Massachusetts Criminal Lawyer Blog

Published on: September 22, 2013

Worcester Man Accused of Having Sex with Under Age Girls

According to an article from MetroWest Daily News, a Worcester man was arrested for having sex with two underage girls – one sixteen and one fourteen – at a Motel 6 in Northborough. Following the arrest, the man was arraigned in the Westborough District Court on September 11, 2013 on charges of: rape, rape of a child under 16, indecent assault and battery on a person over 14, and contributing to the delinquency of a minor.

Prior to the arrest, the police reportedly received information that two girls were working at the motel as prostitutes and went to investigate. During the course of this investigation, the man was arrested. It is unclear whether the police believed that he was involved in the alleged prostitution scheme, was a john, or was involved in some other way. Most likely, the police concluded that the man was a john, as he was not charged with “deriving support from a prostitute,” which is the Massachusetts pimping statute. In court, the prosecutor claimed that the man had lured the girls to the motel with drugs and alcohol, then coerced them into sexual acts, and took pictures of them in various states of nudity. It is unclear whether these photographs were recovered. Further, although a condom was reportedly recovered from the motel room’s trash, it is likewise unclear whether any DNA was recovered from it.

In contrast to the prosecutor’s allegations, the man’s defense attorney emphatically denied the accuracy of the girls’ story, stating that the man was simply letting the girls stay in the room as a favor. The attorney also indicated that the girls represented to the man that they were in their twenties. While the attorney appeared to acknowledge that the man and the older girl did engage in some sort of sexual activity, he also clearly stated that such activity was consensual.

The girls’ allegations are concerning and may have serious consequences for the man. However, it seems as though there are potential weaknesses in the Commonwealth’s version of the events. Although the prosecutor steered clear of referring to the girls as prostitutes, they may well have been engaged in the exchange of sex for some sort of fee – monetary or otherwise – which is a crime under G. L. c. 272, § 8. Given the fact that the police had received information that some sort of prostitution was occurring at the motel, this seems to be the most likely explanation. In the event that this is the case, the Commonwealth may have trouble proving the charges against the man. In particular, the girls may have a 5th Amendment privilege against self-incrimination. Such a privilege means that if the girls’ testimony against the man would result in them incriminating themselves as well, they have a right to refuse to testify. If the case proceeds to Superior Court, the prosecution may choose to grant immunity to the girls in exchange for their testimony against the man – in other words, agree not to prosecute them for any criminal activity if they agree to testify against the man at trial. However, the man would then have a strong argument that the girls were biased or motivated to lie about what really happened so that they could get out from under any criminal charges.

Continue reading →

Published on: September 15, 2013

Sentence for Framinghman Murder Committed by 17 Year Old Under Scrutiny

By Daniel Cappetta

On June 20, 2009, a seventeen year old man shot and killed his friend in Callahan State Park, located in Framingham. According to the police, the defendant had accused the alleged victim of stealing his marijuana at a party the day before the murder. After the defendant made the accusation, the two got into a fistfight, and the defendant lost. The next day, the defendant reportedly told the alleged victim that they were going to smoke marijuana in the park. Once they got there, the defendant shot the alleged victim, who subsequently died. According to an article in the MetroWest Daily News, the severity of the sentence the court can impose in the case is currently in dispute.

Even though thirty-nine other states and the federal government use eighteen as the starting age for adult criminal jurisdiction, under current Massachusetts law, all seventeen year olds accused of a crime are treated as adults, regardless of the severity of the offense. Therefore, although the defendant was just seventeen at the time of the murder, because it occurred in Massachusetts, he was tried as an adult. On August 22, 2012, following a trial, he was convicted of first-degree murder.

Under G. L. c. 265, § 2, a first-degree murder conviction carries an automatic sentence of life in prison without parole. However, on June 25, 2012, after the defendant committed the murder but before he was convicted at trial, the United States Supreme Court issued a decision in Miller v. Alabama. This decision held that mandatory life sentences for defendants who committed crimes when they were under the age of eighteen are illegal because such sentences are a violation of the VIII Amendment, which prohibits cruel and unusual punishment. In light of the Miller decision, and the fact that the defendant was seventeen at the time of the murder, the trial court judge in the defendant’s case was not legally allowed to impose a mandatory sentence of life without parole after his conviction. Both the defense and the prosecution asked the court to hold a hearing to determine what sentence the court could and should impose in the case.

The prosecution sought to argue that the court had the authority to sentence the defendant to life in prison without the possibility of parole, and should do so. In other words, even though an automatic sentence of life without parole is illegal following the Miller decision, the prosecution sought to argue that the court still had the authority to sentence an individual convicted of first degree murder to life without parole, if the court determined that such a sentence was reasonable in the context of the case. The prosecution further sought to argue that if the judge declined to impose a sentence of life without parole, the court 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.

Continue reading →

Published on: September 11, 2013

SJC Rules that Law Reducing Mandatory Minimums for Drug Offenders is Retroactive

By Daniel Cappetta

In August 2012, the Massachusetts legislature passed the 2012 crime bill, which had both a positive and negative impact on the law. On the one hand, the bill amended sentencing for violent criminal offenses, creating the “three strikes” rule. This rule means that offenders that are convicted of certain violent offenses two or more times, and sentenced to 3 years or more in state prison on each of those convictions, now face life without parole if convicted a third time as a result of this bill. On the other hand, the bill reduced the minimum mandatory sentences associated with various drug crimes, and reduced the size of “school zone” violations, which carry enhanced penalties for drug crimes committed near a school, from 1000′ to 300′ from the school.

While the decreases in minimum mandatory sentences were undoubtedly a positive change, some uncertainty remains about the bill’s impact on the law. For example, anyone who was charged with a drug offense after the bill was passed will clearly benefit from the amendments to the law. But what about people charged prior to August 2012, but convicted after the passage of the law? And what about people serving sentences for drug offenses or school zone charges at the time the law was passed? There are many questions remaining in regard to people falling into these categories.

On August 23, 2013, the Supreme Judicial Court answered one of these questions in Commonwealth v. Galvin. In Galvin, the defendant was charged with selling cocaine to an undercover officer. The sale took place on June 3, 2011. The defendant was subsequently indicted for distribution of a class B substance, and for being a subsequent offender (i.e., having a previous conviction for distribution, or possession with intent to distribute). At the time the indictment was issued, the minimum mandatory sentence associated with the subsequent offender charge was 5 years. Therefore, if the defendant were convicted, the judge would have no choice but to sentence him to at least 5 years, and up to ten, in state prison.

The 2012 crime bill amended the law while the defendant’s case was pending, reducing the minimum mandatory sentence associated with his charge to 3.5 years. Specifically, on August 22, 2012, ten days after the bill was passed, the defendant went to trial on the charges and was convicted. The Commonwealth asked the court to impose the mandatory minimum sentence associated with the earlier version of the law – 5 years. The court declined to do so and imposed the minimum mandatory sentence associated with the amended version – 3.5 years. The Commonwealth claimed that the sentence was illegal and appealed.

Continue reading →

Published on: September 3, 2013

Woman Reports that Man Indecently Assaulted her in Sudbury Garage

By Daniel Cappetta

A Marlborough man was arrested Friday, August 30th, according to an article in the MetroWest Daily News. The man was reportedly arrested at approximately 4:30pm at his place of employment – Sudbury Automotive – after an 18 year old woman reported that the man pulled his pants down in front of her while she was at the garage. The woman also claimed that the man showed her his underwear and then reached into her skirt and groped her through her underwear. As a result of these allegations, the man was charged with one count of indecent assault and battery.

The man does not appear to have made statements to the police regarding the allegations, and it is unclear what his side of the story is. At his arraignment on September 3rd, however, he pled not guilty and was released on $1500 bail. He is due back in court on October 17th for a pre-trial conference.

To convict the man of indecent assault and battery, the Commonwealth would have to prove three things beyond a reasonable doubt. First, the Commonwealth would have to prove that the man touched the woman without any justification or excuse – in other words, that there was no legitimate reason for the man to have touched the woman. Second, the Commonwealth would have to prove that the man intentionally touched her and that it was not an accident or inadvertent. Third, the Commonwealth would have to prove that the touching was “indecent.” This means that the Commonwealth would have to prove that the man touched the woman in a place that is “commonly understood” to be private, such as a person’s genital area, buttocks, or a woman’s breast(s). G.L. c. 265, § 13H.

The defendant may claim that the alleged incident didn’t happen at all. Whether there is any additional evidence beyond the woman’s allegations remains to be seen. Physical evidence, such as the man’s DNA on the woman’s skirt or underwear, could support her claim. Likewise, whether anyone else witnessed the alleged incident, and whether there were other people in the vicinity at the time the incident allegedly occurred will also likely be a factor in the strength of the Commonwealth’s case. Without physical evidence, other eyewitnesses, or video surveillance, the woman’s allegations might be the only evidence against the man. Whether the prosecution could prove its case could then come down to whether the woman seems credible, or whether she might have had some reason to make up the allegations.

Continue reading →

Published on: September 1, 2013

Framingham Man Charged with Armed Robbery and Assault and Battery

By Daniel Cappetta

Sara Mulkeen wrote a recent article in the MetroWest Daily News regarding an alleged armed robbery in the area. A 44 year old Framingham man was arrested on the night of Saturday, August 3rd, after he allegedly held a knife to a man’s throat and stole $200 from him. The alleged victim told police that he was walking at approximately 8:00 p.m. on Saturday evening when he noticed a man following closely behind him on a bicycle. He reportedly recognized the man as his daughter’s boyfriend. He alleges that the defendant then stopped, grabbed him by his shirt, and held a knife to his neck while demanding money. He reportedly told the alleged victim that he wanted all of his money or he would kill him. The alleged victim then gave him $200 from his pocket, at which point the defendant allegedly fled on a red bicycle. Police reportedly showed the alleged victim a photo array of possible suspects, and the alleged victim reportedly identified the defendant as his attacker.

The defendant was later arrested at his home and charged with armed robbery and assault and battery with a dangerous weapon. When police arrested the defendant, he reportedly told officers that the alleged victim made the whole story up because he does not want the defendant dating his daughter. The defendant was scheduled to be arraigned Monday, August 5th in Framingham District Court.

Either the defendant or the alleged victim is telling the police a false statement. Either way, the situation is less than ideal for the man who is being dishonest. The defendant is facing felony charges that could result in prison time. In order to prevail on the armed robbery charge against the defendant, prosecutors will have to prove that the defendant was armed with a dangerous weapon, which is any weapon that can cause serious injury. The prosecution must also prove that the defendant put the victim in fear or caused harm to them by force. Third, they must prove that the defendant took the alleged victim’s property with the intent to deprive him of it permanently. Finally, the prosecution must prove that the defendant actually took control of the alleged victim’s property. To prove with assault and battery with a dangerous weapon charge, the prosecution must prove that the defendant touched the alleged victim without having any right or excuse to do so, that the defendant intended to touch the alleged victim, and that the touching was done with a dangerous weapon.

Clearly, the defendant is facing serious legal trouble due to the accusations against him. However, if the alleged victim filed a false police report, he could face serious penalties. Ultimately, the evidence and the credibility of any statements to the police will likely determine what the police and prosecutors do in this case. Additionally, courts exist to sort out situations like this one where the truth is not readily apparent.

Continue reading →

Published on: August 28, 2013

Two Men Facing Charges in Ashland Breakins

By Daniel Cappetta

Norman Miller of the MetroWest Daily News wrote an article recently regarding a string of burglaries in the Metro West area. A 24 year old Ashland man and a 26 year old Marlborough man are facing charges in connection to multiple alleged burglaries in Ashland, as well as homes in other towns. The defendants are alleged to have burglarized several homes in Ashland. One home in Ashland reportedly had $30,000 worth of jewelry stolen from it.

Ashland Police reportedly began their investigation of these break-ins after Wrentham Police contacted them about a burglary allegedly involving one of the defendants. Police reportedly executed a search of that defendant’s home on Tuesday, July 30th.

Ashland Police have reportedly connected the two defendants to break-ins in Southborough, Shrewsbury, and Wrentham. The burglaries allegedly happened during the day. The defendants allegedly knocked on the front door; then, if no one answered, they would break in trough a back door.

All of the towns that have had break ins are reportedly still investigating the incidents and are also reportedly visiting pawn shops in the area to attempt to locate some of the stolen goods.

Police have issued the two defendants summonses to appear at Framingham District Court. They will likely be charged with breaking and entering with intent to commit a felony. In Massachusetts, breaking and entering is charged as either “with intent to commit a felony” or “with intent to commit a misdemeanor.” Because the value of the goods that were allegedly stolen was so large, it will likely be charged as “with intent to commit a felony.” Additionally, the men will likely face felony larceny charges.

The defendants are facing serious, felony charges that could result in prison time. It is not clear at this time what evidence the police have against the defendants though. An experienced and skill Massachusetts criminal defense attorney may be able to advocate on behalf of one or both of the men and achieve a favorable outcome for them. However, it is not certain at this time how much evidence and from what towns may come to light against them.

To prevail on the charge of breaking and entering with intent to commit a felony, the prosecutors will have to prove that the men broke into a building, that they then entered the building, and that they did so with the intent to commit a felony. The crime is punishable by up to ten years in prison. The sentence can be longer if a weapon was used during the commission of this crime or if the person broke into the building at night.

Continue reading →

Published on: August 20, 2013

Framingham Woman and Teens Facing Larceny Charges

By Daniel Cappetta

According to a recent article by Norman Miller at the MetroWest Daily News, a 32 year old Framingham woman is facing charges after allegedly taking three teenagers, including two of her children, shoplifting with her at the Natick Mall on Friday, July 26th. The defendant also reportedly had a 3-year old and 1-year old child with her in a stroller.

The defendant was arrested Friday at approximately 6:00 p.m. after store security at J.C. Penney allegedly caught her leaving the store with more than $740 worth of goods that she allegedly stole with the three teens.

Store security had reportedly been watching the defendant and the teenagers because they allegedly recognized them from a past shoplifting incident. The defendant and two teenage girls allegedly took several pieces of clothing into a dressing room and then emerged empty-handed two different times. Security personnel reportedly found price tags and empty clothes hangers in the dressing room. The teenage boy allegedly took several pairs of earrings and put them in his pocket.

After the woman and girls left the dressing room the second time, the group reportedly left, but security stopped them. The goods were allegedly found in the stroller that the group was using for the children.

The defendant is charged with three counts of contributing to the delinquency of a child, larceny of property worth more than $250, and conspiracy to commit a crime. She was arraigned at Framingham District Court on Tuesday, July 30th. She was released without bail and is due in court on September 17th for a pretrial conference. The three teenagers will be summoned to Framingham Juvenile Court and charged with larceny of property worth more than $250 and conspiracy to commit a crime.

The defendant is facing serious charges, including a felony charge. If she were indicted and tried in the superior court she could be facing up to 5 years in prison and significant fines. If convicted, these charges will have lasting repercussions and affect her life for a long time to come. In order to prevail on the misdemeanor charge of contributing to the delinquency of a child, prosecutors will have to prove that she knowingly or wilfully encouraged, aided, or contributed to a child under the age of 16 to violate a law. To prevail on the larceny charge, prosecutors will have to prove that the defendant took and carried away property that was owned by someone else and that she did so with the intent to deprive that person of the property permanently.

The teenagers are also facing serious charges, including a felony. Being convicted of a felony at such a young age can affect a person’s life well into the future and impact his or her ability to fulfill aspirations of college and career success.

Continue reading →

Published on: August 13, 2013

Marlborough Man Facing Charges after Fight

By Daniel Cappetta

According to an article in the MetroWest Daily News, a 45 year old man from Marlborough was arrested on Sunday, July 28th after he allegedly pushed a police officer who was responding to an unruly crowd. Police were reportedly called to 130 Bolton Street at 10 p.m. on Sunday for a fight in the street. One officer was reportedly trying to control a crowd of approximately 15-20 people who appeared to be intoxicated and had begun to surround two police officers. The officer reportedly tried to move the crowd away from the officers and pushed some of them out of the way when the people continued to get closer to the officers. The officer was then allegedly pushed from behind by the defendant. While officers were arresting the defendant, the crowd reportedly continued to yell, as well as to push and grab officers. The situation was reportedly chaotic and out of control.

The defendant was charged with assault and battery on a police officer, resisting arrest and disorderly conduct. The court set the defendant’s bail at $500 during an arraignment Monday July 29th at Marlborough District Court.

When an assault and battery is listed as being against a police officer or public employee, the allegedvictim’s employment status is treated as an aggravating circumstance. In order to prove that the defendant committed an assault and battery on a police officer, prosecutors will have to prove that he did the following six things:
1. That he touched the alleged victim without having any right to do so.
2. That he intended to touch him.
3. That the touching was done without the officer’s consent.
4. That the alleged victim was a police officer or public employee.
5. That the defendant knew that the alleged victim was a police officer.
6. That the alleged victim was engaged in the performance of his duty at the time of the alleged incident.

From the description given in the article, it seems as though the situation was quite chaotic and confusing. It is hard to know how an officer could be certain about who was being unruly in the crowd and other factors. The defendant may have a viable defense against his charges. Prosecutors will have to prove that the defendant was the person in the chaotic crowd who pushed the officer, which may be difficult if the situation was truly as chaotic and confusing as has been reported.

If the defendant is convicted of assault and battery on a police officer, he could be facing penalties including jail time.

Continue reading →

Published on: August 12, 2013

Commonwealth v. Feeney – The Latest In Legally Sanctioned Police Lies

By Daniel Cappetta

New decision from the MA Appellate Court today in Commonwealth v. Kevin Feeney is utterly depressing. The facts involve a crash where a gun is found, but nobody is present in the vehicle when police arrive. The defendant was found about a block away from the car with a fresh cut to his forehead and generally looking like a guy who was just in a car crash. However despite his condition he denied being in the crash. Now you might think to yourself, “hey the police already had a pretty good case here tying Mr. Feeney to the crash.” After all Feeney was only a block away minutes after the crash, wearing only a t-shirt and jeans at 1:30 in the morning in January, with fresh injuries to his forehead, and smelling of a mixture of alcohol and deployed airbag. Of course by thinking this I can assure you that you are not Massachusetts State Police material.

This apparently was not a strong enough case for the Massachusetts State Police. In addition to these observations they felt the need to go the extra mile. So after Mr. Feeney was arrested and booked a ruse was devised to get him to tie himself to the scene of the crime.

For those who don’t know a “ruse” is the polite legal word police, prosecutors, and sometimes judges use to soften the fact that the police told a citizen a big fat lie. Saying the police “used a ruse” sounds a lot better than saying “the police told a big fat lie” In this case the big fat lie was telling Mr. Feeney that he was required to fill out a hand written inventory as part of the booking process related to certain property. It just so happened the property the police were referring to were items that were found inside the crashed car. Of course there was absolutely no such policy requiring this kind of hand written inventory, and even if there had been these items were not on Mr. Feeney at the time of his arrest, and therefore should not have been part of any booking inventory, let alone a fake one. Mr. Feeney complyied with what he believed was a required booking procedure and identified some of the property from the car as his own.

Continue reading →

Published on: July 29, 2013

Two from Marlborough Arrested after Fight

By Daniel Cappetta

According to an article in the MetroWest Daily News, a 21 year old man and a teenager from Marlborough were arrested on Wednesday, July 10th after a man told police he was attacked by a group of people at an apartment complex following a disagreement. The two defendants were arrested at the Royal Crest Apartment complex. The teenager is facing assault and battery with a dangerous weapon, and the 21 year old is facing a charge of disorderly conduct.

Officers were reportedly called to the complex for a report of a fight. The alleged victim told police he had been drinking with several friends in an apartment at the complex when he began looking for his car keys and then accused others of stealing them. Reportedly, the keys were in his pocket the whole time.

The argument allegedly escalated to pushing shoving and punching and spilled out of the apartment, police said. The alleged victim reportedly told police that he was pinned to the ground and was being beaten by several individuals. He reportedly told police he was then struck on the left side of his face with a Corona bottle. Police reportedly found a Corona bottle in the grass nearby, and the alleged victim’s face was reportedly swollen and cut up. The man then allegedly identified the teenager as the one who hit him with the Corona bottle.

To prove the disorderly conduct charge that the 21 year old is facing, prosecutors will need to prove that he created a dangerous situation for no legitimate reason. To prove the assault and battery with a dangerous weapon charge, prosecutors will need to prove that the teenager touched the alleged victim–meaning that he committed an unwanted touching–and that he did so with a dangerous weapon. What qualifies as a dangerous weapon in Massachusetts can be complicated, however a beer bottle when used to hit someone in the face, will almost certainly qualify as a dangerous weapon.

A possible defense for the teenager in this case may be self-defense. From the facts presented in the article, it sounds as though the alleged victim may have instigated the fight. However, a person has a duty to retreat before using force to defend themselves. This is notably different than so called “stand your ground” states like Florida that received extensive media coverage lately. A defendant in Massachusetts may not argue that he was scared and merely stood his ground and fought rather than retreated, unless the altercation occurred inside the defendant’s home which there may be an argument for in this case. The article doesn’t offer enough information here to determine if the defendants may have retreated before using force.

The details of the disorderly conduct charge were not presented in this article so it is unclear what evidence the police may have against him that led to that charge.

Continue reading →