test waiver in Massachusetts

1999See Amirault, 424 Mass. at 639 . 2 “(T]he concern for finality demands that a defendant present every claim and argument he might fairly have had available to him the first time around.” Id. “(A]bsent extraordinary circumstances where there has been ineffective assistance of counsel or where allowing the conviction to stand ‘will result in "manifest injustice," ’ “ any issue that could have been raised earlier, and was not, is considered waived, and ’’may not be raised for the first time on collateral review." Id. (citations omitted); see also Mass.R.Crim.P. 30(c)(2). ‘The test for waiver is w

1999See Amirault, 424 Mass. at 639 . 2 “(T]he concern for finality demands that a defendant present every claim and argument he might fairly have had available to him the first time around.” Id. “(A]bsent extraordinary circumstances where there has been ineffective assistance of counsel or where allowing the conviction to stand ‘will result in "manifest injustice," ’ “ any issue that could have been raised earlier, and was not, is considered waived, and ’’may not be raised for the first time on collateral review." Id. (citations omitted); see also Mass.R.Crim.P. 30(c)(2). ‘The test for waiver is w

1998Counsel need not be clairvoyant.’ ” Commonwealth v. Amirault, 424 Mass. at 639 , quoting from Commonwealth v. Bowler, 407 Mass. 304, 307 (1990).

1997Counsel need not be ‘clairvoyant.’ ” Id., and cases cited.

2024"The test for claim splitting is not whether there is finality of judgment, but whether the first suit, assuming that it were final, would preclude the second suit." Id. quoting Katz v. Gerardi, 655 F.3d 1212, 1218 (10th 6 Cir. 2011).

2024A dismissal on the grounds of claim splitting "generally occurs while 'the dismissed party is involved in another pending suit regarding the same subject matter against the same defendants.'" Jinks, supra, quoting Katz, supra at 1219 .

2022Health, 379 Mass. 70, 84 (1979).

2010Because the juvenile did not object to admission of the evidence, the test is whether the error, if any, created a substantial risk of a miscarriage of justice, see Commonwealth v. McCoy, 456 Mass. 838, 850 (2010), and cases cited therein, and we conclude that there was no such risk.

2005See Woodward, supra at 666 (“the responsibility [under rule 25 (b) (2)] may be exercised by the trial judge, even if the evidence warrants the jury’s verdict”); Commonwealth v. Gaulden, supra at 555 (rule 25 [b] [2] “empowers] a judge ... to ‘order the entry of a finding of guilty of any offense included in the offense charged in the indictment,’ without regard to the fact that the evidence warranted the jury’s verdict of guilty of the greater offense”).

2005See Woodward, supra at 666 (“the responsibility [under rule 25 (b) (2)] may be exercised by the trial judge, even if the evidence warrants the jury’s verdict”); Commonwealth v. Gaulden, supra at 555 (rule 25 [b] [2] “empowers] a judge ... to ‘order the entry of a finding of guilty of any offense included in the offense charged in the indictment,’ without regard to the fact that the evidence warranted the jury’s verdict of guilty of the greater offense”).

2000See Commonwealth v. Crawford, 430 Mass. 683, 689 (2000) (“The test for waiver is whether the theory on which the defendant’s argument rests has been sufficiently developed to put him on notice that the issue is a live issue that could have been raised in his [previous] motion”).

2000See also Lykus v. Commonwealth, 432 Mass. 160, 163 (2000), quoting Commonwealth v. Pisa, 384 Mass. 362, 365-366 (1981) (“Section 33E ‘requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available’ ”); Rodwell v. Commonwealth, supra at 1018 (“If a defendant fails to raise a claim that is generally known and available at the time of . . . [a] motion for postconviction relief, the claim is waived”).

2000See also Lykus v. Commonwealth, 432 Mass. 160, 163 (2000), quoting Commonwealth v. Pisa, 384 Mass. 362, 365-366 (1981) (“Section 33E ‘requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available’ ”); Rodwell v. Commonwealth, supra at 1018 (“If a defendant fails to raise a claim that is generally known and available at the time of . . . [a] motion for postconviction relief, the claim is waived”).

2000Forsyth School of Dental Hygienists, 404 Mass, at 218, quoting Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277 (1969).

1994Breault v. Chairman of the Board of Fire Comm’rs, 401 Mass. 26, 34 (1987); Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).

1994Breault v. Chairman of the Board of Fire Comm’rs, 401 Mass. 26, 34 (1987); Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).

1992L. c. 90, § 24 (1) O) (1990 ed.), by striking out the second and third sentences and inserting in place thereof the following sentence: “Evidence that the defendant failed or refused to consent to such a test or analysis shall not be admissible in a civil proceeding but shall be admissible in a criminal proceeding, and shall be admissible in any action by the registrar under paragraph (/).” The order presents to us the following question: “Would the provisions of Senate No. 717 which permits a defendant’s failure or refusal to submit to a chemical test or analysis of his breath to be admissibl

1992We recognize that courts of other jurisdictions, both before and since South Dakota v. Neville, supra, have considered the issue under the Fifth Amendment or analogous sections of their respective State Constitutions. 2 There is no unanimity in their conclusions or their analytical approach to the issue.

1990The test whether an instruction was put to the jury in such form, rather than as a legitimate permissible inference that could be drawn from the subsidiary facts, “depends upon the way in which a reasonable juror could have interpreted the instruction.” Commonwealth v. Moreira, 385 Mass. 792, 794 (1982), quoting Sandstrom v. Montana, 442 U.S. 510, 514 (1979).

1990The test whether an instruction was put to the jury in such form, rather than as a legitimate permissible inference that could be drawn from the subsidiary facts, “depends upon the way in which a reasonable juror could have interpreted the instruction.” Commonwealth v. Moreira, 385 Mass. 792, 794 (1982), quoting Sandstrom v. Montana, 442 U.S. 510, 514 (1979).

1979Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

1978Thus we would apply to dual jurisdiction cases the substance of the “same evidence” test currently used by us and expounded in Commonwealth v. Gallarelli, 372 Mass. 573, 577 (1977); Kuklis v. Commonwealth, 361 Mass. 302, 306 (1972); Morey v. Commonwealth, 108 Mass. 433, 434 (1871). 13 We observe, however, that this test or rule may require some modulation when applied to a case in which the *495 prior prosecution occurred in a Federal court. 14 On the one hand, a mere reference in a Federal criminal statute to a Federal jurisdictional contact (e.g., that a bank was federally insured) may well

1978People v. Belcher, 11 Cal. 3d 91, 100 (1974).

1978Thus we would apply to dual jurisdiction cases the substance of the “same evidence” test currently used by us and expounded in Commonwealth v. Gallarelli, 372 Mass. 573, 577 (1977); Kuklis v. Commonwealth, 361 Mass. 302, 306 (1972); Morey v. Commonwealth, 108 Mass. 433, 434 (1871). 13 We observe, however, that this test or rule may require some modulation when applied to a case in which the *495 prior prosecution occurred in a Federal court. 14 On the one hand, a mere reference in a Federal criminal statute to a Federal jurisdictional contact (e.g., that a bank was federally insured) may well

1978Thus we would apply to dual jurisdiction cases the substance of the “same evidence” test currently used by us and expounded in Commonwealth v. Gallarelli, 372 Mass. 573, 577 (1977); Kuklis v. Commonwealth, 361 Mass. 302, 306 (1972); Morey v. Commonwealth, 108 Mass. 433, 434 (1871). 13 We observe, however, that this test or rule may require some modulation when applied to a case in which the *495 prior prosecution occurred in a Federal court. 14 On the one hand, a mere reference in a Federal criminal statute to a Federal jurisdictional contact (e.g., that a bank was federally insured) may well

1975In Miranda v. Arizona, 384 U. S. 436, 475 (1966), the Supreme Court set out the test for waiver as follows: “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. . . .