August 25, 2014

Appeals Court Affirms Suppression of Firearm Seized During Warrantless Search of Vehicle

The Massachusetts Appeals Court recently upheld a superior court ruling allowing a motion to suppress a firearm seized after a warrantless search of a backpack following an investigatory stop of a motor vehicle.

In Commonwealth v. Rutledge, two defendants were charged, among other things, with numerous firearms offenses. The arrest was made on July 13, 2011 after a 911 operator in Brockton received a call from a woman who overheard an argument between her current boyfriend and former boyfriend, when the former boyfriend allegedly pulled a gun on the current boyfriend, threatening to kill him.

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August 20, 2014

SJC Reverses Conviction Based on Improper DNA Evidence Testimony

The Massachusetts Supreme Judicial Court (SJC) recently reversed a defendant's conviction and remanded the case for a new trial due to the improper admission of expert testimony regarding DNA evidence. The SJC concluded that an opinion regarding the results of DNA testing is admissible only where the defendant has a meaningful opportunity to cross-examine the expert witness about the reliability of the underlying data produced by such testing.

In Commonwealth v. Tassone, a superior court jury convicted the defendant of unarmed robbery and assault and battery. The defendant had been arrested in connection with the robbery of a small variety store in Pittsfield, MA. The defendant was the allegedly the only customer in the store at the time of the robbery. It was alleged that the defendant went to the counter to purchase an item, and when the store manager opened the register door, the defendant reached into the register to take the money. A fight ensued, ending with the manager on the floor and the defendant fleeing with $350. When police arrived at the scene, they recovered a pair of eyeglasses on the floor that did not belong to the store manager.

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August 18, 2014

Violation of Right to Public Trial Earns Defendant New Trial

In a recent decision, the Massachusetts Appeals Court affirmed a superior court judge's decision that the closure of the courtroom for the general questioning of the venire violated a criminal defendant's Sixth Amendment right to a public trial.

In Commonwealth v. Timothy White, the defendant, a former state police sergeant, had allegedly stole drugs from the state police evidence room and sold them for profit. The defendant was charged with trafficking in cocaine, larceny over $250, and conspiracy to traffick in cocaine. Due to the media attention the case attracted, the defendant's counsel requested individual voir dire of prospective jurors. Unbeknownst to the defendant or the judge, the courtroom was closed to the public for the first phase of the juror selection process, based upon the courtroom lacking sufficient space to seat all members of the venire.

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August 11, 2014

Smell of Unburnt Marijuana Does Not Provide Probable Cause Justifying Warrantless Search of Vehicle

After Massachusetts made it legal to possess one ounce or less of marijuana, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Cruz that the odor of burnt marijuana alone could not provide reasonable suspicion of criminal activity to justify a warrantless search. In a recent case, the SJC expanded that decision and held that the smell of unburnt marijuana does not provide probable cause for the police to search a vehicle.

In Commonwealth v. Overmyer, the defendant was involved in a motor vehicle crash. When the police arrived at the scene, they encountered a "very strong odor" of unburnt marijuana emanating from the defendant's vehicle. After questioning the defendant about marijuana being present in the vehicle, the defendant acknowledged that a bag of marijuana was in the glove compartment, and gave the keys to the police. After the police retrieved a "fat bag" of marijuana, the officers continued to smell an odor or marijuana in the vehicle, and questioned the defendant about the possibility of the vehicle obtaining a larger amount of marijuana. Although the defendant denied this, the police proceeded with a search of the car, and found a backpack in the back seat filled with marijuana.

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August 4, 2014

Appeals Court Reverses Conviction Based on Insufficient Evidence that Knife was a 'Dangerous Weapon

Last month, the Massachusetts Appeals Court reversed a criminal defendant's conviction for carrying a dangerous weapon due to insufficient evidence that the knife he was carrying was the type of knife prohibited under the applicable statute.

In Commonwealth v. Higgins, the defendant was convicted of violating M.G.L. c. 269 ยง10(b), which makes it illegal for anyone to carry certain kinds of knives deemed to be dangerous weapons. This conviction came as somewhat of a surprise, as the jury failed to also convict the defendant of the aggravated assault and battery charge that was the centerpiece of the trial.

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July 28, 2014

SJC Affirms Suppression of Statements Made More Than Six Hours After Arrest

Last month, the Massachusetts Supreme Judicial Court (SJC) reaffirmed a concept it established in 1996 in Commonwealth v. Rosario - known as the "Rosario rule" - which makes any statements made by a defendant more than six hours after his arrest, but before his arraignment, per se inadmissible against him, absent his valid waiver of his right to be arraigned without delay.

In Commonwealth v. Powell, the police suspected the defendant's involvement in a murder that occurred in February 2010. On June 14, 2010, at 1:30 P.M. the police arrested the defendant on charges of larceny of a motor vehicle occurring on the night of the murder. Although the police likely had enough probable cause to charge the defendant with the murder as well, they had not yet been authorized to bring those charges.

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June 30, 2014

Breathalyzer Test Results Should Have Been Suppressed Based On Excessive Differential

Last month, the Massachusetts Appeals Court reversed the Boston Municipal Court's denial of a defendant's motion to suppress evidence of his post-arrest breathalyzer test as evidence of his alleged operation of a motor vehicle while under the influence of alcohol. The decision examined the regulations applicable to breathalyzer test results and their reliability.

In Commonwealth v. Hourican, the defendant had driven his vehicle into a police patrol wagon. Police observed that the defendant had "glassy eyes" and smelled of alcohol. After failing two out of three field sobriety tests, the defendant was arrested. He then consented to a breathalyzer test in which he produced two breath samples. One sample measured 0.121% blood alcohol content (BAC), and the other measured 0.143%, resulting in a differential between the two samples of 0.022%. Both samples indicated that the defendant's BAC level was above the legal limit of 0.08%.

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June 9, 2014

Defense Counsel's Failure to Move to Strike Portion of Expert's Testimony Leads to New Trial

On May 19, 2014, the Massachusetts Supreme Judicial Court (SJC), in Commonwealth v. Sepheus, reversed the conviction of a defendant convicted of possession of cocaine with intent to distribute, and determined the defendant is entitled to a new trial, because trial counsel was ineffective for failing to object to a portion of the Commonwealth's expert's testimony. The portion of the expert's testimony to which counsel did not object was the expert's response to questions counsel asked that allowed the expert to offer his own opinion as to the defendant's guilt.

The defendant was arrested on outstanding warrants in Springfield, MA on September 30, 2009. At the time of the arrest, the defendant was with another man, whom Springfield police observed perform what they believed to be a narcotics transaction. Both the defendant and the other man were arrested. Defendant was found in possession of three small bags of "crack" cocaine, weighing approximately 0.4 grams and packaged individually in the twisted-off corner of a sandwich bag, and $312 in currency. The defendant did not have in his possession a device to ingest the drug.

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May 26, 2014

Erroneous Jury Instruction Leads to Reversal of Defendant's First Degree Murder Conviction

Last week, the Massachusetts Supreme Judicial Court (SJC) reversed the conviction of a criminal defendant for first degree murder after finding that the trial judge had erred in instructing the jury as to their deliberations on first degree murder versus the lesser offense of second degree murder.

In Commonwealth v. Figueroa, the defendant did not deny that he shot and killed the victim. Instead, the issue was whether the defendant's killing was done with the intent to kill or deliberate premeditation. If the jury believed that the defendant had the requisite intent, then a verdict of first degree murder would have been appropriate. However, if the jury believed that the defendant was so intoxicated from alcohol and/or cocaine that he could not have formed the legal intent, then a conviction of second degree murder would have been appropriate.

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May 19, 2014

Counsel's Failure to Raise Improper Expert Testimony Issue on Appeal Earns Defendant New Trial

Last week, the Massachusetts Appeals Court reversed the defendant's conviction in a sexual abuse case, based upon the improper expert testimony offered by the Commonwealth at trial, and the defendant's appellate lawyer's failure to raise that issue on the original appeal of the conviction.

In Commonwealth v. Aspen, the defendant was convicted of one count of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery, all in relation to accusations of sexual abuse made by the defendant's stepdaughter. At trial, over the objection of the defendant's trial attorney, the court permitted an expert witness to testify about general behavioral characteristics of sexually abused children in a manner that could have improperly suggested to the jury that the stepdaughter's testimony was credible.

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May 12, 2014

U.S. Supreme Court Considers Constitutionality of Searches of Arrestees' Cell Phones

On April 29, 2014, the United States Supreme Court heard oral arguments in two criminal cases that have asked the Court to determine whether searching a person's cell phone at the time he is arrested is a proper "search incident to arrest," or an unreasonable search that infringes on the arrestee's rights under the Fourth Amendment to the Federal Constitution. One of those cases - U.S. v. Wurie - is on appeal from the First Circuit in Massachusetts.

In Wurie, the police arrested the defendant in connection with a drug deal. Among other items that were on the defendant at the time of the arrest, the police seize two cell phones from him. After they were seized, the police observed that one of the cell phones repeatedly received phone calls from a number identified as "my house" on the external caller ID screen. A few minutes later, one police officer opened the cell phone and looked at the defendant's call log. In doing so, the officer observed a photograph of a woman holding a baby, which was set as the phone's wallpaper. The officer then navigated the cell phone to determine what phone number was associated with the calls from "my house."

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April 21, 2014

Promised Immunity Under Proffer Agreement Requires Suppression of Evidence

In a recent opinion, a judge at the United States District Court, District of Massachusetts ruled that the evidence obtained by the government pursuant to the defendant's agreement to provide it in exchange for immunity may not be offered against the defendant, despite the government's arguments that the defendant waived his immunity under the proffer agreement and that its use of the evidence constituted a permissible "derivative use" under the agreement.

In United States v. Scott, the defendant learned that he was the target of a federal investigation into alleged mortgage lending fraud in February 2009. The defendant entered into a proffer agreement with the U.S. Attorney's Office, drafted by the government, which provided him certain immunities. Specifically, the proffer agreement provided that "no statements made or other information" provided by the defendant would be used directly against him (with certain exceptions not relevant), but the government would be permitted to "make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information" provided by the defendant.

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April 14, 2014

"I Don't Want to Talk" Sufficient to Invoke Right to Remain Silent

Last week, the Massachusetts Supreme Judicial Court (SJC) reversed a superior court judge's denial of a motion to suppress statements made by a defendant after he invoked his right to remain silent. The SJC found that the defendant sufficiently indicated to the interrogating officer that he was invoking that right.

In Commonwealth v. Hearns, the defendant was charged with the murder of a fourteen-year-old boy and the wounding of a fifteen-year-old boy in Jamaica Plain. The police suspected that the boys were shot in connection with a feud between two rival gangs in the area. According to their investigation, the defendant had admitted to a witness that he and others drove up to a basketball court on Heath Street, and the defendant, at the direction of older members in his gang, approached the victims, shot at them multiple times, and fled back to the vehicle and drove away. The defendant had also allegedly admitted his participation in the murder to another witness. That witness agreed to cooperate with the police, and consented to wearing a concealed recording device. During a recorded conversation between the defendant and the cooperating witness in an automobile, the defendant described how he committed the shooting.

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March 31, 2014

Appeals Court Reverses Shooting Conviction Based on Insufficient Evidence

In Commonwealth v. Lobo, the defendant was convicted of two counts of assault and battery by means of a dangerous weapon, after he was tried for the shootings of two brothers on Hancock Street in Brockton in 2005. At trial, the Commonwealth called only one eyewitness to testify. That witness, the victims' father, testified that he heard rapid gunshots fired while a white car was driving in front of him and his sons. He did not see a gun, a muzzle flash, or the faces of any of the people in the car. He was unable to say whether the gunshot sounds had come from the area of the white car, but assumed that they had.

The father further testified that when the white car drove away, he discovered that his sons had both been shot. He then heard the car return at a high speed and a car door open. He momentarily saw a male, who he later identified as the defendant, standing outside of the car. The father testified that he then heard two or three more shots fired, but he could not tell where those shots had come from. He never saw a gun in the defendant's possession.

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March 24, 2014

'Dangerous Weapon' Not Necessarily a 'Deadly Weapon' for Purposes of Enhanced Sentencing Statute

In a recent unpublished opinion, the Massachusetts Appeals Court reversed a judgment against a criminal defendant who had been sentenced by a superior court judge under the sentencing enhancement provisions of the Massachusetts Armed Career Criminal Act (ACCA). In relevant part, the ACCA applies to any person who has been previously and in separate instances been convicted of three violent crimes, or three serious drug offenses, or any combination of violent crimes or serious drug offenses that total three. Under the ACCA, if a person with such a criminal history is found to be in unlawful possession of a firearm under the applicable Massachusetts firearms laws, he may face a sentence of 15 to 20 years in prison. The statute defines a "violent crime" as, among other criteria, a crime that involved the use or possession of a "deadly weapon."

In Commonwealth v. Boyd, the defendant's adult criminal record included convictions for the unlicensed carrying of a firearm and unlawful possession of ammunition. However, the defendant also had juvenile convictions for assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery on a public employee. In this case, the defendant was further convicted of unlawful possession of a sawed-off shotgun, unlawful possession of ammunition without a firearms identification card, unlawful possession of a loaded sawed-off shotgun, unlawful discharge of a firearm, and two counts of reckless endangerment of a child.

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