Articles Posted in Law Commentary

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securicam-1243585-300x228In Commonwealth v. O’Neal, the Appeals Court reversed the denial of the defendant’s motion for a new trial on an indictment charging him with assault and battery by means of a dangerous weapon, because the Commonwealth failed to preserve a videotape of the incident.

The background was as follows. Police officers responded to reports of an altercation outside a bar. At the scene, the defendant “was yelling at” some other people. He was “unsteady on his feet, smelled of alcohol, and had slurred speech. Concluding that the defendant was intoxicated, the officers placed him into protective custody … and transported him to the police station…. Once at the station garage, the defendant was unwilling or unable to exit the cruiser. The officers therefore pulled him out of the vehicle, and placed him on the ground after he could not, or would not, stand. At that point, the officers radioed their supervisors inside the station for assistance, and they were brought a restraint chair to transport the defendant to the booking area. A restraint chair is designed to immobilize unruly detainees. It has a seat that is tilted so that … the person sitting there is lying back at an angle with his knees elevated above his hips. The chair has straps to be used to hold in place a detainee’s wrists, ankles, lap and shoulders. In this instance, however, the officers did not use the available straps to secure the defendant…. Instead, after placing him in the chair with his hands handcuffed behind his back, they left him that way for the trip into the station. According to the defendant, who testified at trial, this meant that his entire weight fell on his handcuffed wrists, causing him ‘excruciating pain.’…. The failure of the police to secure the defendant in the restraint chair appears to be at odds with a written policy that emerged only in postconviction discovery…. At least at one point during the trip from the garage to the booking area, the defendant’s [unsecured] foot … was hanging off the side of the chair,” thus “imped[ing] the movement of the chair…. [In response,] the police officers tilted the restraint chair back in order to keep [it] moving…. The defendant described the tilting of the chair as a sudden jerking that caused him to flail in it. He admitted that his foot came into contact with one of the officers, but he characterized it as an accidental ‘knee-jerk reaction’ to the sudden tilting of the chair. The officers described it as a … deliberate [and forceful] kick to the … stomach,” which the officer who was struck described as painful. On the basis of the alleged kick, the defendant was indicted for assault and battery by means of a dangerous weapon, a shod foot. Continue reading →

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3d-illustration-a-group-of-trunks-1412102-300x225In Commonwealth v. Hernandez, the Appeals Court affirmed the denial of the defendant’s motion to suppress a firearm seized by the police in the defendant’s apartment.  In its decision, the Appeals Court ruled that “the defendant’s coinhabitant … validly consent[ed] to a warrantless search of a closed, unlocked suitcase located in a common closet of a bedroom she shared with the defendant.”

The basic facts were as follows. A police officer (Stilwell) “responded to a call [regarding] a domestic threat at the defendant’s apartment, and was met by Flor Prudencio, the victim. Prudencio shared the one-bedroom apartment with the defendant and their three children…. Prudencio reported that approximately three weeks earlier, she and the defendant had had an argument about the custody of the children. During the argument, the defendant told Prudencio that ‘if he wasn’t able to see the children … he would shoot her and kill her.’ Prudencio went on to tell the officer that she was concerned because the defendant had access to a firearm. Prudencio then brought the officer into the apartment’s only bedroom, which she shared with the defendant and the children. The bedroom had … a single closet. Prudencio opened the closet door. Inside were men’s and women’s clothes, bags on the floor, and children’s items; some of the items were Prudencio’s…. Prudencio pointed to a suitcase on the top shelf of the closet, about five feet up; she stated that the defendant’s firearm was located in the suitcase…. Stilwell pulled the suitcase down…. [It] did not have a locking mechanism” and “[i]t did not have a name or tag on it…. Stilwell opened the suitcase in Prudencio’s presence. Prudencio stated that the firearm was inside a red ‘Huggies’ container within the suitcase. Inside the Huggies container … Stilwell found a loaded revolver and a ‘baggie’ of ammunition. He confiscated the weapon…. Prior to opening the suitcase, … Stilwell did not ask Prudencio to whom the suitcase belonged, nor did Prudencio state whose suitcase it was.” After the issuance of a criminal complaint charging the defendant with firearm offenses and a related offense, he filed a motion to suppress the revolver. The motion was denied. At the ensuing trial, the defendant was convicted on all charges. On appeal, he “acknowledge[d] that Prudencio actually consented orally and, moreover, that she had authority, as the defendant’s coinhabitant, to consent to a search of the apartment and of the closet. But he contend[ed] … that Prudencio’s authority did not extend to the closed, unlocked suitcase.”  Continue reading →

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gavel-2-1236453-300x200In a recent case – Commonwealth v. Grundman – the Supreme Judicial Court ruled that GPS could not be imposed as an additional condition of release approximately ten months after the defendant’s original sentencing hearing.

The background was as follows. The defendant pleaded guilty to several counts of rape of a child and was sentenced to a term of incarceration and a term of probation. “In open court, the clerk announced that the defendant’s sentence would be ‘subject to the terms and conditions of the probation department.’…. The clerk then announced … fifteen special conditions.” However, “[d]espite the provisions of G.L. c.265, §47, mandating that defendants convicted of certain sex offenses, including rape of a child, be subject to global positioning system (GPS) monitoring as a condition of any term of probation,” the clerk did not announce that condition. “Similarly, neither the judge nor the parties had mentioned a GPS monitoring condition during the sentencing hearing or the plea colloquy…. Shortly after sentencing, the defendant signed a probation contract stating that he was required to ‘wear a GPS … device in accordance with … c.265, §47.’ The probation contract was signed by a Superior Court judge different from the judge who sentenced the defendant. That judge’s signature was dated two days after the defendant’s sentencing hearing. The GPS monitoring condition was also memorialized on the docket. Approximately ten months after the defendant’s sentence was imposed, he filed a motion to remove the GPS monitoring condition from the docket, claiming it had been erroneously entered. Although the condition had not been announced at sentencing, the judge determined that he could correct this mistake because the defendant’s guilty plea to the rape of a child was subject to mandatory GPS monitoring as a condition of probation under [c.265,] §47. The judge then resentenced the defendant to include GPS monitoring as a special condition of probation.” Continue reading →

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bathroom-1532957-225x300In Commonwealth v. Drayton, the Supreme Judicial Court affirmed the allowance of the defendant’s motion for a new trial on a first-degree murder indictment, based on newly discovered hearsay evidence which the Court deemed admissible pursuant to a “narrow, constitutionally based exception to the hearsay rule.”

The background was as follows. The defendant was convicted of shooting the victim in the apartment of James Jackson. The Commonwealth’s case was based almost entirely on the testimony of Jackson, who said he saw the defendant shoot the victim. A year and a half after the trial, a woman named Debra Bell “came forward and stated in an affidavit that Jackson could not have witnessed the shooting because” at the time it occurred, he was with Bell in the bathroom of the apartment “‘smoking crack cocaine and engag[ing] in sexual acts.’” In her affidavit, Bell “stated that she was diagnosed with metastatic cancer” and that ‘[b]ecause of the uncertainty of [her] medical condition,’ she did not want the fact that she did not disclose what she knew about the shooting of [the victim] on her conscience.” She explained that in “her initial statement to police,” she had not revealed what she knew because “she was ‘afraid of the officers[]’ [and] ‘did not want to get involved in the case.’” “[Bell] died shortly after providing the affidavit [to the defendant’s counsel]. The defendant moved for a new trial on the basis that this affidavit was newly discovered evidence, but the trial judge denied the motion,” on the grounds that “the evidence was inadmissible [hearsay] and [that] impeachment evidence alone is ordinarily insufficient to obtain a new trial.” In response to the defendant’s appeal from that ruling, the SJC, in Commonwealthv. Drayton, 473 Mass. 23 (2015) (Drayton I), “remand[ed] the case for an evidentiary hearing on the motion … to determine whether ‘[Bell’s] affidavit falls within a narrow, constitutionally based exception to the hearsay rule, which applies where otherwise inadmissible hearsay is critical to the defense and bears persuasive guarantees of trustworthiness.’ [Id.] at 25. On remand, the judge determined that [Bell’s] affidavit fell within the exception and granted the defendant’s motion for a new trial. The Commonwealth appealed.” Continue reading →

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newspaper-1529884-300x191The Appeals Court affirmed the revocation of the defendant’s probation in Commonwealth v. Pereira, rejecting the defendant’s argument that the judge abridged “the defendant’s free speech rights under the Federal and State constitutions when he found that she had violated the no-contact condition [of her probation] by making statements about the victim in an article published in a newspaper.”

The background was as follows. In July, 2015, “the defendant pleaded guilty to … larceny over $250, involving embezzlement from her brother’s … construction business in Brockton, where she had worked as a bookkeeper…. The judge sentenced [the defendant] to five years of probation, with [a] condition[], among others, that she … stay away from the victim’s residence and place of employment, and have no ‘direct or indirect contact’ with him, his wife, or their children…. The defendant signed, thereby agreeing to obey, the order of probation conditions…. [A month later], [she] was issued a notice of surrender and hearing for alleged violations of probation[,] … [including] violation of the no-contact condition.”

At the final probation revocation hearing, there was testimony (1) “that after the defendant had pleaded guilty, the victim had made comments about her, including that she was a ‘scum bag,’ in an article about the case that appeared in the Enterprise [a newspaper with wide circulation in the Brockton area] on July 17”; and (2) that “[o]n July 28, a second article appeared in the Enterprise, stating that the defendant had called the newspaper to say, among other things, that she ‘“covered up” things for [the victim] while she was a bookkeeper for his company’ and that she had ‘enough evidence against him that will probably put both of us in jail’…. The victim testified that he had read this article and had interpreted the defendant’s comments as ‘threats that she had information that she was going to put [him] … in jail.’ The victim explained that seeing the article had [had a negative effect on] him emotionally.” In closing argument at the hearing, defense counsel “assert[ed] that the defendant had a constitutional right to make comments about the victim in the newspaper, in order to defend her reputation against his prior remarks about her in the same newspaper. The judge rejected the defendant’s free speech argument and found that she had violated the no-contact condition of her probation by ‘issuing [the victim] a threat.’…. Consequently, he vacated the order of probation” and imposed a term of incarceration. On appeal, the defendant contended “that her statements to the newspaper, because they did not constitute a constitutionally unprotected ‘true threat,’ could not be viewed as violating the no-contact condition.” Continue reading →

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calendar-1192688-300x231In Commonwealth v. White, the Supreme Judicial Court reversed the single justice’s order reinstating the defendant’s direct appeal forty-five years after his conviction of first-degree murder; and (2) authorized White to challenge his conviction by means of a motion for a new trial under special conditions.

The background was as follows. In 1972, “White and [a] codefendant … were each convicted of two counts of murder in the first degree and [a related offense.]” The SJC affirmed the codefendant’s convictions on direct appeal. However, “White’s direct appeal was never properly perfected, … although he did at various times make efforts toward that end, sometimes pro se and sometimes represented by counsel. Among other things, his counsel filed a petition with a single justice of [the SJC] for late filing of an … appeal in … 1974, which was allowed. But it appears that the appeal was never actually entered, and that no further action was taken to prosecute the appeal for an additional eighteen years when, in … 1992, White, through new counsel, [unsuccessfully sought] an order [from the single justice] directing the Superior Court clerk to transmit the record to [the SJC] so that [White] could pursue his direct appeal. Then, in July, 2014, White filed, again with a single justice, a pro se motion for leave to file a late notice of appeal, and, in September, 2014, a pro se petition pursuant to G.L. c.211, §3, to reinstate his direct appeal. Counsel was appointed to represent White on these matters…. [T]he single justice eventually allowed White’s petition to reinstate his direct appeal in … 2016. She also allowed his motions to file a late notice of appeal and to appoint appellate counsel for purposes of the reinstated direct appeal.” The Commonwealth appealed. Continue reading →

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gavel-1238036-300x201In Commonwealth v. Wilbur W., the Supreme Judicial Court affirmed a juvenile defendant’s adjudication as delinquent for having committed statutory rape, rejecting the juvenile’s contention “that this was a case of juvenile experimentation among peers rather than a case of sexual abuse.”

The background was as follows. At the time of the incident in question, the victim was eight years old and the juvenile was twelve years old. The boys’ families lived in the same neighborhood and the boys were friends. During a sleepover at the victim’s home, “[t]he juvenile instructed the victim to ‘pull down [his] pants’ so that [the juvenile] could put his ‘penis’ in the victim’s ‘butt.’ The victim was ‘shivering’ and ‘scared.’…. The juvenile pulled down his own pants, and told the victim to put his mouth on the juvenile’s penis. The victim complied for ‘two seconds’ because the juvenile was ‘bigger,’ and [the victim] was afraid of what the juvenile would do to him. The juvenile then inserted his penis in the victim’s ‘butt.’…. The victim revealed the occurrence of the incident to his family the next day. The defendant was charged with rape of a child with force and at the trial, “[t]he jury returned delinquency findings on the lesser included offense of statutory rape.” On appeal, the defendant contended (1) “that his adjudication of delinquency violate[d] his right to [substantive] due process … because the Legislature did not intend to impose strict liability [for statutory rape] on a person below the age of sixteen,” who “ha[d] limited capacity to make reasoned choices or to understand the consequences of his or her behavior”; (2) that the statutory rape statute (G.L. c.265, §23) “fosters arbitrary and discriminatory enforcement and is therefore void for vagueness” under the due process clause of the Fourteenth Amendment; and (3) “that he was unfairly selected for prosecution in violation of his right to equal protection under the law.” Continue reading →

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cargo-plane-2-1563260-300x199In a recent decision – Commonwealth v. Cruz– the Appeals Court reversed the defendant’s convictions of two counts of indecent assault and battery on a child, subsequent offense, because “there was insufficient evidence to support his convictions.”

The background was as follows. The complainant (Jane), “a thirteen year old girl, was an intern at an aviation company…. While she was working one day, the defendant, an almost sixty year old man who she had met before at the airport, waved her over to him. After a brief conversation, the defendant told her he would like to get her a gift for her upcoming birthday. He said that he would like to give her a hug, but that they should do it in another room. Jane went into a nearby hallway for a while, and waited, then returned to work after a couple of minutes. When she later saw him again in the airplane hangar, she asked if the defendant still wanted the hug, and he hugged her briefly around the shoulders. The defendant then asked if Jane wanted another hug, and said that they should go into another room. He led her to a separate room, with no one else present. He gave her a second hug, a little tighter, with a kiss on the neck…. The defendant then gave Jane a third hug without her permission, which was lower down, on her waist and hips. He held her ‘very tight … like a hug [she] would receive from [her] parents.’…. The defendant then stepped back with one hand grabbing her polo shirt at her right hip, ‘lifting it slightly,’ but not exposing or touching any of her skin. He also grabbed Jane’s hand. After starting to lift the shirt, he paused, and put it down.” Two indictments charging indecent assault and battery on a child were returned against the defendant, one based on the third hug and the other based on the lifting of Jane’s shirt. The defendant was convicted of both counts. Continue reading →

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supreme-court-1-1224507In a recent decision – Ramirez v. Commonwealth – the Supreme Judicial Court reversed the denial of the defendant’s motion to dismiss a complaint charging him with unlawful possession of a stun gun under G.L. c.140, §131J, because the statute’s “absolute prohibition against civilian possession of stun guns … is in violation of the Second Amendment.”

The background was as follows. The vehicle in which the defendant was riding as a passenger was stopped by the police and the subsequent patfrisk of the defendant revealed that he had a stun gun in his pants pocket. The defendant was charged with possession of the stun gun and other offenses. He then filed a motion “to dismiss the stun gun charge, arguing that … [the] criminal prohibition of the possession of stun guns by civilians [under c.140, §131J] violates the Second Amendment.” The motion was denied. “After the defendant petitioned for relief from the single justice pursuant to G.L. c.211, §3, and the Commonwealth joined the petition, the single justice reserved and reported the petition to the full [SJC].” Continue reading →

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calendar-1192688-300x231The Appeals Court affirmed the denial of the defendant’s motion to dismiss indictments charging drug offenses, in Commonwealth v. Polanco. In its decision, the Appeals Court ruled that the time that elapsed while the charges were pending in District Court should not be included in the speedy trial calculation under Mass.R.Crim.P. 36(b).

The background was as follows. In the course of a drug investigation in May, 2013, the police arrested the defendant. “On May 8, 2013, the Lowell District Court issued a complaint charging the defendant with several drug-related offenses and arraigned him [the] same day. After two months, a District Court judge dismissed the charges for failure to prosecute. Over one year later, on August 7, 2014, a Middlesex grand jury returned indictments arising from the same incident, charging the defendant with [the same offenses as those charged in the District Court complaint]. The defendant was arraigned in Superior Court on August 13, 2014. On October 30, 2014, the defendant moved to dismiss the charges, alleging a violation of rule 36(b).” The motion was “denied, the defendant was ultimately convicted of both charges by a jury,” and the defendant appealed.

In its decision, the Appeals Court stated, “Under rule 36(b)(1)(C), a defendant is entitled to dismissal if he is not brought to trial ‘within twelve months after the return day in the court in which the case is awaiting trial.’” “Because the case was awaiting trial in the Superior Court when the defendant moved to dismiss, the return date must be calculated from his August 13, 2014, arraignment in that court [not from the date of the defendant’s arraignment on the criminal complaint in District Court]. The Reporter’s Notes to Rule 36(b)(1) … are consistent with this conclusion, stating that, ‘if … the Commonwealth elects to proceed by direct indictment in a case commenced by complaint which is within the District Court’s jurisdiction[,] … the time limits of this rule begin anew upon the return day in the Superior Court.’” Continue reading →

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