Articles Posted in Law Commentary

In Commonwealth v. Crayton, the Appeals Court reversed the defendant’s convictions of possession of child pornography because the judge erroneously “deprived [the defendant] of eight peremptory challenges to which he was entitled during the first phase of the [bifurcated] trial.”

The background was as follows. A “grand jury returned two indictments charging the defendant … with possession of child pornography…. [Because] [h]e was charged as a subsequent offender …, he faced imprisonment for ‘not less than five years.’ G.L. c.272, §29C(vii).” “At the beginning of the first phase of the trial, the defendant requested twelve peremptory challenges, or more, depending on the number of jurors seated. Although the Commonwealth agreed that the defendant was entitled to additional peremptory challenges, the judge nonetheless denied the request and allotted each side six peremptory challenges for a jury of fourteen (twelve plus two alternates). The defendant objected and renewed his objection during the empanelment process when, after having exercised five peremptory challenges, he sought additional challenges to exclude Jurors 50, 61, and 48. [Defense] counsel’s reasons for wanting to exclude these three jurors were as follows. Juror 50, a Baptist minister, hesitated when asked whether he would be willing to look at the evidence in order to decide whether it constituted pornography…. Juror 61 worked” as a university librarian, which was of concern to counsel because the charged “offenses allegedly occurred in a library…. Lastly, as to Juror 48, … counsel observed that the juror’s brother was a law enforcement officer and, although Juror 48 ultimately stated that he would not believe a police officer over another witness, he also stated that he trusted his brother…. [C]ounsel … [stated] that she would exclude all three jurors if she could. The defendant then used his sixth and last peremptory challenge to remove Juror 50, the Baptist minister. Jurors 61 and 48 remained seated. When the judge asked the parties whether they were content with the jury, … counsel stated, ‘I don’t have any more challenges’” and “requested extra challenges.”

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In Commonwealth v. Alden, the Appeals Court affirmed the defendant’s conviction of intimidating a witness, ruling that the prosecutor’s cross-examination of the defendant was not improper even though it referred to facts that were not in evidence.

The background was as follows. “The victim in the case, E.B., was the defendant’s former girl friend…. In January, 2015, there was a criminal case pending against the defendant, in which E.B. was a potential witness. On January 19, 2015, E.B. reported to the police that she was receiving threatening text messages from someone she believed to be the defendant. The messages were received from the telephone number E.B. had used to communicate with the defendant by text messages and telephone calls every few days for over one year. The messages threatened that, if E.B. ‘went to court[, she would] be sorry[,] and that [the defendant] would have people come after [her]….’ More specifically, ‘[o]ne of [the messages] told [E.B.] to keep her hoe ass mouth shut. [Another] implied that she should kill herself….’ An additional text message stated that E.B. should ‘leave their personal stuff out of the courtroom and that if she opened her mouth it’d be … the biggest mistake she ever made.’ E.B. believed the text messages referred to her role as a witness in the [defendant’s pending] criminal case.”

Prior to his trial, the defendant filed a motion in limine seeking to exclude the text messages on the ground that “the evidence was not sufficient to authenticate [the messages] as having been authored by him. The judge … [ruled] that the Commonwealth had established by a preponderance of the evidence that the text messages were authentic.” At the trial, “[t]he defendant denied sending the threatening text messages to E.B.” “[He] testified that at the time the … messages were received by E.B., he … had been living with his aunt for ‘[a] couple of months.’ The defendant and his mother testified that the cellular telephone … associated with the number from which the … messages were received was not owned by the defendant. According to the defendant, his aunt had purchased the cell phone, but it was shared with the defendant and at least six other people who lived at his aunt’s residence,” including “his new girl friend [who] did not like E.B.” “At the close of cross-examination of the defendant, the prosecutor posed to the defendant a series of ten questions, each asking whether the defendant had sent a particular text message. Each question incorporated the exact language of the text message.” “For example, the prosecutor asked, ‘[D]o you deny saying, “I hope you kill yourself, bye-bye?”’” “In each instance, the defendant denied sending the text message. On appeal, the defendant claim[ed] that this line of cross-examination improperly relied on facts not in evidence.” Continue reading →

The U. S. Supreme Court recently ruled in Lagos v. United States that ruled that the Mandatory Victims Restitution Act of 1996 requires the restitution of expenses incurred during a victim’s participation in government proceedings, as opposed to proceedings conducted by the victim.

The background was as follows. Petitioner Lagos “was convicted of using a company that he controlled (Dry Van Logistics) to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved generating false invoices for services that Dry Van Logistics had not actually performed and then borrowing money from GE using the false invoices as collateral. Eventually, the scheme came to light. Dry Van Logistics went bankrupt. GE investigated. The Government indicted Lagos,” who “pleaded guilty to wire fraud. And the [federal District Court] judge, among other things, ordered him to pay GE restitution” pursuant to the Mandatory Victims Restitution Act of 1996. That act “requires defendants convicted of a listed range of offenses to ‘reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.’ 18 U.S.C. §3663A(b)(4) (emphasis added).” The judge’s restitution order included a requirement that Lagos “reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in Dry Van Logistics’ bankruptcy proceedings. The [expenses] primarily consist of professional fees for attorneys, accountants, and consultants. The Government argued that the District Court must order restitution of these amounts under the Mandatory Victims Restitution Act because these sums were ‘necessary … other expenses incurred during participation in the investigation … of the offense or attendance at proceedings related to the offense.’ §3663A(b)(4). The District Court agreed, as did the … Fifth Circuit.” Lagos sought certiorari. Continue reading →

The SJC vacated the defendant’s stalking conviction in Commonwealth v. Torres because the judge erred (1) by denying the defendant’s motion pursuant to Mass. R. Crim. P. 17 for production of records in the Attorney General’s office pertaining to the complainant’s application to the victim compensation program; (2) by giving the jury confusing instructions on an element of stalking; and (3) by redacting exculpatory information from the complainant’s dental records.

The background was as follows. The alleged crime occurred in the context of the deterioration of the romantic relationship between the defendant and the victim. “The complainant testified at trial that the defendant physically and verbally abused her during their relationship.” On the particular date in question, the defendant “grabbed her, pushed her up against a closet, and head-butted her between her nose and mouth. She said that her teeth broke as a result of this action…. The complainant … applied for victim compensation, through the Attorney General’s office,” pursuant to G.L. c.258C, §2(c), “to pay for the cost of having her teeth repaired.” The defendant was charged with nine offenses, including stalking. Prior to trial, upon learning that the complainant had applied to the Attorney General’s victim compensation program, the defendant sought access to records in the Attorney General’s office pertaining to that matter. The defendant sought the records “as mandatory discovery [under Mass. R. Crim. P. 14], and, in the alternative, as third-party records, pursuant to Mass. R. Crim. P. 17 … and the procedures [set forth in] Commonwealthv. Dwyer, 448 Mass. 122, 145-146 (2006). The judge concluded that the records could not be produced or disclosed to the defendant because the Attorney General’s regulations [940 Code Mass. Regs. §14.09] mandated that such records be kept confidential.” Eventually, the defendant was convicted of only one offense, stalking.

In its response to the defendant’s first appellate claim, the SJC ruled that the judge erred in denying the defendant’s rule 17 motion on grounds of confidentiality, because, in the Court’s view, “whether records are confidential does not affect whether they are discoverable…. Rather, confidential records, such as those in a victim compensation fund file, are subject to normal discovery rules.” The Court opined that “[t]he denial of the defendant’s request for records under rule 17 prejudiced him. The defendant established that the records … were relevant to” the complainant’s credibility and potential bias, which were probably significant issues for the jury. The judge’s ruling interfered with the defendant’s due process right to explore those issues by cross-examining the complainant on the subject of her request for financial compensation. (The Court also opined that “the records in the Attorney General’s files are not subject to mandatory disclosure under rule 14” because they “‘are not within the control of the prosecution….’ Commonwealthv. Lampron, 441 Mass. 265, 268 n.4 [2004].”) Continue reading →

The Supreme Judicial Court reversed the defendant’s conviction of unlawful possession of a loaded firearm, G.L. c.269, §10(n), in Commonwealth v. Brown because the evidence was insufficient to prove that the defendant knew that the firearm discovered by the police in the vehicle driven by the defendant was loaded.

The background was as follows. A state police trooper (Moran) stopped a vehicle the defendant was driving … for a defective rear brake light. There were two passengers in the vehicle.” Moran determined that because the driver’s licenses of the defendant and [one of the passengers] were suspended and “because [the other passenger] did not have a … license, the vehicle would have to be towed from the highway, as none of the occupants legally could drive it. In preparation for towing, Moran conducted an inventory search of the vehicle,” in the course of which he “discovered a handgun loaded with five rounds of ammunition in the console between the rear passenger seats.” “The defendant was convicted of unlawful possession of a firearm in a vehicle [c.269, §10(a)] and unlawful possession of a loaded firearm in a vehicle [c.269, §10(n)].” “In his appeal…, [he] challenged the sufficiency of the evidence to sustain the conviction under G.L. c.269, §10(n), arguing that the Commonwealth was required [but failed] to prove that he knew the firearm was loaded.” Continue reading →

The Supreme Judicial Court affirmed the defendant’s conviction for first degree murder in Commonwealth v. Seino, despite the erroneous admission of hearsay evidence through the testimony of substitute expert witnesses.

The background was as follows. The day before the victim was killed, “the defendant’s roommate warned [him] that he would be asked to move out [of their shared apartment] if he did not pay the total amount that he owed by the following day.” That evening, the defendant spent time at a local bar. Also at the bar was the victim, who “appeared to be drunk … and ‘flaunt[ed]’ [a large sum of cash] such that one of his friends urged him to ‘put [it] away.’” The defendant left the bar at 12:30 a.m. “The victim left the bar when it closed” at 1:00 a.m. At 1:30 a.m., the defendant gave his roommate the overdue rent money. At 7:00 a.m., “[t]he victim’s lifeless body was discovered” at an outdoor location “with contusions to his nose and the back of his head. Although his wallet was still on his person, most of the cash he had had was missing. Investigators took samples from the defendant’s clothing, including a snippet from the left front jeans pocket and a snippet from the front of the victim’s shirt, both of which had bloodstains. The DNA extracted from the jeans pocket sample was a mixture that matched the DNA profiles of both the victim and the defendant. The DNA extracted from the bloodstain on the victim’s shirt matched the profile of the defendant alone. The defendant, who testified at trial, offered weak alibi evidence.” On appeal from his convictions of first-degree murder and armed robbery, he contended that his constitutional right to confront witnesses was violated by the admission of substitute expert testimony regarding the DNA test results. Continue reading →