Massachusetts Criminal Lawyer Blog

Published on: February 7, 2015

SJC Improves Jury Instructions on Eyewitness Identification

In Commonwealth v. Gomes, a recent decision by the Supreme Judicial Court, the Court announced significant additions to the model jury instruction on eyewitness identification.

The facts of the case are as follows: In the early morning hours of September 10, 2011, the defendant walked into a gas station convenience store and bumped into a customer – Lindsay Holtzman. The defendant asked the clerk, Jordan Wilson, for matches and the clerk asked the defendant to apologize to Holtzman. The defendant declined to do so and challenged Wilson to a fight, which Wilson laughed off. The defendant then left the store. When the defendant exited, the victim and his friend, Gerald Mortensen, were sitting in the victim’s car in a well-lit section of the parking lot. The victim was in the driver’s seat and made eye contact with the defendant as he left the store. After the eye contact was made, the defendant asked the victim what he was looking at and the victim said he wasn’t looking at anything. The defendant then pulled a box cutter from his pocket, reached into the car, and slashed the victim’s face. Mortensen ran into the store and told the clerk to get help. Mortensen and Holtzman then left the store and watched the defendant walk backwards toward a corner of the parking lot.

Five days after the incident, Wilson went to the police station and a detective showed him close to a thousand photographs, including a photograph of the defendant. Wilson ultimately identified the defendant as the person who had been at the convenience store the evening of September 10^th and indicated that he was “110%” positive of the identification. The detective then created a photographic array with a total of eight pictures, including the defendant’s photograph, and showed the array to both Mortensen and the victim. Mortensen did not identify anyone in the array. The victim stated that he did not think that the assailant was in the photographs, but stated that he had to choose someone, it was the man with a similar chin; that person was the defendant. Holtzman did not view an array.

Several days later, on September 18^th, Holtzman, Mortensen, and the victim were together and stopped at a different gas station in the area. Holtzman and the victim went into the gas station’s convenience store, saw the defendant in the store, and recognized him as the assailant. They then left the store, confirmed with each other that they had just seen the assailant, and told Mortensen that the defendant was in the store. When the defendant left the store, Mortensen also agreed that it was the assailant. The victim called the police on his cellular telephone and, while speaking to the police, followed the defendant’s car to an apartment complex. The police arrived at the location shortly thereafter and asked the victim and Mortensen to participate in a show-up identification during which they both identified the defendant as the assailant. Holtzman was interviewed after the arrest and confirmed that the person in the convenience store on September 18^th was the same person that she had seen in the convenience store the night of the incident. Continue reading →

Published on: February 4, 2015

Framingham Man Charged with Drug Offenses at Motel 6

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man was arrested on drug charges at a Motel 6 on Route 9. The article states that a motel employee called police about a “disturbance” in the parking lot. When the officer arrived, the employee pointed out a sedan that was about to pull out of a parking spot in the motel lot. The officer activated his blue lights to stop the car, but the backseat passenger, later identified as the defendant, got out of the vehicle and began walking away. When the officer instructed the defendant to stop, he refused to do so and continued to walk away with his hands in the air, reportedly yelling profanities at the officer as he went. The officer then forcibly stopped the defendant and a struggle ensued. Following the struggle, the officer pat frisked the defendant and found two cans of beer and a small plastic bag of heroin. The officer arrested him and then went to speak to the people that were still inside the car. As he did so, the driver sped away.

Following this interaction, the officer spoke to the motel clerk, who stated that the defendant was staying at the motel and let the officer into his room. Once inside the room, the police saw evidence of drug dealing and property damage and applied for a search warrant to search the room. As a result of the search, the officers found several bags of heroin, plastic bags, and digital scales. The defendant was subsequently charged with possession of heroin with intent to distribute, disorderly conduct, resisting arrest, and maliciously defacing property.

Fortunately for the defendant, he appears to have a strong motion to suppress. A motion to suppress is a written request by a defendant asking the court to keep certain evidence from being introduced 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 – in other words, the police must have some legal basis before they can stop and/or search a suspect. The police may stop a person as long as there is “reasonable suspicion” of criminal activity. The evidence necessary for reasonable suspicion is something beyond a mere hunch. If there is reason to believe that the person may be armed and dangerous, the police can also conduct a pat frisk (a search of a person’s outer clothing to determine, through touch, whether the person is armed). Continue reading →

Published on: February 2, 2015

Two Men Charged After Mutual Fight in Framingham

By Daniel Cappetta

According to an article in the MetroWest Daily News, two men were charged with assaulting each other during a fight this past Wednesday in Framingham. The article states that the men work in the same building on Concord Street. One of the men (defendant number one) reportedly bumped into an antique porcelain sink sitting outside of the business owned by the second man (defendant number two) and, according to defendant number two, knocked the sink over. Defendant number two yelled at defendant number one about the incident. When defendant number two then went to pick the sink up, defendant number one reportedly attacked him. Specifically, defendant number two claims that defendant number one hit him in the back of the head with a serving tray. Defendant number two then swung a broomstick at defendant number one – reportedly to defend himself – but missed. The two men fought for about five minutes before defendant number one left the building. Defendant number one told police that defendant number two had threatened him by saying, “I know where you live, I know where you work” and that he had only used the serving tray in self-defense. Both men were summonsed to court to face charges – Defendant number two was charged with assault with a dangerous weapon and defendant number one was charged with assault and battery on a person over 60 (defendant number two is 63).

The defendants are considered cross-complainants. This means that while they are both charged as defendants in the alleged incident, they are also both the alleged victims. Prosecuting cross-complaints may be challenging for the Commonwealth because there are Fifth Amendment implications. The Fifth Amendment states that a person cannot be compelled to testify against himself if that testimony is potentially incriminating and/or could result in criminal prosecution. In this case, the Commonwealth would need to call defendant number two to the stand to testify against defendant number one, as defendant number two is the sole witness to the assault against him, but because defendant number two is also facing criminal charges himself, he clearly has a Fifth Amendment privilege and could refuse to testify. Similarly, the Commonwealth would presumably seek to call defendant number one to the stand to testify against defendant number two, but because defendant number one is also facing criminal charges, he likewise has a Fifth Amendment privilege and could refuse to testify. Continue reading →

Published on: February 1, 2015

SJC Announces New Standard for Admission of Identification Testimony

By Daniel Cappetta

In Commonwealth v. Crayton and Commonwealth v. Collins, both issued on December 17, 2014, the Supreme Judicial Court established a new standard for the admission of in-court identifications of the defendant by eyewitnesses where the witnesses had not previously participated in an out-of-court identification procedure and/or the prior out of court identification was equivocal.

The facts in Crayton are as follows: two students studying in a public library claimed that a man seated near them at one of the library’s computers was looking at nude images of children. Prior to the trial, neither the police nor the prosecutor asked these eyewitnesses to participate in an identification procedure to determine whether they could identify the man they had seen at the computer – they were never shown a photographic array or asked to view a lineup. The first time they were asked to identify the man was on the witness stand at trial, which was more than two years after the first and only time they had seen him. At the trial, the prosecutor asked them whether they saw the man from the library in the courtroom and each of the witnesses identified the defendant.

The SJC held that where a prosecutor asks a witness at trial whether he or she can identify the perpetrator of the crime in the courtroom and the defendant is sitting at counsel’s table, the in-court identification is comparable in its suggestiveness to a show-up identification. The Court went on to state that in-court identifications may be more suggestive than show-ups because “the eyewitness knows that the defendant has been charged and is being tried for that crime. The presence of the defendant in the courtroom is likely to be understood by the eyewitness as confirmation that the prosecutor, as a result of the criminal investigation, believes that the defendant is the person that the eyewitness saw commit the crime. Under such circumstances, eyewitnesses may identify the defendant out of reliance on the prosecutor and in conformity with what is expected of them rather than because their memory is reliable.” In order to counter the risk of misidentification in such circumstances, the Court announced the following new rule based on common law principles: “where an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification [of the defendant] as an in-court show-up, and shall admit it in evidence only where there is ‘good reason’ for its admission.” The Court stated that the new rule will apply prospectively. Continue reading →

Published on: January 25, 2015

Framingham Father Criminally Charged After Physically Disciplining his Son

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man, was arrested after physically disciplining his son. The child, who is seven years old, bit one his teachers at his school. Following the incident, the defendant, the child’s father, reportedly destroyed the child’s video game system. The child’s mother tried to intervene and prevent the defendant from breaking the system. When she did so, however, the defendant reportedly hit her and shoved her away. He then reportedly hit his son and kicked him twice in his buttocks. Approximately two hours after the alleged incident, the defendant presented himself at the police station. While there, he acknowledged that he had hit his son twice in the rear, but denied kicking him. As a result of the incident, the defendant was charged with (1) assault and battery with a dangerous weapon (shod foot); (2) assault and battery on a child; (3) domestic assault and battery; and (4) malicious destruction of property over $250.

Despite the fact that the defendant was charged with these offenses, he does appear to have a legitimate defense. In relation to the charges in which the defendant’s son is the alleged victim, the defendant can argue that he was simply using reasonable physical force to discipline his child. While the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, Massachusetts case law alludes to the ability of a parent, or one acting in position of a parent, to use physical force to discipline a child. For example, in Commonwealth v. Rubeck, the Supreme Judicial Court appears to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force is for the specific purpose of discipline, is conducted in a controlled manner rather than the result of an emotional outburst, and does not result in bruising or significant injury. Given the fact that it is undeniably inappropriate for a seven year old child to bite a teacher, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

Published on: January 25, 2015

Framingham Au Pair Charged with Child Abuse Files Criminal Charges Against Child’s Father

By Daniel Cappetta

According to an article in the MetroWest Daily News, a German au pair who has been charged with assaulting the three year old boy that she cared for has filed a criminal complaint against the child’s father. The au pair was reportedly caught on camera shoving the boy to the floor. The camera recorded both audio and video footage and it appears that the defendant was unaware that any sort of recording device had been put in place to monitor her.

The article indicates that the child’s father had had some concerns regarding the care that the defendant was providing. He then set up a “nanny cam” to record her activity within the home. The appearance of the recording device is not entirely clear – the article does not indicate whether the camera was in plain view and/or whether it was obviously a recording device. Regardless of the appearance of the device, however, it is undisputed that the father did not tell the defendant about the camera and/or that it was recording both audio and visual surveillance. After installing the device, the father apparently watched the footage and observed the incident in which the defendant appears to have shoved the child. Specifically, the video reportedly shows the boy in a living area of the home. the defendant can be heard off camera telling the child to take off his clothes and put his pajamas on so that he can go to bed. Several minutes later, the defendant reportedly enters the room and knocks the child to the floor. He immediately begins crying. the defendant then appears to leave the room but comes back shortly thereafter, sits on the floor with the boy, and tries to comfort him.

Under G. L. c. 272, § 99, it is a crime to record a person’s voice without obtaining his or her permission. As a result, the defendant applied for a criminal complaint against the father, accusing him of violating the wiretapping statute. The defendant’s lawyer is also seeking to have the video excluded from evidence at the trial. Continue reading →

Published on: January 13, 2015

Woman Smears Bacon at Framingham Police Station

By Daniel Cappetta

According to an article in the MetroWest Daily News, an Ashland woman smeared raw bacon on the dispatch window of the Framingham Police Department last week. The article states that the woman walked up to the dispatch window of the police station with a Dunkin Donuts box in her hand. An officer asked how he could help her, and she responded by stating that she was there to “feed the piggies.” She then reportedly pulled a large handful of raw bacon out of the box and smeared it on the dispatch window, leaving grease marks. Following this conduct, she flipped over the Dunkin Donuts box and spilled several sausage links onto the counter at the window. Two officers then confronted the woman and told her she was under arrest. When one of the officers asked her why she engaged in this behavior she said, “God told me to feed the piggies.” She was subsequently charged with one count of disorderly conduct and one count of malicious destruction of property under $250. At her arraignment, the woman told the judge “’they are allowing people to sell me and traffic my body.” She also stated “someone is out to get me. I don’t know who it is, but someone is out to get me.” Following these comments, the judge postponed the arraignment and ordered the woman to undergo a mental health evaluation.

For the Commonwealth to convict the woman of malicious destruction of property under G. L. c. 266, § 127, it would have to prove the following beyond a reasonable doubt: (1) that the woman injured or destroyed the property of another; (2) that she did so willfully; (3) that she did so with malice; and (4) that the amount of damage inflicted to the property was less than $250. For the Commonwealth to convict the woman of disorderly conduct under G. L. c. 272, § 53, it would have to prove the following beyond a reasonable doubt: (1) that the woman either engaged in fighting or threatening, or engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose; (2) that the behavior was reasonably likely to affect the public; and (3) that the woman either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm.

Continue reading →

Published on: January 7, 2015

Framingham Woman Charged with Driving to Endanger

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham woman was arrested after crashing her car into an apartment building this past week. The article states that the woman was driving her car in the area of Beaver Terrace Circle. She was reportedly circling through the area repeatedly and then parking and revving her car loudly. At one point, the woman apparently lost control of the car and crashed into a building at 107A Beaver Terrace Circle. She then reportedly reversed over the curb and hit a tree. The police were called to the scene and found the woman behind the wheel of the car with a bloody nose. She was reportedly speaking slowly and having trouble communicating, but she told police she had not been drinking and was not under the influence of drugs. Despite this statement, an officer overheard the woman tell a paramedic that she had taken Xanax. She was taken to Beth Israel Deaconess Medical Center in Boston to be treated, but police issued a summons for her to appear in court on a charge of driving to endanger. At the time that this alleged offense occurred, the woman was out on bail in a case out of the Marlborough District Court for charges of uttering and larceny. Because she was out on bail on the uttering and larceny case when she was charged with this new offense, the judge revoked her bail for ninety days at her arraignment on the new charge.

Under G. L. c. 276, § 58B, if a defendant is released on bail in a criminal matter and is subsequently charged with a new offense, a judge can revoke the defendant’s release on the open case and hold the defendant without bail for up to ninety days as long as three conditions are met. First, the court must find that there is probable cause to believe that the defendant committed a new offense while he or she was out on bail – generally a new arrest will satisfy this requirement. Second, the court must find that the defendant was given his or her “bail warning” at the arraignment on the pending case. In other words, the court must have warned the defendant that if s/he was arrested on a new case while s/he was out on bail then the bail in the pending matter could be revoked. The fact that such a warning was given should be marked on the court’s docket, and therefore a copy of the docket is generally sufficient to satisfy this requirement. Third, the court must find that there are no conditions of release that can satisfy the safety of the community, or a specific individual in the community. In other words, the court must find that there are not any conditions of release that could be imposed by the court that will ensure the community’s safety, or a particular person’s safety. Continue reading →

Published on: December 28, 2014

Framingham Man Allegedly Robs Former Employer

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man robbed a Sunoco station in Wayland this past week. The article states that the man was previously employed at the gas station and believed that he was owed back pay. Presumably as a result of this belief, he walked into the gas station store and seized a number of money orders. He then left the station and entered an Acura. Following the alleged theft, surveillance footage was obtained and the man was identified as the alleged culprit. There is no indication that he displayed any weapons at the time that he took the money orders. One day after the theft, the police arrested the man and found heroin on his person. He was subsequently charged with possession of heroin and unarmed robbery.

To prove that the man committed the offense of unarmed robbery under G. L. c. 265, § 19, the Commonwealth would have to prove the following elements beyond a reasonable doubt: (1) that the man robbed, stole, or took property; (2) that the property belonged to someone else; (3) that the man had the intent to permanently deprive that person of the property; and (4) that the taking was done by force and violence or by assault and putting the person in fear.

While the man may have a difficult time defending against the possession of heroin charge, he does appear to have at least two potential defenses to the unarmed robbery offense. First, there is no indication that the man used any force or violence to take the money orders – to the contrary, it appears that he simply grabbed them and left the store. Therefore, it seems as though the Commonwealth will not be able to establish the fourth element of the offense. Continue reading →

Published on: December 15, 2014

Alleged Attempted Robbery at Natick MBTA Station

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man was arrested for assaulting and attempting to rob another man at the West Natick MBTA station this past Thursday. The article states that the police went to the station for a report of fight. When they arrived, they saw the defendant, who told the officers that another man had punched him in the face for no reason. He further stated that he and the other man were talking about God when the man punched him. The police located the other man, who was on the train and he admitted to punching the defendant. The man further claimed that the defendant had attacked him. He stated that the defendant had approached him, began talking about religion, and “aggressively asked for money.” The man reportedly told the defendant that he did not have any money and the defendant reportedly pulled the man into a “bear hug” and was yelling at him. It was at this point that the man punched him. The defendant released the man, but then allegedly threatened to stab him. For reasons that are not entirely clear, the police determined that the man should be credited over the defendant and they arrested the defendant on charges of assault and battery, attempted unarmed robbery, and threatening to commit a crime.

While the other man’s account, if credited, does appear to make out the elements of assault and battery and threats, the defendant may have a motion to dismiss the attempted unarmed robbery charge. To prove that he attempted to commit an unarmed robbery under G. L. c . 274, § 6, the Commonwealth would have to demonstrate the following beyond a reasonable doubt: (1) that the defendant had the specific intent to commit an unarmed robbery; and (2) that he took an overt act toward committing that crime, which was part of carrying out the crime, and came reasonably close to actually carrying out that crime. Under G. L. c. 265, § 19, the elements of unarmed robbery are: (1) that a defendant either applied actual force and violence to the body of the victim or put the victim in fear by threatening words or gestures; (2) that the defendant took money or other property with the intent to steal it; and (3) that the defendant took the money or other property from the immediate control of the victim. Continue reading →