Law Commentary

Published on: December 23, 2017

SJC Rules Admission of Propensity Evidence Improper But Not a Miscarriage of Justice

In Commonwealth v. Vasquez, the Supreme Judicial Court ruled that although the judge erred in admitting evidence of prior misconduct by the defendant that resembled his conduct in the present case, the error did not create a substantial likelihood of a miscarriage of justice.

The background was as follows. “[T]he defendant drove up to a group of people and began arguing with some of them. The victim approached the automobile and attempted to defuse the situation, saying, ‘It[‘s] me, JM, it’s me, your brother.’” “The defendant responded, ‘[J]ust get the fuck off my window,’ and drove away.” He “returned … five minutes later and continued to argue with some of those present. The victim, who again approached the automobile and leaned into the driver’s side window, tried once more to calm down the defendant. Suddenly, the defendant reached out, shot the victim at close range, and drove away.” “A witness testified that, approximately one month before the shooting, [he] observed the defendant engage in a verbal argument with a third individual and then leave the area. The defendant returned approximately twenty or thirty minutes later and displayed what appeared to be the … handle of a semiautomatic firearm underneath his shirt when asking for the whereabouts of the individual with whom he had argued.” On appeal, the defendant argued, in regard to his display of a weapon during the prior incident, “that the probative value of this ‘propensity’ evidence was substantially outweighed by its prejudicial effect, and that its introduction require[d] a new trial.” Continue reading →

Published on: December 22, 2017

SJC Holds Warrantless Search Conduction Outside of Officers’ Territorial Jurisdiction Unlawful

By Daniel Cappetta

The Appeals Court recently issued a decision in Commonwealth v. Luna reversing the trial court’s denial of the defendant’s motion to suppress items seized during the warrantless search of his vehicle. The reversal was based on the ground that “the Springfield police exceeded their territorial jurisdiction” by conducting the search in Chicopee.

The basic facts were as follows. A Springfield police officer (Bruno) was told by a confidential informant that the defendant would make a delivery of heroin in East Springfield at a specified place and time. “According to the informant, [the defendant] would be driving a black Mini Cooper automobile, and the informant provided the license plate number.” The police possessed information that the defendant had residences at the Toll House Apartments in West Springfield and at 122 Beauregard Terrace in Chicopee. Two hours before the time of the predicted drug delivery, “surveillance officers observed the defendant … leave the Toll House Apartments, place two large plastic containers in the back seat of the Mini Cooper, and drive it to 122 Beauregard Terrace in Chicopee. There, the defendant approached a red Honda automobile parked at the end of the driveway, opened the trunk with a key, and retrieved a black plastic bag the size of a softball. He then reentered the Mini Cooper and drove in the direction of East Springfield. The police followed in unmarked vehicles. When the Mini Cooper was within approximately two miles of the [location of the anticipated transaction], the defendant began driving in an erratic manner,” as if he “was attempting to determine if he was being followed. The police stopped the Mini Cooper…. Bruno removed the defendant and conducted a patfrisk for weapons. He felt a large bulge in the defendant’s pocket, which he recognized … as packets of heroin. He then removed a black bag from the defendant’s pocket, which appeared to be the one he had observed the defendant remove from the trunk of the red Honda…. Bruno also removed a set of Honda car keys … from the defendant’s person. The defendant was arrested…. Bruno and other officers returned to 122 Beauregard Terrace in Chicopee, arriving within ten to fifteen minutes of the defendant’s arrest,” and “entered the Honda using the keys obtained from the defendant. Several bricks of heroin and a firearm were seized from the trunk.” After the return of indictments against the defendant, he moved to suppress the items seized from the Honda. The judge denied the motion. Continue reading →

Published on: December 10, 2017

Appeals Court Finds Warrantless Entry Jusitified Under Emergency Exception

By Daniel Cappetta

In Commonwealth v. Arias, the Appeals Court reversed the trial judge’s allowance of the defendant’s motion to suppress and held that the warrantless entry by the police into the apartment building where the defendant resided was justified under the emergency aid doctrine.

The basic facts were as follows. “[T]he Lawrence police department received a 911 call from a woman who reported that as she was walking down the street, she saw two ‘Spanish guys’” with a semiautomatic weapon and that “she heard one of the men ‘load the gun’ before entering the apartment building at ‘7 Royal Street.’…. The woman gave a description of the men to the 911 dispatcher,” who then radioed it to officers on patrol: “‘two Hispanic males enter[ing] a house, one in a gray jacket, [and] one in a black jacket’ while one of the males was loading a gun. During this same ‘time frame,’ the Lawrence police department was investigating ‘a rash of home invasions’ ‘[a]round this [Royal Street] area.’” Officers responding to the dispatch “discovered a four-unit apartment building with the address of 5-7 Royal Street…. [T]wo units were located on the first floor (apartment 5A and apartment 7A)…. At the back of the building, there was a porch with two rear doors.” Sergeant Cerullo went to the rear of the building and there “saw a ‘Hispanic male with facial hair’ exit the left rear door of the porch area. The man, later identified as the defendant, was ‘wearing a black and gray sweater’ and was moving ‘quickly and with purpose.’ …. Cerullo shouted, ‘Lawrence Police’ and commanded, ‘Show me your hands.’ The defendant appeared ‘shocked’ and quickly retreated back into the building, ‘closing the door behind him.’ …. Cerullo attempted to follow him, but the door was locked. At this time, [another officer] was positioned at the front of the building. He knocked on the door of apartment 5A, but there was no answer. He also knocked on the door of apartment 7A and spoke with the residents of that unit.” They were unable to provide any information about the occupants of apartment 5A. “The police then decided to forcibly enter apartment 5A out of concern that a home invasion was taking place and that there were ‘possible armed subjects inside, as well as victims.’…. When the police entered through the front door of the apartment, they found no one inside. During the protective sweep, they observed in plain view: narcotics, a scale, and ‘thousands’ of plastic bags on the floor. Still in pursuit of any potentially armed subjects or victims, the officers went down an interior back stairway, where they found the defendant and two other men hiding in a storage area in the basement.” After the return of indictments against the defendant, he moved to suppress the fruits of the warrantless entry into his apartment. The judge allowed the motion, rejecting the Commonwealth’s contention that the police were entitled to enter the apartment under the emergency aid exception to the warrant requirement. Continue reading →

Published on: December 5, 2017

SJC Rules Trial Error Admitting Evidence of CODIS Match Harmless

By Daniel Cappetta

The Supreme Judicial Court recently issued a decision in Commonwealth v. Sullivan affirming the defendant’s conviction of first degree murder, despite the fact that testimony about an apparent match between DNA from the crime scene and the defendant’s DNA profile in the CODIS database should not have been admitted.

The background was as follows. The victim was shot to death during an armed home invasion. “Investigating officers seized a number of items from the crime scene…. [A] State police chemist conducted DNA testing of swabs taken from [those items]. She uploaded the profiles into the [national] CODIS database to search for a match. The DNA on [three of the items] matched the defendant’s DNA profile. Based on these results, police obtained a buccal swab from the defendant, which was submitted to the State police crime laboratory for DNA testing. A different State police chemist determined that the DNA on the [seized items] matched the defendant’s DNA.” In his appeal, “[t]he defendant contend[ed] … that testimony that DNA taken from items found at the crime scene matched his DNA profile in the CODIS database was inadmissible hearsay and a violation of his right to confrontation.” Continue reading →

Published on: November 30, 2017

SJC Rules New Trial Necessary Where Question of Sleeping Jurors Raised

By Daniel Cappetta

The Supreme Judicial Court recently issued a decision in Commonwealth v. Villalobos, which addressed issues related to sleeping jurors. The SJC reversed the defendant’s convictions because the judge failed to respond adequately to a report that two jurors had been asleep during portions of the trial.

The background was as follows. In a split decision, the Appeals Court affirmed the defendant’s convictions. The SJC noted that “[t]he issue that divided the Appeals Court was the trial judge’s failure to conduct a voir dire (http://dictionary.findlaw.com/definition/voir-dire.html) after the prosecutor reported that some jurors fell asleep during the trial. The SJC stated, “‘[I]f a judge receives a complaint or other information suggesting that a juror was asleep or otherwise inattentive, the judge must first determine whether that information is “reliable.”’ [Commonwealth v.] McGhee, [470 Mass. 638,] 644 [2015]…. If … the judge does find the information reliable, he or she ‘must take further steps to determine the appropriate intervention.’ [Id.] ‘Typically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror “remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.”’ Id., quoting Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). The judge has ‘substantial discretion in this area.’” On appeal, “‘[t]he burden is on the defendant to show that the judge’s response to information about a sleeping juror was “arbitrary or unreasonable.”’ McGhee, supra, quoting [Commonwealth v.] Beneche, [458 Mass. 61, 78 (2010)].” Continue reading →

Published on: November 25, 2017

Appeals Court Rules Drug Dealer Profiling Evidence Admissible

By Daniel Cappetta

In a recent decision – Commonwealth v. Smith – the Appeals Court affirmed the defendant’s conviction of possession with intent to distribute cocaine, the Appeals Court rejected the defendant’s contention that the testimony of a police expert on drug use and distribution “was admitted improperly because it was based on hearsay and profiling characteristics of drug sellers and users.”

The background was as follows. Police officers in a narcotics unit were conducting surveillance when they observed a “Volvo driving slowly” “back and forth through [an] intersection, [before coming] to a stop in the parking lot of a nearby liquor store that was closed…. A few minutes later, the officers saw the defendant” approach the Volvo and get into the front passenger seat. “About one minute later, the Volvo drove out of the parking lot” and travelled “a short distance from the original pick up location; the defendant got out of the car there. [Detective] Mercurio drove his unmarked police car past the Volvo,” stopped near the defendant, “and identified himself as a police officer; the defendant then stepped back and started running down the driveway of a house.” “Mercurio chased the defendant down the driveway, and observed the defendant’s hands go to the front of his pants as he was running…. As soon as the defendant turned the corner of the house, Mercurio lost sight of him.” After another officer detained the defendant, “Mercurio … went back to the area behind [the house] where he had lost sight of the defendant …; he found a clear plastic bag containing two rocklike substances that were individually wrapped ‘inside the corner of a bag and it was tied in a knot at the top.’ Approximately three feet away, another officer found ‘a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped off-white colored rocklike substances.’…. The bags were tested and the substance was determined to be cocaine. At trial, an officer who had not participated in the investigation, Detective Keating, testified as an expert, based on his training and experience, regarding illegal drug distribution and drug use. Keating provided for the jury an overview of the consistency and street cost of crack cocaine generally in the [local] market…. He explained that the most common packaging of crack cocaine for street sales is for the ‘rock [to] be placed in the corner of a baggy, twisted, tied off and that’s how it’s individually wrapped’; the individual packets are then generally ‘held in one big sandwich bag.’” Keating opined that “the amount of drugs possessed by the defendant [and its packaging in fifteen individual bags] was not consistent with personal use but was consistent with an intent to distribute.” Continue reading →

Published on: November 24, 2017

Massachusetts Sentencing Commission Makes Changes to Sentencing Guidelines

By Daniel Cappetta

The Massachusetts Sentencing Commission recently approved a series of changes to the Massachusetts Sentencing Guidelines. The general formula (criminal history and offense level) for calculating a sentence range has remained the same, but the new guidelines have a number of major changes. The key changes are as follows:

The Commission recommends that judges and lawyers consider the disparate racial, ethnic, and socioeconomic impact of the criminal justice system and give careful attention to increasing and widespread concern that the system is unfair to people of color and the poor;
The Commission cautions judges and lawyers on the use of the guidelines for juveniles and emerging adults, advising that the Guidelines are not suitable for application to juveniles, and suggesting that considerations of adolescent brain development may be important to the sentencing of young “adults;”

Continue reading →

Published on: November 10, 2017

Appeals Court Decision Affirms Negligent Operation Conviction on Minimal Evidence

By Daniel Cappetta

In a recent Appeals Court decision, Commonwealth v. Ross, the Appeals Court ruled that the evidence was sufficient to support the defendant’s conviction of negligent operation of a motor vehicle.

The background was as follows. At 9:50 p.m., a police officer observed the defendant driving his vehicle at a high rate of speed on “a public two-lane road with narrow, unpaved shoulders and no breakdown lane. The road is lined by trees, telephone poles, and residential fences along where the incident occurred. The officer testified that the speed limit was thirty-five miles per hour. Using radar, [he] determined that the defendant was travelling at fifty miles per hour. The officer activated his police cruiser’s lights, and the defendant promptly pulled over to the side of the road. The officer observed that the defendant was the driver and noticed two … passengers in the [vehicle]. When the defendant lowered the driver’s side window, the officer ‘immediately detected … a strong odor of an alcoholic beverage’ and observed that the defendant’s eyes appeared ‘very glossy.’ The officer asked the defendant to get out of the vehicle and then performed three field sobriety tests on him.” “The officer testified that, in his opinion, the defendant failed to perform two [of the] tests satisfactorily, and failed to perform [the] third test ‘[a]s instructed.’” Also, “[w]hile conducting the sobriety tests, the officer observed that the defendant … spoke in ‘thick,’ slurred language; and … emitted the smell of alcohol as he spoke.” “The defendant ultimately was tried by a jury on a complaint charging him with (1) operating a vehicle while under the influence of intoxicating liquor (OUI) … and (2) negligent operation of a motor vehicle. The jury acquitted the defendant of OUI and convicted him of negligent operation.” Continue reading →

Published on: October 20, 2017

Appeals Court Denies Motion to Dismiss Under “No Fix Statute”

By Daniel Cappetta

In Commonwealth v. O’Leary, a divided panel of the Appeals Court reversed the trial court judge’s order “dismissing a multiple-count indictment [which charged the defendant with various motor vehicle offenses] on the ground that the police failed to make a timely delivery of the citation pursuant to G.L. c.90C, §2.”

The background was as follows. The defendant was involved in a motor vehicle accident when the vehicle “he was driving left the highway, hit an exit sign, and rolled over five times.” The defendant and his passenger were seriously injured and were transported by ambulance to a hospital. A state trooper (Gray) “followed the ambulances to the hospital. When he arrived at the emergency room, he left his citation book in his patrol vehicle…. Gray … spoke with the defendant. Gray noticed that [the defendant’s] eyes were glassy and his speech was slurred. [Gray] also noticed the odor of alcohol coming from the defendant. The defendant told Gray he had had ‘a couple of beers.’…. At the time of the accident, the defendant was on probation for operating under the influence of alcohol, subsequent offense. His license was suspended and he was not legally permitted to drive…. Gray told the defendant he would be receiving ‘a criminal summons in the mail.’ Gray’s intent was to complete his investigation, file his report with his supervisor, and then send a citation to the defendant. After filing his report with his supervisor, Gray waited nine days for the report to be approved. Once it was approved …, it was mailed to an address on file with the State police. Due to an incorrect zip code, however, it was another five or six weeks before the defendant received the citation in the mail.” After the return of indictments charging the defendant with operating while under the influence of alcohol, negligent operation, and operating with a suspended or revoked license, the defendant filed a motion to dismiss, which was allowed. Continue reading →

Published on: October 15, 2017

SJC Rules In Court Identification Permissible If Out of Court Identification is Unequivocal

By Daniel Cappetta

In Commonwealth v. Dew, the Supreme Judicial Court affirmed the defendant’s conviction of masked armed robbery, ruling that the judge properly admitted evidence of the victim’s out-of-court show-up identification of the defendant, and concluding concluded that the judge properly allowed the victim to make an in-court identification of the defendant. Regarding the latter holding, the Court rejected the defendant’s contention that “all in-court identifications preceded by out-of-court show-up identification procedures” should be precluded because show-up identifications are inherently suggestive.

The basic facts were as follows. On the date in question, “the victim, a pizza delivery driver, telephoned 911 to report that he had been robbed at knifepoint” by a black male on a street in Brockton. A police officer (Abrahamson) “responded to the scene and spoke to the victim. Abrahamson immediately drove” to the apartment of a man named Torres, “located a short distance away…. Abrahamson suspected, from previous interactions with Torres and the defendant, who is African-American, that the two might have been involved in the armed robbery. Torres’s mother allowed Abrahamson to enter the apartment. Once inside, Abrahamson found the defendant hiding in Torres’s bedroom…. Other occupants of the apartment informed Abrahamson that the defendant had left the apartment earlier in the evening” and “Torres’s mother told Abrahamson that she had overheard the defendant using his cellular telephone to order a pizza. Abrahamson brought the defendant and another person who had been in the apartment to the end of the driveway for a show-up identification…. The victim immediately identified the defendant as the robber. The show-up was conducted ‘[n]o more than thirty minutes, and perhaps less’ from the time that the victim reported the crime.” After the return of the indictment against the defendant, he filed a motion to suppress the show-up identification. The judge denied the motion. Later, the judge, invoking principles set forth in Commonwealth v. Collins, 470 Mass. 255 (2014), allowed the Commonwealth to present to the jury an in-court identification of the defendant by the victim because the show-up identification had been unequivocal. Continue reading →