Massachusetts Criminal Lawyer Blog

In Commonwealth v Diaz Perez, the Supreme Judicial Court affirmed the allowance of the defendant’s motion for a new trial, agreeing with the trial court judge that the failure of the defendant’s successor trial counsel to investigate a crucial alibi witness, who had testified at an earlier mistrial, constituted ineffective assistance of counsel under the Sixth Amendment.

The background was as follows. “The victim … was fatally shot at a baby shower. The [event] was attended by roughly one hundred guests (including the defendant)…. As midnight approached and the event concluded, the guests began to gather outside. An argument then broke out” and “escalated into physical violence.” “[The victim] was shot in the back and later died of his injuries.” The defendant was indicted for murder. “His first trial began in May of 2006. A mistrial was declared because, after more than a week of deliberation, the jury were still unable to reach a verdict. After the first trial, the defendant was appointed new counsel.” A year after the first trial, the defendant was tried again and was convicted of first-degree murder. “The principal factual issue at each trial was whether there was sufficient evidence to identify the defendant as the shooter.” “At both trials, the Commonwealth relied on the testimony of two eyewitnesses to identify the defendant as the” perpetrator. During the first trial only, however, an alibi witness [Sanchez] testified that he had been inside a building with the defendant when the shooting took place on a street outside the building.” After his conviction, the defendant filed a motion for a new trial, “arguing that his second attorney’s failure to call [Sanchez as a witness] or even [to] investigate [him] amounted to constitutionally ineffective assistance of counsel.” The motion was allowed and the Commonwealth appealed. Continue reading →

In Commonwealth v. Salmons, the Appeals Court reversed the allowance of the Commonwealth’s motion requesting that before returning the defendant’s unlawfully seized cell phones to him, the Commonwealth be permitted to “wipe” all data from the phones.

The background was as follows. In response to a report of a domestic altercation at the home of the defendant’s girl friend, the police arrested the defendant for assault and battery and related charges. The police “found no drugs [at the scene,] but seized [drug] paraphernalia and the defendant’s three cell phones.” “Six months after the cell phones were seized, police applied for and obtained a warrant to search them for evidence of drug offenses. Shortly thereafter, the [SJC] decided in Commonwealth v. White, 475 Mass. 583, 590- 591 (2016), that probable cause to seize or search a cell phone requires, among other things, ‘information establishing the existence of particularized evidence likely to be found there.’ The [SJC] further ruled that, when a cell phone or other item is seized without a warrant and police later obtain a warrant to search it, the search is unreasonable unless the Commonwealth shows, among other things, ‘that the delay between the seizure and the filing of the application for a search warrant was reasonable.’ Id. at 593. Based on White, the defendant here [filed a motion] to suppress the evidence found in the search of his cell phones.” A judge allowed the motion and the defendant subsequently pleaded guilty to various offenses. He was sentenced to concurrent ten-year terms of incarceration. “At the time of sentencing, the defendant moved for the return of his cell phones, asserting that they were no longer needed as evidence…. A judge allowed the motion and ordered that the cell phones, [which were] being held by the … police, be returned to the defendant or his authorized representative. More than eight months later, the Commonwealth filed a ‘motion for clarification’ of the order that the cell phones be returned. The motion stated that, when the search warrants for the cell phones had been executed, two of the cell phones were found to contain ‘numerous and sexually explicit photographs and videos of the defendant and [the victim].’ The Commonwealth sought approval, before returning those cell phones, to wipe their memories ‘by engaging the factory reset option’ to ensure that ‘no sexually explicit photographs or videos of the victim [could] be given to the defendant’s representatives for possible retaliation for her participation in the prosecution.’” A judge (other than the one who had ordered that the cell phones be returned to the defendant) “allowed the Commonwealth’s request to first ‘wipe’ all data from two of the … phones in order to erase” the video recordings and photographs that the Commonwealth had cited. “The judge expressed concern that, if the cell phones were returned without being wiped, the materials at issue would be available to the defendant’s brother or others, who might disseminate them, intentionally or otherwise, and thereby harm the victim.” The judge stated, “‘I haven’t seen [that the defendant has] a compelling need [for] the information” on the phones, “particularly given the fact that he won’t even have access to [them] for some period of time.’…. Allowing the cell phones to be wiped would ‘avoid[] a risk [potential harm to the victim] which is far greater than the perceived needs of the defendant.’…. The defendant appealed and obtained a stay of any data erasure pending appeal.” Continue reading →

In Commonwealth v. Fernandes, the Supreme Judicial Court vacated the dismissal of the murder indictment against the adult defendant on the grounds that, contrary to the judge’s ruling, “the Commonwealth’s failure to provide instructions to the grand jury regarding the significance of the mitigating evidence it presented” did not impair the integrity of the grand jury process.

The background was as follows. The defendant stabbed her fiancé, cutting his carotid artery. The Commonwealth presented evidence to the grand jury “that the defendant and the victim were fighting just prior to the stabbing,” and that the defendant had manifested a “violent temper and controlling behavior toward — and physical abuse of — the victim” during their relationship, “including a prior occasion [on] which the defendant stabbed the victim.” “The Commonwealth also presented [to the grand jury] substantial evidence that could have been seen as exculpatory, comprising testimony from witnesses who observed bruises on the defendant, including on the night of the killing; statements from the defendant regarding the victim’s abusive behavior toward her during their relationship; and the defendant’s statement that she acted in self-defense.” The grand jury indicted the defendant for murder and assault and battery with a dangerous weapon. The defendant filed a motion “to dismiss the murder charge, arguing … that the Commonwealth had failed to provide the grand jury with instructions regarding the mitigating circumstances that it presented.” The judge “allowed the motion, concluding that although there was probable cause to return an indictment for murder, the Commonwealth’s failure to provide instructions on the mitigating factors impaired the integrity of the grand jury proceedings.” The Commonwealth appealed. Continue reading →

Following a probation violation hearing, the Appeals Court affirmed the revocation of the defendant’s probation in Commonwealth v. Hamilton.  The Court Court agreed with some of the grounds for revocation cited by the judge, but disagreed with the judge as to other grounds, including one that was based on unreliable hearsay.

The background was as follows. “The defendant pleaded guilty in November 2012 to two charges of possession of child pornography and one charge of failure to register as a sex offender. He was sentenced to a term of incarceration on the child pornography convictions and five years’ probation on the failure to register conviction. A special condition of his probation was that he ‘not possess pornography.’ In May 2014 the probation department served the defendant with a surrender notice alleging that he violated several of his probation conditions. After an evidentiary hearing… the judge made oral findings that the defendant twice failed to report to probation and that he possessed pornography…. Finding the defendant in violation on these grounds, the judge revoked his probation.” On appeal, “[t]he defendant argue[d] that he was not on fair notice that the materials he possessed [photographs and written materials] qualified as pornography in violation of the special condition.” Continue reading →

In Commonwealth v. Pearson, the Appeals Court affirmed the denial of the defendant’s motion for receipt of “jail credits for overlapping periods of pretrial detention on … separate cases brought in” Norfolk and Middlesex Counties.  The Appeals Court opined that the cases “were not related for purposes of applying jail credits.”

The background was as follows. The Norfolk case stemmed from four incidents in January and February, 2012, in which the defendant broke into residences in Brookline and stole various valuable items. The Middlesex case stemmed from two incidents in February, 2012, in which the defendant broke into residences in Cambridge and stole various valuable items. In due course, police officers arrested the defendant at his residence and, pursuant to a search warrant, seized items that had been stolen from the burglarized homes. The defendant was held in pretrial custody following his arrest. After a jury trial in the Norfolk case, the defendant was convicted of several counts and “received a sentence of six to eight years in State prison … and … 733 days of jail credit for the time he was held awaiting trial. Following a subsequent jury trial in the Middlesex case, the defendant was convicted of two counts…. He received [concurrent] ten-year State prison sentence[s]” on those convictions. Moreover, “[t]he defendant’s sentences in the Middlesex case were to run concurrently with his sentences in the Norfolk case.” Subsequently, “the defendant moved to correct the mittimus on the Middlesex case, seeking to have the jail credit on the Norfolk case apply to the subsequent Middlesex case.” The motion was denied and the defendant appealed. Continue reading →

In a recent decision – Finn v. Commonwealth – the Supreme Judicial Court ruled that G.L. c.276, §58A, “permits a Superior Court judge to conduct a dangerousness hearing upon a defendant’s first appearance in that court, regardless of whether that appearance is pursuant to a summons or to an arrest warrant.”

The background was as follows. “In December of 2017, the defendant was arrested and charged by criminal complaint in the District Court with one count of indecent assault and battery on a child under the age of fourteen” and related offenses. “At arraignment, the Commonwealth moved for pretrial detention pursuant to G.L. c.276, §58A.” Section 58A(4) provides that “‘[w]hen a person is held under arrest for an offense listed in subsection (1) and upon a motion by the [C]ommonwealth, the judge shall hold a [dangerousness] hearing.” Here “[a]fter an evidentiary hearing [on the Commonwealth’s motion], a District Court judge ordered that the defendant be held without bail. The judge then allowed the defendant’s motion for reconsideration, and ordered that the defendant could be released with conditions, including [GPS] monitoring.” Three weeks after his release, a grand jury returned several indictments against the defendant “for the same events underlying the December 2017 complaint. The prosecutor arranged with defense counsel to schedule the defendant’s arraignment in the Superior Court; no new arrest warrant was issued. The defendant complied with a summons, and was arraigned…. At arraignment, the Commonwealth moved for pretrial detention pursuant to G.L. c.276, §58A. The defendant opposed the motion on the ground that the Commonwealth lacked the right to seek a dangerousness hearing in the Superior Court because the defendant had not been “‘subject to arrest” or “held under arrest” when he appeared for his arraignment, pursuant to [a] summons.’…. [A] Superior Court judge allowed the motion for pretrial detention, without prejudice. Subsequently, the defendant filed a petition pursuant to G.L. c.211, §3, seeking to vacate the order of pretrial detention” on the grounds “that the Commonwealth lacked authority to move to detain him pursuant to G.L. c.276, §58A, because he was not ‘under arrest’ or subject to arrest within the meaning of the statute when he appeared in the Superior Court pursuant to a summons.” The single justice reserved and reported the matter to the full SJC. Continue reading →