In April, 2003, a Hampden County jury convicted the defendant, Gabriel Espada, of murder in the first degree of Nathaniel Pereira on a theory of deliberate premeditation. He was convicted of assault and battery by means of a dangerous weapon on Darius Shepard, of assault by means of a dangerous weapon on Sharif Laster, and of armed assault with intent to murder Shepard and Laster. He also was found guilty of unlawful possession of a firearm and unlawful possession of a firearm or ammunition without an identification card. The defendant appealed. In September, 2005, the defendant filed a motion for a new trial in this court, which we remanded to the Superior Court. In May, 2006, the trial judge denied the defendant’s motion without a hearing. The defendant again appealed. The defendant requests that we reverse his convictions and reverse the denial of the motion for a new trial, arguing that the judge erred in refusing to instruct the jury on self-defense and voluntary manslaughter and that his trial counsel provided ineffective assistance. Because we conclude that the defendant’s claims of error are without merit and discern no basis to grant relief under G. L. c. 278, § 33E, we affirm his convictions and the denial of his motion for a new trial.
We summarize the facts that the jury were warranted in finding, reserving certain details for our discussion of the issues. On November 18, 2001, two brothers, Nathaniel (Nate) and Bernabe (Bernie) Pereira, were celebrating their birthdays. Sharif Laster picked up the brothers and Phillip Langley and drove them to the apartment of another friend, Patrick Bass. Prior to their arrival at Bass’s apartment, Laster had telephoned Bass to arrange to purchase twenty dollars’ worth of marijuana from the defendant. When the group arrived at Bass’s apartment, the defendant was present as was Iraida Rolon, Bass’s girl friend. After Nate took the marijuana he told the defendant, “Now we are even.” This statement led to an argument over whether the defendant owed Nate money. The argument became so heated that Rolon asked them to “go outside.” Everyone but Rolon did so.
Once outside, the argument between Nate and the defendant continued. Laster, Bass, and Langley walked toward Laster’s car. The argument between Nate and the defendant escalated; Nate attempted to leave. The defendant took off his watch and made a fist with his hand down. Bernie, who was standing near the defendant, thought that the defendant was going to hit Nate, so Bernie hit the defendant in the back of the head with a liquor bottle. The defendant “backed up and … said, `Oh, you guys going to jump me now?'” Bernie and Nate replied, “No, we are leaving.” The defendant then stated, “I know where you live.” Bernie responded by slashing one of the defendant’s tires with a box cutter. Laster drove Bernie, Nate, Langley, and Bass to Laster’s house.
Shepard was the first person to leave. He noticed that the defendant’s car was parked in the back, almost blocking Laster’s car. Immediately, he went back into the house and told everyone that the defendant’s car was outside. Nate, Langley, and Bass went out to look around. No one saw the defendant. The group got in the car. As Laster tried “inching his way by” the defendant’s car, the defendant appeared from the dumpster area. He approached the car, and hopped and banged on the trunk, yelling, “Where is Nate?” Shepard saw a gun in the defendant’s hand and yelled, “He’s got a gun.” As Laster was trying to drive away two shots were fired. After the first shot Nate began to scream, and Laster sped up in an attempt to get away. The defendant continued to fire, and Shepard was shot in the left ankle. Laster continued driving toward a hospital.
Nate died at the hospital from a gunshot wound through his back to his aorta that caused “massive bleeding.” While Shepard was being treated for his gunshot wound, he identified the defendant, who had been brought to the hospital by the police, as the person who had shot at them.
The police found a spent projectile in the trunk of Laster’s car and four spent casings from a .38 caliber pistol at the scene. The medical examiner also recovered a spent projectile during Nate’s autopsy. The police seized a .38 caliber pistol and magazine from a garage belonging to the defendant’s father. A State police ballistics expert, John Schrijn, examined the seized gun and magazine and concluded that the projectiles from the autopsy and the vehicle had been fired from the seized gun.
At trial, the defendant did not deny shooting at Laster’s car, killing Nate, and injuring Shepard.2 However, he claimed he was acting in self-defense. Evidence pertinent to self-defense is viewed in the light most favorable to the defendant. See Commonwealth v. Pike,428 Mass. 393, 395 (1998), and cases cited.
The defendant was a good friend of Bass. On the night of the incident, Bass asked him to bring some marijuana to his home. The defendant testified that he believed the debt that sparked the argument with Nate was because of an incident that occurred a week before where Nate, Bernie, and Shepard “jumped” on a “kid” who was trying to purchase marijuana. After the group beat up the “kid,” some of his money fell to the ground and the defendant picked it up. The defendant later used the money to buy pizza for the group.
The argument between the defendant and Nate escalated. Nate told the defendant to hit him, but the defendant did not do so. The defendant stated that, during the argument, someone said that if the defendant did anything or tried to do anything, they would “jump” him. The defendant testified that, during the argument, Laster received a telephone call and gave the telephone to Nate. The defendant overheard Nate say something about “get[ting] the heat.” After Bernie struck the defendant on the head, the defendant thought that the group was going to jump him. He returned to Bass’s apartment and telephoned his brother-in-law to ask for a ride, but was told that his brother-in-law was busy. The defendant denied asking for “heat” during this telephone conversation and denied stating that he was going to “blast” anyone. The defendant drove his car down the street, parked it, and walked home. At home, the defendant cleaned up and used his brother-in-law’s cellular telephone to contact an acquaintance named “Madness.” He purchased a gun from Madness for his own protection.
The defendant took the gun and returned to his car to fix his flat tire. He testified that he could not change the tire because it was on a hill, so he moved it to an alleyway in front of a dumpster.3 As he changed the tire he noticed that Laster’s “car was back in the alleyway.” The defendant saw Shepard come out and then go back inside. The defendant went to get in his car, but the whole group came outside “cussing” and talking to each other. They walked toward the defendant, and the defendant showed the group the gun at his waist. Once the defendant showed the gun, the group stopped and went to Laster’s car. The defendant stated that he went behind the dumpster to avoid the car’s lights as it pulled out of its parking spot. As the car pulled away, the defendant ran up to the window and asked to speak to Nate. The tinted window rolled down, and the defendant saw something “like a movement, like a reflection of somebody’s hand,” or a “flash.” He was unsure of what he saw, but thought it could have been “a weapon of some type.” After the flash, the defendant pulled his gun and shot at the car.
The car drove off; the defendant drove to his father’s house and hid the gun in the garage. At some point the police took the defendant to the hospital so that Shepard could identify him. While the defendant was at the police station he told the police where he had hidden the gun.
The defendant claims that the judge erred in refusing to instruct the jury on self-defense. “A defendant is entitled to have the jury … instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue.” Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). There must be evidence that “permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in `imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.'” Commonwealth v. Pike, supra at 396, quoting Commonwealth v. Harrington, supra. See Commonwealth v. Barros, 425 Mass. 572, 576 (1997). For a defendant to have such a reasonable belief, the victim must have committed some overt act constituting an assault or threat against the defendant. Commonwealth v. Pike, supra. See Commonwealth v. Doucette, 391 Mass. 443, 453 (1984). Moreover, there must be “some evidence that the defendant availed himself of all means, proper and reasonable under the circumstances, of retreating from the conflict before resorting to the use of deadly force.” Commonwealth v. Pike, supra at 398. See Commonwealth v. Niemic, 427 Mass. 718, 722 (1998) (where defendant has chance to retreat but fails to do so, he has no privilege to use force in self-defense); Commonwealth v. DeCaro,3 59 Mass. 388, 390 (1971).
The defendant claims that he reasonably believed that Nate and his friends might use deadly force against him. He points out that, one week earlier, he saw Nate, Bernie, and Shepard rob and beat up a “kid” who wanted to purchase marijuana; a few hours before the shooting, Bernie hit him over the head with a liquor bottle and slashed his tires; and he overheard Nate arrange to obtain a gun. These incidents do not provide sufficient evidence that “the defendant reasonably and actually believed that he was in `imminent danger of death or serious bodily harm.'” Commonwealth v. Pike, supra at 396.
In Commonwealth v. Epsom, 399 Mass. 254, 256 (1987), an incident inside a bar turned into an altercation where the victim and his friends were the aggressors. The victim charged the defendant and the defendant was ultimately struck by a bottle. Id. The defendant left the bar and the victim followed. Id. at 257. Outside the bar, the defendant pulled a gun and shot the victim repeatedly. Id. This court determined that the evidence was insufficient to raise the issue of self-defense because the “only evidence of an assault against the defendant related to events inside the pub [and] [t]here was no evidence that the defendant was assaulted or threatened outside the pub….” Id. at 258. Similarly, in this case, the only assault, viewed in the light most favorable to the defendant, occurred a minimum of one and one-half hours before the shooting. The defendant offers no evidence that the members of the group assaulted or threatened him as they were leaving Bass’s apartment for the second time. A self-defense instruction is not warranted on this evidence.
“Voluntary manslaughter is an unlawful killing `arising not from malice, but from … sudden passion induced by reasonable provocation, sudden combat or excessive force in self-defense.'” Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting Commonwealth v. Carrion,407 Mass. 263, 267 (1990). The defendant claims that he was entitled to voluntary manslaughter instructions based on all three theories. We consider each in turn.
The defendant argues that when a “defendant reacted excessively to a perceived threat of deadly force … by firing too many shots in self defense, he [is] entitled to have the jury consider” a verdict of manslaughter. His claim has no merit, because an instruction on voluntary manslaughter under a theory of excessive force in self-defense is unavailable “if the Commonwealth proves that the defendant was not entitled to use deadly force.” Commonwealth v. Walker,443 Mass. 213, 218 (2005). See Commonwealth v. Curtis,417 Mass. 619, 632 n.11 (1994). Because the defendant is not entitled to a self-defense instruction, for the reasons set forth above, an instruction on manslaughter by excessive force in self-defense is not available.
A voluntary manslaughter instruction based on reasonable provocation is warranted if “there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade,422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps,383 Mass. 178, 180 (1981), S.C.,390 Mass. 722 (1984). Reasonable provocation that would support an instruction on voluntary manslaughter is such provocation that “produce[s] in an ordinary person such a state of passion, anger, fear, or nervous excitement” that would eclipse the defendant’s ability to reflect or exercise restraint. Commonwealth v. Walden,380 Mass. 724, 728 (1980). “Provocation and `cooling off’ time must meet both a subjective and an objective standard.” Commonwealth v. Colon,449 Mass. 207, 220 (2007).
The defendant claims that his fear and excitement on the night of the incident is enough to support a voluntary manslaughter instruction based on reasonable provocation. He states that his fear and excitement were due to the “late hour, dark setting, knowledge that Nate might have a gun or weapon, [the defendant’s] display of the gun to the group as they got in the car, and the group’s … attacking him and slashing his tire a few hours before.”7 According to the defendant’s own testimony, he had the tools needed to fix his flat tire right away but instead he purchased a gun, then returned to his car, and parked it in front of the dumpster near Bass’s house instead of elsewhere, despite the fact that he noticed, as he was changing his tire, “that [Laster’s] car was back in the alleyway.” Viewed in the light most favorable to the defendant, a minimum of one and one-half hours passed between the assault and when he returned to change his tire. This evidence would not allow a jury to “infer that a reasonable person would have become sufficiently provoked.” Commonwealth v. McLeod,394 Mass. 727, 738, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985).
Moreover, there is no indication that Nate provoked the defendant at the time of the shooting. Commonwealth v. Acevedo,446 Mass. 435, 444 (2006), quoting Commonwealth v. Ruiz,442 Mass. 826, 838-839 (2004) (“It is well established that `provocation must come from the victim'”). In addition, Bernie struck the defendant with a bottle at least one and one-half hours before the defendant shot the victim, allowing a cooling off period.8 See Commonwealth v. McLeod, supra at 738-739 (fifteen to thirty minutes sufficient cooling off period and “significantly longer … than is usually the situation in manslaughter cases”); Commonwealth v. Coleman,366 Mass. 705, 707 (1975) (no manslaughter instruction where defendant left scene after being punched, and then returned and shot victim several minutes later).
The defendant claims that the judge erred when he failed to provide manslaughter instructions on the basis of sudden combat. The defendant points to the “rolling down of the car window,” the “flash,” and the “sudden action in the car” as evidence to support a voluntary manslaughter instruction. Generally, for sudden combat to be the basis of a voluntary manslaughter instruction the “victim … must attack the defendant or at least strike a blow against the defendant.” Commonwealth v. Pasteur,66 Mass.App.Ct. 812, 822 (2006). See Commonwealth v. Brum,441 Mass. 199, 206 (2004); Commonwealth v. Curtis,417 Mass. 619, 629 (1994). Here, neither the victim nor anyone in the group attacked or struck a blow against the defendant. In fact the group was in the car, leaving the scene. Furthermore, even if the victim initiates contact and there is “physical contact between a defendant and a victim[, it] is not always sufficient to warrant a manslaughter instruction.” Commonwealth v. Walden,380 Mass. 724, 727 (1980). See Commonwealth v. Ruiz,442 Mass. 826, 839 (2004) (no sudden combat instructions where victim slapped and jumped on defendant because the “conduct presented no threat of serious harm to him”). No view of the evidence would support an instruction of manslaughter based on sudden combat.
2. Motion for a new trial.
The defendant raised several ineffective assistance claims in his motion for a new trial that the judge denied without a hearing. Specifically, he asserted that counsel was ineffective because he failed to question the defendant on two matters; object to portions of the prosecutor’s closing statement; cross-examine or impeach several witnesses; introduce expert evidence; and file a motion to suppress the defendant’s statement to the police. We consider each in turn.
The decision to grant a motion for a new trial rests soundly within the judge’s discretion and “will not be reversed unless it is manifestly unjust or … the trial was infected with prejudicial constitutional error.” Commonwealth v. Nieves,429 Mass. 763, 770 (1999). Moreover, we give “special deference to the decisions of a judge who was, as here, the trial judge.” Commonwealth v. Murphy,442 Mass. 485, 499 (2004). Because the denial of the motion for a new trial is being considered “in conjunction with [the] defendant’s direct appeal from a conviction of murder in the first degree, we review it under the substantial likelihood of a miscarriage of justice standard required by G. L. c. 278, § 33E.”9Commonwealth v. Hill,432 Mass. 704, 710 n.14 (2000). See Commonwealth v. Morgan,449 Mass. 343, 353 (2007).
According to the defendant’s affidavit, he telephoned Bass after the shooting to “get back [his] watch” and this tended to show “consciousness of innocence.” Even assuming that this telephone call occurred, consciousness of innocence is of very little value, because there are a variety of different motives that can prompt action consistent with innocence. See Commonwealth v. Evans,438 Mass. 142, 157 (2002), cert. denied, 538 U.S. 966 (2003). The defendant also argues that threats from the group “corroborate [the] defendant’s claim that he acted in self-defense.” At trial, counsel asked, “What happened after you heard the bottle shatter?” The defendant responded, “I ran away from him … yelling, `You gonna jump me now?'” The defendant thus had an opportunity to testify about the alleged threats, but he failed to do so. In any event the defendant still would not be entitled to a self-defense instruction, because a minimum of one and one-half hours had passed between the assault and the shooting, which was a sufficient cooling off period. Furthermore, the defendant initiated the confrontation, and in these circumstances, as discussed above, the defendant is not entitled to a self-defense instruction. For these reasons the defendant’s claim of ineffective assistance of counsel is unavailing. See Commonwealth v. Thompson,431 Mass. 108, 120-121, cert. denied, 531 U.S. 864 (2000).
b. The defendant also contends that his trial counsel was ineffective because he failed to object to two portions of the prosecutor’s closing argument.
The defendant alleges that the prosecutor voiced a personal opinion when she stated, “If I saw a guy coming at me with a gun, I think there would be some movement in that car.” The prosecutor made this statement as a rebuttal to the defendant’s claim that because there was movement in the car he was justified in shooting at the car. Merely using a “first person pronoun does not interject personal belief into a statement.” Commonwealth v. Mamay,407 Mass. 412, 424 (1990). The prosecutor was merely arguing that the average person would move if they saw a gun such as the one wielded by the defendant. Therefore, we conclude that the prosecutor’s conduct was not improper and consequently trial “counsel’s failure to object … becomes immaterial.” Commonwealth v. Wright,411 Mass. 678, 686 (1992).
In addition, the defendant argues that his counsel should have objected to the prosecutor’s characterizing the defendant’s story as “ridiculous.” A prosecutor is allowed to characterize a defendant’s story. See Commonwealth v. Deloney,59 Mass.App.Ct. 47, 52 (2003) (acceptable for prosecutor to describe defendant’s story as “preposterous”). A remark made during closing “must be considered in the context of the prosecutor’s entire argument, as well as in light of the judge’s instruction to the jury and the evidence at trial.” Commonwealth v. Bourgeois,391 Mass. 869, 885 (1984). Here, viewing the remark in the context of the prosecutor’s entire argument and taking into consideration the fact that the judge reminded the jury at the beginning of trial and after the defense rested that closing arguments were not evidence, the prosecutor’s characterization was proper. “Because there was no misconduct on the part of the prosecutor, there was no ineffective assistance of counsel for failure to object.” Commonwealth v. Kirwan,448 Mass. 304, 317 (2007).
c. The defendant next argues that trial counsel was ineffective for failing to impeach or cross-examine witnesses.
First, the defendant argues that trial counsel should have impeached Shepard by cross-examining him about the “discrepancy between his trial and grand jury testimony” with respect to the timing of the shooting, impeached the medical examiner’s testimony because of the “contradiction” between her testimony and the emergency room records, and impeached Laster’s testimony regarding a cellular telephone call he denied receiving during the argument at Bass’s apartment. He claims that trial counsel’s failure to probe these issues undercut the self-defense theory.11 According to the defendant, if the shot that killed Nate came from the side of the car rather than the rear, it would support the claim that the defendant acted hastily in response to a threat rather than out of deliberate premeditation.
We need not detail the specifics of these arguments because even assuming that the claims had merit, the defendant would not be entitled to a self-defense instruction where he initiated the confrontation and failed to retreat or attempt to retreat. Furthermore, he presented no evidence that there was no reasonable means of escape available.12 There was no ineffective assistance of counsel.
The defendant next claims that trial counsel failed to cross-examine Langley, the only other witness the defense called in this case, concerning inconsistencies in his claim that he heard the defendant threaten to get “heat” after Bernie assaulted him. The record shows that trial counsel tried to impeach Langley’s trial testimony with the police report in which he recounted hearing the threat.13 Even if we accept the defendant’s contention, there is an obvious tactical reason trial counsel might not have wanted to impeach Langley: it would have reinforced Rolon’s testimony that she overhead the defendant say something about getting “heat.” See Commonwealth v. Candelario,446 Mass. 847, 854 (2006) (deference given to tactical decisions of trial counsel unless decisions manifestly unreasonable).
The defendant further claims that trial counsel should have impeached Rolon because, according to the defendant, she told the grand jury that the defendant, while on the telephone inside her apartment, said he was going to “blast” his assailants but testified at trial that she heard him make the threat when he left the apartment. The judge found the “significance of this discrepancy elusive.”14 We agree, as it is the statement itself, not its timing in this particular context, that is relevant. Therefore, the failure to impeach on this matter did not constitute ineffective assistance of counsel.
d. The defendant asserts several grounds to support his next contention that trial counsel provided ineffective assistance by failing to file a motion to suppress his statement to the police.
The defendant states that had the statement been suppressed, the defendant could have also sought to have the gun suppressed. Even if we assume that the gun was improperly admitted, it would not create a substantial likelihood of miscarriage of justice, because the Commonwealth had several witnesses who testified that the defendant was the shooter.
The defendant further argues that the police statement was obtained in violation of his Miranda rights. However, the prosecutor did not admit the police statement in evidence. She used it to impeach the defendant’s testimony by showing that it did not contain any reference to the “movement” and “flash” within the car moments before the shooting.15 Statements that are obtained in violation of the Miranda rights may be used to impeach a witness, so long as the statement was not involuntarily given. See Commonwealth v. Harris,364 Mass. 236, 239-240 (1973).
The defendant next claims that the statement he gave to the police was involuntary because they pressured him by withholding medical treatment, telling him that others were giving statements, and that he should “speak up to demonstrate his innocence.” The only basis for this claim is the defendant’s affidavit, which the judge did not credit. Because we give “special deference to the decision of the judge who was … the trial judge,” we accept this finding. Commonwealth v. Murphy,442 Mass. 485, 499 (2004). See Commonwealth v. Schand,420 Mass. 783, 787 (1995) (in motion for new trial, judge is “final arbiter of matters of credibility”). See also Commonwealth v. Sparks,433 Mass. 654, 661 (2001).
The defendant also contends that trial counsel should have sought to suppress his statement to the police because he was denied his right to use the telephone pursuant to G. L. c. 276, § 33A.16 Unfavorable evidence gained through an intentional deprivation of a defendant’s right to make a telephone call should be suppressed. Commonwealth v. Jones,362 Mass. 497, 502-503 (1972). At trial, the defendant testified that the police officers gave him Miranda warnings and “gave [him] a couple phone calls.” However, in his affidavit in support of his motion for a new trial the defendant claimed that he was not advised of his right to make a telephone call until over one hour after he had been arrested and that his request to make a telephone call was denied. Even assuming that the defendant was not told about his right to make a telephone call within one hour, he was informed before the inculpatory statement was given and consequently the statement would not have been suppressed.17 See Commonwealth v. Bouchard,347 Mass. 418, 420-421 (1964).
As there was no ineffective assistance of counsel, the judge did not err in denying the motion for a new trial.
3. Review under G. L. c. 278, § 33E.
We have reviewed the entire record, including the defendant’s arguments in his motion for a new trial, pursuant to our obligation under G. L. c. 278, § 33E, and discern no reason to exercise our power either to order a new trial or to reduce the murder verdict.
1. The defendant used a racial slur to describe the group.
2. At trial, the defendant’s case consisted of his testimony and testimony from Langley. Langley did not recall much of what happened, at one point stating, “This was a long time ago. I’m trying to remember as best I can.” However, Langley did state that during the initial altercation he told the defendant that they outnumbered him and he should not try anything. Nevertheless, the defendant’s case relies heavily on his own testimony.
3. It is not clear from the defendant’s testimony where the “alleyway” was located. When asked if he backed his car and parked it in the parking lot, his response was, “I just backed it up and parked it in front of the dumpster.” Based on the record, it appears as though the alleyway was located in or near the back of Bass’s apartment building.
4. The defendant testified that the “flash” could have been “a weapon of some type,” perhaps something that could have been used to slash his tire. The defendant argues that “the jury should have been allowed to weigh whether the perceived weapon … reasonably created a threat warranting the exercise of self-defense.” Even assuming that the weapon was a knife or a box cutter, the defendant would still have a duty to attempt at least to retreat unless there was no reasonable means of escape. In this case, there is nothing in his testimony to suggest that once he saw the flash he attempted to retreat. Furthermore, there is no evidence to suggest that there was no reasonable means of escape available.
5. The facts in Commonwealth v. Little,431 Mass. 782 (2000), on which the defendant relies, are easily distinguishable. In the Little case, the defendant and the victim argued and the defendant showed the victim his gun. Id. at 784. The defendant left and went to a friend’s apartment. Id. As the defendant was leaving the apartment, the victim approached and kept advancing until the defendant warned the victim and pulled his gun. Id. at 784-785. The defendant testified that he “was scared” because the victim was “high” and he “made a motion like he was going for his hip.” Id. at 785. Unlike the Little case where the victim was the aggressor, in this case, the defendant was the aggressor.
6. At oral argument the Commonwealth withdrew its contention that the defendant did not preserve for appellate review his claim of entitlement to a jury instruction on voluntary manslaughter based on the theories of provocation and sudden combat.
7. The facts in Commonwealth v. Fortini,68 Mass.App.Ct. 701 (2007), on which the defendant relies, are easily distinguished. In that case, the defendant had been harassed earlier in the evening by strangers in a vehicle and so he sat on his porch with a shotgun hoping to spot a registration number. Id. at 702-703. A stranger approached his porch, “`lunged’ at [him] and reached for the gun.” Id. at 703. The defendant “took a step back” and shot him. Id. The court held that the defendant was entitled to reasonable provocation instructions. Id. at 706. Unlike the Fortini case, in this case, the defendant approached the victim.
8. The defendant testified that at least four hours had passed between the time of the assault on him and the shooting.
9. The defendant states, in his memorandum in support of the motion for a new trial, that “the deficiencies of counsel argued in this … motion deprived him of his right to counsel” under the Sixth Amendment to the United States Constitution. The statutory standard of G. L. c. 278, § 33E, is more favorable than the constitutional standard for ineffective counsel claims; therefore, if the defendant does not prevail under the § 33E standard, he will not prevail under the constitutional standard. Commonwealth v. Wright,411 Mass. 678, 682 (1992).
10. Although the defendant also argues that trial counsel provided ineffective assistance because he failed to question the defendant on “several points [that] tended to show self-defense or manslaughter,” he does not explain how the failure to question the defendant would have shown manslaughter and under which of the three theories he is basing his claim. Pursuant to G. L. c. 278, § 33E, the defendant bears the burden of showing that counsel’s errors were “likely to have unfairly influenced the jury’s verdict.” Commonwealth v. Cormier,427 Mass. 446, 451 (1998), quoting Commonwealth v. Plant,417 Mass. 704, 715 (1994). The defendant has failed to meet his burden.
11. In the defendant’s initial argument in the brief he contends that “[b]etter work by trial counsel would … have resulted in additional evidence supporting defendant’s theory of self-defense or manslaughter.” However, the defendant fails to state how impeachment and further cross-examination would support a manslaughter instruction. Moreover, he fails to state which of the three theories forms the basis for each claim of error.
12. The defendant’s brief is unclear how these ineffective assistance of counsel claims regarding impeachment and cross-examination of witnesses would have supported a manslaughter instruction. Moreover, because the defendant fails to provide affidavits or other evidence from the experts to support his assertion that the shot came from the side, it is mere speculation. “Unsupported speculation about possible expert evidence fails to sustain this burden.” Commonwealth v. Horton,434 Mass. 823, 834 (2001). It is the defendant’s burden to demonstrate that trial counsel’s errors were “likely to have unfairly influenced the jury’s verdict.” Commonwealth v. Scott,430 Mass. 351, 356 (1999).
14. Furthermore, the record indicates that Rolon testified before the grand jury that she heard the defendant issue the threat while he was using her telephone and while talking to himself as he left the apartment.
15. After the Commonwealth’s closing argument, the defendant attempted to get the police statement introduced as evidence for completeness but the judge refused.
17. The defendant claims that because the judge “did not specifically discredit [his] averment that he … asked to use the phone and said he did not want to talk with police,” subsequent statements were involuntary. We disagree. The defendant fails to cite any authority for his underlying assertion that unless a judge specifically discredited a statement it is therefore credited. Here, the judge implicitly discredited these claims that were based on the defendant’s affidavit by focusing on contradictory statements that were made during the defendant’s trial testimony. For example, the motion judge stated that in the defendant’s trial testimony he stated that the police “allowed him to make a couple phone calls” and that he described his experience with police as “cool. They gave me iced tea and I told them what happened.” A motion judge can implicitly discredit self-serving statements. See Commonwealth v. Murphy,442 Mass. 485, 507 (2004).


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Al Habtoor v. Fotheringham  EWCA Civ 186;  1 FLR 951; B. (Abduction: Children's Objections), Re  1FLR 667;  3 FCR 260; B. (Minors) (Abduction) (No 2), Re  1 FLR 993; Cameron v. Cameron, 1996 SC 17; 1996 SLT 306; Dickson v. Dickson, 1990 SCLR 692; F. (Minors: Abduction), Re  2 FCR 595; J. (A Minor) (Abduction: Custody Rights), Re  2 AC 562;  3 WLR 492  2 All ER 961; Marshall v. Marshall, 1996 SLT 429; N., Re (Child Abduction: Habitual Residence)  2 FLR 899; Nessa v. Chief Adjudication Officer  1 WLR 1937;  4 All ER 667; P. (A Minor) (Child Abduction: Declaration), Re  1 FLR 831; R v. Barnet LBC Ex p Shah  2 AC 309;  2 WLR 16;  1 All ER 226; R. (Child Abduction: Acquiescence), Re  1 FLR 716; S., Re (A Minor) (Abduction: Custody rights)  Fam 242;  2 WLR 775;  2 All ER 683; Singh v. Singh, 1998 SC 68; 1986 SLT 1084; T. (Abduction: Child's Objections to Return), Re  2 FLR 192; Urness v. Minto 1994 SC 249; 1994 SLT 988; 1994 SCLR 392; W. v. W., 2004 SC 63; 2003 SLT 1253; 2003 SCCR 685.
The child, a boy, was 12 at the date of the hearing. He had lived with his married parents in Scotland until 2002 and from then until the summer of 2004 in Ireland. At the start of July 2004 the mother took the boy to Scotland for a vacation. Some time in August she decided that they would not return and she enrolled her son in a local school.
The father immediately petitioned for the return of his son, his application being lodged in the Court of Session on 7 October. Mother and son separately lodged answers objecting to the father's petition.
At a hearing on 15 October 2004, it was agreed that the boy should be interviewed by a child psychologist with a view to determining his age and level of maturity, whether he objected to being returned to Ireland, and if so, why, whether his views were independent of parental influence and whether he appreciated that the purpose of a return would be to enable the court in Ireland to make the decisions about where his long term future should lie.
Retention wrongful but return refused; the boy was habitually resident in Ireland at the time of the retention, but his objections to a return were sufficiently cogent that the trial judge exercised her discretion not to make a return order.
The mother argued that her son was not habitually resident in Ireland at the time that he was retained in Scotland because she herself had never lost her Scottish habitual residence during her two year stay or acquired an Irish habitual residence. The mother presented many arguments to try and justify her case, notably that the family's move to Ireland had been on a trial basis and she had not wanted to move, but these were rejected by the trial judge. The trial judge held that pleasure or disappointment in a new abode could not determine whether residence acquired the characteristic of being habitual or whether the old habitual residence would be lost. She acknowledged that it might be easier to establish habitual residence in a case where a person positively embraced their new environment but that did not mean where there was dislike the old habitual residence would be retained or a new one not be acquired. Furthermore, in the light of the decision of the Inner House of the Court of Session in Cameron v Cameron 1996 SC 17 [INCADAT cite: HC/E/UKs 71] settlement in the new country on the basis that it be for a trial period would not be destructive of the possibility of loss of the original habitual residence or acquisition of a new one. The trial judge concluded that whatever the mother's dislike of and reservations about Ireland she lived an apparently regular family life there for a lengthy period of almost two years, a residence which, through purchasing property for renovation and applying for jobs there gave rise to the inference of a likelihood of continuation beyond that time. Consequently she had acquired a habitual residence in Ireland and as a result so would her son.
The trial judge noted that recent Scottish appellate authorities were divided as to how Article 13(2) should be applied. This being the case she decided not to follow the restrictive interpretation advanced by the Inner House of the Court of Session in W v. W 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805]. The latter would involve assessing the nature of a child's views at the gateway stage of considering whether the child had attained an age and degree of maturity at which it was appropriate to take account of its views. However, given the wording of Article 13, such an evaluation should only arise at the later discretionary stage, a stage which is only reached once it has been determined that the child objects and is of an age and maturity at which it is appropriate to take account of its views. The trial judge held that in the light of earlier authorities the appropriate questions to ask were: 1. Did the child object to being returned to Ireland? 2. Was he of an age and maturity at which it was appropriate to take account of his views? 3. If yes to both should she exercise her discretion and refuse to make a return order? The final element would involve considering questions of comity, convenience and the general principle that it was in the best interests of a child that his welfare be determined by the court of his habitual residence. Consideration should also be given to the strength of any such objection, whether any objection was independent of the views of the abductor, whether the child appreciated that the purpose of the order for return would be to enable the court in the State of habitual residence to decide on his future, and his welfare in the immediate future. Applying this test the trial judge found the boy's objections to a return to be strong and cogent. He clearly objected to returning and he did so for reasons which were of substance, not capricious and not, in her view, the result of the mother's influence, albeit that they accorded with her wishes to stay here. The trial judge ruled that notwithstanding the policy of the Convention she should exercise her discretion to refuse to grant the order sought.
A summary of the Inner House judgment in W. v. W. may be found at: W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT Reference: HC/E/UKs 805]. The alternative interpretation previously provided by the Inner House with regard to Article 13(2) may be found at: Urness v. Minto 1994 SC 249 [INCADAT Reference: HC/E/UKs 79].
L'enfant, un garçon, était âgé de 12 ans à la date de l'audience. Il avait vécu jusqu'en 2002 en Ecosse, puis de 2002 à l'été 2004 en Irlande avec ses parents, lesquels étaient mariés. Au début de juillet 2004, la mère emmena l'enfant en Ecosse pour les vacances. En août, elle décida de ne pas retourner en Irlande et inscrivit l'enfant à l'école en Ecosse.
Le père demanda immédiatement le retour de l'enfant; le tribunal écossais (Court of Session) fut saisi de la demande le 7 octobre. La mère et l'enfant firent séparément valoir des arguments contre le demande du père.
Le 15 octobre 2004, à l'audience, il fut décidé que l'enfant devrait être entendu par un pedopsychiatre afin que celui-ci détermine son âge et sa maturité, s'il s'opposait à son retour en Irlande, et le cas échéant, pourquoi, si son opinion était ou non influencée par celle d'un parent et enfin s'il comprenait bien que le but de son retour en Irlande serait de donner compétence à une juridiction de cet Etat afin qu'elle décide de son avenir.
Le non-retour était illicite, mais le retour de l'enfant fut refusé. L'enfant avait sa résidence habituelle en Irlande au moment du non-retour, mais son opposition était suffisamment forte pour permettre au juge de décider, dans le cadre de son pouvoir souverain, de ne pas ordonner le retour de l'enfant.
Selon la mère, l'enfant n'avait pas sa résidence habituelle en Irlande au moment du non-retour mais avait conservé sa résidence en Ecosse dans la mesure où elle n'avait elle-même ni perdu sa résidence habituelle écossaise ni acquis de résidence habituelle en Irlande. Elle présentait de nombreux arguments à l'appui de sa thèse, notamment que le déménagement familial en Irlande avait été effectué à l'essai et qu'elle n'avait pas souhaité ce déménagement. Cette présentation fut rejetée par le juge. Selon le juge, le plaisir ou la déception que procurait un nouveau foyer était sans influence sur le caractère habituel de la nouvelle résidence, ni même sur le maintien ou la perte de l'ancienne résidence habituelle. Le juge reconnut qu'il pouvait être plus facile de caractériser une nouvelle résidence habituelle dans le cas où la personne concernée embrassait positivement son nouvel environnement. Toutefois, cela ne voulait pas dire que le fait de ne pas aimer la nouvelle résidence impliquait que l'ancienne résidence habituelle était maintenue ou qu'une nouvelle résidence ne pouvait être acquise. En outre, selon l'arrêt d'appel rendu dans l'affaire Cameron v Cameron 1996 SC 17 [Référence INCADAT : HC/E/UKs 71], le fait de ne s'installer à l'étranger qu'à l'essai n'empêchait ni la perte de l'ancienne résidence habituelle, ni l'acquisition d'une nouvelle résidence. Le juge conclut qu'en dépit du fait que la mère n'était pas sûre d'aimer l'Irlande, elle y avait vécu une vie familiale apparemment normale, pour une durée longue, de près de 2 ans. Les parties y avaient acheté une maison et demandé du travail, de sorte qu'il était possible de déduire qu'il était probable que la famille continue d'y vivre. Dès lors, la mère avait acquis une résidence habituelle en Irlande, et, par conséquent, son fils également.
Le juge observa que les cours d'appel écossaises étaient divisées quant à l'interprétation de l'article 13 alinéa 2. Cela étant, elle décida de ne pas suivre l'interprétation restrictive choisie apr la cour d'appel dans l'affaire W v. W 2004 S.C. 63 IH (1 Div) [Référence INCADAT : HC/E/UKs 805]. Cette interprétation impliquait que le juge analyse la nature de l'opposition de l'enfant avant de vérifier que celui-ci avait atteint un âge et une maturité permettant à son opposition d'être prise en compte. Or les termes de l'article 13 alinéa 2 militent en faveur d'une analyse de la nature de l'opposition de l'enfant à un stade plus tardif: une fois qu'il a été constaté qu'il y avait une certaine opposition et que l'enfant a atteint un âge et une maturité suffisants pour que son opinion puisse être prise en compte. Le juge estima, ayant étudiédes précédents jurisprudentiels que trois questions devaient être posées: 1. L'enfant s'oppose-t-il à son retour en Irlande? 2. A-t-il atteint un âge et une maturité suffisants pour que son opinion puisse être prise en compte? 3. Si la réponse est oui dans les 2 cas, le juge doit-il user de son pouvoir discrétionnaire pour décider de ne pas ordonner le retour de l'enfant? L'appréciation du dernier point impose que soient pris en compte des questions de courtoisie, de facilité et le principe général qu'il est dans l'intérêt supérieur de l'enfant de voir son bien-être décidé par un juge de son pays de résidence habituelle. En outre, il convenait de tenir compte de la force de l'opposition, l'indépendence de vue de l'enfant (l'absence d'influence du parent rapteur), sa compréhension du fait qu'un retour impliquerait que le juge de l'Etat de résidence habituelle déciderait de son avenir, ainsi que son bien-être à court terme. Appliquant ce principe, le juge estima que l'opposition de l'enfant était forte et cohérente. Il refusait de retourner en Irlande et son refus était motivé par des considérations importantes, n'était pas capricieux ni influencé par la mère, bien qu'il coïncide avec la volonté de celle-ci de rester en Ecosse. Le juge décida qu'il était approprié qu'elle use de son pouvoir souverain d'appréciation pour décider de ne pas ordonner le retour.
Pour le résumé de la décision rendue en appel dans W. v. W., voy.: W. v. W. 2004 S.C. 63 IH (1 Div) [Référence INCADAT : HC/E/UKs 805]. L'article 13 alinéa 2 faisait jusqu'alors l'objet d'une interprétation différente de la Cour d'appel écossaise. Voy. : Urness v. Minto 1994 SC 249 [Référence INCADAT : HC/E/UKs 79].
El menor tenía doce años a la fecha de la audiencia. Había vivido con sus padres casados en Escocia hasta el año 2002 y desde entonces y hasta el verano de 2004 en Irlanda. A comenzar julio de 2004 la madre llevó al menor a Escocia de vacaciones. En algún momento del mes de agosto decidió que no regresarían e inscribió a su hijo en una escuela local.
El padre peticionó inmediatamente la restitución de su hijo, su solicitud fue presentada ante el Tribunal Superior de Justicia el 7 de octubre. Madre e hijo presentaron en forma separada contestaciones oponiéndose a la petición del padre.
En una audiencia del 15 de octubre de 2004, se convino que el menor debía ser entrevistado por un psicopedagogo a fin de determinar su edad y su nivel de madurez, si se oponía a ser restituido a Irlanda, y en ese caso, porqué, si su visión estaba libre de la influencia de sus padres y se comprendía que el propósito de una restitución sería permitir a un tribunal de Irlanda tomar decisiones acerca de dónde debía estar su futuro a largo plazo.
Retención ilícita pero restitución denegada; el menor era residente habitual de Irlanda a la fecha de la retención, pero sus objeciones a una restitución eran suficientemente convincentes para que la juez de primera instancia ejerciera su discrecionalidad en el sentido de no dictar una orden de restitución.
La madre argumentó que su hijo no era residente habitual de Irlanda a la fecha en que había sido retenido en Escocia por cuanto ella nunca había perdido su residencia habitual escocesa en los dos años de su estadía, ni tampoco había adquirido residencia irlandesa. La madre presentó distintos argumentos para tratar de justificar su posición, a destacar el hecho de que el traslado de la familia a Irlanda había sido con motivo de un juicio y ella no había querido mudarse, pero éstos fueron rechazados por la juez de primera instancia. Dicha juez sostuvo que el placer o la desilusión de un nuevo domicilio no podía determinar si la residencia adquirió las características de habitualidad o si la antigua residencia se había perdido. Ella reconoció que podría ser más fácil establecer una residencia habitual en caso de que una persona adoptara positivamente su nuevo ambiente, pero eso no significaba que en caso de no gustarle se retuviera la antigua residencia habitual o que no se adquiriera una nueva. Más aun, a la luz de la decisión de la Cámara Interna (Inner House) del Tribunal Superior de Justicia en Cameron v Cameron 1996 SC 17 [INCADAT cite: HC/E/UKs 71] el establecerse en un nuevo país basándose en que será por el plazo de un juicio no destruiría la posibilidad de perder la residencia habitual original o de adquirir una nueva. La juez de primera instancia concluyó que más allá del desagrado y las reservas que la madre pudiera tener con respecto a Irlanda, llevaba una vida familiar aparentemente regular allí por un extendido período de al menos dos años, una residencia que, a través de la compra de una propiedad para reciclar y la solicitud de trabajos dio lugar a inferir la posibilidad de que continuara en el tiempo. Consecuentemente, ella había adquirido residencia habitual en Irlanda y como resultado de ello, también su hijo.
La juez de primera instancia señaló que las últimas opiniones autorizadas de apelación escocesas estaban divididas en cuanto a cómo debía aplicarse el artículo 13, apartado (2). Siendo ese el caso, decidió no seguir la interpretación restrictiva adelantada por la Cámara Interna (Inner House) del Tribunal Superior de Justicia en W v. W 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805]. Esta última implicaría evaluar la naturaleza del enfoque de un menor previo a considerar si el menor alcanzó una edad y el grado de madurez adecuado como para tener en cuenta sus puntos de vista. Sin embargo, dada la redacción del artículo 13, tal evaluación solo debería llevarse a cabo en una última etapa discrecional que sólo se alcanza una vez que se ha determinado que el menor se opone y que cuenta con una edad y la madurez adecuada como para tener en cuenta sus puntos de vista. La juez de primera instancia sostuvo que a la luz de opiniones autorizadas anteriores las preguntas apropiadas para hacer eran: 1. Se opuso el menor a ser restituido a Irlanda? 2. Tenía una edad y la madurez adecuada como para tener en cuenta sus puntos de vista? 3. En caso de respuesta afirmativa a ambas preguntas, debería ejercer su discrecionalidad y negarse a dictar una orden de restitución? El elemento final implicaría considerar cuestiones de cortesía, conveniencia y el principio general de que resultaba a los mejores intereses del menor que su bienestar fuera determinado por el tribunal de su residencia habitual. También debería considerarse la fuerza de cualquiera de esas objeciones, si ellas eran independientes de la postura del sustractor, si el menor entendía que la el propósito de la orden de restitución sería permitir al tribunal del Estado de su residencia habitual decidir su futuro y su bienestar en el futuro inmediato. Aplicando esta prueba, la juez de primera instancia entendió que las objeciones del menor a su restitución eran fuertes y convincentes. Claramente se opuso a la restitución y lo hizo por rezones sustanciales y no caprichosas, y en su opinión, no eran resultado de la influencia materna, más allá de que estaban de acuerdo con los deseos de ella de permanecer aquí. La juez de primera instancia decidió que no obstante la política del Convenio, ella ejercería su discrecionalidad para negarse a otorgar la orden de restitución intentada.
Una síntesis de la sentencia de la Cámara Interna (Inner House) en W. v. W. puede encontrarse en: W. v. W. 2004 S.C. 63 IH (1 Div) [Referencia INCADAT: HC/E/UKs 805]. La interpretación alternativa dispuesta anteriormente por la Cámara Interna (Inner House) respecto del artículo 13, apartado (2) puede encontrarse en: Urness v. Minto 1994 SC 249 [Referencia INCADAT: HC/E/UKs 79].

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David Silverstein is a registered patent attorney with over fifteen years of experience handling legal and regulatory matters, on the generic and the branded side, relating to pharmaceutical and biotech products. David has served as lead counsel in matters before the U.S. district courts, Patent Trial and Appeal Board, and U.S. Court of Appeals for the Federal Circuit. In addition, David’s practice includes performing due diligence, license negotiation, and counseling in connection with complex commercial transactions involving pharmaceutical and biotech products. David is frequently involved in FDA strategy and counseling, including filing or responding to citizen petitions, and coordinating FDA strategy with patent litigation strategy.
David previously practiced in-house at Par Pharmaceutical and, prior to that, at major New York firms. While in-house, David oversaw and managed all aspects of patent, antitrust, unfair competition and trade secret litigation. David also served as Par’s in-house regulatory counsel, advising on regulatory strategies and frequently representing Par before FDA’s Office of Chief Counsel and other regulators.
Together with his graduate training in protein crystallography and structure-based drug design, David combines his courtroom and industry experience to develop strategies that enable his clients to achieve their technical, legal, and commercial objectives simultaneously.
AstraZeneca Pharm., LP v. Sylvia Burwell, 16-cv-01336-RDM (D.D.C.). Represented intervenors Apotex and Par to successfully oppose AstraZeneca’s motion for a temporary restraining order allowing generic versions of blockbuster Crestor® to immediately enter the market.
Insys Therapeutics, Inc. v. Par Pharm., Inc., 17-cv-01078-LPS (D. Del.). Represented generic drug manufacturer, Par, in Hatch-Waxman litigation involving multiple patents directed to FDA-approved cannabinoid (Syndros®). Secured dismissal of case based on non-infringement position resulting in Par having the ability to launch upon approval of its ANDA product.
Noden Pharma DAC v. Anchen Pharm., Inc., 17-cv-00728-MPT (D. Del.). Represented generic drug manufacturer, Anchen, in Hatch-Waxman litigation involving multiple patents directed to aliskiren (Tekturna®). Litigation defenses helped Anchen secure, during early discovery, a favorable license to manufacture and commercialize its ANDA product.
Par Pharm., Inc. v. Horizon Therapeutics, LLC, IPR2015-01127 (P.T.A.B.). Represented Petitioner in review of U.S. Patent No. 8,404,215 directed to nitrogen scavenging drug (Ravicti®) resulting in invalidity of all challenged claims.
Horizon Therapeutics v. Par Pharm., Inc., 14-cv-384 (E.D. Tex.); Horizon Therapeutics v. Par Pharm., Inc., 18-cv-01224-RGA (D. Del.); Horizon Therapeutics v. Par Pharm., Inc., 17-cv-05901-KM (D.N.J.); Horizon Therapeutics v. Par Pharm., Inc., 16-cv-03910 (D.N.J.); Par Pharm., Inc. v. Horizon Therapeutics, LLC, IPR2018-01550 (P.T.A.B.); Par Pharm., Inc. v. Horizon Therapeutics, LLC, IPR2017-01768 (P.T.A.B.); Par Pharm., Inc. v. Horizon Therapeutics, LLC, IPR2017-01767 (P.T.A.B.); and Par Pharm., Inc. v. Horizon Therapeutics, LLC, IPR2017-01769 (P.T.A.B.). Represented generic drug manufacturer, Par, as the defendant in multiple, simultaneous Hatch-Waxman litigations and as the petitioner in multiple inter partes reviews involving patents directed to nitrogen scavenging drug (Ravicti®). Secured favorable settlement for Par and dismissal of each litigation and IPR.
Omeros Corp. v. Par Sterile Products, LLC, 15-cv-773-RGA (D. Del). Represented generic drug manufacturer, Par, in Hatch-Waxman litigation involving multiple patents directed to ketorolac tromethamine/phenylephrine HCl (Omidria®). Secured favorable settlement for Par after three-day bench trial.
Alcon Pharms. Ltd. et al. v. Par Pharm. Inc., 15-cv-7240 (D.N.J.). Represented generic drug manufacturer, Par, in Hatch-Waxman litigation involving multiple patents directed to ciprofloxacin/dexamethasone (Ciprodex®). Secured dismissal of case based on non-infringement position resulting in favorable settlement for Par.

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Read about some of Mr. Rodgers’ sample testimony, depositions & expert reports below.
Manufacturers & Traders Trust Company, Executor for the Estate of John Clarke Adams, Deceased. New York State Surrogate’s Court, Case # 00-2357. November 21, 2007. Trial testimony and Expert Report for Plaintiff.
Robert Bryant, et. al. v. SunTrust Banks, Superior Court of Chatham County Georgia, Case # V02-1084-AB. January 7, 2003. Deposition and Affidavit for plaintiff.
Hinther v. Merrill Lynch Trust Company, Texas State Court. Case #4-04-CV-710Y. March 7, 2006. Expert Summary of Findings for defendant.
Lee Joseph Petitjean, et. al. v. Hibernia National Bank. Louisiana State Court. January 29, 2008. Deposition and Report for defendant.
William A. Dougherty v. Wachovia Bank, N.A. Florida Circuit Court, Fifth Judicial circuit, Case # 2006-CA-5252. Expert Report for plaintiff.
Jackson Kail v. KeyBank, N.A. Cuyahoga County (Ohio) Common Pleas court, Case # CV-07613350. Expert report for defendant.
Orocia v. Border Capital Bank Texas State Court, Expert Report and Damage Model.
Noel Fuller/ Gamble & Livingston, LLC Trust Matter, South Carolina State Court.. Consulting and affidavit.

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Reference: Zheltukhina MR, Krasavsky NA, Slyshkin GG, Ponomarenko EB. Utilitarian and Aesthetic Values in the Modern German Society (Through the Example of Print Media Advertisements). Int Elect J Math Ed. 2016;11(5), 1411-1418.
Reference: Zheltukhina, M. R., Krasavsky, N. A., Slyshkin, G. G., & Ponomarenko, E. B. (2016). Utilitarian and Aesthetic Values in the Modern German Society (Through the Example of Print Media Advertisements). International Electronic Journal of Mathematics Education, 11(5), 1411-1418.
Reference: Zheltukhina, Marina R., Nikolay A. Krasavsky, Gennady G. Slyshkin, and Elena B. Ponomarenko. "Utilitarian and Aesthetic Values in the Modern German Society (Through the Example of Print Media Advertisements)". International Electronic Journal of Mathematics Education 2016 11 no. 5 (2016): 1411-1418.
Reference: Zheltukhina, M. R., Krasavsky, N. A., Slyshkin, G. G., and Ponomarenko, E. B. (2016). Utilitarian and Aesthetic Values in the Modern German Society (Through the Example of Print Media Advertisements). International Electronic Journal of Mathematics Education, 11(5), pp. 1411-1418.
Reference: Zheltukhina, Marina R. et al. "Utilitarian and Aesthetic Values in the Modern German Society (Through the Example of Print Media Advertisements)". International Electronic Journal of Mathematics Education, vol. 11, no. 5, 2016, pp. 1411-1418.
Reference: Zheltukhina MR, Krasavsky NA, Slyshkin GG, Ponomarenko EB. Utilitarian and Aesthetic Values in the Modern German Society (Through the Example of Print Media Advertisements). Int Elect J Math Ed. 2016;11(5):1411-8.
The analysis of advertising print materials placed in German mass media allows revealing the hierarchy of values of modern society, its needs and sociocultural level. Advertisers actively appeal to the concept of "utilitarian values" of society, as they reflect propensity of a contemporary man, first of all, to comfort and moderate money spending. Advertisers' appeal to aesthetic values is determined, on the one hand, by good taste of a part of society, and on the other hand – by prestige of purchased goods or rendered commercial services. In German advertising media texts, the aesthetic value is emphasized, as a rule, when offering expensive goods, which cannot be bought by everybody. It was found out that in German advertising texts the evaluation vocabulary is actively used to effectively influence buyer's consciousness. The analysis of advertisement texts identified two types of goods, whose buyers pursue either utilitarian or aesthetic values. It was found that the more prestigious and expensive the goods, the oftener the evaluating words are used and the more emphasis is put on the aesthetic values of the German society. If the goods are cheap and less prestigious – lexical units that denote utilitarian values are used.
Alefirenko, N. F. (2001) Valuation-and-Semantic Nature of Language Knowledge. Language Personality: Problems of Cognition and Communication. Collection of research works. Volgograd: College, 3-11.
Arutyunova, N. D. (1999) The Man's Language and World. 2nd corrected edition. Mosciw: Languages of the Russian culture, 896 p.
Babaeva, E. V. (1997) Cultural-and-Language Characteristics of Attitude towards Property (on materials of the German and Russian languages): PhD Thesis in philology. Volgograd, 210 p.
Belousova, N. P. (2006) The Main Characteristics of Slogan as a Subgenre of the Modern Russian Advertising Discourse: PhD Abstract in philology. Samara, 16 p.
Busygina, M. V. & Zheltukhina, M. R. (2015) Correlation of the notions "press release", "news", "advertising" in modern media discourse. Cognitive explorations of language, 20, 641-653.
Eisenstein, J. (2013) Phonological factors in social media writing. Proc. of the Workshop on Language Analysis in Social Media, 3, 11-19.
Evsyukova, T. V. (2002) Linguoculturological Concept of the "Dictionary of Culture": ScD Thesis in philosophy. Nalchik, 304 p.
Gunder, A. (2013) Forming the Text, Performing the Work-Aspects of media, navigation, and linking. Human IT: Journal for Information Technology Studies as a Human Science, 5(2-3), 35-53.
Ivanova, S. V. & Nikolayeva, A. V. (2011) The Role of "Empty" Words in Advertisement Texts (by the Example of English Advertisement Texts). Political Linguistics, 4, 34-52.
Jamieson, K. H. & Campbell, K. K. (1997) The Interplay of Influence. Belmont, Ca: Wadsworth Publishing Company. 349p.
Karasik, V. I. (1992) Language of Social Status. Moscow, Volgograd: Peremena. 330p.
Karasik, V. I. (2014) Language Demonstration of Personality. Volgograd: Paradigma. 450p.
Kirichenko, N. V. (2007) Expressive Means of Sounding Advertising Text: PhD Abstract in philology. Voronezh. 23p.
Kochetova, L. A. (1999) Linguocultural Characteristics of the English Advertising Discourse: PhD Abstract in philology. Volgograd. 19p.
Marzouki, El. M. (2015) Collaborative media. New Media & Society, 17(10), 1756-1757.
Nikitina, S. V. (1998) National Specificity of the Text of Industrial Advertising: PhD Abstract in philology. Voronezh, 20p.
Ponomarenko, E. B. (2013) Linguistic Manipulation Devices. GISAP: Philological Sciences, 1, 62-65.
Short Encyclopedia of Philosophy. (1994) In E.F. Gubsky (Eds.).. Moscow: Progress. 576p.
Slyshkin, G. G. & Chizh, N. V. (2008) City as a Sociocultural Value. City sociology, 1, 12-20.
Vorkachev, S. G. (2009). Search for the Truth: the Idea of Justice in the Russian Linguoculture. Volgograd: Paradigma". 190p.

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IN RE: Joseph H. SIMPSON. June 29, 2007 No. 2007-B-0070.
IN RE: Stephen K. PETERS. June 29, 2007 No. 2007-B-0349.
STATE v. COLEMAN June 29, 2007 No. 2005-K-1617.
STATE v. BELL June 29, 2007 No. 2007-KK-1124.
STATE v. WARE June 29, 2007 No. 2006-K-1703.
IN RE: Justice of the Peace Roger ADAMS June 29, 2007 No. 2007-O-426.
STATE v. MILLER June 29, 2007 No. 2005-KA-1826.
BLEVINS v. HAMILTON MEDICAL CENTER INC June 29, 2007 No. 2007-CC-127.
WASHINGTON ST TAMMANY ELECTRIC COOPERATIVE INC v. LOUISIANA PUBLIC SERVICE COMMISSION June 29, 2007 No. 2007-CA-0399.
IN RE: Judge Martha SASSONE. June 29, 2007 No. 2007-O-0651.
IN RE: Gary W. SHEFFIELD. June 15, 2007 No. 2007-B-0288.
IN RE: Keith D. THORNTON. June 15, 2007 No. 2007-B-0204.
IN RE: Michael Chris AGUILLARD. June 15, 2007 No. 2007-B-0351.
STATE v. MACON June 1, 2007 No. 2006-K-481.
STATE v. WALTON June 1, 2007 No. 2006-K-2553.
STATE v. GUILLORY June 1, 2007 No. 2006-K-2544.
IN RE: Michael L. HYMAN. June 1, 2007 No. 2007-B-0636.
STATE v. CANEZARO June 1, 2007 No. 2007-KK-668.
IN RE: Mark J. ARMATO. June 1, 2007 No. 2007-B-0500.

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ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, ET AL.
1. Whether the court of appeals correctly dismissed petitioners' claims under the Administrative Procedure Act, 5 U.S.C. 553, and the Freedom of Information Act, 5 U.S.C. 552, on the ground that 38 U.S.C. 502, which was enacted while petitioners' claims were pending, vests the Federal Circuit with exclusive jurisdiction over such claims.
2. Whether the court of appeals erred in declining to transfer this case to the Federal Circuit.
The memorandum and amended judgment of the court of appeals granting the petition for rehearing (Pet. App. 1a-4a) is not published in the Federal Reporter but is reprinted in 329 Fed. Appx. 285. An earlier memoran dum and judgment of the court of appeals (Pet. App. 5a- 8a) is unreported. The opinion of the district court (Pet. App. 9a-23a) is reported at 541 F. Supp. 2d 87.
The judgment of the court of appeals on rehearing was entered on May 22, 2009. The petition for a writ of certiorari was filed on August 20, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
2. In 1979, petitioners, who are veterans of the Viet nam War, filed suit challenging the AOPG in the United States District Court for the District of Columbia. Pet. App. 9a, 13a. Petitioners contended that the VA had failed to subject the AOPG to public notice and comment under the Administrative Procedure Act (APA), 5 U.S.C. 553, and to publication under the Freedom of Informa tion Act (FOIA), 5 U.S.C. 552. Pet. App. 9a, 14a. They sought to compel the VA to undertake a public rule making on Agent Orange-related disability and to void denials of Agent Orange-related disability claims issued by the VA while the AOPG was still in effect. Id. at 14a.
Petitioners filed a motion for class certification in August 1979, and a motion for summary judgment in December 1979. Pet. App. 13a. The government shortly thereafter moved for judgment on the pleadings. Ibid. Oral argument on those motions was heard in February 1980. Ibid. Over the next few years, both sides submit ted additional briefs and filings. See id. at 13a, 14a. Following various protracted periods of inactivity, the case was reassigned to a different district judge in 2007. Id. at 14a.
In 2008, the district court denied petitioners' motions for summary judgment and for class certification, and granted the government's motion for judgment on the pleadings, which it treated as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). Pet. App. 9a-23a. As the district court noted, both parties acknowledged that the 1985 withdrawal of the AOPG "mooted plaintiffs' primary request that the Court order the VA to conduct a public rulemaking on Agent Orange-related disability." Id. at 14a. Petition ers continued, however, to seek an order invalidating all denials of Agent Orange-related claims while the AOPG was in effect. The district court observed that "[v]eterans whose claims were denied while the AOPG was in effect have been free to refile their claims, and to receive forward-looking compensation under liberalizing regulations promulgated since then," and it concluded that the court could not "grant plaintiffs further relief pursuant to either the APA or to FOIA." Id. at 23a.
The district court explained that the VA's issuance of the AOPG did not violate the APA because the AOPG "did not announce a binding, substantive rule," Pet. App. 9a, but was instead a "general statement of policy" not subject to the APA's notice-and-comment requirements, id. at 16a (quoting Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974)). The court further ex plained that the VA had satisfied its FOIA publication duty by making the AOPG available for public inspection and copying during the time the policy statement was in effect. Id. at 15a n.2.
3. Petitioners appealed. After the completion of briefing on the merits, the court of appeals sua sponte issued an Order to Show Cause why the appeal should not be dismissed for lack of jurisdiction. The court cited provisions of the Veterans' Judicial Review Act, enacted in 1988, that vest the Federal Circuit with exclusive ju risdiction over certain claims against the VA. See 38 U.S.C. 502, 511.
After further briefing, the court ruled that it lacked jurisdiction, since Section 502 "vests exclusive jurisdic tion for review of claims relating to FOIA publication requirements and APA notice and comment rulemaking in the Federal Circuit." Pet. App. 7a. The court con cluded that Section 502 applies to this case, even though the case was pending when the statute took effect in 1989. The court explained that, "[u]nder normal circum stances, application of a new jurisdictional statute 'takes away no substantive right, but simply changes the tribu nal that is to hear the case.'" Id. at 7a-8a (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994), and Hallowell v. Commons, 239 U.S. 506, 508 (1916)). The court acknowledged that "dismissal of [petitioners'] case on jurisdictional grounds may risk the time-barring of their claim via the independent operation of the appli cable statute of limitations," but it noted that petitioners "are likely to have a strong argument for equitable toll ing of the statute." Id. at 8a. Finally, to "resolve any time-bar concerns," the court remanded the case to the district court with instructions to transfer the case to the Federal Circuit pursuant to 28 U.S.C. 1631. Pet. App. 8a.
The government filed a petition for panel rehearing. In its petition, the government explained that Section 1631 permits transfer only "to any other such court in which the action or appeal could have been brought at the time it was filed or noticed," 28 U.S.C. 1631, and that Federal Circuit was not created until 1982 and did not acquire jurisdiction to review VA regulatory challenges until 1989. The court of appeals granted the rehearing petition and issued a memorandum and amended judg ment remanding the case with instructions to dismiss. Pet. App. 1a-4a. The court again observed, however, that petitioners "are likely to have a strong argument for equitable tolling of the statute [of limitations] should they choose to re-file in the Federal Circuit." Id. at 4a n.2.
The decision of the court of appeals is correct, and it does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted.
1. Petitioners contend (Pet. 11-14) that the court of appeals erred in concluding that, under 38 U.S.C. 502, the Federal Circuit has exclusive jurisdiction over peti tioners' APA and FOIA challenges to the AOPG. Peti tioners argue that, because this case was pending when Section 502 was enacted, the retroactivity principles articulated in Landgraf v. USI Film Products, 511 U.S. 244 (1994), counsel against applying Section 502 to re quire dismissal of the present action. Petitioners' con tention lacks merit and does not warrant this Court's review.
a. In Landgraf, this Court recognized that "the pre sumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine cen turies older than our Republic." 511 U.S. at 265. The Court also observed, however, that "[a] statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's en actment." Id. at 269. The Court noted, in particular, that it had "regularly applied intervening statutes con ferring or ousting jurisdiction, whether or not jurisdic tion lay when the underlying conduct occurred or when the suit was filed." Id. at 274. The Court explained that "[a]pplication of a new jurisdictional rule usually 'takes away no substantive right but simply changes the tribu nal that is to hear the case.'" Ibid. (quoting Hallowell v. Commons, 239 U.S. 506, 508 (1916)). The Court stated that "[p]resent law normally governs in such situations because jurisdictional statutes speak to the power of the court rather than to the rights or obligations of the par ties." Ibid. (internal quotation marks omitted); see id. at 292 (Scalia, J., concurring in the judgments) (noting the Court's "consistent practice of giving immediate ef fect to statutes that alter a court's jurisdiction").
Section 502 vests the Federal Circuit with exclusive jurisdiction over APA and FOIA claims against the VA. 38 U.S.C. 502. As the court of appeals correctly held, Section 502 is a jurisdictional rule that governs the power of the tribunal to hear the case, rather than af fecting the substantive rights or obligations of the par ties. Pet. App. 4a. The presumption against retroactiv ity therefore does not apply. See ibid.; Landgraf, 511 U.S. at 274.
Petitioners contend (Pet. 13-14) that the decision below is inconsistent with Landgraf because it takes insufficient account of "the risk that the plaintiffs' claims might be time-barred." As this Court noted in Landgraf, however, the Court has "regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying con duct occurred or when the suit was filed." 511 U.S. at 274 (emphasis added); see, e.g., Hallowell, 239 U.S. at 508 (upholding a statute that effectively precluded judi cial review of certain administrative decisions concern ing Indian probate disputes). Nothing in Landgraf sug gests that "the risk that the plaintiffs' claims might be time-barred," Pet. 13, warrants a different analysis.
2. Petitioners contend (Pet. 14-18) that, even if the court of appeals' jurisdictional ruling was correct, the court erred in ordering their suit to be dismissed rather than transferred to the Federal Circuit. Petitioners ap pear to recognize (see Pet. 16) that 28 U.S.C. 1631 does not authorize transfer of the case because their suit could not have been filed in the Federal Circuit at the time it was originally brought. Petitioners argue (Pet. 15-18), however, that the court of appeals possessed in herent authority to transfer the case. They further con tend (Pet. 16) that the court of appeals' "ultimate deci sion" to order dismissal rather than transfer of the suit "necessarily rests on the premise that it lacked inherent authority," and they assert (Pet. 15-16) that a circuit conflict exists on the inherent-authority question. Peti tioners' arguments lack merit and do not warrant this Court's review.
As petitioners acknowledge, the court of appeals did not address the issue of inherent authority. Pet. 16; see Pet. App. 3a-4a. Petitioners contend that the court of appeals' decision on rehearing to order dismissal of the suit, after the court had originally directed the district court to transfer the case to the Federal Circuit pursu ant to 28 U.S.C. 1631, "can mean only that [the court] considered both statutory and inherent authority to be lacking." Pet. 17; see Pet. App. 3a-4a, 8a. It is equally plausible, however, that the court of appeals simply de clined as a matter of discretion to exercise whatever inherent authority it might possess. In order to obtain reversal of the court of appeals' judgment, petitioners must demonstrate not simply that the court was autho rized to order a transfer, but that it was required to do so. Petitioners make no attempt to show that such a duty existed.
Petitioners are also wrong in asserting that the deci sion below implicates a current division of authority on the question whether the courts of appeals possess in herent authority to transfer cases over which they lack jurisdiction. Section 1631 was enacted as part of the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 301(a), 96 Stat. 55. The decision on which peti tioners rely for the proposition that courts possess such authority, Pearce v. Director, Office of Workers' Com pensation Programs, Dep't of Labor, 603 F.2d 763 (9th Cir. 1979), was issued before the statute's enactment. The court in Pearce therefore had no occasion to address the question whether courts retain inherent transfer authority now that Congress has addressed the issue and has specified the circumstances under which trans fer is appropriate.
Unlike in the present case, moreover, the Ninth Cir cuit in Pearce was not asked to transfer a suit to a court that would have lacked jurisdiction at the time the suit was brought. And while the court in Pearce ultimately decided that transfer was appropriate, it did not suggest that any principle of law required it to choose that course. See 603 F.2d at 771. For all those reasons, the court of appeals' disposition of this case does not conflict with the decision in Pearce.
1 During the pendency of this suit, the VA was replaced by the De partment of Veterans Affairs. Unless otherwise indicated, this brief uses the term "VA" to refer to both the Veterans Administration and the Department of Veterans Affairs.
2 The AOPG remained in effect until 1985, when the VA promulgated a regulation that established a presumptive service connection only for chloracne. Adjudication of Claims Based on Exposure to Dioxin or Ionizing Radiation, 50 Fed. Reg. 34,452, 34,458 (1985) (38 C.F.R. 3.311a (1986)); see Pet. App. 12a-13a. That regulation was later invali dated. See id. at 13a. After several years and multiple reviews of new research, the VA promulgated new regulations that created a pre sumption of service-connection for certain diseases alleged to have been caused by exposure to Agent Orange in Vietnam. See 38 C.F.R. 3.309(e); Pet. App. 13a.
3 Further review is unwarranted for an additional reason: It is not clear that the district court had jurisdiction over this case even before the enactment of 38 U.S.C. 502. See 38 U.S.C. 211(a) (1976) ("[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and con clusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise."), superseded by 38 U.S.C. 511; see also, e.g., Carter v. Cleland, 643 F.2d 1, 9 (D.C. Cir. 1980) (holding that Section 211(a) precluded judicial review of an administrative guideline alleged to have improperly constrained VA adjudicators' discretion to make case-by-case factual determinations in claims for benefits).


1 This Expedited Decision is amended to add a section entitled Post-Decision Motion for Clarification beginning on page 2, and to amend and clarify Order Number 2, on page 33.
2 Administrative Law Judge Joan Herrington observed the hearing.
The Expedited Decision was issued and served on the parties on May 11, 2012. On May 15, 2012, Student submitted a Motion for Clarification Regarding Stay Put Order. On May 17, 2012, District filed a reply in opposition to the motion.
Student’s motion requests clarification of Order Number 2 at the end of the Expedited Decision, which ordered the following: “Student shall be immediately reinstated at a general education school.” Student represents that a dispute has arisen between the family and District regarding the meaning of that order, in that Student wants to return to the school where he was placed when he was expelled, Suisun Valley; and District is offering educational placements at other schools instead. The motion is accompanied by copies of email correspondence between the attorneys for the parties and various printouts of Internet website pages about the schools.
District objects to Student’s documents attached to the motion for lack of authentication and for disclosure of confidential settlement negotiations. District’s objections are well-founded. Student’s documents are not considered in ruling on his motion because they were not accompanied by a declaration under penalty of perjury establishing the authenticity, foundation and relevancy of the documents sufficient to consider them.
District objects that Student’s motion is not one for clarification because Order Number 2 is clear on its face, and is instead a motion for reconsideration of the Expedited Decision unaccompanied by new or different facts, circumstances or law justifying reconsideration. In addition, District claims OAH has no jurisdiction over the enforcement of the order; and stay put is not at issue.
Student’s motion for clarification is granted because Order Number 2 is not clear on its face, as evidenced by the current dispute, and contains a typographical error. Order Number 2 should read as follows: “Student shall be immediately reinstated at his general education school.” It was not the intent of the ALJ, in issuing this order, to order a change in Student’s educational placement or to grant District discretion to do so. In addition, the cases cited in the Legal Conclusions regarding District’s basis of knowledge show that stay put applies during the pendency of an appeal regarding the issue. (See S.W. v. Holbrook Public Schools (2002, DC Mass.) 221 F.Supp.2d 222, infra, at p. 226-227 [where school authorities had knowledge of a disability at the time the pupil was disciplined, stay put applied and the pupil had the right to remain in her school “throughout both the administrative and judicial proceedings….”] See also Rodiriecus L. v. Waukegan Sch. Dist. No. 60 (1996, CA7 Ill.) 90 F.3d. 249. Moreover, the present case is not completed but has been bifurcated, and hearing dates are scheduled in June 2012 for the non-expedited portion of this case. Therefore, the Expedited Decision is amended to clarify Order Number 2 to change the word “a” to “his,” and to add further clarifying language as set forth in the order.
3 The Order Following Prehearing Conference, dated April 11, 2012, noted that Student’s expedited issues do not involve denial of FAPE, as Student claimed. The expedited issues have been reframed, reorganized, and clarified. For example, Student’s claim that District “knew or should have known” that he was a pupil with a disability has been reworded to comply with the specific “basis of knowledge” requirements of federal law.
4 At the outset of the hearing, the District renewed its motion, made and denied during the prehearing conference, to dismiss Student’s Issue 2, as the issue was necessarily a FAPE claim and not an expedited disciplinary issue. The ALJ denied the motion because an evidentiary hearing on the merits of the issue was needed to evaluate the claim, particularly in light of the continuance of the District’s expulsion proceeding until mid-February 2012.
10. As the Executive Director of Pupil Services, Mr. Green-Ownby is both the Director of Pupil Services, including all truancy and discipline matters, and the Director of Special Education. He has been with this District for about four years and prior to February 2011, he was the Director of Special Education. He has been in education for over 20 years, obtained a masters in educational administration, and holds State license credentials in general education multi-subject and special education learning handicapped teaching, and educational administration. Mr. Green-Ownby testified that it was his understanding that the District decided to extend Student’s suspension on about November 9, 2011. However, his testimony about the date was not persuasive because he appeared to be guessing at that date by counting five days after November 4, 2011. As found above, Student’s actual five-day suspension was through November 14, 2011. Student’s suspension would otherwise become a change of placement for purposes of this analysis on November 29, 2011, the 11th day of suspension.6 However, the parties agreed that Student has not returned to school since November 4, 2011, and Mr. Green-Ownby was persuasive that there was no gap in time between the initial and the indefinite suspension. The preponderance of the evidence therefore established that the District decided to change Student’s placement to the indefinite suspension on November 15, 2011, the same date the expulsion referral was made. District would therefore have been obligated to hold a pre-expulsion manifestation determination review meeting within 10 school days thereafter, or no later than Tuesday, December 10, 2011, if those laws are applicable.
5 According to the school calendar in evidence, school was closed for the Veterans Day holiday on Friday, November 11, 2011.
6 According to the school calendar, school was closed the week of November 21, 2011, as follows: closed on recess on November 21 and 22, and closed for the Thanksgiving holiday from November 23 through 25, 2011.
33. More troubling, Mr. Green-Ownby, who was not employed by the District in 2006, testified about how he understood the data from the original IEP should have been entered by school staff into the computer based on his 2005 participation in GENESEA’s setup as a SELPA representative from another school district. Accordingly, he could not say what procedures the District actually used in 2006, and much of his testimony was therefore hearsay.7 Based on the foregoing, while District’s Exhibit D4 was a school business record, the document could not be relied on to conclude that it was an accurate and true copy of Student’s November 2006 IEP.
7 See title 5, California Code of Regulations, section 3082, subdivision (b).
37. As an exception to the statute of limitations, Student may prevail on his claim if he shows that the District withheld information that it was obligated to provide to Student in a manner that prevented Student from filing a complaint. In this regard, Mother did not recall whether District provided her notice of procedural rights, and denied receiving a copy of the November 17, 2006 IEP. As found above, however, Mother’s testimony about the November 17, 2006 IEP meeting was not credible. Student did not establish, based on Mother’s lack of recall, that District failed to provide her with procedural rights and a copy of the IEP, or that she was thereby prevented from knowing that the District exited her son from special education for over five years. As found above, Mother knew that District rescheduled the IEP meeting at her request, due to her continuing medical education conference. She was responsible to follow up regarding the rescheduled meeting. Mother knew she had a meeting or “discussion” with the District on November 17, 2006. In addition, Mother knew that District did not convene any further IEP meetings in 2007 or 2008, within the statute of limitations. She knew that Ms. Muzzy wanted to terminate speech and language therapy based on Student’s progress because she talked to Ms. Muzzy about a week before the IEP meeting. She also believed, incorrectly, that Ms. Muzzy was leaving and that Suisun Valley would no longer provide speech services at that school after the 20062007 school year. In fact, District established that Ms. Muzzy continued to provide speech and language services to other pupils at Suisun Valley until about 2008.
45. On May 9, 2011, Ms. LaRocco, who was then Student’s sixth grade teacher, convened an SST meeting to discuss the school’s concerns about Student. Mother attended, along with Student’s other teachers, Gary Baziuk, and Amy Hosier, resource specialist Ms. Decena, and the school psychologist, Ms. Henry. In addition to being a special education resource specialist, Ms Decena was an administrative employee responsible for the SST process at Suisun Valley. Prior to the meeting, Ms. Henry attempted to speak with Student, but he defied her and refused to speak with her. The SST discussed seven areas of concern about Student: he bullied others; had difficulty following the rules; showed no empathy when teachers discussed his inappropriate behaviors; had no affect; had a hard time reading at home; engaged in power struggles with teachers, including looking for loopholes; and played with fire. Ms. LaRocco persuasively testified that Student’s mean or bullying attitudes were more serious in sixth grade than in third grade. In addition, Mr. Baziuk, Student’s English literature teacher and a teacher with 30 years of teaching experience, expressed his concerns to the team about Student’s disturbing conduct.8 The SST developed a plan of action to include communication notes between the school and both parents; consequences for inappropriate behavior, such as detention; and a behavior contract. By the third trimester of sixth grade, Student performed well academically and received academic grades of B’s in English and Math, a B plus in English Literature, and A’s in both Science and Social Science. Despite Student’s academic success, District was concerned about his psychological well-being and the impact of Student’s social isolation and aggressive bullying. Ms. Henry, the school psychologist, provided services to both general and special education pupils. However, there is no evidence that the subject of special education was raised at any time during the meeting. The evidence established that the participants knew about Parents’ troubling and ongoing divorce dispute.
8 Later, in November 2011, Ms. LaRocco informed a law enforcement officer that she thought Student might be a “sociopath.” In addition, Mr. Baziuk informed the officer that Student was the most “disturbed child” he had ever seen. While these teachers may not have used those words in the May 2011 SST meeting, there is no doubt that the concerns they expressed in that meeting were serious and reflected their knowledge of Student’s negative patterns of behavior communicated to Ms. Decena and Ms. Henry.
9 However, later, in December 2011, Mother changed her mind and denied that the handwriting was her son’s.
60. However, Dr. Peterson’s evaluation and diagnoses did not exist and were not communicated to the District at any time prior to the disciplinary incident of November 4, 2011. Student argues that Dr. Peterson’s opinions regarding Student’s historical symptoms are not only relevant to nonexpedited Student’s FAPE case regarding District’s child find obligations, but are also relevant to evaluate District’s knowledge in this expedited case prior to November 4, 2011. Thus, Student argues that, in light of Mother’s expressed concerns, District should have referred Student for a special education assessment in May or October 2011. However, as set forth in Legal Conclusions 21 through 34, the specific requirements for federal discipline procedures, including a school district’s basis of knowledge criteria, control in this expedited case. Therefore, much of Dr. Peterson’s testimony was accorded little weight on the issue of what District knew prior to the disciplinary incident at issue here.
3. Only children with certain disabilities are eligible for special education. (20 U.S.C. § 1401(3)(A); Ed. Code, § 56026, subd. (a).) For purposes of special education eligibility, the term “child with a disability” means a child with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, a specific learning disability, deafblindness, or multiple disabilities, and who, by reason thereof, require instruction, services, or both, which cannot be provided with modification of the regular school program. (20 U.S.C. § 1402(3)(A)(ii); 34 C.F.R. § 300.8(a)(2006)10.) Thus, there are many children who have varying ranges of weaknesses, deficits, areas in need of improvement, and disability who do not qualify for special education because they do not meet the narrow categories specified by law for this federally funded program, including the requirement that the instruction or services cannot be provided with modification of the regular school program.
11 Other Education Code sections define additional acts that may be grounds for discipline.
12 The LEA may also request a hearing in specified circumstances.
19. As set forth in Factual Findings 1 through 36, and Legal Conclusions 16 through 18, the two-year statute of limitations is applicable to this issue, unless an exception applies. Student’s contention that he did not know or have reason to know that he had been exited from special education in November 2006, must be construed to mean that he did not learn of the underlying facts until on or after March 20, 2010, because his complaint was filed on March 20 2012. Student did not sustain his burden of proof on this issue.13 Ms. Baziuk’s credible testimony was consistent with District’s bare record, reported to CDE, that Student had been exited, and Mother’s lack of credibility defeated her argument. The evidence established that Mother attended Student’s triennial IEP team meeting on November 17, 2006, and she knew or had reason to know, after November 17, 2006, that District had exited Student from special education, including but not limited to the following: (1) District did not invite or notify Parents to attend, or conduct any further IEP team meetings for Student from December 2006 through the present, a period of almost five and a half years; (2) there is no evidence that Mother requested an IEE because she disagreed with District’s speech and language assessment, upon which the decision to exit was based; (3) District did not file a complaint to seek an order overriding Parent’s lack of consent to exit Student, or to establish that its assessment was appropriate; (4) Mother knew or had reason to understand, by the time of Student’s annual IEP in February 2007, or February 2008, that no IEP meeting was scheduled or held, and made no inquiry; (5) Mother did not present any evidence that she made any inquiry to the District about Student’s continued speech and language services, or progress on speech and language goals, or annual reports of progress or proposed modifications of those goals for over five years; (6) Mother testified that Ms. Muzzy informed her in November 2006, that she was transferring to another school and that Suisun Valley would no longer have speech services; consequently, by Mother’s own testimony she understood Student’s services would cease, although either her recollection or the information were not true; (7) Mother did not establish that she received any representations from the District, verbally or in writing, that she relied on, or was entitled to rely on in holding any good faith belief that her son was still in special education, such as report cards, progress reports, IEP offers, annual special education goal progress reports, or parent-teacher conferences; and (8) it is reasonably inferred from Mother’s complete lack of action for over five years that she understood her son no longer received special education services.
13 Student’s closing argument does not address the statute of limitations and his contentions are taken from the context of his issues and matters discussed at hearing.
14 Subdivision (c) of Part 300. 534, above, contains exceptions that are not applicable in this case.
26. As set forth above, a parent’s expression of concern that his or her child needs special education services must be in writing, and must be made to either a teacher of the child, or to “supervisory or administrative personnel” of the school district. As set forth in Factual Findings 39 through 52, and Legal Conclusions 21 through 25, Mother did not make any such request at the May 2011 SST meeting. The meeting did not include discussion of the possibility of special education services. In addition, there is no evidence that Mother expressed in writing to any person at or after the meeting that Student was “in need of special education and related services.” Student did not sustain his burden to establish that Mother’s May 12, 2011 email asking for Student to see the school psychologist “when she is available” was a request for special education services. The evidence established that it was not uncommon for school psychologists to work with general education pupils for crisisrelated or other short-term counseling. The SST agreed to have the school psychologist check in with Student as part of the behavior plan. Mother did not object to District’s decision to use general education interventions. Whether or not District may have had some child find obligations in the spring of 2011, Student did not establish that Mother requested special education services for him in writing.
District had a basis of knowledge that Student had a suspected disability prior to the disciplinary incident on November 4, 2011.
Within 10 school days of the date of this order, District shall convene a manifestation determination review team meeting if it decides to suspend Student for more than 10 school days, or expel Student based on the disciplinary incident on November 4, 2011.
If the District fails to hold a manifestation determination review team meeting as ordered above, the District shall expunge Student’s educational records by purging all references to his expulsion.
16 Nothing in this Expedited Decision prevents Student from raising at the nonexpediting hearing that the District denied Student a FAPE when it determined not to assess him after Mother’s November 10, 2011 request, and that he is eligible to receive special education services, as alleged in his complaint.
17 Student’s closing argument requests an interim placement under 34 C.F.R. 300.532(b)(2)(ii) at a residential treatment center called Plumfield Academy. However, Student has not yet been found eligible for special education and presented no evidence regarding residential treatment centers. The request is therefore denied.