KANTROWITZ, J. Charged with murder in the first degree, the defendant, Janleer Povez, was found guilty of murder in the second degree. 1 He appeals, claiming error in (1) the allowance of a peremptory challenge of a prospective Hispanic juror; (2) the judge's failure to order, sua sponte, a competency examination; and (3) the instructions provided to the jury. 2 As we are constrained to agree with the defendant on his first claim, we reverse. Facts. On April 21, 2008, Jack McGuire was a...
HINES, J. The defendants, Shawn Hunt and Jonathan Michael Pittman, were indicted for murder in the first degree and carrying a firearm without a license by a Bristol County grand jury. After a grand jury witness, the victim's mother, admitted to fabricating her identification of the defendants as the perpetrators of the crime, a judge allowed the defendants' motions to dismiss the indictments without prejudice. The Commonwealth now appeals from the order allowing the motions to dismiss,...
SIKORA, J. This appeal presents a question of the jurisdiction of the Massachusetts courts over a business corporation located exclusively in New York State. The plaintiff, Diamond Group, Inc. (Diamond), is a wholesale distributor of perfume products; its sole business location lies in Newton, Massachusetts. The defendant, Selective Distribution International, Inc. (Selective), is a distributor of fragrances, cosmetics, and beauty aids and accessories to retailers; its sole location lies in...
KATZMANN, J. This appeal arises from a construction accident and involves a dispute over indemnification. 2 The primary issue on appeal is whether the trial judge properly granted summary judgment against Fraco Products, Ltd., and Fraco Products, Inc. (collectively, Fraco), on their third-party complaint seeking indemnification from Bostonian Masonry Corporation (Bostonian) on a theory of common-law indemnity, where Bostonian had paid workers' compensation benefits to the estate of its...
SIKORA, J. The issue on appeal is whether a biological father (father) had a right to counsel in the adoption proceeding terminating his parental rights. The father appeals from decrees of the Probate and Family Court (probate court) approving the adoption of his two sons and severing his parental rights and duties. The petitioners are the children's mother and stepfather. Throughout the proceeding in the probate court, the father did not retain counsel or receive appointed counsel. 2 Four...
COHEN, J. The defendant stands indicted and is awaiting trial on charges of murder in the first degree (G. L. c. 265, 1), armed robbery (G. L. c. 265, 17), and carrying a dangerous weapon (G. L. c. 269, 10), arising from the shooting of Luis Rodriguez at a party in Haverhill. After an evidentiary hearing, a judge of the Superior Court allowed, in part, the defendant's motion to suppress statements made during an interview with police. Having obtained leave from a single justice of the...
CARHART, J. After a Superior Court jury trial, the defendant was convicted of four counts of rape of a child and one count of indecent assault and battery on a child under the age of fourteen years. 1 On appeal, he alleges that the prosecutor's closing argument deprived him of a fair trial; the evidence was insufficient to support a conviction of one of the charges of rape of a child; and the judge erred by not instructing the jury, sua sponte, on the lesser included offense of indecent...
WOLOHOJIAN, J. In 2005, the defendant admitted to sufficient facts to support a complaint charging him with assault by means of a dangerous weapon (glass bowl), assault and battery, and threats to commit a crime. 1 A judge of the District Court accepted the defendant's change of pleas, continued the cases without a finding, and imposed eleven months of probation. 2 Six years later, following a trip to Cape Verde, 3 the defendant was denied reentry into the United States because of the...
MILKEY, J. The St. James Episcopal church sits at the intersection of Massachusetts Avenue and Beech Street in North Cambridge. Built in 1888, the church was designed by noted New York architect Henry M. Congdon in a style that has come to be known as "Romanesque revival." Since 1983, the church has been listed on the National Register of Historic Places, and all parties to this litigation recognize that it has significant historic value. Also at the site are a parish hall that predates the...
RESCRIPT Paul Brouillette appeals from an order by a judge of the Superior Court vacating an arbitration award and reinstating a decision by the Commissioner of Correction (commissioner) that discharged Brouillette from his position as a correctional officer. We dismiss the appeal for lack of standing. Pursuant to the collective bargaining agreement (agreement) between the Department of Correction (department) and the Massachusetts Correction Officers Federated Union (union), an employee who...
BERRY, J. This case involves a series of four controlled cocaine "buys" by a State trooper, acting undercover, from a man known as "Carlos" — but later identified as the defendant, Adolfo Marte. Based on these controlled buys, a jury convicted the defendant of four counts of trafficking in cocaine in excess of twenty-eight grams. The defendant was also convicted of a single count of trafficking in cocaine in excess of 200 grams based on seizures pursuant to a search warrant executed at the...
WOLOHOJIAN, J. At issue is whether a worker supplied to an insured by a labor leasing firm was "furnished . . . to meet. . . short-term workload conditions" such that she was a "temporary worker" within the meaning of the commercial general liability (CGL) insurance policy issued by the insurer, Central Mutual Insurance Company (Central Mutual), to the insured, True Plastics, Inc. (True Plastics). We agree with the trial judge's determination that the particular worker at issue in this case...
Hines, J. Following a jury trial, the defendant was convicted of attempted kidnapping, G. L. c. 274, 6, and of accosting or annoying a person of the opposite sex, G. L. c. 272, 53. 1 On appeal, he argues that (1) the Commonwealth presented insufficient evidence to support the convictions; (2) his motion to vacate the attempted kidnapping conviction was wrongly denied; and (3) trial counsel provided ineffective assistance during the course of the trial. 2 We affirm in part and reverse...
HANLON, J. After a jury trial, the defendant was convicted of aggravated kidnapping, armed robbery, aggravated rape, 1 assault and battery by means of a dangerous weapon (a belt), and witness intimidation. He appeals from the denial of his motion to suppress physical evidence and a postarrest statement. He also argues that (1) his conviction should be reversed because the prosecutor improperly used his exercise of Miranda rights against him; (2) the erroneous admission of first complaint...
COHEN, J. In this action pursuant to the Massachusetts Wage Act, G. L. c. 149, 148, 1 150 2 (Wage Act), Florida resident Russell Dow, an employee of Starbak, Inc., 3 a corporation organized under the laws of Delaware, with a sole place of business in Massachusetts, brought suit against Starbak's chief executive officer, Gregory Casale, 4 a Massachusetts resident, seeking unpaid sales commissions of more than $100,000, certain unreimbursed expenses, wages in lieu of accrued vacation...
CYPHER, J. The plaintiff, Sears, Roebuck & Co. (Sears), appeals from a decision of the Appellate Tax Board (board) denying its claims for reimbursement of sales taxes it remitted to the Commonwealth from purchases of its products by customers using a private label credit card issued by Citibank, N.A. (Citibank), and who later defaulted on their accounts with the bank. Facts. We summarize the background from the board's findings based on the parties' joint stipulation and their agreed...
BROWN, J. Just days after an at-will employee reiterated her displeasure to her employer at having long been denied a part of her compensation, she was fired. A complaint, filed by the aggrieved employee (plaintiff), set out a series of interlinked facts, sufficiently detailed, which, when read together, suggested the corporate employer and its president had violated 148A of the Massachusetts Wage Act, G. L. c. 149, 148 et seq. (Wage Act), by terminating the plaintiff's employment in...
SULLIVAN, J. The charges in this case arose from events which occurred on the evening of September 12, 2008, in an abandoned building on Main Street in Worcester. The defendant was convicted of indecent assault and battery on a woman named Anne, 1 who died later that night in a fire that consumed the building. He was also convicted of armed assault with intent to kill (as a lesser included offense of armed assault with intent to murder), assault with intent to maim, and assault and battery by...
AGNES, J. The principal question presented by this appeal is whether the judge was correct in determining that the purported transfers of the beneficial interests in two pieces of real estate by a husband to his wife as an alleged estate planning maneuver failed and thereby gave rise to resulting trusts. We conclude that the judge was warranted in finding that at the time of the transfers the husband's intent was to protect the two properties from his creditors, and that he did not intend...
GRAHAM, J. The issue presented in this appeal is whether a Probate and Family Court judge has the power to order dependency exemptions for State and Federal income tax returns to be allocated to the husband, over the objection of the wife, in conjunction with an order for child support. Background. The parties, Phalla Iv (wife) and Samath Hang (husband), were married in 2004 and separated in 2010. Two children were born of the marriage. By a judgment of divorce nisi dated April 27, 2011, the...
