Articles Posted in Law Commentary

The Appeals Court issued a decision – Commonwealth v. Johnson – affirming the revocation of the defendant’s probation and the denial of his motion to withdraw his stipulation to probation violations.  In its decision, the Court ruled “that the defendant’s admission [to probation violations] and his waiver of the right to a probation violation hearing were made knowingly and voluntarily,” as required by Commonwealthv. Sayyid, 86 Mass. App. Ct. 479, 489 (2014).

The background was as follows. The defendant pleaded guilty to several indictments charging him with sexual abuse of a child and a related offense. He was sentenced to concurrent terms of incarceration to be followed by concurrent terms of probation, with various conditions, including requirements “that he wear a global positioning system (GPS) monitoring device, attend and successfully complete sex offender counselling, [and] report to a probation officer.” Several weeks after the commencement of the probationary term, a notice of violation of probation was issued “because the defendant had failed to report to his probation officer, … had failed to attend an outpatient sex offender treatment program, and had removed his GPS monitoring bracelet.” A final probation violation hearing was scheduled for January 5, 2015.

On that day, “there was a sidebar conference attended by the defendant’s counsel, the prosecutor …, a probation officer, and the judge. The defendant was present in the court room, but did not hear the conference. Defense counsel indicated that her client was prepared to accept an additional one year of incarceration to resolve the case, but stated, ‘I discussed with him a two to three in order to dispose of it being more in line with the allegations….’” The judge made no commitments, stating “that the defendant’s sentence ‘could run the gamut from some period of incarceration to reprobating again.’ The sidebar concluded with defense counsel informing the judge that the defendant was ‘prepared to stipulate to the alleged facts.’” The judge then asked the defendant “whether he wanted to waive his right to an evidentiary hearing and to stipulate to the probation violations. The defendant responded in the affirmative…. [He was not] informed that no agreements had been reached about whether the judge would revoke his probation and, if she did, what sentence would be imposed.” Continue reading →

In Commonweath v. Dirico, the Supreme Judicial Court ruled that the defendant’s motion to dismiss for lack of a speedy trial under Mass. R. Crim. 36(b) was properly denied.

The background was as follows. “The defendant contend[ed] that the Commonwealth was responsible for the delay in providing him with the results of [DNA] evidence testing, and that none of the time after he filed a motion for mandatory discovery should be considered excludable delay.”

In its decision, the SJC “conclude[d] that the discovery the defendant characterized as ‘mandatory’ was not mandatory discovery that the Commonwealth must automatically provide to a defendant under Mass. R. Crim. P. 14(a)(1).” “[T]he defendant … did not seek ‘reports of … scientific tests’; instead, he sought all of the electronic data used to prepare the reports, all of the electronic files related to the case …, and the laboratory’s standard operating manual. The disclosure of these items of discovery might prove beneficial to an expert who is retained to analyze a DNA report and may properly be ordered to be disclosed, but the Commonwealth is not automatically required under rule 14(a)(1) to disclose these items in the course of mandatory discovery unless they are exculpatory.” The Court further “conclude[d] that, even if [the items sought by the defendant] did constitute mandatory discovery, a defendant who does not want the speedy trial clock to be tolled where a scheduled event [such as a final pretrial conference] is continued because of the Commonwealth’s delay in providing mandatory discovery must, under rule 14(a)(1)(C), move to compel the production of that discovery or move for sanctions, which the defendant [in this case] failed to do…. Here, the defendant acquiesced in, benefited from, and was partially responsible for the vast majority of the delay between the filing of his motion for mandatory discovery and the filing of his motion to dismiss for lack of a speedy trial: the defendant retained an expert to evaluate the results of the Commonwealth’s DNA testing, the defendant did not object to the Commonwealth’s delay in providing the additional information regarding that testing ordered by the judge to be produced, and a trial date could not reasonably be assigned until the expert had obtained and evaluated that additional information.” Continue reading →

In a recent case – Commonwealth v. Robertson – the SJC reversed the defendant’s convictions of first-degree murder and related offenses because “the Commonwealth improperly excluded black men from the jury [by means of peremptory challenges] in violation of Batsonv. Kentucky, 476 U.S. 79 (1986), and Commonwealthv. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979).”

The background was as follows. During empanelment of the jury, “[t]he Commonwealth used [a] peremptory challenge on the first black man who was a potential juror. The defendant objected and defense counsel stated, ‘My client is a black male and this is the first black male to come before the court to be a potential juror.’ The judge found no prima facie evidence of impropriety,” i.e., no “discriminatory pattern in the prosecutor’s peremptory challenges and, as a result, did not inquire about the prosecutor’s reasoning.” Later, “[t]he defendant raised a second objection to the Commonwealth’s use of a peremptory challenge to exclude a man from the Dominican Republic…. [T]he parties disagreed about the potential juror’s race. The Commonwealth argued that the potential juror was ‘Hispanic’ and the defendant argued that he was black.” “The judge observed that the potential juror was ‘lighter skinned than [the defendant].’” Without “deciding how to consider the juror’s race,” “[t]he judge explained that he did not see a pattern because, in part, there were two black women on the jury.” On appeal, the defendant challenged “[t]he judge’s failure to inquire about the Commonwealth’s reason for excluding” the two black male jurors. Continue reading →

The Supreme Judicial Court recently came to a disappointing conclusion in Commonwealth v. Baez.  In the case, the SJC ruled that juvenile delinquency adjudications for violent offenses may serve as predicate offenses for enhanced penalties for adults convicted under G.L. c.269, §10G, the armed career criminal act (ACCA).

The background was as follows. “At age eighteen, the defendant … was indicted for a violation of G.L. c.269, §10(a), unlawful possession of a firearm. If convicted, and if he had no qualifying convictions for sentence enhancement, he would ‘be punished by imprisonment … for [no] more than five years.’” However, “[t]he defendant had twice been adjudicated delinquent for crimes of violence as defined by the Legislature; therefore, the Commonwealth charged the defendant with violating §10G,” which “mandates enhanced sentencing for adults who violate G.L. c.269, §10(a), (c), or (h), and have ‘been previously convicted of a violent crime or of a serious drug offense.’ G.L. c.269, §10G (a)-(c)…. Here, the Legislature imported the definition of ‘violent crime’ from G.L. c.140, §121, which includes ‘any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult.’ See Commonwealthv. Anderson, 461 Mass. 616, 631, cert. denied, 568 U.S. 946 (2012).” “While the defendant’s current case was proceeding, a judge in the Superior Court raised sua sponte the issue whether using juvenile adjudications to enhance sentencing in the same manner as adult convictions violated due process rights and protections under the Eighth Amendment.” The judge reported the question “[w]hether in light of Millerv. Alabama, [567 U.S. 460 (2012)], a juvenile adjudication may be used as a predicate offense for enhanced penalties under G.L. c.269, §10G.” Continue reading →

In Commonwealth v. Gomez, the Supreme Judicial Court ruled that conditional guilty pleas are permissible.

The background was as follows. Two police officers observed the defendant hand an object to another man (Zimmerman) in exchange for cash. When Zimmerman drove away from the site of the exchange, the officers followed and executed an investigatory stop, in the course of which they seized from Zimmerman’s pocket “a small glassine bag with a white powdery substance…. The officers arrested Zimmerman and then returned to the [location] where they had seen the defendant….  As the officers approached, the defendant reached toward his waistband. The officers each grabbed one of the defendant’s arms…. He moved and shook his body as if trying to remove something from his waist. The officers pat frisked him and found a loaded handgun. On searching him further, they found ammunition” and a glassine bag containing “a substance resembling heroin. The defendant was then arrested.” After the return of indictments charging the defendant with drug and firearm offenses, he filed a motion to suppress the evidence seized from him. The motion was denied. “Prior to the scheduled trial date, the defendant ‘indicated he wishe[d] to plead guilty and avoid the costs of trial, provided he [were] able to secure appellate review of the ruling on the motion to suppress and to withdraw his plea if he prevail[ed] on appeal.’ He argued that ‘the outcome of the trial is a fait accompli, effectively determined by the suppression ruling.’ The Commonwealth … would not agree to a conditional guilty plea…. [The] judge stayed the trial date and reported … the following question: ‘To avoid a trial that is otherwise only required to preserve appellate review of the denial of a dispositive pretrial motion, may the Superior Court, with the Commonwealth’s agreement or over the Commonwealth’s objection, accept a defendant’s guilty plea and sentence the defendant expressly conditioned on [the] defendant’s rights to appeal the denial of the specific dispositive pretrial motion and to withdraw his/her plea if defendant prevails on appeal?’” Continue reading →

In Commonwealth v. Woods, the Supreme Judicial Court affirmed the denial of the defendant’s motion for a new trial.  The Court ruled that even if the defendant was a target of the grand jury investigation in this case, the Commonwealth was not obligated to warn him as to that status or to inform him of his Fifth Amendment right against self-incrimination.

The background was as follows. “In 2009, the defendant was convicted of murder in the first degree…. On direct appeal, he challenged the admission of his grand jury testimony …[,] arguing that it was illegally obtained, because he was not informed before testifying either that he was a target of a grand jury investigation, or that he had a right against self-incrimination. [In response, the SJC] concluded that the trial judge did not err in finding that the defendant was not a target of the grand jury … and affirmed his conviction. See Commonwealthv. Woods, 466 Mass. 707, 709, 716-720, cert. denied, 134 S.Ct. 2855 (2014) (Woods I).” The Court “added that ‘[e]ven if the defendant were a “target,” the Commonwealth was under no obligation to warn him of that status’ under Federal or State law. Id.[, 466 Mass.] at 717.” “[T]he Court also announced a prospective [nonconstitutional] rule, pursuant to its superintendence authority, requiring that grand jury witnesses who are targets or likely targets of a criminal investigation be given self-incrimination warnings before testifying…. Following Woods I, the defendant moved for a new trial, contending that facts not before the trial judge or this court during his direct appeal establish that the defendant was a target of a grand jury investigation; accordingly, the defendant argued, his grand jury testimony was improperly admitted, and he deserved a new trial. The motion judge, who was not the trial judge, disagreed, concluding that although the new facts raised in the defendant’s motion establish that he was a target of the investigation, [the SJC’s] holding in Woods I‘was not dependent on the finding that the defendant was not a target.’ The defendant then filed a petition before a single justice of the [SJC] pursuant to G.L. c.278, §33E, asking that his appeal from the denial of his motion be considered by the full Court. The single justice granted the petition.” Continue reading →