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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 17, 2014

Massachusetts High Court Examines Statute Permitting Defendants to Seek Post-Conviction DNA Testing

Last week, the Massachusetts Supreme Judicial Court (SJC) issued its opinion in Commonwealth v. Wade relative to the standards applicable to M.G.L. c. 278A, a statute enacted in 2012 that provides convicted and incarcerated defendants access to forensic and scientific analysis of evidence used to convict them. The statute's purpose was "to remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques."

In Wade, the defendant was convicted in 1997 of first-degree murder on a theory of felony-murder and aggravated rape. The defendant was accused of raping the 83-year-old victim who suffered from Alzheimer's disease, and who lived on the farm where the defendant worked. The victim was allegedly found naked on the defendant's bed on the property with injuries, which later led to complications and eventually her death. Evidence found on the victim and her clothing showed the presence of semen and sperm, but neither the defendant nor the Commonwealth sought DNA testing of the evidence. Since at least 2002, the defendant has been attempting to obtain DNA testing of the physical evidence against him, with the belief that it will exonerate him of the crimes for which he has been convicted. Each such attempt has been unsuccessful.

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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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May 29, 2013

DNA errors not enough to overturn Conviction

Last week, the Supreme Judicial Court of Massachusetts affirmed a first-degree murder conviction. The ruling was confirmed in spite of a recent finding that, during the original trial Superior Court Judge David A. Lowy made an error in regards to DNA.

In the trial, the Superior Court Judge made an error when he failed to strike a prosecution witness's nonresponsive answer, which was given in response to a question about the meaning of "inconclusive" DNA test results.

During the appeal, Defendant Christian Almonte argued that a violation of due process occurred because a DNA analyst for the Commonwealth testified about the results of DNA testing by saying that the results "could king of go either way as far as [the victim's DNA] being there. Although the Supreme Court agreed that this comment could be seen as confusing and should have been stricken, they did not think that allowing the comment to stay on the record had created a substantial likelihood that justice would be miscarried. In addition, the SJC felt that the analyst's testimony was cumulative, and consisted of other evidence given to the jury that did indicate the presence of the victim's DNA on the defendants sock as well as the hood of his jacket.

The SJC also found it improper that during the closing arguments the prosecutor told the jury that the victim was the only tested person who couldn't be excluded when the blood on the defendant's hands went through DNA testing. In explaining this finding, the SJC noted that one may not introduce as evidence the fact that a particular person was not excluded as a potential contributor unless there is statistical evidence which explains why it the likelihood that the other individuals in the given population also couldn't be excluded. This type of evidence was not introduced.

However, the SJC still did not feel that this remark, to which the defendant's counsel did not object, created a substantial likelihood that justice was miscarried. This is because the remark was only made once during a comprehensive closing argument, and the jury was instructed by the Judge that closing arguments are not evidence, and that they must decide the case based solely on the evidence. Therefore, the evidence controlled the collective memory of the jurors. In addition, there was very strong evidence to indicate that the defendant had killed the victim, as well as proper evidence linking the victim to DNA samples from the defendant's sock and jacket hood, making the prosecutor's statement cumulative.

Commonwealth v. Almonte

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

January 10, 2013

Supreme Judicial Court Upholds Superior Court's Dismissal of Murder Indictment

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.

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

November 9, 2012

Reindictment of Defendant not Barred by Double Jeopardy - Boston Criminal Defense Attorneys Parker Scheer

After a social occasion turned ugly, Ryan Marshall, along with some friends, beat up the victim, who later died as a result. Though Marshall's indictment alleged that he acted before the commission of the felony, at the trial, the judge instructed the jury that Marshall could be convicted if he aided in the commission of the murder of the victim, which was a felony.
On appeal, Marshall's conviction was reversed. Although the evidence at trial was sufficient to establish that the defendant had participated in the murderous assault, the evidence did not establish that Marshall had done any act before the assault.

When a grand jury re-indicted Marshall, Marshall moved to dismiss the indictment arguing that, because "murder is a form or a 'species' of lesser included offense to accessory before the fact to murder," a second prosecution was barred by double jeopardy.

"In general, a crime must be proved as charged and must be charged as proved." K.B. Smith, Criminal Practice and Procedure, supra at ยง 15.40, at 872. Although the proof of liability at trial, and the jury instructions that accompanied it, would have sufficed if the defendant had been indicted simply for the murder itself, they were at variance with the wording of the indictment. Nevertheless these errors were not fatal, and the court's prior decision holding them in error did not erect a double jeopardy bar to subsequent prosecution for the crime proved at the first trial. The Supreme Judicial Court remands the case for further proceedings. Ryan Marshall v. Commonwealth.


"If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers."

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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September 14, 2011

Three Men Killed in Waltham Apartment Building

Around 2:25 p.m. on Monday September 12, Waltham Police responded to a Harding Street apartment where three men had been killed, though the manner of death has not been disclosed. A preliminary police investigation has indicated that the killing was not a random act and that the assailants knew the victims.

A witness told news reports that they saw a girl running out of the apartment screaming, "blood everywhere" and that marijuana was covering the bodies. The Middlesex district attorney's office has not confirmed, however, that drugs played a part in the death.

The DA's office is currently investigating and searching for two suspects who were at the apartment during the time of the murder. The house, which was in a largely residential area, was being rented by the victims. Waltham police told reporters there had been two other murders in the city within the last year.

The full article can be seen here.

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July 27, 2011

Man and woman shot to death inside Hyde Park Home

A woman and men from Hyde Park were shot to death this morning inside their home. Their small child was left unharmed. The identities of the victims were not released, but according to reports they were both in their 20's. The child is between the ages of 3 and 4.

Boston Police spokeswoman, Elaine Driscoll, reported that retired Boston police detective, William Kee, told reporters that one of the victims was his daughter. Driscoll told reporters that the couple was pronounced dead due to multiple gunshot wounds.

Boston police will not release the identities of the victims until further into their investigations, which is ongoing. The motives for the shooting unknown, but Driscoll reported the evidence gathered so far points to the shooting as a targeted act of violence.

The full article can be seen here.

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May 11, 2011

Teen Shot and Killed at MBTA Station

A young man was shot and killed on Saturday afternoon during a reported fight that took place on the platform of the Savin Hill MBTA Station in Dorchester, Massachusetts. According the Deputy Transit Police Chief Lewis Best, a fight broke out among several men around 2:50 p.m. During the fight a 19 year old man was shot and then transported to the Boston Medical Center, where he was pronounced dead.

According to Best, the investigation and witness interviews led police to a home only 2 blocks away from the station on 49 Savin Hill Ave. When the police arrived at the home they seized the home, and at least four men were brought out, handcuffed, and placed in the back of Boston Police cruisers. The four men have not been arrested or charged at this time but will be questioned and may possibly be witnesses.

After the shooting, over a dozen witnesses were brought on an MBTA bus to the police station were officers interviewed them. Best speculated that the shooting did not appear to be a random act, but could not report on a motive. Boston Police have swarmed the normally peaceful Savin Hill section of Dorchester with many high ranking officers, as well as homicide detectives from the Boston Police Department.

The full article is featured here .

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May 4, 2011

Lowell Man Accused of Murdering his Wife with Mallet

A Lowell man, 62, has been accused of attacking and killing his wife with a mallet. The suspect, The Tran, has been charged with the murder of his wife, 60, and assault and battery with a dangerous weapon. Lowell police received reports of an potentially seriously injured woman at a nearby home.

After he reportedly murdered his wife, Tran attempted suicide before Lowell police arrived. The victim, Son Tran, was the mother of four children and was pronounced dead at the scene. Before he appeared in court The Tran was examined by the court psychiatrist Joyce A. Perrota and was deemed a danger to himself and suffering from possible mental health issues.

Middlesex District Attorney Gerald T. Leone, Jr. called the death a "tragic domestic violence homicide where the defendant was abusive and controlling over his wife, and ultimately bludgeoned her to death in their home." Tran is being held without bail while he undergoes a complete psychiatric evaluation.

The full article can be seen here.

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February 21, 2011

Man Stabbed and Killed in Springfield, MA

It might be surprising to some but Springfield MA ranks as the most unsafe cities in Massachusetts and number 55 on the list of most unsafe cities in America, according to the National City crime index. In 2006 it rose as high as number 40 on the national list of most unsafe cities in America. In terms of crime, Springfield had over 3 times the national average when it came to all violent crimes, and over 3 and a half times the national average in aggravated assaults.

These statistics turned real in late February when it was announced that 45 year old Joel Echols of Springfield had died in an area hospital after a late night altercation with his live in companion, 41 year old Beverly Caldwell. "Apparently, there was a domestic disturbance involving the victim and his girlfriend," said Springfield Police Lieutenant Robert Moynihan.

The police responded to Echols home and found him suffering from multiple stab wounds. Echols was rushed to Baystate Medical Center in Springfield where he was pronounced dead. Beverly Caldwell, Echols girlfriend will be represented by a Massachusetts criminal defense lawyer, as she is the lead suspect in the case. Caldwell is scheduled to be arraigned at the Springfield District Court on February 22. Neighbors where surprised to hear about the murder and claimed that the street is very quiet and safe.

The full article is featured in the Boston Globe: Man fatally stabbed in Springfield; woman charged

Attorney Tofani, of counsel to Parker|Scheer, LLP and an associate of the firm's criminal practice group, reflects:

This case will include, among other things, a couple interesting evidentiary issues. More specifically, the admissibility of the alleged statement made by the Defendant's wife, who presumably passed away shortly thereafter declaring: "you can't even shoot." At first glance, this statement appears to be precluded from being entered into evidence to prove its truth because the Defendant's wife is not available to testify, under oath and subject to cross-examination.

As a starting point, "hearsay" is generally prohibited from being entered into evidence for the fact finders' (judge or jury) consideration. Essentially, hearsay can be defined as: an out-of-court statement, offered by either the prosecution or the defense, to prove the truth of the matter asserted.
But, given unique nature of homicide cases, an exception to the rule against hearsay has evolved allowing out-of-court statements, offered to prove their truth, when a victim is not available to testify at court. This exception to the rule against hearsay applies when the declarant, person making the statement, made the statement while believing that their death was imminent; who died shortly thereafter; and, the statement was in regards to the cause of or circumstances of what the declarant believed to be impending death. Accordingly, this statement may be admissible under the foregoing exception to the rule against hearsay.

Mr. McCall allegedly made a number of additional statements to the police upon their arrival at the scene. Mr. McCall's Criminal Defense Attorney may challenge the alleged statements pursuant to constitutionally guaranteed rights against self incrimination and right to counsel, pursuant to the Fifth and Sixth Amendments to the United States Constitution. The success of this challenge may turn on whether the totality of the circumstances indicate whether Mr. McCall was already arrested and whether he made the alleged statements voluntarily.

A major hurdle that Mr. McCall's Criminal Defense Attorney will likely face, is the fact that his statements likely fall under a non-hearsay category, generally accepted as evidence, if relevant, and referred to as admissions by a party opponent. To fall within this acceptable category, that is not considered to be hearsay, the statement merely has to be allegedly made by the Defendant, and presented as evidence against him by the Prosecution.


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November 5, 2010

Three Suspects in Murder of Pizza Deliveryman Indicted

The three suspects in the September killing of pizza deliveryman Richel Nova have been indicted by a Suffolk County grand jury. Alexander Gallett, 18, of Hyde Park , Michel St. Jean, 20, of Hyde Park, and Gallet's girlfriend, Yamiley Mathurin, 17, of Mattapan were to be arraigned November 3, 2010 in Suffolk Superior Court. The three face charges of murder, armed robbery and breaking and entering.

The stabbing death of Nova was one of the most brutal and random acts of violence in the area in recent history. Nova was lured to a vacant home and killed for nothing more than a small amount of money and some pizza, and those who know him have said that he was a good and hardworking person. This case has been heavily covered by the media and has become an illustration of what happens when individuals have no regard for human life. It's safe to say that these three suspects can expect to be prosecuted aggressively.

The Boston Globe: 3 suspects in deliveryman's death indicted

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October 21, 2010

Roxbury Man Sentenced to Life for Bus Stop Shooting

On October 19, 2010, Xzeniyeju Chukwuezia, 19-year-old Roxbury man, was sentenced to life in prison for the shooting murder of a 15-year-old boy who was eating a honey bun while waiting for his school bus. The shooting occurred on May 7, 2009 in Roxbury near the corner of Adams and Dudley streets. The incident was caught on surveillance video, and several witnesses put Chukwuezia at the scene, according to the Globe. Police said that Chukwuezia was a well-known gang member and that the shooting was likely gang-related.

Gang violence is a serious and ever-increasing problem in Boston and surrounding areas. It is sad but true that shootings like this are on the rise. No matter how gruesome a killing is, however, defendants are presumed innocent. It is crucial to our freedom that the prosecution be required to prove its case, and that's why defense attorneys play such an important role in society.

The Boston Globe: Roxbury man sentenced to life in prison for killing teen at bus stop

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October 21, 2010

New Bedford Man Arrested After Fatal Stabbing Outside of Church

Jonathan Keith Niemic, a 22-year-old New Bedford man, was arrested on charges that he stabbed 34-year-old Michael Correia of Fairhaven to death outside of a New Bedford church. Police responded to a 911 call to find Correia with serious injuries. He later died at St. Luke's Hospital. Niemic will be arraigned October 21, 2010 in New Bedford District Court.

A murder charge is extremely serious. A person convicted of murder is typically given a life sentence or even the death penalty.

The Boston Globe: New Bedford man fatally stabbed outside church

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