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Opinion revisions

Corrections to published opinions will be noted below.

Opinions published in the electronic advance sheets of the Massachusetts Reports and Massachusetts Appeals Court Reports are subject to correction, amendment, and supplementation prior to publication in final form in the official bound volumes.  Such revisions are noted in the lists below.

Revisions for Massachusetts Reports

  Volume, Page Case Name Description of Revision Date Revised
  493, 197 Commonwealth v. Barlow-Tucker Amendment - in lines fifteen and sixteen of second headnote, replace "did not create a substantial risk of a miscarriage of justice" with "probably did not make a difference in the decision to indict". 4/12/2024
  493, 198 Commonwealth v.  Barlow-Tucker Amendment - in last line of second headnote, replace "did not create a substantial risk of a miscarriage of justice" with "probably did not have an impact on the decision to indict". 4/12/2024
  493, 209 Commonwealth v. Barlow-Tucker Amendment - in fourth full paragraph, in first sentence, replace "demonstrate" with "constitute". 4/12/2024
  493, 210 Commonwealth v. Barlow-Tucker

Amendment - in first full paragraph, in last sentence, after "evidence" insert "probably".

 4/12/2024
  493, 211 Commonwealth v. Barlow-Tucker Amendment - in line 6, delete "material". 4/12/2024
  493, 211 Commonwealth v. Barlow-Tucker Amendment - in line 7, after "not" insert "material to". 4/12/2024
  493, 211 Commonwealth v. Barlow-Tucker

Amendment - in first full paragraph, delete the following:

Because this alleged flaw was not "seasonably asserted" at the trial court level, it is waived, and we review to determine whether there was error and, if so, whether a substantial risk of a miscarriage of justice resulted.  See Mayfield, 398 Mass. at 622 n.4; Commonwealth v. Gant, 51 Mass. App. Ct. 314, 320-321 (2001).  "A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result . . . might have been different had the error not been made" (quotation and citation omitted).  Commonwealth v. Curran, 488 Mass. 792, 794 (2021).		 4/12/2024
  493, 211 Commonwealth v. Barlow-Tucker Amendment - at beginning of second full paragraph insert "More specifically," and move all of second full paragraph back to merge with previous paragraph. 4/12/2024
  493, 212 Commonwealth v. Barlow-Tucker

Amendment - at end of paragraph continued from pg. 211, replace "the evidence probably did not influence the grand jury's decision to indict.  Therefore we discern no substantial risk of a miscarriage of justice.  See" with the following:

we conclude that the defendants have not shown that this evidence "probably made a difference" in the grand jury's decision to indict.

 4/12/2024
  493, 212 Commonwealth v. Barlow-Tucker Amendment - in first full paragraph, delete last sentence, footnote 9, and citations. 4/12/2024
  493, 212 Commonwealth v. Barlow-Tucker

Amendment - in paragraph continuing from pg. 212 to pg. 213, at end of first sentence, insert new footnote 9:

     9For the same reasons we set forth rejecting Matthew's arguments, supra, we reject Cassandra's arguments about the impact of the financial records, the blog posts, Darlene's statement, and the failure to highlight positive statements from the social workers; rather, when viewed in the context of the entire proceeding, neither defendant has established that these materials probably influenced the grand jury's decision to indict.		 4/12/2024
  493, 213 Commonwealth v. Barlow-Tucker Amendment - in first full paragraph, in second sentence, replace "arrangement of who would take the child to the appointments was" with "determination of who would take the child to the appointments was made on". 4/12/2024
  493, 215 Commonwealth v. Barlow-Tucker

Amendment - in first full paragraph, replace last three sentences and citation with the following:

The evidence was not presented for the purpose of an indictment, nor do we conclude -- in view of all of the evidence presented against the Tuckers -- that the statement probably had an impact on the grand jury's decision to indict.  Therefore, Cassandra has failed to meet the "heavy burden" imposed by Mayfield.  See Mathews, 450 Mass. at 876.		 4/12/2024
  493, 211-215 Commonwealth v. Barlow-Tucker Text shifting resulting from Amendments. 4/12/2024
  493, 236 Commonwealth v. Mattis

Amendment - replace portion of first full paragraph that is above block quotation with the following:

Because the Legislature does not currently provide a parole eligibility scheme for this category of offenders, "it is reasonable to conclude that the Legislature would impose the next most severe penalty provided in its sentencing scheme on defendants convicted of the most severe crime in that scheme."  See Commonwealth v. Brown, 466 Mass. 676, 682 (2013); Watt, 484 Mass. at 753-754, citing Diatchenko I, 466 Mass. at 672-673.  Here, that means applying G. L. c. 279, § 24, as amended through St. 2014, c. 189, § 6, which sets parole eligibility for juvenile offenders who have committed murder in the first degree as follows:
3/22/2024
  493, 237 Commonwealth v. Mattis

Amendment - replace first full paragraph with the following:

This version of § 24, which the Legislature amended together with G. L. c. 265, § 2, in response to our decision in Diatchenko I, went into effect on July 25, 2014, and thus now applies to those emerging adult offenders who committed murder in the first degree on or after that date. 

    Those who committed their offense prior to July 25, 2014, are eligible for parole based on the next most severe penalty that was applicable on the date of the offense.  Specifically, those who committed their offense between August 2, 2012, and July 24, 2014, are entitled to parole eligibility after serving between fifteen and twenty-five years in prison.  See G. L. c. 279, § 24, as amended through St. 2012, c. 192, § 46.  And those who committed their offense prior to August 2, 2012, are entitled to parole eligibility after serving fifteen years in prison.  See Brown, 466 Mass. at 689, n.10; Diatchenko I, 466 Mass. at 673.  This includes the defendant, who committed his offense in 2011. 

    Those emerging adult offenders who, as a result of their date of offense, attain parole eligibility after a fixed term of years shall have their sentence so reflect.33 Those who committed their offense prior to August 2, 2012, shall be eligible for parole after serving fifteen years of their prison sentence.  Those who committed their offense on or after July 25, 2014, and were convicted on a theory of extreme atrocity or cruelty, shall be eligible for parole after serving thirty years.  Any such offender who has served the requisite number of years and therefore is currently eligible for parole may apply to the Massachusetts parole board for a hearing.  See Diatchenko I, 466 Mass. at 673-674.  Those defendants whose parole eligibility date is discretionary may request a hearing to have the date set within the date ranges discussed supra.
3/22/2024
  493, 237 Commonwealth v. Mattis

Amendment - insert new footnote 33:

    33Those who committed their offense prior to August 2, 2012, shall be eligible for parole after serving fifteen years of their prison sentence.  Those who committed their offense on or after July 25, 2014, and were convicted on a theory of extreme atrocity or cruelty, shall be eligible for parole after serving thirty years.		 3/22/2024
  493, 237 Commonwealth v. Mattis

Amendment - in Conclusion, replace sentence with the following:

We remand this matter to the Superior Court to take such further action as is necessary and appropriate, consistent with this opinion.		 3/22/2024
  493, 236-302 Commonwealth v. Mattis Text shifting resulting from Amendments. 3/22/2024
  493, 222 Commonwealth v. Mattis Correction - in footnote 12, replace Post at 272-276 with Post at 274-277.    3/22/2024
  493, 242 Commonwealth v. Mattis Correction - in second full paragraph, replace post at 256-257, 261-263 with post at 257, 262-263; replace post at 280-281 with post at 281-282. 3/22/2024
  493, 243 Commonwealth v. Mattis Correction - in second full paragraph, replace post at 256-257, 261-263 with post at 257, 262-263; replace post at 280-281 with post at 281-282; in footnote 6, replace Post at 285-286 with Post at 285-287. 3/22/2024
  493, 295 Commonwealth v. Mattis Correction - in line 4, replace ante at 240 with ante at 240-241. 3/22/2024
  493, 321 Commonwealth v. Robinson

Amendment - in Conclusion, replace last sentence with the following:

The defendant's conviction of murder in the first degree is affirmed, and the matter is remanded to the Superior Court to take such further action as is necessary and appropriate, consistent with our decision in Mattis, 493 Mass. at 235-237.		 3/22/2024
  493, 1001 Matter of an Impounded Case Correction - insert "(No. 1)" after "In the Matter of an Impounded Case". 2/16/2024
  492, 691-692 Matter of the Estate of Jablonski Amendments - in second full paragraph, insert "would have" between "trust" and "terminated" (two times); delete "On termination of a trust pursuant to G. L. c. 203E...or control of the trustees at the time of the trust's termination." and replace with "The trust, however, was not operative at the time of Theresa's death.". 1/5/2024
  492, 692 Matter of the Estate of Jablonski Correction - in first full paragraph, replace semicolon after "Brisk" with a comma. 1/5/2024
  492, 693 Matter of the Estate of Jablonski Amendments - in second full paragraph, italicize "designate a charity"; insert after sentence ending "charity was named." the following new sentence: "Rather, the trust states that the trustees shall have the 'power and authority to designate a charity to receive the remainder for any and all such funds that shall be in [the trustees'] possession, custody or control' (emphasis added).". 1/5/2024
  491, 666-705 Commonwealth v. Guardado Amendment - on p. 666, in third headnote, in lines 7 through 9, delete text beginning "however" through "device;"; in line 9, replace "finally" with "further"; in line 10, replace "694" with "693"; resulting text shift and footnote text shift beginning on p. 666 through p. 705. 10/30/2023
  491, 668 Commonwealth v. Guardado Amendment - in first paragraph, delete last sentence beginning "Because" and ending "purposes")."; move footnote 1 to follow prior sentence ending "cannot stand.". 10/30/2023
  491, 687 Commonwealth v. Guardado Amendment - in lines 6 through 7 of first full paragraph, replace "Cassidy, 479 Mass. at 532" with "Commonwealth v. Cassidy, 479 Mass. 527, 532, cert. denied, 139 S. Ct. 276 (2018)." 10/30/2023
  491, 689 Commonwealth v. Guardado Amendment - in lines 9 through 10 of first full paragraph, replace "Heller, 554 U.S. at 635," with "District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (Heller)". 10/30/2023
  491, 693 Commonwealth v. Guardado Amendment - at end of last sentence in first paragraph, insert following new footnote 10: "Because the defendant does not argue that absence of licensure is an essential element of the crime of unlawful possession of a large capacity feeding device, G. L. c. 269, § 10 (m), we do not reach that issue."; delete entire first full paragraph beginning "Nonetheless". 10/30/2023
  492, 626 Commonwealth v. Souza Amendment - in line 1 of footnote 6, replace "The defendant contends that...statement in Adjutant" with "In Adjutant, 443 Mass. at 666, we stated". 10/20/2023
  492, 627 Commonwealth v. Souza Amendment - in line 1 of footnote 6, delete "Adjutant, 443 Mass. at 666." 10/20/2023
  492, 746 In the Matter of Foster Correction - in line 3 of second full paragraph, replace comma after "cert" with a period. 9/22/2023
  492, 744 In the Matter of Foster Correction - in line 4 of first full paragraph, insert "Bosse" after "assistant district attorneys". 9/22/2023
  492, 736 In the Matter of Foster Correction - in line 2 of first paragraph, insert "Bosse" after "John"; in line 5 of first paragraph, insert "Bosse" after "Kaczmarek's statement to". 9/22/2023
  492, 726 In the Matter of Foster Correction - in line 1, replace comma after "(1998)" with a period; in line 3 of footnote 3, replace comma after "cert" with a period. 9/22/2023
  492, 542 Commonwealth v. Pond Correction - in line 4 of Background paragraph, replace "Daniel" with "David". 8/18/2023
  492, 410 Commonwealth v. Bateman Correction - in last line of first paragraph, replace "the population of the world" with "one billion". 8/11/2023
  492, 1002 Kifor v. Commonwealth (No. 1) Correction - in case caption after "others" insert "(No. 1)". 8/11/2023
  492, 519 Commonwealth v. Morris Correction - in line 6 of footnote 4, replace "99'ssignificant" with "99's significant". 8/4/2023
  491, 731 Commonwealth v. Hallinan Amendment - in line 11 of second paragraph, replace "the Alcotest 9510 device from June 1, 2011, through" with "an Alcotest 9510 device last calibrated and certified prior to". 7/7/2023
  491, 743 Commonwealth v. Hallinan Amendment - in line 4 of third full paragraph, replace "June 1, 2011, through" with "Alcotest 9510 devices calibrated and certified prior to". 7/7/2023
  491, 746 Commonwealth v. Hallinan Correction - in line 1 of second full paragraph, replace "trial" with "case". 7/7/2023
  491, 748 Commonwealth v. Hallinan Amendment - in first full paragraph, in line16, after "plea" insert "or conviction after trial"; in lines 17 and 18, replace "defendant's breath test took place between June 1, 2011, and" with "defendant submitted to a breath test on an Alcotest 9510 device last calibrated and certified prior to". 7/7/2023
  491, 753 Commonwealth v. Hallinan Amendment - in first full paragraph, before last sentence, insert the following: "See also Commonwealth v. Morgan, 476 Mass. 768, 776 (2017), citing id. ("continuances are limited to first offenses and, once in a lifetime, to those with 'a single like offense . . . [ten] years or more before the date of the commission of the [present] offense'")."; resulting text shift from p. 753 to p. 754. 7/7/2023
  491, 755 Commonwealth v. Hallinan Amendment - in first full paragraph, in line 1, after "who" insert "were convicted after trial or"; in line 3, replace "from June 1, 2011, through" with "last calibrated and certified prior to"; in line 9, after "device" insert "last calibrated and certified". 7/7/2023
  491, 644 Commonwealth v. Rainey Amendment - in line 1 of footnote 21, replace "The Commonwealth incorrectly suggests" with "This is not to suggest". 5/12/2023
  491, 220 Commonwealth v. Eagles Correction - in line 4 of footnote 13, replace "defendant's" with "victim's". 5/12/2023
  491, 596 McCauley v. Superintendent, MCI, Norfolk Correction - in line 7 of second paragraph, replace "supervisor" with "superintendent". 4/21/2023
  491, 351 Commonwealth v. Kirkland Correction - in line 7, insert "Springfield police officer Raul" before "Gonzalez". 3/3/2023
  491, 352 Commonwealth v. Kirkland Correction - in line 8 of the third full paragraph, replace "to" with "of". 3/3/2023
  491, 354 Commonwealth v. Kirkland Correction - in line 9, replace "unequivocable" with "unequivocal". 3/3/2023
  491, 161 Le Fort Enterprises, Inc. v. Lantern 18, LLC Correction - in line 6 of the second full paragraph, replace "king-to-be" with "king". 1/20/2023
  491, 1006 In the Matter of Diviacchi Correction - in line 6 of the first paragraph, replace "fit" with "unfit". 12/16/2022
  490, 410 Cavanagh v. Cavanagh Amendment - in step (3), replace "determine which order" with "fashion an order which"; replace "determine which order to issue accordingly" with "then fashion the order such that it reflects, or alternatively is responsive to, those considerations"; and delete "pursuant to the calculations in step (2) or otherwise". 9/9/2022
  490, 1001 Tran v. Liberty Mutual Group, Inc. Amendment - in line 9 of first paragraph, insert "clear" after "no". 8/5/2022
  490, 1001-1002 Tran v. Liberty Mutual Group, Inc. Amendment - in footnote 2, delete second sentence and following citation that begins "See McMenimen v. Passatempo"; resulting footnote text shift from p. 1002 to p.1001. 8/5/2022

Revisions for Massachusetts Appeals Court Reports

    Volume, Page Case Name Description of Revision Date Revised  
    103, 1121 Commonwealth v. Cruz Supplement - further appellate review granted, 493 Mass. 1108 (2024). 4/26/2024  
    103, 1118 Commonwealth v. Montgomery Supplement - further appellate review granted, 493 Mass. 1108 (2024). 4/26/2024  
    103, 1114 Commonwealth v. Vasquez Supplement - further appellate review granted, 493 Mass. 1107 (2024). 4/5/2024  
    103, 291 Johnson v. Settino Supplement - further appellate review granted, 493 Mass. 1106 (2024). 3/1/2024  
    103, 469 Commonwealth v. Du Supplement - further appellate review granted, 493 Mass. 1106 (2024). 3/1/2024  
    103, 1102 Mackie v. Joss Supplement - further appellate review granted, 493 Mass. 1106 (2024). 3/1/2024  
    103, 1102 Mackie v. Rouse-Weir Supplement - further appellate review granted, 493 Mass. 1106 (2024). 3/1/2024  
    103, 1108 Commonwealth v. Torres Supplement - further appellate review granted, 493 Mass. 1106 (2024). 3/1/2024  
    103, 657 Commonwealth v. White Amendment - in line 7 of first full paragraph, replace "that he was a child molester" with "an offensive allegation against him". 2/2/2024  
    103, 1103 Commonwealth v. Hinds Supplement - further appellate review granted, 493 Mass. 1105 (2024). 1/26/2024  
    102, 831 Commonwealth v. Mitchell Supplement - further appellate review granted, 493 Mass. 1104 (2023). 12/29/2023  
    103, 263 Commonwealth v. Morrison Supplement - further appellate review granted, 493 Mass. 1104 (2023). 12/29/2023  
    103, 319 Commonwealth v. Russo Supplement - further appellate review granted, 493 Mass. 1104 (2023). 12/29/2023  
    102, 1110 Commonwealth v. Gomez Correction - delete rule 23.0 decision. 12/8/2023  
    103, 1114 Commonwealth v. Choute Correction - insert rule 23.0 decision after Adoption of Quindel. 12/1/2023  
    102, 1111 Commonwealth v. Choute Correction - delete rule 23.0 decision. 12/1/2023  
    103, 1109 Kretsedemas v. Zasoba Correction - delete rule 23.0 decision. 11/17/2023  
    102, 1121 Fannie Mae v. Branch Supplement - further appellate review granted, 493 Mass. 1102 (2023). 11/17/2023  
    103, 519 Commonwealth v. Derosier Correction - in line 1, delete "-White". 11/10/2023  
    102, 685 Cruz v. Commonwealth Supplement - further appellate review granted, 493 Mass. 1101 (2023). 10/27/2023  
    102, 609 Commonwealth v. Oliver Supplement - further appellate review granted, 492 Mass. 1105 (2023). 9/22/2023  
    102, 586 Commonwealth v. Scordino Supplement - further appellate review granted, 492 Mass. 1104 (2023). 8/11/2023  
    102, 1116 Commonwealth v. Bellard Supplement - further appellate review granted, 492 Mass. 1104 (2023). 8/11/2023  
    102, 522 Bristol Asphalt Co. v. Rochester Bituminous Products, Inc. Supplement - further appellate review granted, 492 Mass. 1103 (2023). 7/14/2023  
    102, 157 Commonwealth v. Jacques Supplement - further appellate review granted, 492 Mass. 1103 (2023). 7/14/2023  
    102, 1118 Commonwealth v. Roman Correction - delete rule 23.0 decision. 6/9/2023  
    102, 489 John Moriarty & Associates, Inc. v. Zurich American Insurance Co. Correction - in line 8, insert "83-84" in blank line. 6/2/2023  
    102, 488-489 John Moriarty & Associates, Inc. v. Zurich American Insurance Co. Correction - in last line of page 488 and first line of page 489, replace citation for Berkley National Insurance case with "617 F. Supp. 3d 77, 83 n.3 (D. Mass. 2022)". 6/2/2023  
    102, 97 Furnas v. Cirone Supplement - further appellate review granted, 492 Mass. 1101 (2023). 5/19/2023  
    102, 108 Commonwealth v. Kalila Supplement - further appellate review granted, 492 Mass. 1101 (2023). 5/19/2023  
    102, 264 Commonwealth v. Mcfarlane Supplement - further appellate review granted, 492 Mass. 1101 (2023). 5/19/2023  
    102, 393 Guardianship of C.A.

Amendment - in line 4 of second paragraph, replace "(Rogers) authorization" with "treatment order"; insert a new footnote 1 following "treatment order" and change footnote reference number for the footnotes that follow; resulting text shift.

 4/28/2023  
    102, 395 Guardianship of C.A. Correction - in line 5, replace "authorized the Rogers" with "he issued a substituted judgment"; in line 15, replace "with Rogers authority," with "and issuance of a substituted judgment treatment order,". 4/28/2023  
    102, 398 Guardianship of C.A. Correction - in line 12 of third full paragraph, replace "Rogers" with "substituted judgment treatment".  4/28/2023  
    102, 400 Guardianship of C.A. Amendment - in lines 15 and 16, delete the comma and the rest of the sentence that follows "with Zyprexa" and insert a new footnote 11 at end of that sentence; change footnote reference number for the footnotes that follow; in line 14 of of last paragraph, delete "Rogers"; resulting text shift. 4/28/2023  
    102, 401 Guardianship of C.A.

Correction - in line 10 of second full paragraph, replace "Rogers guardian with authority to consent to treating" with "guardian and entering the substituted judgment order authorizing treatment of".

 4/28/2023  
    102, 402 Guardianship of C.A. Correction - in lines 1 through 4, delete the text after "approving the" and before "judge furthered" and replace with "substituted judgment treatment plan that, in the event that C.A. refused Zyprexa, authorized continued administration of it.  The"; in lines 7 and 8, replace "Permitting the guardian to consent on C.A.'s behalf to" with "Authorizing administration of". 4/28/2023  
    102, 403 Guardianship of C.A. Correction - in line 8, replace "guardian to consent to continuing" with "continuation of"; in line 17, delete "guardian to consent to the"; in lines 39 and 40, replace text after "only to" and before "petition, with C.A." with the following: "uncontested Rogers reviews and extensions."  At issue here was an initial substituted judgment". 4/28/2023  
    102, 28 Cummings Properties, LLC v. Hines Supplement - further appellate review granted, 491 Mass. 1104 (2023). 3/31/2023  
    102, 130-133 Commonwealth v. Kalila Amendment - in several places in dissent, alter description of trial court's decision to deny defendant's motion to stay execution. 2/10/2023  
    102, 1105 MHM Correctional Services, Inc. v. Darwin Select Insurance Co. Amendment - delete Rule 23.0 decision. 1/27/2023  
    100, 728 Burlington Police Department v. Hagopian Correction - in line 4 of last paragraph, replace "congressperson" with "member of Congress". 1/27/2023  
    101, 516 Adams v. Schneider Electric USA Supplement - further appellate review granted, 490 Mass. 1108 (2022). 11/18/2022  
    101, 1115 Commonwealth v. Delossantos Supplement - further appellate review granted, 490 Mass. 1108 (2022). 11/18/2022  
    101, 102-108 Commonwealth v. Salsbury Correction - insert "(No. 1)" at end of case name. 10/28/2022  
    101, 1111 Commonwealth v. Salsbury Correction - insert "(No. 2)" at end of case name. 10/28/2022  
    101, 278 Commonwealth v. Desiderio Supplement - further appellate review granted, 490 Mass. 1107 (2022). 10/21/2022  
    101, 32 Church of the Holy Spirit of Wayland v. Heinrich Supplement - further appellate review granted, 490 Mass. 1105 (2022). 9/30/2022  
    101, 150 Huang v. RE/MAX Leading Edge Supplement - further appellate review granted, 490 Mass. 1106 (2022). 9/30/2022  
    101, 439 Commonwealth v. Rodriguez Amendment - in line 9 of first paragraph insert "was not substantially" before "outweighed" and insert "by" after "outweighed". 8/5/2022  
    101, 446-447 Commonwealth v. Rodriguez Amendment - on p. 446, in line 2 insert "was not substantially" after "value"; in line 3 insert "by" after "outweighed"; in line 14 insert "was not substantially" after "evidence"; in line 15 insert "by" after "outweighed"; resulting text shift from p. 446 to p. 447. 8/5/2022  
    101, 447 Commonwealth v. Rodriguez Amendment - in line 3 of second full paragraph insert "substantially" after "epithet". 8/5/2022  
    101, 451 Commonwealth v. Rodriguez Amendment - in line 1 of first paragraph delete "far" and replace with "substantially"; in line 3 of fourth paragraph insert "substantially" after "ordinarily". 8/5/2022  
    101, 452 Commonwealth v. Rodriguez Amendment - in line 13 of first paragraph insert "substantially" after "not"; in line 7 of second paragraph delete "far" and replace with "substantially". 8/5/2022  
    101, 453 Commonwealth v. Rodriguez Amendment - in line 10 insert "substantially" after "epithet". 8/5/2022  

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