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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 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In a recent unpublished opinion, the Massachusetts Appeals Court reversed a judgment against a criminal defendant who had been sentenced by a superior court judge under the sentencing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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February 10, 2014

Mere Use of License Plate Cover Not Grounds for Traffic Stop

Today, the Massachusetts Appeals Court issued its decision in Commonwealth v. Bernard, affirming the decision of a Lawrence District Court judge to suppress evidence obtained from the defendant's vehicle when a Massachusetts State Trooper pulled the defendant's vehicle over after observing a plastic cover on the vehicle's rear license plate. The decision resulted in the suppression of statements and evidence supporting firearm charges against the defendant.

In June 2009, the trooper observed the defendant operating a vehicle on Route 495 southbound. The trooper, who was traveling in the first lane, allegedly was unable to see the license plate of the defendant's vehicle, which he observed from an angle as the defendant's vehicle traveled in the third lane. The license plate was covered with a clear, but tinted, plastic cover. For this reason only, the trooper pulled up behind the defendant's vehicle and activated his cruiser lights to pull the defendant over. The trooper observed no other traffic violations.

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January 22, 2014

SJC Justices Disagree as to Effect of Prosecutor's Seemingly Inconsistent Statements at Two Separate Trials

This week, a 4-3 Massachusetts Supreme Judicial Court (SJC) decision highlighted the justices' conflicting views on the prejudicial effect on a criminal defendant when a prosecutor urges a jury to believe that one person was the principal actor in a murder at one trial, and, failing to convince that jury, urges a different jury to believe that the defendant pulled the trigger in the defendant's subsequent trial.

In Commonwealth v. Keo, Keo faced a charge of first degree murder in the shooting death of the victim, who was a member of a rival gang, in Lynn in November 2007. The evidence in that case suggested that, on that date, Bonrad Sok had called Keo, and Keo joined Sok and others at a restaurant where the victim and his girlfriend were also present. About five weeks prior to that time, the victim had stabbed Keo.

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April 20, 2012

12 Year Old Arraigned on Gun Charges at Boston Municipal Court

Boston.com reported that on Tuesday, April 17, 2012, a twelve year old boy was arraigned on felony firearm charges at the juvenile division of the Boston Municipal Court. Members of the Boston Police Department reported that, while on routine patrol in the area of Forest, Vine and Mt. Pleasant Streets in Roxbury, they observed a boy toss an object into the front yard of a Forest Street home before running away. Upon further investigation, the officers reportedly discovered that the discarded object was a fully-loaded, .380 caliber handgun.

The Boston Municipal Court Judge presiding over the juvenile session ordered the suspect to be held on a ten thousand dollar ($10,000) cash bail. He was reportedly charged with: 1) Unlawful Possession of a Firearm; 2) Unlawful Possession of Ammunition; and, 3) Unlawful Carrying of a Loaded Firearm.

Suffolk County District Attorney Daniel F. Conley commented: "Think of the damage a child of that age could do with a loaded firearm. Think of the harm he could cause, to someone else or even himself. Who on earth would give a twelve-year-old a gun, and for what possible reason?"

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

As a resident and member of the community of the Greater Boston area, it is extremely disheartening to watch as illegal firearms appear to be flooding the Boston streets. As a Boston criminal defense lawyer and member of the criminal defense litigation group at Parker|Scheer LLP, we have represented many individuals charged with illegal possession and carrying of firearms and ammunitions.

An experienced criminal defense attorney will often challenge the evidence that the Commonwealth intends to offer at trial against the defendant with Motions to Suppress Evidence. The Massachusetts Rules of Criminal Procedure allow for such Motions to Suppress Evidence when such evidence is obtained illegally, i.e. - contrary to the Massachusetts General Laws, or the State or Federal Constitutions. For example, the Fourth Amendment to the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights prohibit government officials from obtaining evidence by means of "unreasonable searches and seizures." An experienced criminal defense attorney will scrutinize the facts of the particular case and analyze whether any of the evidence was seized illegally; thus, is eligible for suppression.

One potential issue that I see with challenging the seizure of the firearm in this case, if the reporting of the facts is accurate with respect to discovery of the firearm, is whether the defendant will have "standing" to bring a motion to suppress. Massachusetts common law may prevent this under the theory of "abandoned property." In other words, the issue may turn on whether the defendant had any possessory interest in the seized firearm at the time of its discovery and seizure by the police; or, if the piece of evidence would be considered abandoned property after it was thrown into the front yard.

This will be an interesting case to keep an eye on.

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April 12, 2012

5 Former New Orleans Police Department Officers Sentenced in Post-Katrina Shootings

Multiple news outlets reported that, on Wednesday April 4, 2012, varying prison sentences were ordered by Judge Kurt D. Englehardt of the Federal District Court for the Eastern District of Louisianna. Judge Englehardt ordered federal prison sentences ranging from six years to sixty five years in response to the guilty findings of five ex-New Orleans Police Department Officers that shot six unarmed civilians two days after Hurricane Katrina. Two of the unarmed civilians were killed, and the ex-officers were apparently involved with wide ranging cover-ups to obstruct the investigations in relation thereto.

A number of ex-officers that were directly involved with the shootings and the subsequent cover-up previously entered pleas of guilty, and were ordered to serve significantly reduced prison sentences in return for their guilty pleas and testimony offered at the trials of the remaining co-defendants.

The evidence painted an alarming and tragic story of police misconduct in the immediate aftermath of one of the nations' most severe natural disasters. On September 4, 2005, as most of the city of New Orleans lay submerged in flood waters caused by Hurricane Katrina, members of the New Orleans Police Department responded to distress calls from the area of the Danziger Bridge in the eastern part of the city. Immediately upon arrival at the scene, officers began shooting, apparently indiscriminately, at numerous individuals that were desperately searching for food and shelter. A number of the victims were shot in the back as the attempted to flee the unprovoked assault.

Evidence further showed that the broad cover-up attempt included fabricated witnesses and a planted hand gun.

Before ordering the federal prison sentences, Judge Engelhardt condemned the mandatory minimum sentences that were linked to the charges involved because of the chilling effect these sentencing requirements have on the discretion of the Judge to analyze the totality of the circumstances, both aggravating and mitigating, in an attempt to reach the most equitable sentences. Judge Engelhardt further expressed displeasure by the significant range in sentences meted out, and the plea deals that were entered into by the federal prosecutors with cooperating witnesses.

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

Taking a moment to step back, away from one of the most troubling and tragic examples of police misconduct that I have ever heard of, I would like to address Judge Engelhardt's apparent displeasure with mandatory minimum sentences. As an experienced criminal defense attorney, specializing in drug trafficking offenses, I often grapple with the pitfalls associated with mandatory minimum sentences.

Most common, pursuant to the Massachusetts General Laws, a "School Zone" count carries a mandatory minimum sentence of two years, to be served consecutively to any sentence(s) ordered for the underlying offense. As a criminal defense attorney practicing in the densely populated cities comprising the greater Boston area, in my experience a "School Zone" count (essentially when a drug offense other than simple possession occurs within 1,000 feet of a school or 100 feet of a park) is applicable more often than not. This provides the prosecutor with substantial leverage when negotiating with a criminal defense lawyer, to determine whether the respective parties can favorably resolve a criminal matter prior to trial because of the severe implications that a school zone count carries.

I share Judge Engelhardt's concerns regarding sentencing guidelines that remove the discretion of the judge because I have never encountered two clients or two cases that are exactly the same. In most cases, an experienced criminal defense lawyer will identify mitigating circumstances involved in the criminal charges that their client faces. But, when a charge carries a mandatory minimum sentence, the judge has absolutely no discretion to take into account the unique circumstances that exist in every case, whether aggravating or mitigating.

I can appreciate the argument that harsh mandatory sentences act as an effective deterrent against the prohibited conduct. Notwithstanding, I believe that it is more important to afford judges in the Commonwealth of Massachusetts with discretion to order equitable sentences after taking into account the totality of the circumstances. Every individual is exactly that: an individual, with a unique background and circumstances. Mandatory minimum sentences ignore this fundamental concept that is inherently intertwined in every criminal case. Accordingly, a judge's ability to exercise his or her discretion when determining a sentence is an essential element in reaching an equitable result.

For a more comprehensive discussion regarding "school zone" counts pursuant to Massachusetts General Laws, please click here.

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March 21, 2012

Police Save Two from Home Invasion

According to Brockton Police, officers were called to a home invasion late Friday night involving two armed men threatening a family. Officers burst into the house and arrested the two armed men. Brockton Police received a call around midnight from a girl who stated that she was hiding in a closet while her brother and grandmother were being tied up.

Reports indicated that one of the robbers had hit a family member with a gun and held a knife to a woman's throat. The robbery took place at a home on Claremont Avenue, and police could see someone inside the house running around as a man attempted to escape out a window.

On the scene, police recovered a .40 caliber handgun and a backpack with a ski mask and small pry bar in it. Both men, 26 and 22, from Brockton, were arrested on the scene and charged with armed home invasion, two counts of assault and battery with a dangerous weapon, assault with a dangerous weapon, unlawful carrying of a firearm, and kidnapping while armed.

The full article can be seen here.

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March 2, 2012

Roxbury Man Fatally Shot in his Car

According to Boston Police, a man was shot Monday night around 8:54 pm while sitting in a parked car on the dangerous Homestead Street in Roxbury. Police reported that the man was sitting in the front seat and was fatally shot through his glasses.

There have been no arrest in connection with the shooting and Boston Police have not discussed a motive yet. The man, who was shot, was not known by Police and his car carried out of state plates on it.

This recent murder is the seventh in Boston in 2012, but the third in the last week. At this same time last year, there were also three murders in Boston. Aside from last night's murder, the most recent took place in Roxbury on Thursday when a 24 year old man was shot dead on Burrell Street.

The full article can be seen here.

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January 11, 2012

Armed home invasion in Newton MA

According to police in Newton, the search is on for two suspects who were involved in an armed home invasion on Monday. The Police Department arrived on the scene after hearing reports of an armed home invasion on Harvey Place in West Newton around 11:45 p.m.

After officers arrived, they discovered two females and a male in their 20's outside their home after the apparent robbery. At this point, the residents did not know if the suspects were still inside, but when police entered the home they did not find anyone.

According to the victim's statement, they heard banging and seconds later two masked men ran through the home, one carrying a semi-automatic handgun. The suspects ordered two of the residents to the ground and bound their hands, and then the third victim was taken through the house and then bound. The preliminary investigation has led police to believe that the invasion was not a random attack.

The full article can be seen here.

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January 5, 2012

Daytime shooting in Chelsea MA

A 21 year old male was shot on Broadway in Chelsea, Massachusetts, recently. Police officers responded to thee scene of the shooting at 2:44 p.m. When they arrived, they discovered a young man suffering from a gunshot wound to the torso. The man was transported to Massachusetts General Hospital with non-life threatening injuries.

According to witnesses, two gunshots went off. A Caucasian or Hispanic man wearing a green hooded jacket was seen running from the scene. In response to the shooting, the Clark Avenue Middle School was lock downed while officers canvassed the area looking for the shooter. Chelsea police are currently continuing the investigation as the perpetrator has not been located.

The full article can be seen here.

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December 7, 2011

Student brings gun into high school

A 14 year old student from the Brook Farm Media Technology School is being held in police custody without bail after he was caught carrying a loaded gun through the West Roxbury Educational Complex located on the VFW Parkway.

The incident occurred around 8:45 after, according to police, a "vigilant staff observed him entering through an unauthorized door." The staff member then confronted the student and found the loaded gun. The educational complex does contain metal detectors, but they are located at the front entrance and not the side.

Matthew Wilder, a Boston Schools spokesman released a statement saying, "the safety protocols that are in place worked and at no time were any students in immediate danger." However, many parents of students feel that the school is not as safe as it should be because every door into the school is not as secure as they could be.

The full article can be seen here.

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August 12, 2011

Woman and Teen Fatally Shot in their Roslindale Apartment

Boston Police are currently investigating the fatal shooting of a woman, 43, and a 17 year old male that took place on the morning of August 7th. The shooting, which also injured a 34 year old man, took place around 3:45 a.m. at 3964 Washington Street, near the Forest Hills MBTA stop in Roslindale. The victims were found inside a three-decker apartment building suffering from gunshot wounds.

Boston Police spokesman Eddy Chrispin reported that victims were taken to an unnamed hospital, where the woman and boy were pronounced dead, and the injured man was treated.

The triple-decker apartment building, near the Forest Hills MBTA stop has been sealed off to the public.Two witnesses, who live across the street from the building, told police that the apartment building had been hosting a loud house party, but that they were not sure which unit. Boston Police report the investigation will be ongoing.

The full article can be seen here.

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August 10, 2011

Fatal Shooting in the South End

According to a spokesman, Boston police Officer James Kennealy responded to an area of the South End near Harrison Avenue and East Berkeley Street, around 5 a.m. August 6th, because a man had been shot. The man, who was in his 30's, was pronounced dead at the scene.

Police reports detailed that a bullet hole could be seen in the first floor window of a vacant commercial space on East Berkeley Street after the shooting. The area of the shooting is not known for crime. Within walking distance of the shooting, the street is lined with a high-end loft apartment complex, upscale restaurants, yoga facilities, and the Pine Street Inn.

A witness, Kevin, 46, told police that he called 911 the morning of the shooting after hearing three shots and seeing a man running from the scene. Kevin told reporters "he is considering moving to a different part of the neighborhood," because the shooting came on the heels of a recent stabbing in the same general area.

The full article can be seen here.

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August 1, 2011

MBTA Police Catch Armed Man Evading Fare

According to MBTA officials, a 20 year old man from Chelsea is being held on bail after he was found carrying a loaded gun through an out of order MBTA gate that he was using to evade the fare. The man was stopped at the Andrew Square station by MBTA police when they discovered he was using the nonoperational gate.

Reports say that the man appeared nervous when he couldn't immediately produce identification upon request. He allegedly, "gave the officers a small crumpled up piece of paper, and fled on foot."

Police were able to track him down, force him to the floor, and handcuff him. As the officers were tackling him to the ground he reportedly reached toward the right part of his body where he had a loaded handgun. The man was charged with fare evasion, possession of a firearm, possession of ammunition, and unlawful carrying of a loaded firearm.

The full article is featured here here.

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July 29, 2011

Fatal Shooting: Man Kills Girlfriend in Dorchester

Boston police arrested Junior Ferandes of Dorchester, 22, on charges that he fatally shot a 21 year old Brockton woman. The woman, Alessa Castellon, 21, originally from Roslindale, had been dating the man who allegedly shot her.

Castellon was found dead by police at approximately 3am Sunday morning, on Granger Street. The alleged shooter, Ferandes, will be charged with murder and unlawful possession of a firearm. Castellon's father told the Boston Herald that his daughter had been dating Fernades about 6 months.

Castellon was studying criminal justice at Bunker Hill Community College, and had plans to start a new job at a Brockton auto body shop on the day of the shooting. Catellon had a 3 and a half year old son, Antonio Llamas, who is currently being raised by her grandparents.

The full article can be seen here.

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