Articles Posted in Law Commentary

In Commonwealth v. Brown, a unanimous Supreme Judicial Court, pursuant to its authority under G. L. c.278, §33E, reduced the defendant’s conviction of first degree felony-murder to second degree murder, and a majority of the Court ruled “that the scope of felony-murder liability should be prospectively narrowed, [such] that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.”

The background was as follows. On the evening of the incident in question, “the defendant was a passenger in a [vehicle] that was being driven around [a] section of Lowell. The other occupants of the vehicle were [three of the defendant’s] friends,” Hernandez, Hill, and Doby. Hernandez, the driver, parked the car. [He and] Hill … got out of the vehicle and Hernandez removed a firearm from the trunk.” “[W]hile the defendant and Doby waited in the vehicle,” Hernandez and Hill confronted two women who were walking down the street. “Hill stood and watched from a few feet away as Hernandez, gun in hand, grabbed [the women’s] purses. The two men returned to the vehicle, and Hernandez drove away.” Later that night, at the defendant’s apartment, “Hernandez stashed the handgun he had used in the robbery (a nine millimeter pistol) in a kitchen cabinet.” Later, at around midnight, Jamal and Karon McDougal and a friend of theirs (Silva) visited the defendant’s apartment. In the defendant’s presence, “Jamal asked Hernandez if he wanted to participate in” a robbery and Hernandez agreed to do so. “Silva joined them as the getaway driver…. Hernandez retrieved his gun from the kitchen cabinet … and tucked it inside his waistband…. Hernandez asked the defendant for a hooded sweatshirt so that he could ‘hide his face.’…. The defendant gave Hernandez a … hooded sweatshirt…. Jamal and Karon also borrowed hooded sweatshirts from the defendant. Before leaving, Jamal asked to borrow the defendant’s ‘burner’ (gun)…. The defendant … gave Jamal a .380 pistol that had been stored underneath his bed.” Jamal, Karon, Hernandez, and Silva left the defendant at his apartment and drove to the townhouse where the two intended victims resided. Jamal, Karon, and Hernandez barged into the townhouse. In the ensuing chaotic altercation, the residents were shot to death. The intruders departed without taking any of the victims’ belongings. “Police recovered five nine millimeter cartridge casings from” the crime scene. The perpetrators drove back to the defendant’s residence where Hernandez talked about having shot the victims. “Jamal returned the defendant’s gun to him…. Within an hour of the shootings, Lowell police” “stopped [Hernandez’s] vehicle, arrested Hernandez and Hill, and found the gun Hernandez had used in the shooting hidden in the trunk.” A few days later, the defendant was interviewed by the police. He admitted that he had given his gun to the perpetrators and “that he believed they were going to rob someone, based on conversations that he overheard inside his apartment and the fact that Hernandez had robbed two women earlier that evening.” At the defendant’s trial, the Commonwealth’s theory was “that the defendant was liable as an accomplice to felony-murder because he supplied [the perpetrators] with a pistol and provided hooded sweatshirts to [them] to help them conceal their identities.” The defendant was convicted of two counts of first degree felony-murder and related offenses, “with the underlying offenses of attempted armed robbery and [armed] home invasion as the predicate felonies.” In his appeal, “[t]he defendant’s primary argument … [was] that the Commonwealth failed to produce sufficient evidence to prove that he … shared the intent of the other participants to commit” the underlying felonies. “The defendant contend[ed] also that [the SJC] should abolish the felony-murder rule” as unconstitutional. Continue reading →

In Commonwealth v. Perez, the Supreme Judicial Court reviewed a juvenile defendant’s sentence and ruled “that where a juvenile is sentenced for a nonmurder offense or offenses and the aggregate time to be served prior to parole eligibility exceeds that applicable to a juvenile convicted of murder, the sentence cannot be reconciled with art. 26 [of the Massachusetts Declaration of Rights] unless, after a hearing on the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478 (2012) (Miller hearing), the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder.”

The background was as follows. “In the early morning hours of December 23, 2000, the juvenile defendant, … who was then seventeen years of age, embarked on a crime spree…. Accompanied by his adult uncle and armed with a handgun, the defendant committed two robberies … within a span of thirty minutes. While attempting a third robbery, he shot the intended victim, a plain-clothed … police officer. In November, 2001, a Superior Court jury convicted the defendant of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and related firearms offenses.” “Before pronouncing sentence, the trial judge stated, ‘I recognize … that at the time of these offenses [the defendant] was only [seventeen] years old. And young men of the age of [seventeen] frequently do not have the maturity to make good judgments. But the law makes them responsible for their acts as adults, nonetheless.’” “The judge sentenced the defendant to multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one-half years, with parole eligibility after twenty-seven and one-half years. In 2015, after [the SJC’s] decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015)” — “declar[ing] unconstitutional G.L. c.265, §2, to the extent that it mandated a sentence of life in prison without the possibility of parole for a juvenile convicted of murder in the first degree” — the defendant filed a motion for resentencing under Mass. R. Crim. P. 30 (a).” In the motion, he “argu[ed] that [his] aggregate sentence … violated the prohibition on cruel and unusual punishment under … art. 26 …, by requiring him to serve twelve and one-half years longer before parole eligibility than a juvenile defendant convicted of murder [who would be eligible for parole after fifteen years]…. A Superior Court judge denied the motion, and the defendant appealed.” “The crux of his [appellate] argument [was] that [the SJC’s] decision in Diatchenko I created a presumptive ceiling on parole eligibility for crimes less serious than murder, and that a sentence that treats him more harshly than a juvenile convicted of murder therefore violates the principle of proportionality inherent in art. 26.” Continue reading →

In an important decision for indigent defendant, the Supreme Judicial Court recently issued an opinion – Commonwealth v. Brangan – holding that a judge must consider a defendant’s ability to pay when setting bail at a bail hearing. The SJC specifically ruled that “in setting the amount of bail, whether under G.L. c.276, §57 or §58, a judge must consider a defendant’s financial resources, but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his appearance at trial. Where, based on the judge’s consideration of all the circumstances, including the record of defaults and other factors relevant to the likelihood of the defendant’s appearance for trial, neither alternative nonfinancial conditions nor a bail amount the defendant can afford will adequately assure his appearance for trial, the judge may set bail at a higher amount, but no higher than necessary to ensure the defendant’s appearance for trial…. [W]here it appears that a defendant lacks the financial resources to post the amount of bail set, such that his indigency likely will result in a long-term pretrial detention, the judge must provide written or orally recorded findings of fact and a statement of reasons for the bail decision.”

The background was as follows. In 2014, Brangan was arrested for allegedly robbing a bank while masked. “At the time, [he] was on probation following a prison sentence … for rape of a child and related charges.” On the basis of the armed robbery charge, proceedings were initiated to revoke Brangan’s probation in the rape case. “[A] judge of the Superior Court set bail at $20,000 cash … based on the probation violation notice.” In the armed robbery case, bail was set at $50,000 cash (later reduced to $20,000). “Brangan remained in custody pending his trial.” Over the ensuing three and one-half years, he “followed a long and tortuous path to seek relief from his pretrial detention, filing four successive petitions in the county court pursuant to G.L. c.211, §3.” In the fourth petition, he argued “that the Superior Court judge had failed to give meaningful consideration to his inability to make the [$40,000 aggregate] bail….. The single justice denied the fourth petition, ruling that Brangan’s inability to make a particular bail amount did not render the Superior Court judge’s order a functional denial of bail, and did not establish, without more, that Brangan was entitled to extraordinary relief under … c.211, §3. [Brangan] appealed from the single justice’s order pursuant to S.J.C. Rule 2:21.”

In its decision, the SJC reversed the single justice’s order and remanded the case for a new bail hearing, because “it does not appear that the judge … considered Brangan’s financial resources in setting the bail.” The Court opined that “[a] bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” The Court noted that G.L. c.276, §57, relating to the setting of bail in the Superior Court, does not require a judge to consider a defendant’s financial resources, although §58 (relating to bail in the District Court, the BMC, and the Juvenile Court) does explicitly require consideration of that factor. In any event, stated the SJC, “[a] Superior Court judge … must … consider a defendant’s financial resources when setting bail” under common law and constitutional principles. “Both the Eighth Amendment … and art. 26 of the Massachusetts Declaration of Rights prohibit excessive bail.” Moreover, a “defendant’s right to an individualized bail determination that takes his or her financial resources into account is … supported by the constitutional principles of due process and equal protection.” Continue reading →

The Supreme Judicial Court recently issued a decision – Commonwealth v. Francis – addressing plea agreements and when the court may order the specific performance of such an agreement by the Commonwealth. In its decision, the SJC reversed the allowance of the defendant’s motion for a new trial, ruling that that the judge abused her discretion in ordering the specific performance of a plea agreement in the defendant’s case.

The background was as follows. In 1967, the defendant was convicted of first-degree murder. “In 1989, a … judge allowed the defendant’s motion for a new trial because of errors in the reasonable doubt jury instruction given in his 1967 trial.” In 1994, the defendant reached an agreement with the Commonwealth, pursuant to which “[t]he defendant would plead guilty to [second-degree] murder … in exchange for the opportunity to immediately seek parole, which the Commonwealth would not oppose. If the parole board declined to grant the defendant parole, the agreement allowed the defendant to withdraw his guilty plea and proceed to trial on the [first-degree] murder … charge.” At the plea hearing, after the defendant pleaded guilty, “the defendant’s counsel made representations that there was an understanding between the parole board and the defendant that the defendant would not be required to be in custody to be considered for parole. To effectuate the understanding as it was represented, the plea judge — over the Commonwealth’s objection — stayed the execution of the sentence” for second-degree murder “while the defendant’s parole application was being considered. The parole hearing was scheduled for August, 1994.” Before the scheduled hearing date, “the parole board informed the parties and the plea judge of its position that pursuant to the terms of G.L. c.127, §133A, the defendant had to be in custody in order for the parole board to have jurisdiction over him. Because the defendant disagreed with returning to custody, the August parole hearing was canceled.” Over the ensuing six years, various efforts were made to resolve the custody issue, but when these efforts proved unsuccessful, a judge “allow[ed] the defendant to withdraw his guilty plea to murder in the second degree.” In 2003, “[t]he defendant was retried on the original indictment for [first-degree] murder…. His conviction of that crime was upheld by [the SJC]….  In 2013, the defendant filed a motion for a new trial…. [T]he judge[,] who was the judge at the defendant’s 2003 trial[,] … granted the motion based on ‘principles of fundamental fairness and due process,’ even though she found that the Commonwealth had not reneged on the plea offer. The judge ordered specific performance of the 1994 plea agreement, and allowed the defendant to plead guilty to murder in the second degree. The judge reasoned that this was the correct result because ‘another party to the negotiation, the [plea judge], adopted an interpretation of the [s]tatute — that the Parole Board could entertain the defendant’s request for parole and conduct a hearing at the Board’s office without his surrendering into [Department of Correction] custody — on which the defendant relied to his detriment.’” The Commonwealth filed a gatekeeper application in the single justice session of the SJC, which was allowed. Continue reading →

In an important recent decision – Commonwealth v. Lunn – the SJC held that Massachusetts court officers had no authority, under either Federal or Massachusetts law, “to arrest and hold [Lunn] solely on the basis of a Federal civil immigration detainer.”

The background was as follows. “After the sole pending criminal charge against him was dismissed, the petitioner, Sreynuon Lunn, was held by Massachusetts court officers in a holding cell at the Boston Municipal Court at the request of a Federal immigration officer, pursuant to a Federal civil immigration detainer” “alleg[ing] that Lunn was subject to, and was being sought by the Federal authorities for the purpose of, the civil process of removal.” “Lunn’s counsel informed the judge of the outstanding detainer and asked that Lunn be released from custody notwithstanding the detainer, the criminal case having been dismissed. The judge declined to act on that request.” After Lunn had been held at the BMC for several hours, Department of Homeland Security “officials arrived at the court house and took Lunn into Federal custody. The following morning, … Lunn’s counsel filed a petition in the county court on his behalf, pursuant to G.L. c.211, §3, asking a single justice of [the SJC] to order the [BMC] to release him.… By that time, however, Lunn had already been taken into Federal custody. The single justice therefore considered the matter moot but, recognizing that the petition raised important, recurring, and time-sensitive legal issues that would likely evade review in future cases, reserved and reported the case to the full court.” Continue reading →

In Commonwealth v. Widener, the Appeals Court vacated the sentence imposed on the defendant pursuant to the armed career criminal act (ACCA), G.L. c.269, §10G(c), and remanded the case for resentencing.

The background was as follows. In connection with an investigation into a series of burglaries, the police searched a vehicle that the defendant had been driving. The search resulted in the seizure of a firearm. Following a jury trial, the defendant was convicted of unlawful possession of a firearm, unlawful possession of ammunition, and related offenses. At a subsequent, jury-waived trial, the judge considered the additional allegations in the defendant’s indictments “that [he] previously had been convicted of three violent crimes or serious drug offenses subjecting him to enhanced sentencing pursuant to the [ACCA].” At the conclusion of the second trial, the “judge found the defendant guilty of the subsequent offender allegations related to [two of] his convictions…. Consequently, pursuant to the ACCA, [the defendant] was sentenced to a consolidated mandatory minimum term of imprisonment of not less than fifteen years and not more than fifteen years and one day. On appeal, the defendant claim[ed] … [that] the evidence was insufficient to prove that he had three prior qualifying convictions under the ACCA.”

In its decision, the Appeals Court quoted from c.269, §10G(c): “‘Whoever, having been previously convicted of three violent crimes or three serious drug offenses, or any combination thereof totaling three, arising from separate incidences, … shall be punished by imprisonment in the state prison for not less than 15 years nor more than 20 years’ (emphasis supplied).” In reference to the statutory requirement of “separate incidences,” the Court described as follows the chronology of the four prior convictions which formed the basis for the sentencing enhancement charges at the defendant’s jury-waived trial: “assault and battery committed on July 19, 2001 (guilty plea on December 6, 2001); assault and battery by means of a dangerous weapon (ABDW) committed on March 18, 2004 (guilty plea on February 9, 2005); possession with intent to distribute a class B controlled substance committed on January 8, 2008 (guilty plea on October 20, 2008); and assault by means of a dangerous weapon committed on January 11, 2008 (guilty plea on October 20, 2008).” The Court noted that “[i]n a case decided after the sentence here was imposed, the [SJC] determined that sentencing enhancement under the ACCA ‘applies only when a defendant’s previous convictions of three qualifying crimes “arising from separate incidences” were the results of separate, sequential prosecutions.’ Commonwealth v. Resende, 474 Mass. 455, 469 (2016).  Continue reading →