LENK , J. In December, 1984, a young woman was found dead, her body badly beaten, in a vacant lot in Boston. Twenty-three years later, deoxyribonucleic acid (DNA) was extracted from samples taken from the victim's body and clothing soon after her death and run through a national computerized database. A match was found with the defendant's DNA. The defendant was tried for murder in the first degree. His defense at trial was that he had had consensual sex with the victim but had not been...
CORDY , J. This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, 43A ( a ), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the...
SPINA , J. We consider in the present case challenges brought against two ordinances adopted by the city of Springfield (city) in response to a wave of foreclosures triggered by the economic downturn of 2008. The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): 2 "1. Are Springfield's municipal ordinances Chapter 285, Article II, `Vacant or Foreclosing Residential...
GANTS , C.J. A jury in the Superior Court convicted the defendant of murder in the second degree for the killing of Myles Lawton. The defendant also was convicted of armed assault with intent to murder for the shooting of Pierre Laguerre, and of possession of an unlicensed firearm. 1 Represented by new counsel, the defendant moved for a new trial. The trial judge denied the motion in part on the papers, and denied the remaining part of the motion following an evidentiary hearing regarding...
LENK , J. Over a three-year period ending in 1988, when he was sixteen years old, John Doe No. 68549 repeatedly subjected two of his cousins to sexual assaults, including rape. His victims came forward many years after the fact and, in October, 2003, when Doe was thirty-one years old, he pleaded guilty to a number of sex offenses committed when he was a juvenile. In March, 2006, a hearing examiner of the Sex Offender Registry Board (SORB) determined that Doe posed a moderate risk of...
DUFFLY , J. This case arises out of a major ice storm that struck areas of the northeastern United States in December, 2008 (Winter Storm 2008). The defendant, Fitchburg Gas and Electric Light Company (FG&E), is a public utility that provides electric service to customers in the municipalities of Fitchburg, Lunenburg, Townsend, and Ashby, which were among those affected by the storm. FG&E is one of the utilities owned by Unitil Corporation (Unitil). The plaintiffs are twelve residential...
DUFFLY , J. The defendant was indicted for the armed robbery and murder of Paula Doherty. The victim was last seen alive on Saturday, September 30, 2006, at her Medford residence, where she, a friend, the defendant, and the defendant's nephew had been using cocaine. When the friend left at 5:30 P.M. that afternoon, the defendant had passed out in a chair in the victim's room and the victim was preparing to go to sleep. On Monday, October 2, after the victim failed to return telephone calls,...
LENK , J. The personal injury protection (PIP) provision of the automobile insurance statute permits an unpaid party to bring an action for breach of contract against an automobile insurer if the latter has not paid PIP benefits for more than thirty days after those benefits became due and payable. G. L. c. 90, 34M, fourth par. If the unpaid party receives a judgment for any amount due and payable by the insurer, it also may recover its costs and reasonable attorney's fees. The primary...
LENK , J. The plaintiff's insurer refused to defend or to indemnify the plaintiff in connection with an environmental dispute involving the Department of Environmental Protection (DEP). Several years later, the plaintiff, having by then funded both its own defense and the environmental remediation ordered, brought suit against the insurer, alleging breach of contract and seeking declaratory relief; on a motion for partial summary judgment, the plaintiff obtained declaratory relief...
CORDY , J. This case requires us to decide whether a Massachusetts hospital employer owes a legally cognizable duty of care to future patients of a doctor who has left the hospital's employ and resumed practicing medicine in the employ of a different hospital in another State. We conclude that such a duty is not cognizable in the circumstances presented here, where the hospital does not have the type of special relationship either with its former employee, or with any of his prospective...
BOTSFORD, J. In Beard Motors, Inc. v. Toyota Motor Distribs., Inc., 395 Mass. 428 (1985) ( Beard Motors ), this court held that a Massachusetts motor vehicle dealer did not have standing to maintain an action for an alleged violation of G. L. c. 93B, 12A, against a motor vehicle distributor with which it was not affiliated. In the case before us, the principal question is whether amendments to the statute in 2002 broadened the scope of standing under c. 93B, such that Massachusetts...
CORDY, J. Just before midnight on May 3, 2002, police responded to 16 Sumner Street in Quincy after a neighbor telephoned to report that she had just witnessed the defendant, Gregory A. Wall, moving a trash barrel with a human leg protruding from it across their shared backyard. On arrival, the officers observed a trail of red droplets leading to the defendant's back door. Through a window in the door, one of the officers observed the legs of someone standing next to a plastic bag containing...
SPINA, J. Following a jury trial in the Superior Court in December, 2008, the defendant, Joseph D. Sullivan, 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. 2 He was sentenced to from three to five years in the State prison on his conviction of attempted kidnapping, and he was sentenced to three years' probation on his conviction of accosting or annoying a person of the opposite sex, to commence on and...
BOTSFORD, J. After a jury trial, the defendant, Mikolaj Letkowski, was convicted of aggravated kidnapping, aggravated rape, armed robbery, assault and battery by means of a dangerous weapon, and intimidation of a witness. The defendant appealed, and the Appeals Court affirmed the convictions. Commonwealth v. Letkowski, 83 Mass.App.Ct. 847 (2013). We granted the defendant's application for further appellate review, limited to issues concerning the prosecutor's references to the defendant'...
GANTS, J. Three utility companies (utilities) challenge orders entered against them by the Department of Public Utilities (department) that impose monetary penalties for failing to "restore service to [their] customers in a safe and reasonably prompt manner," in violation of 220 Code Mass. Regs. 19.03(3) (2010), after electrical outages arising from Tropical Storm Irene (Irene) on August 28, 2011, and a snowstorm two months later on October 29 (October snowstorm). The utilities —...
LENK, J. The defendant appeals from his conviction of murder in the second degree. He maintains both that a Superior Court judge erred in denying his motion to dismiss for lack of a speedy trial pursuant to Mass. R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996), and that errors in the prosecutor's closing argument require reversal. As to the speedy trial claim, the judge did not abuse his discretion in denying the defendant's motion to dismiss under Mass. R. Crim. P. 36, 378 Mass. 909 (...
GANTS, J. On April 10, 1985, the defendant, Edward G. Wright, was convicted by a jury of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. We affirmed the defendant's conviction and the denials of his first and second motions for a new trial. Commonwealth v. Wright, 411 Mass. 678 , 683, 686-689, 691 (1992). After various proceedings, which we will detail below, the defendant, in April, 2012, filed his fifth motion for a new trial,...
Background. In 2010, Nautical Tours filed a petition with the department concerning its proposed operation of amphibious motor vehicles over certain public ways in Boston. Nautical Tours asked the department (1) to exercise its licensing authority to issue a municipal street license under G. L. c. 159A, 1; and (2) to amend the certificate of public convenience and necessity that it had issued in a proceeding in 2007, under G. L. c. 159A, 7. In its 2007 order, the department concluded that...
BOTSFORD, J. Joseph McDowell was hired by the city of Springfield (city) in 1987 as a skilled laborer, and soon thereafter achieved the status of a permanent, tenured civil service employee of the city. In 1993, he received the first of two provisional promotions; 3 he worked in the second of these provisional positions until 2005, when the city terminated his employment. One issue we consider in this appeal is whether, despite being terminated from his provisional position, McDowell was...
SPINA, J. The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. He filed a motion for a new trial alleging ineffective assistance of counsel, and he requested an evidentiary hearing. The trial judge denied the motion without a hearing. Her indorsement in the margin said, "for the reasons stated in [the Commonwealth's] opposition." On appeal the defendant alleges error in the denial of his motion for a new trial,...
