Law Commentary

Published on: February 20, 2016

SJC Expressly Overrules Holyoke Judge’s Attempt to Impose Commonwealth Capped Pleas on Trial Dates in District Court

In a recent decision, Charbonneau v. Presiding Justice of the Holyoke Division of the District Court Department, the Supreme Judicial Court vacated “a standing order of the Holyoke Division of the District Court Department … prohibiting the tender of a so-called ‘defendant-capped’ plea on the day of trial.” The SJC reasoned that the standing order “contravene[d] the guilty plea procedure mandated in G. L. c. 278, § 18, and Mass. R. Crim. P. 12.”

Under G. L. c. 278, § 18 and Rule 12, a defendant facing charges in the District Court has the right a “defendant capped” plea. This means that a defendant in the District Court has the right to withdraw any plea in which the judge exceeds the defendant’s recommended sentence. This is in contrast to Superior Court, where a Commonwealth capped plea is procedure is in effect – a Commonwealth capped plea procedure allows a defendant to withdraw any plea in which the judge exceeds the Commonwealth’s recommended sentence. The standing order at question in the case, which was issued by the presiding justice of the Holyoke District Court, directed that as of June 2015, “a defendant who intended to proffer a defendant-capped plea was required to do so” no later than 2:00 p.m. on the day prior to the scheduled trial. “The standing order further provide[d] that ‘[t]he [c]ourt will continue to accept unagreed pleas on the day of trial[. H]owever, the pleas will be Commonwealth-capped pleas on the day of trial and the defendant will not be allowed to withdraw a plea which exceeds his suggested sentence unless the [c]ourt’s disposition exceeds the Commonwealth’s recommendation.’” In other words, the standing order allowed for a defendant capped plea up until 2:00p.m. prior to the date of trial, however, if the defendant chose to tender a plea on the actual trial date, s/he would be subject to a Commonwealth capped plea, and would not be able to withdraw his or her plea if it took place on the trial date unless the judge exceeded the Commonwealth’s recommended sentence. The presiding justice explained that the standing order “was proposed as a means to maximize ‘juror utilization.’” Continue reading →

Published on: January 25, 2016

SJC Changes Standard for Sex Offender Registry Classifications

By Daniel Cappetta

In a recent case, Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board, the Supreme Judicial Court changed the standard of proof applicable to classification determinations by the Sex Offender Registry Board (SORB), discarding the existing “preponderance of the evidence” standard in favor of the more stringent “clear and convincing evidence” standard.

Doe was convicted of indecent assault and battery on a child under fourteen. Following the conviction, SORB determined, by a preponderance of the evidence, that Doe should be classified as a level two sex offender. Doe appealed SORB’s decision to the Superior Court, which affirmed the classification level, applying the same standard: preponderance of the evidence. The SJC vacated that affirmation, however, and, pursuant to due process considerations, changed the standard or proof from a “preponderance of the evidence” to “clear and convincing” evidence, which is a higher level of proof. The SJC explained that subsequent to its establishment of the preponderance of the evidence standard for classifying sex offenders in Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998), “amendments to the sex offender registry law and other developments” have rendered the preponderance standard inadequate to protect sex offenders against the risk of erroneous over classification by SORB. The Court noted that “[o]n balance, … [the] legislative changes have more often imposed extra burdens on registered offenders than provided them with additional protections. More offenses are now subject to a registration requirement. Sex offenders face increasingly stringent affirmative reporting requirements, and the penalties for failing to meet those requirements are harsher.” The SJC went on to state that “[t]he sex offender registry law in its current form … calls for extensive dissemination of … registry information. Both level two and level three sex offenders’ information is now posted on the Internet…. Consequences of such public dissemination may include housing and employment discrimination, harassment, and assault.” Moreover, although “[a] convicted sex offender’s risk classification now has far greater consequences than were present when [the Court] decided Doe No. 972 over seventeen years ago,” “there is reason to question whether SORB’s … classification guidelines [which have not been updated since 2001] continue to reflect accurately” the current state of scientific “scholarship regarding statutory factors that concern risk assessment.” Continue reading →

Published on: January 20, 2016

Appeals Court Issues Decision on Trial Court’s Ability to Dismiss Valid Criminal Complaints

By Daniel Cappetta

The Appeals Court recently issued a new decision, Commonwealth v. Everett, which clarifies the trial court’s ability to dismiss a valid criminal complaint. In Everett, a Boston Municipal Court judge dismissed a legally valid criminal complaint against the defendant, which charged him with operating a motor vehicle after his license had been revoked, subsequent offense. The dismissal was over the Commonwealth’s objection. In dismissing the complaint, “the judge essentially articulated his view that the prosecution of this defendant would not be desirable, where the defendant had taken the steps necessary to get his license reinstated and was in need of a license to obtain employment.” In reviewing the trial court judge’s decision, however, the Appeals Court stated that “‘the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor.’” The Court added that the “governing principle [here] is that the decision whether or not to prosecute the complaint rests within the sole discretion of the executive branch.”

On appeal, the defendant “assert[ed] [that] the judge erred only in failing to hold a hearing pursuant to Commonwealth v. Brandano, 359 Mass. 332, 337 (1971), prior to dismissing the matter and requested that the case be remanded for a Brandano-type hearing. Under Brandano, a judge was permitted to “dismiss criminal complaints over the Commonwealth’s objection in ‘the interests of public justice’ pursuant to the procedure outlined in … [the case].’” This procedure, commonly referred to as a Brandano motion or hearing, became a familiar practice, especially within the Juvenile, District, and Boston Municipal Court departments.” Some years after the issuance of Brandano, however, the Legislature replaced the Brandano procedure with a statutory alternative for cases arising in the Boston Municipal, District, and Juvenile Court departments, which is laid out under G.L. c.278, §18. Under this statute, which governs the disposition of cases in District and Municipal Court, a dismissal “in the interests of public justice” is not an available option, unless such a dismissal is done in conjunction with the proffer of a guilty plea or an admission to sufficient facts with a request for a continuance without a finding. Continue reading →

Published on: October 1, 2015

Framingham Judge Finds Man Dangerous

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham District Court judge ordered a Rhode Island man held without bail in relation to several sexual assault charges. The article states that the man is accused of sexually assaulting and raping the alleged victim over a period of years, beginning when she was thirteen years old. The alleged assaults reportedly began in the early 2000s and ended several years later. Despite the seriousness of the claims, the alleged victim failed to report any of the alleged conduct to the police for years, coming forward only fifteen months ago, in April of 2014. After the report was lodged, the Commonwealth began an investigation but did not arrest the defendant until last week. At the arraignment, the Commonwealth moved to hold the defendant without bail under G. L. c. 276, § 58A.

This statute allows the Commonwealth to move for a “dangerousness hearing” where a defendant is 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.

In making a determination as to whether a defendant should be released on conditions versus held without bail, the court takes the following factors into consideration: (1) the nature and seriousness of the danger posed to any person or the community that would result by the person’s release; (2) the nature and circumstances of the offense charged; (3) the potential penalty the person faces; (4) the person’s family ties; (5) the person’s employment record; (6) the person’s history of mental illness; (7) the person’s reputation; (8) the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror; (9) the person’s record of convictions, if any; (10) any illegal drug distribution or present drug dependency; (11) whether the person is on bail pending adjudication of a prior charge; (12) whether the acts alleged involve G. L. c. 209A related issues; and/or (13) whether the person is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction. Continue reading →

Published on: August 5, 2015

SJC Finds Text Message Admissible as Excited Utterance

By Daniel Cappetta

In Commonwealth v. Mulgrave, the Supreme Judicial Court held for the first time that a text message could constitute an excited utterance under Massachusetts law. An excited utterance is an exception to the rule prohibiting the admission of hearsay. A statement qualifies as an excited utterance if it: (1) follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer; and (2) the statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought. The rationale that justifies this hearsay exception is that a person who has witnessed a shocking or traumatic event tends to speak what comes spontaneously to mind, without energy or disposition to invent lies so the statement may be deemed trustworthy for as long as the stress of the startling event continues. The court considers the following factors in determining the admissibility of a statement as an excited utterance: (1) the degree of excitement displayed by the declarant; (2) whether the statements are made at the scene of the traumatic event or elsewhere; (3) the temporal closeness of the statement to the act it explains; and (4) the degree of spontaneity, including whether the statements was volunteered by the declarant without the prompting of a question. Although the SJC has routinely ruled that written statements do no qualify as excited utterances given the fact that a written statement is generally not “spontaneous,” as it requires at least some reflective thought, the Court chipped away at this rule in the Mulgrave decision.

The facts of the case are as follows: the defendant and the victim in the case were married, but their relationship was deteriorating. During a heated argument between the two, the victim sent a text message to her son stating that “[the defendant] is threatening to kill me I am scared he said if I pick up the phone he will kill me.’” Six minutes after the victim sent the text message, she telephoned 911 and reported that the defendant was stabbing her. A few minutes after that, she was found barely breathing and lying in a pool of blood. She ultimately succumbed to her injuries. At trial, the Commonwealth sought to introduce the victim’s text message as evidence against the defendant. Continue reading →

Published on: July 25, 2015

SJC Clarifies Timeframe for Sexually Dangerous Person Petitions

By Daniel Cappetta

Under Massachusetts G. L. c. 123A, § 12, if the Commonwealth has reason to believe a person convicted of a sex offense is likely to re-offend, it may file a petition in the Superior Court alleging the person is a “sexually dangerous person,” and request that the person be civilly committed. Once the petition for civil commitment as a sexually dangerous person is filed, a judge determines whether the Commonwealth’s allegations meet the standard of probable cause to believe the person is sexually dangerous. The person who is the subject of this petition must be provided notice and have an opportunity to appear and contest the allegations. Generally, the petitions for civil commitment as a sexually dangerous person are filed in the months leading up to the person’s release date from confinement. If a finding of probable cause is made, the person has a right to a trial to determine if he is a sexually dangerous person. If a person is determined to be sexually dangerous after trial, he is then committed to a treatment center for an indefinite period. This means that he could be committed for as little as one day or for the rest of his life.

In a recent case – Commonwealth v. Libby – the Supreme Judicial Court issued a ruling clarifying the terms of a sexually dangerous person petition. Libby was convicted of a sex offense in 2002 and completed his sentence of incarceration shortly thereafter. In 2013, he was indicted on a different charge (failure to register). Unable to post bail, he was held in custody awaiting trial on the new charge. While he was in held in custody, the Commonwealth filed a sexually dangerous person petition, pursuant to G.L. c.123A, §12. Libby moved to dismiss the petition on the ground that he had already completed the sentence for the sex offense, was therefore not serving a sentence at the time the petition was filed, and thus the Commonwealth was not permitted to file the petition. His motion to dismiss, however, was denied. Libby then sought relief pursuant to G. L. c. 211, §3, which allows the SJC to review trial court rulings prior to the disposition of a case in certain limited circumstances. Continue reading →

Published on: July 15, 2015

SJC Issues Decision on Domestic Violence Offender Registry

By Daniel Cappetta

In August of 2014, the Massachusetts state legislature passed An Act Relative to Domestic Violence, which was signed into law by then Governor Deval Patrick shortly thereafter. The Act made various changes to the state’s domestic violence laws. Among other modifications, the Act created a first offense domestic violence assault and battery charge, established a domestic violence offender registry, and provided education for judges and prosecutors about cycles of abuse. As to the domestic violence offender registry, the law states that, pursuant to G.L. c.276, §56A, “every case in which a person is arrested and charged with a crime against the person or property, if the Commonwealth alleges that domestic abuse occurred ‘immediately prior to or in conjunction with’ the charged crime, the Commonwealth is to file a written statement that it does so allege, the judge is to make a written ruling that the Commonwealth does so allege, and the Commonwealth’s written statement is then to be entered into the Statewide domestic violence record keeping system (DVRS).” The law states that the “DVRS is a registry of sorts, established by the commissioner of probation …, [which] includes … [computerized] records of the issuance of and any violations of criminal or civil restraining or protective orders…. Records in the DVRS are available only to law enforcement and ‘judges considering petitions or complaints’ for restraining and protective orders.” The new law does not, however, lay out the legal requirements for a judge to issue such written ruling; the statute is silent as to the standard of proof, evidentiary standard, and/or factors the court should consider when making its decision. In light of the lack of clarity, there have been questions as to how to implement this portion of the statute.

In a recent decision issued by the Supreme Judicial Court: Commonwealth v. Dos Santos, the trial judge grappled with the domestic violence offender registry requirements and ultimately asked the Appeals Court for guidance. Specifically, under the Massachusetts Rules of Criminal Procedure Rule 34, a trial court judge may report a question of law to the Appeals Court if the trial judge determines the issue so important or doubtful as to require the decision of the Appeals Court.

In the Dos Santos case, the defendant was arrested for pushing his wife in the context of their marital difficulties. The defendant was charged with assault and battery on a family member. At his arraignment, prior to his release on conditions, “the Commonwealth submitted a preliminary written statement pursuant to §56A, alleging that domestic abuse occurred immediately prior to or in conjunction with the defendant’s charged offense.” The judge, however, declined to make a written ruling that domestic abuse was alleged out of concern that the statutory language violated constitutional principles of due process and separation of powers and instead reported the question pursuant to Rule 34. Continue reading →

Published on: July 8, 2015

SJC Accepts Petition to Review Holyoke District Court Plea Practice

By Daniel Cappetta

During the process of a criminal case, the trial court judge makes a number of different rulings, all of which may be appealed by a defendant. There are several different types of appeals. The most common type of appeal is a direct appeal, which is an appeal to the Appeals Court following a conviction after trial. A defendant has a statutory right to a direct appeal, meaning he has a right to file and be heard on the issues raised in the appeal. In addition to direct appeals, there are several other vehicles for appealing a decision made by a trial court judge, including interlocutory appeals – i.e. appeals made before a case goes to trial. Defendants are only permitted to file interlocutory appeals in limited circumstances, which typically involve the denial of a motion to suppress evidence.

In addition to direct appeals and interlocutory appeals, appeals may also be made pursuant to G. L. c. 211, § 3. Under this statute, the Supreme Judicial Court has “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided.” Relief under G. L. c. 211, § 3 is discretionary, meaning the SJC is not required to accept a request for review under the statute. The Court has repeatedly stated that it will grant relief under G.L. c. 211, § 3, “[o]nly in the most exceptional circumstances.” For the Court to accept such an appeal for review, a defendant must demonstrate not only that a substantive right is at stake, but also that the normal process of direct appellate review will be inadequate to vindicate that right, and therefore there is no other recourse but to invoke the Court’s special powers.

On June 30, 2015, the SJC accepted a G. L. c. 211, § 3 petition filed by a defendant with a case in the Holyoke District Court. Specifically, the petition addressed a new order issued by the Holyoke District Court relating to G. L. c. 278, § 18. This statute establishes the right of defendants with cases in District Court to withdraw their pleas if the judge seeks to impose a sentence that exceeds the defendant’s recommendation. In other words, if a defendant facing charges in District Court chooses to plead guilty and resolve his case short of trial and the judge exceeds the sentence requested by the defendant, the defendant has an absolute right to withdraw his plea and take the case to trial. This is called a “defense capped” plea because the defendant has the right to choose the maximum penalty that he will accept. The new order states that a defendant will not have the right to withdraw his plea if the judge exceeds his recommended sentence when the plea is tendered on the trial date, thereby stripping defendants of the right to present a defense-capped plea on the date of trial. In addition to accepting the petition for review, the
SJC also issued an order staying the implementation of the order pending the Court’s decision. Continue reading →

Published on: June 21, 2015

SJC Issues Ruling on Admissibility of Certain Breathalyzer Test Results

By Daniel Cappetta

Last week, the Supreme Judicial Court issued a decision – Commonwealth v. Camblin – that calls the admissibility of breath test evidence into question in operating under the influence cases. The facts of the case are as follows: Camblin pulled over in the breakdown lane on Route 495 to urinate. A Massachusetts State Trooper saw Camblin standing outside his car, pulled over behind him, and spoke to him. During the course of their interaction, the trooper became suspicious that Camblin had been driving under the influence of alcohol and administered several field sobriety tests. Camblin performed poorly on the tests and the trooper transported him to the state police barracks where Camblin was asked if he would be willing to take a breathlyzer test. The trooper administered the test using an “Alcotest” device. The device indicated that the Camblin’s blood alcohol level was 0.16 – two times the legal limit of .08. Camblin was subsequently charged with OUI, second offense.

The case went to trial and Camblin’s attorney challenged the admissibility of the results of the breathalyzer. Specifically, Camblin’s attorney filed a motion in limine to exclude the Alcotest results on the ground that the test was scientifically unreliable under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Commonwealth v. Lanigan, 419 Mass. 15 (1994), both of which govern the admissibility of scientific test results at trial. For the results of a scientific test to be admissible under the Daubert-Lanigan standard, the party seeking to introduce the scientific evidence must lay an adequate foundation for its introduction, either by establishing general acceptance of the test in the scientific community, or by showing that the evidence is reliable or valid through an alternate means.

Camblin’s attorney specifically sought a hearing concerning the Alcotest’s reliability. The gist of the request was that errors in the Alcotest’s source code (the code written to control the functioning of computer software), as well as other deficiencies, rendered the breath test results produced by the Alcotest unreliable. The trial judge denied the motion to exclude the evidence and refused to hold a motion regarding the reliability and therefore admissibility of the evidence, reasoning primarily that a Daubert-Lanigan hearing is inapplicable to the admissibility of the Alcotest results because they are admissible by statute” – G. L. c. 90, §§24(1)(e), 24K. Continue reading →

Published on: May 24, 2015

SJC Issues Decision on Dookhan Cases

By Daniel Cappetta

This past week, the Supreme Judicial Court rule that people who pled guilty in cases where evidence was mishandled by former state chemist Annie Dookhan may not be charged with more serious crimes if given a new trial and, if convicted, may not be given a worse sentence than the judge originally imposed. The decision – Commonwealth v. Bridgeman – was unanimous.

Dookhan is the former Massachusetts drug lab chemist accused of tampering with evidence in a drug testing scandal that threatened thousands of criminal cases in Massachusetts. Dookhan, who worked at the state’s Hinton Laboratory in Jamaica Plain, was accused of fabricating test results and tampering with drug evidence. She played some sort of a role in more than 40,000 drug tests at the Hinton lab, where she worked from 2003 until 2012. The state police first learned of Dookhan’s actions after a chemist at the lab in which she worked said that he observed “many irregularities” in her work. During a subsequent investigation, Dookhan admitted to authorities that she took shortcuts, such as only testing some of the samples that she was assigned to, and then listing them all as positive for the presence of a drug. She also acknowledged that sometimes, if a sample tested negative, she would take a known controlled substance from another sample and add it to the negative sample in order to make it test positively. Dookhan ultimately pled guilty in November 2013 to twenty-seven counts of misleading investigators, filing false reports, and tampering with evidence, and was sentenced to three to five years in state prison, followed by two years of probation that included mental health counseling if needed.

As a result of Dookhan’s malfeasance, the state shut down the laboratory in 2012. A list of so-called “Dookhan” cases was compiled so that the convictions could be re-visited and motions for new trials could be filed. Counties across the state set up “Dookhan” sessions to deal with defendants’ motions for new trials. Some defendants chose to go forward with new trials or re-negotiated pleas. Others chose not to for fear that they might lose at trial and get a worse sentence. Alternatively some defendants who had originally pled guilty to reduced charges in return for the plea chose not to try and vacate their pleas because of the concern that the original charges (rather than the reduced ones) would be reinstated. As a result, many defendants chose to take no action, despite the clear violation of their due process rights.

Continue reading →