Massachusetts Criminal Lawyer Blog

Published on: May 24, 2012

Ashland Teens Face Potential State Prison Sentences

ski mask.jpg I read a disturbing article in the MetroWest Daily News recently. According to the article, which was written by Norman Miller, two young people from Ashland were arraigned on Monday in Framingham District Court and charged with assault and battery with a dangerous weapon, larceny over $250, threatening to commit a crime and conspiracy. In addition, one of the young men was charged with home invasion, armed robbery and possession of a counterfeit note. His co-defendant was also individually charged with accessory to armed robbery, and several drug charges. Both of the defendants are apparently 17 years old.

This article caught my eye because the facts, and subsequent charges, are very serious and both of the defendants are so young. According to the article, the defendants entered a home in Ashland on Friday, May 18, wearing masks and armed with fake guns. Upon entering the home, the defendants encountered a 16 year old who lived there and pointed their fake guns at him. They then demanded cash and marijuana from the 16 year old victim, who turned over $90 in cash and his cell phone. The victim apparently recognized one of the defendants, which helped police track them down.

These young men face some extremely serious charges, including home invasion and armed robbery. Armed robbery while masked, which would seem to apply here, has a minimum penalty of 5 years, see G.L. 265 § 17. In order to establish that these defendants are guilty of armed robbery, the prosecution must show that the defendant was armed with a dangerous weapon, that the defendant made a threat to the victim or hurt the victim and that the defendant stole an item from the victim’s control. In the present case, one of the issues will be whether the weapon allegedly used qualifies as a “dangerous weapon” under Massachusetts law.

Home invasion is governed by G.L. 265 § 18C and carries a minimum penalty of 20 years in state prison. The elements of home invasion are, essentially, that the prosecution must prove that the defendant entered someone’s home, knowing that someone was inside the home, armed with a dangerous weapon and that the defendant used force (or threatened to use force) against someone inside the home. Again, a conviction in this particular case will depend, among other factors, on whether the weapon allegedly used is a “dangerous weapon” under the law.

It is not clear that a fake gun is itself a dangerous weapon. Massachusetts law provides that if an object is not inherently dangerous, it still may count as a dangerous weapon if it is used as a weapon or in a potentially dangerous manner. (The classic example is a foot with a shoe on it, not typically considered a dangerous weapon, however it can be considered so if it is used to kick someone.) If the fake gun used in the incident was a pellet gun or a bb gun, then it seems there is a better argument that it was an inherently dangerous weapon. In a case like this, where the defendants are so young, it would seem unlikely that they would be sent to state prison. However, they face very serious charges from an incident that was probably very alarming to the victim. In my experience as an assault and battery defense attorney, I know that the prosecutors will take this case very seriously.

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Published on: May 9, 2012

Minor Accident for Ashland Man Leads to Framingham DUI Arrest, High Breathalyzer Test

By Daniel Cappetta

There was an interesting story posted early this morning at the MetroWest Daily News site. According to the article, a man from Ashland got into a minor accident in Framingham. When the police arrived, the man was sitting in his car. He told police he was trying to get to a bar in Ashland. It is not clear from the article what happened before he was arrested, but it appears that after his arrest, the man was not able to stand up without assistance. The man also allegedly told police that he had been drinking at his home and had consumed eight vodka drinks. (Again it is not clear from the article whether this statement was made before or after his arrest.)

After he was arrested, the man took a breathalyzer test and allegedly blew a 0.41, which the article described as being five times greater than the “legal limit” of .08. This article caught my eye because, in my experience both as a prosecutor and as a DUI defense lawyer, this is a very high breath test reading.

In Massachusetts, the common DUI (or OUI as it is called here) can be proven one of two ways. The prosecution can try to prove that a driver was “operating under the influence of intoxicating liquor.” In cases where there is no breath test, this is the only way for the prosecution to proceed. They must prove that the defendant was “under the influence”, which is at best a nebulous standard. In contrast, in cases where there is a breath test, the prosecution need only prove that the blood alcohol content of the accused was equal to .08 or above. (It is common to refer to .08 as the “legal limit” when in reality, the Massachusetts drunk-driving statutes prohibit driving with a blood alcohol level of .08.) So in a case with a breath test, the prosecution does not have to prove that the driver reeked of alcohol, or was swerving all over the road, they only need to prove that number to the jury to gain a conviction.

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Published on: May 2, 2012

Marlborough Man Could Face Motor Vehicle Homocide Charges in Framingham Crash

By Daniel Cappetta

Today I read a sad article in the Metrowest Daily News by Norm Miller. The story focuses on the tragic death of a man who was killed in a car accident this past weekend in front of his residence. According to a previous article the man was checking his mail in front of his Edmunds Road home at a about 4 p.m. when he was struck by a Mercedes. The crash caused fatal injuries to the man and he passed away over the weekend. The driver of the Mercedes has been identified as a resident of Marlborough. The driver had a valid license at the time of the crash according to the Middlesex District Attorney’s Office.

To this point no charges have been filed in the accident, which is not unusual. In most motor vehicle fatalities charges are not usually filed immediately following the accident unless there are unusual or extenuating circumstances. Rather, the District Attorney’s Office and the State Police prefer to wait to file charges until they have had the opportunity to complete a reconstruction of the crash. Once the reconstruction is complete they make a determination about whether or not the driver was negligent and caused the accident, or if the accident was unavoidable for the surviving driver.

The reconstruction is usually done by a member of the State Police Collision Analysis and Reconstruction Section. (or C.A.R.S. Unit) The State Police intend for this to be a thorough analysis of the crash scene and any available witness information in an attempt to ascertain exactly what happened to cause the collision. The State Police will often obtain a warrant to download any on board computer information from the suspect vehicle in an attempt to figure out what happened during the accident.

The State Police and the assigned Assistant District Attorney then work together to determine if charges should be filed, and if so what charges are appropriate. If it is determined a driver was negligent in causing a fatal accident the most common charge for prosecutors to pursue is Motor Vehicle Homocide. Although Motor Vehicle Homocide is technically a misdemeanor it is still among the most serious charges a person can face in a Massachusetts District Court. The maximum penalty for Motor Vehicle Homocide is two years in the house of corrections, and any conviction requires the Registry of Motor Vehicles to suspend the defendant’s license for 15 years.

Whether or not the driver will face criminal charges in this accident will depend on the results of the investigation now being conducted by the District Attorney’s Office and Police.

If prosecutors conclude the conduct of the driver was worse than mere negligence they can pursue a significantly more serious charge of Involuntary Manslaughter. Involuntary Manslaughter is rarely charged in cases arising out of motor vehicle collisions, but it does happen. For a detailed discussion of the relationship between Involuntary Manslaughter and Motor Vehicle Homicide read Commonwealth v. Jones, a decision by the Supreme Judicial Court

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Published on: April 23, 2012

Hit and Run Leads to Ashland DUI Arrest

By Daniel Cappetta

There was an interesting story in the MetroWest Daily News on Friday, written by Norman Miller. Apparently, an Ashland woman drove her car into a parked car, then left the scene, but later came back. According to the article, a resident on Old Worcester Road heard a noise at approximately 1:20 in the morning. The resident looked outside and saw a woman looking at a parked car. By the time the resident went outside to investigate, the woman had left the area. The resident then returned inside and called the police, and then noticed that the woman had returned. According to the article, the woman appeared to be examining the car again. The article indicates that she then drove away.

When they arrived on the scene, the police discovered a Toyota Corolla with serious damage. It appears that police were able to locate and speak with the woman, who told them that she did not know how the damage occurred to the Corolla. The article indicated that the woman appeared to be intoxicated, but refused to take any field sobriety tests. According to the article, the woman was charged with driving to endanger, leaving the scene of property damage and operating under the influence – second offense.

This article caught my eye because it contains some interesting facts. First off, the woman was charged with leaving the scene of property damage. In my experience as a criminal defense attorney, and in my time as a prosecutor in Middlesex County, I have seen this charge many times. Most of us have had the unpleasant experience of a minor fender-bender, and maybe a few us have dinged a parked car and thought “well it’s not a big deal, I’ll just drive away.” But it is a big deal, as the woman has already discovered, because it can lead to a criminal charge.

In order to prove a charge of leaving the scene of property damage, the prosecution must generally prove that the defendant drove a car on a public way, hit some property, eg.g another car, that the defendant knew she hit the property, and that after hitting it, the defendant left the scene. Judging from the facts as sketched out in the article, it is not clear how the prosecution will prove that the woman caused the accident, unless the resident actually saw her striking the parked car.

There is an additional problem with the more serious charge the woman faces: operating under the influence of intoxicating liquor (called an OUI in Massachusetts, but commonly referred to as a DUI). As a former prosecutor and a current DUI defense attorney, I have extensive experience trying these types of cases from both sides. To prove its case, the government must prove that the defendant drove the car, on a public way, and did so under the influence of intoxicating liquor.

In a case like this one, it may be hard for the government to prove that the woman was under the influence of alcohol. According to the article, the woman denied drinking and refused to take any field sobriety tests. The article does not mention a breathalyzer test either, suggesting that the woman did not take one. In such a trial, the only evidence of whether the woman was intoxicated may be the observations of the police officers who spoke with her, and in my experience, the absence of more concrete evidence such as field sobriety tests or a breathalyzer test, makes it hard for the government to reach a conviction.

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Published on: March 31, 2012

Massachusetts Juvenile Charges Are Handled Differently After Trial From Adult Charges

By Daniel Cappetta

angry teen.jpg Massachusetts Juvenile Courts were originally established with a mission entirely different from that of the adult District Courts. Juvenile Court is given a mandate to treat juveniles accused of crimes as children in need of age, guidance, and encouragement rather than criminals. To that end, when a child is put on trial for a crime in Massachusetts the jury is not instructed to find the juvenile guilty or not guilty. Instead, they are told if they believe the juvenile is responsible for the accusation they are to find him “delinquent”, rather than guilty.

For years there has been an ongoing debate about what options a judge has in sentencing a juvenile if he or she is found delinquent at trial. Some judges believed that after a trial a judge must enter a delinquent finding on the child’s record, and proceed to sentencing the child. This is in line with what occurs in adult court. In adult court defendants can ask the court to continue a criminal case without any finding against them and go on probation. If the defendant successfully completes probation the charge is dismissed. A defendant can only request this disposition before the trial of their case. After a trial in the adult District Courts if a defendant is found guilty a judge must enter that guilty finding on the record and proceed to sentencing. A judge does not have the authority to continue the case without a finding after trial.

Some Juvenile Court judges have always argued that because of the statutory language related to Juvenile Court they have the authority to continue a case without a finding in Juvenile Court even if the juvenile is found delinquent at trial. This debate was finally settled recently by the Supreme Judicial Court in the decision of Commonwealth v. Magnus M., a juvenile.

In the decision the SJC considered the case of a young man that was found delinquent by a jury for breaking and entering into a motor vehicle in the nighttime. After the jury rendered its verdict, the judge declined to find the juvenile delinquent, and instead continued the case without a finding (“CWOF”). The District Attorney’s Office objected and filed an appeal with a higher court in an attempt to get the CWOF overtuned and a delinquent finding entered.

After considering the the case the SJC came down on the side of the juvenile and the judge that granted the CWOF. In their decision the SJC relied on language in Massachusetts law that distinguishes the mission of the Juvenile Court from that in the adult court system. This is a favorable decision for juveniles facing delinquency charges, and reduces some of the risk associated with taking a case to trial in Juvenile Court.

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Published on: March 23, 2012

73 Year Old Wayland Man To Be Charged With Assault and Battery with a Dangerous Weapon

By Daniel Cappetta

An interesting incident in Wayland recently caught my attention in the Metrowest Daily News.

According to the article, a Wayland man is going to face criminal charges in Framingham District Court for assault and battery with a dangerous weapon. The circumstances leading up to those charges as described by the article are peculiar. Allegedly a group of town residents went to a pond located behind the man’s home to look at some wildlife with flashlights. According to those residents while they were at the pond the man fired a pellet gun in their direction. One of the individuals who was among the residents visiting the pond indicated that she could hear a pellet strike a tree close to her.

Police eventually confronted the man about the accusation, and as a result have seized the pellet gun they believe was involved. Police publicly stated they are seeking assault and battery with a dangerous weapon charges against the man. Those charges will be heard in the Framingham District Court.

I found this case so interesting because the police are quoted in the article as saying that the man has never had any trouble with the law in the past. It is extremely unusual to see a gentleman of the man’ss age be charged with a crime for the first time at age 73.

Unfortunately for the man, the first charge he ever faces is a serious one. Assault and battery with a dangerous weapon is a felony under Massachusetts law. The charge can be indicted and tried in Superior Court where the maximum penalty is 10 years in state prison. Because the charges against the man are the first he has ever faced, it is extremely unlikely prosecutors would seek jail time in his case.

If the reports concerning the man’s lack of prior trouble with the law are accurate he may even be able to get the case disposed of relatively quickly in a manner that will protect his criminal record from any convictions, and assure he will not be threatened with any severe punishments. Whether or not he can obtain such a disposition will be determined in large part on how prosecutors handle the matter, and the path his attorney chooses to defend him.

Currently, the man isn’t helping his case by speaking with the reporter that contacted him for this story. Whenever someone is charged with a crime I always recommend to clients that they do not discuss the case with the police, or with the media. Neither the police nor the media are looking out for the best interests of those they interview in cases like this. The police are looking to build a case to file charges or close their investigation. The media is just looking for a good quote to make a better story. People generally don’t realize that anything they say to the media can be used against them as evidence in their case.

This man, and anyone else charged with a crime or under investigation, is better served by declining to make any comment on their case to both the police and the media, and let an experienced criminal defense lawyer coordinate their response to the charges.

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Published on: March 18, 2012

Raynam Man To Face Felony Charges For Alleged Hoax Bomb In His Possession

By Daniel Cappetta

pipe bomb.jpg The Brockton Enterprise reports on an arrest of a man yesterday in Raynham, Massachusetts. The man was arrested for allegedly having a hoax bomb device in his possession.

Apparently the trouble for the man all started when police thought he was a “suspicious person” because he was sitting in parked motor vehicle outside of a condominium complex at 3:30am. Police claim that when they approached the man’s car they could see items commonly used in the manufacturing of pipe bombs in plain view. The article is unclear as to what happened next, but according police, some “further investigation” was conducted and the man was arrested for possession of a hoax device as well as disorderly conduct and disturbing the peace.

Although the article is short on details, this case certainly looks like there are host of potential defenses for the man. First and foremost a challenge may be in order to the search police conducted of the man’s car. The article states the police considered the man a “suspicious person”, but offers no details as to why police thought he was suspicious. In order for the police search of the man’s car to be upheld by the court, prosecutors will need to show more than the fact that he was sitting in a car in a parking lot at 3:30am.

The police claim that the man had items commonly used in the manufacturing of pipe bombs in plain view when they approached him. More information is needed to determine if those observations will stand up under court scrutiny. Pipe bombs are by nature improvised explosive devices. They are constructed using piping that would be available to any contracter, or even any homeowner who is engaged in do it yourself home improvement. If the “items commonly used in the manufacturing of pipe bombs” turns out to be nothing more than ordinary household or commercial piping the search of the man’s vehicle may be declared unconstitutional, and any evidence resulting from the search could be thrown out.

Even if prosecutors are able to prevent suppression of the evidence they may have additional problems in proving a case against the man. The “hoax device” law that is being used to charge the man is Massachusetts General Laws chapter 266 section 102. The statute makes it clear that possession of a hoax device is a serious offense. The charge is a felony, and if convicted, a defendant can be sentenced to a maximum of 5 years in state prison.

The statute also makes it clear that in order to convict a defendant under this section the prosecutor must prove not only that a person possessed a hoax device, but that he or she possessed it with the intent the device will “be used to cause anxiety, unrest, fear or personal discomfort to any person or group of persons”. In order for prosecutors to prove that the man is guilty they will need to show that he intended to use the item in his possession to scare others or cause alarm to a specific person. Since the article indicates the items found were inside the man’s car, and he did not appear to be attempting to use them in any fashion, unless there is additional evidence not published in the article, it will be difficult for prosecutors to show he intended to do anything with the items police believed were a hoax device.

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Published on: March 17, 2012

Framingham Man Will Face Receiving Stolen Property Charges, But May Have Defenses

By Daniel Cappetta

In the Metrowest Daily News I read an interesting story by Norman Miller regarding a Framingham man. According to the article, the man brought an Apple Macbook laptop to P.C. Exchange in Framingham, and asked them to repair it for him because it wasn’t working. When the store employees attempted to power on the computer it prompted them for a password. Allegedly, The employee asked the man for the password, and he claimed he didn’t have it with him. The man then stated he wold come back with the password and left.

The employee became suspicious that the computer may be stolen. The employee was able to get into the computer without being provided the password and identified a name of the likely owner of the computer. He contacted that likely owner who then came into the store and identified the laptop as one that had been stolen from his Framingham home in an October break in.

The police were contacted, and when the man returned to the store later in the evening, he was arrested by the police. The police indicate that the man spoke with them after being arrested, and claimed two people he knew asked him to bring the computer into the store. Police also indicated that the man stated he brought the computer in because he knew the two men were getting marijuana, and he wanted to smoke with them.

The man was charged with receiving stolen property over $250 which is a felony under Massachusetts law. The case can be indicted and tried in the Superior Court where the maximum penalty is up to 5 years in state prison. If prosecutors do not indict the man then his case will remain in the Framingham District Court where the maximum penalty he can face is 2 1/2 years in the house of corrections.

In order to prove that the man is guilty of receiving stolen property prosecutors must be able to prove that the man knew the laptop was stolen when he took possession of it. Although the full details of the man’s interview with police are not given in the news report, it does not appear he admitted the laptop was stolen. In many instances if there is no admission that the property in question was known to be stolen it can be difficult for prosecutors to prove all the necessary elements of this crime. Prosecutors must show that the man actually knew, or at least believed the property was stolen. Unlike many other situations prosecutors face, it is not enough to show that a reasonable person should have known it was stolen, or that the man recklessly disregarded the risk the property was stolen, instead they must prove his actual knowledge beyond a reasonable doubt. For more details on the legal analysis involved in determining someone’s actual knowledge read Commonwealth v. Boris.

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Published on: March 15, 2012

Medford Man Facing Third Massachusetts DUI Could Serve Time In Jail

By Daniel Cappetta

Via The Daily Item of Lynn, MA I read about a Medford resident who is currently facing serious charges for third offense DUI (in Massachusetts DUI or driving under the influence cases are typically referred to as OUI or operating under the influence) in Peabody District Court.

Operating under the influence third offense is so serious because it is a charge that carries a mandatory minimum jail sentence if the defendant is convicted. Typically, first offense dui cases end in probation, even if there is a conviction after trial. Second offense dui charges are significantly more serious, and the statute for second offense dui does have mandatory jail time in its language. However, most second offenders are eligible for an alternative disposition whereby they avoid jail time in exchange for inpatient alcohol addiction treatment. On a third offense dui charge in Massachusetts there is no possibility to avoid jail time if prosecutors obtain a conviction.

The minimum sentence for a third offense dui is 180 days in the house of corrections. 150 of those 180 days is considered a mandatory minimum, meaning every day of the first 150 days of the sentence must be served in jail. There is no possibility of parole until 150 days of the sentence has been served. The judge hearing the case cannot continue the matter without a finding, and has no discretion to give a suspended sentence. Rather, the law takes the power to spare a defendant jail time out of the judge’s hands, and requires the sentence be imposed.

In the Medford man’s case it is not at all clear from the article whether the Commonwealth’s case against him is strong or not. Because of the allegation that the man caused an accident with a state trooper in Lynnfield, it might appear at first glance the case against him is strong. However, in many cases where an accident is alleged, defendants are able to obtain not guilty verdicts if they have an experienced dui defense attorney on their side. After an accident if the police do not follow proper procedure, a jury may be convinced the field sobriety tests were given in an unfair manner.

If the case against the man does end up appearing strong, he may still have an opportunity to avoid the mandatory minimum jail sentence. If his prior convictions are older, and not well documented by the courts they occurred in, his attorney may be able to convince a judge or jury that this is not his third offense, and spare him the mandatory sentence.

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Published on: March 12, 2012

Marlborough Man Facing Open and Gross Charges In Northborough Arrest Will Be Arraigned Tomorrow

By Daniel Cappetta

According to the Worcester Telegram, today Northborough Police arrested a Marlborough man. The man is charged with Open and Gross Lewdness and will be arraigned tomorrow morning. Because the man was arrested in the town of Northborough he will be arraigned on these charges in the Westborough District Court.

The police allege that Sergeant Brian Griffin was working at the time of the incident and was walking on a trail on Talbot Road in Northborough. As Sergeant Griffin was walking he allegedly saw the man expose himself.

Open and gross lewdness is a sex crime that is a serious charge, and not to be taken lightly. Although open and gross lewdness does not involve any accusation of violence, or intent to harm another physically, it is still a felony charge under Massachusetts law. It carries a maximum penalty of 3 years in state prison if the case is indicted and prosecuted in the Superior Court. If a person is convicted of open and gross lewdness twice he or she will be required to register as a sex offender.

In order for the Commonwealth to prove a defendant is guilty of open and gross lewdness they must prove five distinct elements of the offense. First, it must be shown that the defendant exposed his genitals to one or more people. Second, the exposure must be done intentionally, and cannot be an accident. Third, it must be shown the exposure was done openly, meaning the defendant intended public exposure, or he recklessly disregarded the substantial risk that members of the public would see him. Fourth, that the manner of the exposure was such that it would produce alarm or shock. Fifth, that one or more people were actually alarmed or shocked by the exposure of the genitals.

The fifth element, requiring people actually be shocked or alarmed by the exposure can be a hurdle for prosecutors in certain cases. For example, in the case of Commonwealth v. Kessler the Commonwealth was unable to prove this critical fifth element. During trial in the Kessler case a 13 year old boy and a 10 year old boy testified that they both observed a man masturbating through his unobstructed window. Both boys testified they giggled when they saw the man was masturbating, and that they giggled because they were nervous. One of the boys even testified that he was “offended” by what he saw.

In that case the Supreme Judicial Court (the highest court in Massachusetts) ruled that based on the boys testimony there was not enough evidence for Kessler to be convicted. In deciding the case the Court reviewed a series of past decisions on open and gross lewdness. The Court pointed out that in all the prior cases there were strong statements from the witnesses observing the exposure describing their shock and alarm. The court ruled that the boys statements they were nervous, or even offended was not strong enough for a reasonable juror to conclude that they were shocked or alarmed. As a result Kessler’s conviction was reversed and a finding of not guilty was entered on his case. (You can read the entire decision here.)

What happens next with the Marlborough man’s case will depend on several factors including exactly how the incident was described by the officer who made the arrest, as well as the exact location his alleged behavior was observed, and what if any privacy he might have expected there. There are almost no details in the report from the Telegram, which is not unusual for such a quick media report on an arrest from earlier in the day. Many times open and gross is charged when an individual was urinating in public. If the man was urinating on the trail and reasonably thought no one would see him he may have a strong defense.

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