Weapons Crimes

Published on: June 24, 2016

Framingham High School Student Arrested on Weapons Charges

According to an article in the MetroWest Daily News, a Framingham teen brought a stun gun to Framingham High School this past week. The article states that the school administration had received a tip that the juvenile was bringing the stun gun to school and the school called the police. An officer then confronted the teen at the school. He reportedly agreed to let the officer search his bag, which resulted in the recovered of the stun gun. The article states that there was no indication that anyone had used the weapon. The teen was subsequently charged with possession of a stun gun under G. L. c. 140, § 131J and carrying a dangerous weapon under G. L. c. 269, § 10.

To convict the defendant of possession of a stun gun, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant possessed and item; (2) that the item meets the definition of a stun gun – i.e., that the item is a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill; and (3) that the defendant knew that he possessed the stun gun.

As to this charge, the defendant appears to have a legitimate defense: namely that the statute outlawing the possession of a stun gun is unconstitutional because the 2^nd Amendment the right to carry such a weapon. Specifically, in a recent case decided by the United States Supreme Court – Caetano v. Massachusetts – the Court stated as much, thereby eviscerating the constitutionality of the statute. In light of the court’s decision, the defendant can file a motion to dismiss and should prevail. Continue reading →

Published on: May 17, 2016

Framingham Teen Arrested on Gun Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, Framingham police found a loaded gun on a seventeen year old boy following a traffic stop last week. The article states that a police officer was attempting to pull over a car when the defendant, who was driving a different car, failed to pull to the right and get out of the officer’s way. The officer then decided to pull over the defendant. The defendant came to a stop, exited his vehicle, and reportedly “tried to talk his way out” of the situation. According to the officer, the defendant was “nervous and argumentative,” and kept “fidgeting with his hands in his pockets.” The officer reportedly told the defendant to show his hands, but he did not cooperate, and repeatedly asked the officer to let him go home. During the exchange, the teen reportedly took off running. The officer gave chase, apprehended the defendant, and placed him in handcuffs. Additional officers arrived and searched him. During the pat frisk, the police recovered a loaded Smith & Wesson semi-automatic pistol in the defendant’s waistband. The teen was charged with carrying a firearm without a license, possessing ammunition without an FID card, resisting arrest, possession of stolen property over $250, disorderly conduct, unlicensed operation, speeding and failure to yield to an emergency vehicle.

Although these charges are unquestionably serious, the defendant does appear to have a strong argument that the evidence recovered as a result of the search should be suppressed. A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced against him at trial because that evidence was obtained as a result of unconstitutional or illegal police activity. The Fourth Amendment to the United States Constitution guarantees a person’s right to be free from unreasonable searches and seizures. For the police to seize a person, they must have reasonable suspicion to believe that the person has committed, is committing, or is about to commit a crime. Under Massachusetts law, pursuit constitutes a seizure. Further, for the officer to pat frisk a person, he must also have a reasonable apprehension that the person is armed and dangerous. If the police lack the requisite reasonable suspicion and/or reasonable apprehension of danger, any evidence recovered as a result of the seizure and subsequent pat frisk should be suppressed. Continue reading →

Published on: February 10, 2016

Framingham Man Arrested on Gun Charges

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man was recently charged with possession of a firearm found in a Framingham apartment. The article states that this past Tuesday, the police were called to the home for assistance with a “disturbed” person. When the police arrived, they were met by the defendant and his girlfriend, who both reported that the girlfriend’s mother was there and that she was “crazy.” The mother was transported to MetroWest Medical Center for a psychological evaluation. As she was being taken for medical treatment, she reportedly yelled to her daughter “you know there’s a gun in the apartment and you know it’s loaded.”

Following the mother’s statement, the police spoke with the girlfriend. She told the police that there was no gun in the apartment. The defendant, who does not reside in the apartment (although he has previously listed the apartment as his address in the past) told the police that he needed to go upstairs. When the police instructed him not to do so, he said that he “needed some air” and then left. After his departure, the police again questioned the girlfriend about the gun and at that point, she allegedly told them that it was under the bed. The police then searched the apartment and located a gun in a sock under mattress. They also recovered a magazine with one bullet. The girlfriend told the police that the gun belonged to the defendant. The police issued a warrant for the defendant, whose whereabouts were then unknown. They also determined that the gun had been stolen in Virginia approximately eight years prior. The police eventually found and arrested the defendant and he was arraigned on the following charges: unlawful possession of a firearm without a firearm identification (FID) card; possession of ammunition; improper storage of a gun; storing a gun where a minor could access it; and receiving a stolen gun. Continue reading →

Published on: June 23, 2015

Man Arrested in Framingham for Assault May be Victim of Robbery

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man was recently arrested in Framingham for allegedly assaulting three other individuals in alley behind the Tedeschi’s on Waverly Street. The article states that the man reportedly lunged at one of the alleged victims while armed while a knife. At some point, the police were contacted and arrived on scene. When the got there, they reportedly ordered the man to drop the knife. Although the man approached the officers before doing so, he ultimately dropped to his knees and put the knife on the ground. The man was taken into custody and brought to the police station where he was booked. At the arraignment, his attorney told the court that the other individuals involved in the incident had in fact attempted to rob the man and that he had simply been acting in self-defense. It is also of note that the man’s nose was broken when the police arrived on scene, and that the police report failed to include any statements from the alleged victims, or any motive as to why the man would have assaulted them.

For the Commonwealth to obtain a conviction against the man for assault with a dangerous weapon under G. L. c. 265, § 15B, it would have to prove the following beyond a reasonable doubt: that (1) the man intended to commit a battery – that is, a harmful or an unpermitted touching – upon the alleged victims; (2) the man took some overt step toward accomplishing that intent; (3) the man came reasonably close to doing so; and (4) the assault was done by means of a dangerous weapon.

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Published on: November 17, 2014

Hernandez Co-Defendant Seeks to Dismiss Charges Against Her

By Daniel Cappetta

Odin Lloyd, a semi-pro football player, was found murdered in an industrial park in Attleboro in June 2013. Former New England Patriots player Aaron Hernandez was ultimately charged with Lloyd’s murder. Three other individuals were also arrested in connection with Lloyd’s death: Carlos Ortiz, Ernest Wallace, and Tanya Singleton. Prosecutors have alleged that Wallace and Ortiz were with Hernandez when he allegedly killed Lloyd. Specifically, prosecutors allege that on the night of June 16, 2013, Hernandez summoned Ortiz and Wallace to his home, that the three of them drove to Dorchester and picked up Lloyd, and that they then returned to North Attleboro. There, shortly before 3:30 a.m. on June 17, 2013, prosecutors allege that Hernandez shot and killed Lloyd. Singleton allegedly drove Wallace to Georgia in the days after Lloyd’s murder.

Ortiz cooperated with investigators, laying out a detailed story about the murder. Ortiz’s story, however, changed in relation to a key detail. Initially, Ortiz told investigators that Hernandez drove him, Wallace, and Lloyd to an industrial park in North Attleboro. Ortiz had insisted that Hernandez, Wallace, and Lloyd got out of the car while he stayed behind. He had said that he heard gunshots, and that only Hernandez and Wallace got back in the car. This past summer, however, Ortiz’s version of events changed: he told investigators that Wallace did not get out of the car. Additionally, a white towel was found on the ground near Lloyd’s body, and surveillance footage from a gas station taken about 90 minutes before the murder shows Ortiz with a light colored towel around his neck, leading some to question Ortiz’s claim that he remained in the car during the shooting.

In addition to these inconsistencies, an article in The Boston Globe indicates that Ortiz failed a lie detector test. During the test, Ortiz told the examiner that he was sleeping in the car when Lloyd was killed. After the examiner told Ortiz that the test results indicated that he was lying, Ortiz maintained he didn’t see the shooting but had seen Hernandez and Lloyd get out of the car. Ortiz then told the examiner that he and Wallace stayed in the car, heard the gun shot, saw Hernandez run back to the car, and that Lloyd didn’t return. The report from the test also indicates that Ortiz twice denied shooting Lloyd, but that the examiner scored his answers to those questions as “Deception Indicated.” Continue reading →

Published on: November 3, 2013

Framingham Man Arrested on Gun Charges

By Daniel Cappetta

A Framingham man was arrested last week on gun charges. According to an article in the MetroWest Daily News, the police received a tip that the defendant, who is homeless, had a shotgun and that it was inside a bag buried in the woods. The tip indicated that the defendant had received the gun in exchange for an outstanding debt. After receiving the tip, the police used a dog that was specially trained to detect ballistics evidence to search the woods in the area. During the course of the search, a 12 gauge shotgun was found buried inside of a bag. Nine shells were also located within the bag. The defendant was subsequently charged with (1) possession of a firearm without a permit; (2) possession of ammunition without a firearm identification card; and (3) the improper storage of a large capacity gun.

To prove that the defendant possessed the shotgun under G. L. c. 269, § 10, the prosecution will have to prove that: (1) the shotgun was in fact a firearm under Massachusetts law; (2) the defendant possessed the firearm; and (3) the defendant knew he possessed a firearm. In this case, where the weapon was not in the defendant’s actual possession – in other words, on his person – the Commonwealth would have to prove that he had constructive possession of the firearm. Under Massachusetts’ law, constructive possession is defined as knowledge of the item, coupled with the ability and intention to exercise dominion and control over it.

To prove such constructive possession, the Commonwealth would have to have some evidence linking the defendant to the weapon. Given the fact that the defendant is homeless, the location itself, without more, is unlikely to provide such a connection. The Commonwealth may try and connect the defendant to the weapon through forensic evidence, such as fingerprints, or DNA. In particular, if the police were able to recover either fingerprints or the defendant’s DNA on the bag or the gun, it would certainly bring the police one step closer to proving any claim that the defendant had constructive possession of the gun.

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