hausted all reasonable efforts to find a judge to the jury and (3) there was no reversible er - that the firearm was manufactured before Contempt before whom he could personally appear. ror in the trial judge’s instructions to the jury 1900 and therefore could be lawfully pos - Commonwealth v. Nelson (Lawyers Weekly on malice, defense of another and the use of Where a defendant moved to suppress an sessed without a license to carry. No. 10-137-11) (27 pages) (Ireland, C.J.) (SJC) excessive, deadly force in defense of another. indictment charging him with criminal con - Commonwealth v. Jefferson, et al. (Lawyers Motion to suppress heard by Ostrach, J., and Commonwealth v. Young (Lawyers Week - tempt, the motion must be denied because Weekly No. 10-052-12) (25 pages) (Gants, J.) case tried before Cunis, J., in District Court. ly No. 10-001-12) (24 pages) (Spina, J.) (SJC) (SJC) Cases tried before Sinnott, J., in Boston double jeopardy is not implicated. Kathryn Hayne Barnwell, of Carney & Bassil, Case tried before McEvoy, J. in Superior Court. Municipal Court. Jennifer J. Cox for Liquar - Vizcaino v. Commonwealth (Lawyers for the defendant; Shirley Xiao Li Cantin and Jeanne M. Kempthorne for the defendant on ry C. Jefferson; Michael A. Waryasz for Leslie Weekly No. 10-080-12) (21 pages) (Spina, J.) Bethany Stevens for the commonwealth (Dock - appeal; Paul B. Linn (David J. Fredette with Burton-Brown; Cailin Campbell for the com - (SJC) Case reported by Spina, J., sitting as sin - et No. SJC-10811) (Sept. 15, 2011). him) for the commonwealth (Docket No. SJC- monwealth (Docket Nos. SJC-11022 and gle justice. Jonathan Shapiro and John Cush - 10428) (Jan. 3, 2012). 11054) (April 11, 2012). man, both of Stern, Shapiro, Weissberg & Garin, for the defendant; Joseph M. Ditkoff, Duplicative convictions Mark A. Hallal and Nicholas J. Walsh for the Where a defendant (1) pleaded guilty to as - Harassment Appeal of murder conviction commonwealth (Docket No. SJC-10939) sault and battery by means of a dangerous Where a defendant was found guilty of Where the defendant was convicted of (May 21, 2012). weapon, aggravated burglary and armed as - criminal harassment, the judgment must be murder and now makes several claims aris - sault in a dwelling and (2) later filed a motion reversed because the Commonwealth’s evi - ing from his trial pertaining to (1) the selec - to vacate the conviction of armed assault in a dence was insufficient to establish each ele - tion of the jury, (2) communications between CPSL - Sex offender dwelling, that conviction was not duplicative ment of the crime. Commonwealth v. McDonald (Lawyers the judge and members of the jury, (3) the ad - Where a sentence of community parole su - of the conviction of aggravated burglary. Commonwealth v. Negron (Lawyers Week - Weekly No. 10-078-12) (16 pages) (Duffly, J.) mission and exclusion of evidence, (4) the jury pervision for life was imposed on a defendant ly No. 10-065-12) (16 pages) (Gants, J.) (SJC) (SJC) Case heard by Hand, J., in District Court. instructions and (5) the ineffective assistance who pleaded guilty to a charge of failing to Motion to vacate conviction and sentence con - Maurice A. Reidy III for the defendant; Audrey of his counsel, all of the defendant’s claims register as a sex offender (first offense), the sidered by Sweeney, J., in Superior Court. Anderson Kachour for the commonwealth must be rejected and he is not entitled to re - sentence must be vacated and a remand or - versal of the convictions or a new trial. William W. Adams for the defendant; Kather - (Docket No. SJC-10968) (May 18, 2012). dered because the sentencing judge mistak - ine A. Robertson for the commonwealth Commonwealth v. Dyer (Lawyers Weekly enly believed that imposition of CPSL was No. 10-151-11) (42 pages) (Botsford, J.) (SJC) (Docket No. SJC-10967) (May 2, 2012). mandatory rather than discretionary. Cases tried before Dolan, J., and a motion for Indecent assault - Commonwealth v. Williamson (Lawyers a new trial heard by McLaughlin, J. in Superi - Weekly No. 10-112-12) (17 pages) (Lenk, J.) (SJC) Statutory rape or Court. Judith H. Mizner for the defendant; Felony-murder - Motion to correct sentence heard by Agostini, J., Where a defendant has been convicted of William R. Connolly for the commonwealth in Superior Court. Elizabeth Caddick for the de - Jury instructions statutory rape and indecent assault and bat - (Docket No. SJC-07460) (Oct. 13, 2011). fendant; John P. Bossé for the commonwealth Where a defendant who was convicted of tery on a person under the age of 14, the con - (Docket No. SJC-11132) (July 9, 2012). murder in the first degree has argued on ap - victions must be upheld despite the defen - Armed career criminal - peal that (1) there was insufficient evidence of dant claiming (1) that he was convicted of armed robbery to support his conviction of crimes for which he was not indicted in vi - Youthful offender Double jeopardy felony-murder, (2) there were numerous er - olation of his state and federal constitution - Where the defendant’s guilty plea was va - rors in the judge’s instructions to the jury and al rights, (2) error in the admission of first adjudication cated as the product of judicial coercion, re - (3) his attorney provided constitutionally in - complaint testimony, (3) error by the judge’s Where a defendant was sentenced as an trial is appropriate because (1) the circum - effective assistance, there was no substantial restriction of cross-examination of the vic - armed career criminal, a resentencing must stances of the trial do not support an inference likelihood of a miscarriage of justice and there - tim and refusal to grant a mistrial and (4) September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 189 masslawyersweekly.com 29

error in the admission of bad act evidence. interrogation, which was conducted in Span - §32L, a prosecution under G.L.c. 94C, ing does not require reversal and (3) both of Commonwealth v. Roby (Lawyers Weekly No. ish, and (2) police testimony regarding the §32C(a), is not limited solely to situations the defendant’s ineffective assistance of 10-094-12) (25 pages) (Ireland, J.) (SJC) Cases statements the defendant made during the in - where the “distribut[ion]” involves a sale. counsel claims lack merit. tried before Whitehead, J. in Superior Court. Re - terrogation, the judge committed no abuse of An order allowing the defendant’s motion Commonwealth v. Morales (Lawyers Week - becca Rose on appeal for the defendant; Cather - discretion in light of the commonwealth’s fail - to suppress evidence is affirmed. ly No. 10-049-12) (35 pages) (Ireland, C.J.) ine Langevin Semel for the commonwealth ure to provide an English-language transcript. Commonwealth v. Keefner (Lawyers Week - (SJC) Motions to suppress heard by Kinder, J., (Docket No. SJC-11055) (June 4, 2012). Commonwealth v. Portillo (Lawyers Week - ly No. 10-026-12) (19 pages) (Ireland, C.J.) and cases tried before him. Stephen Neyman ly No. 10-089-12) (15 pages) (Gants, J.) (SJC) (SJC) Motions to suppress heard by Vrabel, J., for the defendant; Marcia B. Julian for the Motion to suppress heard by Maldonado, J., and motion to dismiss heard by him. John P. commonwealth (Docket No. SJC-10775) Indigency - in District Court. Macy Lee and Nicholas Bossé for the commonwealth; David M. Skeels (April 9, 2012). Brandt for the commonwealth; S. Anders (Lisa A. Ruggieri with him) for the defendant Appointment of counsel Smith, of SAS Law, for the defendant (Dock - (Docket No. SJC-11019) (Feb. 13, 2012). Where a defendant, charged with failure et No. SJC-10969) (May 29, 2012). Murder to pay wages timely in violation of G.L.c. 149, Where two defendants were convicted of §148, filed an affidavit of indigency and Marijuana - murder in the first degree and other related sought appointment of counsel at public ex - Interrogation - Fires Possession with intent crimes, the convictions must be affirmed as pense, the defendant did not meet her bur - Where a defendant charged with multi - to both defendants despite their arguments den of proving indigency by a preponder - ple felony counts arising out of a series of ar - Where a District Court has reported a that (1) the evidence was insufficient to sus - ance of the evidence. son fires moved to suppress certain incrim - question asking whether the passage of tain one defendant’s conviction as a joint Commonwealth v. Porter, et al. (Lawyers inatory statements he made in the course of G.L.c. 94C, §32L, decriminalized possession venturer, (2) the other defendant was enti - Weekly No. 10-118-12) (20 pages) (Spina, J.) nearly 10 hours of police interrogation, the with intent to distribute marijuana when the tled to a jury instruction that one of the el - (SJC) Question of law reported by Elizabeth M. motion should have been allowed, as the amount of marijuana seized is under one ements of possession of a firearm is the lack Fahey, J., in Superior Court. Brad P. Bennion for statements were not voluntary. ounce, the answer is no. of a license and (3) the jury should have been the defendant; Daniel P. Sullivan for the inter - Commonwealth v. Baye (Lawyers Weekly Commonwealth v. Dee (Lawyers Weekly instructed on defense of another. vener Administrative Office of the Trial Court No. 10-079-12) (32 pages) (Lenk, J.) (SJC) Mo - No. 10-027-12) (3 pages) (Rescript) (SJC) Commonwealth v. Norris (and five com - (Docket No. SJC-10924) (July 13, 2012). tion to suppress heard by Sweeney, J., in Su - Melissa Weisgold Johnsen for the common - panion cases) (Lawyers Weekly No. 10-068- perior Court. David P. Hoose (Thomas Less - wealth; David M. Skeels, Committee for Pub - 12) (26 pages) (Botsford, J.) Cases tried before er, of Lesser Newman & Nassar, with him) for lic Counsel Services (Lisa A. Ruggieri and Jo - Kottmyer, J., in Superior Court. Ruth Green - Indigency - the defendant; Brett J. Vottero (Thomas H. celyn A. Thomsen with him) for the defendant berg for Walter Norris; Dana Alan Curhan Appointment of counsel Townsend and Matthew D. Thomas with (Docket No. SJC-11020) (Feb. 13, 2012). for Valentino Facey; Anne Pogue Donohue for him) for the commonwealth (Docket No. SJC- the commonwealth (Docket No. SJC-10796) Where a judge found that a defendant 11044) (May 21, 2012). (May 4, 2012). charged with cocaine trafficking was not in - Mistrial - Double jeopardy digent and consequently was not entitled to Where a defendant moved to dismiss an appointed counsel, that ruling must be up - Larceny - False pretenses indictment following a mistrial, the judge Murder held, as the judge was correct in concluding correctly concluded that there was a mani - that the income and assets of the defendant’s Where the defendant was convicted of lar - Where a defendant has been convicted of ceny of property over $250 by false pretenses fest necessity for the mistrial and conse - first-degree murder, the conviction should girlfriend and his mother, were he to live quently it would not be a double jeopardy with her, could be considered in assessing when he failed to repay a loan, the conviction be upheld because no reversible errors have must be reversed because there was insuffi - violation for the defendant to tried. been identified by his appellate counsel. the defendant’s indigency status. Cruz v. Commonwealth (Lawyers Weekly Commonwealth v. Fico, et al. (Lawyers cient evidence that the statements the defen - Commonwealth v. Brown (Lawyers Weekly dant made to the complainant at the time of No. 10-039-12) (17 pages) (Spina, J.) (SJC) No. 10-107-12) (25 pages) (Gants, J.) (SJC) Mo - Weekly No. 10-119-12) (17 pages) (Ireland, Raymond Buso on appeal for the defendant; C.J.) (SJC) Question of law reported by Fa - the loan transaction were knowingly false. tion to suppress heard by Quinlan, J., and cases Commonwealth v. McCauliff (Lawyers David F. O’Sullivan for the commonwealth tried before Connolly, J., in Superior Court. hey, J., in Superior Court. Brad P. Bennion for (Docket No. SJC-10941) (March 15, 2012). the defendant; Natalie S. Monroe for the in - Weekly No. 10-036-12) (13 pages) (Botsford, Stephen Neyman on appeal for the defendant; tervener Administrative Office of the Trial J.) (SJC) Case heard by McGill, J., in District Donna Jalbert Patalano for the commonwealth Court (Docket No. SJC-10918) (July 13, 2012). Court. Allison J. Koury for the defendant; (Docket No. SJC-10792) (June 28, 2012). Donna-Marie Haran for the commonwealth Motion to stay (Docket No. SJC-10951) (March 9, 2012). execution of sentence Murder Indigency - Where defendant, whose motion to stay Appointment of counsel the execution of his sentence was denied by Where a jury found a defendant guilty of Manslaughter - Childbirth a single justice of the Appeals Court, filed murder in the first degree, the conviction Where a judge found that a defendant was Where a defendant has been found guilty another motion to stay the execution of his must be affirmed despite erroneous eviden - indigent but able to contribute $40,000 to of involuntary manslaughter, the conviction sentence before a single justice of the tiary rulings by the lower court. his defense against indictments charging must be vacated because of insufficient ev - Supreme Judicial Court after direct appel - Commonwealth v. Barbosa (Lawyers him with the murders of his wife, mother- idence. late review was granted, the defendant pro - Weekly No. 10-136-12) (35 pages) (Cordy, J.) in-law and two children, a remand is neces - The court declines to impose a duty on ceeded properly. (SJC) Pretrial motion to suppress heard by sary for a consideration of (1) the effect of the part of a woman in the midst of unas - Polk v. Commonwealth (Lawyers Weekly Cosgrove, J., and cases tried before Locke, J., the “slayer” statute and (2) the extent to sisted childbirth to summon medical assis - No. 10-005-12) (7 pages) (Gants, J.) (SJC) in Superior Court. Joseph A. Hanofee for the which the assets in the defendant’s IRA are tance, breach of which may give rise to crim - Case heard by Spina, J., in the Supreme Judi - defendant; Mary Lee for the commonwealth properly deemed “available” funds. inal liability for involuntary manslaughter. cial Court. Max D. Stern and Alexandra H. (Docket No. SJC-10930) (Aug. 6, 2012). Commonwealth v. Mortimer, et al. Commonwealth v. Pugh (Lawyers Weekly Deal, both of Stern, Shapiro, Weissberg & (Lawyers Weekly No. 10-120-12) (18 pages) No. 10-100-12) (46 pages) (Lenk, J.) (SJC) Case Garin for William Polk; Tracey A. Cusick for (Cordy, J.) (SJC) Question of law reported by heard by Agnes, J., in Superior Court. Jaclyn R. the commonwealth (Docket No. SJC-10900) Murder Fahey, J., in Superior Court. Ryan M. Schiff Greenhalgh and Peter L. Ettenberg, both of (Jan. 10, 2012). Where a defendant was convicted of mur - (Beth L. Eisenberg with him) for the defen - Gould & Ettenberg, for the defendant; Ellyn H. der in the first degree, he was not unfairly dant; Natalie S. Monroe for the intervener Ad - Lazar-Moore for the commonwealth; the fol - prejudiced by (1) statements made in the ministrative Office of the Trial Court (Dock - lowing submitted briefs for amici curiae: Alexa Murder prosecutor’s closing argument or (2) the jury et No. SJC-10923) (July 13, 2012). Kolbi-Molinas, of New York, and Sarah Wun - instruction on reasonable doubt. Where a defendant was convicted of first- sch for American Civil Liberties Union and an - Commonwealth v. Mejia (Lawyers Weekly degree murder based on evidence of a fatal other; Jane Larmon White for Committee for No. 10-144-12) (23 pages) (Duffly, J.) (SJC) stabbing, the conviction should be affirmed, Ineffective assistance Public Counsel Services; McKenzie E. Webster Cases tried before Riley, J., in Superior Court. as (1) the evidence was sufficient for the jury Where a judge allowed a motion for a new for Massachusetts Association of Criminal De - Robert S. Sinsheimer for the defendant; Macy to find extreme atrocity or cruelty, (2) the trial filed by a defendant who had been con - fense Lawyers; Andrea C. Kramer, Melissa Gar - Lee and John P. Pappas for the commonwealth jury instructions did not create a substantial victed of assault and battery by means of a lick, Kelly N. Griffin, Victoria Fernandez and (Docket No. SJC-10438) (Aug. 21, 2012). dangerous weapon and unlawful possession Carolyn G. Goodwin for Women’s Bar Associ - risk of a miscarriage of justice and (3) evi - of a firearm, the order granting the new tri - ation of Massachusetts (Docket No. SJC-10895) dence that the victim had assaulted his wife al should be affirmed because of trial coun - (June 15, 2012). in an act of domestic violence four months Murder - Armed assault sel’s failure to call a witness counsel had men - prior to his death was correctly excluded. tioned in his opening statement to the jury. Commonwealth v. Rodriquez (Lawyers with intent to murder Commonwealth v. Lane (Lawyers Weekly Marijuana - Weekly No. 10-176-11) (20 pages) (Ireland, C.J.) Where a defendant was convicted of first- No. 10-105-12) (14 pages) (Cordy, J.) (SJC) Cas - (SJC) Case tried before Whitehead, J., in Supe - degree murder, second-degree murder and es tried before McCann, J., and a motion for a Possession with intent rior Court. Kenneth I. Seiger on appeal for the armed assault with intent to murder, the con - new trial heard by him. Richard B. Klibaner, of Where a District Court judge dismissed defendant; Casey E. Silvia for the common - viction of armed assault with intent to mur - Klibaner & Sabino, on appeal for the defendant; a criminal complaint charging a defendant wealth (Docket No. SJC-10828) (Dec. 12, 2011). der must be reversed and the indictment re - Jane A. Sullivan for the commonwealth (Dock - with possession with intent to distribute less manded for further proceedings, as the et No. SJC-11014) (June 25, 2012). than an ounce of marijuana, the dismissal omission of a jury instruction regarding the order must be reversed because (1) the pas - Murder defendant’s knowledge that his codefendant sage of G.L.c. 94C, §32L, did not repeal the Where the defendant was convicted of girlfriend was armed created a substantial Interrogation - offense of possession of marijuana with in - murder in the first degree, (1) the trial judge risk of a miscarriage of justice. tent to distribute when the amount of mar - did not err in denying the defendant’s mo - Commonwealth v. Bolling (Lawyers Weekly Audio recording ijuana possessed is one ounce or less and (2) tion to suppress statements and evidence No. 10-097-12) (29 pages) (Botsford, J.) (SJC) Where a judge allowed a defendant’s mo - while the sale of any amount of marijuana based on an alleged Miranda violation, (2) Cases tried before Gaziano, J., in Superior Court. tion to exclude (1) an audio recording of his remains a criminal offense under G.L.c. 94C, the prosecutor’s misstatement during clos - Continued on page 30 Massachusetts Lawyers Weekly September 17, 2012 30 masslawyersweekly.com Cite this page 41 MLW 190

victions should be upheld despite (1) a de - (46 pages) (Cordy, J.) (SJC) Motions to sup - CRIMINAL fendant’s assertion that he acted under Murder - press heard by Brady, J., and cases tried before Continued from page 29 duress and (2) a codefendant’s claim that Mental impairment Neel, J., in Superior Court. Robert F. Shaw Jr. the trial judge should have held a hearing for Nam The Tham; Janet H. Pumphrey for Where a jury convicted a defendant of mur - Chrystal A. Murray on appeal for the defendant; on a challenge to the commonwealth’s Siny Van Tran; David D. McGowan for the der in the first degree, the trial judge did not err Teresa K. Anderson, David J. Fredette and Julie blood spatter evidence. commonwealth (Docket No. SJC-10425) in refusing to give the defendant’s requested jury Sunkle Higgins for the commonwealth (Docket Commonwealth v. Vasquez (and five com - (Sept. 14, 2011). instruction on mental impairment. No. SJC-10989) (June 12, 2012). panion cases) (Lawyers Weekly No. 10-124- Commonwealth v. Szlachta (Lawyers 12) (33 pages) (Spina, J.) (SJC) Motions to sev - Weekly No. 10-128-12) (20 pages) (Spina, J.) er and for reconsideration heard by Brady, J., Murder - Unrecorded (SJC) Case tried before McDonald, J., in Su - Murder - Autopsy report and cases tried before him. Stephen Paul perior Court. Leslie W. O’Brien on appeal for Where a defendant was convicted of mur - Maidman for Ismael Vasquez; David A.F. interrogation the defendant; Jane Davidson Montori for the der in the first degree on a theory of delib - Lewis for Luis Vasquez; Kevin S. Nixon for Where a Superior Court jury convicted a commonwealth (Docket No. SJC-10870) (July erate premeditation, the conviction is af - Scott Davenport; Zachary Hillman and defendant of murder in the first degree on 27, 2012). firmed despite the defendant’s claims that Patrick M. Haggan for the commonwealth theories of deliberate premeditation and ex - the evidence was insufficient to support his (Docket No. SJC-10140) (July 17, 2012). treme atrocity or cruelty, a new trial must be conviction and that errors at trial, including ordered because “a number of aspects of the what he claimed to be improperly admitted Murder - New trial trial, among them [a] detective’s testimony testimony of a number of witnesses and an Murder - Evidentiary errors Where a Superior Court judge granted a concerning the defendant’s unrecorded state - new trial to a defendant who was convicted unwarranted jury instruction on con - Where a Superior Court jury convicted a ments, prejudicial limitations on the defen - in 2005 of murder in the first degree and car - sciousness of guilt, created a substantial like - defendant of armed robbery and murder in dant’s right to cross-examine the detective, rying a firearm without a license, the new lihood of a miscarriage of justice. the first degree on a theory of felony-mur - and certain of the prosecutor’s remarks in trial order should be affirmed on the basis Commonwealth v. Emeny (Lawyers Week - der, a new trial must be ordered because er - closing argument, created a substantial like - of undisclosed exculpatory evidence. ly No. 10-138-12) (24 pages) (Duffly, J.) (SJC) rors in the admission of certain evidence cre - lihood of a miscarriage of justice.” Commonwealth v. Murray (Lawyers Week - Case was heard by Neel, J., in Superior Court. ated a substantial likelihood of a miscarriage Commonwealth v. Woodbine (Lawyers ly No. 10-169-11) (23 pages) (Cordy, J.) (SJC) Emanuel Howard for the defendant; Marian of justice. Weekly No. 10-045-12) (57 pages) (Duffly, J.) Motion for a new trial and motion for recon - T. Ryan (Anne C. Pogue with her) for the Commonwealth v. Santos (Lawyers Week - (Gants, J., dissenting) (SJC) Motion to sup - sideration heard by Hamlin, J., in Superior Commonwealth (Docket No. SJC-10432) ly No. 10-146-12) (40 pages) (Duffly, J.) (SJC) press heard by Fishman, J., and cases tried be - Court. Robert J. Bender for the common - (Aug. 8, 2012). Motion to suppress heard by Fahey, J., and cas - fore Hinkle, J., in Superior Court. James L. Sul - wealth; Ruth Greenberg for the defendant es tried before McIntyre, J., in Superior Court. tan, of Rankin & Sultan, for the defendant; (Docket No. SJC-09798) (Nov. 22, 2011). Murder - DNA Leslie W. O’Brien for the defendant; Robert J. Macy Lee for the commonwealth (Docket No. Bender and Elizabeth A. Dunigan for the SJC-10407) (March 28, 2012). Where a defendant has been convicted of commonwealth (Docket No. SJC-10539) (Aug. first-degree murder, his appeal must fail, as 27, 2012). Murder - Peremptory (1) his trial counsel was not ineffective, (2) challenge Murder - Warrantless search a search warrant involved in the case was - Pretrial publicity valid despite the fact that it was based on an Murder - First degree Where a defendant was convicted by a Su - anonymous citizen informant’s information, perior Court jury of murder in the first de - Where a jury convicted a defendant of Where a jury in the Superior Court con - (3) a photographic identification made by a gree on a theory of deliberate premeditation, murder in the first degree, the convictions victed a defendant of murder in the first de - 13-year-old witness that was the result of un - the conviction should be upheld despite the must be affirmed, as (1) warrantless search - gree, the conviction should be affirmed, as (1) due suggestion by the police and (4) testi - defendant’s argument that the judge erred es of the defendant’s home were justified by the trial judge did not abuse his discretion in mony regarding inconclusive DNA results both in rejecting his exercise of a peremp - the emergency aid exception to the warrant questioning the venire about their views on would not have influenced the jury’s con - tory challenge of a member of the venire requirement and (2) the defendant received scientific evidence, (2) the judge did not err clusion and did not create a substantial like - during jury empanelment and in improper - a fair trial that was ably tried and judged. by failing to instruct, consistent with Com - lihood of a miscarriage of justice. ly providing a limiting instruction as to the Commonwealth v. Entwistle (Lawyers monwealth v. Bowden , 379 Mass. 472, 485-486 Commonwealth v. Cavitt (Lawyers Week - use of prior inconsistent statements elicited Weekly No. 10-141-12) (33 pages) (Gants, J.) (1980), that the jury could consider “the lack ly No. 10-141-11) (32 pages) (Spina, J.) (SJC) on cross-examination of one of the com - (SJC) Motion to suppress heard by Kottmyer, of police investigation [and] the lack of phys - Motions to suppress heard by Ford, J.; cases monwealth’s key witnesses. J., and cases tried before her. Stephen Paul ical evidence” in determining whether there were tried before Carhart, J., and a motion for Commonwealth v. Prunty (Lawyers Week - Maidman and Stephanie Page for the defen - was a reasonable doubt as to the defendant’s a new trial heard by him. Jeffrey L. Baler on ly No. 10-084-12) (35 pages) (Lenk, J.) (SJC) dant on appeal; Casey E. Silvia and Michael guilt, (3) the judge’s erroneous decision to per - appeal for the defendant; Katherine E. McMa - Cases tried before Nickerson, J., in Superior L. Fabbri for the commonwealth (Docket No. mit a witness to give an opinion regarding the hon for the commonwealth (Docket No. SJC- Court. Charles W. Rankin, of Rankin & Sul - SJC-10788) (Aug. 14, 2012). culpability of the defendant was insubstan - 10436) (Sept. 21, 2011). tan, for the defendant; Thomas G. Shack III tial and (4) evidence of an argument between (Genevieve K. Henrique with him) for the the defendant and a third party was not un - commonwealth (Docket No. SJC-09849) New trial - Provocation duly prejudicial. Murder – DNA – (May 23, 2012). Where a defendant moved for a new tri - Commonwealth v. Perez (Lawyers Weekly al based on Commonwealth v. Acevedo , 427 No. 10-145-11) (31 pages) (Duffly, J.) (SJC) Courtroom closure Mass. 714, 717 (1998), the motion must be Cases tried before Whitehead, J., in Superior Where the defendant, who was convicted Murder - Photo array denied on the ground that the defendant has Court. Elaine Pourinski for the defendant; of murder in the first degree on theories of not raised presents a “new and substantial” David F. O’Sullivan and Gerald Shea for the Where a defendant was convicted of first- deliberate premeditation and extreme atroc - question. commonwealth (Docket No. SJC-10208) degree murder, reversal of the defendant’s ity or cruelty, argues, among other things, Commonwealth v. Johnson (Lawyers Week - (Sept. 23, 2011). conviction is not called for here despite the that the conviction must be overturned be - fact that the police showed an all-suspect ly No. 10-170-11) (13 pages) (Spina, J.) (Gants, cause (1) closure of the court room during photo array to a witness. J., with whom Botsford and Lenk, JJ., join, con - jury selection violated his constitutional Murder - Insanity defense Commonwealth v. Walker (Lawyers Week - curring in the judgment) (SJC) Case report - right to a public trial, (2) the defendant im - ly No. 10-142-11) (43 pages) (Gants, J.) (SJC) ed by Gants, J., sitting as single justice. Charles properly was precluded from presenting ev - Where a jury convicted a defendant of first- Cases tried before Brassard, J., and a motion K. Stephenson for the defendant; Jane David - idence of potential third-party culprits, (3) degree murder, the conviction should be af - for a new trial heard by him. James L. Sultan, son Montori for the commonwealth (Docket one of the commonwealth’s DNA experts of - firmed, as (1) the court below conducted an of Rankin & Sultan, on appeal for the defen - No. SJC-10823) (Nov. 22, 2011). fered improper testimony, (4) the common - appropriate voir dire of the prospective ju - dant; Kathleen Celio for the commonwealth wealth failed to make timely disclosure of rors during jury selection regarding their abil - (Docket No. SJC-10470) (Sept. 21, 2011). expert materials, (5) the prosecutor’s closing ity to be fair in applying the law regarding Probation - Revocation - argument was improper and (6) trial coun - criminal responsibility, (2) it was not error to sel was ineffective, all of the defendant’s admit into evidence the defendant’s statement Murder - Statements Counsel claims fail and the conviction must be af - to police following his arrest on the day of the Where a defendant has challenged a judge’s firmed. killing, (3) the lower court did not err in ad - made more than decision to revoke the defendant’s probation, Commonwealth v. Buckman (Lawyers mitting an inculpatory and racially inflam - the defendant was not deprived of his right Weekly No. 10-171-11) (31 pages) (Spina, J.) matory statement the defendant made to an - six hours after arrest to counsel at the revocation hearing and thus (SJC) The case was tried before R. Malcolm other inmate while awaiting trial, (4) a Where two defendants, in connection the judge’s decision should be affirmed. Graham, J. in Superior Court; motions for a substantial risk of a miscarriage of justice was with a shooting in the basement of an ille - Commonwealth v. Pena (Lawyers Weekly new trial were considered by Judith Fabri - not caused by the prosecutor’s improper ref - gal gambling parlor in the Chinatown sec - No. 10-072-12) (23 pages) (Spina, J.) (SJC) cant, J., and a supplemental motion for a new erence during closing argument to the billing tion of Boston, were convicted on five Proceeding for revocation of probation heard trial also was considered by her. John M. rate of a defense expert and (5) it was not prej - charges of murder in the first degree on the - by Gaziano, J., in Superior Court. David J. Ro - Thompson, of Thompson & Thompson PC, udicial error for the trial judge during jury ories of deliberate premeditation and ex - tondo for the defendant; Helle Sachse for the for the defendant; Varsha Kukafka for the instructions to speak of mental illness rather treme atrocity or cruelty, the convictions commonwealth (Docket No. SJC-10953) Commonwealth (Docket No. SJC-08046 ) than mental impairment. should be affirmed because no reversible er - (May 9, 2012). (Nov. 29, 2011). Commonwealth v. Bishop (Lawyers Week - ror occurred at trial or before trial. ly No. 10-033-12) (24 pages) (Gants, J.) (SJC) Specifically, the SJC concludes that the ad - Motion to suppress heard by Walker, J., and mission of a statement one of the defendants Probation - Revocation - Murder - Duress - cases tried before Hely, J., in Superior Court. made to the police did not offend the rule Philip G. Cormier, of Good & Cormier, on ap - announced in Commonwealth v. Rosario , 422 Mootness Blood spatter evidence peal for the defendant; John E. Bradley Jr. for Mass. 48 (1996). Where a probation has challenged a judg - Where a jury found four defendants the commonwealth (Docket No. SJC-10392) Commonwealth v. Tran (and 13 compan - ment revoking his probation, the appeal guilty of murder in the first degree, the con - (March 5, 2012). ion cases) (Lawyers Weekly No. 10-136-11) must be dismissed as moot. September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 191 masslawyersweekly.com 31

Commonwealth v. Milot (Lawyers Weekly Motion to suppress heard by Coffey, J., in submitted briefs for amici curiae: Donald V. No. 10-073-12) (10 pages) (Ireland, C.J.) (SJC) Boston Municipal Court. Teresa K. Ander - Statutory rape - Rider Jr., City Solicitor, and Christopher J. Proceeding for revocation of probation heard son for the commonwealth; Rebecca A. Ja - Dissociation disorder Petrini, Barbara J. Saint Andre and Heather by Brooks, J., in District Court. Brownlow M. cobstein (Anne Coolidge Masse with her) for W. Kingsbury, all of Petrini & Associates, for Where the defendant was convicted of the Speer for the defendant; Elizabeth F. Silver - the defendant (Docket No. SJC-10816) (Jan. City Solicitors and Town Counsel Association statutory rape of his niece, a new trial must be man for the commonwealth (Docket No. SJC- 13, 2012). and another; Robert J. McCarron for Associ - ordered because of the trial judge’s exclusion 10943) (May 9, 2012). ation of Independent Colleges and Universi - of (1) expert testimony by the defendant’s psy - ties in Massachusetts; F. Beirne Lovely Jr. for chologist regarding dissociation disorder and Sentencing - Archdiocese of Boston (Docket No. SJC- (2) evidence of the victim’s prior sexual abuse Rape - Consent - 10919) (May 22, 2012). Plea agreement necessary for the jury to evaluate the risk that Intoxication Where (1) the defendant and the com - she had dissociative disorder. Where a defendant was convicted of rape monwealth entered into a plea agreement, Commonwealth v. Polk (Lawyers Weekly Expulsion - Marijuana - and furnishing alcohol to a person under 21 (2) the defendant agreed to plead guilty to No. 10-055-12) (28 pages) (Gants, J.) (SJC) years of age, he was not prejudiced by an er - the charges and join the prosecutor’s sen - Cases tried before Sanders, J. in Superior Preliminary injunction roneous jury instruction concerning his state tencing recommendation, (3) the judge im - Court. Max D. Stern, of Stern, Shapiro, Weiss - Where a student filed a motion for a pre - of intoxication. posed the recommended sentence and (4) berg & Garin (Alexandra H. Deal with him), liminary injunction after he was expelled Commonwealth v. Mountry (Lawyers the judge thereafter reduced the sentence, for the defendant; Tracey A. Cusick for the from Weston High School for allegedly pos - Weekly No. 10-134-12) (22 pages) (Spina, J.) there was no error, as a judge acting on his commonwealth (Docket No. SJC-10867) sessing and distributing a “marijuana cook - (April 13, 2012). (SJC) Cases tried before Whitehead, J., in Su - own timely motion has the authority to re - ie” on school property, a Superior Court perior Court. William T. Harrington, of Har - duce a sentence where “it appears that jus - judge’s ruling on that motion must be va - rington & Harrington, for the defendant; Ken - tice may not have been done,” regardless of cated and a new hearing ordered before a neth E. Steinfield for the commonwealth whether a plea agreement includes an agreed Trespass - Childhood home different judge. (Docket No. SJC-10983) (Aug. 1, 2012). sentence recommendation. Where a defendant was convicted in the Doe v. Superintendent of Schools of We - Commonwealth v. Rodriguez (Lawyers District Court of trespass and breaking and ston (Lawyers Weekly No. 10-182-11) (11 Weekly No. 10-006-12) (35 pages) (Gants, J.) entering with the intent to commit a mis - pages) (Spina, J.) (SJC) Application for pre - Rape - Lesser (Cordy, J., with whom Botsford, J., joins, con - demeanor, his motion for required findings liminary injunction heard by Curran, J., in included offense curring) (Spina, J., dissenting) (SJC) Kris C. of not guilty should have been allowed for Superior Court. Leonard H. Kesten and Foster for the Commonwealth; Michael A. lack of sufficient evidence to prove that he Diedre Brennan Regan, both of Brody, Where a defendant was convicted of ag - Waryasz for the defendant; Mark G. Mas - had been forbidden from entering or re - Hardoon, Perkins & Kesten, for the defen - troianni, Jane Davidson Montori and Kather - gravated rape, the conviction must be re - maining on the premises by a person with dant; Dana Alan Curhan (Richard J. Hayes ine E. McMahon submitted a brief for Dis - duced to the lesser included offense of rape. lawful control of the premises. with him) for the plaintiff; Lisa A. Morrow, Commonwealth v. French (Lawyers Weekly trict Attorney for the Hampden District and Commonwealth v. Greene (Lawyers Week - Marlies Spanjaard, Isabel S. Raskin and No. 10-056-12) (19 pages) (Spina, J.) (SJC) Case others, amici curiae (Docket No. SJC-10825) ly No. 10-047-12) (3 pages) (Rescript) (SJC) Thomas A. Mela, for Children’s Law Center tried before Garsh, J., in Superior Court. James (Jan. 12, 2012). Appealed from a judgment entered by Rita of Massachusetts and others, amici curiae, A. Reidy, of Reidy Waller, on appeal for the de - Scales Koenigs, J., in District Court. Russell submitted a brief; Joanne S. Karger and fendant; David J. Gold for the commonwealth Fuller for the defendant; Karen Carlo for the Kathleen B. Boundy, for Center for Law and (Docket No. SJC-10884) (April 17, 2012). Sentencing - commonwealth (Docket No. SJC-11030) Education and another, amici curiae, sub - (March 29, 2012). Plea agreement mitted a brief (Docket No. SJC-10981) (Dec. Reckless endangerment - Where the commonwealth made a 21, 2011). charge concession as part of a plea agree - Lesser included offense ment and the judge imposed a sentence Where a defendant was charged with (1) less severe than the agreed sentence rec - DOMESTIC RELATIONS committing an assault and battery on a child ommendation, the commonwealth does ELECTIONS under fourteen years of age causing sub - not have the authority under rule 12 to re - stantial bodily injury and (2) wantonly and quire the judge to vacate the defendant’s Same-sex marriage - recklessly permitting an assault and battery guilty plea. Civil union Nomination papers Commonwealth v. Dean-Ganek (Lawyers on a child that caused the child substantial Where a political party sought to substitute Weekly No. 10-007-12) (26 pages) (Gants, J.) Where a same-sex couple married in Mas - bodily injury, a jury verdict convicting her two national candidates for the ones named (Spina, J., concurring in part and dissenting sachusetts initiated divorce proceedings, the of recklessly endangering her child should on nomination papers signed by registered in part) (SJC) Catherine Langevin Semel and marriage was void ab initio based on the fact be affirmed as a lesser included offense. voters, the Secretary of the Commonwealth Jessica M. Strasnick for the commonwealth; that one of the parties had already entered Commonwealth v. Roderiques (Lawyers did not act unlawfully by requiring the party Linda A. Harvey, of Harvey, Kleger & into a civil union in Vermont that was nev - Weekly No. 10-093-12) (23 pages) (Cordy, J.) er dissolved. to collect the required number of signatures (SJC) Cases tried before Macdonald, J., and Thomas, for the defendant; Daniel F. Conley and Kris Foster submitted a brief for District Elia-Warnken v. Elia (Lawyers Weekly No. for the substitute candidates. motion to vacate conviction heard by him. 10-126-12) (13 pages) (Ireland, C.J.) (SJC) Libertarian Association of Massachusetts, Colleen A. Tynan on appeal for the defendant; Attorney for the Suffolk District, amicus cu - riae (Docket No. SJC-10860) (Jan. 12, 2012). Question of law reported by King, J., in the et al. v. Secretary of the Commonwealth Tara L. Blackman and Kristen L. Spooner for Probate & Family Court. Nicholas J. Plante (Lawyers Weekly No. 10-103-12) (49 pages) the commonwealth (Docket No. SJC-10950) (Russell Schwartz with him) for the plaintiff; (Cordy, J.) (SJC) Case reported by Cordy, J., (June 4, 2012). Sentencing - Retroactivity - Karen L. Loewy (Bennett H. Klein with her) sitting as single justice. Andrew Palid and for the defendant; Hobart F. Popick, for Su - Matthew C. Baltay, both of Foley Hoag, for Right to counsel - Disorderly conduct san B. Apel and others, amici curiae, sub - the plaintiffs; Amy Spector for the defendant Where a defendant was sentenced to two mitted a brief (Docket No. SJC-11023) (July (Docket No. SJC-11109) (June 18, 2012). Custodial interrogation years of probation on a first offense of dis - 26, 2012). Where a defendant was convicted of two orderly conduct, the sentence was proper de - counts of rape of a child under 16 years of age spite a statutory amendment reducing the and two counts of indecent assault and battery punishment for a first offense to a fine. EMPLOYMENT on a person who has attained the age of 14 Commonwealth v. Dotson (Lawyers Week - EDUCATION years, the convictions must be vacated because ly No. 10-064-12) (8 pages) (Spina, J.) (SJC) of the admission of statements that were ob - Case tried before Desmond, J., and a motion Forum selection clause - tained in violation of his right to counsel. to correct illegal sentence heard by him. James Dover Amendment P. Vander Salm for the defendant; Zachary Wage Act Commonwealth v. Hoyt (Lawyers Weekly Where a plaintiff private college brought No. 10-181-11) (24 pages) (Lenk, J.) (SJC) Mo - Hillman for the commonwealth (Docket No. Where a plaintiff’s multi-count com - SJC-10952) (April 27, 2012). suit against a defendant town and codefen - tion to suppress heard by Ford, J., and cases dant zoning board seeking a declaration that plaint against the defendant employer was tried before Agostini, J., in Superior Court. its proposed development of residential and dismissed on the basis of a forum selec - Richard L. Goldman, of Orlen & Goldman, Sex offender – educational facilities for older adults quali - tion clause in the plaintiff’s executive em - on appeal for the defendant; Karen L. Carlo fies for protection under the Dover Amend - ployment contract, the dismissal order for the commonwealth (Docket No. SJC- Addresses - CPSL ment, a Land Court judgment for the de - must be affirmed based on this court’s 10719) (Dec. 15, 2011). Where a defendant was sentenced to life - fendants must be vacated and the matter conclusion that enforcement of the forum time parole after being convicted of failing remanded because it cannot be concluded selection clause would not deprive the to verify his sex offender registration infor - that the plaintiff “has no reasonable expec - plaintiff of the protections of the Massa - Right to remain silent mation by refusing to provide certain sec - tation” of demonstrating that the develop - chusetts Wage Act. Where (1) while being held for custodial in - ondary addresses, the conviction must be ment will primarily operate in furtherance Melia v. Zenhire, Inc. (Lawyers Weekly No. terrogation, a defendant who had not waived vacated for insufficient evidence. of educational purposes. 10-071-12) (30 pages) (Cordy, J.) (SJC) Mo - his Miranda rights shook his head from side Commonwealth v. Kateley (Lawyers Weekly Regis College v. Town of Weston, et al. tion to dismiss heard by Troy, J., in Superior to side in response to the question, “So you No. 10-032-12) (17 pages) (Ireland, C.J.) (SJC) (Lawyers Weekly No. 10-081-12) (24 pages) Court. John P. Carr (Christine Ann Faro with don’t want to speak?” and (2) the police then Case heard by Bernard, J., in District Court. Ja - (Lenk, J.) (SJC) Case heard by Sands, J., on him) for the plaintiff; Daniel S. Field, of Mor - posed further questions in response to which son Benzaken, of Benzaken & Wood, on appeal motions for summary judgment. Catherine J. gan, Brown & Joy, for the defendants; Ben - the defendant made incriminating statements, for the defendant; Mary E. Lee for the common - Savoie, of Posternak, Blankstein & Lund, for jamin G. Robbins and Martin J. Newhouse, those statements are inadmissible and thus an wealth; Beth L. Eisenberg, Radha Natarajan and the plaintiff; George X. Pucci, of Kopelman & for New England Legal Foundation, amicus order suppressing them must be affirmed. Larni S. Levy, for Committee for Public Counsel Paige, for town of Weston and another; Lisa curiae, submitted a brief (Docket No. SJC- Commonwealth v. Clarke (Lawyers Week - Services, amicus curiae, submitted a brief (Dock - C. Goodheart, of Sugarman, Rogers, Barshak 10959) (May 8, 2012). ly No. 10-010-12) (28 pages) (Lenk, J.) (SJC) et No. SJC-10905) (Feb. 24, 2012). & Cohen, for the interveners; the following Continued on page 32 Massachusetts Lawyers Weekly September 17, 2012 32 masslawyersweekly.com Cite this page 41 MLW 192

proceedings in a murder investigation, a re - ters, of Sheehan Phinney Bass & Green, for ENVIRONMENTAL mand must be ordered, with inquest report the plaintiffs; Harvey J. Wolkoff and Alfred A. JUDGES Continued from page 31 and transcript to continue to be impound - Day, both of Ropes & Gray, for Nationwide ed until at least 10 calendar days after the is - Life Insurance Company of America and oth - Confirmation hearings - Waiver - Wetlands suance of this opinion. ers; Timothy O. Eagan and John J. O’Connor, The Globe Newspaper Company, Inc., pe - both of Peabody & Arnold, for Barry G. Arm - Governor’s Council - Oath Where a judge found that a plaintiff ap - titioner (Lawyers Weekly No. 10-177-11) (21 strong; William P. Corbett Jr. for Frederick V. Where five members of the Governor’s plicant for an order of conditions did not pages) (Gants, J.) Jonathan M. Albano, of McMenimen III (Docket No. SJC-10978) (Jan. Council have asked whether the council may validly waive the statutory requirement that Bingham McCutchen, for the petitioner; Lar - 12, 2012). administer a truth-telling oath to all nominees the defendant Hingham conservation com - ry R. Tipton and Peter M. Onek for the inter - and witnesses who testify at a confirmation mission issue a decision within 21 days, the vener; Natalie S. Monroe and Todd M. Blume hearing, the SJC declines to give an answer be - judge’s conclusion was correct, as the pur - for the Attorney General; Christopher T. Claim settlement cause a “solemn occasion” is not present. ported waiver was not valid. Bavitz, for Citizen Media Law Project and Answer of the Justices to the Council Garrity v. Conservation Commission of others, amici curiae, submitted a brief (Dock - practices - Damages (Lawyers Weekly No. 10-024-12) (7 pages) Hingham (Lawyers Weekly No. 10-121-12) et No. SJC-10798) (Dec. 13, 2011). Where (1) a plaintiff received cata - (29 pages) (Botsford, J.) (SJC) Case heard by strophic injuries including permanent (SJC) (Docket No. SJC-11115) (Feb. 8, 2012). Chin, J., on motions for judgment on the paraplegia when a tractor trailer hit the rear pleadings. Lauren C. Galvin and James A. Laboratory drug tests - end of her car in January 2002, (2) at trial, Toomey, both of Murphy, Hesse, Toomey & which took place in September 2004, the Courtroom broadcasts Lehane, for the defendant; Matthew Watsky Substitute analyst plaintiff, her husband and her daughter se - Where the Norfolk District Attorney and for the plaintiff (Docket No. SJC-11012) (July Where a defendant has been convicted of cured a judgment of approximately $11.3 the chief counsel for the Committee for Pub - 16, 2012). trafficking in over 14 grams of cocaine, the million and (3) a Superior Court judge lat - lic Counsel Services have petitioned under conviction should be upheld because a sub - er found that the defendant excess insurer G.L.c. 211, §3, to prohibit the Quincy Dis - stantial risk of a miscarriage of justice was of the company to whom the truck driver trict Court judges from permitting Open - not created by the introduction of evidence was assigned, as well as the excess insurer’s Court — a public radio pilot project — to EVIDENCE from laboratory drug tests through the tes - codefendant claims administrator, had en - broadcast or record courtroom proceedings timony of a substitute analyst rather than gaged in wilful and knowing violations of (other than those occurring in the first ses - through the analyst who performed the tests. G.L.c. 93A and G.L.c. 176D both before the sion) until the Supreme Judicial Court has Drug certificate - ‘Profile’ Commonwealth v. Munoz (Lawyers Week - trial in the tort action and after judgment approved guidelines for OpenCourt opera - ly No. 10-180-11) (25 pages) (Lenk, J.) (SJC) entered in it, the damages plaintiffs are en - tion, the petition must be denied for lack of testimony regarding the Case tried before Agostini, J., in Superior Court. titled to recover on account of the defen - a showing of a violation of substantive rights. characteristics of drug users Cynthia Vincent Thomas on appeal for the de - dants’ postjudgment violation of c. 93A and District Attorney for the Norfolk District v. fendant; Karen L. Carlo for the commonwealth c. 176D must be based on the underlying Justices of the Quincy District Court (Lawyers Where a defendant was convicted of traf - (Docket No. SJC-11028) (Dec. 15, 2011). judgment in the plaintiffs’ tort action, and Weekly No. 10-142-12) (10 pages) (Botsford, ficking in cocaine with a net weight of 28 not the loss of use of the sum ultimately in - J., sitting as single justice) (Docket Nos. SJ- grams or more but less than 100 grams, re - cluded in the claims administrator’s late- 2012-0306 and 0308) (Aug. 14, 2012). fusal to submit to a police officer and negli - Medical records - Hearsay tendered settlement offer months after the gent operation of a motor vehicle, the traf - Where the judge presiding over an armed jury’s verdicts. ficking conviction must be vacated because robbery trial admitted into evidence an in - Rhodes, et al. v. AIG Domestic Claims, Inc., Judicial deliberative of the admission of a drug certificate and criminating statement by the defendant con - et al. (Lawyers Weekly No. 10-025-12) (32 profiling evidence. tained in his medical records, the evidence pages) (Botsford, J.) (SJC) Case heard by privilege Commonwealth v. Johnson (Lawyers Week - was inadmissible. Gants, J., in Superior Court. Margaret M. Where (1) a district attorney filed a com - ly No. 10-048-12) (2 pages) (Rescript) (SJC) The conviction will be affirmed, howev - Pinkham, of Pinkham Busny, M. Frederick plaint with the Commission on Judicial Brad P. Bennion for the defendant on appeal; er, because the error was not prejudicial. Conduct alleging that the petitioner, a judge, Dianne M. Dillon for the commonwealth Pritzker, of Brown Rudnick, and Daniel J. Commonwealth v. Irene (Lawyers Weekly No. had repeatedly exhibited “disregard for the (Docket No. SJC-11051) (April 6, 2012). Brown for the plaintiffs; John P. Ryan, of 10-106-12) (31 pages) (Duffly, J.) (SJC) Motion Sloane & Walsh, and Anthony R. Zelle, of law, lack of impartiality, and bias against the to suppress heard by Whitehead, J., and case Zelle, McDonough & Cohen, for AIG Do - Commonwealth” in violation of the Code of Experts - SDP tried before him. Jennifer H. O’Brien (Dana mestic Claims, Inc., and another; Linda L. Judicial Conduct and (2) the petitioner Alan Curhan with her) for the defendant; Ken - Morkan, of Connecticut (Gregory P. Varga, of moved to quash a subpoena that called on Where a petitioner committed as a sexu - neth E. Steinfield for the commonwealth; Dana Robinson & Cole, with her) for Zurich Amer - him to produce a broad set of documents, ally dangerous person filed a petition for ex - Alan Curhan submitted a brief for Committee ican Insurance Company; Michael F. Aylward the subpoena must be revised to protect the amination and discharge from the Massa - for Public Counsel Services, amicus curiae and Richard R. Eurich, both of Morrison, Ma - petitioner from revealing his deliberative chusetts Treatment Center, the written (Docket No. SJC-10882) (June 26, 2012). honey & Miller, for American Insurance As - thought processes. reports of expert witnesses retained by him sociation, amicus curiae, submitted a brief In the Matter of the Enforcement of a Sub - should have been admitted. (Docket No. SJC-10911) (Feb. 10, 2012). poena (Lawyers Weekly No. 10-139-12) (29 Santos, petitioner (Lawyers Weekly No. 10- Privilege - Psychotherapist pages) (Cordy, J.) (SJC) Case reported by 030-12) (16 pages) (Botsford, J.) (SJC) Case Where a jury found a defendant guilty of Spina, J., sitting as single justice. Michael B. tried before Giles, J., in Superior Court. Bren - armed assault with intent to murder, aggra - Flood - Anticoncurrent Keating, David A. Kluft and Daniel L. Mc - dan J. Frigault for the commonwealth; vated assault and battery by means of a dan - Fadden, all of Foley Hoag, for the petitioner; Michael J. Fellows for the petitioner (Docket gerous weapon, assault and battery by means cause provision J. William Codinha, of Nixon Peabody, Gillian No. SJC-11007) (Feb. 22, 2012). of a dangerous weapon, arson of a dwelling Where a Superior Court judge concluded, E. Pearson, Devon A. Haft, of Nixon Peabody, and armed home invasion, the convictions as a matter of law, that an insurance policy and D. Danielle Pelot, of Nixon Peabody, for Gunshot residue testing - of armed assault with intent to murder must did not cover flood damage resulting from a the Commission on Judicial Conduct; the fol - be vacated because of the admission of priv - clogged parking lot drain, the judgment for lowing submitted briefs for amici curiae: J. Murder ileged statements the defendant made to a the insurer must be affirmed under the pol - Owen Todd and Michael Thad Allen, both of icy’s “anticoncurrent cause” provision. Todd & Weld, and Nancy Gertner for Mar - Where a jury convicted a defendant of psychiatrist. Surabian Realty Co., Inc. v. NGM Insur - garet A. Burnham and others; Gretchen S. Sil - felony-murder in the first degree, armed rob - Commonwealth v. Tran (Lawyers Weekly ance Company (Lawyers Weekly No. 10-115- ver, of New York, Barry S. Pollack, Joshua L. bery, possession of a firearm without a No. 10-127-12) (33 pages) (Duffly, J.) (SJC) 12) (13 pages) (Cordy, J.) (SJC) Case heard by Solomon and Phillip Rakhunov, all of Sulli - firearm identification (FID) card and pos - Cases tried before Gaziano, J., in Superior Agnes, J., on motions for summary judgment. van & Worcester, and Peter B. Krupp, of Lurie session of ammunition without an FID card, Court. Elizabeth Caddick for the defendant; Benjamin C. Rudolf and Roy A. Bourgeois, & Krupp, for Massachusetts Association of the armed robbery conviction must be va - Macy Lee and David A. Deakin for the com - monwealth; Michael T. Porter, Christopher J. both of Bourgeois White, for the plaintiff; Criminal Defense Lawyers; Thomas J. Carey cated as duplicative because it was the pred - Jr., of Collora, LLP, and Martin W. Healy for icate felony for the defendant’s felony-mur - Anasoulis and James T. Hilliard, all of Con - David F. Hassett and Scott T. Ober, both of nor & Hilliard, submitted a brief for Massa - Hassett & Donnelly, for the defendant (Dock - Massachusetts Bar Association; Joseph D. Ear - der conviction. ly Jr., Michael O’Keefe, David F. Capeless, C. In upholding the murder verdict, the SJC chusetts Psychiatry Society, Inc., amicus curi - et No. SJC-11060) (July 12, 2012). ae (Docket No. SJC-10853) (July 26, 2012). Samuel Sutter, Jonathan W. Blodgett, Mark rejects the defendant’s assertion that evidence G. Mastroianni, Gerald T. Leone Jr., Michael regarding gunshot residue testing conducted Surface water - W. Morrissey, David E. Sullivan, Timothy J. on an article of clothing found near the crime Cruz and Daniel F. Conley for Massachusetts scene amounted to “junk science.” Anticoncurrent cause District Attorneys Association (Docket No. Commonwealth v. Johnson (Lawyers Week - INSURANCE SJC-11117) (Aug. 9, 2012). ly No. 10-135-12) (33 pages) (Cordy, J.) (SJC) provision Motion to suppress heard by Feeley, J., and cas - Where a defendant insurance company es tried before Gaziano, J., in Superior Court. Agent - G.L.c. 93A was awarded summary judgment on a plain - Recusal - Greg T. Schubert on appeal for the defendant; Where plaintiffs introduced evidence that tiff homeowner’s claim for coverage, the Zachary Hillman and Gretchen Lundgren for the defendant insurance agent misrepre - judgment was proper in light of the policy’s Extraordinary relief the commonwealth (Docket No. SJC-10835) sented the benefits due under a life insurance “surface water” exclusion. Where plaintiff home purchasers filed a (Aug. 2, 2012). policy, that was a sufficient basis for holding Boazova v. Safety Insurance Company G.L.c. 211, §3 petition asking a single justice to the defendant liable under G.L.c. 93A. (Lawyers Weekly No. 10-087-12) (21 pages) remove the trial judge from the underlying Passatempo, et al. v. McMenimen, et al. (Spina, J.) (SJC) Case heard by Curran, J., on proceeding, the single justice did not err in Inquest - Impoundment (Lawyers Weekly No. 10-008-12) (41 pages) motions for summary judgment. Richard denying the petition on the ground that the Where a Superior Court judge denied a (Lenk, J.) (SJC) Motion for summary judg - Moynihan for the defendant; Daniel F. Mc - plaintiffs had adequate alternative remedies. newspaper’s request to inspect and copy an ment heard by Gants, J., and case heard by Carthy, of Lerman & McCarthy, for the plain - Culley, et al. v. Cato, et al. (Lawyers Week - inquest report and a transcript of the inquest Hinkle, J., in Superior Court. Charles M. Wa - tiff (Docket No. SJC-10908) (May 29, 2012). ly No. 10-140-11) (4 pages) (Rescript) (SJC) September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 193 masslawyersweekly.com 33

Petition heard by Botsford, J., sitting as single (Botsford, J.) (SJC) Motion to suppress heard liminary injunction heard by McIntyre, J., in justice. Michael C. McLaughlin for the plain - by Harris, J., in Juvenile Court. Kathleen Ce - Superior Court. Richard E. Briansky, of Prince, Suspension - Refusal tiffs; Mark B. Johnson, of Johnson & Boren - lio for the commonwealth; Peter M. Onek for Lobel, Glovsky & Tye, and Joseph P. Calan - Where a plaintiff’s driver’s license was sus - stein, for Dante A. Mallegni and another; the juvenile; Patrick Murphy and Sarah drelli, of Kenney & Sams, for the defendants; pended for three years on account of his re - Christopher Maffucci, of Casner & Edwards, Rothenberg, of Proskauer Rose, submitted a Samuel Levine, David A. Grossman and H. fusal to take a breath test, that was improp - for Paula A. Spinazola and another (Docket brief for Parent/Professional Advocacy League Esme Caramello for the plaintiff; the follow - er, as the plaintiff’s admission to sufficient No. SJC-10913) (Sept. 21, 2011). and others, amici curiae, (Docket No. SJC- ing submitted briefs for amici curiae: Adam J. facts for a finding of guilty was not a con - 11021) (May 24, 2012). Levitin, pro se; Max Weinstein, Stuart Ross - viction as required by G.L.c. 90, §24(1)(f)(1). man and Paul Collier for WilmerHale Legal Souza v. Registrar of Motor Vehicles, et al. Services Center and others; Marie McDonnell, (Lawyers Weekly No. 10-077-12) (14 pages) JURY AND JURORS Transfer hearing - pro se; Diane C. Tillotson, of Hemenway & (Botsford, J.) (SJC) Case heard by Donovan, J., Barnes, Robert J. Moriarty Jr., of Marsh, Mo - on a motion for judgment on the pleadings. Indictment riarty, Ontell & Golder, & Thomas O. Mori - Dana Alan Curhan (Joseph P. Cataldo with Post-verdict inquiry Where a judge dismissed youthful offender arty, of Marcus, Errico, Emmer & Brooks, for him) for the plaintiff; David R. Marks for the de - indictments against an adult for offenses al - Real Estate Bar Association and another; John fendants; Brian E. Simoneau, of Timothy Burke Where a defendant who was convicted of leged to have been committed when he was a L. O’Brien Jr., pro se; Steven A. Ablitt and James Law Office, and Peter B. Krupp, of Lurie & operating a motor vehicle while under the juvenile, the dismissal order was proper, as the L. Rogal for Ablitt Scofield, P.C.; Mark B. John - Krupp, submitted a brief for Massachusetts As - influence of alcohol moved for post-verdict defendant was entitled to a transfer hearing. son and Michael A. Klass, both of Johnson & sociation of Criminal Defense Lawyers, amicus inquiry of the jurors, a remand is necessary Commonwealth v. Nanny (Lawyers Week - Borenstein, for American Land Title Associa - curiae (Docket No. SJC-11123) (May 17, 2012). for further inquiry into the basis for the de - ly No. 10-123-12) (14 pages) (Ireland, C.J.) tion; Richard A. Oetheimer, of Goodwin Proc - fendant’s request for a post-verdict inquiry (SJC) Motion to dismiss heard by Craven, J., in ter, for Mortgage Bankers Association; Suc - of the jurors and, in particular, the role Juvenile Court. Kris C. Foster and Brooke C. hand Reddy Pingli, pro se; Katherine played by the defendant and his friend in Watson for the commonwealth; William S. McDonough, pro se; Robert P. Marley, pro se; MUNICIPAL contacting a juror. Smith for the defendant; Rebecca A. Jacobstein, Howard N. Cayne and David D. Fauvre, of the Commonwealth v. Bresnahan (Lawyers for Martin Carr, amicus curiae, submitted a District of Columbia, and Asim Varma and Weekly No. 10-117-12) (27 pages) (Botsford, brief (Docket No. SJC-10994) (July 16, 2012). Douglas M. Humphrey for Federal Housing Bidding - Investigation J.) (SJC) Case tried before Macy, J., and fol - Finance Agency; Robert Napolitano, pro se Where a defendant town, in considering lowing a stay of appeal to allow for postver - (Docket No. SJC-11041) (June 22, 2012). dict jury inquiry, a motion for a new trial bids for the construction of a new police sta - heard by Greco, J., in District Court. Russell tion, investigated whether a plaintiff was a re - W. Fuller for the defendant; Thomas G. Shack LICENSES AND PERMITS ‘Try title’ action - sponsible bidder, the town’s investigation was III for the commonwealth (Docket No. SJC- not legally restricted to materials compiled as 11003) (July 13, 2012). Dentist - Federal standards Foreclosure sale part of the Department of Capital Asset Man - Where a “try title” action was dismissed agement’s contractor certification process. Where the Board of Registration in Den - for lack of standing, the dismissal should Barr Incorporated v. Town of Holliston tistry suspended a plaintiff’s license to prac - have been without prejudice. (Lawyers Weekly No. 10-066-12) (13 pages) JUVENILE tice dentistry in Massachusetts, the suspen - Bevilacqua v. Rodriguez (Lawyers Week - (Lenk, J.) (SJC) Case heard by Muse, J., on a sion must be vacated to the extent that it was ly No. 10-155-11) (30 pages) (Spina, J.) motion for summary judgment and reported based on a finding that the plaintiff failed to (SJC) Case heard by Long, J., in Land Court. by him. Michael P. Sams, of Kenney & Sams, Continuance comply with federal standards. Jeffrey B. Loeb and David Glod, both of Rich for the plaintiff; David J. Doneski, of Kopel - Chadwick v. Board of Registration in Den - May, for the plaintiff; Richard A. Oetheimer man & Paige, for the defendant; James L. without a finding tistry (Lawyers Weekly No. 10-175-11) (37 and Natalie F. Langlois, both of Goodwin Rudolph, of Rudolph Friedmann, and Robert E. Curtis Jr. submitted a brief for Associated Where a Juvenile Court judge decided to pages) (Cordy, J.) (SJC) Case reported by Procter, for Mortgage Bankers Association; Builders and Contractors, Inc., amicus curiae; continue a delinquency case without a find - Gants, J., sitting as single justice. Joel Rosen Max Weinstein for WilmerHale Legal Serv - Martha Coakley and Karla E. Zarbo submit - ing and place the juvenile under the super - for the plaintiff; Amy Spector for the defen - ices Center of Harvard Law School; John M. ted a brief for the Attorney General and an - vision of the probation department, that was dant; Natalina A. Servizio, pro se, amicus cu - Stephan and Amber Anderson Villa for the other, amici curiae (Docket No. SJC-10899) statutorily permissible. riae, submitted a brief (Docket No. SJC- commonwealth; the following submitted (May 3, 2012). Commonwealth v. Magnus M., a juvenile 10831) (Dec. 8, 2011). briefs for amici curiae: Mark B. Johnson, of (Lawyers Weekly No. 10-022-12) (15 pages) Johnson & Borenstein, for American Land (Cordy, J.) (SJC) Case reported by Spina, J., Title Association; Adam J. Levitin, of the sitting as single justice. Joseph A. Pieropan for Indefinite suspension - District of Columbia, Christopher L. Peter - Competitive bidding - the commonwealth; Craig R. Bartolomei Stay - Certiorari son, of Utah, John A.E. Pottow, of Michigan, Energy and Katherine Porter, pro se; Edward (Amy E. Winston with him) for the juvenile; Where a petitioner has requested review Where a school district entered into a Rainen, Carrie B. Rainen and Ward P. Gra - Barbara Kaban, Erica Cushner and Gloria of a Board of Registration in Medicine or - “price watch” agreement with an energy ham for Massachusetts Association of Bank Tan, for Committee for Public Counsel Serv - der denying her request to stay the indefi - services broker, that agreement was not sub - Counsel, Inc. (Docket No. SJC-10880) (Oct. ices, amicus curiae, submitted a brief (Dock - nite suspension of her medical license, re - ject to the competitive bidding procedures 18, 2011). et No. SJC-10875) (Feb. 6, 2012). view may be obtained before a single justice contained in G.L.c. 30B. of the Supreme Judicial Court. The SJC answers in the affirmative a cer - Hoffer v. Board of Registration in Medicine tified question asking whether a contract be - Dismissal - Discovery (Lawyers Weekly No. 10-021-12) (12 pages) tween a school district and an energy bro - Where a Juvenile Court judge dismissed (Lenk, J.) (SJC) Case reported by Spina, J., sit - ker for the procurement of contracts for two youthful offender indictments charging ting as single justice. Amy Spector, for the de - MOTOR VEHICLES electricity is exempt from the requirements a juvenile with statutory rape, the dismissal fendant, submitted a brief (Docket No. SJC- of G.L.c. 30B as a contract for “energy or en - should be affirmed because of the com - 10850) (Feb. 3, 2012). ergy related services” pursuant to G.L.c. 30B, monwealth’s failure to comply with discov - Off-duty out-of-town §1(b)(33). ery orders. police officer Northeast Energy Partners, LLC v. Mahar Regional School District (Lawyers Weekly No. Commonwealth v. Washington W., a juve - Where (1) a defendant’s automobile col - 10-114-12) (22 pages) (Duffly, J.) (SJC) Kelly nile (Lawyers Weekly No. 10-075-12) (24 lided in Woburn with that of an off-duty MORTGAGES T. Gonzalez, of Long & DiPietro, for the de - pages) (Gants, J.) (SJC) Motions to dismiss and Somerville police officer, (2) the officer kept fendant; Scott A. Birnbaum and Anne Marie for reconsideration heard by McCallum, J., in the defendant from leaving the scene until Longobucco, both of Birnbaum & Godkin, for Juvenile Court. Alexei Tymoczko and David the Woburn police arrived, (3) the defendant Foreclosure - Authorized the plaintiff; Gordon P. Katz and Jessica A. Omiunu for the Commonwealth; Patricia was later indicted for operating while under Ragosta Early, both of Holland & Knight, sub - L. Garin and Kenneth M. Resnik, both of Stern, agent of note holder the influence of intoxicating liquor (seventh mitted a brief for Amesbury Housing Au - Shapiro, Weissberg & Garin, for the juvenile Where a Superior Court judge found a or subsequent offense), operating with a li - thority and others, amici curiae (Docket No. (Docket No. SJC-10970) (May 10, 2012). plaintiff borrower likely to succeed on her cense suspended for a prior OUI and oper - SJC-11024) (July 9, 2012). claim that for a valid foreclosure to occur, ating with a revoked license and (4) the de - both the mortgage and the underlying note fendant filed a motion to suppress all Student identification card must be held by the foreclosing party, the evidence obtained as a result of the Woburn Where (1) a juvenile was charged with judge’s ruling must be reversed, as the plain - encounter, a Superior Court order denying Fee - Tax - Sewer access delinquency by reason of armed robbery, tiff’s allegation on information and belief that the suppression motion must be affirmed Where a Superior Court judge found that (2) he was identified as the robber by the defendant was not authorized by the note on the ground that the off-duty officer’s ac - a monetary charge imposed on the plaintiff means of a photograph that the police had holder to carry out the foreclosure sale did tions fell short of being an extraterritorial developers for access to the defendant town’s obtained from his public high school and not offer an adequate factual basis to support arrest of the defendant. sewer system was an unlawful tax, the judg - claimed to have included in a photograph - the preliminary injunction that was issued. Commonwealth v. Limone (Lawyers Week - ment must be reversed because the charge ic array shown to the alleged victim and (3) In issuing this decision, the court con - ly No. 10-164-11) (15 pages) (Spina, J.) (SJC) in this case has the requisite characteristics a judge granted the juvenile’s motion to cludes that the term “mortgagee” as used in Motion to suppress heard by Kottmyer, J., and of a fee rather than an impermissible tax. suppress the identification, the suppression Massachusetts statutory law refers to “the cases tried before her. Kevin J. Curtin (Patri - Denver Street LLC v. Town of Saugus (and order must be vacated and a remand or - person or entity then holding the mortgage cia Gould with him) for the commonwealth; three companion cases) (Lawyers Weekly No. dered because of assumptions made by the and also either holding the mortgage note Robert H. D’Auria for the defendant; John M. 10-108-12) (26 pages) (Ireland, C.J.) (SJC) judge concerning the juvenile’s expectation or acting on behalf of the note holder.” Collins and John Ansbach for Massachusetts Cases heard by McIntyre, J., in Superior Court. of privacy. Eaton v. Federal National Mortgage Asso - Chiefs of Police Association, Inc., and anoth - Ira H. Zaleznik, of Lawson & Weitzen, for the Commonwealth v. Zachary Z., a juvenile ciation, et al. (Lawyers Weekly No. 10-104-12) er, amici curiae, submitted a brief (Docket No. town of Saugus; James R. Senior for Denver (Lawyers Weekly No. 10-086-12) (8 pages) (34 pages) (Botsford, J.) (SJC) Motion for pre - SJC-10804) (Nov. 18, 2011). Continued on page 34 Massachusetts Lawyers Weekly September 17, 2012 34 masslawyersweekly.com Cite this page 41 MLW 194

Coakley and Sookyoung Shin for the com - contribution cross-claims against the hotel’s MUNICIPAL monwealth; Shanna Cleveland, Peter Shelley architect and the consultant retained to pro - Support - Income Continued from page 33 and Margaret Van Deusen for Conservation vide electrical engineering services, an award equalization Law Foundation and another (Docket No. of summary judgment for the architect and Where a judge ordered a father to pay child Street LLC and others; the following submit - SJC-10852) (Jan. 10, 2012). consultant must be affirmed as to indemnifi - support, the order must be vacated to the ex - ted briefs for amici curiae: John L. Davenport cation but reversed as to contribution. tent that it is based on income equalization. for Conservation Law Foundation, Inc.; LeBlanc v. Logan Hilton Joint Venture, et M.C. v. T.K. (Lawyers Weekly No. 10-143-12) Martha Coakley and Louis Dundin for the ‘Quinn Bill’ - al. (Lawyers Weekly No. 10-148-12) (25 (27 pages) (Duffly, J.) (SJC) Case heard by Ka - commonwealth; Ben Robbins and Martin J. pages) (Gants, J.) (SJC) Motion for summa - Newhouse for New England Legal Founda - Reimbursement plan, J., in the Probate & Family Court. David ry judgment heard by Cratsley, J.; motions M. Friedman, of Rackemann, Sawyer & Brew - tion and another (Docket No. SJC-10927) Where the city of Boston reduced career for reconsideration also heard by him; and (June 29, 2012). incentive pay for police officers further - ster, for the father; Brian J. Kelly for the mother entry of separate and final judgment ordered (Docket No. SJC-10910) (Aug. 15, 2012). ing their education in the field of police by him. Kenneth B. Walton and Patricia B. Fire prevention - work, the city acted permissibly under Gary, both of Donovan Hatem, for Cosenti - G.L.c. 41, §108L. ni Associates-MA, LLP; Matthew M. Voluntary acknowledgment Preemption Adams v. City of Boston (and two com - O’Leary and Jay S. Gregory, both of LeClair - panion cases) (Lawyers Weekly No. 10-034- Ryan, for Cambridge Seven Associates, Inc.; of parentage Where the city of Springfield enacted an 12) (21 pages) (Spina, J.) (SJC) Bryan C. Curtis L.S. Carpenter, of Morrison Mahoney, Where (1) a man (R.R.) living with a ordinance mandating installation in build - Decker, of Sandulli Grace, and Leah M. Bar - for Logan Hilton Joint Venture; William P. woman who was married to another (a fact ings of a single type of fire protective sig - rault, of Pyle Rome Ehrenberg, for Daniel Rose, of Tucker, Heifetz & Saltzman, for unknown to R.R.) executed a voluntary ac - naling system and automatic fire detection Adams and others; Kay H. Hodge and John Broadway Electrical Co., Inc. (Docket No. knowledgment of parentage, (2) genetic system, the ordinance is preempted by the M. Simon, both of Stoneman, Chandler & SJC-11008) (Aug. 30, 2012). marker testing later revealed that R.R. was State Building Code, 780 Code Mass. Regs. Miller, for the city of Boston; the following not the biological father of the woman’s §§101.00 (2010), which permits the instal - submitted briefs for amici curiae: William daughter and (3) a judge in the Probate & lation of any one of four types of approved J. Johnson, of Virginia, and Timothy R. King Family Court eventually allowed the daugh - systems. for Massachusetts Coalition of Police, IUPA, Social host - ‘BYOB’ party ter’s motion to vacate the voluntary ac - St. George Greek Orthodox Cathedral of AFL-CIO, and another; Philip G. Boyle, Where a 19-year-old defendant was sued knowledgment of parentage and a judgment Western Massachusetts, Inc. v. Fire Depart - Laurence J. Donoghue, Peter J. Mee and Col - by a plaintiff who was injured by a motor ve - of support, custody and visitation that was ment of Springfield, et al. (Lawyers Weekly in R. Boyle, all of Morgan, Brown & Joy, for hicle driver who had been drinking alcohol based on the voluntary acknowledgment of No. 10-067-12) (17 pages) (Lenk, J.) (SJC) City Solicitors and Town Counsel Associa - that he himself had brought to a party host - parentage, the judge acted permissibly even Case heard by Moriarty, J., on a motion for tion; Philip Collins, of Collins, Loughran & ed by the defendant, a judgment for the de - though the motion was filed more than a summary judgment. Thomas D. Moore and Peloquin, for Massachusetts Municipal As - fendant and her codefendant father must be year after the voluntary acknowledgment of Edward M. Pikula for the defendants; John sociation (Docket No. SJC-10861) (March affirmed given that neither defendant sup - parentage was executed. H. Fitz-Gibbon and John J. Green Jr., both of 7, 2012). plied alcohol to the party guests. D.H. v. R.R. (Lawyers Weekly No. 10-046- Green, Miles, Lipton & Fitz-Gibbon, for the Juliano, et al. v. Simpson, et al. (Lawyers 12) (13 pages) (Gants, J.) (SJC) Motion to va - plaintiff; the following submitted briefs for Weekly No. 10-029-12) (32 pages) (Duffly, J.) cate voluntary acknowledgment of paternity amici curiae: John J. Clifford for Fire Chiefs Recreational use statute (Botsford, J., concurring in the judgment) Association of Massachusetts; Martha Coak - heard by King, J., in Probate & Family Court. Where the plaintiff was injured during a (Gants, J. (concurring in the judgment, with ley and Peter Sacks for State Board of Build - James B. Stanton for the father; Brian R. Paris - softball game on a public field owned by the whom Ireland, C.J., joins) (SJC) Motion for ing Regulations and Standards; John er for Department of Children & Families; city of Newton (city), an Appeals Court de - partial summary judgment heard by Dono - Pagliaro and Martin J. Newhouse for New Dorothy Meyer Storrow for the child; Pauline cision denying summary judgment for the van, J., and dismissal of certain claims and England Legal Foundation and another Quirion & Christina Paradiso, for Children’s city must be upheld, as the city was not im - entry of final judgment ordered by her. (Docket No. SJC-10973) (May 4, 2012). Law Center of Massachusetts and others, am - mune from suit pursuant to the recreation - Richard P. Campbell, of Campbell, Campbell, ici curiae, submitted a brief (Docket No. SJC- al use statute (G.L.c. 21, §17C). Edwards & Conroy, for the plaintiffs; Robert 10971) (March 28, 2012). Landfill - Standing Marcus v. City of Newton (Lawyers Week - P. Powers and Andre A. Sansoucy, both of ly No. 10-069 -12) (15 pages) (Botsford, J.) Melick, Porter & Shea, for the defendants; the Where plaintiffs were allowed to file no - (SJC) Motion for partial summary judgment following submitted briefs for amici curiae: tice of appeal late, that was improper under heard by MacLeod-Mancuso, J., in Superior Andrew M. Abraham, of Baker & Abraham, Rule 4(a) of the Massachusetts Rules of Civ - Court. Maura E. O’Keefe for the defendant; Thomas J. Carey Jr. and J. Michael Conley, of PUBLIC UTILITIES il Procedure. Joan S. Amon for the plaintiff; John J. Davis Kenney & Conley, for Massachusetts Acade - It is further concluded that the plaintiffs and Michael Leedberg, both of Pierce, Davis my of Trial Attorneys; Mark W. Shaughnessy, lack standing to challenge the Southbridge Cape wind project - & Perritano, and Thomas J. Urbelis, of Urbelis Nicholas B. Kosiavelon and Jeffrey E. Dolan, board of health’s “minor modification” to the & Fieldsteel, submitted a brief for City Solic - all of Boyle, Shaughnessy & Campo, for Motion to reopen record site assignment for an existing landfill and itors and Town Counsel Association, amicus related processing facility. Matthew Dusseault (Docket No. SJC-10843) Where the Department of Public Utilities curiae; Andrew M. Abraham, of Baker & (Feb. 21, 2012). Board of Health of Sturbridge, et al. v. Abraham, J. Michael Conley, of Kenney & denied the third motion filed by the Alliance Board of Health of Southbridge, et al. Conley, Thomas J. Carey Jr. and Thomas R. to Protect Nantucket Sound, Inc. to reopen (Lawyers Weekly No. 10-004-12) (23 pages) Murphy, submitted a brief for Massachusetts the administrative record in a proceeding (Botsford, J.) (SJC) motion to dismiss was Academy of Trial Attorneys, amicus curiae involving Cape Wind Associates, LLC, no heard by Leila R. Kern, J., and the case was (Docket No. SJC-11006) (May 7, 2012). abuse of discretion was committed. heard by Janet Kenton-Walker, J., on a mo - PARENT AND CHILD Alliance to Protect Nantucket Sound, Inc. tion for judgment on the pleadings. Kirstie L. v. Department of Public Utilities, et al. Pecci for 28 ten-citizen groups; Robert C. Removal of city councilor (Lawyers Weekly No. 10-184-11) (11 pages) Kirsch, of Wilmer, Cutler, Pickering, Hale & G.L.c. 211, §3 - Contempt (Botsford, J.) (SJC) Evan T. Lawson, of Law - Where the Boston City Council voted to Dorr, and Sarah Turano-Flores, of Nutter, Mc - Where the father of two children filed a pe - son & Weitzen, Glenn S. Benson, of the Dis - remove a city councillor pursuant to Rule Clennen & Fish, for Southbridge Recycling tition for relief under G.L.c. 211, §3, after a trict of Columbia, and Michele A. Hunton, of 40A of the Rules of the Boston City Coun - and Disposal Park, Inc., and another; the fol - judge failed to enter a judgment on a complaint Lawson & Weitzen, for the plaintiff; Kenneth cil, the City Council’s use of Rule 40A was lowing submitted briefs for amici curiae: for contempt that he had filed against the chil - W. Salinger for the defendant; David S. Rosen - not authorized given the fact that the coun - Christopher D. Ahlers, of Vermont, for Toxi - dren’s mother, extraordinary relief was not zweig and Erika J. Hafner, both of Keegan, cilor had not yet been sentenced. cs Action Center; Thomas A. Mackie, of warranted given that the father had an ade - Werlin, for the interveners (Docket No. SJC- Turner, et al. v. City of Boston, et al. Mackie Shea O’Brien, for National Solid quate alternative remedy available to him, 11000) (Dec. 28, 2011). (Lawyers Weekly No. 10-101-12) (18 pages) Wastes Management Association; Martha namely, a motion in the trial court for entry of (Botsford, J.) (SJC) Certification of a ques - final judgment on his complaint for contempt. tion of law by the U.S. District Court for the Cape wind project - PPA District of Massachusetts; Chester Darling G.G., petitioner (Lawyers Weekly No. 10- for the plaintiffs; Lisa A. Skehill Maki for the 061-12) (2 pages) (Rescript) (SJC) (Docket No. Where the Department of Public Utilities defendants (Docket No. SJC-10907) (June 15, SJC-11146) (April 19, 2012). approved a power purchase agreement en - 2012). tered into by Cape Wind Associates, LLC, that decision should be upheld, as the agreement Kidnapping does not violate the commerce clause of the Where an indictment under the parental U.S. Constitution, the record contains suffi - kidnapping statute was dismissed by a Su - cient evidence for a reasonable person to NEGLIGENCE perior Court judge, the dismissal order must conclude that the benefits of the agreement be vacated, as the commonwealth may rely outweigh its costs, the department did not Looking for on a valid statute, G.L.c. 209C, §10(c), to es - err in finding that the agreement is in the tablish that the defendant acted without law - public interest and the department permis - Contribution - sibly allowed individual negotiations rather ful authority in taking his 5-year-old non - the latest than competitive bidding. Indemnification marital son. Alliance to Protect Nantucket Sound, Inc., Commonwealth v. Gonzalez (Lawyers Week - Where (1) a civil suit was brought on behalf et al. v. Department of Public Utilities, et al. decisions? of an electrician who was killed by electrocu - ly No. 10-098-12) (17 pages) (Lenk, J.) (SJC) Mo - (Lawyers Weekly No. 10-183-11) (37 pages) tion to dismiss heard by Lu, J., in Superior Court. tion while attempting to repair an electrical (Botsford, J.) (SJC) Evan T. Lawson, of Law - transformer at a hotel and (2) the hotel own - Catherine Langevin Semel for the common - son & Weitzen, Glenn S. Benson, of the Dis - Go to lwopinions.com er and the construction subcontractor for elec - wealth; Russell Sobelman for the defendant trict of Columbia, and Michele A. Hunton, of trical services asserted indemnification and (Docket No. SJC-11064) (June 13, 2012). Lawson & Weitzen, for Alliance to Protect September 17, 2012 Massachusetts Lawyers Weekly Cite this page 41 MLW 195 masslawyersweekly.com 35

Nantucket Sound, Inc.; Richard A. Kanoff, of Weekly No. 10-102-12) (21 pages) (Gants, J.) trieved drugs from between his buttocks con - Murtha Cullina, for New England Power Gen - (SJC) Case heard by Piper, J., in Land Court. stituted an unreasonable strip search on ac - TAXATION erators Association, Inc.; Robert A. Rio (Robert Bruce W. Edmands, of Lawson & Weitzen, for count of the location of the search and the R. Ruddock, of Smith & Ruddock, with him) the plaintiffs; Thomas M. Frisardi, of Davis, manner in which it was conducted. for Associated Industries of Massachusetts; of Malm & D’Agostine, for Lucy Clark and Commonwealth v. Morales (Lawyers Week - Charitable exemption - Kenneth W. Salinger for the defendant; David others; Christopher M. Morrison, of Jones ly No. 10-088-12) (19 pages) (Ireland, C.J.) Foundation - Public S. Rosenzweig and Erika J. Hafner, both of Kee - Day, for Robert Bednarik and others; the fol - (Cordy, J., with whom Gants, J., joins, con - gan, Werlin, for Massachusetts Electric Com - lowing were present but did not argue: Ed - curring) (SJC) Motion to suppress heard by university pany and others; Robert M. Buchanan Jr. and ward A. Gottlieb for Joan F. Fox; Lois M. Chernoff, J., in Superior Court. Melissa Weis - Where a public charitable foundation, Nellie E. Staley, both of Choate, Hall & Stew - Farmer, of Garnick & Scudder, for Philip P. gold Johnsen for the commonwealth; Peter M. which has been operating exclusively for art, for TransCanada Power Marketing Ltd., Mueller III and another; Andrew M. Higgins, Onek for the defendant (Docket No. SJC- the benefit of a public university, owns submitted a brief; Susan M. Reid, Matthew F. of Casner & Edwards, for Susan B. Cabot; 10982) (May 29, 2012). properties that are occupied and used in Pawa, Katherine Kennedy and Brandi Colan - Paul D. Kiernan, pro se (Docket No. SJC- part by the foundation but in larger part by der, for Conservation Law Foundation and 10985) (June 15, 2012). the public university, the foundation is en - others, submitted a brief (Docket No. SJC- Warrant affidavit - Rape titled to a charitable exemption from real 10934) (Dec. 28, 2011). Where a District Court judge released from estate taxation. impoundment a redacted version of a search Bridgewater State University Foundation v. RETIREMENT warrant affidavit containing “reports of rape,” Board of Assessors of Bridgewater (Lawyers Electric rates - the judge’s order must be affirmed, as (1) Weekly No. 10-137-12) (12 pages) (Botsford, J.) Bad debt costs G.L.c. 41, §97D, does not apply to search war - (SJC) Appealed from a decision of the Appellate Judge - Accidental disability rant affidavits and (2) the judge did not err in Tax Board. Michael R. Coppock, of Rubin & Where (1) an electric company filed a pe - finding that there was no good cause to con - Rudman, for the taxpayer; Mary C. Butler, of tition with the Department of Public Utili - retirement benefits tinue the order of impoundment. Clark, Balboni & Gildea, for board of assessors ties, through which it sought to begin re - Where the Contributory Retirement Ap - Commonwealth, et al. v. George W. Prescott of Bridgewater; Deirdre Heatwole, Kenneth A. covery of its supply-related bad debt costs peal Board upheld a denial of a Superior Publishing Company, LLC, et al. (Lawyers Tashjy, Richard M. Bluestein, of Krokidas & through its supply rates rather than, as be - Court judge’s application for accidental dis - Weekly No. 10-145-12) (23 pages) (Duffly, J.) Bluestein, Janet S. Lundberg, of Krokidas & fore, through its distribution rates and (2) ability retirement benefits pursuant to G.L.c. (SJC) Case reported by Lenk, J., sitting as sin - Bluestein, and Jonathan A. Scharf, of Krokidas the department conditioned its approval of 32, §7, the board did not commit any legal or gle justice. Andrew DiCarlo Berman for the & Bluestein, submitted a brief for University of the petition on a reduction in the electric factual error in concluding that the judge commonwealth; Peter F. Carr II and Char - Massachusetts and others, amici curiae (Dock - company’s distribution rates, a remand is failed to establish that the personal injury ren - lotte L. Bednar, both of Eckert, Seamans, et No. SJC-11031) (Aug. 8, 2012). necessary because the department has failed dering him unable to perform his job was sus - Cherin & Mellott, for William O’Connell; to provide an adequate statement of its rea - tained while in the performance of his duties. Michael J. Grygiel, of New York (Zachary C. sons for imposing the condition. Murphy v. Contributory Retirement Appeal Kleinsasser, of Greenberg Traurig, with him) NSTAR Electric Company v. Department Board, et al. (Lawyers Weekly No. 10-149-12) for George W. Prescott Publishing Company, TORT of Public Utilities (Lawyers Weekly No. 10- (31 pages) (Spina, J.) (SJC) James E. O’Con - LLC; Peter J. Caruso submitted a brief for 095-12) (28 pages) (Lenk, J.) (SJC) Case re - nell Jr., of Posternak, Blankstein & Lund, and Massachusetts Newspaper Publishers Associ - ported by Botsford, J., sitting as single justice. Philip F. Coppinger for the plaintiff; David R. ation and others, amici curiae; Martha Coak - MTCA - MBTA Robert J. Keegan and Cheryl M. Kimball, both Marks for the defendants (Docket No. SJC- ley and Argie K. Shapiro submitted a brief for of Keegan, Werlin, for the plaintiff; David A. 11045) (Aug. 31, 2012). the Attorney General, amicus curiae (Dock - Where statutory amendments effective Guberman for the defendant (Docket No. SJC- et No. SJC-11062) (Aug. 23, 2012). Nov. 1, 2009 made the Massachusetts Bay 10904) (June 4, 2012). Transportation Authority a “public employ - er” covered by the Massachusetts Tort Warrants - Impoundment - Claims Act, the 2009 amendments do not Gas company - Preapproval SEARCH AND SEIZURE apply retroactively to claims that accrued of purchasing plans Unsealing prior to Nov. 1, 2009. Where a Superior Court judge unsealed Smith v. Massachusetts Bay Transportation Where the Department of Public Utilities Bags left in another’s affidavits underlying seven search warrants Authority (Lawyers Weekly No. 10-091-12) ordered a gas company to pay $4.6 million apartment executed during the course of a statewide (18 pages) (Lenk, J.) (SJC) Case tried before in reimbursement to its customers, that or - Brassard, J., and a motion for relief from judg - Where a defendant was convicted of 23 investigation into online gambling con - der must be vacated on the ground that it ducted at “Internet cafés,” there was no abuse ment heard by Cratsley, J., in Superior Court. was based on the department’s erroneous offenses based on a string of robberies, a re - John P. Knight, of Morrison Mahoney, versal must be ordered with respect to those of discretion and thus the judge’s order determination that the gas company was re - should be affirmed. Jonathan P. Feltner and Thomas T. Worboys, quired to seek preapproval of its gas pur - convictions that relied on evidence taken by of Morrison Mahoney, for the defendant; the police without a warrant from his bags New England Internet Café, LLC, et al. v. chasing plans for the 2007-2008 and 2008- Clerk of the Superior Court for Criminal Busi - Michael E. Mone and Catherine A. Ryan, both 2009 purchasing seasons. that he had left at another person’s residence. of Esdaile, Barrett & Esdaile, for the plaintiff Commonwealth v. Magri (Lawyers Week - ness in Suffolk County, et al. (Lawyers Week - Fitchburg Gas and Electric Light Compa - ly No. 10-063-12) (30 pages) (Cordy, J.) (SJC) (Docket No. SJC-11032) (May 31, 2012). ny v. Department of Public Utilities (Lawyers ly No. 10-092-12) (16 pages) (Duffly, J.) (SJC) Motions to sever and to suppress evidence Emergency motion to modify or terminate an Weekly No. 10-158-11) (26 pages) (Cordy, J.) impoundment order heard by Macdonald, J., (SJC) Case reported by Cordy, J., sitting as sin - heard by Agostini, J., and cases tried before him. Elizabeth Caddick for the defendant; in Superior Court. Randall E. Ravitz (Thomas gle justice. Robert J. Keegan and Cheryl M. D. Ralph with him) for the defendants; Jeffrey Kimball, both of Keegan, Werlin, for the plain - Joseph A. Pieropan for the commonwealth WILLS AND TRUSTS (Docket No. SJC-10885) (May 31, 2012). J. Pyle and James W. Lawson, both of Prince, tiff; David A. Guberman for the defendant Lobel, Glovsky & Tye, for the plaintiffs (Dock - (Docket No. SJC-10855) (Nov. 2, 2011). et No. SJC-11103) (April 25, 2012). Adoption Nexus - Curtilage Where a will was executed in 1941 estab - Intervention Where a judge denied a defendant’s mo - lishing a testamentary trust that benefited the testator’s son, her grandsons and their issue, a Where the Department of Public Utilities tion to suppress, (1) the search warrant ap - 2009 amendment to G.L.c. 210, §8 cannot denied an individual’s request to intervene in plication established probable cause to be - SECURITIES constitutionally be applied with respect to the a proceeding involving an agreement between lieve that evidence of the defendant’s drug adopted great-grandchildren of the testator. the Massachusetts Electric Company and dealing would be found in his apartment Anderson v. BNY Mellon, N.A., et al. Nantucket Electric Company to purchase and (2) the motion judge did not err in find - First Amendment (Lawyers Weekly No. 10-147-12) (26 pages) power from Cape Wind Associates, the de - ing that the basement was within the cur - Where plaintiffs have challenged on First (Botsford, J.) (SJC) Case reported by Ordoñez, partment committed no abuse of discretion. tilage of the defendant’s apartment. Amendment grounds a charge that they vi - J., in the Probate & Family Court. Wilbur A. Melone v. Department of Public Utilities However, because the admission in evi - olated state law by offering unregistered se - Glahn III and Kimberly Ryan Torrisi, both of (and a consolidated case) (Lawyers Weekly dence of a ballistics certificate and two drug curities for sale by means of a website and McLane, Graf, Raulerson & Middleton, for No. 10-074-12) (4 pages) (Rescript) (SJC) certificates violated the defendant’s con - email, the challenge must be rejected based Rachel A. Bird Anderson; Maria L. Rockwell, Thomas Melone, pro se; Kenneth W. Salinger frontation right under the Sixth Amendment, on this court’s conclusion that the challenged of Doherty, Ciechanowski, Dugan & Cannon, for Department of Public Utilities (Docket the defendant is entitled to a new trial. provisions of Massachusetts law are part of for John G. Dugan; Steven B. Rosenthal for Nos. SJC-10921 and 10922) (May 9, 2012). Commonwealth v. Escalera (Lawyers Week - a constitutionally permissible disclosure ly No. 10-109-12) (24 pages) (Duffly, J.) (SJC) scheme and, to the extent that they restrict Michael Podolski; Kevin J. Willis, of Ropes & Motion to suppress heard by Walker, J., and cas - speech, are tailored in a reasonable manner Gray, for BNY Mellon, N.A., was present but es tried before Grabau, J. in Superior Court. to serve a substantial state interest in pro - did not argue; the following submitted briefs William T. Harrington on appeal for the de - moting the integrity of capital markets by for amici curiae: David S. Weiss, Laura E. REAL PROPERTY fendant; Christine M. Kiggen for the common - ensuring a fully informed investing public. D’Amato and Brian P. Thurber, of Goulston wealth (Docket No. SJC-10996) (June 29, 2012). Bulldog Investors General Partnership, et & Storrs, for Douglas D. Lee; Martha Coak - al. v. Secretary of the Commonwealth ley and Tori T. Kim for the Attorney General; Easement (Lawyers Weekly No. 10-144-11) (56 pages) Lisa C. Goodheart, of Sugarman, Rogers, Bar - Where a Land Court judge found that the Strip search (Gants, J.) (SJC) Case heard by Fabricant, J., shak & Cohen, for the Boston Bar Associa - plaintiff enjoyed an easement over neigh - Where a defendant moved to suppress in Superior Court. Lawrence Tribe (Andrew tion; Benjamin G. Robbins and Martin J. boring lots in Truro, the width of the road - drugs seized pursuant to a search incident to Good, of Good & Cormier, with him) for the Newhouse for New England Legal Founda - way authorized by the easement must be 14 his arrest following a lawful automobile stop, plaintiffs; Pierce O. Cray for the defendant; tion; Paul F. Donovan, of Taylor, Ganson & feet as required by the town rather than 12 an order granting the motion must be af - Lee Tien and Adam Kessel submitted a brief Perrin, for Joseph Lee IV and others (Docket feet as set forth in the judge’s ruling. firmed on the ground that the search of the for John Berlau and others, amici curiae No. SJC-11122) (Aug. 28, 2012). Cater, et al. v. Bednarek, et al. (Lawyers defendant that took place when the police re - (Docket No. SJC-10756) (Sept. 22, 2011). Continued on page 36 36 | Massachusetts Lawyers Weekly | September 17, 2012 masslawyersweekly.com | Cite this page 41 MLW 196 THIS WEEK’S DECISIONS For full opinions, visit lwopinions.com

that prohibited two persons of the same sex citizens under the claimed cloak of privacy in under either standard, we need not resolve this SUPREME from engaging in consensual sexual inter - sexual relations.’ … Thus, the foundation from dispute. We have reviewed all of the disputed ev - course. ... Overruling its decision in Bowers v. which our decision sprang anticipated the idence, and concur that the video, like the photo - JUDICIAL COURT Hardwick , 478 U.S. 186 (1986) ( Bowers ), the Supreme Court’s conclusion in Lawrence twen - graphs, article, and Internet search testimony, was Continued from page 21 Court recognized that ‘liberty gives substantial ty-three years later that there is some sphere of highly probative of the defendant’s intent in stran - protection to adult persons in deciding how to sex-related activity on which the government gling the victim. Granted, it posed a greater risk of a man convicted of four strangulation mur - conduct their private lives in matters pertain - should not, and cannot, intrude. … Although we of prejudicing the defendant, but that risk did not ders; and testimony regarding the number of ing to sex,’ Lawrence, supra at 572, and con - proceeded to set a boundary to this protected subsume the probative value. The judge provid - images stored on the computer ‘that were stran - cluded that the due process clause of the Four - sphere of activity, we did not do so because of any ed a curative instruction before playing it, and its gulation-oriented or had strangulation themes,’ teenth Amendment to the United States societal disapproval of the underlying sexual con - content was confined to the exact act with which as well as testimony about Internet searches and Constitution provided the petitioners ‘the full duct, but rather because the government has a the defendant was charged. Contrast … The video, the number of files saved on the computer that right to engage in their conduct without inter - legitimate interest in discouraging violent be - and all of the contested evidence, illuminated the concerned asphyxiation. vention of the government.’ ... The Court also havior between and against its citizens. … defendant’s state of mind. Thus, it was admitted “We conclude that there is no conflict between adopted the reasoning of Justice Stevens’s dis - “At the core of his argument, the defendant for the legitimate purpose of establishing the the reasoning of Lawrence, supra, and our prior senting opinion in the Bowers case: ‘[T]he fact suggests that in Lawrence , the Supreme Court probability that the defendant possessed the spe - decisions holding that consent is not a defense that the governing majority in a State has tra - articulated a sweeping prohibition against the cific intent to kill the victim, and not merely to to the crimes charged, see Commonwealth v. Ma - ditionally viewed a particular practice as im - regulation of consensual sexual conduct or, to dupe the jury into believing he was ‘a lewd man, har , 430 Mass. 643, 652-653 (2000) (armed home moral is not a sufficient reason for upholding state the converse, announced an absolute right and . . . that a man of his character would be like - invasion), and Commonwealth v. Appleby , 380 a law prohibiting the practice.’ … of privacy in sexual affairs. As the Supreme ly to commit the crimes charged.’ …” Mass. 296, 310 (1980) (assault and battery by “Grasping on to this language, the defendant Court of Nebraska explained in State v. Van , Commonwealth v. Carey (Lawyers Weekly means of dangerous weapon), and the judge ap - contends that our decision in Appleby, supra at 268 Neb. 814, 826 (2004), the Court did no such No. 10-153-12) (24 pages) (Cordy, J.) (SJC) Cas - propriately instructed the jury on consent. We 309-311, in which we first ruled that consent thing: ‘The Lawrence Court did not extend es tried before Welch, J., in Superior Court. James further conclude that, although admission of the was not a defense to a charge of assault and bat - constitutional protections to any conduct L. Sultan, of Rankin & Sultan, for the defendant; photographs, article, and testimony were prop - tery by means of a dangerous weapon com - which occurs in the context of a consensual Kenneth E. Steinfield for the commonwealth er, the judge’s failure to view the video prior to mitted as or as part of sexual activity, is no sexual relationship. Rather, the Court indicat - (Docket No. SJC-11050) (Sept. 7, 2012). ruling that its probative value outweighed its prej - longer valid. He argues that the Appleby hold - ed that State regulation of [private, consensu - udicial effect was an abuse of discretion. Conse - ing was motivated by a public policy disap - al sexual activity] was inappropriate “absent in - Criminal quently, we have independently reviewed the proving of certain consensual sexual behavior jury to a person or abuse of an institution the content of the video in the context of its use at and, therefore, represents precisely the type of law protects.” ... In addition, it specifically not - Expungement trial, and conclude that it was highly probative of morals-based judgment the Supreme Court re - ed that the case it was deciding did not involve Where a defendant who was falsely accused the defendant’s motive and intent, the principal jected in Lawrence . We disagree. … “persons who might be injured [or coerced].” of a crime moved to expunge his criminal issues contested at trial, outweighing its plainly “… First, in reaching our conclusion that one ...’ We agree with this reading of Lawrence and records, that motion was correctly denied ac - prejudicial effect. Accordingly, we affirm.” could not consent to violent conduct related to understand the express limitations of that de - cording to Commonwealth v. Boe , 456 Mass. Consent issue or constituting sexual activity, the court recog - cision not only to align with our conclusion in 337 (2010). “The defendant now contends that, in light nized the existence of some ‘right to sexual pri - Appleby , but also to anticipate and reject the “The defendant was falsely accused of as - of the holding in Lawrence, supra , the judge vacy that citizens enjoy.’ Appleby, supra at 310. very argument the defendant raises on appeal. saulting with a gun Ramon Benzan, a person who erred by not instructing the jury that consent However, we reasoned that such a right ‘would The judge, therefore, appropriately adhered to was performing work for the defendant. After the was a defense to his conduct. In that case, the be outweighed in the constitutional balancing our precedent. His instructions concerning the criminal complaint issued, it became apparent Court deemed unconstitutional a Texas statute scheme by the State’s interest in preventing vio - issue of consent were and remain correct.” that Benzan had lied to a Boston police detective lence by the use of dangerous weapons upon its about the alleged assault in an attempt to extort Video money. The prosecutor filed a nolle prosequi. The “Here, the judge ruled that, while the com - defendant later moved to expunge his criminal puter materials as a whole were ‘certainly prej - records, arguing that the judge had the equitable udicial to the defendant,’ they were highly pro - authority to do so because Benzan had commit - bative of his intent and motive, as well as the ted fraud on the court. … victim’s alleged consent. With regard to the “The defendant argues that Boe does not con - photographs, article, and testimony, we see no trol, because unlike Boe , where there was at most cause to disrupt this ruling. The defendant’s in - negligence on the part of the police and court staff tent was the principal issue at trial, as the Com - in initiating and issuing the complaint, in this case WORKERS’ judge, as the expansion complies with monwealth and the defendant sparred over there was fraud on the court. In the defendant’s the zoning bylaw and there is no evi - whether he possessed the specific intent to kill view, his arrest and the subsequent criminal com - COMPENSATION dence that either the density within the the victim, a necessary element of the at - plaint against him were initiated solely on the ba - mobile home park expansion or the tempted murder charge. … Thus, while the de - sis of intentionally false statements made to the Continued from page 35 modest increase in traffic will be detri - fendant alleged that he only strangled the vic - police by Benzan, statements that the defendant mental to the surrounding neighbor - tim as a means toward sexual gratification and characterizes as fraudulent. Where the genesis of Average weekly wage hood. without any intent to do her harm, the Com - the complaint is fraudulent, he contends, it infects Shirley Wayside Limited Partnership v. monwealth was entitled to introduce evidence the entire court process and becomes fraud on Where (1) an employee suffered a Board of Appeals of Shirley (Lawyers revealing the scope of this fantasy and the like - the court, and as Boe suggested (see note 9, supra ), workplace injury to his hand in 1980, (2) Weekly No. 10-023-12) (26 pages) (Cordy, lihood that it included continuing the act to its the court has authority to respond to fraud on the natural completion — the victim’s death. … he began working in Connecticut in J.) (SJC) Case heard by Long, J., in Land court by ordering expungement. … “We separately review the judge’s decision 1988 and (3) a medical procedure in Court. Julie McNeill for the plaintiff; Ellen “The defendant’s argument fails. As the judge 2003 left him totally disabled, the em - to admit the ninety-second video. … Callahan Doucette for the defendant; recognized, this case presents a set of facts very ployee’s workers’ compensation benefits “… [A] judge must engage in a careful and rea - Robert Kraus and Joseph E. Kelleher, both similar to those in Boe , and that case governs must be determined according to the soned assessment of any evidence proffered by of Kraus & Hummel, for Massachusetts here. In this case, like Boe , a factually inaccu - out-of-state average weekly wage he the government that a criminal defendant con - Manufactured Housing Association, Inc., rate complaint issued, incorrectly charging an earned in 2003. tests; only then will the judge truly appreciate the innocent party with committing a crime. Al - amicus curiae, submitted a brief (Dock - Wadsworth’s Case (Lawyers Weekly substance and purpose of the evidence, thus en - though it appears that Benzan did make in - et No. SJC-10869) (Feb. 7, 2012). No. 10-040-12) (27 pages) (Gants, J.) abling him fairly to balance the submission’s prej - tentional misrepresentations to a police offi - (SJC) Appealed from a decision of the In - udicial impact against its probative value. … cer as part of an effort to extort money from dustrial Accident Reviewing Board. “Although there may be instances where a the defendant, he never made false statements William C. Harpin, of Moriarty & Asso - Standing judge can discharge this duty without reviewing under oath to the court. … Rather, the police ciates, for the employee; Martin T. Sulli - Where a Land Court judge found the contested evidence personally, this is not such officer applied for the criminal complaint van, of the Law Offices of Jacqueline L. that abutters had standing to challenge a case. … As the dissenting Justice in the Appeals based on erroneous information. The com - Court so aptly noted, there is a particular nu - Allen, for the insurer; Deborah Kohl and a building permit, that conclusion plaining officer may have acted negligently in ance and impression of watching a video of the Kathleen G. Sumner, for Workers’ Injury should be upheld in light of the devel - failing to investigate further Benzan’s story, but strangulation ‘death’ of a woman which the Law & Advocacy Group, amicus curiae, oper’s failure to rebut the presumption negligence is not fraud. More important, it is Commonwealth’s description, however accurate, submitted a brief (Docket No. SJC-10909) of standing. clear that the officer intended to initiate the simply could not capture. ... Given the highly in - complaint against the defendant himself — not (March 16, 2012). 81 Spooner Road, LLC v. Zoning flammatory nature of the evidence, of which he an impostor. … Like Boe, the defendant should Board of Appeals of Brookline, et al. was aware, the judge ought to have recognized not have been charged with assault by means (and a companion case) (Lawyers the great potential for prejudice it carried, and of a dangerous weapon because no such assault Weekly No. 10-042-12) (22 pages) taken a moment to familiarize himself with its ever occurred. Nonetheless, the criminal ZONING (Spina, J.) (SJC) Cases heard by Trombly, contents. Without having done so, the judge sim - records reflect accurately the pertinent under - J., in Land Court. Jeffrey P. Allen and ply ‘could not have fully assessed the potential lying facts, namely, that he was charged with Donald J. Gentile, both of Lawson & prejudice to [the defendant] and weighed it this crime, and that the case was later disposed Mobile home park - Weitzen, for 81 Spooner Road, LLC; against the evidence’s probative value.’ … This of by entry of a nolle prosequi. The second James Gray Wagner and Jan M. failure is itself an abuse of discretion. ... paragraph of §100C, which provides for seal - Expansion Kendrick, both of Conn, Kavanaugh, “This conclusion, however, does not end our ing court and probation records of nol prossed Where the Shirley zoning board de - Rosenthal, Peisch & Ford, for George P. inquiry. Rather, it requires us to evaluate cases if ‘substantial justice would best be served,’ nied a request for a special permit to Fogg III and another; Jennifer Dopazo whether the error in failing to view the video is thus directly on point, and it provides the expand a mobile home park from 65 Gilbert and John J. Buchheit for zoning personally before ruling on its admissibility sole remedy. Accordingly, and despite the un - to 79 units, the board’s decision was board of appeals of Brookline (Docket prejudiced the defendant, if his objection was fortunate consequences, the judge correctly de - correctly vacated by a Land Court No. SJC-10929) (March 20, 2012). preserved, … or posed a substantial risk of a termined that he lacked the equitable author - miscarriage of justice, if not. … ity to grant the relief requested. …” “Because the error does not warrant reversal Continued on page 38