JOHN WIECZOREK, Petitioner, v. SHIRLEE A. HARRY, Respondent.
On August 15, 2011, the Court issued an opinion and order denying Petitioner's application for a writ of habeas corpus. ECF No. 18. Under Rule 11 of the Rules Governing § 2254 Proceedings, the Court "must issue or deny a certificate of appealability when it enters a final order." Accordingly, in the opinion and order dismissing the petition, the Court concluded that a certificate of appealability was not warranted because reasonable jurists would not debate the Court's assessment of Petitioner's claims nor conclude that the claims deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
On September 6, 2011, Petitioner filed a motion to proceed in forma pauperis on appeal, requesting that the Court reconsider its decision declining to issue a certificate of appealability on the claims presented in his petition or leave to appeal in forma pauperis. ECF No. 21. An appeal may be taken in forma pauperis if the appeal is taken in "good faith." 28 U.S.C. § 1915(a). "Good faith" requires a showing that the issues are arguable on the merits and are, therefore, not frivolous; it does not require a showing of probable success. Harkins v. Roberts, 935 F. Supp. 871, 873 (S.D. Miss. 1996) (quoting Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983)). "If the district court can discern the existence of any nonfrivolous issue on appeal, the movant's petition to appeal in forma pauperis must be granted." Harkins, 935 F. Supp. at 873. For the reasons stated in the Court's opinion and order of August 15, 2011, the Court does not discern a nonfrivolous issue in this case and, thus, an appeal cannot be taken in good faith.
Under the Eastern District of Michigan's Local Rules, motions for reconsideration must be filed "within 14 days after entry of the judgment or order." E.D. Mich. L.R. 7.1(h)(1). Accordingly, Petitioner's motion is untimely.
Accordingly, it is that Petitioner's application to proceed in forma pauperis on appeal (ECF No. 21) is DENIED.
The undersigned certifies that a copy of the foregoing order was served upon each attorney of record herein by electronic means and upon John Wieczorek, #252051, at Newberry Correctional Facility. 3001 Newberry Avenue, Newberry, MI 49868 first class U.S. mail on September 26, 2011.


§ 207-1 Declaration of policy.
§ 207-3 General regulations; violations.
§ 207-6 Inspection and emergency procedures.
§ 207-7 Penalties for offenses; claims.
§ 207-9 Construal of provisions; higher standards to prevail.
§ 207-10 Imposition of additional requirements permitted.
§ 207-14 Compliance; license required.
§ 207-15 Dumping in prohibited areas.
§ 207-16 Open burning prohibited; exceptions.
§ 207-20 Licensed collectors; fees.
§ 207-22 Penalties for offenses.
Junkyards — See Ch. 153.
It is hereby declared to be the public policy of the City of Oswego to preserve, protect and improve its environment and its air, land and water resources in order to promote the health, safety, welfare and comfort of the inhabitants of the city.
Formulating and implementing regulations to reduce the air and water pollution caused by any waste disposal facility.
Prohibiting the disposal or storage, in landfills, secured or otherwise, of any hazardous wastes.
The improper disposal of industrial and chemical wastes and other hazardous substances is resulting in an adverse impact on the health, safety and welfare of the people of the City of Oswego. The need for safe and environmentally sound waste management is especially acute with regard to the incineration or disposal, by burning or by other means, of such wastes.
Any equipment, method or process used with a waste disposal facility to remove, reduce or render less noxious air contaminants and particulate matter discharged by the facility.
A dust, fume, gas, mist, odor, smoke, vapor, noise or any combination thereof.
Any waste disposal facility that has been changed, modified, remodeled or has undergone repairs beyond ordinary and reasonable maintenance after the effective date of this Article.
Any sudden, unexpected or unforeseen condition which poses an immediate threat to the public health, safety or welfare as to require immediate action or a condition which is reasonably believed to require immediate action to enforce the provisions and regulations of this Article.
Any waste disposal facility erected prior to the effective date of this Article.
Any waste or combination of wastes which poses a present or potential hazard to the health and welfare of humans, living organisms or the environment. It includes, but is not limited to, those materials listed in the current 49 CFR 172.
A controlled combustion or other conversion process to convert waste to a less bulky, less toxic or less noxious form in a facility designed for such use.
Any waste disposal facility erected after the effective date of this Article.
Any private individual, partnership, copartnership, firm, company, corporation, association or joint-stock company or other entity and any representative thereof.
The presence in the environment of one (1) or more conditions or air contaminants formed as a result of a waste disposal process, which are in quantities which are or may be injurious to the public health, safety and welfare and interfere with the comfortable enjoyment of life and property.
Any substance or material which causes or has a tendency to cause harm or adversely affects the health, upon contact with or accumulation in or upon the body, of a person or living organism.
Industrial or chemical materials and their by-products intended to be destroyed or otherwise disposed of.
Any privately owned building, premises, equipment or other property used for the storage, containment, processing and disposal of wastes. Without limiting the generality of the foregoing, this term shall include privately owned and operated incinerators and similar disposal facilities.
Permit required. No person shall establish or operate any facility for any method of waste and hazardous waste processing and disposal without having first obtained a permit from the Common Council in accordance with the provisions of this section.
A person shall be in violation of this Article if he disposes of any waste or hazardous waste at any place other than a disposal facility for which a permit has been issued by the Common Council.
A person shall be in violation of this Article if he allows property or land under his control to be used for the disposal of any waste, hazardous waste or containers for such wastes unless permission for such use has been granted by the Common Council.
A person shall be in violation of this Article if he permits or causes the release of toxic pollutants or toxic substances of any kind at any waste disposal facility or upon property or land under his control or occupation.
It shall be a violation of this Article to store or dispose of any radioactive waste materials within the City of Oswego.
It shall be a violation of this Article to store or dispose of any waste or hazardous waste in any landfill, secured or otherwise.
Compliance with all regulations required. As of December 31, 1980, no person shall construct, operate or cause to be used any waste disposal facility unless it is capable of being operated in full compliance with the provisions of this Article, in addition to the applicable federal and state regulations. The application for a permit and the permit itself shall both clearly state this condition.
Permits to establish or operate any waste disposal facility shall be issued by the Common Council in accordance with the provisions of this section.
Permit applications shall be issued by the office of the City Engineer.
Contents of application. Application for a permit to establish or operate any waste disposal facility shall be made to the Common Council.
The proposed maintenance and inspection program.
The proposed inventory control plan.
The proposed spill containment plan.
Such other information as may be required by the Common Council.
All of the above information shall be prepared by a registered professional engineer of the State of New York.
Where an environmental quality review is or shall be required by any federal, state or local law, the applicant shall furnish all the necessary information and bear the expense of preparation of any environmental impact statement.
The City Engineer shall review and consider all permit applications submitted to the Common Council for the operation of waste disposal facilities and, after consideration, recommend, with documentation, to the Common Council that a permit be granted or denied.
Granting or denial of permit.
After receiving the opinion of the City Engineer, the Common Council shall have ninety (90) days to either grant or deny a permit.
The application shall be publicly noticed and presented at a public hearing before the Council may render its decision.
If an applicant is not granted a permit, he shall be notified, in writing, of the reasons for the denial.
The material handling system and whether the building and equipment are designed for safe and organized receipt and handling of the waste material.
In the case of an incinerator, the incinerator components should be designed to assure that proper combustion occurs.
Air-pollution control equipment is required for adequate treatment of the exhaust gases before they are emitted to the atmosphere.
Water-pollution control equipment is required to adequately treat the scrubber water before it is discharged.
Due consideration shall be given to the geological and hydrological character of the proposed site.
The Common Council shall issue a permit if, after such review and consideration of the City Engineer's report, it determines that such a facility will be in compliance with the standards and requirements of this Article.
The issuance of any permit shall be contingent upon the applicant furnishing to the city a bond or other security in the amount of five hundred thousand dollars ($500,000.), naming the City of Oswego as obligee. The condition of the bond or security shall be that, if the principal fails to comply with any of the provisions of this Article or for any reason ceases to operate or abandons the disposal facility, the obligor and the sureties on the bond or security shall reimburse the city, to the extent of the bond or security, for any and all expenses incurred in restoring or dismantling the facility.
Unless otherwise provided by the Common Council, any permit issued shall be valid for one (1) year, with provision for renewal. The application for renewal shall contain a statement of any changes in the information submitted in the last approved permit application and shall be made, in writing, to the Common Council at least thirty (30) days in advance of the expiration of the permit. If the permit is not renewed, the applicant shall be notified, in writing, of the reasons therefor.
Permit applicants with outstanding violations or unpaid monies.
No such permit shall be granted to or renewed for an applicant who is in violation of any City of Oswego code, ordinance or local law (hereinafter "violations") or who owes property taxes, water or sewer fees, special assessments, fines for violations of City ordinances or any other fees or past due monies of any name or nature owed to the City of Oswego (hereinafter "unpaid monies").
The applicant shall have the burden of providing proof in a form acceptable to the department that there are no such violations or unpaid monies.
In the event that the applicant has accrued violations or unpaid monies, such permit or renewal thereof shall be denied regardless of whether such violations or unpaid monies relate to a parcel of real property for which the application is made or another parcel owned by applicant or are personal to the applicant.
In the event that the applicant has accrued violations or unpaid monies, such permit or renewal thereof shall be denied regardless of whether such violations or unpaid monies occurred or accrued before the effective date of this local law.
Such permit, once granted, shall be revoked in the event that the applicant accrues violations or unpaid monies, or violations or unpaid monies are discovered, after the permit is granted. The revocation shall take effect five business days after receipt by the permit holder of notice from the City of Oswego of the pending revocation. Upon such revocation, all permitted activities and privileges shall immediately cease.
No application fees shall be refunded upon revocation of the permit.
The applicant must reapply for the issuance of such revoked permit by submitting a new application and paying all necessary application fees, and any such permitted activities or privileges may only be resumed once a new permit has been granted.
All requirements set forth herein shall also apply to nonperson entities and such permit or renewal thereof shall be denied to an entity, or revoked, if a person with a substantial interest in such entity owes such unpaid monies or has accrued such violations. A "person with a substantial interest" shall mean an ownership interest of more than 10% of, membership on the governing board of, holding an office in or holding the ability to cast or control more than 10% of the votes in such entity.
Notwithstanding the provisions contained in this section to the contrary, when in the opinion of the Director of Code Enforcement the issuance of a permit is necessary to prevent harm to life, safety, or the general welfare of the public, the Director of Code Enforcement shall be authorized to issue said permit for the sole and exclusive purpose of bringing such violations into compliance with the Code of the City of Oswego. Nothing contained herein shall relieve the property owner from complying with all other applicable sections of the Code including, without limitation, the provisions contained in this section.
No person shall construct or operate any disposal facility which will emit more than five (5) grains per one hundred (100) SCF of particulate matter and which cannot comply with the ambient air quality standards for New York, as set forth in the New York Codes, Rules and Regulations.
It shall be a violation of this Article to operate any waste disposal facility in such a manner as to allow the emission into the atmosphere of any air contaminants and particulate matter in excess of that allowed by Subsection A or in such quantity as may be detrimental to any person or the public or endangers the health, safety and welfare of the members of the community or which causes or has a tendency to cause damage to property or business.
No person shall use or cause to be used any disposal facility, unless all components and pollution control devices are connected and are functioning properly.
The operation of any waste disposal facility equipped with any type of air-cleaning device or other pollution control equipment shall be conditioned upon demonstration and approval of a system for treatment of pollutants and contaminants withdrawn by that equipment.
No person shall cause, permit or allow any waste or hazardous substance to be handled, transported, stored, incinerated or disposed of in any manner which allows or causes such waste material to leach, leak, run off or enter the land or surrounding waters or waterways, or both.
All tank and barrel storage areas shall be enclosed by impermeable lined enclosures to ensure the prevention and control of any spills or leakage.
All waste materials shall be handled and stored in such a manner as not to pose a threat to the health, safety and welfare of humans or other living organisms.
No person shall cause or allow the storage of any liquid industrial, chemical or hazardous waste in open pools, lagoons or other means of open containment.
All such wastes shall be stored in tanks or upright metal barrels.
Barrels and tanks shall be stored and maintained so that they do not tip, spill or leak. In no event shall barrels be stored on top of one another.
The number of barrels containing waste material that may be stored on the premises of the incinerator shall be limited to the amount of waste that can be disposed of properly within thirty (30) days.
Empty barrels shall not be allowed to accumulate and shall be removed from the premises within thirty (30) days after receipt.
All barrels and tanks must be located so as to allow complete visual inspection for leakage and structural integrity.
Records shall be kept of the receipt and disposal of each barrel. These shall include the date of receipt and disposition, the name and address of the generator of the waste and a complete description of the contents of said barrel or container.
No person shall operate any liquid waste incinerator or disposal facility without maintaining a detailed inventory control plan.
The owner or operator of the facility shall record the type and quantity of all waste materials received and disposed of.
All waste material must be subjected to complete chemical and physical quantitative and qualitative analysis before it is disposed of, and a record of such analyses shall be kept available for inspection by the City Engineer or his representative.
The owner or operator shall record and comply with all disposal instructions recommended by the manufacturer or generator of a particular waste material.
No person shall construct or operate any waste disposal facility without implementation of an inspection and maintenance program.
For barrel dumping and tank unloading area, daily inspection for spills, leaky pump seals or valves and monthly testing of pump high-level control devices.
For storage containers, weekly inspection of storage containers for structural defects, leaks or spills and monthly inspection and testing of high-level control and alarms.
For pump rooms, daily visual inspection for leaky pump seals and valves.
For spill containment structures, weekly inspection of all containment structures.
For plant operating areas, visual inspection on each shift of operation, and each inspection must be noted in the plant operation log.
All employees of the disposal facility are to be instructed in the proper inspection procedure and cleanup techniques on no less than an annual basis, and records of such instruction shall be made available to the City Engineer or his representative when the facility is operating and at any other reasonable time.
The city shall have the right to inspect private property to determine if a waste disposal facility is operating in compliance with the provisions of this Article.
The owner of any waste disposal facility may be, required to conduct emission tests and submit written reports of measured emissions during start-up and at regular intervals thereafter. The cost of such testing shall be borne by the home owner of the disposal facility.
For the purpose of determining compliance with the provisions of this Article, the owner, operator or authorized representative of any waste disposal facility shall, upon request, grant free access for inspection by the City Engineer or his authorized representative.
Before undertaking such an inspection, the Engineer or his authorized representative shall present to the owner, operator or agent in charge of the facility appropriate credentials and a written statement as to the reason for the inspection.
Inspections shall be permitted whenever the facility is in operation and at such other times as may be reasonable and necessary in the opinion of the City Engineer or his representative.
Inspect and copy all inventory records and log books.
Inspect and obtain samples of any wastes on the premises and any containers or labeling for such wastes.
Make any other inspections as he may decide is necessary to determine compliance with the provisions of this Article.
The City Engineer or someone authorized to receive notice in his absence.
The State Department of Environmental Conservation.
Written notice to the above shall follow within twenty-four (24) hours of the occurrence of the malfunction or emergency.
If, after having received such notice, the City Engineer finds that continued operation of the disposal facility is contributing to pollution of the air or water, or both, of the city and that such pollution poses a danger to the public health, welfare and safety, he shall order the facility to cease operation.
Such an order must be complied with immediately, and, upon issuance of such an order, the Common Council, if requested by the party affected by the order, shall schedule a hearing on the matter within five (5) days.
Any person who knowingly violates the provision of this Article shall be subject to a fine of one hundred dollars ($100.) or to imprisonment for a period not to exceed three (3) months, or both. Each day of violation shall constitute a separate offense.
All persons participating or found to have participated in any violation shall be severely liable to the penalties outlined in Subsection A.
Action pursuant to Subsection A shall not be a bar to enforcement of this Article by injunction or other appropriate remedy. The City Attorney shall have the power to institute and maintain any and all enforcement proceedings.
Nothing in this Article shall be construed to abridge or limit the right of any person to damages or other relief or account of injury to person or property and to maintain any appropriate action or proceeding therefor.
Any permit granted under the provisions of this Article may be suspended for not longer than sixty (60) days for violation of any provision of this Article or whenever, in the written and documented opinion of the Common Council, the New York Department of Public Health or the New York Department of Environmental Conservation, the continued operation of any waste disposal facility would endanger the health, welfare or safety of the public. The notice of suspension may be served upon the owner personally or by leaving a copy at the facility with the person in charge.
Any permit may be revoked at any time for violation of any provision of this Article. Revocation may occur only after the Common Council has held a public hearing at which the owner and other persons interested in the facility shall have had the right to be heard.
In the case of a suspension, upon written notification from the owner that all violations for which the suspension was invoked have been corrected, the City Engineer or his authorized representatives shall inspect the disposal facility within five (5) working days after receipt of the notice. If it is determined from this inspection that the violations have been corrected, the Common Council shall immediately terminate the suspension by written notice to the owner.
If any court of competent jurisdiction shall adjudge any provision of this Article to be invalid, such judgment shall not affect any other provisions of this Article not specifically included in the judgment.
If any court of competent jurisdiction shall adjudge invalid the application of any provision of this Article to a particular structure, site, facility or operation, such judgment shall not affect the application of the provisions in question to any other structure, site, facility or operation not specifically included in the judgment.
This Article shall not be construed to relieve any person from any present or future requirement arising from any state or federal law.
Where the conditions imposed by any provision of this Article are more restrictive than comparable conditions imposed by any other applicable law, ordinance, rule or regulation, the provision which establishes the higher standards for the promotion and protection of the public health, safety and general welfare shall prevail.
For purposes of protecting and providing for the public health, safety and welfare, the governing body may impose additional requirements for the operation of waste disposal facilities, consistent with the intent of this Article.
This Article shall be known as the "City of Oswego Solid Waste Collection Ordinance."
It shall be the duty of the local Police Department to enforce the provisions of this Article.
The residue resulting from the burning of wood, coal, coke or other combustible materials.
Scrap lumber, concrete, pipe, bricks, plaster and similar materials resulting from building construction, maintenance and alteration.
Large oversize wastes that require special handling for collection and shall include, but not be limited to, furniture, appliances, crates, etc.
Any individual, association, partnership, firm or corporation having an established business within the City of Oswego.
Any individual, association, partnership, firm or corporation in the business of collecting garbage and refuse within the City of Oswego.
Any individual, association, partnership, firm or corporation in any business dealing with construction or the collection of junk; and any individual, association, partnership, firm or corporation which owns a truck which is not licensed for refuse collection.
All animal and vegetable wastes resulting from the handling, processing, preparation, cooking or consumption of food.
Any individual, association, partnership, firm or corporation who owns, controls or operates motor vehicles with the intention to haul waste for a fee and operates a vehicle with a gross weight in excess of 18,000 pounds.
Any individual, association, partnership, firm or corporation who owns, controls or operates motor vehicles with the intention to haul waste for a fee and operates a vehicle with a gross weight under 18.000 pounds.
The owner, agent, lessee, tenant, occupant or other person who manages or controls a building, house or lot who or which causes, creates or contributes to the origination of refuse or who is responsible for its storage, removal or disposal.
Any individual, association, partnership, firm or corporation.
Any and all materials deemed recyclable under Oswego County's Mandatory Recycling Program.
All solid wastes, including, but not limited to, garbage, ashes, rubbish, bulky wastes and building debris.
Any individual who resides within the City of Oswego.
Glass, metal, paper, plant and tree growth, wood or nonputrescible solid wastes.
Grass (lawn) clippings, other plants, leaves and brush and other tree waste, but does not include stumps.
Waste collection shall comply in every detail to the standards set forth in this Article and with all applicable county, state and national laws. No person shall engage in any form of waste collection operation without obtaining a license from the Common Council.
It shall be unlawful for any person to dump, place, deposit or permit to be deposited upon any public or private property, or upon any street, sidewalk or other public place in the City of Oswego, any garbage, ashes, rubbish, yard wastes, building debris or other objectionable wastes, except as hereinafter provided.
No person shall make or assist in the making of any fire for the burning of any waste product refuse of any kind, including, but not limited to, garbage, paper, paper products, cartons, tree trimmings, leaves, brush and lawn or garden debris of any kind, at any time in any public street or public place within the City of Oswego.
No person shall conduct on-site open burning of rubbish generated by residential activities, including, but not limited to, garbage, rubbish, paper, paper products, cartons, tree trimmings, leaves, brush and lawn or garden debris of any kind at any time or any place, including his own property, within the limits of the City of Oswego.
The Common Council of the City of Oswego may petition the New York State Air Pollution Control Board to designate an area wherein on-site open burning of certain types would be permitted and allowed.
Editor's Note: Former § 207-17, Preparation of solid waste for collection, as amended, was repealed 8-25-2008 by Res. No. 347. See now Ch. 249, Vacant and Occupied Property Maintenance, § 249-5.
Editor's Note: Former § 207-18, Approved collection containers, as amended, was repealed 8-25-2008 by Res. No. 347. See now Ch. 249, Vacant and Occupied Property Maintenance, § 249-6A and B.
No resident shall collect any solid wastes within the city or transport any solid wastes over the streets of the city except those solid wastes originating from the resident's own property.
All residents who utilize the county landfill for the disposition of their own solid wastes must obtain an annual sticker or punch card issued in accordance with the rules promulgated by the Oswego County Department of Public Works, Solid Waste Division.
Licenses required. No collector shall collect any solid wastes within the City or transport any solid wastes over the streets of the City without having first obtaining a license from the City Clerk. Solid wastes originating from the collector’s own property shall be excluded from the licensing requirements.
Collector’s application for a license. All applications for a collector’s license shall be in writing and shall contain such information as the Common Council shall require and shall be verified by the applicant. Applications for a license shall be obtained at the office of the City Clerk on forms provided by said office. The applicant shall file with his application a certificate or affidavit of insurance as hereinafter set forth and shall play the required license fee. Upon receipt of such application properly executed, the City Clerk shall refer the same to the Common Council for its approval before issuing the license.
Each collector, including major haulers, shall be required to pay a license fee of $500 per year.
Minor haulers shall be required to pay a license fee of $50 per year.
All operations of the applicant, or any other person, firm or corporation employed by him in solid waste collection within the corporate limits of the City of Oswego.
The disposal of such garbage and refuse to and within the designated and approved treatment and/or disposal facility.
Protecting the public and any person from injuries or damages sustained by reason of carrying on the work of garbage and refuse collection and disposal.
Public liability insurance: $1,000,000 per person; $2,000,000 per occurrence.
Upon notice from the City Clerk that an application has been received, the Common Council shall make or cause to be made an inspection by the Police Chief, or his designee, to determine that all New York State inspection requirements have been complied with and in addition to any and all requirements contained the Solid Waste Collection Ordinance; and if the same meets the requirements herein specified, the Common Council shall file its approval with the City Clerk.
Additional inspections or investigations of equipment and operations may be made from time to tin at the discretion of the Police Chief. A violation of the conditions of this article may result in a fine and/or a revocation of the applicant's license as may be determined by the Common Council.
Issuance of license. Upon receipt of approval from the Common Council, the filing of the proper certificates and affidavits of insurance and the payment of the license fee, the City Clerk shall thereupon issue the applicant a license. All licenses shall expire on December 31 following the date of issue.
Renewal of license. Renewal licenses shall be issued in the same manner and subject to the same conditions as original licenses and also shall be subject to any additional requirements in effect at the time of application for renewal.
Issuance of duplicate licenses. Whenever proof by means of a sworn affidavit shall be submitted to the City Clerk that a license issued for the purpose set forth in this article has been lost or destroyed, the City Clerk may, upon payment of $5 by the applicant, issue a new license in lieu of the one that has been lost or destroyed.
License not transferable. No license issued under this article's provisions shall be transferable.
Revocation of license. Upon receipt of three or more complaints against a licensee, the Common Council, after a hearing, shall have the power to suspend or revoke a license granted or renewed pursuant to this article for violation of any part of this article or any applicable rules, regulations, codes or ordinances relating to the collection, handling, hauling or disposal of solid wastes.
Condition of vehicles. All vehicles used in the transportation of solid wastes within the City shall be kept in a sanitary condition and shall be so constructed so as to prevent leakage in transit. The body of the truck shall be wholly enclosed or shall at all times be kept covered with an adequate cover. Loading of vehicles shall be done in such a manner as to prevent spilling or loss of contents.
Frequency of collections. Collection of solid wastes from private residences shall be made not less than once a week. All acceptable wastes in approved containers placed out for collection shall be collected at each pickup. Collections of garbage from stores, hotels, restaurants, clubs, boardinghouses or other commercial establishments must be made on a regular schedule.
Editor's Note: Former Subsection M, Location of collection containers, was repealed 8-25-2008 by Res. No. 347. See now Ch. 249, Vacant and Occupied Property Maintenance, § 249-6C.
Pickup service. Each waste collection licensee hereunder shall provide an adequate and prompt response to all complaints from patrons on missed service and improper handling and shall promptly furnish the missed service and correct the improper handling. Such service shall be promptly available to service complaints from any City official for material improperly deposited within the limits of the streets or highways during transit.
License required. No contractor shall collect any solid wastes within the City or transport any solid wastes over the streets of the City without first having obtained a license from the City Clerk and having paid the approved license fee as set forth herein (§ 207-20C).
Any collector who violates any provision of this article or fails to comply with the orders of the local Police Department shall be liable for a fine not exceeding $500 for a single violation or a failure. Each day during which a violation continues shall be deemed to be a separate and distinct violation.
Any other person who violates any provision of this article or fails to comply with the orders of the local Police Department shall be liable to a fine not exceeding $100 for a single violation or failure. Each day during which a violation continues shall be deemed to be a separate and distinct violation.


I blogged on May 9, 2012, about Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court‘s important private individual immunity decision which ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis.
Here are two post-Filarsky decisions from the Fourth and Sixth Circuits which, contrary to my suggestion in the earlier post that Richardson is now an “outlier,” ruled qualified immunity inapplicable.
I came across these cases in the course of preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West Group) (CIVLIBLIT on Westlaw).
In Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), the plaintiff sued a bail bondsman under § 1983 alleging various constitutional violations arising out of the defendant’s efforts to catch a fugitive in and around plaintiff’s home. A jury found for the plaintiff and awarded compensatory and punitive damages, but the defendant on appeal challenged the district court’s qualified immunity instruction to the jury on the ground that this issue was not for the jury. Affirming, the Fourth Circuit held that there was no error because the defendant, as a bail bondsman, was not entitled to qualified immunity.
The court expressly followed the Richardson approach in looking at the history and policy of qualified immunity and finding that neither supported qualified immunity for bail bondsmen. There was no historical evidence demonstrating that bail bondsmen were given immunity or that they were considered as arms of the court performing a public function. Moreover, they were motivated primarily by profit and thus, per Richardson, there was no need for qualified immunity to ensure an adequate number of bail bondsmen.
Finally, Filarsky did not change this result: the defendant here was not an arm of the court, he was not employed by the sheriff’s department, he did not report to law enforcement, he was not asked to assist in apprehending the fugitive and he was in charge of the search. Thus, Filarsky was inapposite.
McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), involved a § 1983 Eighth Amendment lawsuit brought by a deceased inmate’s mother against a psychiatrist employed by an independent non-profit organization who was working part-time as a prison psychiatrist at the time he was allegedly deliberately indifferent to the serious medical needs of the inmate.
Ruling that the defendant was not entitled to claim qualified immunity, the Sixth Circuit, looking to history and the common law, found that a private physician working for a public institution in 1871 would not have been immune from damages liability at common law. In addition, the policies underlying § 1983 immunity doctrine—promoting independent decision-making, encouraging persons to go into public service and guarding against distraction—indicated that qualified immunity would not be appropriate here. As was true in Richardson, market forces would accomplish these same goals.


DUI. Troup State Court. Before Judge Little.
Dean A. Williams, for appellant.
Nina M. Baker, Solicitor-General, for appellee.
Following a bench trial, the trial judge found Balan Annaswamy guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent that he was a less safe driver and driving under the influence of alcohol per se. Annaswamy appeals, alleging the trial court erred in accepting his waiver of trial counsel and erred in accepting his waiver of a jury trial. Annaswamy also alleges the evidence was insufficient to support the trial judge's verdict. We find no error and affirm his convictions.
1. Annaswamy contends the trial court erred in accepting his waiver of counsel for trial without ensuring that he had knowingly, intelligently, freely and voluntarily waived his right to counsel. We find no error.
On September 23, 2005, Annaswamy's trial counsel withdrew when Annaswamy discontinued his services. On October 14, 2005, Annaswamy appeared before Judge Jeannette Little for a pre-trial conference. He requested to represent himself, and he signed and initialed each paragraph of the "Waiver of the Right to Counsel." The initialed paragraphs note that Annaswamy (1) was not under the influence of any alcohol or drugs, or suffering from any mental or physical disability, (2) was advised of the nature of the charges against him, the maximum and minimum punishment provided by law, his right to be represented by an attorney, and his right to a court-appointed attorney, (3) was informed of the benefits of a lawyer and the dangers and disadvantages of proceeding without legal representation, (4) nevertheless voluntarily desires to waive his right to a lawyer, and (5) understands he has been charged with misdemeanors and understands defenses to the charges would include that he did not commit the acts or that he was justified in committing the acts.
After having investigated the facts and circumstances underlying the Defendant's wish to waive the right of counsel, including the Defendant's background, employment, education, and desires, and after having warned the Defendant of the dangers and disadvantages of proceeding without legal representation, I have determined that this Defendant has knowingly, voluntarily, and intelligently waived the right to counsel and the right to court-appointed counsel, if the Defendant is indigent.
The trial judge then signed the document below this language. The waiver of right to counsel signed by Annaswamy and approved by the trial judge shows that Annaswamy was aware of the dangers of representing himself. Contrary to Annaswamy's argument on appeal, "it is not incumbent upon the trial court to make each of these inquiries." The record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.
Jones v. State, 272 Ga. 884, 886 (2) ( 536 SE2d 511) (2000).
See Bollinger v. State, 272 Ga. App. 688, 689 (1) ( 613 SE2d 209) (2005).
THE COURT: Now, Mr. Annaswamy, back on October the 14th, 2005 you told me you wanted to represent yourself; is that right?
THE COURT: Okay. We went over the benefits of having a lawyer.
THE COURT: Okay. Back on October the 14th you read over this?
THE COURT: And you and I went over the benefits of having a lawyer.
MR. ANNASWAMY: I agree, yes.
THE COURT: And I explained to you the potential sentencing in this case?
THE COURT: And you said you wanted to represent yourself?
THE COURT: In fact, you previously had a lawyer and you fired him and decided to represent yourself?
MR. ANNASWAMY: He asked — when my mother was in intensive care in India, he asked me to sign, all you have to do is plead guilty. I spoke with 5,000 citizens, they told me, you're not guilty.
THE COURT: But you're representing yourself today because that's your choice, is that right?
The trial court did not err in accepting Annaswamy's waiver of counsel for trial.
2. Annaswamy contends the trial court erred in accepting his waiver of jury trial without ensuring he had knowingly, intelligently, freely and voluntarily waived his right to a jury trial. We find no error.
When the purported waiver of a jury trial is questioned, the state bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived, or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. Here, the record shows that along with his waiver of the right to counsel on October 14, 2005, Annaswamy also requested that he be removed from the jury trial calendar and scheduled for a bench trial. Following this request, the trial court issued a document entitled "Consent Order Accepting Defendant's Waiver of Jury Trial and Scheduling Bench Trial." The document is signed by Annaswamy. In addition, the trial judge signed the document, after specifically noting that the court was "satisfied that the Defendant is making a knowing and voluntary waiver of his/her right to a trial by jury."
See White v. State, 197 Ga. App. 162 ( 398 SE2d 35) (1990).
The question of whether a defendant knowingly and intelligently waives his right to a jury trial is a question for the trial judge, and this Court will accept that determination unless it is clearly erroneous. Under the circumstances in the present case, the record shows that Annaswamy personally, voluntarily, knowingly and intelligently waived his right to a jury trial. The trial court did not err in accepting Annaswamy's waiver of jury trial on the date of the bench trial.
See Harris v. State, 269 Ga. App. 234, 235 ( 603 SE2d 749) (2004).
See Gardner v. State, 261 Ga. App. 425, 426 (2) ( 582 SE2d 566) (2003).
3. Annaswamy argues that the evidence is insufficient to support his convictions for driving under the influence of alcohol to the extent he was a less safe driver and driving under the influence of alcohol per se. We find no merit to this contention. Viewed in a light most favorable to support the trial judge's verdict, the evidence shows that a citizen alerted a Troup County deputy to a car in a ditch. The deputy arrived at the scene, saw the car, and saw Annaswamy getting out of the car. The deputy noticed a faint odor of alcohol on Annaswamy's breath. He testified at trial that he believed Annaswamy was "somewhat driving under the influence of alcohol," but admitted he did not test Annaswamy.
A corporal who arrived at the scene testified that Annaswamy smelled of alcohol. According to the corporal, Annaswamy's "speech was real slurred" and "[o]nce he got inside the car, inside my patrol car, it [(the smell of alcohol)] really got stronger." Annaswamy admitted to the corporal that he had a glass of wine earlier in the evening. The corporal gave Annaswamy an Intoxilyzer 5000 test, and the result was 0.09, which was above the legal limit. According to the corporal, he was trained and permitted to give tests on the Intoxilyzer, and the Intoxilyzer was in good working order at the time of Annaswamy's test. The corporal also testified that Annaswamy's mannerisms and actions were typical of someone under the influence of alcohol. In his opinion, Annaswamy was less safe to drive because of his intoxication.
A witness who lived at the location where Annaswamy was before he drove off and got stuck in the ditch testified that when she arrived home she found Annaswamy on the floor. She asked him to leave and saw a partially empty bottle of wine. She watched Annaswamy get into his car and back it up into the ditch. She then saw him try to move the car by picking it up. According to the witness, the police did not arrive for about an hour after Annaswamy drove into the ditch. The witness testified that her driveway is "fairly straight," and a sober person would be able to back out of the driveway onto the road.
The record further shows that the court asked the witness a few clarification questions, and during this exchange, Annaswamy stated: "I was intoxicated. She knew I was intoxicated." Annaswamy also admitted that he did not drink any of the wine after he drove his car into the ditch.
The evidence clearly supports the trial court's finding that Annaswamy was guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent he was a less safe driver and driving under the influence of alcohol per se.
See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Reynolds v. State, 230 Ga. App. 458, 459 (3) ( 496 SE2d 474) (1998).
Annaswamy argues that the evidence was insufficient to support his conviction for driving under the influence of alcohol per se because only one breath test was testified to by the state and OCGA § 40-6-392 (a) (1) (B) mandates that two breath tests must be given. Even if we were to agree with Annaswamy's argument that only one Intoxilyzer test was given, Annaswamy has waived this argument by failing to make any objection at trial to the admission of the single breath test. "In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground." In addition, a trial judge sitting alone in a bench trial is presumed to know the law and be able to distinguish between competent and incompetent evidence and consider only the evidence that is admissible. The evidence was sufficient for the trial court to find Annaswamy guilty beyond a reasonable doubt of driving under the influence of alcohol per se.
See generally Capps v. State, 273 Ga. App. 696, 697 (1) ( 615 SE2d 821) (2005); Helms v. State, 191 Ga. App. 283, 284 ( 381 SE2d 428) (1989).
(Citations and punctuation omitted.) Glover v. State, 230 Ga. App. 795, 797 (1) ( 498 SE2d 300) (1998).
See Crossley v. State, 261 Ga. App. 250, 253 ( 582 SE2d 204) (2003); Miller v. State, 250 Ga. App. 84, 85-86 (2) ( 550 SE2d 134) (2001).
Judgment affirmed. Miller and Ellington, JJ., concur.


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Good businesses are built on good contracts. Protecting and enforcing those contracts is critical to success. Tonkon Torp’s trial lawyers know how to protect your contractual rights, and how to avoid impractical and wasteful disputes that can cripple your business.
At Tonkon Torp, we take a businesslike approach to business litigation. We understand that litigation is one tool that can be used to address a broken promise and remedy harm done to a client’s business. When you need to aggressively pursue or defend a lawsuit, we play to win. But we also understand that successful litigation is about achieving your goals without losing focus on business objectives or breaking your budget.
In arguably one of the biggest and most complicated civil trials in Portland, Tonkon Torp secured a complete jury trial victory for Con-way, a $5.5 billion American multinational freight transportation company. Find details and more featured cases here.
Following a seven-week jury trial, secured a complete victory for Con-way, a $5.5 billion American multinational freight transportation company. At issue was the question of responsibility for some portion of defense and indemnity costs associated with three Superfund sites, including the Portland Harbor, and over 1500 asbestos lawsuits. Tonkon Torp successfully argued that certain of Con-way's historic insurance policies did not apply to claims against the current property owner.
Burlington Northern & Santa Fe RR v. Gunderson, Inc.
Prevailed on summary judgment against a nearly $15 million claim filed in Texas arising out of a train derailment in Nebraska.
City of Albany v. SVC Manufacturing Inc.
Defended SVC, a subsidiary of PepsiCo Americas Beverages, in a $105,000,000 breach of contract action filed by the City of Albany after SVC terminated a development agreement pursuant to which SVC was to build a Gatorade plant in Albany.
Successfully asserted claims of nearly $50 million on behalf of the City of Portland arising out of defects in the new utilities software billing system.
(Multnomah County Circuit Court) – Successfully represented local investment management firm in dispute with a Los Angeles based finance company concerning a structured finance transaction. The opponent sought more than $20 million in compensatory damages plus additional punitive damages, alleging fraud and breach of contract. Successfully prosecuted Client's damages claims for more than $1.8 million for breach of contract and non-payment of note obligations.
Successfully asserting claims for breach of contract and promissory estoppel seeking damages of $1.5 million arising from failure to honor lease obligations.
Defended manufacturing client against multi-million-dollar contractual indemnity and tort claims. Obtained complete defense victory after arbitration hearing.
McCormick & Schmick Restaurant Corp., v. Professional Facilities Management, Inc.
(U.S.D.C. Case No. 3:10-cv-362-pk) - Represented PFMI in defense of breach of contract and business tort claims filed by McCormick and Schmick relating to a repair and maintenance contract for a chain of 93 restaurants. Also filed counterclaims on behalf of PFMI for breach of contract and business torts. The case was settled on a confidential basis.
Represents three brothers who sold their family trucking business in several proceedings in both court and arbitration. The claims involve indemnity and other issues under a Stock Purchase Agreement, real estate matters, professional malpractice and taxation.
Successfully defended a large manufacturing company against products liability and breach of warranty claims filed in the U.S. District Court, District of Nebraska by establishing that plaintiff's alleged losses were caused by a component part manufacturer and by plaintiff's own negligence.
Defended and successfully resolved claims for breach of agreements that were made in connection with the transition of a family business from one generation to the next.
Thomas Michael Anderson, as Trustee of the Timothy P. Moyer Trust, et v. Sturgeon et. al.
(Multnomah County Circuit Court) - Defended president of property management company against claims for breach of contract and breaches of fiduciary duty. Obtained summary judgment dismissing complaint in its entirety.
Tinn v. EMM Labs, Inc.
Won a multi-million dollar federal court jury trial on behalf of our client EMM Labs, a Canadian manufacturer of high-end audio equipment. Defeated the plaintiff's claims under a distribution agreement and prevailed on our client's counterclaim.
Representing a railcar manufacturer in a series of related lawsuits arising from train derailments in Kansas, Nebraska and Wyoming. Plaintiff alleges that products manufactured by Greenbrier failed, causing damages in excess of $10 million.
Sustained venue (after a full day evidentiary hearing) in federal action for a regionally-based client suing a company headquartered in the eastern United States, leading to a favorable resolution for the client.
(Multnomah County Circuit Court/Oregon Court of Appeals) – Obtained damages for an investor at trial for breach of convertible promissory note where company had refused to issue shares; successfully defended appeal.
WHI Hotel, LLC, et al. v. Wilsonville Holiday Partners LLC, et al.
Defended Wilsonville Holiday Partners (WHP) against claims for breach of warranty and misrepresentation in a hotel property sold by WHP to buyers in 2008. The buyers claimed that alleged defects in the hotel allowed water intrusion from the roof and windows. The case was tried to a jury in Washington County Circuit Court. Plaintiffs sought damages of $5 million and punitive damages of $15 million. After the jury had deliberated to impasse, the case was settled on terms favorable to the client, for a small fraction of the amount sought by plaintiff, and the settlement consisted mainly of forgiveness of a note from buyers to seller for seller financing of a portion of the purchase price.

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At the center of the matter is the interplay between the two limitations periods in the FCA after which a “civil action under section 3730” is time-barred: (1) “6 years after the date” of an alleged violation, see 31 U.S.C. § 3731(b)(1); or (2) “3 years after the date” when material facts “are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no more than 10 years after the date” of the alleged violation, see 31 U.S.C. § 3731(b)(2). The relator in Cochise Consultancy filed his claim more than six years after the alleged fraud occurred, but within three years of his disclosure of the fraud to FBI agents who had interviewed him about his role in a separate kickback scheme, to which he ultimately pled guilty and served time in federal prison.
In reviving the relator’s claim, the Eleventh Circuit held that a non-intervened action was a type of “civil action brought under 31 U.S.C. § 3730” to which both limitations periods in the FCA applied. The Court rejected the defendants’ argument that allowing a relator to file suit three years after the fraud is known by the government—a nonparty to the action—created an absurd result. The Court reasoned that even in a non-intervened case, the government is the real party in interest, retaining control over the litigation and recovering the bulk of any damages, whereas the relator’s role is that of a “partial assignee” of the government. In this “unique context,” the court held it was not absurd to apply a limitations period triggered by government knowledge.
The Eleventh Circuit also considered whether a relator constitutes “an official of the United States” whose knowledge triggers the statute of limitations in § 3731(b)(2). The Court held that the language of the provision was plain and that the limitations period begins to run only when the government knew or reasonably should have known of the material facts concerning the fraud. The Court stated that there was nothing in the statute to support the “legal fiction” that because a qui tam relator sues on behalf of the government, it becomes a government agent and the government official charged with responsibility to act.
In granting the Cochise Consultancy defendants’ petition for certiorari, the Supreme Court implicitly recognized that the answer to the question of whether an FCA suit has been filed before the expiration of the statute of limitations now depends on the jurisdiction in which the case is filed. In the Fourth, Fifth, and Tenth Circuits, a relator must bring suit within six years of the alleged violation pursuant to § 3731(b)(1), and may not rely on § 3731(b)(2) in cases in which the government has not intervened. The Third, Ninth, and Eleventh Circuits permit a relator to rely on the limitations period in § 3731(b)(2) in non-intervened cases. Unlike the Eleventh Circuit, the Third and Ninth Circuits consider a relator an “official of the United States,” whose knowledge of material facts triggers the running of the limitations period.
The Cochise Consultancy defendants’ petition for certiorari provides the Supreme Court with a cogent preview of the arguments in favor of adhering to the Fourth, Fifth, and Tenth Circuit decisions. Among the most compelling are that: (1) the text of § 3731(b)(2) refers only to the United States and not to relators, indicating that Congress intended for it to apply only in cases in which the government has intervened; (2) the Supreme Court previously ruled in Graham County Soil & Water Conservation District v. United States ex rel. Wilson, 545 U.S. 409 (2005) that the phrase a “civil action brought under 31 U.S.C. § 3730” did not include FCA retaliation claims, and therefore, the phrase did not in fact cover all civil actions under the Act; (3) the statute of limitations in a non-intervened action would depend upon determining the knowledge of a nonparty to the action, an absurd result; and (4) if § 3731(b)(2) applied in non-intervened actions, it is not clear when the six-year limitations period would apply, rendering it insignificant, if not superfluous.
Regardless of the outcome, the Supreme Court’s review has practical implications for the 75 percent of FCA cases in which the government declines to intervene. It should provide a conclusive answer to whether a relator can rely on § 3731(b)(2), and, if so, whether the cause of action accrues based on the relator’s or the government’s knowledge. The Supreme Court’s decision will provide uniformity in the Circuits, reduce forum shopping, and give defendants a greater degree of predictability about whether FCA cases brought against them are timely.
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Subject to section 21304 of this title, a person violating a regulation prescribed or order issued under chapter 201 of this title related to accident and incident reporting or investigation, or violating chapters 203–209 of this title or a regulation or requirement prescribed or order issued under chapters 203–209, is liable to the United States Government for a civil penalty. An act by an individual that causes a railroad carrier to be in violation is a violation. A separate violation occurs for each day the violation continues.
The Secretary of Transportation imposes a civil penalty under this subsection. The amount of the penalty shall be at least $500 but not more than $25,000. However, when a grossly negligent violation or a pattern of repeated violations has caused an imminent hazard of death or injury to individuals, or has caused death or injury, the amount may be not more than $100,000.
If the Secretary does not compromise the amount of the civil penalty, the Secretary shall refer the matter to the Attorney General for collection.
The Attorney General shall bring a civil action in a district court of the United States to collect a civil penalty that is referred to the Attorney General for collection under subsection (a) of this section. The action may be brought in the judicial district in which the violation occurred or the defendant has its principal executive office. If the action is against an individual, the action also may be brought in the judicial district in which the individual resides.
45:6 (1st sentence words before 23d comma and between 24th comma and proviso, 2d sentence words before 2d comma, last sentence).
Mar. 2, 1893, ch. 196, § 6 (1st sentence words before 23d comma and between 24th comma and proviso, 2d sentence words before 2d comma, last sentence), 27 Stat. 532; restated Apr. 1, 1896, ch. 87, 29 Stat. 85; Aug. 14, 1957, Pub. L. 85–135, § 1(1), 71 Stat. 352; July 8, 1976, Pub. L. 94–348, § 3(a), 90 Stat. 818; Nov. 2, 1978, Pub. L. 95–574, § 7(a), 92 Stat. 2461; Oct. 10, 1980, Pub. L. 96–423, § 8(b), 94 Stat. 1814; June 22, 1988, Pub. L. 100–342, § 13(1)(F), 102 Stat. 630; Sept. 3, 1992, Pub. L. 102–365, §§ 4(a)(1), (c)(3), 9(a)(3), 106 Stat. 973, 974, 977.
45:8 (words before 16th comma).
Mar. 2, 1903, ch. 976, § 1 (words before 23d comma), 32 Stat. 943; June 22, 1988, Pub. L. 100–342, § 13(2)(A), 102 Stat. 631.
Mar. 2, 1903, ch. 976, 32 Stat. 943, § 2 (last sentence); added Apr. 11, 1958, Pub. L. 85–375, § 1(b)(3), 72 Stat. 86.
45:10 (words after 19th comma).
Mar. 2, 1903, ch. 976, § 3 (last sentence words after semicolon), 32 Stat. 944.
45:12 (1st sentence words after semicolon).
Apr. 14, 1910, ch. 160, § 3 (1st sentence words between semicolon and proviso), 36 Stat. 298.
45:13 (1st sentence words before last comma, 2d sentence words before proviso, last sentence).
Apr. 14, 1910, ch. 160, § 4 (1st sentence words before last comma, 2d sentence words before proviso, last sentence), 36 Stat. 299; Aug. 14, 1957, Pub. L. 85–135, § 1(2), 71 Stat. 352; July 8, 1976, Pub. L. 94–348, § 3(b), 90 Stat. 818; Nov. 2, 1978, Pub. L. 95–574, § 7(b), 92 Stat. 2461; June 22, 1988, Pub. L. 100–342, § 13(3) (C)(i)–(iv), 102 Stat. 632; Sept. 3, 1992, Pub. L. 102–365, §§ 4(a)(1), (c)(4), 9(a)(5), 106 Stat. 973, 974, 978.
Apr. 14, 1910, ch. 160, § 5 (words after semicolon), 36 Stat. 299.
45:30 (1st sentence related to 45:34).
Mar. 4, 1915, ch. 169, § 2 (1st sentence related to § 9 of Act of Feb. 17, 1911), 38 Stat. 1192; Apr. 22, 1940, ch. 124, § 2, 54 Stat. 148; Reorg. Plan No. 3 of 1965, eff. July 27, 1965, 79 Stat. 1320.
45:34 (1st sentence words before last comma, 2d, last sentences).
Feb. 17, 1911, ch. 103, § 9 (1st sentence words before last comma, 2d, last sentences), 36 Stat. 916; Apr. 22, 1940, ch. 124, § 1 (related to § 9 of Act of Feb. 17, 1911), 54 Stat. 148; Aug. 14, 1957, Pub. L. 85–135, § 3, 71 Stat. 352; Reorg. Plan No. 3 of 1965, eff. July 27, 1965, 79 Stat. 1320; July 8, 1976, Pub. L. 94–348, § 3(c), 90 Stat. 818; Nov. 2, 1978, Pub. L. 95–574, § 7(c), 92 Stat. 2461; Oct. 10, 1980, Pub. L. 96–423, § 8(c), 94 Stat. 1814; June 22, 1988, Pub. L. 100–342, § 14(7)(A), 102 Stat. 633; Sept. 3, 1992, Pub. L,. 102–365, §§ 4(a)(1), (c)(7), 9(a)(8), 106 Stat. 973, 975, 978.
45:43 (1st sentence words before last comma, 2d sentence, 3d sentence words before 5th comma, last sentence).
May 6, 1910, ch. 208, § 7 (1st sentence words before last comma, 2d sentence, 3d sentence words before 5th comma, last sentence), 36 Stat. 351; Sept. 13, 1960, Pub. L. 86–762, § 3, 74 Stat. 904; restated June 22, 1988, Pub. L. 100–342, § 15(4), 102 Stat. 634; Sept. 3, 1992, Pub. L. 102–365, §§ 4(a)(1), (c)(5), 9(a)(6), 106 Stat. 973, 974, 978.
Oct. 16, 1970, Pub. L. 91–458, § 209(b) (related to § 2 of Act of May 6, 1910), 84 Stat. 975; Jan. 3, 1975, Pub. L. 93–633, § 204(a), 88 Stat. 2165; June 22, 1988, Pub. L. 100–342, § 3(a)(2), 102 Stat. 624; Sept. 3, 1992, Pub. L. 102–365, § 4(a)(1), 106 Stat. 973.
49 App.:26(h) (1st sentence words before last comma, 2d, 3d sentences, 4th sentence words before last comma, last sentence).
Feb. 4, 1887, ch. 104, 24 Stat. 379, § 25(h) (1st sentence words before last comma, 2d, 3d sentences, 4th sentence words before last comma, last sentence); added Feb. 28, 1920, ch. 91, § 441, 41 Stat. 498; restated Aug. 26, 1937, ch. 818, 50 Stat. 837; Sept. 18, 1940, ch. 722, § 14(b), 54 Stat. 919; July 8, 1976, Pub. L. 94–348, § 3(d), 90 Stat 818 ; Nov. 2, 1978, Pub. L. 95–574, § 7(d), 92 Stat. 2461; Oct. 10, 1980, Pub. L. 96–423, § 8(d), 94 Stat. 1814; June 22, 1988, Pub. L. 100–342, § 17(7), (8), 102 Stat. 636; Sept. 3, 1992, Pub. L. 102–365, §§ 4(a)(1), (c)(6), 9(a)(7), 106 Stat. 973, 974, 978.
49 App.:1655(e)(1)(A), (C), (E)–(G), (K), (6)(A).
Oct. 15, 1966, Pub. L. 89–670, § 6(e)(1)(A), (C), (E)–(G), (K), (6)(A), 80 Stat. 939.
In subsection (a)(1), the words “(including but not limited to a railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor)” are omitted as surplus because of the definition of “person” in 1:1 and because the provision being violated indicates to whom it applies. The words “violating a regulation prescribed or order issued under chapter 201 of this title related to accident and incident reporting or investigation” are substituted for “violating . . . any rule, regulation, order, or standard issued under . . . the Federal Railroad Safety Act of 1970 [45 U.S.C. 431 et seq.] pertaining to accident reporting or investigations” in 45:43, and the words “violating chapters 203–209 of this title or a regulation or requirement prescribed or order issued under chapters 203–209” are substituted for various language in the source provisions, for clarity, for consistency in this section, and to eliminate unnecessary words. The words “liable to the United States Government for a civil penalty” are substituted for “liable to a penalty” for clarity. The text of 45:438(b) (related to 45:39) is omitted as covered by 45:43.
In subsection (a)(2), the words “The Secretary of Transportation imposes a civil penalty under this subsection” are substituted for “to be assessed by the Secretary of Transportation” in 45:6, “Such penalty shall be assessed by the Secretary of Transportation” in 45:13, the text of 45:10 (words after 7th comma) and 14 (words after semicolon), and “in such amount . . . as the Secretary of Transportation deems reasonable” in 45:34 and 43 and 49 App.:26(h) for clarity and to eliminate unnecessary words. The words “per violation” are omitted as surplus.
In subsections (a)(3) and (b), the words “Attorney General” are substituted for “United States attorney”, “such attorneys, subject to the direction of the Attorney General”, “proper United States attorney” and “proper United States attorneys” because of 28:509.
In subsection (a)(3), the words “section 3711 of title 31” are substituted for “the Federal Claims Collection Act of 1966” and “sections 3711 and 3716 to 3718 of title 31” because the Federal Claims Collection Act of 1966 has been repealed and reenacted as part of title 31 and penalties are compromised under 31:3711. In clause (B), the words “prior or subsequent” are omitted as unnecessary.
In subsection (a)(4), the words “the Secretary shall refer the matter to the Attorney General for collection” are substituted for “recovered in a suit or suits to be brought by” for clarity. The words “and it shall also be the duty of the Secretary of Transportation to lodge with . . . information of any such violations as may come to his knowledge” and “and it shall be the duty of the director of locomotive inspection to give information . . . of all violations coming to his knowledge” are omitted as obsolete.
In subsection (b), the words “The Attorney General shall bring a civil action in a district court of the United States to collect a civil penalty that is referred to the Attorney General for collection under subsection (a) of this section” are substituted for “and it shall be the duty of such United States attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred” in 45:6, and for “It shall be the duty of such attorneys to bring such suits upon duly verified information being lodged with them showing such violations having occurred” in 49 App.:26, for clarity and consistency in this section and with other provisions of the revised title.

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Constitutional Law, Assistance of counsel, Confrontation of witnesses. Practice, Criminal, Assistance of counsel, Confrontation of witnesses, New trial. Evidence, Hearsay, Spontaneous utterance.
In a murder case, a substantial miscarriage of justice warranting a new trial arose from the defendant's appellate counsel's failure to explore the issue of possible violations of the defendant's constitutional right to confront witnesses against him arising from the admission at trial of certain out-ofcourt statements pertaining to motive that likely would have been excluded from evidence as testimonial, including a recorded telephone call from the victim to 911 reporting the defendant's alleged attempt to run over the victim with his vehicle [225-226]; the victim's statements to a police officer after he arrived at her home in response to her 911 call ; and a witness's trial testimony recounting the victim's statements to the police officer , where the failure to raise the issue of the possible violation of the defendant's rights amounted to conduct falling measurably below that expected from an ordinary fallible lawyer, and it was uncertain whether the jury's verdict would have been the same absent the motive evidence, a significant part of the Commonwealth's case [227-228]; however, the victim's statements to her daughter that the defendant tried to run over her were not testimonial, as they were remarks to a relative rather than a police officer, and nothing suggested the victim had any reasonable expectation that those comments would be used later prosecutorially [226-227].
INDICTMENT found and returned in the Superior Court Department on June 26, 2000.
Following review by this court, 443 Mass. 770 (2005), a motion for a new trial, filed on January 19, 2006, was heard by Patrick F. Brady, J.
A request for leave to appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk.
Greg T. Schubert for the defendant.
Paul B. Linn, Assistant District Attorney (Dennis H. Collins, Assistant District Attorney, with him) for the Commonwealth.
judge's order denying the defendant's motion for a new trial must be reversed.
1. Factual background. We summarize the facts from the court's opinion in Commonwealth v. Lao, supra at 770-775. The defendant and his wife, Alicia, were separated and had been living apart for approximately one and one-half years before her murder. Even after the defendant moved out of the marital home in Chelsea, the couple stayed in regular contact and had frequent arguments.
On the evening of April 30, 2000, the defendant and Alicia went out to dinner, purportedly to discuss their divorce and the fact that Alicia's boy friend would be moving in with her the next day. When she returned home, Alicia was distraught; she told her teenage daughter, Yessenia, that when the defendant dropped her off, he had tried to run her over with his car. Still crying, Alicia paged the defendant several times. When he answered her page, Alicia asked the defendant why he had tried to run her over, and she threatened to kill him. After the defendant hung up on her, Alicia paged him several more times, but he did not respond. Still upset, Alicia telephoned her mother and recounted what had happened with the defendant. Alicia then made a 911 call to the police. When the police responded to her home, Alicia explained to Officer Eugene Bonita the events that had transpired that evening. Officer Bonita advised Alicia of the process for obtaining a protective order, but she declined to pursue that avenue and said that she would telephone if she needed further police assistance. The evidence supporting these details, and the basis for its admissibility, is the focus of this appeal, and is more fully set forth in the next section of this opinion.
Rodriguez, entered Alicia's apartment and found her lying unconscious across the bed surrounded by blood. He immediately telephoned 911 (at approximately 10:13 A. M.), tried to administer cardiopulmonary resuscitation (CPR), and waited for the police. Emergency personnel arrived on the scene within minutes, began to perform CPR, and took Alicia to a hospital where she survived in the intensive care unit for nearly two weeks with no brain activity. She was pronounced dead on May 17, 2000.
Between 9 and 9:30 A.M. on May 2, 2000, Jose Santiago and his brother, Carlos Merced, were examining and repairing a tire on a car parked near Alicia's home at 122 Bellingham Street in Chelsea. Santiago's former wife and children lived in an apartment at that address, and he had driven over to pay the rent to his wife's landlord, Francisco Guzman. As Santiago walked to the back of the house, he passed the defendant, whom he had known for several years, and who was walking down the driveway away from the house in the direction of the street. The two men greeted each other. When Santiago reached the rear of the house, he noticed that the back door was open. Concerned for his daughters, Santiago asked Guzman why he had left the door open, to which Guzman replied that he had just locked the door. Santiago then told Guzman, "Well, it must be [the defendant] because I saw him go by the driveway. I bumped into him." Not sure of the exact time of this encounter, Santiago estimated that he saw the defendant approximately thirty minutes before the police arrived. Santiago identified the defendant from a photographic array as the man that he had greeted that morning as the man walked down the driveway.
at Louis's home and wheeled it out of the store. A receipt indicating that the door had been purchased at 8:50 A.M. on May 2, was found in the defendant's van. After buying the door, the defendant claimed that he had breakfast at a McDonald's restaurant in the East Boston section of Boston. At approximately 9:15 A.M., the defendant alleged that he telephoned Alicia from a nearby public telephone, spoke with her briefly about medical test results, drove to Waltham, arrived there about 10:30 A.M., and worked on installing the door until 2 P.M.
When the police investigated the crime scene, they found no signs of forced entry, the locks were not broken, and nothing was amiss inside the apartment, except for a knocked-over ashtray in the bedroom. The police discovered bloodstains only in the bedroom where Alicia's body was found. There were no fingerprints that could be lifted, and the footwear impressions taken by the police did not match any footwear taken from the defendant. Tests performed on the defendant's jacket, hat, gloves, and cellular telephone, all recovered from his van, and on the van itself, did not detect any blood.
The medical examiner opined that Alicia's injuries were consistent with someone's hands gripping and applying pressure around her neck. On May 18, 2000, Dr. Alexander Cherkov, a forensic pathologist, performed an autopsy on Alicia's body. He determined her cause of death to be "anoxic encephalopathy," meaning that Alicia's brain had been destroyed by the absence of oxygen caused by strangulation.
2. Challenged "excited utterances" made by victim. a. 911 call. On May 1, 2000, at approximately 12:10 A.M., Alicia dialed 911 and reported that the defendant had threatened to run her over with his car. The tape recording of Alicia's 911 call was played for the jury over the defendant's objection.
in her direction, and he sped off at a high rate of speed. The judge ruled that Officer Bonita's testimony was admissible under the "excited utterances" exception to the hearsay rule. At trial, Officer Bonita gave the same testimony with respect to the statements made to him by Alicia.
c. Statements to Yessenia Lao. During a midtrial voir dire, Yessenia testified that Alicia told her that she (Alicia) had told the defendant that she was divorcing him and that her boy friend would be moving in the next day. Yessenia also testified that Alicia told her that the defendant had tried to run over Alicia with his car after their dinner together. The judge ruled that Yessenia's testimony was admissible under the "excited utterances" exception to the hearsay rule. At trial, however, her testimony was somewhat different from that given during voir dire. Yessenia testified at trial that her mother and the defendant had gone out to dinner together on April 30, 2000. She stated that when Alicia got home, she awoke Yessenia, crying, and she told Yessenia that the defendant had tried to run her over with his car. Yessenia further testified that, once the police arrived at their home, Alicia told the officer that she (Alicia) and the defendant had gone out to dinner, that they had talked about divorce papers and about Alicia's boy friend moving into her apartment, and that the defendant had tried to run over Alicia in his car. Yessenia did not testify, as she had during voir dire, that Alicia had told her that she (Alicia) had told the defendant that she was divorcing him and that her boy friend would be moving in the next day.
supra at 225, quoting Commonwealth v. Moore, supra. See Commonwealth v. Zagrodny, 443 Mass. 93 , 103 (2004).
A defendant has a heavy burden to establish ineffective assistance of counsel sufficient to warrant a new trial. The defendant must show that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and that this performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). See Commonwealth v. Satterfield, 373 Mass. 109 , 115 & n.10 (1977). Once a defendant's direct appeal from his conviction of murder in the first degree has been reviewed under G. L. c. 278, § 33E, "[a]ny claim of ineffectiveness of counsel presented in a subsequent appeal from the denial of a motion for a new trial, authorized by a single justice of this court, [will] not be tested under the § 33E standard but on the applicable constitutional standards, State and Federal." Commonwealth v. Wright, 411 Mass. 678 , 682 n.1 (1992). See Commonwealth v. Phinney, 446 Mass. 155 , 162-163 (2006).
4. Discussion. The defendant contends that the "excited utterances" made by Alicia to Yessenia and to Officer Bonita and the tape recording of the 911 call should have been excluded from evidence because they were "testimonial" in nature, pertaining to the reporting of an alleged crime, namely the defendant's purported attempt to run over Alicia with his vehicle. In light of the fact that these statements were not subject to cross-examination, the defendant argues that they were inadmissible pursuant to the principles enunciated in Crawford. Because his appellate counsel failed to raise the confrontation issue on direct appeal, the defendant continues, his counsel's performance was ineffective under the Saferian standard. As such, the defendant claims that he is entitled to a new trial.
offered little guidance whether excited utterances, such as the ones made by Alicia here, were testimonial, and, therefore, would be barred by the confrontation clause of the Sixth Amendment, there was no ineffective assistance of appellate counsel for not raising a Crawford issue.
In light of the fact that the defendant's direct appeal was still pending at the time Crawford was decided, the confrontation clause analysis announced therein would have been applicable to the defendant's case. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (newly declared constitutional rule must be applied to cases pending on direct review). [Note 4] Accordingly, we now consider the impact that Crawford's confrontation clause analysis would have had on the defendant's direct appeal so as to evaluate properly his claim of ineffective assistance of appellate counsel. Where the defendant's claim "is predicated, as it is here, on counsel's failure [to raise an issue that is apparent in the record on appeal], the standard for evaluating the ineffectiveness claim is not significantly different from the substantial risk standard that is applicable to our review of the underlying, unpreserved error." Commonwealth v. Azar, 435 Mass. 675 , 686 (2002), and cases cited.
The Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment to the United States Constitution, guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." See Commonwealth v. Saunders, 435 Mass. 691 , 694 n.4 (2002). The right of confrontation also is protected by art. 12 of the Massachusetts Declaration of Rights, which states that in a criminal trial "every subject shall have a right to . . . meet the witnesses against him face to face." Although, in certain circumstances, "art. 12 may provide a criminal defendant more protection than its Federal counterpart, see Commonwealth v. Amirault, 424 Mass. 618 , 631-632 (1997); Commonwealth v.
Bergstrom, 402 Mass. 534 , 541-542 (1988), in cases like this one involving the hearsay rule and its exceptions, we have always held that the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution. See Commonwealth v. Whelton, 428 Mass. 24 , 28 (1998); Commonwealth v. Childs, 413 Mass. 252 , 260 (1992)." Commonwealth v. DeOliveira, 447 Mass. 56 , 57-58 n.1 (2006).
Prior to the United States Supreme Court's decision in Crawford, confrontation clause jurisprudence sometimes permitted the out-of-court statements of an unavailable witness to be admitted at trial. Admissibility was determined by whether the statements bore "adequate 'indicia of reliability.' " Ohio v. Roberts, 448 U.S. 56, 66 (1980). To satisfy this standard, the testimony either had to fall within "a firmly rooted hearsay exception" or otherwise bear "particularized guarantees of trustworthiness." Id. See Commonwealth v. Durling, 407 Mass. 108 , 117-118 (1990) ("In situations where the Commonwealth seeks to rely on evidence not subject to cross-examination, the due process touchstone of an accurate and reliable determination still remains"); Commonwealth v. Trigones, 397 Mass. 633 , 637-638 (1986).
the admission of out-of-court statements that are testimonial in nature unless (1) the declarant is available at trial or (2) the declarant is formally unavailable to testify, and the defendant had a prior opportunity for cross-examination. [Note 5] See Crawford v. Washington, supra at 68. In Crawford, the Court deemed the wife's tape-recorded statement made during police interrogation testimonial, and because there had been no cross-examination of the declarant, the confrontation clause of the Sixth Amendment barred its admission. Id.
In Crawford, the Court declined to articulate a precise and comprehensive definition of "testimonial" statements, leaving that effort for another day. See Crawford v. Washington, supra. However, in considering the historical underpinnings of the confrontation clause, the Court opined that, broadly speaking, a witness's out-of-court statement was testimonial if it was a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51, quoting Webster's American Dictionary of the English Language (1828). "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford, supra. The Court then proceeded to announce that certain statements are always considered to be testimonial. At a minimum, "testimonial" statements include "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [statements made during] police interrogations." [Note 6] Id. at 68.
discussed a trio of formulations that came within the "core class" of testimonial statements. Id. at 51-52. The first formulation encompassed "ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at 51. The second formulation encompassed "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 51- 52, quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment). The third formulation encompassed any "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, supra at 52.
certain statements made by Alicia was not a weak and insubstantial issue, as the Commonwealth would suggest.
First, as to Alicia's 911 call reporting the defendant's alleged attempt to run over her with his vehicle, the language of Crawford suggests that the call would have qualified as a testimonial statement. After Alicia arrived home from dinner with the defendant and before she made the 911 call, Alicia engaged in a conversation with Yessenia about the events of the evening, spoke with the defendant at least once by telephone, and called her mother to discuss the defendant's conduct. Alicia was not in imminent personal peril at the time the 911 call was made because the defendant already had left the scene of the incident. Therefore, Alicia's 911 call was not the reporting of an emergency situation, but, rather, was a "solemn declaration . . . made for the purpose of establishing . . . some fact," namely that the defendant had tried to run her over with his car. Crawford v. Washington, supra at 51. Because the 911 call was not subject to cross-examination, we conclude that, in all likelihood, it would have been inadmissible pursuant to the principles enunciated in Crawford.
Next, as to Alicia's statements to Officer Bonita after he arrived at her home in response to the 911 call, the language of Crawford suggests that these statements would have qualified as testimonial. As enunciated in Crawford, testimonial statements include those made by an individual during a police interrogation. By construing the term "interrogation" in a colloquial sense, as we must, routine questioning by law enforcement officers to gather thorough and complete information about the possible commission of a crime or other incident would fall within the ambit of "interrogation." Statements made to police in such circumstances would, therefore, be testimonial. Because Alicia's statements to Officer Bonita were not subject to cross-examination, we conclude that, in all likelihood, they would not have been admissible under Crawford.
suggest that Alicia had any reasonable expectation that these particular comments to her daughter would be used prosecutorially at some later date. As such, the statements would have been admissible. The same cannot be said, however, about Yessenia's testimony at trial describing Alicia's conversation with Officer Bonita. In essence, Yessenia was simply repeating testimonial statements that Alicia had made to the police. [Note 7] These statements did not lose their testimonial character simply because they were heard by Yessenia, who reasonably could have believed, at that point, that the statements would be available for use against the defendant in later criminal proceedings. See Crawford, supra at 51-52. We conclude that, in all likelihood, Yessenia's testimony describing Alicia's conversation with Officer Bonita would not have been admissible under Crawford.
Given that most of Alicia's statements probably would have been excluded from evidence at trial, we next consider the impact of their use at trial. Based on our review of the record, we hold that once the principles of Crawford are applied here, we have a serious doubt whether the admission of the statements at issue did not affect the outcome of the defendant's trial, thereby resulting in a substantial risk of a miscarriage of justice. See Commonwealth v. LeFave, 430 Mass. 169 , 174 (1999).
wife, namely the termination of their marriage and Alicia's new relationship with Ramon Rodriguez, and on evidence that the defendant was seen outside the marital home around the approximate time of the murder. Id. The jury's only sources of motive evidence were the testimony from Officer Bonita about his conversation with Alicia when he responded to her 911 call, and the testimony from Yessenia about that conversation, evidence that, in all likelihood, would have been inadmissible under Crawford. [Note 8] Once such evidence is excluded from the jury's consideration, the case largely comes down to one witness's testimony that the defendant was seen outside Alicia's home around the time of the murder, an absence of forensic evidence connecting the defendant to the crime scene, and the defendant's alibi evidence. See Commonwealth v. Lao, supra at 773-774, 778, 780. Whether the jury's verdict would have been the same absent the motive evidence, a significant part of the Commonwealth's case, is seriously doubtful. Accordingly, we conclude that there has been a substantial risk of a miscarriage of justice, and the defendant is entitled to a new trial.
5. Conclusion. The order denying the defendant's motion for a new trial is vacated. The judgment is reversed, and the verdict of murder in the first degree is set aside. The case is remanded to the Superior Court for a new trial.
[Note 1] The judge denied the defendant's motion for a new trial on the grounds that (1) the defendant's case had already received plenary review pursuant to G. L. c. 278, § 33E; (2) Crawford v. Washington, 541 U.S. 36 (2004) (Crawford), had not been decided at the time of trial; (3) the failure of appellate counsel to raise the confrontation issue was consistent with a strategy of winnowing out weaker arguments; and (4) the contested statements were cumulative of other admissible testimony.
[Note 2] General Laws c. 278, § 33E, provides that, following our plenary review of a conviction of murder in the first degree, "[i]f any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court."
[Note 3] The United States Supreme Court issued its decision in Crawford on March 8, 2004. See Crawford v. Washington, supra. Appellate counsel here filed the defendant's brief for his direct appeal on April 13, 2004. The defendant's appeal was decided by this court on March 31, 2005. See Commonwealth v. Lao, 443 Mass. 770 (2005). In his memorandum and order, the single justice noted that, in concluding that application of the principles set forth in Crawford likely would have changed the outcome of the defendant's direct appeal, the chronology of this case limited consideration of the confrontation issue to Crawford, itself, and not to the subsequent evolution of the Crawford principles as enunciated in Commonwealth v. Gonsalves, 445 Mass. 1 (2005), cert. denied, 126 S. Ct. 2980 and 126 S. Ct. 2982 (2006), and Davis v. Washington, 126 S. Ct. 2266 (2006), both of which were decided after the defendant's direct appeal had been adjudicated. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (newly declared constitutional rule must be applied to cases pending on direct review); Commonwealth v. Bray, 407 Mass. 296 , 298-299 (1990).
[Note 4] The Commonwealth acknowledges that because there was no final adjudication on the defendant's direct appeal when Crawford was decided, the defendant's present claim is not barred by Whorton v. Bockting, 127 S. Ct. 1173, 1180-1184 (2007), in which the Supreme Court concluded that Crawford did not apply retroactively to the collateral appeal of a defendant whose conviction became final on direct appeal well before Crawford was decided.
[Note 5] Where nontestimonial out-of-court statements are at issue, their admissibility largely will be governed by State hearsay law. See Crawford v. Washington, 541 U.S. 36, 68 (2004). See also Commonwealth v. Whelton, 428 Mass. 24 , 28-29 (1998) (under Massachusetts law, proof of declarant's unavailability not required for admission of spontaneous utterance).
[Note 6] As to "interrogation" by law enforcement officers, the Court in Crawford stated that it "use[d] the term 'interrogation' in its colloquial, rather than any technical legal, sense. . . . Just as various definitions of 'testimonial' exist, one can imagine various definitions of 'interrogation,' and we need not select among them in this case." Crawford v. Washington, supra at 53 n.4. The term "colloquial" has been defined as "used in or characteristic of . . . familiar and informal conversation." Webster's Third New Int'l Dictionary 446 (1993). We construe the Supreme Court's statement that "interrogation" should be used in its "colloquial" sense to mean that the term should be given its common, everyday understanding. Webster's Third New Int'l Dictionary, supra at 1182, defines "interrogate" as "question[ing] typically with formality, command, and thoroughness for full information and circumstantial detail." Black's Law Dictionary 838 (8th ed. 2004) provides definitions for three kinds of police interrogation: (1) custodial interrogation -- "[p]olice questioning of a detained person about the crime that he or she is suspected of having committed"; (2) noncustodial interrogation -- "[p]olice questioning of a suspect who has not been detained and can leave at will"; and (3) investigatory interrogation -- "[r]outine, nonaccusatory questioning by the police of a person who is not in custody." The Crawford Court noted that a statement "knowingly given in response to structured police questioning" would qualify "under any conceivable definition" of interrogation. Crawford, supra.
[Note 7] During voir dire, Yessenia testified that she had a first-hand conversation with her mother, prior to the 911 call, in which Alicia stated that she had told the defendant that she was divorcing him and that her boy friend would be moving in the next day. The language of Crawford suggests that these statements would not have been considered testimonial. However, Yessenia was not specifically asked about this conversation at trial, so she provided no testimony as to its contents.
[Note 8] The admission of the 911 tape recording was cumulative of properly admitted testimony from Yessenia, so it was unlikely to have affected the outcome of the defendant's trial.