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B6 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 278 Continued from page B5 Case reported by Sosman,J.,sitting as single justice. Gail M. McKenna for the commonwealth; Joseph F. Krowski Jr. and Jason C. Howard for the defendant; Bethany C. Brown submitted a brief for Kevin Draheim, amicus curiae (Docket No. SJC-09584) (June 27, 2006). Consumer protection G.L.c. 93A - Causation - Loss Where a defendant rental car company was awarded summary judgment on the plaintiffs’ complaint under the consumer protection statute (G.L.c. 93A), the judgment should be affirmed because of the plaintiffs’inability to prove any loss caused by the defendant’s failure to comply with a state statute governing rental agreements. Hershenow, et al. v. Enterprise Rent-A-Car Company of Boston, Inc., et al. (Lawyers Weekly No. 10-008-06) (32 pages) (Marshall, C.J.) (Cowin, J., concurring) (Greaney, J., joined by Spina,J.,dissenting) (SJC) Case heard by van Gestel, J., on motions for judgment on the pleadings and for summary judgment. John Roddy and Elizabeth A. Ryan for the plaintiffs; Michael A. Kahn, of California, M. Kay Martin, of California,and John H.Henn for the defendants; the following submitted briefs for amici curiae: Ben Robbins and Andrew Grainger for New England Legal Foundation; Stephen D. Poss and S. Jason P.Baletsa for The Hertz Corporation and another (Docket No. SJC-09359) (Jan. 17, 2006). G.L.c. 93A - Injury - Rental car Where a plaintiff filed suit alleging that the defendant rental car company violated G.L.c. 93A by not displaying in a rental agreement the statutorily required language regarding collision damage waivers in a manner consistent with the statute, a summary judgment for the defendant should be affirmed on the ground that the plaintiff suffered no injury cognizable under G.L.c. 93A. Roberts v. Enterprise Rent-A-Car Company of Boston,Inc.(Lawyers Weekly No.10-009-06) (7 pages) (Cowin, J.) (Greaney, J., joined by Spina, J., concurring) (SJC) Case was heard by van Gestel, J., on motions for judgment on the pleadings and for summary judgment. John Roddy and Elizabeth A. Ryan for the plaintiff; Michael A.Kahn,of California,M.Kay Martin, of California, and John H. Henn for the defendant; the following submitted briefs for amici curiae: Ben Robbins and Andrew Grainger for New England Legal Foundation; Stephen D.Poss and S. Jason P. Baletsa for The Hertz Corporation and another (Docket No. SJC-09960) (Jan. 17, 2006). Contract Breach - Interior design Where a judge ruled that a defendant engaged in breach of contract by failing to pay for certain interior design work provided by the plaintiff firm, we hold that this ruling was supported by the record and should be affirmed. Mark Bombara Interior Design v. Bowler (Lawyers Weekly No. 10-056-06) (14 pages) (Spina, J.) (SJC) Case heard by Locke, J., in the Superior Court. John N. Flanagan for the defendant; Colleen C. Cook and Sarah M. Knoff for the plaintiff (Docket No.SJC-09523) (March 30, 2006). PROFILES OF THE JUSTICES Corporate Limitations - Tolling Where (1) a closely held corporation was dissolved and (2) the appellant,one of the four shareholders, was awarded more than her pro rata share of the assets but less than the amount she sought, the judgment should be affirmed, as the appellant’s request for a larger share of assets was based on time-barred claims of wrongdoing by the other shareholders. Aiello, et al. v. Aiello, et al. (and a companion case) (Lawyers Weekly No.10-133-06) (28 pages) (Cordy, J.) (SJC) Cases heard by van Gestel, J., in Superior Court. Jeffrey J. Upton for Joy Hyland; W. Paul Needham and Mark A. Johnson for RobertAiello;Howard M.Brown for Gerald Aiello (Docket No. SJC-09626) (Aug. 11, 2006). Criminal Annoying or accosting behavior Where a defendant was convicted of accosting or annoying a person of the opposite sex, the conviction should be affirmed based on our conclusion that the defendant’s conduct was offensive and disorderly within the meaning of G.L.c. 272, §53. Commonwealth v. Cahill (Lawyers Weekly No.10-091-06) (9 pages) (Ireland,J.) (SJC) Case heard by Greco, J., in District Court. Melissa J. Garand for the defendant; Miriam S. Pappas and Loretta M. Lillios for the commonwealth (Docket No. SJC-09649) (May 19, 2006). Armed assault with intent to murder Where (1) a defendant was convicted of armed assault with intent to murder, (2) he claimed on appeal that the judge erred in not instructing the jury that malice,defined as “absence of justification, excuse and mitigation,” is an element of the offense and (3) he argued that omission of the instruction created a substantial risk of a miscarriage of justice because his depressed mental state could constitute mitigation that the commonwealth must disprove, we hold that the Appeals Court acted correctly in rejecting the defendant’s appeal. Commonwealth v. Johnston (Lawyers Weekly No. 10-066-06) (11 pages) (Cowin, J.) (SJC) JUSTICE RODERICK L. IRELAND Appointed to SJC: 1997 Will reach retirement age: 2014 Majority opinions written this year: 24 Dissenting opinions written this year: 2 Total dissenting votes cast: 6 Notable decision: Nelson v. Salem State College, et al. (Lawyers Weekly No. 10- 064-06), which found that a state college employee's right to privacy was not violated by videotape surveillance of her workplace. Case tried before Ford,J., in the Superior Court. Daniel Bennett for the defendant; Katherine E. McMahon for the commonwealth (Docket No. SJC-09606) (April 14, 2006). Armed assault with intent to rob - Felony murder Where a defendant has been convicted of armed assault with intent to rob, we hold that conviction must be vacated because it is duplicative of another conviction for first-degree murder on a theory of felony murder. Commonwealth v. Rivera (Lawyers Weekly No. 10-148-05) (33 pages) (Marshall, C.J.) (Cowin, J., concurring in part) (Cordy, J., joined by Greaney and Ireland, JJ., concurring) (SJC) Ruth Greenberg for the defendant; Loretta M. Lillios for the commonwealth (Docket No. SJC- 08717) (Sept. 7, 2005). Armed robbery - Photographs - Jury instructions Where a defendant has appealed his convictions for armed robbery while masked, assault and battery and assault by means of a dangerous weapon, we hold that the convictions should stand, as the trial judge (1) committed no abuse of discretion by admitting into evidence five photographs of the defendant selected by the victim at an out-of-court identification procedure and (2) did not err in choosing not to give a jury instruction requested by the defendant about confidence and accuracy in eyewitness identifications. Commonwealth v.Cruz (Lawyers Weekly No. 10-196-05) (17 pages) (Spina, J.) (SJC) Cases tried before Haggerty, J., in the Superior Court. Benjamin H. Keehn for the defendant; Sheryl F. Grant for the commonwealth (Docket No. SJC- 09499) (Dec. 21, 2005). Assault and battery by means of dangerous weapon - ‘Castle law’defense statute Where a defendant,who was convicted of assault and battery by means of a dangerous weapon, asserts that the trial judge acted impermissibly in not giving a requested “castle law” defense instruction,we hold that this claim must be rejected because (1) the defendant’s actions occurred on the open porch and outside stairs of the relevant house and (2) the term “dwelling” in the castle law defense statute (G.L.c.278,§8A) does not encompass such areas. Commonwealth v. McKinnon (Lawyers Weekly No. 10-042-06) (10 pages) (Ireland, J.) (SJC) Case tried before McGill, J.,in the District Court. Karen Dean-Smith for the defendant; Kimberly Rugo and Melissa J. Conroy for the commonwealth (Docket No.SJC-09603) (March 14, 2006). Attempting to burn building Where a defendant has appealed his conviction for attempting to burn a building, we hold that the appeal must fail because no merit exists to the defendant’s claims (1) that his trial was invalid because the commonwealth proceeded against him by way of complaint even though he never executed a written waiver of his right to indictment and (2) that the trial judge erred in denying the defendant’s motion to suppress his confession. Commonwealth v. Peterson (Lawyers Weekly No. 10-011-06) (11 pages) (Cordy, J.) (SJC) Pretrial suppression motion heard by Curley, J., and cases tried before him. Beth L. Eisenberg for the defendant; Joseph A. Pieropan for the commonwealth (Docket No. SJC-09482) (Jan. 17, 2006). Bail - Revocation Where (1) a defendant was released on bail in connection with a Superior Court indictment, (2) the bail was later revoked based on new charges brought against the defendant in District Court and (3) the defendant twice requested in District Court that his bail be reinstated,the District Court judges acted correctly in denying that request on the ground that Superior Court was the proper jurisdiction for any reinstatement order. Commonwealth v. Cargill (Lawyers Weekly No. 10-172-05) (6 pages) (Greaney, J.) (SJC) Questions of law reported by Lauriat, J., in Superior Court. Beth L. Eisenberg for the defendant; John P. Zanini and Joseph M. Ditkoff for the commonwealth (Docket No. SJC-09373) (Nov. 18, 2005). Bail - Revocation Where (1) a judge ordered a criminal defendant’s bail revoked when the defendant was charged with a separate unrelated offense and (2) a different judge later entered an order vacating the bail revocation order, the second judge acted improperly under the bail statute (G.L.c. 276, §58). Commonwealth v. Pagan (Lawyers Weekly No. 10-171-05) (19 pages) (Greaney, J.) (Cordy, J., dissenting in part) (SJC) Case reported by Cowin, J., sitting as single justice. Dean A. Mazzone for the commonwealth; Dana Alan Curhan and Brad Bennion for the defendant (Docket No. SJC-09310) (Nov. 18, 2005). Bail - Revocation Where a mittimus was issued in District Court after a defendant’s bail was ordered revoked, the mittimus improperly served to vacate the bail revocation order and accordingly should be stricken. Commonwealth v.Hall,et al.(Lawyers Weekly No. 10-173-05) (3 pages) (Rescript) Petition heard by Spina, J., sitting as single justice. Don-
Cite this page 35 MLW 279 | www.masslawyersweekly.com Subscribe Today - Call 1-800-451-9998 September 25, 2006 | Massachusetts Lawyers Weekly | B7 na Jalbert Patalano for the commonwealth; David M.Lieber for the Boston Municipal Court (Docket No. SJC-09386) (Nov. 18, 2005). Burglary - Armed assault in dwelling Where (1) a defendant was convicted of burglary,armed assault in a dwelling,armed assault with intent to murder and assault and battery by means of a dangerous weapon, (2) the Appeals Court later reversed the judgments,concluding that there was insufficient evidence to support the verdicts, and (3) the commonwealth thereafter applied successfully for further appellate review, we hold, after careful consideration of the transcripts and arguments of the parties, that, “although the question is a close one, there was sufficient evidence to support the verdicts.” Commonwealth v.O’Laughlin (Lawyers Weekly No.10-040-06) (34 pages) (Cowin,J.) (SJC) Motion to dismiss heard by Curley, J., and the cases were tried before him.Kenneth I.Seiger for the defendant;David F.Capeless for the commonwealth (Docket No. SJC-09587) (March 10, 2006). Child’s statements to pediatrician Where a 6-year-old child made statements to an emergency room pediatrician disclosing (in a child’s terms) that she had been anally raped, we hold that a Superior Court judge erred in allowing the defendant’s motion to exclude such statements from the evidence at his trial. Commonwealth v.DeOliveira (Lawyers Weekly No. 10-103-06) (18 pages) (Greaney, J,) (SJC) Motion to dismiss heard by Quinlan, J.; application for leave to prosecute interlocutory appeal allowed by Sosman, J., in the Supreme Judicial Court for the county of Suffolk and appeal reported by her to Appeals Court; matter transferred from the Appeals Court by the Supreme Judicial Court on its own initiative. Thomas D. Ralph for the commonwealth; Michael D. Brennan for the defendant; Alice Ann Phillips and Danica Szarvas-Kidd submitted a brief for American Prosecutors Research Institute,amicus curiae (Docket No. SJC-09608) (June 19, 2006). Closing argument - Child’s sexual knowledge Where a defendant was convicted of child rape, the convictions must be vacated because of prejudicial error in the prosecutor’s closing argument. Commonwealth v. Beaudry (Lawyers Weekly No. 10-194-05) (17 pages) (Cowin, J.) (SJC) Cases tried before Josephson, J., in Superior Court.Jane Larmon White on appeal for the defendant; Judith Ellen Pietras for the commonwealth (Docket No.SJC-09567) (Dec.20,2005). Community parole supervision for life - Sex offender Where community parole supervision for life (CPSL) has been imposed on a defendant convicted of indecent assault and battery on a child under 14 years of age,the defendant must be resentenced based on the unconstitutionality of the CPSL statute. Commonwealth v.Pagan (Lawyers Weekly No. 10-152-05) (20 pages) (Spina,J.) (SJC) Case tried before Haggerty,J.,in Superior Court.Matthew V. Soares for the defendant;Heather E.Hall and Kate Berrigan MacDougall for the commonwealth (Docket No. SJC-09332) (Sept. 14, 2005). Competency examination - Commonwealth’s expert Where a judge ordered a criminal defendant, who was found incompetent to stand trial by a court-appointed expert, to submit to a second competency examination by an expert of the commonwealth’s choosing, this order should be affirmed,as “there was neither abuse of discretion nor any other error of law.” Seng v.Commonwealth (Lawyers Weekly No. 10-190-05) (21 pages) (Marshall, C.J.) (SJC) Case reported by Cowin, J., sitting as single justice. Larry R. Tipton for the defendant; Loretta M. Smith for the commonwealth (Docket No. SJC-09467) (Dec. 15, 2005). Conspiracy to commit larceny of insurance companies Where (1) computer files were seized from the law firm for which a defendant attorney worked and (2) he was subsequently convicted of conspiracy to commit larceny of insurance companies, we hold that the convictions may stand because:the defendant lacked standing to challenge the seizure of the computer files;the judge did not violate the defendant’s right to a fair and impartial jury by rulings the judge made during jury selection;and the judge did not abuse his discretion by refusing to declare a mistrial after a certain improper remark was uttered by a witness. Affirmed. Commonwealth v.Bryant (Lawyers Weekly No. 10-139-06) (16 pages) (Ireland, J.) (SJC) Pretrial suppression motions were heard by Bohn, J., and the cases were tried before him.William S. Smith for the defendant; David M. Lieber for the commonwealth;Bruce P.Keller and Phillip R.Malone submitted a brief for National Center for Missing and Exploited Children,et al.,amici curiae (Docket No. SJC-09673) (Aug. 25, 2006). Corporate liability - Homicide - Motor vehicle Where a corporation was found guilty of homicide by motor vehicle, the conviction should be affirmed based on evidence that the defendant’s agent negligently caused the death of a police officer. Commonwealth v. Angelo Todesca Corp. (Lawyers Weekly No. 10-036-06) (38 pages) (Spina,J.) (Cordy,J.,joined by Marshall,C.J.,and Cowin,J.,dissenting) (SJC) Case tried before Connon, J., in Superior Court. Julia K. Holler for the commonwealth; Jeffrey T. Karp for the defendant (Docket No. SJC-09457) (March 1, 2006). Discovery - Crime scene Where a defendant was indicted for rape of a child with force in the complainant’s home and assault and battery,we hold that a judge had the authority to allow the defendant to have his investigator and attorney inspect, measure and photograph the crime scene but only after the owner of the subject premises was given notice and an opportunity to be heard. Commonwealth v. Matis (Lawyers Weekly No. 10-079-06) (8 pages) (Cordy, J.) (SJC) Case reported by Greaney, J., sitting as single justice. Judith Ellen Pietras for the commonwealth; Mark A. Tanner for the defendant (Docket No. SJC-09480) (May 10, 2006). Dismissal of complaint - Accord and satisfaction Where a criminal complaint was dismissed after the defendant and his accuser executed an accord and satisfaction pursuant to G.L.c. 276,§55,the dismissal order should be upheld despite the commonwealth’s challenge to the validity of the statute. Commonwealth v. Guzman (Lawyers Weekly No. 10-054-06) (9 pages) (Ireland, J.) (SJC) Motion to dismiss heard by Brant, J., in District Court. Christopher W. Spring and Loretta M. Lillios for the commonwealth; Joseph W. Monahan III for the defendant; Daniel I.Smulow for the intervener Attorney General; Nona E.Walker, for Committee for Public Counsel Services, amicus curiae, submitted a brief (Docket No. SJC-09459) (March 29, 2006). Dissemination of obscene matter to minor - Intent Where a defendant has appealed his conviction for dissemination of matter harmful to a minor, the appeal must fail, as no substantial risk of a miscarriage of justice arose from the trial judge’s failure to instruct the jury that the dissemination must be the result of purposeful, intentional conduct. Commonwealth v. Belcher (Lawyers Weekly No.10-083-06) (8 pages) (Ireland,J.) (SJC) Case tried before Patrick F. Brady, J., in Superior Court. Robert F. Shaw Jr. on appeal for the defendant; Mary E. Lee for the commonwealth (Docket No. SJC-09650) (May 12, 2006). First-degree murder Where a defendant has appealed his first-degree murder conviction, we conclude that the appeal must fail because the trial judge (1) committed no reversible error in his evidentiary rulings, (2) framed adequate jury instructions on provocation and sudden combat,(3) acted permissibly in refusing to instruct the jury on the lesser included offense of assault and battery by means of a dangerous weapon (a shod foot), where the evidence did not provide a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense, and (4) also acted permissibly in deciding that the defendant was not entitled to an instruction requiring specific unanimity, as to the factors set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), in determining whether the alleged murder was committed with extreme atrocity or cruelty. Commonwealth v. Pov Hour (Lawyers Weekly No. 10-023-06) (15 pages) (Greaney, J.) (SJC) Case tried before Fishman, J., in the Superior Court.Charles K.Stephenson for the defendant; Loretta M.Smith for the commonwealth (Docket No. SJC-09365) (Feb. 7, 2006). First-degree murder - Jury instructions Where a defendant has appealed his firstdegree murder conviction, we conclude that the appeal must fail because no merit exists to the defendant’s claim that the trial judge’s jury instruction on malice and intoxication contained significant errors creating a substantial likelihood of a miscarriage of justice. Commonwealth v. Oliveira (Lawyers Weekly No.10-019-06) (18 pages) (Cordy,J.) (SJC) Case tried before Kane, J., in the Superior Court. Eric S.Brandt for the defendant; David B.Mark and Alison R. Bancroft for the commonwealth (Docket No. SJC-09146) (Jan. 23, 2006). Grand jury - Spousal privilege Where a judge permitted a grand jury witness to refuse to testify based on the spousal privilege (G.L.c. 233, §20), the judge’s ruling must be reversed on the ground that the privilege does not apply in grand jury proceedings. In the Matter of a Grand Jury Subpoena (Lawyers Weekly No. 10-106-06) (17 pages) (Sosman, J.) (SJC) Case considered by Spina, J., sitting as single justice. John P. Zanini for the commonwealth; Laurence Cote for the respondent (Docket No. SJC-09714) (June 22, 2006). Indecent assault and battery - Duplicative convictions - Lifetime parole supervision Where a defendant was convicted of indecent assault and battery on two children under the age of 14,one of those convictions must be vacated based on insufficient evidence. Commonwealth v. Pillai (Lawyers Weekly No. 10-151-05) (28 pages) (Marshall,C.J.) (SJC) Pretrial motion for joinder was heard by Connolly,J.; the cases were tried before her as were certain posttrial motions. James A. Reidy for the commonwealth;Michael R.Schneider for the defendant on appeal; Peter Onek, for Committee for Public Counsel Services,amicus curiae,submitted a brief (Docket No. SJC-09377) (Sept. 14, 2005). Continued on page B8
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