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old-car-door-handle-1412625According to an article in the MetroWest Daily News, a Framingham man was recently arrested in relation to an alleged road rage incident. The article states that the defendant believed that the alleged victim cut him off on Route 9 and that the defendant then began to follow the alleged victim, reportedly beeping his horn and tailgating. According to the alleged victim, the defendant exited his car at an intersection, approached the alleged victim’s car, and pulled the door open. The police apparently saw the defendant exit the car to “confront” the alleged victim. There is no indication, however, that that the police observed him yelling, opening the alleged victim’s door, or that the door was in fact open. The police did, however, observe the alleged victim’s car door handle in the defendant’s hand – the defendant indicated that it had fallen off. The defendant was subsequently arrested for assault, under G. L. c. 265, § 13A, and vandalizing property, under G. L. 266, § 126A.

An assault may be committed in one of two ways. It is either an attempted battery or an immediately threatened battery. A battery is a harmful or an unpermitted touching of another person, so an assault can be either an attempt to use some degree of physical force on another person, or it can be a demonstration of an apparent intent to use immediate force on another person. In this case, the defendant did not attempt to commit a battery, therefore the Commonwealth would have to proceed on the immediately threatened battery theory. For the Commonwealth to obtain a conviction for assault under this theory, it would have to prove the following beyond a reasonable doubt: (1) that the defendant intended to put the alleged victim in fear of an imminent battery; and (2) engaged in some conduct toward the alleged victim which the alleged victim reasonably perceived as imminently threatening a battery.

For the Commonwealth to obtain a conviction for vandalizing property, it would have to prove the following beyond a reasonable doubt: (1) that the defendant destroyed property; (2) that he did so intentionally; (3) that he did so willfully with malice, or wantonly; and (4) that the property was owned or possessed by someone other than the defendant. As to the second element, the Commonwealth must prove the defendant acted consciously and deliberately, rather than by accident or as the result of negligence. As to the third element, the Commonwealth must prove that the defendant acted willfully with malice, or wantonly.

A person acts willfully if he intends both the conduct and its harmful consequences. The act must be done with the intent that it have harmful consequences. A person acts with malice when acting out of cruelty, hostility, or revenge. To act with malice, one must act not only deliberately, but out of hostility toward the owner or person in possession of the property whoever that may be. A person acts wantonly by acting recklessly or with indifference to the fact that his conduct would probably cause substantial injury to, or destruction of, another’s property. The Commonwealth must prove that the defendant consciously disregarded, or was indifferent to, an immediate danger of substantial harm to another’s property. It is not enough for the Commonwealth to prove that the defendant acted negligently — that is, acted in a way that a reasonably careful person would not. Continue reading →

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leaf-on-the-pavement-1563587According to an article in the MetroWest Daily News, a Framingham man stole a $600 leaf blower this past month. The article states that at approximately 12:45pm on a recent Monday, the alleged victim called the police and reported that a man had just stolen his leaf blower. He indicated that the item was taken from his front yard, located on Swanson Street. According to the alleged victim, the man who took the leaf blower then drove of off in a U-Haul. Police responded to the area, located a U-Haul truck matching the alleged victim’s description, and pulled over the driver. The driver, who was later identified as the defendant in this case, denied stealing the item and told officers that he believed that the leaf blower was his. The defendant was subsequently charged with larceny over $250 and driving with a suspended license.

For the Commonwealth to obtain a conviction against the defendant for larceny over $250, under G. L. c. 266, § 30, it would have to prove the following beyond a reasonable doubt: (1) that the defendant took and carried away property; (2) that the property was owned or possessed by someone other than the defendant; (3) that the defendant did so with the intent to deprive that person of the property permanently; and (4) that the value of the property exceeded $250. An honest and reasonable belief that the property belonged to the defendant is a legitimate defense to the charges. Specifically, if the defendant took the leaf blower in an honest and reasonable belief that he had a legal right to it, then he cannot be convicted of the charge (even if that belief was in fact mistaken) because he lacked the intent to steal. Continue reading →

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gun-wrist-1193474The Supreme Judicial Court recently issued a decision – Commonwealth v. Beal – striking down a portion of the Armed Career Criminal Act  (ACCA).  The ACCA allows for sentencing enhancements for a defendant charged with possession of a firearm under G. L. c. 269, § 10(a), 10(c), or 10(h) if the defendant has previously been convicted of two (1) violent crimes; or (2) drug distribution crimes. A first time violation under the Act carries a minimum mandatory sentence of three years.  A second time violation carries a minimum mandatory sentence of ten years.  A third time violation carries a minimum mandatory sentence of fifteen years.  The SJC’s decision specficially addresses what constitutes a violent crime under the statute.

The facts of the case were as follows: the defendant initially fired two gunshots at a group of people standing on the porch of a house. Two of those people, brothers Joao and Ovidio Pereira, “ran to the back of the house with the defendant chasing after them…. They [then] ran back to the front porch where the defendant … fired several more shots at them. One bullet struck Joao in the lower back,” rendering him “unable to walk without the use of crutches and braces on his legs.” The defendant was convicted of unlawful possession of a firearm; carrying a loaded firearm; unlawful possession of ammunition; assault and battery by means of a dangerous weapon causing serious bodily injury to Joao; and assault by means of a dangerous weapon against Joao and, in a separate count, against Ovidio.  “The indictments charging unlawful possession of a firearm also alleged that the defendant previously had been convicted of two violent crimes and thus was subject to enhanced penalties” under the ACCA.  In a separate trial regarding that matter, the defendant was found guilty on the basis of certified copies of convictions “of assault and battery upon a public employee and assault and battery.” On appeal, the defendant argued that the Commonwealth had failed to establish that both prior offenses constituted ‘violent crimes’ within the meaning of the Act.

In its decision, the SJC noted that under the ACCA, “a ‘violent crime’ is [as defined in G.L. c.140, §121] ‘any crime punishable by imprisonment for a term exceeding one year … that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another [force clause]; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another [residual clause].’” The Court further noted that the Massachusetts ACCA was essentially similar to the Federal ACCA, whose residual clause had recently been struck down, in Johnson v. United States, 135 S.Ct. 2551 (2015), as unconstitutionally vague. The SJC followed suit, striking down the residual clause of the Massachusetts ACCA as unconstitutionally vague. Continue reading →

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gavel-1238036Earlier this month, the Supreme Judicial Court issued a decision in Commonwealth v. Hartfield, which addressed a defendant’s Sixth Amendment  confrontation right and right to call witnesses at a probation violation hearing.

The background of the case is as follows: Hartfield was on probation for a drug offense when a probation violation issued alleging that he had violated the conditions of his probation by sexually assaulting his girlfriend’s seventeen year old daughter. The girlfriend provided an alibi for Hartfield and “added that the alleged victim was known to lie.” Hartfield told the police “that he had not gotten along with the alleged victim since he found some embarrassing photographs on her cellular telephone and confronted her with the photographs…. The mother also told the police about the cellular telephone incident and the alleged victim’s antagonism toward [Hartfield]. The alleged victim described” that antagonism before the grand jury. At the probation violation hearing, the judge heard testimony from a probation officer and police detective Figueroa. “Over [Hartfield’s] objection, the judge … admitted in evidence [through Figueroa’s testimony] the alleged victim’s testimony before the grand jury, two serology reports, and a [damaging DNA] report from the … police crime laboratory. The reports were admitted through … Figueroa; no criminalist testified.” “After the probation department rested, [Hartfield] sought to call the alleged victim as a witness…. The judge initially allowed her to testify,” but then changed his mind, reasoning that her statements to the grand jury had already been admitted as hearsay through Figueroa and that “‘she shouldn’t have to go through recounting this event several times.’” The judge proceeded to find that Hartfield had violated his probation by committing a new offense and specifically noted that Figueroa’s testimony and the DNA evidence was “the most compelling” evidence to support the finding of a violation.

On appeal, Hartfield argued (1) that by barring “his examination of the alleged victim, the hearing judge violated his due process right to present a defense;” and (2) “that the admission of the alleged victim’s grand jury testimony and the serology and DNA reports … violated his due process right to confront adverse witnesses.” Continue reading →

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shooter-1569885According to an article in the MetroWest Daily News, a man was recently arrested following a car accident on Winthrop Street in Framingham.  The article states that several people flagged a Framingham police officer down and told him there was a serious crash.  The officer proceeded to the location of the crash and found a Toyota Celica on its roof on the lawn of 197 Winthrop Street.  The article states that the car appeared to have “veered right and completely off the road into the driveway,” and that the car “appeared to be speeding.”  The officer found three individuals outside the car – two women, ages seventeen and eighteen, and a man, later identified as the driver.  The two women stated that they were passengers.  One of the women stated that she was pregnant and asked to go to the hospital.  The driver was also injured and had numerous lacerations on his arms, face, and knee.  The car had apparently hit a street sign, and damaged the house as well.  The responding officer reportedly noticed an odor of alcohol coming from the driver’s mouth, and observed his eyes to be bloodshot.  The officer apparently questioned the driver, who initially denied having had anything to drink.  At some later point, however, he admitted to having had two shots of vodka.  The driver refused to perform any field sobriety tests, and refused to take a breathalyzer.  He also apparently told the officer “I don’t care about myself. I am not going to the hospital. I just care about them,” in reference to the passengers.  The man was ultimately charged for operating under the influence and driving to endanger.  He was also civilly cited for speeding and a marked lanes violation.

For the Commonwealth to obtain a conviction against the driver for operating under the influence under G. L. c. 90, § 24, it would have to prove the following elements beyond a reasonable doubt: (1) that the driver operated a motor vehicle; (2) that the driver did so on a public way; and (3) that while operating the vehicle, the driver was under the influence of intoxicating liquor.  As to the third element, a person is under the influence of alcohol if he has consumed enough alcohol to reduce his ability to operate a motor vehicle safely by decreasing his alertness, judgment and ability to respond promptly.  The Commonwealth is not required to prove that the driver was in fact drunk or that he actually drove in an unsafe or erratic manner, but it is required to prove that his ability to drive safely was diminished by alcohol.

For the Commonwealth to obtain a conviction for driving to endanger (under the same statute), it would have to prove the following beyond a reasonable doubt: (1) that the driver operated a motor vehicle; (2) that he did so on a public way; and (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered.  As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act.  This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. A driver acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, a Worcester man was recently arrested for various driving offenses because he admitted to officers that he had been smoking marijuana while operating his car. This past Wednesday, several officers were working on a detail on Union Avenue in Framingham when a passing Toyota sedan drew their attention. The article specifically states that all the officers noticed an “extremely strong odor of burnt marijuana” coming from the car as it passed. One of the officers pulled over the driver and spoke to him. The driver acknowledged that he had been smoking marijuana and handed the officer a joint. The driver went on to state that he “always” smokes and drives because it “relaxes” him. The officer then told the driver that it is “illegal to drive under the influence of marijuana” and proceeded to arrest him. The defendant was ultimately charged with driving under the influence of drugs (marijuana) and driving to endanger. Police also cited him for possession of less than an ounce of marijuana, as the driver provided the officers with a small bag of marijuana.

For the Commonwealth to obtain a conviction against the defendant for operating under the influence of drugs, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he operated it on a public way; and (3) that while the defendant was operating the vehicle, he was under the influence of marijuana. As to the third element, someone is under the influence whenever he has consumed enough marijuana to reduce his ability to operate a motor vehicle safely by diminishing his alertness, judgment, and ability to respond promptly. This would include anyone who has consumed enough marijuana to reduce his mental clarity, self-control and reflexes, and thereby left him with a reduced ability to drive safely. The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove that the defendant had a diminished capacity or ability to drive safely.

For the Commonwealth to obtain a conviction against the defendant for driving to endanger (under the same statute), the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that he did so in a negligent manner so that the lives or safety of the public might have been endangered. As to the third element, a person acts negligently when he fails to use due care, that is, when he acts in a way that a reasonable person would not act. This can happen either by doing something that a reasonably prudent person would not do under those circumstances, or by failing to do something that a reasonably prudent person would do. The defendant acted negligently if he drove in a way that a reasonable person would not have, and by doing so created an unnecessary danger to other people, a danger that he could have avoided by driving more carefully. A person can be found to have driven negligently even if no accident resulted, and even if there was no one else actually on the road to be put in danger. A person is negligent if he drives in a way that has the potential to cause an accident or to endanger anyone who might be on the road. Continue reading →

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waiting-to-go-1524343According 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 2nd 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 →

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residence-1226143According to an article in the MetroWest Daily News, a man broke into an apartment in Marlborough this past week and reportedly assaulted one of the residents.  The article states that the alleged victim was in his bedroom with headphones on when he heard a loud noise at the front door of the apartment.  When he walked into the living room to investigate, he found the defendant, whom he does not know, standing near the front door.  The defendant reportedly grabbed the alleged victim, threw him to the ground, sat on him, and proceeded to strangle him for about five seconds before the alleged victim could escape.  The defendant then left the apartment.

The alleged victim’s roommate was also present, called the police and provided a description of the assailant.  When the police arrived on scene minutes later, they found the defendant directly outside the apartment complex.  The defendant told the police that he had just woken up and hadn’t seen or heard anything.  During further questioning, however, the defendant told the police the he had broken into the apartment, and that he had heard voices prior to the break in.  Specifically, the defendant stated that the voices had told him to break into that particular apartment and that many others had broken into it in the past.  He also told police he believed the National Security Agency was listening to all his conversations.  The defendant was charged with assault and battery, strangulation, vandalizing property and unarmed burglary and assault.

Given the defendant’s statements to police about the voices and the NSA, and his overall conduct, he appears to have some mental health issues that impacted his behavior and could therefore provide a defense to the charges.  Under Massachusetts law, before a defendant may be found guilty, the Commonwealth must prove beyond a reasonable doubt that he was sane – and therefore criminally responsible – when he engaged in the alleged conduct.  A person is lacking in criminal responsibility if he has a mental disease or defect, and as a result of that mental disease or defect is either: (1) substantially unable to appreciate the criminality — the wrongfulness — of his conduct; or (2) is substantially unable to conform his conduct to the requirements of the law.  In other words, a defendant’s mental condition must have been such that he was unable to realize that his behavior was wrong or was unable to make himself behave as the law requires.  Under the law, there is a presumption of sanity, but it is up to the Commonwealth to prove beyond a reasonable doubt both that the defendant committed the crime, and that the defendant was sane at the time of its commission. Continue reading →

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money-3-1423590According to an article in the MetroWest Daily News, the Senate recently passed its version of the 2017 budget, which includes an amendment that will significantly impact the way that court fees are imposed on defendants in criminal cases. As the law currently stands, Massachusetts judges are required to assess various fees when certain criminal cases are resolved. Specifically, if a defendant is placed on any sort of probation, the court assesses a probation supervision fee of $65/month. Additionally, the court assesses a victim witness fee of $50 in misdemeanor cases, and $90 in felony cases. These fees are assessed regardless of the defendant’s financial situation.

Under the proposed amendment, Massachusetts judges would have new discretion over whether to impose fees on probationers. This amendment was adopted under a budget rider by the Senate in a 31-7 vote this past Thursday. The sponsor of the amendment, Senator William Brownsberger, who is co-chairman of the Judiciary Committee, stated that he sponsored the amendment because “we need to make it possible for people to get back on their feet, get out of the system, start living their normal life.” Sen. Brownsberger said judges now can waive probation fees if they make a “written finding of hardships,” and the language adopted by the Senate would “make it clear that it’s up to the judge.” The amendment also prohibits a court from finding that a probationer violated a condition of probation based solely upon failure to pay such fees or surcharges, and extending probation or incarcerating a probationer for such failure to pay.

In his statement, Sen. Brownsberger stated that the roughly $20 million in probation fees collected by Massachusetts courts goes into the general fund and judges should not be concerning themselves with revenue collection. He referenced the controversial reliance on court fees in Ferguson, Missouri, stating “this isn’t quite Ferguson where the courts were living and dying on how much in fees they could collect, but there is pressure on the judges of a financial nature to collect these fees.” He went on to state that “that pressure shouldn’t be there. This should be based on criminal justice policy as opposed to revenue-raising considerations.” Continue reading →

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music-1453613According to an article in the MetroWest Daily News, Worcester police recently arrested a Framingham High School music teacher on domestic violence charges. According to a second article, the court also issued a restraining order against the defendant under G. L. c. 209A, § 7. The articles state that the defendant and the alleged victim became romantically involved in 2011, shortly after the alleged victim graduated from the high school, where she was one of the defendant’s students. The relationship last approximately five years. The incident in question reportedly occurred when the alleged victim went to the defendant’s home in Worcester to discuss their relationship. Specifically, the alleged victim confronted the defendant about being in a relationship with another woman. An argument ensued, during which the defendant allegedly refused to let the alleged victim leave. The alleged victim also claimed that during the argument, the defendant pushed her into a wall, cabinets, and a door, slammed a door on her arm, and pushed her child, whom she apparently brought with her, into a bush. The alleged victim also showed police bruises, which she claims were the result of the defendant’s assault.

The defendant testified at the restraining order hearing in his defense, stating that he and the alleged victim had already broken up and that he was in the process of moving in with a new girlfriend. The defendant was ultimately charged with one count of kidnapping, two counts of assault and battery on a family or household member, two counts of assault and battery with a dangerous weapon, one count of witness intimidation and one count of assault and battery. Continue reading →

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