CORI PAGE THREE= ongoing cases unresolved

CORI PAGE THREE= ongoing cases unresolved

keep this one on your must do list..

For the of his life, Simon Glik will have
an eternal arrest record for using his cell phone camera.

January 24, 2008

News Story

Lawyer to stand trial for capturing teen's arrest on cell phone

By David E. Frank
david.frank@lawyersweekly.com

A 2006 graduate of New England School of Law will stand trial on Jan. 29 in Boston Municipal Court on charges of wiretapping, aiding an escape and disturbing the peace for allegedly using his cell phone to record the arrest of a 16-year-old juvenile in a drug case.

The matter, which stems from an Oct. 1 incident, has drawn the ire of local legal heavyweight Harvey A. Silverglate who has penned an op-ed on the case for the Jan. 28 issue of Lawyers Weekly and others who worry about the consequences for concerned citizenswho choose to record possible police misconduct.

According to a police report obtained by Lawyers Weekly, Officer Peter Savalis alleges that attorney Simon Glik was walking in the Boston Common at 5:30 p.m. when he used his phones camera to videotape him and two other officers investigating a teen.

[He] reached out and placed his arm into the officers way and held out a phone,according to Savalispolice report an accusation that Glik denies.

The report then states that the Moscow-born lawyer, who graduated at the top of his NESL class and was on the law review, walked around the officers and continued recording the scene.

When one of the officers asked if he was using audio and video on the phone, Glik reportedly said: I sure am using audio.

The officers were not amused with the response and handcuffed and arrested the 31-year-old, who has aspirations of being a prosecutor.

They also claim that Gliks presence at the scene nearly allowed the teen suspect to escape.

This case has been a nightmare,says Glik, who remains unemployed after completing a Probate & Family Court clerkship. Beyond that, Im going to direct all other comments to my lawyer.

As he anxiously awaits resolution of the case, Glik says he has been working on a part-time contractual basis with Chelsea attorney Alexander Shapoval.

Hes a really talented lawyer,says Shapoval, a native of the Ukraine. I was really surprised to see this happen because this is supposed to be a democratic society, and for the cops to say were not allowed to videotape their public conduct sends a bad message.

While Glik is hesitant to discuss the particulars of his case with Lawyers Weekly, he claims that the pending charges have scared away most potential employers. As evidence of that, his case file in the BMC includes a CORI request from the Department of Revenue, which had interviewed him for a job he ultimately did not get.

His lawyer, June E. Jensen of Wayland, is hoping her motion to dismiss all the charges will negate the need for a trial and will make her client a more attractive employment prospect. In the motion, she argues that the wiretap statute was designed to prevent only those recordings made in secret.

Here, [his] behavior was overt and declarative,she writes. There was absolutely nothing secretive about his behavior. The charge of unlawful wiretapping must be dismissed as unsupported by probable cause.

Suffolk County District Attorney Daniel F. Conleys spokesman, Jake Wark, defends the conduct of the officers, although he declines to discuss the specifics of the wiretap issue.

But for the rapid action of those officers, the [other] suspects escape may well have been permanent,says Wark. But because there is a motion pending, I will allow that argument to be addressed before the court.

No wonder the courtroom proceedings are not
broadcast or recorded to be broadcast....................

This is what an INNOCENT person has to go thru
in a Massachusetts court.

Does anyone know how many complaints are
received by the Bar Board and how many they
take any action on?

How corrupt must the Mass. courts be, if an attorney
would WILLFULLY lie to a judge in open court?

What's the punishment for this corruption?

Suspended license for 366 days.

WOW!

The man who the 209A was issued against,
STILL HAS THIS DAMN THING ON HIS RECORD!

Massachusetts, where justice is inexpungable....................

"The defendant in the c. 209A proceeding filed a complaint with bar counsel."

The VICTIM of the fraudulent 209A, had to take action against the
corrupt attorney!

The attorney refused to pay sanctions of the Defendant's
attorney fees!

Massachusetts justice ---------- insanity exceeding the speed of light!

And this happens every day in the Mass. court system.............

============================================

"On October 3, 2006, the Supreme Judicial Court for Suffolk County ordered that the respondent be suspended for a year and a day. "

==========================
IN RE: JEANNE K. COSMOS
NO. BD-2006-075

S.J.C. Order of Term Suspension entered by Justice Sosman on October 3, 2006.¹SUMMARY²
In 2004, the respondent appeared in the district court on behalf of an elderly client to assist him in obtaining a G.L. c. 209A restraining order against his son, who lived in the same two-family home as the client. After a hearing at which the petitioner (the client) and the defendant were both present, the district court judge denied the request for a restraining order, stating on the record that the petitioner had not presented evidence to sustain his burden of proof to show that he was in reasonable fear of immediate physical harm.
Immediately following district court’s denial of the restraining order, the client was advised that one of his options was to go to the probate court and seek the same restraining order from a different judge. The respondent obtained the documents to request an ex parte c. 209A order from the probate court and assisted the client in filling out the documents to request an ex parte c. 209A order from the probate court based on the same set of facts that had been presented to the district court.
In assisting the client to fill out a second complaint for a c. 209A order, the respondent checked “no” in response to a question on the c. 209A complaint that asked: “Are there any prior or pending court actions in any state or country involving the Plaintiff and the Defendant for divorce, annulment, separate support, legal separation or abuse prevention?”
Immediately after filing this second request for a c. 209A order (the same day that the district court had denied the first request for a 209A restraining order), the respondent represented the petitioner in an ex parte hearing in probate court. At no time did the respondent or the client disclose to the probate court judge that the respondent had, earlier that same day, represented the client in a hearing before a district court judge seeking the same relief.

The probate court judge issued the ex parte c. 209A order that day, with a ten-day return date.

However, after the defendant was served, the probate court judge learned from the defendant of the district court’s denial of the client’s first c. 209A application. The probate court judge immediately scheduled a review of the ex parte c. 209A.

At that hearing, the probate court dismissed with prejudice the client’s request for a c. 209A order. The respondent attended that hearing but did not represent the petitioner at it.

In a Memorandum and Order of Dismissal, the probate court judge also ordered sanctions against the respondent for having failed to discharge her “affirmative duty to inform this Court of the prior proceedings and to review and insure the accuracy of the plaintiff’s complaint.”

The probate court judge, ordered the respondent to pay the defendant’s attorney’s fees in the amount of $750 within 10 days of the order and to pay court sanctions in the amount of $5,000.

The respondent filed a pro se appeal of the probate court order, which was later was dismissed for failure to prosecute. The respondent did not initially pay the attorneys’ fees or sanctions, and thereafter failed to appear in the probate court. The respondent subsequently paid the attorneys’ fees and began making payments of the sanctions, which have now been paid off.

The defendant in the c. 209A proceeding filed a complaint with bar counsel.

On two occasions, bar counsel sent subpoenas to the respondent requiring the respondent to appear, give testimony, and produce certain information. The respondent appeared pursuant to one subpoena but did not appear pursuant to the second subpoena. Thereafter, the Supreme Judicial Court administratively suspended the respondent for failure to appear and cooperate in the investigation of the office of Bar Counsel. The respondent has not been reinstated. Although the respondent is not practicing law, she has not filed with required affidavit of compliance under SJC Rule 4:01, §17(5).
By checking off the box on the second c. 209A complaint in the probate court that indicated there were no prior or pending court actions for abuse prevention between the client and his son, the respondent violated Mass. R. Prof. C. 3.3 (a)(1) and 8.4 (c), (d), and (h).
By appearing at an ex parte hearing before the probate court judge seeking a c. 209A order, without disclosing that, earlier the same day, the district court had denied a c. 209A order request based on the same set of facts, the respondent violated Mass. R. Prof. C. 3.3 (a)(2) and (d) and 8.4 (c), (d), and (h).
By failing to appear in response to a subpoena issued by the Board and failing to cooperate with bar counsel’s investigation, the respondent violated Mass. R. Prof. C. 8.4(g). The respondent’s initial failure to pay $5,750 in sanctions ordered by the probate court judge and her subsequent failure to appear in the probate court, which resulted in a further court order against her, constitute violations of Mass. R. Prof. C. 8.4(d) and (h).
This matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for a suspension for a year and a day. On September 26, 2006, the Board of Bar Overseers voted to accept the stipulation and to recommend the agreed-upon disposition to the Supreme Judicial Court.

On October 3, 2006, the Supreme Judicial Court for Suffolk County ordered that the respondent be suspended for a year and a day.

¹ The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.
2 Compiled by the Board of Bar Overseers based on the record before the Court.

this cori thing will get big.. the best way to uncover is to expose. so be it ..so let it be done..

Mitt Romney Kathe Tuttman

Judicial Corruption /Three week trial before Judge Tuttman You be the Judge !

Wednesday, November 28, 2007

MITT ROMNEY

JUDGE KATHE TUTTMAN

Civil RICO Suit Names Sixteen Massachusetts Court Officers Involved in Staged Litigation Scheme

U.S. District Court, District of Massachusetts Civil Action NO. 06-11936-WGY

Judge Kathe Tuttman (Mitt Romney/Tavares Case) Implicated.

On November 15, 2007, the Boston Office of the U.S. Marshal started serving the RICO complaint on the sixteen defendants. The message transmitted shortly thereafter to several media outlets reads: “Civil RICO Suit Names Thirteen Lawyers and Three Judges in Staged Litigation Scheme.”

* * *

These are the people who are going after

corrupt judges who have stolen their

property in Beverly.

The Scheme

The basis for the Essex County staged litigation scheme was laid down, quite inconspicuously, over 14 years ago. Between October 1993 and January 1996, Attorney Joseph P. Corona of Salem, Massachusetts, used Donna Chalupowski (an unemployed nurse suffering from a paranoid personality disorder compounded by substance abuse) as his dupe plaintiff in five frivolous lawsuits and numerous restraining orders brought against every member of her immediate family: her mother Mary Jane Chalupowski, her sister Judith Chalupowski-Venuto, and her brother, Chester Chalupowski.

The Third Prong

While the two prongs of the main scheme were carefully cultivated at the Essex Probate Court and the Appeals Court Single Justice level, a seemingly separate stream of events was quietly developing in a seemingly unrelated case brought against Chester and his wife, Margaret, by the Board of Trustees of the Tuck Point Condominium Trust in Beverly, a picturesque waterfront condominium complex where Chester and Margaret own their one-bedroom unit overlooking the Beverly Harbor.

Not allowed to collect signatures on Bridgewater
sidewalk, April 2002 alongside RT-18, Broad street.

This is the docket of my court case in Boston Fed. court.

Schwarz vs Sgt. Lincoln, Town of Bridgewater

Plymouth Superior Court 2005 CV 0459

and.......

district court of US, Boston, 1:05 CV 10959RCL

Have your state senators office obtain copies
of the docket record.

Montero has an eternal arrest record that
Gov. Patrick won't expunge.

===============================================
Man sues after false arrest
Suing for $20 MILLION

John Larrabee Woonsocket Call 12/15/ 2004
Rhode Island

BELLINGHAM, Mass. -- John Larrabee Woonsocket Call 12/15/ 2004
Rhode Island

BELLINGHAM, Mass. -- A local man who spent a Thanksgiving holiday in the police station lockup because officers allegedly mistook him for a fugitive is suing the town for more than $20 million.

The suit claims that on the evening of Nov. 26, 2003, Officer Kenneth Jones entered Modesto Montero’s Bellingham home and cuffed his hands behind his back. The officer charged he was actually Gumercindo Montero, a man wanted by Pennsylvania authorities for parole violation.
Officers allegedly ignored Montero and his family when they insisted he was not the wanted man and is not related to him either. Montero was held more than 40 hours before police acknowledged their mistake.
"There were malicious and vicious acts perpetuated by Bellingham police officers, who did not care who suffered in jail as long as the person was of Hispanic heritage," the suit states.

As a result, the lawsuit states, Montero was "deprived of rights and privileges secured by the Constitution and laws of the United States, including freedom from use of excessive force, freedom from unreasonable search, freedom from unlawful arrest, freedom from intimidation and humiliation, freedom from unlawful confinement, false imprisonment and right to due process of law."

Both the town and Jones are named as defendants.

Town lawyer Lee Ambler declined to comment on the case, saying he was unaware of the lawsuit. "It has not crossed my desk," he said.

Montero’s lawyer, Scott Gediman of Everett, said that six months ago he sent a letter to town administrator Denis Fraine offering to settle the case for $100,000, but the town failed to reply.

"It’s just inexcusable," he said. "They came to his house the night before Thanksgiving, pounded through the door, and put him in handcuffs, with a house full of relatives watching. They held this man for two days for no reason, and there’s no response -- no apology, nothing."

The lawsuit, filed Dec. 8 in Boston’s federal district court, states Montero does not match the physical description of the fugitive, who is six inches taller and has a scar on his chin. It also says Bellingham police had a mug shot "that in no way resembled Modesto Montero."

When Montero insisted officers had made a mistake, they responded with abusive remarks, according to the suit. "Yeah, sure you’re not the guy," one officer allegedly replied.

The mistake was not rectified until Montero faced arraignment in Milford District Court two days after his arrest. A judge ordered police to immediately check his fingerprints against those of the wanted man; they did not match. The court then released him, with an apology.

The suit charges the alleged mistreatment was motivated by racism, and that the town of Bellingham has a policy of ignoring or not investigating incidents of police misconduct.

"The policy and procedure of the police was to arrest, brutalize, and confine Hispanics irrespective of whether they were the correct person or not," the lawsuit states.

Pass this one around to the interested.

Joanne Santos was arrested because
a crane boom swung over the neighbor property line.

The Mass. Appeal Court dismissed the conviction, but
Joanne has an eternal arrest record.

==============================================
Docket No.: No. 02-P-206.
Parties:         COMMONWEALTH vs. JOANNE M. SANTOS.
County: Franklin.
Dates: April 14, 2003. - August 1, 2003.
Present:         Laurence, McHugh, & Cohen, JJ.
Trespass. Statute, Construction.

Complaint received and sworn to in the Greenfield Division of the District
Court Department on May 3, 2001.

The case was heard by W. Michael Ryan, J.
Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth.
Timothy M. Farris for the defendant.

LAURENCE, J. After a bench trial on the charge of criminal trespass (G. L.
c. 266, § 120) in Franklin District Court, the defendant, Joanne Santos, was
convicted of "trespass by agency."(1) She contends that the trial judge
erred (1) in finding that the mechanical hoisting of cement blocks above,
but never touching, her neighbors' driveway (which bisected her property)
constituted a criminal trespass; and (2) in finding her guilty of trespass
by reason of the actions taken by the crane operator whom she had hired to
move the cement blocks. Finding no basis upon which the defendant's
conviction may stand, we reverse.
Background. The events giving rise to the defendant's conviction reflect the
depressingly familiar phenomenon of an ongoing, rancorous dispute between
neighbors over asserted property rights. In 2001, Karen and Joseph Schady
owned 78 River Street, Bernardston, a residential property abutting the rear
of the defendant's property, which was located at 84 River Street. The
Schadys' paved driveway leading from their property to the main access road,
River Street, was flanked on either side by land owned by the defendant. A
heated dispute existed between the Schadys and the defendant over the extent
of the driveway owned by the Schadys.(2) A piece of city-owned property (the
"buffer zone," estimated to be from twelve to twenty-five feet wide) sat
between River Street and the end of the driveway (as well as the defendant's
land).
The defendant owned and ran a seasonal farm stand on her River Street
property. The fixtures associated with this business, a ten-foot gazebo and
flower beds, were located on her property but alongside the driveway.
Concerned about the defendant's customers' foot and automobile traffic
across the driveway, the Schadys, through their attorney, requested that the
defendant prevent her customers from using their claimed driveway in any
manner. Subsequently, on March 23, 2001, the defendant was served with a "no
trespassing" notice, pursuant to G. L. c. 266, § 120. The notice stated:
"You are hereby notified that you, your tenants, your guests, your
employees, your invitees and anyone under your direction are prohibited from
entering or remaining upon the land or building owned and occupied by [the
Schadys]. . . . This notice is intended to include [the Schadys'] driveway."
On May 2, 2001, the date of the alleged trespass, the defendant had
contracted with a crane operator to move several three by five foot
rectangular cement blocks from a field on her property and to place them on
the northerly and southerly edges of her land bordering the driveway --
where they previously had been located before the Schadys moved them -- in
such a way as to prevent her customers from entering the driveway. The
defendant orally informed the crane operator that, because she was involved
in a boundary dispute with the Schadys over the extent of their portion of
the driveway, he was to avoid entering or touching in any way the ten-foot
wide portion of the driveway she conceded was their property, to be sure to
place the cement blocks entirely on what she claimed to be her property, and
to keep the crane equipment in the buffer zone at all times. She did not
show or tell the operator of the no trespassing notice. The crane operator
proceeded to transfer the blocks from the defendant's field by hoisting them
into the air, maneuvering them over the driveway when necessary, and placing
them alongside the driveway but on the defendant's claimed property.(3)
Efficient crane operation required that the boom of the crane at times had
to swing across the airspace above the driveway (at some unspecified height)
when placing a cement block on the other side.

While these cement blocks were being relocated, Karen Schady (who had
observed the work as she was leaving to do errands) told the crane operator
that "there was a land dispute going on." She then attempted to "show" him
(in some fashion not described in her testimony) the no trespassing notice,
but he "didn't look at it" as he continued moving the blocks even though
Karen Schady continued to claim that the blocks were being laid on her
property. Nothing in the record indicates that any persons other than the
defendant, the crane operator, and Karen Schady were present at the scene or
that the crane operations posed any risk or danger to anyone or caused any
damage to any property.

On May 3, 2001, the defendant was arraigned, on the Schadys' complaint, on
the charge of trespass. For reasons exciting our dubiety (see infra), the
case proceeded to trial. Citing no authority, the judge denied the
defendant's motions for a required finding of not guilty and found her
guilty of criminal trespass by agency by virtue of the crane operator's
occasional intrusions into the airspace above the driveway. The judge
stated, "[she] order[ed] people to use that crane to go over the [Schadys']
property, even if it didn't touch, no matter where the [crane] was parked. .
. . I'll merit the argument of agency." Prior to the defendant's sentencing
to one year's probation, she was unaccountably held without bail for four
days in a house of correction (a questionable incarceration not, however,
challenged on appeal) and ordered to undergo a psychiatric evaluation.
Discussion. The pertinent language of the criminal trespass statute states:
"Whoever, without right enters or remains in or upon the dwelling house,
buildings, boats or improved or enclosed land, wharf, or pier of another, or
. . . a school bus . . . after having been forbidden so to do by the person
who has lawful control of said premises, whether directly or by notice
posted thereon, or in violation of a court order . . . shall be punished by
a fine of not more than one hundred dollars or by imprisonment for not more
than thirty days or both such fine and imprisonment."
G. L. c. 266, § 120, as amended through St. 1999, c. 102.
It is clear from the record and from this plain statutory language that the
judge should have allowed the defendant's motions for a required finding. No
evidence was presented that the crane operator himself had ever been
"forbidden" to "enter or remain in or upon" the Schadys' driveway, either
directly or by any notice posted thereon (there was none). Assuming an
ambiguity or imprecision in the statute as applied to these facts -- i.e.,
whether Karen Schady's unlimned effort to "show" the no-trespassing notice
to the crane operator could be deemed the equivalent of "directly
forbidding" him to move any part of his equipment or the blocks he was
manipulating into the air space over the disputed driveway -- we must
construe it strictly against the Commonwealth and in favor of the defendant.
See Commonwealth v. Clinton, 374 Mass. 719, 721 (1978); Youngworth v.
Commonwealth, 436 Mass. 608, 611-612 (2002).
The requisite notice cannot, accordingly, be deemed to have been given to
the operator. Nor can notice to him be implied under this canon simply
because it was previously given to the defendant. The operator cannot,
therefore, be held to have committed a trespass forbidden by statute. See
Commonwealth v. Gagnon, 387 Mass. 567, 569, S.C., 387 Mass. 768 (1982),
cert. denied, 461 U.S. 921 and 464 U.S. 815 (1983) (any reasonable doubt as
to the meaning of a criminal statute must be resolved in favor of a
defendant and against the finding of a criminal violation).
"[T]he mere fact of agency is not enough to impose criminal liability on the
master." Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 263 (1971),
cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, and sub nom.
Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 (1972). Before a
principal can be held criminally responsible, "the servant's criminal act
must be shown." Id. at 262. As noted above, the agent here cannot be held to
have violated the trespass statute. Criminal liability may not, therefore,
be vicariously imposed on the defendant who, the evidence clearly showed,
did not herself physically enter or remain in or upon the Schadys' conceded
portion of the driveway and who (as the discussion, infra, demonstrates)
could not be deemed to have committed a trespass under the statute herself
in any event. Cf. Restatement (Second) of Torts § 158(a) comment j (1965)
("If, by any act of his, the actor intentionally causes a third person . . .
to enter land in the possession of another, the actor is responsible for the
third person's entry if it be a trespass" [emphasis added]); Restatement
(Second) of Agency § 212 comment b (1958) ("If a person directs a particular
act which is performed as directed, he is subject to liability if the act
directed constitutes a tort" [emphasis added]).(4)
The defendant's conviction is even more fundamentally flawed, however,
because no trespass under the statute can be said to have occurred. The
Commonwealth has been unable to cite a single case, from Massachusetts or
any other jurisdiction, supporting the proposition that criminal trespass
can be founded on an "entry" consisting of the purported invasion of
airspace by briefly and harmlessly moving or propelling an object above a
parcel of land. Compare Commonwealth v. Davis, 10 Mass. App. Ct. 190,
193-195 (1980) (the lack of any reported decision, over the many decades
since the Legislature enacted the "assault and battery by means of a
dangerous weapon" statute, that "stretched" the definition of the term
"weapon" to include parts of the human body, such as teeth, indicated that
no such broadening of the statutory crime ever was contemplated).
Moreover, the undefined word "enter" as used in the statute must be given
its usual meaning as commonly understood, see Commonwealth v. Campbell, 415
Mass. 697, 700 (1993), a meaning that presupposes actual, physical presence
in or on property. See The American Heritage Dictionary of the English
Language 614 (3d ed. 1992) ("enter . . . 1. To come or go into: The train
entered the tunnel. 2. To penetrate, pierce: The bullet entered the victim's
skull" [italics original]). Cf. id. at 1908

("trespass . . . To commit an unlawful injury to the . . . property . . . of
another . . . especially to enter onto another's land wrongfully").
Additional assistance in deriving the intended meaning comes from the term's
use in other legal contexts. Commonwealth v. Campbell, supra. See
Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 60 (1997), quoting from Black's
Law Dictionary 533 (6th ed. 1990) ("[T]he [undefined] word ['enters,' as
used in the home invasion statute, G. L. c. 265, § 18C,] is to be construed
as an unlawful entry, consistent with its use in a criminal context," which
contemplates entry "'into . . . [property] for the purpose of committing a
crime therein'").

Against this background, we find it implausible that the average citizen
would understand that the type of "entry" which G. L. c. 266, § 120,
prohibits extends to the unusual, technical circumstance of momentarily
conveying an object through airspace over someone's property without causing
the slightest harm to that property or any interference with or danger to
anyone's use of the property. See Commonwealth v. Triplett, 426 Mass. 26, 29
(1997), quoting from Commonwealth v. Twitchell, 416 Mass. 114, 123 (1993)
(as a matter of constitutional law, "both statutory and common law crimes
must 'define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited'"); Commonwealth v. Quinn,
439 Mass. 492, 499 (2003), quoting from Commonwealth v. Sefranka, 382 Mass.
108, 110 (1980) ("An essential principle of due process is that a statute
may not proscribe conduct 'in terms so vague that [persons] of common
intelligence must necessarily guess at its meaning.' . . . [Such a] statute
offends due process because of 'its lack of reasonably clear guidelines for
law enforcement and its consequent encouragement of arbitrary and erratic
arrests and prosecutions'").
Despite these constructional principles, the Commonwealth's inability to
find any supportive authority, and the central fact that neither the cement
blocks nor the crane equipment ever physically touched any property
indisputably possessed by the Schadys, the Commonwealth nonetheless argues
(and the judge ruled) that a criminally punishable trespass occurred the
instant the cement blocks or the crane mechanism crossed through the air
above the driveway. Although unmentioned by the judge, the acceptance of
this unprecedented and ultimately unpersuasive theory of criminal trespass
would require the importation of the ancient civil trespass doctrine, "Cujus
est solum, ejus est usque ad coelum" ("he who owns the soil owns upward unto
heaven"), into the law of criminal trespass. Compare Smith v. New England
Aircraft Co., 270 Mass. 511, 529 (1930), and cases cited. But see United
States v. Causby, 328 U.S. 256, 261 (1946) ("[T]hat doctrine has no place in
the modern world"); Restatement (Second) of Torts, supra, § 159(1) comment g
(that doctrine "can no longer be regarded as law, if it ever was"). There is
no principled basis to do so here.
Where statutory language used to define a crime gives rise to an ambiguity,
that language must, as noted, be strictly construed against the
Commonwealth, with any plausible ambiguity being resolved in favor of the
defendant. To the extent the meaning of "enter" in the statute is not
unambiguously clear, we again adhere to this salutary canon. The statute
specifically criminalizes two, and only two, disjunctive acts with respect
to eight specific types of property: (1) entering in or upon such property
after being forbidden to do so directly or by posted notice; or (2)
physically remaining in or upon such property after being asked to vacate
the premises. See Commonwealth v. Richardson, 313 Mass. 632, 638 (1943)
("[The statute's] only purpose is to protect the rights of those in lawful
control of property to forbid entrance by those whom they are unwilling to
receive, and to exclude them if, having entered, those in control see fit to
command them to leave"). See also Nolan & Sartorio, Criminal Law § 410 (3d
ed. 2001). The statute says nothing about airspace, or vicarious or
constructive entry, or off-premises entry by means of an object thrown or
lifted over any of the specified categories of property.
The judge recognized that neither the defendant nor her agent, the crane
operator, had physically entered or touched the property indisputably
possessed by the Schadys after being forbidden to do so or remained there
after being asked to leave. Apparently applying the tort principles now
relied on by the Commonwealth, but citing no authority, the judge
nonetheless determined that he would credit the prosecution's theory that
the defendant was guilty of a trespass whenever her agent steered the crane
machinery or cement blocks through the air above the undisputed portion of
the driveway.
It is not, however, our general practice to interject constructs of tort law
when interpreting criminal statutes. It has only been within a limited area,
when it is necessary to formulate duties in the criminal context, that our
appellate courts have drawn on well-established duties imposed by civil law;
but even then it has been done only when the existence of several critical
factors indicated its propriety, particularly the presence of unreasonable
risk to others. See Commonwealth v. Welansky, 316 Mass. 383, 397-401 (1944);
Commonwealth v. Twitchell, 416 Mass. at 117-118; Commonwealth v. Levesque,
436 Mass. 443, 450 (2002) (all involving unreasonable risks resulting in
death, leading to convictions for involuntary manslaughter). No such factors
are present here.(5)
We reject the judge's unprecedented willingness to apply civil trespass law
so as to criminalize harmless or equivocal conduct under G. L. c. 266, §
120, particularly in a situation that does not require or implicate the
formulation of any duty. In the absence of any interference with, or danger
to, the Schadys' use of their property flowing from the concrete blocks'
brief aerial transit, this case furnishes no occasion on which to inject
into our specific criminal trespass statute the notion that "a trespass may
be committed . . . above the surface of the earth." Restatement (Second) of
Torts, supra, § 159(1). In any event, "[w]e have no right to read into the .
. . statute 'a provision [extending the definition of a statutory crime]
which the Legislature did not see fit to put there." Commonwealth v. Smith,
46 Mass. App. Ct. 822, 826 (1999), S.C., 431 Mass. 417, 425 (2000), quoting
from King v. Viscoloid Co., 219 Mass. 420, 425 (1914).(6)

With all due deference to art. 30 of the Massachusetts Declaration of
Rights, we are constrained to comment on the regrettable and questionable
expenditure of public funds that the arguably arbitrary and erratic
prosecution of this case involved. It seems clear that a more appropriate
course for a dispute of this nature would have been a tort action, where
equitable relief and the contempt sanction could adequately have remedied
any ongoing, sustained or repetitive injury to legitimate property rights.
Conservation of our limited judicial and prosecutorial resources is an
obligation that must be shared by all officers of the justice system, and,
as this case demonstrates, is one that needs reiteration.

Judgment reversed.
Finding set aside.
Judgment for defendant.

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