Law Commentary

Published on: January 13, 2019

SJC Affirms Pimping Conviction but Changes Jury Instructions

The Supreme Judicial Court affirmed the defendant’s conviction of deriving support from prostitution in Commonwealth v. Brown, ruling that the statute (G.L. c.272, §7) is not unconstitutionally vague. The Court also ordered modifications to the model jury instructions for use in future prosecutions.

The background was as follows. The defendant “accompanied a woman to a prearranged prostitution transaction and was caught [by the police], immediately after leaving the scene with that woman, with the entire proceeds of the transaction hidden in his shoe.” He was charged with deriving support from prostitution under G.L. c.272, §7. The statute provides for punishment of “[w]hoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of [that person’s] prostitution.” “Historically, ‘pimps’ have been understood to be the objects of this prohibition, although no definition of … ‘pimp’ … has ever appeared in the statutory text.” On appeal from his conviction, the defendant “[c]laim[ed] that, without further clarification, the language of [the] statute is unconstitutionally vague and that he suffered prejudice from jury instructions tracking such language.” Continue reading →

Published on: January 8, 2019

Appeals Court Issues Decision on the Limits of Dorvil and Parental Discipline

By Daniel Cappetta

In Commonwealth v. Rosa (http://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-michael-c.-rosa), the Appeals Court ruled that the evidence at the defendant’s bench trial — on a criminal complaint charging him with assault and battery by means of a dangerous weapon (shod foot) –“was sufficient to support the judge’s finding that at least one of the parental discipline defense prongs was disproved beyond a reasonable doubt.”

The background was as follows. The defendant entered a CVS store with the victim, his five year old daughter. At some point, the victim began to run around the store; she “was laughing and hiding from the defendant.” In response, the defendant yelled and cursed at her. Later, as the defendant stood in the checkout line, “he saw his daughter by the front doors, hiding near the metal detectors. He did not pursue her, and she approached him.” When she “grabbed his legs,” “[h]e shoved her in her chest with his hand, causing her to take a step or two to regain her balance.” He “warned his daughter to stay away from him, telling her, ‘[G]et the fuck away from me. Trust me, you don’t want to fucking be near me right now.’ His daughter came toward him again. In response, the defendant lifted his foot and kicked his daughter in the chest, knocking her to the ground.” After the defendant completed his purchase, he and the victim left the store. A “CVS employee called the police to report the incident, and two police officers stopped the defendant shortly thereafter.” When they “asked him why he had kicked his daughter,” he “answered, ‘I don’t raise pussies,’” by which he meant “that he did not want to raise his children to be victims of bullying.” At his trial on a charge of assault and battery by means of a dangerous weapon (shod foot), the defendant invoked the affirmative defense that his “conduct was protected by the parental privilege defense.” Continue reading →

Published on: January 2, 2019

SJC Vacates Denial of Defendant’s Motion to Withdraw his Guilty Plea on Padilla Grounds, Remanding for Further Findings by Trial Court

By Daniel Cappetta

The SJC vacated the denial of the defendant‟s motion to withdraw his guilty plea in Commonwealth v. Lys and remanded the case because the judge, in evaluating the motion, “(1) might have failed to recognize his discretion to credit or discredit the defendant‟s affidavits [pertaining] to plea counsel‟s allegedly” inadequate advice on immigration consequences; and “(2) failed to make factual findings about whether special circumstances relevant to the prejudice inquiry existed.”

The background was as follows. “The defendant pleaded guilty … to violating multiple controlled substances laws. He was a lawful permanent resident who had emigrated from Haiti, and his plea rendered him deportable.” Subsequently, the defendant filed a motion to withdraw his plea on the ground that his trial counsel had rendered ineffective assistance by failing to advise him adequately as to the immigration consequences of the plea. In two affidavits in support of his motion, the defendant contended “that he would not have pleaded guilty if his counsel had properly advised him.” Plea counsel did not submit an affidavit. The judge denied the motion after a nonevidentiary hearing. Regarding the absence of an affidavit from plea counsel, the judge “declared that, „[f]aced with this paucity of factual information,‟ „the [c]ourt feels strongly that it must give the [d]efendant‟s … [a]ffidavits full credit.‟ Accordingly, the judge found that plea counsel had performed deficiently. But the judge went on to find that this deficient performance did not prejudice the defendant. Without making any factual findings, [the judge] concluded that „[he did] not find the presence of any special circumstances‟ suggesting that the defendant would have placed particular emphasis on immigration consequences when deciding whether to plead guilty.” The defendant appealed. Continue reading →

Published on: December 26, 2018

Appeals Court Reverses Defendant’s Conviction on Confrontation Clause Grounds

By Daniel Cappetta

The Appeals Court reversed the defendant’s conviction of domestic assault and battery on a family or household member in Commonwealth v. Wilson because the admission of testimonial out-of-court statements by the complainant, who did not testify at trial, violated the defendant’s right to confrontation.

The background was as follows. At the defendant’s trial, the complainant (the defendant’s wife) “assert[ed] spousal privilege and … decline[d] to testify.” In lieu of the wife’s testimony, the judge admitted a recording of a 911 call made by her and the testimony of a police officer (Barnes) who, in response to the 911 call, went to the marital home and spoke to her. During the 911 call, the defendant’s wife “stat[ed] that [the defendant] ‘choked [her] out,’ and that he said he would be back in fifteen minutes to kill her.” Barnes testified that when he spoke to the defendant’s wife, she reiterated “that the defendant left the premises and said that he would be back in fifteen minutes to kill her…. Barnes then testified, ‘I asked her to give me the rundown of exactly how it happened.’ He continued as follows: ‘[She said that] [h]er husband came home, and he was extremely upset … that he had seen a picture of her with a friend that he thought to be a drug addict. He accused her of being a drug addict…. He attempted to strangulate her and stick her head into a pill (sic) and suffocate her. He then went upstairs. He grabbed a handful of pills, tried to shove them down her throat, and said[,] ‘If you want to be a drug addict, I’m going to make you a drug addict.’” On appeal, the defendant argued that the judge erred in admitting his wife’s 911 call and Barnes’s testimony. Continue reading →

Published on: December 24, 2018

SJC Holds that Police Lacked Lawful Basis to “Freeze” House Prior to Obtaining Search Warrant

By Daniel Cappetta

In Commonwealth v. Owens, the Supreme Judicial Court agreed with the dissenting justice on the Appeals Court panel below and ordered suppression of “evidence discovered when police officers ‘froze’ a house while they obtained a warrant.”

The basic facts presented at the hearing on the defendant’s motion to suppress were as follows. “A team of Boston police officers believed … that a particular house … was being used for prostitution. The building was at least a two-family dwelling, and the owner, Farhad Ahmed, lived in an apartment on the first floor. The police officers were informed that a woman known as ‘Cinnamon’ worked there as a prostitute. One of the officers, posing as a prospective customer, made contact with Cinnamon, who … described the services she offered, arranged to meet him, and gave him the address of the house. The officer arrived at the house and entered. Ahmed was present in the first-floor common hallway. The … officer was aware that Ahmed rented out one or more of the rooms on the second floor for twenty dollars per two hours.” The police did not have probable cause to believe that drugs or alcohol were being sold at the house. “Cinnamon asked the officer for twenty dollars. On the pretext of getting his wallet from his motor vehicle, the officer opened the door and signaled other police officers to enter. They arrested Cinnamon and Ahmed. Continue reading →

Published on: December 22, 2018

SJC Clarifies Admissibility of Bowden Evidence

By Daniel Cappetta

In Commonwealth v. Moore, the Supreme Judicial Court clarified the admissibility of Bowden evidence and affirmed the defendant’s convictions of first degree murder and related offenses, despite the occurrence of two trial errors.

The background was as follows. The victim “was shot … by a masked gunman during an armed robbery and home invasion.” At the time, the victim was sharing an apartment with a roommate (LaPalm). “The victim sold cocaine and marijuana, and she kept large sums of money … in a small … strongbox.” On the date in question, the victim and LaPalm were at home when “a masked African-American man carrying a gun entered the [apartment]. The intruder was dressed in black and wore a ski mask covering his face; he was approximately six feet tall and slim.” LaPalm ran from the apartment. As she did so, she “saw a second man standing at the foot of the stairs outside…. He was approximately five feet, six inches tall, was dressed in black, and was wearing a ski mask.” LaPalm encountered a neighbor (Brown) and told him what had happened. Moments later, Brown saw two men wearing masks and dressed in all black leave [the victim’s] apartment. One of the men was shorter than the other, approximately five feet, six inches tall; the other was over six feet tall and thin. The two men ran past Brown’s motor vehicle toward a light colored minivan. One of the men was carrying a black box. Although he was unable to see either perpetrator’s face, Brown believed that he saw the hands of both men and concluded that they were African-American.” Around the time of the incident, three college students “who lived in a house next to the [victim’s] apartment complex” “saw two African-American men walking out of [their] backyard” towards the victim’s apartment complex. Also around the time of the incident, other neighbors saw an unfamiliar minivan parked nearby; they noted the license plate number and the police ascertained that the vehicle was registered to the defendant’s mother. A short time later, the police “observed [the vehicle] idling on a street; the defendant and his brother were inside…. At some point …, the defendant said, without any prompting, ‘That’s my little brother. He had nothing to do with what happened earlier.’” Police conducted showup identification procedures during which two of the college students positively identified the defendant as one of the men who had been in the students’ backyard. The defendant was arrested. Forensic testing revealed the presence of the victim’s DNA on the defendant’s T-shirt and inside the minivan in which he was apprehended. Continue reading →

Published on: December 20, 2018

SJC Applies Nelson v. Colorado to Bridgeman Cases

By Daniel Cappetta

In a recent decision – Commonwealth v. Martinez – the Supreme Judicial Court applied the holding of Nelsonv. Colorado, 137 S.Ct. 1249 (2017) and “provide[d] guidance to trial courts and litigants regarding the repayment [to a defendant] of probation fees, victim-witness assessments, restitution, fines, forfeitures, and court costs after a conviction has been invalidated.”

The background was as follows. In Nelson, “the United States Supreme Court held that ‘[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,’ the State is required under the due process clause of the Fourteenth Amendment … ‘to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.’ There can be no doubt that, because of this controlling authority, Massachusetts courts are required to order” such refunds after the invalidation of a defendant’s conviction. In the present cases, defendants Martinez and Green sought refunds … after their drug convictions were vacated and their indictments were dismissed with prejudice pursuant to Bridgemanv. District Attorney for Suffolk Dist., 476 Mass. 298 (2017), because the convictions were tainted by the misconduct of [state drug laboratory chemist] Annie Dookhan.” The two cases “present ten reported questions regarding the scope and application of the due process obligations established in the Nelsondecision. [The SJC] reformulated the reported questions into three broader questions.”

In its decision, the SJC “address[ed] each of the reformulated reported questions.” Question 1: “What is the scope of the due process obligation to refund money paid by a defendant ‘upon, and as a consequence of’ a conviction that has been invalidated?” Response to question 1: (a) Probation fees. “Here, all of the counts for which both defendants were sentenced to probation have been invalidated. As a result, all paid probation fees [under G.L. c.276, §87A] must be refunded.” (b) Victim-witness assessments. “As with probation fees, … the victim-witness assessment [paid] under G.L. c.258B, §8,” must be refunded. (c) Restitution. “Due process requires the refund of restitution.” “Because the restitution here was paid [by Martinez] to the Haverhill police department and has been repaid, we need not decide whether Nelsonrequires the Commonwealth to refund restitution paid by a defendant as a consequence of an invalidated conviction where the restitution was paid not to the Commonwealth, but to a private victim.” (d) Fines. “Green is … entitled to a refund of fines and surfines” that she paid as part of her sentence. (e) Forfeiture. “Green is not entitled to return of … forfeited funds because forfeiture … ‘is outside the scope of the criminal matter and constitutes a civil proceeding.’ Commonwealthv. Brown, 426 Mass. 475, 480 (1998).” Continue reading →

Published on: December 15, 2018

Appeals Court Reverses Denial of Defendant’s Motion to Suppress in Drug Case

By Daniel Cappetta

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A divided panel of the Appeals Court reversed the denial of the defendant’s motion to suppress cocaine and other items seized from his vehicle in Commonwealth v. Barreto on the ground that the police did not have reasonable suspicion to issue the exit order that led to the discovery of the seized items.

The evidence presented at the hearing on the defendant’s motion to suppress was as follows. The police received a tip “from an undisclosed source” “that a green Volvo station wagon containing a ‘large’ amount of drugs would be near a certain intersection [at an unspecified time]…. No other information regarding the tip [and none about the tipster] was provided at the … hearing” because “the prosecutor … did not want to risk identifying the informant.” The prosecutor sought to demonstrate that the search of the defendant’s vehicle was justified solely on the basis of the observations of the police officers who responded to the tip. According to the police testimony at the suppression hearing, four officers “set up surveillance at the intersection mentioned by the informant.” At some point, the officers “saw a green Volvo station wagon turn at the intersection” and park nearby. Then “one of the officers observed the vehicle’s operator, subsequently identified as the defendant, lean down toward his right side ‘as if he [were] reaching toward the floor of the passenger side with both hands.’…. [T]he officer could not see the defendant’s hands…. Observing from a distance, the officers saw a man approach the parked vehicle from an adjacent building[,] interact with the defendant at the driver’s side window for approximately half a minute[,]” and then walk away. While the judge found that the police observed the unidentified man … lean toward [the vehicle] ‘in a manner consistent with that man placing his hands on the Volvo door or reaching inside the Volvo,’ [the judge] also found that the police did not observe the defendant and the unidentified man actually ‘reach their hands toward each other … or exchange any object.’…. [Nonetheless,] the judge found that their interaction was ‘consistent with the two men exchanging something.’ After the man walked away, the defendant drove … to an adjacent street, where the police pulled his vehicle over.” “The defendant cooperated with the police after the stop.” “Although [he] appeared nervous, he produced his driver’s license and vehicle registration when requested to do so…. [One of the officers] ordered the defendant out of the vehicle. As [he] was stepping out …, the officer saw a roll of cash in a clear plastic bag on the inside of the driver’s door. After … a patfrisk of [the defendant] revealed nothing, the police initiated a thorough search of the vehicle,” which revealed “a large amount of cocaine,” $11,050 in cash, and other items. The judge denied the defendant’s motion to suppress those items, “conclud[ing] that the police had reasonable suspicion to stop the vehicle and to order the defendant out of it based on the brief interaction [purportedly consistent with a drug transaction] … between the defendant and the unidentified man who had approached his vehicle. Then, according to the judge, once the police observed the wad of bills in the driver’s door while the exit order was being executed, they gained probable cause that justified their subsequent search of the vehicle.” The defendant appealed. Continue reading →

Published on: December 1, 2018

Appeals Court Reverses Conviction in HO Case and Provides Definition for “Remain Away Provision”

By Daniel Cappetta

In Commonwealth v. Goldman, the Appeals Court reversed the defendant’s convictions of “violating the provisions of two G.L. c.258E harassment prevention orders that required him to ‘remain away from [the protected persons’] residence,’” because the judge did not adequately instruct the jurors as to the meaning of the phrase “remain away.”

The background was as follows. The defendant was a member of the congregation of a small synagogue. “After [his] conduct at the synagogue led to disputes between him and John and Mary Smith (pseudonyms) — a husband and wife who held leadership positions in the congregation — the Smiths obtained essentially identical c.258E orders against the defendant.” The orders required that the defendant “‘remain away from [the Smiths’] residence,’” but indicated that “the defendant could ‘attend services at the synagogue … respectfully[, so long as he did] not abuse’ the Smiths.” When “a large snowstorm [was] forecast for Saturday, February 21, 2015, the Smiths invited members of the synagogue to spend the night of February 20 at the Smith residence, so that services could be conducted at the residence the following day without members having to travel outdoors. About fourteen members accepted. The defendant was not invited.” During the services the next morning, “John Smith looked out his living room window and noticed the defendant walking along the street … thirty to forty feet [from] the Smiths’ property.” A short time later, Mary Smith “looked out another window, saw the defendant walking up their driveway, and called 911. A police officer arrived a few minutes later and observed the defendant standing in front of the Smiths’ house. The officer spoke to the Smiths and then arrested the defendant for violating the c.258E orders. The defendant told a different story…. [He] testified that he … came no closer [to the Smiths’ residence] than an intersection that … was one and one-half blocks [away].” The judge instructed the jury that the central issue was “whether the defendant had violated the [harassment prevention] orders ‘by failing to stay away from [the Smiths’] address.’…. [D]uring their deliberations, the jury sent a note asking, ‘Is there further definition/specification available for what it means to “remain away from the plaintiff’s residence”…? Does it mean to stay off … or a certain distance away … or nowhere in vicinity, etc.?’” Over the defendant’s objection, “[t]he judge … instructed the jury: ‘[T]he term stay away has no strict definition for you to consider; instead, you are to assess the term by the plain meaning [of] what it is to stay away from a given location using your common sense and life experiences….’ The jury then returned guilty verdicts on both charges.” On appeal, the defendant challenged the adequacy of the judge’s instructions. Continue reading →

Published on: November 25, 2018

SJC Issues Comprehensive Remedy in Farak Cases

By Daniel Cappetta

In Committee for Public Counsel Services & others v. Attorney General & others, the Supreme Judicial Court announced a comprehensive remedy for the evidence tampering by Amherst state laboratory chemist Sonja Farak and for “the deceptive withholding of exculpatory evidence by members of the Attorney General’s office, who were duty-bound to investigate and disclose Farak’s wrongdoing.”

The background was as follows. In a prior decision addressing the Amherst lab scandal, Commonwealthv. Cotto, 471 Mass. 97 (2015), the SJC “remanded the matter to the Superior Court to provide the Commonwealth an opportunity to fulfil its duty to ‘learn of and disclose … any exculpatory evidence that is held by agents of the prosecution team, who include chemists working in State drug laboratories’ (citation and quotations omitted). Id. at 112, 120. On remand, on December 7, 2015, the Chief Justice of the Superior Court appointed Superior Court Judge Richard J. Carey to hear all cases arising from Farak’s misconduct. In December, 2016, Judge Carey conducted an evidentiary hearing …, after which he found that the government had vastly understated the extent of Farak’s misconduct. Moreover, he determined that two assistant attorneys general [Foster and Kaczmarek] had perpetrated a ‘fraud upon the court’ by withholding exculpatory evidence” — Farak’s mental health records, which showed that her misconduct commenced earlier than had been thought — “and by providing deceptive answers to another judge in order to conceal the failure to make mandatory disclosure to criminal defendants whose cases were affected by Farak’s misconduct. The judge determined that certain cases in which Farak had signed a certificate of drug analysis … during her employment at the Amherst lab were subject to dismissal. He found further, however, that Farak’s misconduct had not undermined testing results reported by other chemists who had been assigned to the Amherst lab during the period that Farak was employed there.” The petitioners in the present case “sought relief in the county court through a petition pursuant to G.L. c.211, §3, and G.L. c.231A, §1, claiming that” a “‘global remedy’” was required. “Following a number of hearings, the district attorneys agreed to the vacatur and dismissal of approximately 8,000 cases in which Farak had signed a drug certificate…. The single justice reserved and reported the matter to the full [SJC], and issued three questions for the parties to answer in their briefs.” The first question subsequently became moot. “The [remaining] reported questions asked: ‘2. Whether the definition of “Farak defendants” being employed by the District Attorneys in this case is too narrow; specifically, based on the material in the record of this case, whether the appropriate definition of the class should be expanded to include all defendants who pleaded guilty to a drug charge, admitted to sufficient facts on a drug charge, or were found guilty of a drug charge, if the alleged drugs were tested at the Amherst Laboratory during Farak’s employment there, regardless [of] whether Farak was the analyst or signed the certificates in their cases[;]’ [and] ‘3. Whether, as the petitioners request, the record in this case supports the court’s adoption of additional prophylactic measures to address future cases involving widespread prosecutorial misconduct, and whether the court would adopt any such measures in this case.’”

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