Law Commentary

Published on: November 9, 2016

SJC States that Warrantless Seizure of Cell Phone Requires PC to Believe Particularized Evidence Will be Found During Search

The SJC recently issued a decision – Commonwealth v. Onyx White – affirming the allowance of the defendant’s motion to suppress the fruits of a search of his cellular telephone The Court affirmed the trial court’s decision on the grounds that the police lacked probable cause to initially seize the telephone and waited too long (sixty-eight days) after seizing it to obtain a warrant to search its contents.

The basic facts were as follows. In the course of an attempted armed robbery of a convenience store, one of the perpetrators shot the victim. “The next day, the defendant, then sixteen years old, told his mother that he had participated in a robbery … and that someone had been shot.” The mother revealed that information to the police. Two days later, “a detective investigating the robbery-homicide met with one of the … administrators [of the defendant’s high school]. The administrator told the detective that the defendant had become ‘agitated’ earlier that day and had left the school without picking up his cellular telephone,” which was routinely held by the school administration during the school day. The police were not aware, “at that point, [of] any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators.” Therefore, the detective “seize[d] the device without a warrant apparently on the basis of his [supervisor’s] belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station.” However, the police did not search the device at that time. “The defendant was arrested later the same day and charged with murder. In the weeks that followed, detectives assigned to the case applied for and executed five search warrants, interviewed numerous witnesses, assisted with the grand jury investigation, and also were assigned to work on two other homicide investigations.” Continue reading →

Published on: November 8, 2016

SJC Reviews Law on Lack of Criminal Responsibility Defense

By Daniel Cappetta

The Supreme Judicial Court recently issued a decision addressing the affirmative defense of lack of criminal responsibility. In the case – Commonwealth v. Lawson – the SJC affirmed the defendant’s convictions for assault and battery on a police officer, resisting arrest, and related offenses. Although the Court found that the judge properly denied the defendant’s motion for required findings of not guilty by reason of lack of criminal responsibility, it reviewed the standard and determined that the presumption of sanity alone is not sufficient to sustain the Commonwealth’s burden of proving criminal responsibility beyond a reasonable doubt.

The background was as follows. “The defendant, after being told by … police officers that he had an outstanding warrant, resisted arrest and assaulted the officers.” At his trial, “the defendant offered a defense of lack of criminal responsibility, and called a forensic psychologist who described the defendant’s lengthy mental health history and opined that the defendant was not criminally responsible at the time of the offense[s]. The Commonwealth did not present expert evidence on the issue of criminal responsibility in rebuttal but rather relied on the circumstances surrounding the offense and cross-examination of the defendant’s expert to establish criminal responsibility.” On appeal, “[t]he defendant contend[ed] that, where the Commonwealth offered no expert evidence that the defendant was criminally responsible and where [in the defendant’s view] there was nothing about the circumstances of the commission of the crimes or the defendant’s conduct after their commission that would suggest that he was criminally responsible, it must be inferred that the judge denied the motion for required findings of not guilty based solely on the ‘presumption of sanity,’ even though the judge made no reference to such a presumption. The defendant further claim[ed] that the inference arising from this ‘presumption’ alone cannot support a finding beyond a reasonable doubt that the defendant was criminally responsible.” The Commonwealth expressed the opposing view, that “the inference arising from the ‘presumption of sanity’ alone is sufficient to defeat … a motion” for a required finding of not guilty by reason of lack of criminal responsibility.

Continue reading →

Published on: November 4, 2016

Massachusetts Sentencing Commissions Holds Hearing on Proposed Changes

By Daniel Cappetta

According to a recent article on Masslive.com, the Massachusetts Sentencing Commission recently held a public hearing on the possibility of changing state sentencing guidelines. The hearing addressed a number of sentencing related topics, including whether Massachusetts should impose a period of mandatory supervised release on all individuals who are released from jail.

Advocates against the imposition of a such a release argued that it would be setting these released individuals up for failure because sufficient services necessary to help inmates return to society simply do not exist. The chief counsel of the public defenders specifically told the sentencing commission that mandatory supervised release would not work unless the infrastructure and services to help people succeed were put in place.

Although state policy makers have had discussions about abolishing mandatory minimum sentences for non-violent drug offenses, the sentencing commission is considering significantly broader changes to sentencing guidelines that could include both changing mandatory minimums, as well as a wide range of other modifications. Examples of the changes being considered include:

instructing judges who must determine a sentence not to consider past convictions if a person has gone for eight or 10 years since the end of their last sentence without a new conviction
adopting guidelines telling judges not to consider misdemeanors committed by juveniles as part of the criminal history used to determine an adult sentence
creating an offense level of zero in the sentencing guidelines – essentially, labeling something a crime but not recommending a sentence of incarceration, probation or fines
limiting the length of probation supervision and the length of sentences for probation violations
creating a “safety valve” where a defendant is facing a mandatory minimum sentence which would allow a judge to can give someone a sentence that is below the mandatory minimum under certain circumstances

Continue reading →

Published on: October 30, 2016

SJC Rules that Car Renter’s Decision to Allow Person Who is not on Rental Agreement to Drive Does not Amount to a Crime

By Daniel Cappetta

The Supreme Judicial Court recently issued a decision – Commonwealth v. Campbell – affirming the allowance of the defendant’s motion to suppress on the ground that his operation of the vehicle, which had been rented by his mother, did not constitute use without authority under G. L. c. 90, § 24(2)(a), and therefore the police had no lawful basis to seize the vehicle and conduct an inventory search.

The basic facts were as follows. A state trooper “stopped [the] vehicle … for failing to stop at a stop sign. The trooper determined that the vehicle had been rented by the defendant’s mother, who has a last name that is different from the defendant’s. Upon request, the defendant provided [the trooper] with a valid driver’s license and the rental agreement. The agreement listed only the mother as the renter and stated, ‘[N]o other drivers permitted.’ [The trooper] concluded that the defendant was using the vehicle without authority, in violation of G.L. c.90, §24(2)(a), which makes it illegal to ‘use[] a motor vehicle without authority knowing that such use is unauthorized.’ Accordingly, [the trooper] decided to impound the vehicle. During an inventory search in preparation for impoundment, a loaded handgun and a box of ammunition were seized from the vehicle.” There was evidence that “upon learning of the seizures, the defendant made incriminating statements to [the] police.” After he was charged with firearm and other offenses, the defendant moved successfully to suppress the physical evidence and his statements. Continue reading →

Published on: October 25, 2016

Appeals Court Finds Boston PD Drug Testing to Be Scientifically Unreliable

By Daniel Cappetta

The Appeals Court recently issued a decision – Thompson v. Civil Service Commission – finding that the Boston Police Department’s drug screening method for screening its officers is flawed.

The background of the case is as follows: the collective bargaining agreement between the Boston police officers’ union and the Boston Police Department provides for annual hair testing for drugs as part of the department’s substance abuse policy. The portion of the agreement that specifically pertains to the testing states that “sworn personnel of the Boston Police Department will be tested for drugs and/or alcohol under the following circumstances…the parties agree that all sworn personnel shall be subject to an annual drug test to be conducted through a fair, reasonable, and objective hair analysis testing system.” The agreement goes on to state that an employee “will be subject to termination” for a positive test result…” The plaintiffs in the case are a total of ten officers who submitted hair samples, tested positive for cocaine, and were terminated as a result. The union then filed suit on behalf of the officers to appeal their terminations and the case ultimately ended up before the Appeals Court.

In reviewing the case, the Appeals Court found that the Boston Police Department’s use of officers’ hair samples in drug screening is scientifically unreliable and reinstated six of the ten officers with back pay and benefits. In its decision, the Appeals Court conducted an inquiry into the scientific reliability of the hair test and found that a positive test result was not conclusive on the question of voluntary drug ingestion. It further found that a positive result may in fact be due to contamination from environmental exposure as opposed to drug use by the officer. The Court specifically held that the risk of a false positive was significant enough to require additional evidence prior to terminating an officer for drug use. In terms of six of the officers who had been terminated as a result of the positive test results, the Appeals Court found that the additional evidence presented by the officers outweighed the results of the hair test. Continue reading →

Published on: October 9, 2016

SJC Issues New Decision on Discovery

By Daniel Cappetta

The Supreme Judicial Court recently issued two decisions – Commonwealth v. Teixeira and Commonwealth v. Meade – that will have a significant impact on the discovery process in certain criminal cases going forward.

There are two types of cases in Massachusetts – misdemeanors and felonies. Massachusetts District Courts and the Boston Municipal Court have jurisdiction over all misdemeanors and less serious felonies (i.e., all felonies which carry a house of correction sentencing alternative). The Superior Court has jurisdiction over all other felonies (i.e., felonies which carry only state prison as potential sentence). Despite the fact that the District Court lacks jurisdiction over certain felonies, all cases, no matter how serious, start out in the District Court with an arraignment. If the charge is one of the felonies that only the Superior Court has jurisdiction over, the Commonwealth must decide whether it wants to take the case to the Superior Court, or if it wants to break the case down to a misdemeanor or less serious felony over which the District Court has jurisdiction.

If the Commonwealth decides that it wants the case to be heard in the Superior Court, it must present the case to the grand jury to make a determination that there is in fact probable cause to issue a charge in Superior Court (called an indictment). Under Rule 3 of the Massachusetts Rules of Criminal Procedure, a defendant is entitled to a probable cause hearing in the District Court until the case has been presented to the grand jury, and the grand jury has voted and found probable cause to issue the indictment. It can take several months for the Commonwealth to indict a case, during which the case remains in District Court. Although the case is scheduled for a probable cause hearing in District Court pending the indictment, probable cause hearings are extremely rare in practice – typically, the Commonwealth states its intent to indict and asks the District Court judge to continue the case for a further probable cause hearing. The case generally gets continued until the case is indicted, at which point the need for a probable cause hearing is obviated.

Naturally, defense attorneys object to these continuances. While the ability to proceed with the case and obtain discovery is hampered by the Commonwealth’s repeated requests for continuances, good defense attorneys file motions for such discovery while the case is pending in the District Court and awaiting indictment. This is so that they can begin to investigate a case and start to build a defense. The Commonwealth typically objects to such orders to produce discovery on the ground that the District Court does not have jurisdiction over the case, and therefore the District Court judge lacks jurisdiction to issue such an order. Continue reading →

Published on: September 20, 2016

SJC States that Defendants Do Not Have Right to Counsel Before Taking Breathalyzer

By Daniel Cappetta

The Supreme Judicial Court recently issued a decision in a case addressed in this blog earlier this year: Commonwealth v. Neary-French. In its decision, the SJC held that a defendant does not have a right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution, or art. 12 of the Massachusetts Declaration of rights, before the defendant decides whether to take a breathalyzer test.

The legal and factual backgrounds are as follows. In 1989, the SJC issued a decision in Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989) dealing with the same issues raised by Neary-French in this case. In Brazelton, the SJC ruled that the defendant had no right to counsel before deciding whether to take a breathalyzer test. Subsequently, in 2003, the Legislature amended the OUI statute (G. L. c. 90, §24). The amendment makes it “a violation to operate a motor vehicle not only under the influence of intoxicating liquor, but also with a blood alcohol level of .08 or more.” This rule is known as a ‘per se’ violation.” In other words, even if the defendant is driving perfectly, he or she may still be guilty of operating under the influence if his or her blood alcohol level is .08 or more.

Neary-French was arrested for operating while under the influence of intoxicating liquor and was not given an opportunity to consult with counsel before having to decide whether to submit to a breathalyzer test. The defendant filed a motion to suppress the results of the breathalyzer test [which indicated that her blood alcohol level was greater than .08], arguing that she had a [constitutional] right to counsel … before deciding whether to submit to [such] a … test.” After an evidentiary hearing on the motion, the judge reported the following question of law to the SJC: “‘Whether the 2003 amendment to G. L. c.90, §24, which created a new “.08 or greater” theory by which to prove an [operating while under the influence of intoxicating liquor] offense, where a breath test reading of .08 or greater is an element of the offense, now makes the decision by a defendant whether or not to take the breath test itself a critical stage of the criminal proceedings requiring that the defendant be advised of their right to counsel prior to making that decision, pursuant to art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments of the United States Constitution.’” Continue reading →

Published on: September 12, 2016

SJC Rules that Non-Citizen Defendant’s Motion for a New Trial Should be Granted

By Daniel Cappetta

Last month, the Supreme Judicial Court issued a decision addressing judicial notice of immigration consequences to non-citizens who plead guilty to a criminal case. The case – Commonwealth v. Valdez – reverses the denial of the defendant’s motion for a new trial where the judge who conducted the defendant’s plea colloquy had failed to advise the defendant, as required by G. L. c. 278, §29D, “that conviction may have the consequence of exclusion from admission to the United States.” In so ruling, the SJC (1) clarified “what [a] defendant must show to establish that his conviction ‘may have’ the consequence of exclusion from admission to the United States”; and (2) determined that the defendant here had met that burden.

The background was as follows. “The defendant was born in the Dominican Republic and is a citizen of that country. In 1985, he was admitted to the United States as a lawful permanent resident alien.” In 1989, he pleaded guilty to an indictment alleging larceny of a motor vehicle and was sentenced to a prison term of five years at MCI-Concord. “The defendant is now a resident of Connecticut and owns his own business selling automobiles. Since 1997, he has been in a relationship with a citizen of the United States, with whom he has three children. No immigration proceedings have been commenced against the defendant by Federal authorities.” In 2013, the defendant — wishing to travel to the Dominican Republic and fearing that he might not be able to reenter the United States — retained an immigration attorney. On the basis of the attorney’s advice that the defendant’s conviction would result in removal proceedings against him if he were to leave the United States and then seek to reenter, the defendant moved to withdraw his guilty plea and vacate his conviction. His motion was predicated on the judge’s acceptance of his plea without having advised him that his conviction “may have [the] consequence[] of … exclusion from admission to the United States,” as required by c.278, §29D. The motion judge agreed that the defendant had not been adequately advised in his plea colloquy, but “nonetheless denied the motion because, citing Commonwealth v. Grannum, 457 Mass. 128 (2010), she found that the defendant ‘ha[d] not established that he would be subject to an express written policy of exclusion should he choose to leave the United States and desire to re-enter,’ and therefore ‘ha[d] shown no more than a hypothetical risk’ of exclusion.”

Continue reading →

Published on: August 25, 2016

MORE LEGISLATIVE UPDATES – 2016

By Daniel Cappetta

On Sunday, July 31, 2016, the Massachusetts Legislature concluded formal sessions for the 2015-2016 Legislative Session. Although bills that require roll call votes can no longer move forward, numerous pieces of legislation remain alive and can be enacted during informal sessions until midnight on Tuesday, January 3, 2017. This can occur if the two branches agree and there is no objection raised by a member on the floor when the bill is being given a reading. This is good news for a number of bills relevant to criminal justice. Most of the following bills have been acted on favorably by the Senate and are pending in House Way & Means Committee (HW&M). Bills that have made it through the Senate, are pending in HW&M, and are awaiting final action in the House are:

S.727 – An Act Relative to Tagging. This bill removes the collateral consequence of loss of driver’s license upon conviction of such an offense.

S.728 – An Act Relative to Vandalism. This bill, like the tagging bill, removes the collateral consequence of loss of driver’s license upon conviction of such an offense.

S.795 – An Act Relative to Adjusting the Credit on Days Imprisoned for Nonpayment of Fines. This bill adjusts the credit calculated for days imprisoned for the nonpayment of a fine against the amount owed. Existing law allows a credit of $30/day. This legislation adjusts for inflation and increases the credit to $60/day. Continue reading →

Published on: August 15, 2016

SJC Issues New Case on Pre-trial Detention for Dangerousness

By Daniel Cappetta

The Supreme Judicial Court recently issued a new decision on two companion cases – Commonwealth v. Diggs and Commonwealth v. Soto. The decision addresses pre-trial detention under the dangerousness statute (G.L. c.276, §58A) and under what circumstances the Commonwealth may move for dangerousness. This statute specifically allows the Commonwealth to move for a “dangerousness hearing” where a defendant is held “under arrest” and charged with a felony that involves the use, attempted use, or threatened use of physical force as an element of the offense. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days.

The background as to Diggs was as follows. “[He] allegedly threatened to burn down a house [in Watertown] … while the [residents were] inside.” “[A] criminal complaint issued charging [him] with threatening to commit a crime” and the Watertown police obtained an arrest warrant. Initially, the police were unable to locate Diggs to execute the warrant. However, he came to the Commonwealth’s attention several months later, when he was being held on a probation detainer in an unrelated matter in Plymouth County. “When authorities from the … house of correction [in that county] transported Diggs to the District Court to appear for arraignment on those charges, the Commonwealth moved for pretrial detention based on dangerousness. Diggs argued that he was not subject to pretrial detention because, although he was in the custody of Plymouth County on charges of a probation violation, he had not been arrested by the Watertown police in connection with the complaint charging him with threatening to commit a crime, and thus was not ‘held under arrest’ for an enumerated offense [under §58A] at the time of his arraignment. The judge rejected Diggs’s challenge to the legality of the proceedings, conducted a dangerousness hearing pursuant to … §58A, and ordered [that] Diggs [be] held in pretrial detention without bail.” Continue reading →