Boston Criminal Defense Lawyers Blog

Where the defendant was convicted of carrying an unlicensed firearm, the conviction is reversed when no evidence has been presented to show that defendant had the requisite intention to control the firearm.

While the defendant waited for his girlfriend outside her apartment, her brother Eduardo Alvarez went up to the defendant and showed him his firearm. The defendant checked out the firearm, even touching it, but ultimately gave it back to Alvarez. After the date, the defendant drove Alvarez and his brothers around in his new car. While later sitting in the car in front of the apartment and listening to music, Officer Deveney, who could only see the "tops of their torso[s] and their heads," saw the defendant look from side to side. Alvarez was observed examining an object in his hand. When Officer Deveney flashed his flashlight into the car, Alvarez turned toward Deveney and immediately dropped the object he was holding into his lap. Deveney saw the object was a black handgun.

After being Mirandized, the defendant admitted that he knew Alvarez had a firearm but was unaware he had the firearm on him while in the defendant's car. The defendant also told Officer Deveney that Alvarez had shown him a firearm earlier that day and that he had handled the weapon. The defendant was placed under arrest and later convicted of carrying an unlicensed firearm.

While the Appeals Court held that the trial judge did not err in admitting the defendant's extrajudicial statements and the defendant had the ability to exercise dominion and control over the firearm, the court held that the "evidence was insufficient to establish that the defendant intended to exercise 'dominion and control' over the firearm ... presence alone is insufficient to establish an intention to exercise control. ... Rather, the defendant's presence in the vehicle must be augmented by additional inculpatory evidence."

"The defendant was not wearing a holster sized to fit the firearm ... nor was he carrying ammunition that matched the weapon. ... Moreover, he made no attempt to conceal the firearm from [Officer] Deveney. ... Additionally, the defendant did not manifest any outward signs that the firearm belonged to him or that he intended to control the firearm. His vehicle was legally parked on the side of the road directly outside his girl friend's residence. The defendant made no attempt to evade Officer Deveney or manipulate the vehicle in any way to dispose of the weapon. At best, the fact that the defendant was the operator of the vehicle served only to put him in the proximity of the firearm and did not provide evidentiary support for the proposition that he intended to control the firearm."

"Because neither the defendant's ownership or operation nor his proximity to the firearm, alone or in combination, is sufficient to support his conviction, the sufficiency of the evidence rests on the location, time of the encounter, and behavior of the passengers. Here, the factual considerations cited by the Commonwealth shed little light on the defendant's intent. Accordingly, we conclude that the evidence was insufficient to support the defendant's conviction of unlawful possession of a firearm based on a theory of constructive possession." Commonwealth v. Romero.

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The U.S. Court of Appeals for the 1st Circuit has reversed the denial of a recusal order after determining that "a reasonable person would question the capacity for impartiality of any judicial officer with the judge's particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations."
According to the indictment, the defendant, James Bulger, was the leader of a criminal organization in Boston for over 25 years. During the time of his leadership, from 1972 to 1999, the FBI vigorously investigated organized crime in the Boston area. Indictments resulting from the FBI's investigation were prosecuted by the U.S. Attorney's Office or the New England Organized Crime Strike Force, two independent arms of prosecution that shared information and communicated regularly.

After Bulger was indicted in 2001, the Honorable Richard G. Stearns of the U. S. District Court for the District of Massachusetts was randomly assigned the case. During a large portion of the time covered by the indictment, Judge Stearns held several managerial and supervisory appointments with the U.S. Attorney's Office.

The defendant moved for Judge Stearns to recuse himself. Citing 28 U.S.C. § 455(a), (b)(1), (b)(3) and (b)(5)(iv), the defendant claimed that the likelihood that Judge Stearns would have had personal relationships with numerous witnesses and would himself be a material witness would cause a reasonable person to find that the judge would be biased.

Judge Stearns denied the motion on the grounds that because the U.S. Attorney's Office was separate from the Strike Force, questioning his impartiality was not reasonable. Judge Stearns also noted that despite working for the U.S. Attorney, he had no personal knowledge of anything material to the charged conduct. The defendant renewed his motion which Judge Stearns also denied alleging that it contained no new matters of law or fact.

The defendant petitioned the U.S. Court of Appeals for interlocutory relief by a writ of mandamus to direct Judge Stearns to vacate his order denying the renewed motion for recusal and to remove himself from the case.

Reviewing the defendant's two arguments, the 1st Circuit held that "given the institutional ties described here, the reasonable person might well question whether a judge who bore supervisory responsibility for prosecutorial activities during some of the time at issue could suppress his inevitable feelings and remain impartial when asked to determine how far to delve into the relationship between defendant and Government, and to preside over whatever enquiry may ultimately be conducted. On this record, that question could not reasonably be avoided. Further, while a mandamus petitioner must show irreparable harm, if immediate relief is denied and a balance of equities in his favor, the question of personal harm to the defendant need not be answered when the harm to the fairness of the judicial branch by denying the recusal is more present."

The defendant's petition was granted and the case reassigned to a judge whose curriculum vitae did not implicate the same level of institutional responsibility described here. In Re Bulger, James J.

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The 1st U.S. Circuit Court of Appeals has ruled that a District Court judge erred when he relied on a robbery guideline in sentencing a defendant found guilty of burglarizing a bank. United States v. Almeida.

Daniel Almeida was convicted of bank robbery. For sentencing, a probation officer prepared a pre-sentence report, or PSR, which gave the sentencing guideline for robbery a base offense level of 20. U.S.S.G. §2B3.1. Pursuant to that guideline, the PSR recommended enhancements for taking the property of a financial institution (two levels), brandishing a weapon (three levels), abducting a person to facilitate the offense (four levels), and taking more than $250,000 but less than $800,000.

The defendant argued this guideline was inappropriate because he was convicted of burglary, not robbery, which required only entry into the bank and not violence or intimidation. The guideline for burglary had different and lesser enhancements.

The government argued that the judge had the leeway to apply a guideline "that most closely captured the defendant's conduct" based on the evidence presented regardless of what the defendant was convicted of. The judge then determined that the appropriate guideline was §2B3.1, the robbery guideline, "because, based upon the evidence as the Court heard it" a robbery, and not just a burglary, had occurred. This resulted in a total offense level of 32, and a guideline range of 151 to 188 months. Almedia was sentenced to 151 months in prison and three years of supervised release.

The Court of Appeals noted that while there was evidence presented that Almeida robbed, and not just burglarized the bank, the language in "the indictment did not allege the use of force, violence, or intimidation, [i]nstead, the language of the indictment's sole count closely tracked that of subsection 2113(a)'s bank burglary prong, alleging that Almeida 'did enter and attempt to enter a bank, to wit, the East Cambridge Savings Bank ... with intent to commit in such bank a felony affecting such bank in violation of a statute of the United States and a larceny.'"

Case remanded for resentencing.

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Because he misled his parole officer regarding his whereabouts, a defendant failed to comply with parole conditions and opened himself to being convicted under G.L.c. 268, §13B, according to the Supreme Judicial Court. Commonwealth v. Luis Figueroa
In October, 2007, Luis Figueroa was paroled after serving time for armed robbery. At the time, Figueroa was also on probation for his conviction of rape of a child. According to his parole conditions, Figueroa could not be present in any area where children under the age of 18 congregated, and had to tell his parole officer if he became involved with someone with children. Additionally, Figueroa had to wear a global positioning system (GPS) monitoring unit and keep a calendar of where he went each day.

On October 29, 2007, Figueroa's parole officer, Kathryn Kozak, informed him that he was not to leave his home in Marlborough after 6 pm on Halloween night, October 31, 2007. He also was not to participate in any Halloween activities. When Kozak later checked Figueroa's GPS location, she determined he was in Framingham after 6 pm. Though Figueroa said he was at an Alcoholics Anonymous meeting, the GPS also refuted this.

Figueroa was placed in custody on a fifteen-day parole detainer. Thereafter, after his parole was revoked and his probation terminated, Figueroa was indicted for misleading a parole officer with the intent to obstruct a criminal proceeding, in violation of G.L. c. 268, § 13B; and for being a habitual criminal, in violation of G.L. c. 279, § 25. At trial, the evidence showed Figueroa had failed to tell Kozak he was involved with a single mother with four young children. Figueroa was found guilty of both charges and appealed arguing that G.L. c. 268, § 13B only applied when the parolee misled a parole officer to obstruct a "criminal proceeding of any type, which was not present here.

The Supreme Judicial Court upheld the conviction and ruled that a parole officer's investigation into a potential violation of the conditions of a defendant's parole constitutes a 'criminal proceeding of any type' within the meaning of the statute. "Because the statute before its 2006 revision already protected any "witness or juror," we conclude that the specific inclusion of parole officers and those with information regarding a parole violation as protected classes of victims was intended to do more than protect these individuals as potentially testifying witnesses at a parole revocation hearing or a criminal trial."

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Sometimes it seems there is a fine line between when a similar prior criminal act is admissible or not admissible. However, when the trial judge gets it wrong, the admission is an abuse of discretion that entitles a defendant to a new trial. Commonwealth v. Vasso.

On May 25, 2010 at the MBTA station, the defendant allegedly pointed a knife at the victim, a sixth grader, and said "Where's my drug money?" The victim informed an MBTA police officer about the assault and identified his attacker as `Demetrios.' The next day, when the victim again saw `Demetrios' in the station, the victim told another MBTA police officer. 'Demetrios' was arrested and charged with assault by means of a dangerous weapon.

Before trial, the defendant filed a motion in limine to exclude from evidence any prior bad acts including prior criminal convictions on grounds that they would have a chilling effect on his right to testify. The Commonwealth sought a ruling to admit thirteen prior criminal convictions obtained in nine separate cases. The judge then ruled that three prior convictions did not qualify for admission because they involved dispositions in which the defendant was placed on straight probation without a sentence. Another conviction did qualify for use for impeachment, but was excluded on the basis of an incorrect understanding of the law (a felony conviction in which no sentence was imposed, unlike a misdemeanor, is nonetheless available for impeachment). Three others were excluded because though they qualified for use under G. L. c. 233, § 21 (possession of a Class D controlled substance and possession of a Class B controlled substance), but the judge wanted to avoid the `cumulative [effect of] piling on so to speak.' The remaining six convictions involving crimes against the person were then admitted to impeach the defendant's credibility.

The defendant appealed.

In exercising discretion under G. L. c. 233, § 21, judges must consider the following factors: (1) whether the prior convictions are similar to the crime with which the defendant is charged, (2) whether the prior convictions are for crimes involving truthfulness, and (3) whether there are other prior convictions besides those that are similar that could be used for impeachment. However, even when a prior criminal conviction meets the factors, the judge must balance the danger of unfair prejudice against the probative value of the evidence for the purpose of impeachment. Commonwealth v. Drumgold, 423 Mass. at 249.

The judge's decision to admit these six convictions for impeachment in a case charging an aggravated assault in which there was a lack of any corroborative evidence apart from the testimony of the victim, and in which there were other prior convictions for drug offenses and property offenses that could have been used instead, was an abuse of discretion. In making decisions about the use of prior convictions, attention must be given to the `higher attendant risk that [the defendant] might improperly be convicted based on his reputation or his propensity to commit a crime.' Commonwealth v. Little, 453 Mass. at 774.

Judgment reversed.

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When the Supreme Court ruled, by a 5-4 vote, that two men convicted of crack cocaine crimes but sentenced after changes to the Fair Sentencing Act was signed into law were entitled to be sentenced under the more lenient Fair Sentencing Act (FSA), thousands of defendants cheered. And though the U.S. Department of Justice originally took the position that the more lenient sentences under the FSA only applied to crimes committed after August 3, 2010, U.S. Attorney General Eric Holder announced that the FSA would apply to all sentences handed down after August 3, 2010, regardless of when the crime had been committed. However, according to the First Circuit Court of Appeals, there are still times when the FSA is not applied to post passage sentences.

In Landan v. United States, the defendant was charged with possession of between 50 and 150 grams of crack cocaine. During a plea agreement, the defendant admitted guilt and "waived any right he has to challenge his sentence on direct appeal or in collateral challenge." Before sentencing occurred the FSA was passed. The defendant then appealed his sentence, arguing that that alleging that his ten-year mandatory minimum sentence was misapplied due to the passage of and retroactive application of the FSA.

"The Court agrees that because [petitioner Carlos] Landan was sentenced after August 3, 2010, under the reasoning of Dorsey [v. United States, 132 S. Ct. 2321 (2012)] he would no longer be subject to the ten-year mandatory minimum. That analysis is changed, however, by the fact that in this case defendant agreed in writing, as part of his plea deal, to waive his right to appeal." Though "[t]The First Circuit has not ruled as to whether to enforce appeal waivers in cases raising FSA claims post Dorsey, [i]t appears, however, that every federal court that has addressed that issue has enforced the appeal waiver. ... In so ruling, the Second Circuit even noted that the fact that most of the applicable decisions were unpublished or made in summary orders 'underscores the fact that the applicable law is altogether clear."

"Enforcing the appeal waiver is also consistent with the position this Court took at sentencing in this case. After noting that the parties disputed whether the FSA should be applied retroactively, the Court commented that such an argument would apply if there wasn't any plea agreement in this case ... But in this case, it seems to me there is a written plea agreement ... [in which defendant] agreed that the ten-year mandatory minimum applied.

Court declines to overturn defendant's appeal waiver. Defendant's sentence not reduced.

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While on probation, the police used a confidential police informant (CI) to set up a drug buy with the defendant. The informant telephoned the defendant to arrange the transaction then went to meet the defendant. At the meet site, a Marblehead police officer observed the defendant come out of a building, meet up with the CI, sit in an automobile with the CI, then leave the automobile and return to the building. The day after the alleged transaction, the Marblehead police officer wrote a police report describing the incident. A complaint was then issued charging the defendant with two drug offenses and conspiracy to commit drug offenses. The officer also received a warrant for the defendant's arrest. Approximately two weeks after the alleged transaction, the defendant was arrested and taken into custody when he reported to the District Court for a scheduled meeting with his probation officer. Based on the charges against him, and on his failure to pay certain fees, the defendant was served with a notice of probation violation.

The defendant then filed a motion in his criminal case seeking disclosure of the informant's identity. After a hearing, a District Court judge granted the defendant's motion for disclosure. At a subsequent probable cause hearing, the prosecutor indicated that the Commonwealth did not wish to disclose the identity of the confidential informant and moved to dismiss the case. The judge allowed the motion with the defendant's consent. At the defendant's probation revocation hearing, the defendant made a second motion for disclosure of the informant's identity. The defendant argued that the original and identical motion for disclosure had previously been allowed and was understood to apply to both the criminal case and the probation matter predicated on the same alleged conduct. The defendant further contended that disclosure of an informant's identity is required where the informant is an active participant in, and percipient witness to, the alleged offense, and that nondisclosure would violate his due process right to call witnesses and to investigate the case against him.

The judge disagreed, denied the disclosure motion, and found that even without the informant's testimony, there was sufficient information to prove the defendant had violated the terms of his probation by committing a new offense and by failing to pay fees owed. The defendant was ordered two suspended sentences, one for nine months and one for six months, to run concurrently.

On appeal, the probation revocation order was found to be in err. According to the court, "The judge did not take such pertinent, case-specific factors into consideration when ruling on the defendant's motion. Rather than determining whether, in the totality of the circumstances, disclosure was necessary to effectuate the defendant's right to present a defense, the judge denied the motion under the mistaken belief that disclosure is never to be ordered in probation revocation proceedings"

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Where the evidence to prove drug possession is insufficient, the court's admission of a drug analysis certificate is not harmless to the defendant's conviction.

The defendant, Malone, was arrested by Officer Mark Templeman for possession of marijuana. At trial, Officer Templeman testified that the defendant was in possession of a green leafy vegetable matter. Officer Templeman also testified that the green leafy substance was packaged in such a manner consistent with street level distribution of marijuana. Based on his experience and the appearance of the green leafy substance, the defendant was arrested and charged with possession of marijuana. Officer Templeman gave no testimony regarding the odor of the green leafy substance.

According to the court, only describing the appearance of the substance is insufficient to prove that the substance is, in fact, the alleged drug, which in this case was marijuana. "[T]he Commonwealth here presented 'no evidence that the officers detected any identifiable odors or recognized any other distinguishing characteristics of the substances beyond their appearance." Further, "while the manner of packaging is certainly evidence of distribution, it is not conclusive on the chemical composition of the charged substance. ... Therefore, testimony on packaging cannot overcome the improper admission of a drug analysis certificate."

Also, even though "the defendant made several admissions that the substance was marijuana, both in his direct examination and during his counsel's closing arguments" there is no evidence that the defendant ever used marijuana," hence the defendant does not have sufficient experience to testify that the green leafy substance was marijuana. "And a defense 'construed around an admission' that the green leafy substance was marijuana does not relieve the Commonwealth of proving the substance was, in fact, marijuana ..."
Order denying the defendant's motion for a new trial on the possession of marijuana is reversed. Commonwealth v. Malone

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A Tewksbury, MA motel owner has successfully challenged the federal government's attempt to forfeiture his motel due to drug activity on the motel's premises.

Russell Caswell is the trustee, and one of the beneficiaries, of the Tewksbury Realty Trust which owns the motel. Over a nine year period, the Tewksbury Police Department made eight arrests at the motel which resulted in federal drug convictions.

In November, 2007, the Tewksbury Police Department, sent a letter to area "Hotel/Motel Managers about the increase in motor vehicle thefts in the area and asked the managers to attend a community meeting. Neither the letter, nor during the meeting, was local drug activity discussed. Thereafter, the U.S. filed a Verified Complaint for Forfeiture in Rem seeking the forfeiture of all buildings, appurtenances and improvements on the motel because the motel was "used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of [the Controlled Substances Act] punishable by more than one year of imprisonment."

Under 21 U.S.C. §881, the government can seize property used to facilitate federal felonies if the owners either knew about the criminal activity or did not do enough to prevent it. While federal law requires property owners to then prove they did not know about the criminal activity or took reasonable steps to prevent it, under Massachusetts law the burden of proof is on the state to prove the property owner knew or should have known about crimes on the premises.

U.S. Magistrate Judge Judith Gail Dein ruled in favor of Mr. Caswell.

According to Judge Dein, "Given the limited number of qualifying drug-related crimes which occurred at the Motel over an extended period of time, the limited evidence of other drug-related crimes, the owner's lack of involvement in any drug-related incidents, the limited amount of drugs involved in each incident, and the fact that the crimes were committed by different transient guests at a property which, by definition, caters to transient guests, this Court concludes that finding a 'substantial connection' would be inconsistent with 'both letter and spirit of the law.' Further, because Mr. Caswell "did not have actual knowledge of the forfeitable drug crimes before or while they were occurring, and there is no evidence that he should have known that they were likely to occur," he met his burden of proving he was an 'innocent owner.'" U.S. v. 434 Main Street.

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Joshua Sota and his family had something to celebrate during the holidays after the Massachusetts Appeals Court reversed Soto's earlier conviction for distributing heroin and possessing marijuana. According to the Appeals Court the evidence used to convict Soto was not sufficient to convict him of distributing heroin, and while the evidence was sufficient to convict him of possessing marijuana that conviction was also reversed due to the erroneous admission of drug certifications without live testimony by the certifying chemist.

" ... Even viewed in the light most favorable to the Commonwealth, the evidence did not support a conviction of distribution of a class A substance beyond a reasonable doubt. ... There was no evidence of what, if anything, happened while the defendant and Ramos were in the automobile. They were not observed to lean towards each other, or to make any sort of a hand-to-hand transaction or movement. In fact, they were not observed to do anything at all while in the car. ... "

Further "the officer's testimony, which was not qualified as that of an expert, that the duration of the ride was similar to what he had seen in unrelated drug transactions, was alone insufficient to permit the jury to find beyond a reasonable doubt that a drug transaction occurred during this particular ride. Moreover, because there was no evidence as to the value of the heroin found near Ramos, the fact that a $20 bill was found between the seat and the console of the car did not support an inference that it related to, or resulted from, the sale of the drug."

Under Massachusetts General Laws Chapter 94C Section 32, the distribution of heroin is a Class A substance. For a first offense, individuals convicted of the crime face up to 2 ½ years in jail or 10 years in state prison. For a second offense, individuals face a mandatory minimum prison term of 5 years, up to 15 years.

Individuals found guilty of possessing marijuana can be sentenced up to 6 months in jail and fined up to $500. However, if the individual has not previously been convicted of possessing marijuana and has no other drug related convictions, the case will likely be continued without a finding requiring the individual to successfully complete probation after which your case will be dismissed. A second offense can result in a 2 year jail sentence and a fine of up to $2,000.

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Enoh Johnson filed a pro se complaint against the Plymouth County Sheriff for alleged violations of his civil rights that occurred when he was detained at the Plymouth Correctional Facility. Johnson sought monetary damages, and requested appointment of counsel as well as a copy of his medical records.

Plaintiff's Application to Proceed Without Prepayment of Fees was granted in June 2012. At this time the District Court also informed Johnson of the pleading deficiencies in his original complaint - that though he alleged he was injured by the actions of one or more correctional officers, none of these individuals were named in the complaint. Further, though the Plymouth County Sheriff was the named defendant in the complaint, the complaint made no allegations that the Sheriff was personally involved in any of the incidents described in the complaint.

Plaintiff then filed an amended complaint adding Superintendent Norton and Social Worker Smethurst as defendants.

After a preliminary screening pursuant to 28 U.S.C. § 1915(e), the District Court held that the amended complaint could be served on defendants Norton and Smethurst. However, due to the insufficiency of the allegations against the Sheriff, the claims against him were dismissed.

The Court also denied Johnson the right to counsel. A civil plaintiff lacks a constitutional right to free counsel unless the plaintiff is indigent and exceptional circumstances exist such that denial of counsel will result in fundamental unfairness impinging on the party's due process rights. Desrosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). No exceptional circumstances warranting the appointment of counsel exist at this time.

In regards to the plaintiff's request for his medical records, the Court advised him to first request the records by letter. If the medical records were not forthcoming, he could formally request the documents through a subpoena.

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Jordan Platt was charged with a number of criminal offenses, including home invasion.

A key piece of evidence against him was an audio recording.

The problem - the audio recording was made by an individual in the state witness protection program.

The issue - the audio recording was made without Platt's consent, which is a violation of State and Federal wiretapping laws.

So Platt filed a motion, twice, to discover the witness' address. Both motions were denied. Platt then moved for issuance of a summons to force the witness to attend the suppression hearing.

Deciding without a hearing, a single justice granted Platt's motion and ordered the Commonwealth to provide the witness' address to the court under seal. At the time of this decision, the suppression hearing was scheduled for the next day. The Commonwealth filed a motion for relief from the order under G.L. c. 211, § 3 which the single justice denied. The Commonwealth appealed.

Under Massachusetts' G.L. c. 211, § 3, relief will be granted when the situation is extraordinary. " 'The fact that the Commonwealth has no other remedy does not make [G.L.] c. 211, § 3, review automatic.' ... 'We have rarely allowed Commonwealth appeals of interlocutory matters under our supervisory powers.... We will review interlocutory matters in criminal cases only when "substantial claims" of "irremediable" error are presented ... and only in "exceptional circumstances" ... where "it becomes necessary to protect substantive rights." ' " Commonwealth v. Richardson, 454 Mass. 1005, 1005-1006 (2009), quoting Commonwealth v. Cook, 380 Mass. 314, 319-320 (1980). "No party, including the Commonwealth, should expect this court to exercise its extraordinary power of general superintendence lightly." Commonwealth v. Richardson, supra at 1006, citing Commonwealth v. Narea, 454 Mass. 1003, 1004 n. 1 (2009).

Reviewing the circumstances, the Supreme Judicial Court noted that the witness' testimony was essential to Platt's motion to suppress the audio recording. Further, since the order was solely to secure the witness' attendance at the suppression hearing and the witness' address would be under seal, it was not being disclosed to the defendant or his counsel, the court was considering the witness' safety. Therefore, the single justice did not err or abuse her discretion and the judgment was affirmed. Commonwealth v. Jordan Platt.

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The Supreme Judicial Court has upheld a Superior Court's dismissal of a second degree murder indictment against the defendant.

A grand jury returned an indictment for second degree murder against the defendant in the killing of Rene Valdez. Because the prosecutor failed to disclose certain exculpatory evidence to the grand jury that the altercation may have begun when the victim and an accomplice tried to rob the defendant, the Superior Court dismissed the indictment against the defendant, who was sixteen at the time of the alleged crime.

When the grand jury returned an indictment against the defendant for the second time, the Superior Court dismissed the charge again on the grounds of insufficient evidence. The Commonwealth appealed the second dismissal.

The Supreme Judicial Court first noted that the Superior Court was incorrect regarding the sufficiency of the evidence for a second degree murder charge. The Commonwealth offered sufficient evidence to prove the two elements of murder in the second degree: that an unlawful killing had been committed and that it had been committed with malice. Furthermore, the Commonwealth bears no burden to present evidence that the killing may have occurred in a heat of passion arising from reasonable provocation or sudden combat, or constituted excessive use of force in self-defense.

However, the Supreme Judicial Court held that the indictment must be overturned because the grand jury did not take into account the defendant's youth. "An indictment for murder brought against a juvenile defendant carries an added and significant consequence. A murder indictment must be tried in the Superior Court ... and the juvenile defendant will be treated in all respects as an adult. If indicted for any other crime, the juvenile defendant would otherwise proceed in the Juvenile Court, with the protections there afforded him." Because the grand jury here was not provided such instructions, the indictment was properly dismissed.

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In Commonwealth v. Perez, the Massachusetts Appeals Court recently held that statements made by a woman congruent to an attack were made as an excited utterance, thereby not heresay but an exception to the hearsay rule. The trial court did not err in admitting the evidence. The defendant's appeal is denied.

Juan Perez attacked Linda Wynn, after which Wynn ran into her apartment. Perez followed Wynn and tried to enter her apartment by breaking down a door. Perez also had a BB gun. While Perez was kicking in her door, Wynn called 911 and a neighbor.

On the 911 tape, over and over Wynn told the 911 operator that Perez had just attacked her. That he had choked and punched her, and that he was now trying to break her door down to get inside her apartment. Wynn stated she was afraid Perez was going to kill her.
When Wynn talked to her neighbor, she told the neighbor that she had been choked and punched in the face. The neighbor testified that when Wynn made the statements she was "crying" and "very nervous."

Wynn was not available for trial. However, the trial judge admitted the 911 tape and allowed the neighbor to testify after determining Wynn's statements were ongoing to the initial attack and therefore an excited utterance. Perez was found guilty of assault and battery and witness intimidation, and appealed. Perez made two arguments:

1. Wynn's out-of-court statements to her neighbor were inadmissible because the statements were not testimonial per se, but were testimonial in fact. Further, Wynn was not available for cross examination. Crawford v. Washington.
2. The 911 tape was inadmissible because Wynn's statements were not spontaneous and therefore did not meet the heresay exception.
The appellate court agreed with the trial court that Wynn's statements were ongoing to the initial attack. Therefore, they were an excited utterance which is an exception to the heresay rule, and thereby admissible.

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A Massachusetts' appellate court has reversed a lower court's verdict where the judge erred in instructing the jurors on the defendant's right to refuse to take a breath test. Commonwealth v. Gibson.

On Super Bowl Sunday, Henry Gibson went to a Super Bowl party where he ate food and drank two light beers. At halftime he went to another party where he drank two more light beers and had more food. On the way home, Gibson stopped at a red light. Impatient, he proceeded through the red light, and was immediately stopped by the police. After the officer smelled alcohol, Gibson admitted to drinking four beers. The officer asked Gibson to step outside his car and perform several field sobriety tests.
When the officer felt Gibson failed each test, he was placed under arrest for driving under the influence (DUI).

At trial, the prosecution did not enter into evidence the results of a breathalyzer test. At the close of the trial, the judge instructed the jury that "The police do not have to offer [a breathalyzer test, and] a person does not have to take it ... You are not to mention or consider it in any way whatsoever, either for or against either side."

Gibson appealed his guilty verdict arguing that telling the jury that a person may refuse a breathalyzer test was a violation of his right against self incrimination.

In Massachusetts, it is settled law that a defendant's refusal to take a blood test or breath test to detect alcohol is not admissible as evidence because such a refusal is testimonial in nature and its admission violates the privilege against self incrimination. While the trial judge correctly instructed the jury that there were not to consider any absence of breathalyzer evidence, the judge erred when he also said that "a person does not have to take [a breathalyzer test]." Further, the fact that defense counsel did not object to the instruction is not relevant since the judge's instruction error created a substantial risk of a miscarriage of justice.

Trial court decision reversed and verdict set aside.

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