Articles Posted in Law Commentary

In a recent case, Commonwealth v. Pfeiffer, the Supreme Judicial Court ruled that the judge’s supplemental instruction on arson was erroneous, because it gave the jury the option of convicting on the grounds that the defendant intentionally failed to extinguish or report a fire which had been accidently or negligently set.

The background was as follows. “Following an argument with her boyfriend, the defendant set a bag of his clothes on fire inside their apartment, then fled the building,” “locking the exterior door of the building behind her, and without calling for help or alerting other occupants.” “One person died in the resulting two-alarm fire. Three others, including two firefighters, were injured.” Prior to trial, “the Commonwealth represented that its theory [of arson] was based on the [defendant’s] setting of the fire, not [her] failure to act after the fire was set…. At trial, the Commonwealth largely abided by [that] representation…. However, during the charge conference, the trial judge, without prompting from the Commonwealth, suggested she was inclined based on the evidence to provide the jury with a supplemental instruction that, in its final form, stated” that “‘a person may have the required intent for arson if he or she negligently or accidentally causes a fire and then willfully and maliciously makes no attempt to extinguish it or to report it. In that circumstance, the necessary criminal state of mind for arson … may be formed after the fire starts.’” Over the defendant’s objection, the judge provided the supplemental instruction. On appeal, “the defendant argue[d] that the supplemental instruction was improper because [the arson statute,] G.L. c.266, §1, does not criminalize the wilful and malicious failure to extinguish or report an accidentally or negligently set fire.” Continue reading →

In a recent decision – Commonwealth v. Quinones – the Appeals Court concluded that the trial court judge properly denied the defendant’s motion to suppress his statements to the police.  The Appeals Court specifically ruled (1) “that, for Miranda purposes, a juvenile’s age must be considered in determining whether the juvenile was subjected to the functional equivalent of police questioning”; and (2) “that the police officer’s advice to the defendant [in this case] would not be perceived as interrogation by a reasonable juvenile of the defendant’s age in the same circumstances.”

The background was as follows. “[T]he victim was shot in the leg while walking down the driveway of his friend’s house…. He did not see the shooter…. Surveillance video footage … from a nearby convenience store revealed an individual, whom the jury could have identified as the defendant, riding [a] bicycle…. That individual, wearing a black shirt, gray shorts, white socks, and black shoes, rode out of the video frame,” then reappeared two minutes later, “biking in the opposite direction…. He rode his bicycle across the street, in the direction of the driveway where the victim was shot.” After the shooting, the police arrived at the scene promptly and “began searching the surrounding area…. [They] found the defendant, who was sixteen years old at the time and therefore a juvenile, and another male inside a vehicle…. The defendant was lying down ‘in the backseat of the car, kind of crunched down.’ He was wearing gray shorts underneath blue jeans, a black shirt, and black shoes. A bicycle was on the ground near the vehicle…. After an officer confirmed with the owner of the vehicle that the defendant and the other male were not authorized to be in it, police arrested both of them and brought them to the … police station for booking.” The defendant was not informed of his Miranda rights. “After spending [an] hour at the police station …, the defendant was transported to an alternative lockup….  [He] asked the transporting officer why he was being locked up. The officer answered and gave the defendant advice about ‘the negative things that the streets bring to people.’ The officer advised the defendant to ‘clean up his act,’ as otherwise ‘he’s going to wind up in serious trouble.’ The defendant said ‘something [like] people are going to feel sorry when he comes out, relating t[hat] he had been proving himself.’ The officer then advised the defendant ‘to just get out completely. There’s nothing positive about the life path that he had chosen.’” After the return of indictments against the defendant, he moved to suppress his statements to the transport officer. The motion was denied. “[T]he motion judge found that the defendant’s statements were not made in response to interrogation or the functional equivalent of interrogation. At trial, the … statements … were admitted in evidence” and the defendant was adjudicated a youthful offender. On appeal, he challenged the denial of his motion to suppress. Continue reading →

In R.S. v. A.P.B., the Appeals Court ruled that the evidence was insufficient to support the judge’s issuance of a harassment prevention order against the defendant pursuant to G.L. c.258E.

The background was as follows. “The parties, who were students at the same college, had previously had a romantic relationship. By March, 2017, [the] relationship had ended.” At this time, the plaintiff, R.S., asked the defendant, A.P.B., to stop communicating with her on social media. Eventually, she blocked his telephone number and Twitter account. “Thereafter, R.S. received messages that she described as ‘linked to [A.P.B.’s] name’ as well as messages from what she called ‘fake accounts.’” Eventually, she sought relief pursuant to G.L. c.209A. “In her affidavit [in support of a protective order], R.S. wrote that ‘[d]ue to [A.P.B.’s] persist[e]nce through his messages and graphic language, he has instilled fear in me.’” The judge “issued a harassment c.258E order.” A week later, “a different judge held an evidentiary hearing on R.S.’s request for an extension of the c.258E order.” In her testimony, R.S. recounted much of what was set forth in her affidavit concerning her receipt of social media and text messages. After blocking A.P.B. from her accounts on these sites in the spring of 2017, she continued to receive messages.” (A.P.B. acknowledged that “[h]e reached out to R.S. on the anniversary of his half-sister’s death and on R.S.’s birthday.”) Also, some of R.S.’s friends continued to receive messages. (For example, “‘Can you tell [R.S.] that I’m looking for her?’ and, ‘Tell her I think of her every day I wake up.’”) “R.S. testified that she thereafter received messages on her ‘Snapchat’ account with three variations of A.P.B.’s name: ‘[A.P.B.] 123,’ ‘[A.P.B.] 96,’ and ‘[A.P.B.] 82.’ None of these messages were abusive, malicious, or intimidating.” “Upon her return to school in the fall of 2017, R.S. … receiv[ed] ‘a[d]ds’ on her Snapchat account from people she did not know. Most of the names included the number 59, a number that had no significance to her. R.S. replied to one of these messages, asked if they were coming from A.P.B., and asked for the messages to stop. The response was ‘just send me some nudes … send me pics.’ When R.S. asked who the messages were from, the sender responded, ‘the guy who wants to fuck you senseless.’” A police officer from the parties’ college testified “that ‘anybody, basically, can create’” a new email address and a user name. The officer “acknowledged that it was very difficult to actually track who sends these types of messages.” The judge extended the G.L. c.258E order for one year. APB appealed. Continue reading →

The SJC ruled in Commonwealth v. Colon (1) that the judge erred in restricting the defendant’s presence at the voir dire of the deliberating jurors by depriving him of a translator; and (2) that, henceforth, in cases of murder, sexual offenses against children, and rape, “where a defendant … requests individual voir dire [of the prospective jurors] on the issue of … ethnic prejudice, and the defendant and the victim are of different such backgrounds, that request should be granted.”

The background was as follows. The defendant, who is Hispanic, was charged with murdering the victim, who was Caucasian. During jury deliberations, juror no. 15 revealed to a court officer that she feared the defendant. “The judge found that juror no. 15 could not remain impartial and excused her. Because juror no. 15 reported that [other jurors] had expressed similar … fears, the judge conducted an individual voir dire of each of the remaining members of the jury.” Juror no. 1 also was excused. “Throughout the trial, the defendant made use of … Spanish interpreters, who spoke to him through a headset.” During the voir dire of juror no. 15, the defendant was not provided with a translator. “After juror no. 15 had been dismissed, and before any of the other deliberating jurors had been interviewed by the judge, defense counsel requested that the defendant be present during the voir dire of the remaining jurors. The judge, however, was concerned that the jurors would not speak candidly about their fear of the defendant if they knew he was listening.” The judge decided, therefore, that the defendant “‘[could] be present, but not present with ears.’ The judge effectuated the defendant’s presence ‘without ears’ by prohibiting interpreters at sidebar during the individual voir dire, such that the defendant could ‘watch’ but would not understand what was being said. Defense counsel then could relay pertinent information to the defendant at a later point. Defense counsel agreed that, if a juror were excused, counsel would tell the defendant only that it was for ‘personal reasons,’ without explaining that any of the jurors had expressed fears of him.” On appeal from his conviction, the defendant contended that by restricting his presence at the voir dire of the jurors, the judge violated his right to be present at a significant stage of his trial. Also on appeal, the defendant contended that the judge deprived him of his right to an impartial jury by declining “to conduct individual voir dire [regarding] prospective jurors’ ethnic bias.” Continue reading →

In Commonwealth v. Tejada, the Supreme Judicial Court affirmed the allowance of the defendant’s motion to revise and revoke his sentence under Mass. R. Crim. P. 29(a)(2), “based upon the disparity between the defendant’s sentence and a coventurer’s sentence subsequently imposed by a different judge.”

The background was as follows. The defendant was convicted of armed robbery and related offenses, “stem[ming] from his involvement in the robbery of a man from whom the defendant and two friends had arranged to buy marijuana.” At the scene of the crime, “[t]he defendant remained in the [perpetrators’] vehicle while his two coventurers [Pichardo and Etienne] entered a residence with the intention of obtaining the marijuana through a ruse, rather than through payment…. Their robbery led to a gun fight, during which Pichardo was shot and killed…. [T]he defendant received a State prison sentence of from six to eight years on the armed robbery count. After a separate trial before a different judge …, Etienne received a State prison term of from five to seven years for armed robbery. The defendant subsequently filed a motion to revise and revoke based on the disparity between those sentences. The judge agreed with the defendant and reduced his sentence to match the sentence of Etienne. The Commonwealth appealed, and … the Appeals Court reversed, concluding … that the judge’s decision was improperly based on an event that occurred after the defendant had already been sentenced…. [The SJC] allowed the defendant’s application for further appellate review.” Continue reading →

In Commonwealth v. Williams (), the Supreme Judicial Court reversed the denial of the defendant’s motion for post-conviction forensic testing of evidence pursuant to G.L. c.278A on the ground that the statute is applicable to the defendant, who claimed that no crime occurred and, therefore, that he was factually innocent because he shot the victim in self-defense.

The background was as follows. The defendant pleaded guilty to manslaughter, but later sought to change his plea. “[He] assert[ed] his innocence, claiming that he acted in self-defense.” He filed a motion pursuant to G.L. c.278A, accompanied by an affidavit alleging “that he grabbed the victim’s wrist when the victim pulled out a gun, and

pushed against the victim, at which time he heard two gunshots in close succession.” The motion “request[ed] that clothing recovered from the victim be tested for traces of gunshot residue and that shell casings recovered at the crime scene be tested for fingerprints. The defendant claimed that forensic testing of this evidence would show that the weapon belonged to the victim and that the defendant shot the victim in self-defense.” The judge denied the motion and the defendant appealed. Continue reading →