Massachusetts Criminal Lawyer Blog

Published on: December 31, 2013

Woman Charged with OUI Seeks Personnel File of Crooked Cop Who Investigated her Case

An Ashland police sergeant was recently indicted in Middlesex Superior Court after he allegedly destroyed drugs in an open 2011 case, and then allegedly tried to intimidate a fellow officer who reported it. The sergeant was specifically charged with two counts of obstruction of justice and one count of wanton destruction of evidence.

According to an article in the MetroWest Daily News, a woman charged with an OUI in 2012 is now seeking the sergeant’s personnel file as part of her defense. The woman crashed her car in Ashland in 2012 and was reportedly under the influence of alcohol at the time of the collision. The sergeant investigated the case. The woman filed a motion seeking the sergeant’s internal affairs reports, arguing that the records are relevant to his reputation for truth and veracity. The town of Ashland, however, has objected to the request, arguing that public records laws protect against disclosure of the information, and claiming that the records have nothing to do with the woman’s case and do not contain exculpatory information.

Under Rule 17 of the Massachusetts Rules of Criminal Procedure, a party may file a motion seeking third party records (i.e., records that are not in the custody of either the Commonwealth or the defendant). The standard for obtaining such records, however, is not whether they definitively contain exculpatory information. Rather, under the rule, the moving party must show that: (1) the records are relevant (i.e., tending to make a fact in the case more or less likely to be true); (2) the records are not otherwise procurable in advance of trial; (3) the party cannot properly prepare for trial without the records; and (4) the request for the records is made in good faith and is not intended as a general fishing expedition.

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Published on: December 22, 2013

Ashland Man Falsely Accused of Domestic Violence?

By Daniel Cappetta

According to an article in the MetroWest Daily News, an Ashland man assaulted his girlfriend last week. The man was charged with one count of attempted murder, under G. L. c. 265, § 16, and one count of assault and battery, under G. L. c. 265, § 13A.

Although allegations of domestic violence are quite serious, there appear to be some significant issues with the Commonwealth’s case. According to the article, on the day of the alleged assault, the girlfriend actually broke into the man’s home, damaged his motorcycle, and threatened both the man and his roommate with a knife. The man then reported the break-in to the police, and it was only several days after he made his report that the girlfriend claimed that he had assaulted her. Specifically, the girlfriend claimed that she had gone to the man’s house to get her laptop and that he attempted to strangle her. She then claimed that she went into hiding for a few days before going to the police. The man’s boss, however, saw the girlfriend come to the man’s work to speak with him during the period she was supposedly in hiding, contradicting her explanation for the delayed reporting. Given the fact that the girlfriend had a motive to fabricate the assault in order to punish the man for reporting the break-in, in conjunction with the fact that there are several witnesses – the roommate and boss – who will undermine various pieces of the girlfriend’s story, the man appears to have a strong argument that the girlfriend is lying.

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Published on: December 15, 2013

Police Search Framingham Man and Find Various Drugs

By Daniel Cappetta

A Framingham man was arrested last week on various drug charges. According to an article in the MetroWest Daily News, police responded to a report of a loud argument on Carlson Road. When the police arrived, they found the defendant and several other people walking in the area. The police reportedly observed a bag of marijuana hanging out of the defendant’s pocket, about to fall out. The police then seized the marijuana, which consisted of two smaller plastic bags inside a larger bag. After the seizure of the marijuana, the police conducted a further search of the defendant and found a Skoal can on his person, which contained several Adderall pills and a plastic bag of cocaine. The defendant then made some statements about who the can belonged to – first stating it wasn’t his, and then stating that it was for personal use. The defendant also had $370 on his person. He was ultimately charged with: (1) possession of Adderall with intent to distribute; (2) possession of marijuana with intent to distribute; and (3) and possession of cocaine.

Fortunately for the defendant, he may well have a strong argument that the police did not have the right to search him in the first place. He can therefore argue that the evidence that the police found as a result of the search should not be admitted against him. Specifically, the police are not allowed to search people whenever they feel like it – there must be some legal basis for the search to be valid. If the police search a person without a legal basis, any evidence they find is not admissible against the person at trial, and the person can file a motion to suppress to have the evidence excluded.

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Published on: December 13, 2013

Framingham Woman Allegedly Stabs Man in Walgreens Parking Lot

By Daniel Cappetta

knife-501415-m (1).jpg According to an article in the MetroWest Daily News, a Framingham woman seeking to buy marijuana in a Walgreens parking lot allegedly stabbed a man there. The woman called police from the parking lot located on School Street and reported that she had gone to the location to buy marijuana. She further claimed that while she was attempting to buy the drugs, three men got out of a car and tried to stab her. She told the police that the men then drove away. Although it is not entirely clear how, the officers were able to track down the men. Two were stopped in a car, and the third was at MetroWest Medical Center, apparently being treated for a stab wound himself. The driver of the car was arrested for driving under the influence of drugs. All three of the men denied the woman’s version of events, claiming that she had actually tried to stab them. According to the article, the woman became uncooperative as the police began to express doubts about her story. She allegedly struggled as police tried to restrain her and at one point kicked an officer in the leg with her boots. Further, a knife was also found on her person. The woman was ultimately charged with: resisting arrest; assault and battery on a police officer; disorderly conduct; and two counts of assault and battery with a dangerous weapon (a knife and a shod foot).

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Published on: December 10, 2013

Framingham Man Breaks into Home, Finds Wife Cheating

By Daniel Cappetta

According to an article in the MetroWest Daily News, a Framingham man broke into a home on Charles Street last week and discovered his wife taking a shower with another man. According to the defendant’s lawyer, the defendant and his wife were at their own home earlier that night. Around 1am, the defendant heard a knock at the door. His wife apparently left the house shortly after the knock and the defendant followed her. He managed to track his wife to the Charles Street home and, once there, heard noises that sounded like two people having sex. He then reportedly broke a window in the basement of the house and entered, confronting his wife and the man in the shower. The wife, once caught, reportedly ran through the house naked and climbed through a second floor window to get away. The man jumped to the street and ran away as well, also without his clothes. A third individual – the man’s sister-in-law and the owner of the house – found the defendant in the kitchen. He apparently repeatedly asked “where’s my wife?” in response to the woman’s questions. The defendant was ultimately found outside of the home, “distraught” and holding onto his wife’s clothing, which he had apparently taken from the house. He was charged with unarmed burglary and malicious destruction of property over $250.

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Published on: December 4, 2013

SJC Holds that Juvenile Court Judges May Allow Motion to Dismiss Prior to Arraignment

By Daniel Cappetta

For a criminal charge to issue against an individual, a police officer must submit an application to the court for a criminal complaint. The application includes the alleged facts and the charges sought. A clerk magistrate then reviews the application to determine whether there is a sufficient basis for the complaint to issue. The specific legal standard is whether the information presented to the clerk magistrate establishes probable cause to believe that the individual committed a particular crime. If the clerk magistrate finds that there is probable cause, the complaint issues and the individual charged is brought to court and is arraigned on the charges.
An arraignment essentially consists of the court notifying the person of the charges, a plea of not guilty entering, and a bail argument. Once a person has been arraigned, the charge is entered onto the person’s Criminal Offender Record Information (CORI) or, in the case of juveniles, Court Activity Record Information (CARI). Following the arraignment, the case proceeds through the pre-trial process, and ultimately to some sort of resolution, such as a trial, a dismissal, or a plea. The pre-trial process may include a motion to dismiss on the ground that the application for the complaint lacked sufficient probable cause, and therefore the clerk magistrate should not have issued the complaint.

When a motion to dismiss for lack of probable cause is brought, the judge must review the information presented to the clerk magistrate and make his or her own determination as to whether the information was sufficient to establish probable cause. Even where a person wins a motion to dismiss, however, the charge remains on the person’s CORI or CARI. Further, although public access to a person’s CORI/CARI is limited, certain institutions, such as courts, public housing authorities, and certain employers, do have access to CORI/CARI information. Therefore, institutions with such access are able to see that a person has been charged with a crime, including the specific charge, even if the charges are ultimately dismissed for lack of probable cause.

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Published on: December 3, 2013

Man Charged with Theft of Brother’s Vodka and Car in Natick

By Daniel Cappetta

According to an article in the MetroWest Daily News, a man broke into his brother’s Natick home and stole a bottle of vodka. He also reportedly took his brother’s jacket, along with the car keys in the jacket pocket, and then left in his brother’s car. His brother woke up to find the car gone and reported it stolen. When police showed up at the brother’s house to take the report, the defendant drove by in the car and the police pulled him over and arrested him. Despite what appears to mostly be a lapse in judgment fueled by alcohol, the defendant was charged with: (1) unarmed burglary; (2) larceny of property worth more than $250; (3) using a vehicle without authority; (4) driving with a suspended license; and (5) possession of an open container of liquor while driving. At the arraignment, the prosecutor stated that “whether [the defendant] intended to steal the car or it was just happenstance [wa]s not known.”
While the defendant may face challenges defending some of the misdemeanor offenses, such as use without authority, driving with a suspended license, and possession of an open container, it appears that he has a strong defense to the two felony charges: burglary and larceny over $250. To prove that the defendant is guilty of burglary under G. L. c. 266, § 15, the Commonwealth would have to prove beyond a reasonable doubt that (1) the defendant broke into the house; (2) entered the house; (3) someone lived in the house; (4) the entry was at night; (5) the defendant entered the house with the intended to commit a felony; (6) he was not armed; and (7) he did not assault any person lawfully in the house. To prove that the defendant is guilty of larceny over $250 under G. L. c. 266, § 30, the Commonwealth would have to prove beyond a reasonable doubt that: (1) the defendant took; (2) the property of another; (3) with the intent to permanently deprive that person of the property; and (4) that monetary value of the property was $250 or more.

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Published on: December 1, 2013

Framingham Woman Charged with Stabbing Boyfriend

By Daniel Cappetta

A Framingham woman was arraigned on November 18th on charges of assault and battery with a dangerous weapon. According to an article in the MetroWest Daily News, the woman stabbed her boyfriend in the hand. The article specifically alleges that the police were called to the woman’s apartment building and found her boyfriend outside. Her boyfriend’s hand was bleeding heavily and the police followed a trail of blood from him to the woman’s apartment. The police made contact with the woman, and observed blood on her when they arrived. The boyfriend told police that he was visiting the woman and that she became angry when she saw postings on his Facebook page from his ex-wife. The boyfriend reported that the woman went into the kitchen, retrieved a knife, and sliced his hand. The woman apparently denied any wrongdoing, telling police that her boyfriend came to the house with the injury and that she refused to let him in. At the arraignment, the woman’s attorney represented that she had sustained a large cut on her back. The woman’s attorney also argued that she was trying to protect herself, and that she had been acting in self-defense.

A person may lawfully use self-defense to defend herself from a physical attack. To establish a claim of self-defense, the woman would have to offer some evidence that she had a reasonable belief that her physical safety was in immediate danger – specifically she would have to show that she reasonably believed that she was being attacked, or was immediately about to be attacked. Once she offers this evidence, the Commonwealth must then prove one of the following beyond a reasonable doubt: that the woman (1) did not reasonably believe that she was being attacked or was immediately about to be attacked, and that her safety was in immediate danger; (2) did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or (3) used more force to defend herself than was reasonably necessary in the circumstances.

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Published on: November 25, 2013

SJC Rules that Law Reducing School Zone Radius is Retroactive

By Daniel Cappetta

On August 2, 2012, the Massachusetts legislature passed the 2012 crime bill. Part of this bill reduced the minimum mandatory sentences associated with various drug crimes. This included a reduction of the size of “school zone” violations, which carry enhanced penalties for drug crimes committed near a school. The bill specifically reduced the radius encompassed by a school zone from 1000′ to 300′ from the school. Despite the fact that the reduction is a positive change, a number of practical questions about how the new law should be applied remain. One unresolved issue is how to treat pending cases, i.e., cases in which defendants were charged prior to the passage of the law, but convicted after the law was enacted.

In August 2013, the Supreme Judicial Court issued a ruling in Commonwealth v. Galvin that squarely addressed whether the changes in the minimum mandatory sentences should apply to pending cases. This week, in Commonwealth v. Bradley, the SJC reached a similar conclusion in relation to defendants with pending school zone charges.

In Bradley, the police searched the defendant’s dormitory room and recovered marijuana. The search occurred in 2010. The defendant’s room was approximately 700 feet from an accredited preschool facility, which qualifies as a “school” for the purposes of the statute. Shortly thereafter, the defendant was charged with possession with intent to distribute marijuana, and committing a school zone violation – specifically, distributing or intending to distribute a controlled substance within 1000′ feet of a school. The case was still pending at the time that the 2012 crime bill was enacted. After the passage of the bill, the defendant moved to dismiss the school zone violation, arguing that changes in the law – specifically the reduction of the school zone radius from 1000′ to 300′ – applied to pending cases. The trial court judge reported the question to the Appeals Court and the Supreme Judicial Court granted a request for direct appellate review. The SJC then answered the question in the affirmative, holding that the reduction in the school zone radius applied to all cases alleging a school zone violation for which a guilty plea had not been accepted or a conviction entered as of August 2, 2012, regardless of whether the alleged violation occurred prior to the enactment of the law.

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Published on: November 21, 2013

SJC Limits Opinion Testimony in OUI Trials

By Daniel Cappetta

The Supreme Judicial Court recently issued an important decision about the admissibility of opinion evidence in operating under the influence (OUI) trials. In Commonwealth v. Canty, issued on November 6, 2013, the SJC held that a police officer is not permitted to offer opinion testimony as to whether a defendant’s ability to drive was impaired by alcohol.

The facts of the case are as follows:
On March 8, 2009, a Leicester police officer saw a motor vehicle driving erratically on Main Street in Leicester. The officer proceeded to follow the car and ultimately stopped it. The officer spoke to the driver, who was identified as Joseph Canty. During their interaction, the officer noticed that Canty had trouble retrieving his license, and that his eyes were bloodshot. The officer asked Canty whether he had had any alcoholic beverages that evening and Canty reported that he had. The officer then ordered Canty out of the vehicle and had him perform two field sobriety tests, both of which Canty failed. The officer then arrested Canty. After the arrest, the police found a half-empty bottle of brandy on the floor of the front passenger side of Canty’s vehicle.

Canty was charged with, among other things, operating a motor vehicle under the influence of alcohol, in violation of G. L. c. 90, § 24(1)(a)(1). To prove that Canty committed this crime, the Commonwealth had to show that Canty (1) operated a motor vehicle; (2) on a public way; and (3) was under the influence of intoxicating liquor while operating the vehicle. As to the third element, a person is “under the influence” of alcohol if he has consumed enough alcohol to reduce his mental clarity, self-control, and reflexes, and thereby impaired his ability to drive safely.

Prior to the commencement of the trial, Canty moved to exclude any testimony from police officers as to whether he was intoxicated, impaired, or otherwise under the influence of alcohol. Canty argued that whether he was in fact intoxicated, impaired, or otherwise under the influence was the ultimate issue for the jury to decide. The judge denied the motion, stating that a lay witness – in other words someone with no special expertise – can give an opinion as to an individual’s sobriety. During the course of the trial, the officer that stopped Canty testified that, based on his observations, Canty’s ability to drive was diminished, and that in his opinion, this diminished ability was the result of alcohol consumption.

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