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Significant Wins

Baker v. Wilmer Cutler Pickering Hale and Dorr LLP,  91 Mass. App. Ct. 835, 81 N.E.3d 782 (2017). The Appeals Court reversed a ruling from the Superior Court dismissing this case on the pleadings. The court held that the minority members of a closely held limited-liability company could sustain an action against the company's attorneys for breach of fiduciary duty, aiding and abetting tortious conduct, civil conspiracy, and unfair or deceptive acts or practices in trade or commerce. The case involved allegations that the attorneys had orchestrated a “freeze-out” on behalf of the majority members.  

Commonwealth v. Tejeda, 473 Mass. 269, 41 N.E.3d 721 (2015).  The Supreme Judicial Court ruled as a matter of law that the defendant did not commit felony-murder when an accomplice was killed by someone resisting armed robbery.

Kelso v. Kelso, 86 Mass. App. Ct. 226, 15 N.E.3d 767 (2014). Following entry of a judgment of divorce in the Probate and Family Court, the ex-husband filed tort claims against his ex-wife based on conduct prior to the parties’s divorce. The Appeals Court ruled that these claims were not barred under doctrines of claim or issue preclusion, since the Probate Court lacked jurisdiction to address those claims.

Commonwealth v. Sullivan, 469 Mass. 340, 14 N.E.3d 205 (2014). In a unanimous decision, the Supreme Judicial Court affirmed the allowance of a motion for a new trial based on the results of blood and DNA testing that knocked out the only piece of physical evidence tying him to a 1986 murder for which he was convicted

Commonwealth v. Torres, 467 Mass. 1007, 5 N.E.3d 560 (2014). The Supreme Judicial Court adopted a global solution in cases involving misconduct by a technician in the Hinton Drug Laboratory. The court concluded that all such cases should begin with a presumption of serious government misconduct, relieving defendants of their burden of showing such misconduct on each individual case.

Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 967 N.E.2d 1095 (2012). The Supreme Judicial Court held that a driver whose prior operating under the influence case was continued without a finding and later dismissed after he successfully completed the terms of his probation was not “convicted” under a statute requiring a three-year license suspension for a subsequent OUI.

Della Corte v. Ramirez, 81 Mass. App. Ct. 906, 961 N.E.2d 601 (2012). The Massachusetts Appeals Court held that a former same-sex spouse of child's mother was a legal parent of child and was entitled to joint custody.

Goodman v. Atwood, 78 Mass. App. Ct. 655, 940 N.E.2d 514 (2011). The guardian for an elderly owner of a dog brought an action against a veterinarian, challenging the owner's monetary gifts to veterinarian. The Appeals Court held that the plaintiff had the burden of disproving the donative capacity of the dog owner, the evidence established her donative capacity, and the evidence did not establish that the veterinarian actually exerted undue influence.

National Lumber Co. v. Inman, 77 Mass. App. Ct. 916, 933 N.E.2d 675 (2010). A mechanic's lienholder brought an action seeking to enforce a lien against a homeowners' property for the value of materials it had supplied to a subcontractor during the construction of a home. The Appeals Court held that the lienholder, not the homeowners, had the burden to prove the amount due or to become due on the contract at time the lienholder provided notice of subcontract.

Commonwealth v. Mattei, 455 Mass. 840, 920 N.E.2d 845 (2010) (Amicus). The Supreme Judicial Court agreed with the position taken by Amicus that the probative value of the admission of (DNA) nonexclusion results was substantially outweighed by its prejudicial effect.

Adams v. Board of Assessors of Westport, 76 Mass. App. Ct. 180, 920 N.E.2d 879 (2010). In this case, a town’s board of assessors ruled that the owners of land that had been designated for agricultural use were required to pay a substantial conveyance tax on the portion of the land upon which they had sought to build their residence. The Appellate Tax Board issued a decision abating the conveyance tax, and board of assessors appealed. The Appeals Court held that the taxpayers' building of their personal residence on agricultural land did not constitute a change in use of that land.

Commonwealth v. Zapata, 455 Mass. 530, 918 N.E.2d 791 (2009). The defendant entered a guilty plea to charges of attempted murder, armed home invasion, and five related offenses. The trial court sentenced defendant to a five-year prison term on the attempted murder charge and five-year probationary terms on the remaining charges, to be served consecutively to the prison term. The Commonwealth sought relief on the grounds that the sentence violated home invasion statute. The Supreme Judicial Court held that the home invasion statute did not prohibit imposition of probation as sentence, notwithstanding the mandatory language in the statute.

Commonwealth v. Webb, 450 Mass. 1014, 877 N.E.2d 552 (2007); Commonwealth v. Webb, 68 Mass. App. Ct. 167, 860 N.E.2d 967 (2007). The defendant was convicted in the District Court of setting up or promoting a lottery based on the use of a promotional game in a machine selling prepaid phone cards. Both the Appeals Court and the SJC concluded that the Commonwealth failed to establish a key element under the lottery statute, and the promotional game was a permissible sweepstakes.

Commonwealth v. Murphy, 68 Mass. App. Ct. 152, 860 N.E.2d 961 (2007). The defendant moved to dismiss an indictment charging him with operating his motor vehicle after suspension of his license for a prior OUI offense. The Superior Court granted the motion. In denying the Commonwealth’s appeal, the Appeals Court held that as a matter of first impression, the defendant was entitled to dismissal of the indictment because he had been issued a hardship license.

Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 859 N.E.2d 433 (2006). Six defendants moved to suppress evidence after they were charged with making, procuring, or assisting another to make a counterfeit driver's license and with conspiracy to make or procure a counterfeit driver's license. One defendant was also charged with possession of marijuana and procuring alcohol for a minor. The District Court denied the motions. On interlocutory appeal, the Appeals Court held that entry onto the curtilage of one defendant's residence by police officers was not justified under emergency exception to the Fourth Amendment's warrant requirement or the exigent-circumstances doctrine. The court further held that entry of the residence itself was not justified under emergency exception. The motion to suppress therefore should have been allowed.

Commonwealth v. Daniels, 445 Mass. 392, 837 N.E.2d 683 (2005). Following his conviction for first-degree murder, the defendant filed motions for postconviction discovery of exculpatory evidence and for a new trial. The Superior Court denied the motions without a hearing. On the defendant’s appeal, the Supreme Judicial Court held that the trial court's denial of the defendant's pretrial discovery request did not absolve the Commonwealth of its obligation to disclose the specific materials requested, the defendant's discovery request was sufficiently specific to place the prosecution on notice as to what the defense desired, and the defendant established a prima facie case for postconviction discovery. Once discovery was provided, a Superior Court judge ultimately allowed the defendant’s motion for a new trial and accepted a plea to manslaughter.

Xifaras v. Andrade, 59 Mass. App. Ct. 789, 798 N.E.2d 291 (2003). In this case, the trustees of a condominium trust brought an action against the owner of one unit for a declaration that the portico and basement were not part of his unit and for an injunction requiring the owner to remove the encroachments. The Superior Court issued an injunction requiring the owner to restore the basement area to its previous condition but refused to require the removal of the portico. The Appeals Court held that the unit owner had not validly obtained any exclusive rights to either area, and notwithstanding the expense, the trustees were entitled to an injunction compelling the removial of the encroachments and restoration of both parts of the common areas.

E.H. v. S.H., 59 Mass. App. Ct. 593, 797 N.E.2d 411 (2003). Prior to trial of a complex divorce case, the trial judge allowed the wife's counsel to withdraw. He then gave the wife a short continuance to retain new trial, but refused to permit her to borrow against any marital assets or to lift a freeze on the couple's assets. On the second day of trial, the husband belatedly disclosed that he stood to inherit considerable assets from his parents, thereby raising complex legal issues on equitable distribution which the wife was ill prepared to handle.The Appeals Court held that she should have been granted a further continuance and that the freeze on spending should have been lifted so that the wife could take out a loan to hire new counsel.

Commonwealth v. Molina, 439 Mass. 206, 786 N.E.2d 1191 (2003). In this case, the police obtained a detailed statement from the victim of an alleged rape. Although they had probable cause to arrest the defendant, they neglected to obtain an arrest warrant and instead spent several hours preparing reports. They arrested the defendant on the front steps of his house. They then brought him inside the house and “march[ed him] from room to room”, observing various items that the victim had described The Supreme Judicial Court rejected the officers' claim that exigent circumstances justified the entry into the house, noting that the claimed exigency did not arise until the police arrived at the scene to arrest the defendant. Nothing in the circumstances prevented the police from obtaining a warrant before going to the defendant's house, and the observations made therein should have been suppressed.

Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173, 782 N.E.2d 1 (2003). In this case, the Massachusetts Appeals Court upheld a judgment where the trial court found that a lender had engaged in a classic "bait and switch" scheme with a prospective borrower who wished to finance the purchase of an automomobile dealership. The lender had approached the borrower and offered him financing for the purchase on favorable terms, including an SBA loan. The borrower accepted the terms, forgoing other available financing. The lender then delayed in preparing the necessary paperwork and ultimately refused to close unless the borrower accepted a substantially higher interest rate and agreed to take floor plan financing on less favorable terms than he had secured elsewhere. The Appeals Court found that (1) the jury was warranted in finding that the lender breached the duty of good faith and fair dealing and, therefore, breached the contract with the borrower; (2) the evidence was sufficient to support a finding that the lender's dealings violated the unfair trade acts or practices statute; (3) the statements of a since deceased employee of an independent entity that screened and recommended Small Business Administration (SBA) loans were properly admitted as an exception to the hearsay rule; and (4) the evidence was sufficient to support a finding that the borrower was entitled to the sum of damages awarded by the jury.

Commonwealth v. Prashaw, 57 Mass. App. Ct. 19, 781 N.E.2d 19 (2003).
In this case, the government introduced, over the defendant's objection, embarassing and highly inflammatory photographs of the defendant, none of which had any relevance to any issue before the court. The Appeals Court concluded that the potential prejudice and the lack of relevance required a new trial.

Commonwealth v. Yehudi Y., 56 Mass. App. Ct. 812, 780 N.E.2d 150 (2002).
In this case, an undercover police officer made a controlled purchase of drugs from someone in the upstairs portion of a house occupied by the juvenile defendant and several of his friends. The police reentered the house through a rear entrance without first obtaining a warrant and secured the defendant and his friends. After this illegal entry, they went downstairs through an interior stairway to the living room where they found the defendant's parents. At the same time, other officers entered through the front door. After the police gave them a choice of consenting to a search or having them remain in the house until a warrant could be obtained, the defendant's parents consented to the search. The Appeals Court found that the parents' consent to the search was not valid, since it was given during the course of the illegal entry, and since in the circumstances they would not have felt that withholding their consent was an option. The court suppressed the fruits of the unlawful search.

Commonwealth v. Barros, 56 Mass. App. Ct. 675, 779 N.E.2d 693 (2002).
The police, suspecting that the defendant may have been involved in a murder the night before, discovered that he had a warrant outstanding for disturbing the peace. They appeared at his house early in the morning. After the defendant invited them in, they questioned him about the murder. Although they made some cautionary statement, they did not give him a full set of Miranda warnings prior to questioning him. The defendant made some incriminating statements, which led to the discovery of incriminating physical evidence. After his arrest and booking, the defendant said “I don't think I want to talk to you anymore without a lawyer.” Notwithstanding this clear expression that he wished to terminate the interview, the officers resumed the questioning, eliciting further incriminating statements. The Appeals Court affirmed the allowance of the defendant's motion to suppress his statements and the physical evidence traceable to the illegal police action.

Commonwealth v. DiMarzio, 436 Mass. 1012, 767 N.E.2d 1059 (2002), s.c. 52 Mass. App. Ct. 746, 756 N.E.2d 9 (2001).
The police entered the defendant's warehouse investigating another crime and immediately smelled marijuana. They entered the defendant's office and took him into custody. Without advising him of his Miranda rights, they demanded that he tell them where the marijuana was. He opened the desk drawer and gave them the marijuana. The Appeals Court and the Supreme Judicial Court both found that the marijuana should have been suppressed, since it was discovered as a result of a Miranda violation and since the Commonwealth did not establish that its discovery would otherwise have been inevitable.

Sheek v. Asia Badger, Inc., 235 F.3d 687 (1st Cir. 2000).
A supervisor for Mobil Oil Corporation was assigned to assist in the construction of an oil refinery in Singapore. He was seriously injured on the job allegedly due to the negligence of employees of the contractor on the project. A Federal jury in the United States District Court awarded Sheek damages of $387,000, plus interest. The contractor appealed, challenging the sufficiency of the evidence, claiming errors in the jury instructions, and challenging sanctions imposed for a violation of the discovery rules. The First Circuit Court of Appeals affirmed on all points, upholding both the judgment and the damage award. The case was tried in the District of Massachusetts, since the contractor is a Raytheon subsidiary, although the law of Singapore governed the action.

Commonwealth v. Conaghan, 433 Mass. 105, 740 N.E.2d 956 (2000).
On December 22, 2000, in a 4 to 3 decision, the Supreme Judicial Court ruled that a woman who claimed to be suffering from battered woman syndrome was entitled to an examination by an expert on the subject to determine "her competency to assist counsel in her defense and to enter a voluntary plea due to battered woman syndrome." Commonwealth v. Conaghan, 433 Mass. 105, 110 (2000). In so deciding, the Supreme Judicial Court overruled a split decision of the Appeals Court which had found that Conaghan did not fit the traditional definition of a battered woman. Commonwealth v. Conaghan, 48 Mass. App. Ct. 304, 312-313 (1999). Typically, the defense of battered woman syndrome is raised in cases where the defendant has been physically abused for a long period of time and where she commits an act of violence against her alleged batterer. In this case, the abuse alleged by the defendant was primarily psychological, and she sought to introduce evidence of BWS to show that her guilty plea to the killing of her son was involuntary. In granting her an examination, the court took a flexible approach that would permit women to raise the defense in circumstances that do not fit the classic definition of BWS.

Commonwealth v. Lubiejewski, 49 Mass. App. Ct. 212, 729 N.E.2d 288 (2000). In this case, the Massachusetts Appeals Court reversed the defendant's OUI conviction, suppressed all evidence, and dismissed the charges based on an illegal stop of his motor vehicle. An anonymous caller reported that the defendant's truck had been driving on the wrong side of the highway. After running his license plate and learning his identity, the police drove toward his house. They observed the defendant's truck driving toward them in the opposite direction and immediately turned around and stopped it. The police did not observe any erratic driving. However, upon questioning him and removing him from the vehicle, they concluded that he was under the influence of alcohol. In reversing the conviction, the court held that the anonymous tip did not provide the police with probable cause or even a reasonable suspicion that the defendant had committed a crime. The court also rejected the claim that the stop was warranted as a public safety measure. The court concluded that the police could have followed the truck for a time without undue danger to the public to determine whether the defendant was driving erratically.

Commonwealth v. Genaro Sanchez, 49 Mass. App. Ct. 1105, 735 N.E.2d 417 (2000).
In this unpublished decision, the Massachusetts Appeals Court reversed the defendant's drug trafficking conviction, suppressed a kilogram of cocaine, and dismissed the indictment based on illegal police conduct. A state trooper stopped the defendant's vehicle late at night in Brockton, ostensibly for a cracked taillight lens. The defendant produced a valid license and registration, but he appeared nervous and could not identify the specific house he intended to visit. The trooper ordered him out of the car and frisked him for weapons. When a second trooper arrived, he searched the car for weapons. Upon discovering a possible hidden compartment on the floor of the car, he called for a trooper familiar with such compartments. The troopers found a wire and touched it against a live fuse, causing the lid to the compartment to pop open and revealing the contraband. A Superior Court judge denied the defendant's motion to suppress, and a jury convicted him of trafficking in cocaine. The judge imposed a mandatory fifteen-year sentence. The Appeals Court reversed, holding that once the defendant had produced a valid license and registration, the trooper had no basis to order him out of the car. Nothing in the circumstances of the stop raised even a reasonable suspicion that a crime had been committed, nor did the trooper have an objectively reasonable basis for fearing for his safety. The trooper should have issued a citation for the taillight infraction and allowed him to go on his way. The court suppressed the cocaine and dismissed the indictment.

E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999).
In this landmark case, the Massachusetts Supreme Judicial Court ordered visitation rights between a child and the child's nonbiological "de facto" parent, one of two women coparents in a nontraditional family relationship. The court recognized that "notions of modern family" can include same gender couples and that in such relationships, the children form parental relationships with both parents. In assessing custody, visitation, and adoption rights, the court held that the best interests of the child are of paramount importance. In this case, I wrote the briefs on behalf of the child before the single justice and the full bench.

Commonwealth v. Adams (Nerette), 416 Mass. 55, 617 N.E.2d 524 (1993).
The Supreme Judicial Court in this case reversed the defendant's first degree murder conviction and remanded the case for a new trial. The defendant and a companion had robbed a convenience store. One of the two shot and killed the store-owner with a shotgun. The companion carried the shotgun into and out of the store, but he claimed he had handed it to the defendant and took the gun back only after the defendant shot the victim. The defendant claimed that the companion killed the store-owner and that he never touched the gun. The Supreme Judicial Court reversed the convictions of both based on the admission of their statements in a joint trial in which each of them denied his own guilt and blamed the other. The admission of this type of statement from a nontestifying co-defendant presented a classic Bruton problem, which required reversal.

Commonwealth v. LeBlanc, 30 Mass. App. Ct. 1, 565 N.E.2d 767 (1991).
This case was the first case in Massachusetts, and one of the first in the country, to recognize an agency defense in a criminal case. The defendant in this case sold a small amount of cocaine to an undercover officer. He testified that the officer immediately arrested him but offered to "do something" for him if he brought in his source. The defendant then arranged to have his suppliers deliver a kilogram of cocaine to the officer. As soon as the kilogram was produced, the police arrested and charged everyone-including the defendant-with trafficking in a kilogram or more of cocaine. The defendant asked for an instruction on agency as a defense to the trafficking charge. The judge instructed the jury on entrapment but refused to instruct on agency. The jurors returned with several questions suggesting that they believed his account but were struggling with the definition of entrapment. Ultimately, they convicted him.

The Appeals Court reversed, finding the entrapment to be a poor substitute for the requested instruction on agency. As the court explained, under the standard definition of entrapment, the jurors were required to reject the defense if they found that the defendant was predisposed to committing the crime. Because he had willingly sold cocaine to the officer before the deal for the kilogram, he was clearly predisposed. Thus, even if the jurors believed him, they had to reject the defense. However, the court held that the jury should have been instructed that had the defendant been acting as an agent of the police in facilitating the deal, his agency relationship with the police was a complete defense to the charge.

Commonwealth v. Walsh, 407 Mass. 740, 555 N.E.2d 593 (1990).
In this case, the Supreme Judicial Court of Massachusetts found that the evidence was insufficient to support the defendant's first-degree murder conviction. The defendant started a fight with one man while two of his friends simultaneously attacked and fatally stabbed a second man. Although the defendant had not participated in the attack on the second man, the jury convicted him of the stabbing on the theory that all three men had engaged in a single joint venture to attack the two victims.
The Supreme Judicial Court reversed the defendant's murder conviction and dismissed the charge. While the court acknowledged that the evidence was consistent with the Commonwealth's single joint venture theory, it was equally consistent with the defense theory that the attacks were separate. To allow a conviction to stand in these circumstances would permit a conviction on speculation rather than proof beyond a reasonable doubt.

Commonwealth v. King, 400 Mass. 283, 508 N.E.2d 1382 (1987).
This case, which I handled on appeal for the Commonwealth, established the standards that must be met to merit dismissal of criminal charges based on egregious government misconduct. During a pretrial hearing, government investigators had placed a tape recorder under counsel table in an effort to record privileged conversations. They also met with the defendant in jail knowing he was represented by counsel, disparaged his attorneys, and encouraged him to cooperate with them. The Supreme Judicial Court criticized the officers' conduct, but affirmed the denial of the defendant's motion to dismiss. This case is widely cited in police and prosecutorial misconduct cases.
Commonwealth v. Jiminez, 22 Mass. App. Ct. 286, 493 N.E.2d 501 (1986). This case received little notice at the time it was decided but was the first Massachusetts case to hold that when the police have probable cause to search a motor vehicle, their authority to search extends to all portions of the vehicle, including the locked trunk. The Appeals Court also held that where the police position themselves behind and follow a motor vehicle for the purpose of observing the license plate, such conduct does not constitute a "pursuit" and does not encroach on the occupants' privacy interests. It is now widely cited in auto search cases in Massachusetts as well as in other jurisdictions. I was the prosecutor on appeal in this case

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