Articles Posted in Law Commentary

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air-soft-gun-1-1500175-300x189The Appeals Court ruled in Commonwealth v. Resende (1) that the evidence in support of the charge of possession of a loaded firearm without a license, pursuant G.L. c.269, §10(n), “was sufficient to permit the fact finder to infer that the defendant had knowledge that the firearm was loaded”; and (2) that the evidence in support of the charge of possession of a large capacity firearm, pursuant to G.L. c.269, §10(m), “was insufficient to permit the fact finder to infer that the defendant had knowledge that the firearm was capable of holding more than ten rounds of ammunition.”

The background was as follows. The police received a 911 call indicating “that an individual … was yelling for his girl friend and issuing unspecified threats, and that the individual had mentioned a ‘gun.’” The caller provided descriptive information about the individual and his clothing. Officer Delehoy and other officers responded to the location mentioned by the caller, which was in a high crime area. Upon arriving there, Delehoy saw the defendant, who fit the description provided by the caller. “Delehoy told the defendant to remove his hands from his pockets, and the defendant complied.” The officer “then asked the defendant whether he had any weapons on him. In response, the defendant … lifted his jacket, and exposed the grip end of a firearm that was located in his waistband…. The defendant was arrested after he failed to produce a valid license to carry the firearm.” Delehoy “removed the magazine from the firearm and inspected the firearm…. The magazine contained fourteen rounds of ammunition and was capable of holding up to fifteen rounds…. At the time the firearm was removed from the defendant’s waistband, the ammunition inside the magazine was not visible and only became visible when … Delehoy removed the magazine from the firearm. No shell casings were observed in the area where the defendant was arrested, and the defendant made no statement indicating he knew that the firearm was loaded or that it was a large capacity firearm. The defendant did not have any loose rounds of ammunition on his person. During booking, the defendant stated that ‘a guy’ gave him the firearm because the defendant ‘likes guns.’” On appeal from his convictions of possession of a loaded firearm without a license and possession of a large capacity firearm, the defendant challenged the sufficiency of the evidence.

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mobile-in-hand-1239462-300x200In Commonwealth v. Arthur, the Appeals Court reversed the suppression of the contents of cell phones seized by the police, because the judge erroneously ruled that “the police unreasonably delayed obtaining a warrant to search the contents of” the phones.

The basic facts were as follows. “[T]he defendant and two accomplices [Williams and Richardson] participated in a coordinated attack on a home at 7 Morse Street in … Boston. Much of the attack was witnessed by various Boston police officers…. At approximately 4:30 p.m. two cars drove onto Brinsley Street, one street away from and parallel to the block of 7 Morse Street. The defendant was driving one of the cars and was alone. Williams was driving the other car, with Richardson in the front passenger seat. Both cars parked on Brinsley Street…. Shortly after parking, Williams and Richardson got out of their car … [and] walked briskly … in the direction of Morse Street…. [As they approached] Morse Street, the defendant got out of his car … and began peering through the yards toward the area of 7 Morse Street ‘as if he was waiting to see something occur.’ Shortly thereafter, shots were heard coming from Morse Street. Williams and Richardson then were observed running down Morse Street, with Williams holding a gun in his hand…. Williams [ran] to Brinsley Street and, after discarding his firearm, got into the passenger seat of the defendant’s car. The defendant had, by this time, returned to his car, but before he could drive away with Williams they were stopped and arrested by the police. Later, the police confirmed that multiple bullets had been fired into the home at 7 Morse Street…. An officer on the scene observed two cell phones in the defendant’s car — one on the driver’s seat and one on the front passenger’s seat. The officer observed three cell phones in the car initially driven by Williams — two on the driver’s seat and one in the passenger’s side door handle. The police impounded both cars. Three days [later], [they] sought and received [an initial] warrant to search both cars and to seize all the cell phones…. [T]he cell phones were seized[] and … were thereafter held as evidence. The Commonwealth did not seek to view the contents of the cell phones, however, until eighty-five days after the impoundment. On [that day], the Commonwealth sought [a] second warrant, this time specifically requesting to search the ‘electronic data’ of each of the seized cell phones…. The second warrant was issued on the same day, and the cell phones were searched. [Subsequently,] the defendant was indicted for two counts of armed assault with intent to murder,” and related offenses. The defendant filed a motion to suppress evidence found as a result of the search of the two cell phones found in his vehicle, on the ground “that the eighty-five-day delay in seeking the second warrant rendered the search unreasonable.” The judge granted the motion and the Commonwealth appealed.   Continue reading →

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suicide-blonde-4-1474465-194x300The Appeals Court vacated the dismissal of the plaintiff’s complaint that sought a G.L. c.209A abuse prevention order in M.G. v. G.A., because the trial court judge erroneously found that the parties’ conduct at the critical juncture did not constitute “sexual relations.”

The background was as follows. “[T]he plaintiff, M.G., filed a complaint for an abuse prevention order against the defendant, G.A., pursuant to G.L. c.209A…. An evidentiary hearing on the matter was … held…. Viewing the evidence in the light most favorable to the plaintiff, the judge could have found the following facts. The plaintiff and the defendant began dating in … 2012[] and purchased a condominium together by the end of 2013. In … 2015, the defendant moved out of the condominium, but the parties continued to have sexual relations. In December [of that year,] the defendant initiated a consensual sexual encounter with the plaintiff. The parties engaged in ‘genital-to-genital contact’ as well as ‘finger-to-genital contact.’ At some point during the sexual encounter, the plaintiff stated, ‘I’m done, I’m tired’ while the defendant was physically on top of her. She told the defendant at least twice that she ‘did not want to be doing this.’ The defendant stated ‘that he wanted to finish.’ The defendant then masturbated to ejaculation while remaining physically on top of the plaintiff.” At the close of the plaintiff’s case, the defendant moved for a directed finding that the evidence did not justify issuance of an abuse prevention order. “The judge allowed the motion [and dismissed the complaint], concluding that the plaintiff failed to prove that the defendant caused her to ‘engage involuntarily in sexual relations by force, threat or duress [G.L. c.209A, §1(c)],’” one of the predicates for issuance of an order, “because the parties were no longer engaging in sexual intercourse after the plaintiff said she was ‘done’ and ‘tired.’ Rather, the judge reasoned, ‘the most it could have been was an assault and battery at that point in time.’” On appeal, “[t]he plaintiff argue[d] … that the term ‘sexual relations’ as used in G.L. c.209A, §1, should not be so narrowly construed.” Continue reading →

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child-1468032-300x225In Commonwealth v. Childs, the Appeals Court affirmed the defendant’s convictions of indecent assault and battery and indecent assault and battery on a child.  In its decision, the Appeals Court ruled that the judge properly admitted evidence of uncharged misconduct by the defendant toward the complainant, in order “to show the nature of the relationship” between them and the absence of accident.

The background was as follows. The defendant was a close friend of the complainant’s family “and had been a part of the [complainant’s] life since her infancy.” The complainant alleged that the defendant sexually abused her over the course of seven years, starting when she was five or six years old. “The charged acts, which occurred in Middlesex County, happened at the beginning and the end of [the seven-year] period.” For some time between the dates of those acts, the complainant’s family lived in Hamden County. The complainant alleged that there, too, the defendant sexually abused her. The defendant was not charged with the commission of those offenses. At the defendant’s trial, the judge admitted the complainant’s testimony as to the defendant’s uncharged misconduct. On appeal, the defendant challenged the admission of that evidence. Continue reading →

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money-1189273-300x225The Appeals Court recently issued a decision in Commonwealth v. Bruno-O’Leary, reversing the revocation of the defendant’s probation because the judge “did not sufficiently consider [the defendant’s] financial resources and obligations before deciding to find her in violation.”

The background was as follows. In 2009, the defendant pleaded guilty to a single count of larceny over $250. “The plea judge sentenced her to a suspended house of correction term of two … years, with a five-year probationary period, and ordered the defendant to pay $98,000 in restitution.” Over the course of her probationary period, “[t]he probation department issued the defendant several violation notices …, primarily for failure to make restitution payments.” At three different junctures during the probationary period, the judge extended the defendant’s probation. “At the final probation revocation hearing held [in] 2016, the defendant stated that she could no longer afford the $300 monthly restitution payments…. Her testimony, supplemented by [an] affidavit …, showed that she and her two children received total monthly Social Security disability benefits of $2,087; she also received $324 per month in food stamps. She was unemployed and actively searching for work, which her felony conviction made difficult…. Her husband, who had been receiving workers’ compensation payments since September, 2015, had lost his job in January, 2016. Neither the defendant nor her husband had any retirement savings, bank accounts, or stocks…. As to expenses, the family rented a three-bedroom house for $1,695 per month. In order to pay the $1,600 heating oil bill for the winter, they had not paid the electric bill and owed $1,400. The defendant and her husband paid $105 per month for … cell phone service.” In response to this information, “the judge said that he simply did not believe” the defendant’s explanations as to why she was unable to make her monthly restitution payments. “Concluding that the defendant ‘made very little effort over the past seven years to make this good,’ the judge revoked the defendant’s probation and ordered [that she] serve the balance of her suspended sentence.” The defendant appealed.

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balance-1172800-1-300x204A divided SJC reversed the defendant’s convictions for various sex offenses – rape of a child and indecent assault and battery upon a child – in Commonwealth v. Alvarez because the prosecutor, in her closing argument, erroneously “told the jury of critical corroborative evidence that was not presented at trial.”

The background was as follows. “The strength of the Commonwealth’s evidence in this case rested on the credibility of Camila, a twelve year old girl who recounted acts of sexual abuse by the defendant that had allegedly occurred on various occasions when she was between the ages of six and nine. The defendant is Camila’s godfather, and is married to Camila’s aunt; Camila thinks of the defendant as her uncle.” Camila testified that during an episode of abuse in the defendant’s house, his “penis touched [her] vagina,” after which “her vagina felt ‘sticky,’ ‘wet, and disgusting.’” Camila stated that after the defendant drove her home, she still “felt ‘wet and sticky and gross,’ [so she] asked her mother if she could shower.” “This was the only [alleged] sexual incident in which there was any indication that the defendant had ejaculated, so corroboration from a source other than Camila that she felt ‘wet and sticky’ would strongly corroborate her testimony regarding that incident.” During the prosecutor’s opening statement, she told the jury “that Camila would testify that, after she returned home and told her mother that she needed to ‘take a tub or a shower,’ ‘[h]er mom said, “Why? You just took one before you left, a few hours ago.”’ However, when Camila testified, she [stated] only that she had asked her mother whether she could take a shower…. She was not asked what her mother said in response to her desire to take a shower, and did not testify as to any statement made by her mother regarding that incident. When Camila’s mother testified, the prosecutor did not ask about this incident; the mother said nothing about Camila asking to ‘take a tub or a shower’ or her saying she felt ‘wet,’ ‘disgusting,’ or ‘sticky’ when she came home.” “However, during closing argument, the prosecutor, in answer to defense counsel’s argument that the case rested solely on the words of Camila, said: ‘the Commonwealth submits that’s not true. You have some corroboration … of [Camila’s] word in other forms. You have her mom saying … she told you how that first time [Camila] came home and asked to take a bath, because she felt disgusting? Mom told you, “She did come home one day and ask to take a bath, and I thought it was weird, because she had taken a bath that morning.” That’s corroboration.’ Defense counsel objected at the end of the prosecutor’s closing argument, informing the judge that there was no evidence that the mother provided any corroboration of Camila’s testimony that she told her mother she needed to bathe…. The judge refused to give any curative instruction.” Continue reading →

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gavel-1238036-300x201In Sharris v. Commonwealth, the Supreme Judicial Court dismissed the indictments against the defendant (including one for first degree murder). In its decision, the SJC ruled that “[b]ecause it is undisputed that the defendant will never become competent, allowing charges that can never be resolved at a trial to remain pending indefinitely is inconsistent with his right to substantive due process.”

The background was as follows. “General Laws c.123, §16(f), provides for the dismissal of criminal charges when an individual is found incompetent to stand trial. The statute requires mandatory dismissal of charges at the time when the individual would have been eligible for parole if he or she had been convicted and had been sentenced to the maximum statutory sentence…. The statute also provides courts with the discretion to dismiss criminal charges ‘prior to the expiration of such period.’…. The defendant, who is now seventy-four years old, was charged with murder in the first degree and [a related offense] in 1994, when he was fifty-one years old. At that time, he was deemed incompetent to stand trial. Since then, he continually has been deemed incompetent, and at this point, the Commonwealth has conceded that he is permanently incompetent. The nature of the defendant’s mental impairment, a form of alcohol-induced dementia, is such that it is permanent, degenerative, and not amenable to any form of treatment. Additionally, his physical condition is deteriorating, and he is now physically frail, nourished through a feeding tube, and bedridden. It is likely that his physical condition also will continue to worsen. Due to the level of medical care he requires, in August, 2015, the defendant was released on bail, with conditions, so he could be placed in a hospital setting. He is civilly committed to the Department of Mental Health [], and is being cared for in an unlocked wing of a public hospital operated by the Department of Public Health []. Although G.L. c.123, §16(f), does not explicitly exclude murder in the first degree from its provisions for dismissal, it does so effectively, because the statute is based on the date of parole eligibility, and there is no parole eligibility date for the offense of murder in the first degree. The defendant contends that the charges against him nonetheless should be dismissed, either under the provision allowing discretionary release or on constitutional grounds. Beginning in 2001, through … 2016, the defendant has filed motions to dismiss, and motions for reconsideration, arguing that G.L. c.123, §16(f), violates his right to substantive due process because it restricts his fundamental right to liberty and is not narrowly tailored to achieve compelling State interests…. All of these motions have been denied. In … 2016, the defendant sought relief pursuant to G.L. c.211, §3, from the denial of his most recent motion for reconsideration. He thereafter appealed to [the full SJC] from the denial of his petition.” Continue reading →

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ouch-1434056-300x199The Appeals Court ruled in Commonwealth v. Sudler that the evidence was insufficient to support the defendant’s conviction of battery with intent to intimidate causing bodily injury, pursuant to G.L. c.265, §39(b) on the ground that the victim’s injury, “two cut fingers,” did not constitute “‘substantial impairment of the [victim’s] physical condition’ as required by the statute.”

The background was as follows. As the victim was walking toward a subway station in South Boston, “he heard a vehicle door slam, heard someone call him ‘faggot,’ and turned to see the defendant and the codefendant talking to him. The defendant continued to taunt the victim by calling him ‘faggot’…. As the defendant and the codefendant walked toward him, the victim noticed that the defendant held a knife in his hand…. The victim pulled out his own knife, an argument ensued, and the defendant ‘took a swing’ at the victim. The victim ‘jumped back’ and ‘took a swing back at [the defendant].’ The parties exchanged words” before separating. “[A]s the victim walked to the station he noticed” that blood was dripping from his hand and that he “‘was just losing a lot of blood.’ [He] … saw that two fingers of his hand had been cut. One cut was located on the victim’s left ring finger, which, according to his testimony, was ‘sliced … [f]rom nearly the top to the joint.’ The other cut was to the middle finger and went ‘from [the] side near the joint from the middle to the end, the corner.’” “Emergency medical services (EMS) … tended to the victim[,]” who “was upset because EMS did not offer him antibiotics or any other services. ‘All they did was basically [give him] a Band Aid.’” On appeal, “[t]he defendant contend[ed] that the evidence was insufficient to prove ‘bodily injury’ as defined under G.L. c.265, §39(b).” Continue reading →

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shhhh-1433634-225x300The Supreme Judicial Court ruled in Commonwealth v. Rosado that the Commonwealth had failed to prove, pursuant to the doctrine of forfeiture by wrongdoing, that the defendant forfeited his right to object to the admission of a witness’s out-of-court statements.

The background was as follows. “The defendant … is the former boy friend of the witness [Ortiz], and the father of her young daughter.” “Ortiz was a key witness for the prosecution” in the murder prosecution of a friend of the defendant (Mercado). “[T]he day before Mercado’s trial began, Ortiz was interviewed by two State police troopers regarding [Facebook] communications she had received from the defendant,” including statements calling her a “‘trifling bitch’” and “‘an undercover rat.’” Another posted message from the defendant “urged [Ortiz] not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her.” Ultimately, “Ortiz did testify at Mercado’s trial, but the jury” acquitted him. Subsequently, the defendant was indicted for intimidation of a witness (Ortiz), in violation of G.L. c.268, §13B. “[T]he Commonwealth moved in limine to admit in evidence Ortiz’s recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz’s testimony at the defendant’s trial.” Under that doctrine, “a defendant, by his or her wrongdoing, may … forfeit his or her right under art. 12 [of the Massachusetts Declaration of Rights] and our common-law rules of evidence to object to the admission of hearsay evidence.” In Commonwealthv. Edwards, 444 Mass. 526, 540 (2005), the Court “held that the Commonwealth must prove three elements by a preponderance of the evidence for forfeiture by wrongdoing to apply,” including that “‘the defendant acted with the intent to procure the witness’s unavailability.’” Continue reading →

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barbed-wire-1244350-224x300In Commonwealth v. Perez (Perez II), the Supreme Judicial Court “clarif[ied] the extraordinary circumstances requirement,” as set forth in Commonwealthv. Perez, 477 Mass. 677 (2017) (Perez I), which might “justify[] longer periods of incarceration prior to eligibility for parole for juveniles who did not commit murder than for those who did.”

The background was as follows. The seventeen year old defendant committed three serious crimes in one day. “[H]is uncle, … Abrante, gave the defendant a gun and encouraged him to … commit these crimes.” In the third incident, the defendant shot and grievously wounded an off-duty police detective. “For this crime spree, the defendant was convicted by a jury of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and firearms offenses…. [T]he trial judge sentenced him to an aggregate sentence of thirty-two and one-half years, with parole eligibility after twenty-seven and one-half years.” In its decision on the defendant’s direct appeal, Perez Iat 688, the SJC “determined that the … defendant … received a sentence for his nonhomicide offenses that was presumptively disproportionate under art. 26 of the Massachusetts Declaration of Rights in that the time he would serve prior to parole eligibility exceeded that applicable to a juvenile convicted of murder. [The SJC] therefore remanded the matter to the Superior Court for a hearing to determine whether, in light of the factors articulated by … Millerv. Alabama, 567 U.S. 460, 477-478 (2012), the case presented extraordinary circumstances justifying a longer parole eligibility period.” After considering the Millerfactors, including the immaturity of juveniles, the home environment of the defendant, and the circumstances of the defendant’s crimes, the judge “concluded that extraordinary circumstances [in particular, the detective’s  catastrophic injuries] were present. [The judge] therefore denied the defendant’s motion for resentencing, leaving intact a longer period of incarceration for the defendant prior to his being eligible for parole than would be the case for a juvenile convicted of murder. The defendant [remained] eligible for parole [only] after twenty-seven and one-half years in prison, while a juvenile convicted of murder at that time would have been eligible for parole after fifteen years. See Diatchenkov. District Attorney for the Suffolk Dist., 466 Mass. 655, 673 (2013), S.C., 471 Mass. 12 (2015). The defendant appealed.”  Continue reading →

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