Massachusetts Criminal Lawyer Blog

Published on: April 22, 2014

Framinghman Teens Charged with Receiving Stolen Car

According to an article the in MetroWest Daily News, a Framingham police officer stopped a Volkswagen sedan with four teenage occupants – all juveniles – last week. While it’s not clear why the officer originally stopped the car, after the driver and passengers were allowed to leave, an automatic license plate reader alerted the officer that the Volkswagen had been reported “missing” from Brockton. A second officer saw the car several hours later, however, and stopped it again. All four of the occupants were charged with receiving a stolen motor vehicle. The driver was also charged with driving without a license.

To prove that the teens are guilty of receiving a stolen motor vehicle under G. L. c. 266, § 28, the Commonwealth would have to prove beyond a reasonable doubt that: (1) the motor vehicle was stolen; (2) that the defendant(s) knew that the vehicle had been stolen; and (3) that the defendant(s) knowingly had the stolen vehicle in their possession. As to the first element, although the Commonwealth does not have to prove who stole the vehicle, it must establish that someone had taken it without the right to do so/consent of the owner, while intending to deprive the owner of the vehicle permanently. As to the second element, the Commonwealth must prove that the defendant(s) knew or believed that the vehicle was stolen – even if a reasonable person would have known or believed that the vehicle was stolen, a defendant may not be found guilty unless the Commonwealth proves that he or she actually knew, or at least believed, that the vehicle was stolen.

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Published on: April 17, 2014

New Domestic Violence Bill Proposed at Statehouse

By Daniel Cappetta

A new bill – S 853 – was unveiled at the statehouse last Tuesday. The bill establishes new crimes related to domestic violence, new legal provisions to protect alleged victims, and new training for judges in relation to domestic violence cases.

Specifically, the bill creates a new charge for a first offense of domestic assault and battery, creating a classification system for criminal conduct that is alleged to have occurred in a domestic context. Such classification means that those involved in the criminal justice system, including judges, prosecutors, and police, would potentially be in a position to track a defendant’s history of domestic charges.

Under the proposed law, a first domestic assault and battery offense would be punishable by up to 2.5 years in the county House of Correction and a $5,000 fine. A second offense would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and a $10,000 fine.

The bill would also create new charges for strangulation and suffocation. Currently, prosecutors classify strangulation as either an assault and battery, or attempted murder. The new offenses would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and up to a $5,000 fine. Under special circumstances, the penalties for strangulation and suffocation could increase to up to 10 years in state prison and a $10,000 fine. Examples of such special circumstances include situations in which the alleged victim was pregnant, the alleged victim had a restraining order against the defendant, the alleged assault resulted in significant bodily harm to the alleged victim, or if the charges against the defendant were a second or subsequent offense – meaning that the defendant had been convicted of domestic charges in the past.

Additional proposed provisions of the bill include:

Exclusion of domestic violence cases from resolution by an “accord and satisfaction,” which is a statutory resolution of a criminal case (laid out under G. L. c. 276, § 55) that allows a defendant who is charged with an assault and battery or other misdemeanor to enter into a settlement (usually financial) with the alleged victim so that the alleged victim is “satisfied.” The defendant can then file the agreement with the court and ask the judge to dismiss the charges.
Addition of new charges for domestic assault near a courthouse, or with the intent to intimidate or prevent access to courts.
Increasing the penalties for domestic violence against people who are elderly or disabled.
Creation of a new state-level review team to investigate domestic violence-related fatalities and to help establish best practices to prevent domestic violence.
Delaying bail for defendants charged with domestic violence offenses by six hours (to give alleged victims additional time to get assistance if they want it).
Establishing up to 15 days of employment leave a year for alleged victims of domestic violence to deal with things like obtaining medical attention or attending court.
Creation of a separate police log for alleged domestic violence complaints.
Establishing fees for those convicted of domestic violence offenses, with the money going to a victim assistance fund.
Requiring the trial court’s chief justice to provide bi-annual training to court personnel on domestic violence.
Prohibiting the court from granting visitation rights to a parent convicted of rape without the child’s consent.

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Published on: March 14, 2014

Office of the Inspector General Issues Report on Hinton Lab Scandal

By Daniel Cappetta

This past week, the Massachusetts’ Office of the Inspector General (OIG) issued its long-awaited report on the Hinton drug lab scandal. The purpose of the OIG’s investigation was to look at how the Hinton lab was run for the 10 years before it was shut down in 2012, identify deficiencies in the practices and protocols, and determine the scope of the malfeasance at the lab.

The OIG found many major problems relating to Annie Dookhan, the disgraced chemist who is currently serving a 3-5 year sentence for her misconduct, and the way in which the drug lab was run. The OIG did not, however, go so far as to say that all results coming out of the lab were suspect. To the contrary, the OIG found that chemist Dookhan was the “sole bad actor.” The report therefore concluded that only the 40,323 cases in which Dookhan was directly involved needed to be “treated as suspect and be subject to careful review.”

Despite this finding, the report revealed that the way in which the lab was run was alarming, to say the least. The report was highly critical of the drug lab’s managers and the Department of Public Health leadership – the OIG slammed the management and operation of the lab, finding grave and systemic deficiencies on virtually every level. The report specifically stated that the lab “lacked formal and uniform protocols with respect to many of its basic operations, including training, chain of custody and testing methods. This lack of direction, caused in part by the Drug Lab’s lack of accreditation, allowed chemists to create their own insufficient, discordant practices.”

The OIG also found that for trafficking cases involving many drug samples, where every sample wasn’t tested, there were problems with how some chemists estimated the total weight.

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Published on: March 10, 2014

SJC Weighs in on Annie Dookhan

By Daniel Cappetta

Earlier this week, the Supreme Judicial Court issued its decision in Commonwealth v. Scott. In the decision, the SJC made it easier for defendants who were convicted of drug offenses involving Dookhan drug certificates, and who are now seeking to vacate their pleas.

In April 2011, Scott was arrested. Following his arrest, officers found what they believed to be crack cocaine on Scott’s person. The suspected cocaine was then sent to the Hinton Laboratory in Jamaica Plain for testing. The lab subsequently issued a drug certificate identifying the substance as cocaine. Dookhan was the primary chemist listed on the certificate (primary chemists conduct preliminary testing and prepare the sample for use in confirmatory tests, which are more comprehensive).

In September, 2011, before Dookhan’s wrongdoing had been made public, Scott pled out. After the lab scandal broke in August of 2012, Scott filed a motion to vacate his plea pursuant to Mass. R. Crim. P. 30(b) on the ground that his plea was not made knowingly and voluntarily, as is required under the law. Specifically, Scott claimed that his guilty plea invalid because he was not informed of Dookhan’s misconduct prior to the plea, and that her misconduct was material to his decision to plead out. The motion judge granted Scott’s motion to vacate his guilty plea and the Commonwealth appealed the judge’s order.

Under Mass. R. Crim. P. 30(b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. Under Massachusetts law, due process requires that a plea of guilty be accepted only where the defendant’s plea was intelligently and voluntarily made. A plea is intelligent if the defendant is aware of the elements of the charges against him, and the procedural protections he is giving up by pleading out. A plea is voluntary so long as it is not coerced. A defendant’s plea may be deemed involuntary because of external circumstances or information that later comes to light, including the disclosure of government misconduct.

In Ferrara v. United States, 456 F.3d 278, 290 (1^st Cir. 2006), the First Circuit Court of Appeals analyzed a motion for a new trial in the context of government misconduct. The First Circuit concluded that when a defendant seeks to vacate a guilty plea as a result of underlying government misconduct, the defendant must show (1) the existence of “egregiously impermissible conduct” by government agents, which pre-dated the entry of his plea; and (2) that “the misconduct was material to his choice to plead guilty.”

To satisfy the first prong, a defendant must show (a) that there was egregious misconduct; (b) by a government agent, prior to the entry of the defendant’s guilty plea; and (c) that the misconduct specifically occurred in the defendant’s case, i.e. the defendant must show a nexus between the misconduct and his case.

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Published on: February 27, 2014

Homeless Man Arrested in Framingham House

By Daniel Cappetta

According to an article in the MetroWest Daily News, a homeless man was arrested in a Framingham house last week. According to the article, the man was found in the bathroom of the home. The homeowner, a woman, told the police that she went into her bathroom and discovered the man, whom she does not know, passed out on the toilet. The woman then called the police, who attempted to rouse the man, but had difficulty doing so. When he finally came to, the police observed a cut on his hand and his face, and he looked like he’d been in some sort of altercation. The man told the police that he believed he was in a relative’s apartment, but could not provide an address where the relative lived. The man was ultimately arrested and charged with unarmed burglary.

Despite the fact that the man’s conduct undoubtedly frightened the homeowner, he appears to have a strong defense to the charge. For the Commonwealth to prove that the man committed the offense of unarmed burglary under G. L. c. 266, § 15, the Commonwealth would have to prove beyond a reasonable doubt that (1) the man broke into the house; (2) entered the house; (3) someone lived in the house; (4) the entry was at night; (5) the man entered the house with the intended to commit a felony; (6) the man was not armed; and (7) the man did not assault any person lawfully in the house.

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Published on: February 26, 2014

SJC Rules that Police Must Get a Search Warrant for Cell Site Location Information

By Daniel Cappetta

On February 18, 2013, the Supreme Judicial Court issued a decision in Commonwealth v. Augustine. In the decision, the court ruled that the Commonwealth must obtain a warrant supported by probable cause before getting cell site location information (CSLI) associated with a particular cellular telephone from cellular telephone providers. CSLI records include information about a subscriber’s location when using the cellular telephone, and therefore can be used to reconstruct the subscriber’s movements and location over time.

The underlying facts of the case are as follows: The victim was murdered in 2004. During the course of the criminal investigation, the police began to focus on Augustine, who had previously dated the victim. As part of the investigation, the police sought certain records from Augustine’s cellular phone provider (Sprint), including CSLI information that spanned two weeks, beginning on the date of the victim’s disappearance, August 24, 2004.

The Commonwealth applied for the records under a federal statute – 18 U.S.C. § 2703 – which governs the compelled disclosure of customer communications and records to law enforcement. The statute requires that law enforcement demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” The Commonwealth’s application for Augustine’s records was supported by an affidavit from one of the state troopers involved in the murder investigation. The affidavit stated that the police sought the records to determine the “general location” of Augustine and the victim at the time of the victim’s disappearance, and to potentially include or exclude Augustine as a suspect in the murder. A Superior Court judge allowed the Commonwealth’s application. An order compelling the production of the records was sent to Sprint and the CSLI records were subsequently provided to the Commonwealth. Augustine was charged with the victim’s murder 7 years later, in 2011.

During the course of the court case, Augustine filed a motion to suppress evidence of the CSLI on the ground he had a “reasonable expectation of privacy” in the records, and therefore the police were required to get a valid search warrant based on probable cause before obtaining the records (probable cause is a higher standard of proof than the “specific and articulable facts” required by 18 U.S.C. § 2703). A reasonable expectation of privacy exists if (1) a person subjectively expects privacy; and (2) the expectation is one that society as a whole would think is legitimate. Under both the Federal and Massachusetts Constitutions, a search in the constitutional sense occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy.

Augustine argued that because he had a reasonable expectation of privacy, and because the police failed to get a warrant supported by probable cause, his constitutional rights were violated, and therefore the Commonwealth should not be able to use the CSLI records against him at trial. The Commonwealth argued that there was no search in the constitutional sense because the CSLI records were business records of Augustine’s cellular served provider and therefore Augustine did not have a reasonable expectation of privacy in them. Continue reading →

Published on: February 19, 2014

Framingham Man Allegedly Sexually Assaulted Son’s Girlfriend

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man sexually assaulted his son’s girlfriend. The man reportedly shares his apartment with his son and the girlfriend. According to the article, the man went into the bedroom used by his son and the girlfriend. The girlfriend was lying on the bed and the son was in the shower. The girlfriend claimed that after the man entered the room, he rubbed her leg and moved his hand toward her vaginal area. The girlfriend further alleged that she yelled “no,” and that the man told her that he wanted to see her [expletive]. The man then reportedly exposed his penis and left the bedroom. The man was subsequently arrested and charged with: (1) indecent assault and battery; (2) open and gross lewdness; and (3) annoying and accosting a person of the opposite sex.

Although the allegations are serious, there are several reasons why the prosecution may have trouble proving the charges against the man. First, as to the indecent assault and battery charge, the Commonwealth may have trouble proving that the assault was in fact “indecent.” To prove that a person has committed an indecent assault and battery under G. L. c. 265, § 13H, the Commonwealth must prove the following elements: (1) that the alleged victim was at least 14 years old at the time of the alleged offense; (2) that the defendant intentionally touched the alleged victim without legal justification or excuse; (3) that the touching was without the alleged victim’s consent; and (4) that the touching was “indecent,” as that word is commonly understood, measured by common understanding and practices. Specifically, an indecent act is one that is fundamentally offensive to contemporary standards of decency. An assault and battery may be indecent if it involves touching portions of the anatomy commonly thought of as private, such as a person’s genital area or buttocks, or the breasts of a female.

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Published on: January 14, 2014

Framingham Man Charged with Assaulting Daughter

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man allegedly assaulted his daughter last week. The article alleges that the defendant was drinking and physically attacked the daughter, including putting her in a headlock at one point. The daughter then reportedly struck the defendant with a knife in both legs. The defendant was ultimately charged with domestic assault and battery.

Although the daughter was not arrested and the article indicates that she was “acting in self-defense,” she could still be criminally charged for cutting her father. Specifically, the fact that she may have been acting in self-defense and could therefore raise that issue as a defense at trial does not mean that the she could not be criminally charged and potentially prosecuted for her conduct. In light of the fact that she could potentially face criminal charges, she may decline to testify and choose to exercise her Fifth Amendment privilege, which states that a person cannot be compelled to testify if her testimony is potentially incriminating and/or could result in criminal prosecution. The privilege is not limited to circumstances in which the Commonwealth has specifically sought charges or indicated that it intends to do so – a person can assert her Fifth Amendment privilege as long as she could face criminal charges, regardless of whether she actually will. Continue reading →

Published on: January 7, 2014

SJC Lays Out Sentencing Scheme that Should be Applied Post Diatchenko

By Daniel Cappetta

On December 24, 2013, in Commonwealth v. Diatchenko, the Supreme Judicial Court ruled that all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate the prohibition against cruel and unusual punishment under Article 26 of the Massachusetts Declaration of Rights. This decision went beyond current federal law, laid out in Miller v. Alabama, which holds that mandatory life-without-parole sentences for juvenile offenders constitute cruel and unusual punishment under the 8th Amendment, but states that judges still have the discretion to impose such sentences following a hearing to determine whether life-without-parole is appropriate. Following the decision, the SJC issued a ruling in Commonwealth v. Brown, which lays out the sentencing scheme that should be applied to juveniles in light of Diatchenko.

Brown was charged with shooting and killing his friend on June 20, 2009. At the time of the shooting, Brown was just seventeen years old. On June 25, 2012, while Brown was still awaiting trial, the U.S. Supreme Court issued the decision in Miller. Brown was tried in August 2012 and convicted of murder in the first degree. Following the conviction, the sentence that the trial judge could impose was unclear. Under G. L. c. 265, § 2, all defendants over the age of fourteen who are convicted of murder in the first degree must be sentenced to life without the possibility of parole. In light of the Miller decision, however, the trial court judge was not legally allowed to impose a mandatory sentence of life-without-parole on a juvenile. The Commonwealth filed a petition for review of the issue by the SJC. Brown’s sentencing was stayed until the SJC issued a decision.

In its review, the SJC first addressed whether Brown is entitled to the benefit of the law established under Miller and Diatchenko and concluded that the rulings laid out in the cases should be applied to Brown. The Court reasoned that new law must be applied to prosecutions that are not yet final at the time the new law is established, and that Brown’s conviction was not yet final because he had not been sentenced.

The Court then went on to discuss what sentence the trial court judge could impose in light of Miller and Diatchenko. Both the Commonwealth and Brown’s attorney made arguments to the trial court judge regarding this issue. The Commonwealth took the position that the court had the authority to sentence Brown to life in prison without the possibility of parole on a discretionary basis. Further, The Commonwealth argued that if the judge declined to impose a sentence of life without parole, the court still had the authority to impose a sentence of life, and set the minimum term that the defendant must serve before parole eligibility – for example, the court could determine that the defendant should serve at least thirty years before becoming eligible for parole. Brown’s attorney took the position that the court had the authority to sentence Brown to less than a life sentence, such as twenty years, because of the ruling in Miller.

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Published on: January 5, 2014

SJC Holds that Imposition of Life Without Parole Sentences on Juveniles is Unconstitutional

By Daniel Cappetta

On December 24, 2013, in Diatchenko v. District Attorney for the Suffolk District, the Supreme Judicial Court held that the imposition of life without parole sentences on juveniles is unconstitutional. Diatchenko was convicted of first-degree murder for killing a man in 1981, when Diatchenko was just seventeen. At that time, all seventeen year olds accused of a crime were treated as adults, therefore Diatchenko was tried as an adult. Further, under G. L. c. 265, § 2, a first-degree murder conviction carries a mandatory sentence of life in prison without the possibility of parole. Therefore, following the conviction, Diatchenko was sentenced to life without parole. Diatchenko subsequently appealed the conviction. The appeal included the claim that his sentence violated the 8th and 14th Amendments to the United States Constitution and Article 26 of the Massachusetts Declaration of Rights, all of which prohibit cruel and unusual punishment. Diatchenko’s conviction was reviewed by the SJC and was ultimately affirmed, becoming final.

Thirty years later, however, on June 25, 2012, the United States Supreme Court issued a decision in Miller v. Alabama. Miller held that mandatory life sentences for defendants who committed crimes when they were under the age of eighteen are illegal because they violate the 8th Amendment’s prohibition against cruel and unusual punishment. In light of the Miller decision, Diatchenko filed a petition challenging the constitutionality of his sentence under G. L. c. 265, § 2, and seeking a declaration that Article 26 categorically bars the imposition of a sentence of life without parole for offenders who were under the age of eighteen when they committed first-degree murder.

In deciding Diatchenko’s petition, the SJC first addressed whether the rule set out in Miller is retroactive – i.e., whether the rule should apply to convictions that became final prior to the Supreme Court’s decision in Miller. The SJC acknowledged that a new constitutional rule is not generally retroactive, but went on to state that there are two recognized exceptions to this rule. First, a new constitutional rule is retroactive if the rule is “substantive,” meaning that the rule prohibits a certain category of punishment for a class of defendants because of the defendants’ status, or the offense. Second, a new rule is retroactive if the rule implicates an issue of fundamental fairness and accuracy of the criminal proceeding.

Bearing these exceptions in mind, the SJC concluded that rule set forth in Miller is substantive because it explicitly bars the imposition of a certain category of punishment – mandatory life without the possibility of parole – on a specific class of defendants – those under the age of eighteen at the time the offense was committed. Therefore, the SJC determined that the Miller rule should be applied retroactively to ensure that juvenile offenders “do not face a punishment that our criminal law cannot constitutionally impose on them.”

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