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mobile-in-hand-1239462-300x200In Commonwealth v. Morin, the Supreme Judicial Court ruled that the defendant was entitled to a new trial on the indictment charging him with first degree murder, because his trial counsel was ineffective for failing to move to suppress the fruits of the search of the defendant’s cellular telephone by the police.

The background was as follows. “[T]he Commonwealth’s theory was that the defendant, along with his codefendant … and two unknown accomplices, robbed the victim of drugs and money, and that the killing occurred in connection with the robbery.” There was evidence that in the days immediately preceding the date of the killing, “the defendant attempted to recruit some people [including a friend named Matteson] to help him rob the victim.” “The defendant told Matteson that the robbery would take place at an apartment owned by the codefendant. The codefendant would use the promise of a drug deal to lure [the victim] to the apartment…. The codefendant would leave the back door open, so that the defendant, Matteson, and others could enter. They would ‘run in, grab the stuff [drugs and money], and leave.’…. Matteson did not agree to participate at that point, and the defendant told him to think about it.” Two days after the killing, the defendant “told Matteson to ‘get the battery out of [Matteson’s cellular telephone], so that no one can hear the conversation.’ The defendant said that if the police asked Matteson where he had been in the evening of November 3, 2009 [the time of the killing], he was to say that he had been with the defendant at a restaurant.” In the course of the investigation of the crime, the police seized the defendant’s cellular telephone and procured a warrant to search its contents. The inculpatory fruits of the search were presented to the jury at the defendant’s trial. In a motion for a new trial, the defendant argued that the warrant authorizing the search of his telephone was not supported by probable cause to believe that the device would contain evidence of the crime and, therefore, that trial counsel was ineffective for failing to file a motion to suppress the fruits of the search. The judge denied the motion on the ground that the search warrant affidavit did establish the requisite probable cause. Continue reading →

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gavel-3-1236445-300x200In Commonwealth v. Vasquez, the Supreme Judicial Court ruled that although the judge erred in admitting evidence of prior misconduct by the defendant that resembled his conduct in the present case, the error did not create a substantial likelihood of a miscarriage of justice.

The background was as follows. “[T]he defendant drove up to a group of people and began arguing with some of them. The victim approached the automobile and attempted to defuse the situation, saying, ‘It[‘s] me, JM, it’s me, your brother.’” “The defendant responded, ‘[J]ust get the fuck off my window,’ and drove away.” He “returned … five minutes later and continued to argue with some of those present. The victim, who again approached the automobile and leaned into the driver’s side window, tried once more to calm down the defendant. Suddenly, the defendant reached out, shot the victim at close range, and drove away.” “A witness testified that, approximately one month before the shooting, [he] observed the defendant engage in a verbal argument with a third individual and then leave the area. The defendant returned approximately twenty or thirty minutes later and displayed what appeared to be the … handle of a semiautomatic firearm underneath his shirt when asking for the whereabouts of the individual with whom he had argued.” On appeal, the defendant argued, in regard to his display of a weapon during the prior incident, “that the probative value of this ‘propensity’ evidence was substantially outweighed by its prejudicial effect, and that its introduction require[d] a new trial.” Continue reading →

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high-altitude-route-map-1312429-300x169The Appeals Court recently issued a decision in Commonwealth v. Luna reversing the trial court’s denial of the defendant’s motion to suppress items seized during the warrantless search of his vehicle. The reversal was based on the ground that “the Springfield police exceeded their territorial jurisdiction” by conducting the search in Chicopee.

The basic facts were as follows. A Springfield police officer (Bruno) was told by a confidential informant that the defendant would make a delivery of heroin in East Springfield at a specified place and time. “According to the informant, [the defendant] would be driving a black Mini Cooper automobile, and the informant provided the license plate number.” The police possessed information that the defendant had residences at the Toll House Apartments in West Springfield and at 122 Beauregard Terrace in Chicopee. Two hours before the time of the predicted drug delivery, “surveillance officers observed the defendant … leave the Toll House Apartments, place two large plastic containers in the back seat of the Mini Cooper, and drive it to 122 Beauregard Terrace in Chicopee. There, the defendant approached a red Honda automobile parked at the end of the driveway, opened the trunk with a key, and retrieved a black plastic bag the size of a softball. He then reentered the Mini Cooper and drove in the direction of East Springfield. The police followed in unmarked vehicles. When the Mini Cooper was within approximately two miles of the [location of the anticipated transaction], the defendant began driving in an erratic manner,” as if he “was attempting to determine if he was being followed. The police stopped the Mini Cooper…. Bruno removed the defendant and conducted a patfrisk for weapons. He felt a large bulge in the defendant’s pocket, which he recognized … as packets of heroin. He then removed a black bag from the defendant’s pocket, which appeared to be the one he had observed the defendant remove from the trunk of the red Honda…. Bruno also removed a set of Honda car keys … from the defendant’s person. The defendant was arrested…. Bruno and other officers returned to 122 Beauregard Terrace in Chicopee, arriving within ten to fifteen minutes of the defendant’s arrest,” and “entered the Honda using the keys obtained from the defendant. Several bricks of heroin and a firearm were seized from the trunk.” After the return of indictments against the defendant, he moved to suppress the items seized from the Honda. The judge denied the motion. Continue reading →

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air-soft-gun-1-1500175-300x189In Commonwealth v. Arias, the Appeals Court reversed the trial judge’s allowance of the defendant’s motion to suppress and held that the warrantless entry by the police into the apartment building where the defendant resided was justified under the emergency aid doctrine.

The basic facts were as follows. “[T]he Lawrence police department received a 911 call from a woman who reported that as she was walking down the street, she saw two ‘Spanish guys’” with a semiautomatic weapon and that “she heard one of the men ‘load the gun’ before entering the apartment building at ‘7 Royal Street.’…. The woman gave a description of the men to the 911 dispatcher,” who then radioed it to officers on patrol: “‘two Hispanic males enter[ing] a house, one in a gray jacket, [and] one in a black jacket’ while one of the males was loading a gun. During this same ‘time frame,’ the Lawrence police department was investigating ‘a rash of home invasions’ ‘[a]round this [Royal Street] area.’” Officers responding to the dispatch “discovered a four-unit apartment building with the address of 5-7 Royal Street…. [T]wo units were located on the first floor (apartment 5A and apartment 7A)…. At the back of the building, there was a porch with two rear doors.” Sergeant Cerullo went to the rear of the building and there “saw a ‘Hispanic male with facial hair’ exit the left rear door of the porch area. The man, later identified as the defendant, was ‘wearing a black and gray sweater’ and was moving ‘quickly and with purpose.’ …. Cerullo shouted, ‘Lawrence Police’ and commanded, ‘Show me your hands.’ The defendant appeared ‘shocked’ and quickly retreated back into the building, ‘closing the door behind him.’ …. Cerullo attempted to follow him, but the door was locked. At this time, [another officer] was positioned at the front of the building. He knocked on the door of apartment 5A, but there was no answer. He also knocked on the door of apartment 7A and spoke with the residents of that unit.” They were unable to provide any information about the occupants of apartment 5A. “The police then decided to forcibly enter apartment 5A out of concern that a home invasion was taking place and that there were ‘possible armed subjects inside, as well as victims.’…. When the police entered through the front door of the apartment, they found no one inside. During the protective sweep, they observed in plain view: narcotics, a scale, and ‘thousands’ of plastic bags on the floor. Still in pursuit of any potentially armed subjects or victims, the officers went down an interior back stairway, where they found the defendant and two other men hiding in a storage area in the basement.” After the return of indictments against the defendant, he moved to suppress the fruits of the warrantless entry into his apartment. The judge allowed the motion, rejecting the Commonwealth’s contention that the police were entitled to enter the apartment under the emergency aid exception to the warrant requirement. Continue reading →

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dna-helix-background-image-1-1632628-300x169The Supreme Judicial Court recently issued a decision in Commonwealth v. Sullivan affirming the defendant’s conviction of first degree murder, despite the fact that testimony about an apparent match between DNA from the crime scene and the defendant’s DNA profile in the CODIS database should not have been admitted.

The background was as follows. The victim was shot to death during an armed home invasion. “Investigating officers seized a number of items from the crime scene…. [A] State police chemist conducted DNA testing of swabs taken from [those items]. She uploaded the profiles into the [national] CODIS database to search for a match. The DNA on [three of the items] matched the defendant’s DNA profile. Based on these results, police obtained a buccal swab from the defendant, which was submitted to the State police crime laboratory for DNA testing. A different State police chemist determined that the DNA on the [seized items] matched the defendant’s DNA.” In his appeal, “[t]he defendant contend[ed] … that testimony that DNA taken from items found at the crime scene matched his DNA profile in the CODIS database was inadmissible hearsay and a violation of his right to confrontation.” Continue reading →

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tired-or-bored-1432201-300x254The Supreme Judicial Court recently issued a decision in Commonwealth v. Villalobos, which addressed issues related to sleeping jurors. The SJC reversed the defendant’s convictions because the judge failed to respond adequately to a report that two jurors had been asleep during portions of the trial.

The background was as follows. In a split decision, the Appeals Court affirmed the defendant’s convictions. The SJC noted that “[t]he issue that divided the Appeals Court was the trial judge’s failure to conduct a voir dire (http://dictionary.findlaw.com/definition/voir-dire.html) after the prosecutor reported that some jurors fell asleep during the trial. The SJC stated, “‘[I]f a judge receives a complaint or other information suggesting that a juror was asleep or otherwise inattentive, the judge must first determine whether that information is “reliable.”’ [Commonwealth v.] McGhee, [470 Mass. 638,] 644 [2015]…. If … the judge does find the information reliable, he or she ‘must take further steps to determine the appropriate intervention.’ [Id.] ‘Typically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror “remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.”’ Id., quoting Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). The judge has ‘substantial discretion in this area.’” On appeal, “‘[t]he burden is on the defendant to show that the judge’s response to information about a sleeping juror was “arbitrary or unreasonable.”’ McGhee, supra, quoting [Commonwealth v.] Beneche, [458 Mass. 61, 78 (2010)].”  Continue reading →

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In a recent decision – Commonwealth v. Smith – the Appeals Court affirmed the defendant’s conviction of possession with intent to distribute cocaine, the Appeals Court rejected the defendant’s contention that the testimony of a police expert on drug use and distribution “was admitted improperly because it was based on hearsay and profiling characteristics of drug sellers and users.”

The background was as follows. Police officers in a narcotics unit were conducting surveillance when they observed a “Volvo driving slowly” “back and forth through [an] intersection, [before coming] to a stop in the parking lot of a nearby liquor store that was closed…. A few minutes later, the officers saw the defendant” approach the Volvo and get into the front passenger seat. “About one minute later, the Volvo drove out of the parking lot” and travelled “a short distance from the original pick up location; the defendant got out of the car there. [Detective] Mercurio drove his unmarked police car past the Volvo,” stopped near the defendant, “and identified himself as a police officer; the defendant then stepped back and started running down the driveway of a house.” “Mercurio chased the defendant down the driveway, and observed the defendant’s hands go to the front of his pants as he was running…. As soon as the defendant turned the corner of the house, Mercurio lost sight of him.” After another officer detained the defendant, “Mercurio … went back to the area behind [the house] where he had lost sight of the defendant …; he found a clear plastic bag containing two rocklike substances that were individually wrapped ‘inside the corner of a bag and it was tied in a knot at the top.’ Approximately three feet away, another officer found ‘a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped off-white colored rocklike substances.’…. The bags were tested and the substance was determined to be cocaine. At trial, an officer who had not participated in the investigation, Detective Keating, testified as an expert, based on his training and experience, regarding illegal drug distribution and drug use. Keating provided for the jury an overview of the consistency and street cost of crack cocaine generally in the [local] market…. He explained that the most common packaging of crack cocaine for street sales is for the ‘rock [to] be placed in the corner of a baggy, twisted, tied off and that’s how it’s individually wrapped’; the individual packets are then generally ‘held in one big sandwich bag.’” Keating opined that “the amount of drugs possessed by the defendant [and its packaging in fifteen individual bags] was not consistent with personal use but was consistent with an intent to distribute.” Continue reading →

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gavel-2-1236453-300x200The Massachusetts Sentencing Commission recently approved a series of changes to the Massachusetts Sentencing Guidelines. The general formula (criminal history and offense level) for calculating a sentence range has remained the same, but the new guidelines have a number of major changes. The key changes are as follows:

  1. The Commission recommends that judges and lawyers consider the disparate racial, ethnic, and socioeconomic impact of the criminal justice system and give careful attention to increasing and widespread concern that the system is unfair to people of color and the poor;
  2. The Commission cautions judges and lawyers on the use of the guidelines for juveniles and emerging adults, advising that the Guidelines are not suitable for application to juveniles, and suggesting that considerations of adolescent brain development may be important to the sentencing of young “adults;”
Continue reading →
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slow-shutter-1171923-1-300x200In a recent Appeals Court decision, Commonwealth v. Ross, the Appeals Court ruled that the evidence was sufficient to support the defendant’s conviction of negligent operation of a motor vehicle.

The background was as follows. At 9:50 p.m., a police officer observed the defendant driving his vehicle at a high rate of speed on “a public two-lane road with narrow, unpaved shoulders and no breakdown lane. The road is lined by trees, telephone poles, and residential fences along where the incident occurred. The officer testified that the speed limit was thirty-five miles per hour. Using radar, [he] determined that the defendant was travelling at fifty miles per hour. The officer activated his police cruiser’s lights, and the defendant promptly pulled over to the side of the road. The officer observed that the defendant was the driver and noticed two … passengers in the [vehicle]. When the defendant lowered the driver’s side window, the officer ‘immediately detected … a strong odor of an alcoholic beverage’ and observed that the defendant’s eyes appeared ‘very glossy.’ The officer asked the defendant to get out of the vehicle and then performed three field sobriety tests on him.” “The officer testified that, in his opinion, the defendant failed to perform two [of the] tests satisfactorily, and failed to perform [the] third test ‘[a]s instructed.’” Also, “[w]hile conducting the sobriety tests, the officer observed that the defendant … spoke in ‘thick,’ slurred language; and … emitted the smell of alcohol as he spoke.” “The defendant ultimately was tried by a jury on a complaint charging him with (1) operating a vehicle while under the influence of intoxicating liquor (OUI) … and (2) negligent operation of a motor vehicle. The jury acquitted the defendant of OUI and convicted him of negligent operation.” Continue reading →

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booze-1481628-300x226The Supreme Judicial Court recently issued a decision – Commonwealth v. Wolfe – which vacated a defendant’s conviction of operating a motor vehicle while under the influence of alcohol because the judge erroneously instructed that the jury “should disregard the lack of evidence of a breathalyzer test, blood test, or field sobriety test.”

The background was as follows. At 2:00 a.m. on the date in question, a police officer observed the defendant’s vehicle “being driven with a broken taillight. The officer followed the vehicle for [several] minutes. During that time, [he] witnessed the vehicle cross the double yellow line in a ‘jerking motion’ to avoid hitting a snow bank, and later saw the vehicle cross the double yellow line again while executing a turn. The officer then stopped the vehicle…. Upon approaching the vehicle, the officer observed the defendant in the driver’s seat with ‘bloodshot glassy eyes, slurred speech and a distinct odor of alcohol coming from his breath when he spoke.’…. The defendant gave ‘delayed’ responses to several of the officer’s questions. The officer then asked the defendant to step out of the vehicle and walk back to the officer’s patrol vehicle. During this walk, the defendant used his own vehicle ‘for balance.’ Another officer at the scene testified that the defendant was ‘swaying’ and ‘unsteady on his feet.’ The defendant was placed under arrest and transported to the … police station for booking.” At the defendant’s trial, “[t]here was no mention … of the lack of a breathalyzer test or other alcohol-test evidence. Nevertheless, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests, field sobriety tests, or blood tests.” In his appeal, the defendant challenged the judge’s instruction. Continue reading →

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