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police-line-970702-mAccording to an article in the MetroWest Daily News, attorneys for a New Hampshire man charged with murder are seeking to prevent the prosecutor from admitting the man’s statements at trial, as well as all of the evidence derived from those statements.  The man allegedly murdered 19 year-old woman from Westborough, MA in October 2012.  THe alleged victim was a student at the University of New Hampshire.

Shortly after the murder, the police went to the defendant’s place of employment and transported him to the police station for questioning.  Police then interrogated him at the police station for a total of 11 hours.  During the course of the interrogation, the defendant admitted that the alleged had died of asphyxiation during a sexual encounter with him.  He also told the police where evidence of the crime could be found.  Specifically, the his statements led the police to Peirce Island in Portsmouth, NH, where hair and pearl-like beads were recovered.  The police also conducted a search of the trash at the defendant’s apartment complex based on the statements.  Additional pieces of evidence were recovered from that location as well.

Police did not inform the defendant of his Miranda rights, including his right to remain silent, prior to the interrogation.  As a result of this failure, his attorneys filed a motion to suppress his statements, and all of the evidence obtained as a result of the statements.  The defendant’s attorneys are specifically arguing that the police violated his constitutional rights by failing to administer the Miranda warnings, and therefore all of the evidence obtained as a result of that violation, including the statements, should not be admissible against him at trial.  The prosecutor argues that because the police spoke to the defendant as part of a missing person investigation rather than a criminal investigation, it was not necessary to advise him of his Miranda rights.  The prosecutor further argues that the defendant was not in “custody” at the time the statements were made, and therefore the need for Miranda was not triggered.  Continue reading →

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According to an article in the MetroWest Daily News, a Framingham District Court judge ordered a Rhode Island man held without bail in relation to several sexual assault charges. The article states that the man is accused of sexually assaulting and raping the alleged victim over a period of years, beginning when she was thirteen years old. The alleged assaults reportedly began in the early 2000s and ended several years later. Despite the seriousness of the claims, the alleged victim failed to report any of the alleged conduct to the police for years, coming forward only fifteen months ago, in April of 2014. After the report was lodged, the Commonwealth began an investigation but did not arrest the defendant until last week. At the arraignment, the Commonwealth moved to hold the defendant without bail under G. L. c. 276, § 58A.

This statute allows the Commonwealth to move for a “dangerousness hearing” where a defendant is charged with a felony that involves the use, attempted use, or threatened use of physical force as an element of the offense. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days.

In making a determination as to whether a defendant should be released on conditions versus held without bail, the court takes the following factors into consideration: (1) the nature and seriousness of the danger posed to any person or the community that would result by the person’s release; (2) the nature and circumstances of the offense charged; (3) the potential penalty the person faces; (4) the person’s family ties; (5) the person’s employment record; (6) the person’s history of mental illness; (7) the person’s reputation; (8) the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror; (9) the person’s record of convictions, if any; (10) any illegal drug distribution or present drug dependency; (11) whether the person is on bail pending adjudication of a prior charge; (12) whether the acts alleged involve G. L. c. 209A related issues; and/or (13) whether the person is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction. Continue reading →

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According to a recent article in the MetroWest Daily News, the state’s Office of Alcohol Testing (OAT), which certifies breath testing machines used around Massachusetts, appears to have known about a software issue that complicated dozens of drunken driving cases months before anyone moved to fix the problem. The article states that OAT recognized breath testing machines were failing to properly detect errors during calibration tests as early as February 2014. Although some police departments were instructed to give calibration tests extra scrutiny, it was not until fourteen months later, in April 2015, that the secretary of public safety asked the manufacturer of the machines to come up with a solution to the defective equipment.

Massachusetts began rolling out new breath testing machines in 2011. To demonstrate they are working properly, the machines are designed to measure a small sample of gas with an alcohol concentration of .080 percent. Under state regulations, the machines must return a measurement between .074 and .086 percent in order to pass the calibration test. By default, however, the machines are programmed with a wider tolerance. The machines accept measurements between .070 and .090 unless they are reprogrammed by the manufacturer. The state failed to customize the instruments with the correct settings when it bought them four years ago. Some calibration tests that should have failed under the state’s tighter regulations were therefore allowed to pass.

Police departments are required to periodically check their breath testing equipment by running a series of calibration tests. If any one of the measurements is outside the allowable range, the so-called “periodic test” has failed. Every subsequent breath test conducted with the machine is then called into question until the device completes another successful periodic test. Given the fact that the police are required to conduct these periodic checks, public safety officials maintain that the police should have caught the errors and thereby prevented breath test evidence from becoming tainted. The more significant issue, however, is that the Executive Office of Public Safety and Security (EOPSS) failed to notify court officials and defendants about the issues for a significant period of time. The article states that court records and interviews with defendants show that in some cases, it was months before people who were on probation for drunken driving charges learned of problems with the evidence in their cases.

Continue reading →

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text-message-1472714In Commonwealth v. Mulgrave, the Supreme Judicial Court held for the first time that a text message could constitute an excited utterance under Massachusetts law. An excited utterance is an exception to the rule prohibiting the admission of hearsay. A statement qualifies as an excited utterance if it: (1) follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer; and (2) the statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought. The rationale that justifies this hearsay exception is that a person who has witnessed a shocking or traumatic event tends to speak what comes spontaneously to mind, without energy or disposition to invent lies so the statement may be deemed trustworthy for as long as the stress of the startling event continues. The court considers the following factors in determining the admissibility of a statement as an excited utterance: (1) the degree of excitement displayed by the declarant; (2) whether the statements are made at the scene of the traumatic event or elsewhere; (3) the temporal closeness of the statement to the act it explains; and (4) the degree of spontaneity, including whether the statements was volunteered by the declarant without the prompting of a question. Although the SJC has routinely ruled that written statements do no qualify as excited utterances given the fact that a written statement is generally not “spontaneous,” as it requires at least some reflective thought, the Court chipped away at this rule in the Mulgrave decision.

The facts of the case are as follows: the defendant and the victim in the case were married, but their relationship was deteriorating. During a heated argument between the two, the victim sent a text message to her son stating that “[the defendant] is threatening to kill me I am scared he said if I pick up the phone he will kill me.’” Six minutes after the victim sent the text message, she telephoned 911 and reported that the defendant was stabbing her. A few minutes after that, she was found barely breathing and lying in a pool of blood. She ultimately succumbed to her injuries. At trial, the Commonwealth sought to introduce the victim’s text message as evidence against the defendant. Continue reading →

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splatter-question-1171359According to an article in the MetroWest Daily News, a Norfolk County Agricultural High School teacher was recently charged with raping a child. The teacher is specifically charged with (1) rape of a child with force; (2) aggravated rape of a child; and (3) indecent assault and battery of a person under 14. The article states that the teacher, a fifty year old male who reportedly knew the alleged victim, perpetrated the alleged sexual assault in Norwood. The alleged victim’s age and gender have not been released and the court documents have been impounded.

For the Commonwealth to prove that the teacher committed the crime of rape of child with force under G. L. c. 265, § 22A, it would have to provide evidence of the following beyond a reasonable doubt: (1) that the defendant engaged in sexual intercourse with the alleged victim; (2) that the sexual intercourse was accomplished by compelling the alleged victim to submit by force or by threat of bodily injury and against his or her will; and (3) that the alleged victim was a child under sixteen years of age at the time of the alleged offense.

For the Commonwealth to prove that the teacher committed the crime of aggravated rape of child under G. L. c. 265, § 23, it would have to provide evidence of the following beyond a reasonable doubt: (1) that the defendant engaged in sexual intercourse, either natural or unnatural, with the alleged victim; (2) that the alleged victim was a child under sixteen years of age at the time of the alleged offense; (3) that the sexual intercourse was unlawful; and (4) there was more than a five year age difference between the defendant and the alleged victim and the alleged victim was under twelve years old or there was more than a ten year age difference between the defendant and the alleged victim and the alleged victim was between twelve and sixteen or at the time of such intercourse, the defendant was a mandated reporter as defined in G. L. c. 119, § 21. Continue reading →

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gavel-1238036Under Massachusetts G. L. c. 123A, § 12, if the Commonwealth has reason to believe a person convicted of a sex offense is likely to re-offend, it may file a petition in the Superior Court alleging the person is a “sexually dangerous person,” and request that the person be civilly committed. Once the petition for civil commitment as a sexually dangerous person is filed, a judge determines whether the Commonwealth’s allegations meet the standard of probable cause to believe the person is sexually dangerous. The person who is the subject of this petition must be provided notice and have an opportunity to appear and contest the allegations. Generally, the petitions for civil commitment as a sexually dangerous person are filed in the months leading up to the person’s release date from confinement.  If a finding of probable cause is made, the person has a right to a trial to determine if he is a sexually dangerous person. If a person is determined to be sexually dangerous after trial, he is then committed to a treatment center for an indefinite period.  This means that he could be committed for as little as one day or for the rest of his life.

In a recent case – Commonwealth v. Libby – the Supreme Judicial Court issued a ruling clarifying the terms of a sexually dangerous person petition. Libby was convicted of a sex offense in 2002 and completed his sentence of incarceration shortly thereafter. In 2013, he was indicted on a different charge (failure to register). Unable to post bail, he was held in custody awaiting trial on the new charge. While he was in held in custody, the Commonwealth filed a sexually dangerous person petition, pursuant to G.L. c.123A, §12. Libby moved to dismiss the petition on the ground that he had already completed the sentence for the sex offense, was therefore not serving a sentence at the time the petition was filed, and thus the Commonwealth was not permitted to file the petition.   His motion to dismiss, however, was denied. Libby then sought relief pursuant to G. L. c. 211, §3, which allows the SJC to review trial court rulings prior to the disposition of a case in certain limited circumstances. Continue reading →

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fist-1488296In August of 2014, the Massachusetts state legislature passed An Act Relative to Domestic Violence, which was signed into law by then Governor Deval Patrick shortly thereafter. The Act made various changes to the state’s domestic violence laws. Among other modifications, the Act created a first offense domestic violence assault and battery charge, established a domestic violence offender registry, and provided education for judges and prosecutors about cycles of abuse. As to the domestic violence offender registry, the law states that, pursuant to G.L. c.276, §56A, “every case in which a person is arrested and charged with a crime against the person or property, if the Commonwealth alleges that domestic abuse occurred ‘immediately prior to or in conjunction with’ the charged crime, the Commonwealth is to file a written statement that it does so allege, the judge is to make a written ruling that the Commonwealth does so allege, and the Commonwealth’s written statement is then to be entered into the Statewide domestic violence record keeping system (DVRS).” The law states that the “DVRS is a registry of sorts, established by the commissioner of probation …, [which] includes … [computerized] records of the issuance of and any violations of criminal or civil restraining or protective orders…. Records in the DVRS are available only to law enforcement and ‘judges considering petitions or complaints’ for restraining and protective orders.” The new law does not, however, lay out the legal requirements for a judge to issue such written ruling; the statute is silent as to the standard of proof, evidentiary standard, and/or factors the court should consider when making its decision. In light of the lack of clarity, there have been questions as to how to implement this portion of the statute.

In a recent decision issued by the Supreme Judicial Court: Commonwealth v. Dos Santos, the trial judge grappled with the domestic violence offender registry requirements and ultimately asked the Appeals Court for guidance. Specifically, under the Massachusetts Rules of Criminal Procedure Rule 34, a trial court judge may report a question of law to the Appeals Court if the trial judge determines the issue so important or doubtful as to require the decision of the Appeals Court.

In the Dos Santos case, the defendant was arrested for pushing his wife in the context of their marital difficulties. The defendant was charged with assault and battery on a family member. At his arraignment, prior to his release on conditions, “the Commonwealth submitted a preliminary written statement pursuant to §56A, alleging that domestic abuse occurred immediately prior to or in conjunction with the defendant’s charged offense.” The judge, however, declined to make a written ruling that domestic abuse was alleged out of concern that the statutory language violated constitutional principles of due process and separation of powers and instead reported the question pursuant to Rule 34. Continue reading →

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gavel-952313-mDuring the process of a criminal case, the trial court judge makes a number of different rulings, all of which may be appealed by a defendant. There are several different types of appeals. The most common type of appeal is a direct appeal, which is an appeal to the Appeals Court following a conviction after trial. A defendant has a statutory right to a direct appeal, meaning he has a right to file and be heard on the issues raised in the appeal. In addition to direct appeals, there are several other vehicles for appealing a decision made by a trial court judge, including interlocutory appeals – i.e. appeals made before a case goes to trial. Defendants are only permitted to file interlocutory appeals in limited circumstances, which typically involve the denial of a motion to suppress evidence.

In addition to direct appeals and interlocutory appeals, appeals may also be made pursuant to G. L. c. 211, § 3. Under this statute, the Supreme Judicial Court has “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided.” Relief under G. L. c. 211, § 3 is discretionary, meaning the SJC is not required to accept a request for review under the statute. The Court has repeatedly stated that it will grant relief under G.L. c. 211, § 3, “[o]nly in the most exceptional circumstances.” For the Court to accept such an appeal for review, a defendant must demonstrate not only that a substantive right is at stake, but also that the normal process of direct appellate review will be inadequate to vindicate that right, and therefore there is no other recourse but to invoke the Court’s special powers.

On June 30, 2015, the SJC accepted a G. L. c. 211, § 3 petition filed by a defendant with a case in the Holyoke District Court. Specifically, the petition addressed a new order issued by the Holyoke District Court relating to G. L. c. 278, § 18. This statute establishes the right of defendants with cases in District Court to withdraw their pleas if the judge seeks to impose a sentence that exceeds the defendant’s recommendation. In other words, if a defendant facing charges in District Court chooses to plead guilty and resolve his case short of trial and the judge exceeds the sentence requested by the defendant, the defendant has an absolute right to withdraw his plea and take the case to trial. This is called a “defense capped” plea because the defendant has the right to choose the maximum penalty that he will accept. The new order states that a defendant will not have the right to withdraw his plea if the judge exceeds his recommended sentence when the plea is tendered on the trial date, thereby stripping defendants of the right to present a defense-capped plea on the date of trial. In addition to accepting the petition for review, the
SJC also issued an order staying the implementation of the order pending the Court’s decision. Continue reading →

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black-and-white-crime-1-1115700-mAccording 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.

Continue reading →

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the-last-drop-1083566-mLast week, the Supreme Judicial Court issued a decision – Commonwealth v. Camblin – that calls the admissibility of breath test evidence into question in operating under the influence cases. The facts of the case are as follows: Camblin pulled over in the breakdown lane on Route 495 to urinate. A Massachusetts State Trooper saw Camblin standing outside his car, pulled over behind him, and spoke to him. During the course of their interaction, the trooper became suspicious that Camblin had been driving under the influence of alcohol and administered several field sobriety tests. Camblin performed poorly on the tests and the trooper transported him to the state police barracks where Camblin was asked if he would be willing to take a breathlyzer test. The trooper administered the test using an “Alcotest” device. The device indicated that the Camblin’s blood alcohol level was 0.16 – two times the legal limit of .08. Camblin was subsequently charged with OUI, second offense.

The case went to trial and Camblin’s attorney challenged the admissibility of the results of the breathalyzer. Specifically, Camblin’s attorney filed a motion in limine to exclude the Alcotest results on the ground that the test was scientifically unreliable under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Commonwealth v. Lanigan, 419 Mass. 15 (1994), both of which govern the admissibility of scientific test results at trial. For the results of a scientific test to be admissible under the Daubert-Lanigan standard, the party seeking to introduce the scientific evidence must lay an adequate foundation for its introduction, either by establishing general acceptance of the test in the scientific community, or by showing that the evidence is reliable or valid through an alternate means.

Camblin’s attorney specifically sought a hearing concerning the Alcotest’s reliability. The gist of the request was that errors in the Alcotest’s source code (the code written to control the functioning of computer software), as well as other deficiencies, rendered the breath test results produced by the Alcotest unreliable. The trial judge denied the motion to exclude the evidence and refused to hold a motion regarding the reliability and therefore admissibility of the evidence, reasoning primarily that a Daubert-Lanigan hearing is inapplicable to the admissibility of the Alcotest results because they are admissible by statute” – G. L. c. 90, §§24(1)(e), 24K. Continue reading →

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