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dutch-weed-403-mAccording to an article in the MetroWest Daily News, two men were arrested in Framingham following a traffic stop earlier this week. The article states that the police pulled a vehicle over on Concord Street due to a broken taillight. The driver of the vehicle reportedly got out of the car and attempted to run away but was ultimately stopped by an officer. The passenger remained in the vehicle. During the stop, the officers allegedly saw the passenger rummaging through a duffel bag at his feet. The officers believed that the passenger was possibly trying to conceal a weapon, so they ordered him out of the car and searched him, as well as the duffel. The police recovered bath salts and eight bags of marijuana in the duffel, as well as a bag of marijuana in the passenger’s pocket. There is no indication that the total weight of the marijuana exceeded an ounce. The passenger admitted that the bag was his and the police charged him with possession with intent to distribute marijuana subsequent offense under G. L. c. 94C, § 32C and illegal possession of bath salts under G. L. c. 94C, § 32B. During the course of the stop, the police also determined that the driver’s license was suspended and arrested him for driving with a suspended license subsequent offense under G. L. c. 90, § 23. The police also cited him for the broken taillight.

While the driver may have a hard time defending the charge issued against him, the passenger does appear to at least have a potential defense to the possession with intent to distribute charge. To prove that the passenger is guilty of this charge, the Commonwealth would have to show the following beyond a reasonable doubt: (1) that the substance was in fact marijuana; (2) that the passenger possessed some perceptible amount of it with the intent to distribute it to another person; and (3) that he did so knowingly and intentionally. As to the second element, the jury is entitled to consider a number of different factors, including the quantity of the drugs in the passenger’s possession, the street value of the drugs, the passenger’s financial resources, how the drugs were packaged, whether other items were found along with the drugs which might suggest drug sales, such as packaging materials, scales, or large amounts of cash, whether there was any evidence suggesting that a sale was in progress, whether there was any evidence that the drugs were part of a larger stash, and/or whether there was any evidence that the passenger repeatedly traveled at short intervals to known drug centers. Continue reading →

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you-have-mail-899402-mAccording to an article in the MetroWest Daily News, a judge recently excluded certain evidence that the Commonwealth sought to introduce against a twenty-six year old man accused of raping a twelve year old in Northborough.

The man reportedly met the alleged victim on MySpace. The two met on at least one occasion, during which the alleged victim claims they had sex. The alleged victim told her parents about the interaction, and her parents reported the contact to the police. The police then took over and initiated a sting operation in which they communicated with the man over text message, pretending to be the alleged victim. The police saved each of the text messages, but did not bother to save the alleged victim’s side of the communications. The article specifically indicates that the police deleted thirty or more text messages that the police reportedly sent to the man, posing as the alleged victim.

The case went to trial last week. Prior to the trial, the defense and prosecution argued preliminary motions as to the admissibility of various pieces of evidence, including testimony relating to the text messages, and the text messages themselves. The defense attorney sought to exclude all evidence relating to the text messages on the ground that the police and the Commonwealth acted negligently by failing to preserve the other side of the conversation: the text messages sent by the police. The judge presiding over the case – Judge Daniel Wrenn – specifically found that the police had failed to save copies of the messages they sent to the man, and that the messages were then permanently deleted by the police. The judge further went on to rule that the Northborough police either knew, or should have known, the messages would be relevant – particularly after detectives “took the time and had the foresight” to preserve the messages they received from the man. The judge then allowed only a very limited amount of evidence about the text messages to be admitted.   Continue reading →

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at-the-mall-5-363181-mAccording to an article in the MetroWest Daily News, two men arranged a drug deal with a third man – the alleged victim – and then reportedly robbed and beat him. The article states that one of the defendants (defendant number one) and the alleged victim met up in Lynn and then drove to Hudson to buy marijuana. Once in Hudson, defendant number one and the alleged victim picked up the second defendant (defendant number two) at a Rite Aid pharmacy and the three of them went to a parking lot near 25 South Street. According to the article, the defendants then pulled out a gun and threatened the alleged victim, took $300 in cash from him, and physically assaulted him. After the assault, the defendants left the scene. It is not clear how the police were notified of the assault, but they did ultimately arrive at the parking lot following a call about a “fight” and found the alleged victim there, injured and bleeding.

After the alleged victim provided his account of assault to the police, they arrested the defendants. Defendant number two made a statement indicating that he was the one that had been assaulted by the alleged victim rather than the other way around. He specifically stated he had tried to buy drugs from the alleged victim and that the deal “went bad.” Defendant number two also had visible injuries, including a welt under his eye and a bite mark on his back. As a result of the incident, both of the defendants were charged with armed robbery, conspiracy, threats to commit a crime, and assault and battery with a dangerous weapon with substantial injury to the victim. Continue reading →

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rubi-summer-girl-1422912-mAccording to an article in the MetroWest Daily News, a Chelsea man is scheduled to go to trial this coming week on charges of sexual assault. The article states that the defendant, who was twenty-six years old at the time, became friends with the alleged victim, who was twelve years old at the time, on MySpace in 2009. The defendant reportedly traded phone messages with the alleged victim for several weeks and ultimately met her in Northborough in July of 2009. They then reportedly drove to a conservation area and engaged in “sexual activity.” According to the article, the alleged victim told police that she thought that the defendant was sixteen years old and that she told him that she was fourteen. At some point during their interactions, the defendant reportedly offered to provide the alleged victim with liquor and asked her to keep his age a secret from her friends because he could “get in big trouble.”

Police were notified of the defendant’s contact with the alleged victim by her parents. The police then set up a sting, posing as the alleged victim in a series of text messages. During these interactions, the defendant reportedly sent a picture of himself to the police. He also reportedly reserved a room at a motel, allegedly for the purpose of meeting with the alleged victim again. Before the meeting took place, however, the police arrested him. The defendant was charged with statutory rape of a child, aggravated rape of a child (due to the more than ten year age difference), child enticement, and indecent assault and battery on a child under fourteen.

Although the alleged victim claims that she and the defendant engaged in sexual activity, there is no physical evidence of such contact. To the contrary, a rape kit was conducted on the alleged victim and no semen was found. There also does not appear to be any physical evidence of penetration or physical injuries, which one would potentially expect had there been any sort of sexual contact. There also appears to be some question as to the alleged victim’s motives for reporting the interaction with the defendant; the alleged victim appears to have told her parents about her contact with the defendant after she was caught returning home later than she was supposed to be and offered the relationship by way of explanation.  Continue reading →

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cigarettes-908564-mAccording to an article in the MetroWest Daily News, two men were arrested in Framingham this week for breaking into an apartment building. The article states that a tenant in the building called the Framingham Police Department at approximately 2:15am because she heard a noise coming from the basement. When the police arrived, they found the two men sitting in the basement of the apartment building smoking cigarettes. One of the men told the police that he had a friend that lived in the apartment building. He further stated that he and the other man were walking and that it was extremely cold outside, so they decided to go hang out in the basement and smoke some cigarettes. Both of the men were subsequently charged with trespass and breaking and entering.

For the Commonwealth to convict them men of breaking and entering under G. L. c. 266, § 16, it would have to prove the following beyond a reasonable doubt: (1) that the men broke into a building; (2) that they entered that building; (3) that they did so with the intent to commit a felony; and (4) that the breaking and entering happened at night. For the Commonwealth to convict the men of trespass under G. L. c. 266, § 120, it would have to prove the following beyond a reasonable doubt: (1) that the men did not have the right to enter the building; (2) that they knowingly entered the building; and (3) that they were forbidden to enter the building of another person with lawful control of the premises.

It appears that both men have a strong defense to the breaking and entering charges, as well as a potential defense to the trespass charge. As to the breaking and entering, the Commonwealth may have trouble proving both that there was a breaking, and that either of the men entered the building with the intent to commit a felony. A breaking is defined as exerting physical force and thereby forcibly removing an obstruction to gain entry. Obvious examples of a breaking are breaking a window or forcing open a door or window. Going into a building through an unobstructed entrance, such as an open door, however, is not a breaking. Given the fact that there is no indication that the men used any force to get into the building, in conjunction with the fact that one of them reportedly knew someone that lived there, it is not beyond the realm of possibility that this individual left a door open for the men, or that they entered the building through an open, unobstructed door. It also appears that the Commonwealth will have an even harder time proving the third element: that the men entered the building with the intent to commit a felony. There is no indication that there was any property damage or any items stolen from the building – to the contrary, one of the men explicitly stated that they were there smoking cigarettes, and that is exactly what the police found them doing. Therefore, there seems to be a fairly strong argument that the third element of the offense could not be met. Continue reading →

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x-659428-mAccording to an article in the Metrowest Daily News a Framingham man was recently arrested for drug distribution. The article states that the Framingham Police Department was investigating the man and was working with a confidential informant as part of the investigation. The police had the informant set up a heroin deal with the man. Specifically, the informant allegedly arranged a drug deal during which he was supposed to pay the man $350 in exchange for three grams of heroin. The deal was supposed to take place at Dunkin Donuts on Cochituate Road. The article indicates that after the informant set up the deal, the police followed the man from his apartment to the Dunkin Donuts and reportedly watched the informant purchase the heroin from the man. Following the deal, the man left in his car and the police pulled him over shortly thereafter. The police did not find any drugs in the car, or on the man’s person. The police then went on to search the man’s apartment. Again, no drugs were found, however the police did recover some items associated with drug distribution including packaging, a digital scale, and a tool called a heroin press. As a result, the man was charged with possession with intent to distribute heroin.

For the Commonwealth to prove that the man possessed heroin with the intent to distribute it under G. L. c. 94C, § 32, it would have to show the following beyond a reasonable doubt: (1) that the substance reportedly sold to the informant was in fact heroin; (2) that the man possessed some perceptible amount of the heroin with the intent to distribute it to another person; and (3) that he did so knowingly and intentionally.

Fortunately for the man, there do appear to be some problems with the Commonwealth’s case. For starters, the Commonwealth almost never shares the identity of a confidential informant with the defense. Generally, the police do not want to put an informant in any sort of danger, which might happen if it became public that the informant was working with the police. Additionally, the police want to be able to continue to use an informant, which they would not be able to do if it became known that the individual was working with them. Because the Commonwealth will likely be unwilling to identify the informant, it will not be permitted to call the informant to testify against the defendant. Therefore, the police will have to rely solely on their observations to prove the Commonwealth’s case against him. Continue reading →

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gun-1213609-mOdin Lloyd, a semi-pro football player, was found murdered in an industrial park in Attleboro in June 2013. Former New England Patriots player Aaron Hernandez was ultimately charged with Lloyd’s murder. Three other individuals were also arrested in connection with Lloyd’s death: Carlos Ortiz, Ernest Wallace, and Tanya Singleton. Prosecutors have alleged that Wallace and Ortiz were with Hernandez when he allegedly killed Lloyd. Specifically, prosecutors allege that on the night of June 16, 2013, Hernandez summoned Ortiz and Wallace to his home, that the three of them drove to Dorchester and picked up Lloyd, and that they then returned to North Attleboro. There, shortly before 3:30 a.m. on June 17, 2013, prosecutors allege that Hernandez shot and killed Lloyd. Singleton allegedly drove Wallace to Georgia in the days after Lloyd’s murder.

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

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

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window-screen-2-152156-mAccording to an article in The Boston Globe, there is a so-called “polite” burglar on the loose. The article states that a man has broken into a number of Middlesex County homes via windows on the first floor or basement. Sometimes the homes have been occupied at the time of the break-ins, but the police also believe that the man has broken into unoccupied homes as well. On the occasions when the homeowner was present, the man has apologized for breaking in. His behavior has been the same each time and he has not harmed any residents as of yet. The police, however, are concerned by his behavior and have told residents to consider him to be dangerous. Woburn Police Chief Robert Ferullo, Jr. specifically issued a statement saying that the man “is a dangerous felon who breaks into people’s homes, often while they are asleep inside.” The man has been described as a dark-skinned Hispanic or light-skinned African American male in his early 20s, about six feet tall with black marks or acne scars on his face.

Despite the strongly worded statements by the police, were law enforcement to actually apprehend the man, there seems to be a serious question as to what they could actually charge him with. For a charge of breaking and entering to issue under G. L. c. 266, § 16, the police would have to demonstrate probable cause to believe that the following elements were met: (1) that the defendant broke into a building; (2) that the defendant entered that building; and (3) that the defendant did so with the intent to commit a felony. Given the fact that there is no indication that the man has ever attempted to harm anyone in the homes, taken any property from the homes, or damaged any property from the homes, there seems to be a fairly strong argument that the third element of the offense could not be met. Likewise, for a charge of burglary to issue under G. L. c. 266, § 15, the police would have to demonstrate probable cause to believe that the following elements were met: (1) that the defendant broke into a house; (2) that the defendant entered the house; (3) that someone lived in the house; (4) the entry was at night; (5) the defendant entered the house with the intent to commit a felony; (6) the defendant was not armed; and (7) the defendant did not assault any person lawfully in the house. Again, given the fact that there is no indication that the man has ever attempted to harm any person or property in the homes, there seems to be a fairly strong argument that the fifth element of this offense could not be met. Continue reading →

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clubs-4-969861-mAccording to an article in The Boston Globe, a captain in the Revere Fire Department got into a scuffle with trick-or-treaters on Halloween night and was arrested as a result. The article indicates that the defendant was out with his wife and their six-year old son in Revere. Around 7:30pm, the family encountered a group of ten to twenty teenagers who reportedly began harassing the six-year-old and allegedly threw items at him. After the initial encounter, the group left but soon returned with more kids. The group then reportedly “taunted” the six-year-old and told the family that they were going to “mess” him up. According to the defendant’s wife, the group then turned on the defendant. There was some sort of physical altercation and the defendant was reportedly knocked to the ground. At some point during the scuffle, the defendant swung a golf club that he happened to have with him and struck at least two of the kids, who were injured. The defendant’s wife called the police to report the incident, but it was the defendant who ended up being arrested – specifically, he was charged with three counts of assault and battery with a dangerous weapon and one count of assault and battery on a child. He is scheduled to be arraigned this coming week.

For the Commonwealth to prove that the defendant committed the crime of assault and battery with a dangerous weapon under G. L. c. 265, § 15A(b), it would have to prove the following beyond a reasonable doubt: (1) that the defendant touched the person of the alleged victims, however slightly, without having any right or excuse for doing so; (2) that he intended to touch the alleged victims; and (3) that the touching was done by means of a dangerous weapon. For the Commonwealth to prove that the defendant committed the crime of assault and battery on a child under G. L. c. 265, § 15A(c), it would have to prove the following beyond a reasonable doubt: (1) that the defendant touched the person of the alleged victims, without having any right or excuse for doing so; (2) that he intended to touch the alleged victims; and (3) that the alleged victims were children under the age of fourteen. Continue reading →

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what-not-to-do-1-1195548-mIn its recent decision in Commonwealth v. LeClair, the Supreme Judicial Court reiterated that a witness’ ability to properly invoke his Fifth Amendment privilege does not depend on whether the prosecutor specifically intends to actually prosecute the case, rather what matters is whether the witness’ testimony could be used in a criminal prosecution, or could lead to other evidence that might be so used.

The facts of the case are as follows: in May of 2012, the defendant was arraigned on a charge of assault and battery as a result of an incident between him and his girlfriend. The alleged incident took place at a friend’s apartment. The friend, Mark Sheehan, was present in the apartment at the time of the alleged incident, and the Commonwealth summonsed him to testify at the trial. The trial judge appointed an attorney to represent Sheehan with respect to a potential assertion of his Fifth Amendment privilege against self-incrimination. Sheehan’s attorney reported to the court that Sheehan did indeed have a Fifth Amendment privilege not to testify, because, based on his answers to the questions expected to be posed to him, the testimony could expose him to criminal charges of possession of a controlled substance and conspiracy to violate the drug laws. The attorney further stated that Sheehan intended to assert his Fifth Amendment privilege.

Following a brief hearing, the judge ruled that Sheehan’s invocation of the privilege was not valid because Sheehan had not shown that he faced a real risk that his answers to questions would tend to incriminate him. The trial then started and the Commonwealth called Sheehan to the stand. The prosecutor did not ask Sheehan about his use of any illegal drugs during the evening prior to the alleged incident. On cross-examination, however, the defendant’s attorney did inquire as to Sheehan’s use of illegal drugs. Sheehan again attempted to invoke his Fifth Amendment privilege, but the judge ordered him to respond. Sheehan then answered two more questions, again, as a result of the judge’s orders. After those two questions were answered, Sheehan, upon advice of his attorney, continued to invoke his privilege and refused to respond to the defense attorney’s questions concerning his use of illegal drugs. The judge told Sheehan that his refusal to answer the questions based on a mistaken invocation of the Fifth Amendment privilege would result in a charge of contempt. The Commonwealth then filed a written statement with the court stating that it had no present, nor future interest in the prosecution of Sheehan for the illegal drug activity to which he would potentially be testifying. Sheehan, however, continued to invoke his Fifth Amendment privilege. The judge then found Sheehan in contempt and imposed a sentence of ninety days’ incarceration, but stayed the proceedings so that Sheehan could appeal the court’s ruling. Continue reading →

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