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White wine bottle in an ice bucket, macro close up with copy space

White wine bottle in an ice bucket, macro close up with copy space

According to an article in the MetroWest Daily News, a Framingham woman who was recently arrested for operating under the influence sang to the officers that arrested her. The article states that the police reportedly found the woman sleeping in her parked car on Concord Road at 2:45am. The article describes the car as “partially obstructing traffic” and states that it was in a parking spot, but hanging out into the street by “several feet.” The police apparently knocked on the car’s windows in an attempt to rouse the woman but were unsuccessful. The police then opened the car doors and yelled at the woman to wake her up. When she did awaken, she began singing to the officers and reportedly made several sexual gestures. One of the officers asked the woman if she had taken any drugs to which she responded “I don’t know what I took, but I took something.” She also admitted to having between eight and twelve glasses of wine. It is unclear when she may have taken any substances, and/or when she drank the wine. The officers also had her perform some field sobriety tests. Although the article states that the woman reportedly failed the tests, there is no further information as to what tasks she may have performed incorrectly. The police ultimately charged the woman with driving under the influence under  G. L. c. 90, § 24, and civilly cited her for obstructing traffic.

For the Commonwealth to obtain a conviction against the woman for this offense, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that she did so on a public way; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor. As to the first element, a person “operates” a motor vehicle not only while doing all of the well-known things that drivers do as they travel on a street or highway, but also when doing any act which directly tends to set the vehicle in motion. The law is that a person is “operating” a motor vehicle whenever he or she is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle — like the gear shift or the ignition — which, alone or in sequence, will set the vehicle in motion. Continue reading →

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OLYMPUS DIGITAL CAMERA

According to an article in the MetroWest Daily News, a man involved in a car crash on Route 9 in Southborough fled the scene after he was pulled out of his smoking car. The article states that the driver rolled his car during the course of the accident and that it was resting on its side when others arrived on the scene. The passersby noticed that the car was smoking and worked together to pull the man out, breaking windows in the car to do so. When they pulled the driver out, they noticed that he was unsteady and possibly drunk. One of the passersby stated that the driver stumbled and nearly vomited after being taken from the car. He further stated that driver did not seem not understand what his rescuers were trying to do, even though his car was filling with smoke. Following the rescue, the driver reportedly “took off running into the swamp.” Police searched for the man and eventually apprehended him.

Although it’s unclear what charges will issue against the driver, it is likely that the police will seek a complaint for operating under the influence, under G. L. c. 90, § 24 given the description provided by the other individuals at the scene. For the Commonwealth to obtain a conviction against a person for this offense, it would have to prove the following beyond a reasonable doubt: (1) that the defendant operated a motor vehicle; (2) that he did so on a public way; (3) that while operating the vehicle, the defendant was under the influence of intoxicating liquor. Continue reading →

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questions-1308019According to an article in The Patriot Ledger, questions have arisen about the Braintree Police Department’s oversight of evidence held in their custody. While town officials have been relatively quiet about what is happening, the article states that the town has hired an outside investigator to conduct an audit of all evidence held by the police department. Braintree’s mayor, Joseph Sullivan, issued a short statement earlier this week in response to an inquiry from The Patriot Ledger, saying that “[t]he evidence review is active and ongoing.” The mayor further stated that upon the completion of the review, “all findings will be communicated to the Norfolk County [D]istrict [A]ttorney’s office and at the appropriate time released to the public.” The mayor made no indication as to what triggered the audit and his statement said that he would have no additional comments. Braintree’s chief of police likewise declined to provide any information, stating that he was “not in a position to elaborate.”

The article further states that the Norfolk County District Attorney is aware of the review. The DA made his own statement saying that he has “been made aware of the ongoing internal investigation at the Braintree Police Department” and that, “[a]t this time, [the DA’s] office is not involved in the internal investigation. Although the mayor, the police, and the DA’s office appear to be in the know, other town officials do not appear to be as well informed. The Patriot Ledger reached out to the town council president shortly after the mayor issued his statement and he said that he was unaware of the audit and the mayor’s statement was “the first [he’s] heard of it.” The town council president added that the council will likely have “to wait until the investigation is completed” before taking any action. Continue reading →

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stone-judge-1219357On Sunday, July 31, 2016, the Massachusetts Legislature concluded formal sessions for the 2015-2016 Legislative Session.  Although bills that require roll call votes can no longer move forward, numerous pieces of legislation remain alive and can be enacted during informal sessions until midnight on Tuesday, January 3, 2017. This can occur if the two branches agree and there is no objection raised by a member on the floor when the bill is being given a reading. This is good news for a number of bills relevant to criminal justice.  Most of the following bills have been acted on favorably by the Senate and are pending in House Way & Means Committee (HW&M). Bills that have made it through the Senate, are pending in HW&M, and are awaiting final action in the House are:

S.727 – An Act Relative to Tagging.  This bill removes the collateral consequence of loss of driver’s license upon conviction of such an offense.

S.728 – An Act Relative to Vandalism.  This bill, like the tagging bill, removes the collateral consequence of loss of driver’s license upon conviction of such an offense.

S.795 – An Act Relative to Adjusting the Credit on Days Imprisoned for Nonpayment of Fines.  This bill adjusts the credit calculated for days imprisoned for the nonpayment of a fine against the amount owed.  Existing law allows a credit of $30/day.  This legislation adjusts for inflation and increases the credit to $60/day.  Continue reading →

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jail-1211438The Supreme Judicial Court recently issued a new decision on two companion cases – Commonwealth v. Diggs and Commonwealth v. Soto. The decision addresses pre-trial detention under the dangerousness statute (G.L. c.276, §58A) and under what circumstances the Commonwealth may move for dangerousness. This statute specifically allows the Commonwealth to move for a “dangerousness hearing” where a defendant is held “under arrest” and charged with a felony that involves the use, attempted use, or threatened use of physical force as an element of the offense. During the hearing, the court must make a determination as to whether the defendant is in fact “dangerous” under the statute – i.e., that no conditions of release will reasonably assure the safety of any other person or the community. In the event that the defendant is found to be dangerous, the court may elect to release him with certain conditions. Alternatively, the court may determine that even the imposition of conditions would be insufficient to ensure the safety of another person or the community, and therefore order the defendant to be held without bail for up to 120 days.

The background as to Diggs was as follows. “[He] allegedly threatened to burn down a house [in Watertown] … while the [residents were] inside.” “[A] criminal complaint issued charging [him] with threatening to commit a crime” and the Watertown police obtained an arrest warrant. Initially, the police were unable to locate Diggs to execute the warrant. However, he came to the Commonwealth’s attention several months later, when he was being held on a probation detainer in an unrelated matter in Plymouth County. “When authorities from the … house of correction [in that county] transported Diggs to the District Court to appear for arraignment on those charges, the Commonwealth moved for pretrial detention based on dangerousness. Diggs argued that he was not subject to pretrial detention because, although he was in the custody of Plymouth County on charges of a probation violation, he had not been arrested by the Watertown police in connection with the complaint charging him with threatening to commit a crime, and thus was not ‘held under arrest’ for an enumerated offense [under §58A] at the time of his arraignment. The judge rejected Diggs’s challenge to the legality of the proceedings, conducted a dangerousness hearing pursuant to … §58A, and ordered [that] Diggs [be] held in pretrial detention without bail.” Continue reading →

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Hundred Bill CornersOn August 8, 2016, the SJC issued a decision in Commonwealth v. Henry, holding that judges must take a defendant’s ability to pay into consideration when assessing whether to order restitution, and in determining the amount of restitution that a defendant can be ordered to pay. The Court also set forth several guidelines regarding the imposition of restitution as a condition of probation.

The facts of the case are as follows. The defendant was employed as a cashier at a Walmart store. “A Walmart video camera captured [her] ‘free-bagging’ items; that is, with certain customers, she placed some store items into bags without scanning the items at the cash register, so that these customers received these items without paying for them. As a result,” the defendant was charged with larceny over $250 under G. L. c. 266 § 30. She admitted to facts sufficient to warrant a finding of guilty and was placed on administrative probation, one condition of which was the payment of restitution. At the ensuing restitution hearing, the Commonwealth presented evidence as to the retail sales price of the stolen items and as to the percentage of “markup” on items sold in the store. The defendant testified that Walmart had terminated her employment, that she had been found ineligible for unemployment benefits, and that she had no income of any kind. In his restitution order, the judge “declared that the loss is measured by the retail loss and ordered that restitution in [that] amount … be paid during the period of probation at a rate to be determined by the probation department.”

In its decision, the SJC set forth the following guidelines regarding restitution as a condition of probation. First, a judge must “consider the defendant’s ability to pay when setting the restitution amount because a judge may order restitution in a criminal case only as a condition of probation” “and a probationer cannot be found in violation for failing to pay a restitution amount that the probationer cannot reasonably afford to pay.” “Burdening a defendant with [the] risks [associated with a violation of probation] by imposing restitution that the defendant will be unable to pay violates the fundamental principle that a criminal defendant should not face additional punishment solely because of his or her poverty.” Second, the SJC “invoke[d] [its] superintendence power to declare that a judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” “An extension of the period of probation punishes a defendant” by “extending the restrictions on a defendant’s liberty arising from probation” and by “subject[ing] the probationer to additional punishment solely because of his or her poverty,” in the event that he commits a new offense during the extended probationary term. Third, “the length of probation supervision imposed at the time of sentence should not be affected by the financial means of the defendant or the ability of the defendant to pay restitution…. [Therefore,] the ability to pay determination should be made only after the judge has determined the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public.” Fourth, “[t]he monthly amount [of restitution] must be determined by the judge; it cannot be delegated to the probation department.” Fifth, the SJC defined, “for the first time,” “the legal standard for determining the defendant’s ability to pay restitution”: such payment should not impinge on the defendant’s ability “to meet minimum basic human needs such as food, shelter, and clothing for the defendant and his or her dependents.” Sixth, “in cases of retail theft, the amount of actual economic loss for purposes of restitution is the replacement value of the stolen goods unless [as in this case] the Commonwealth proves by a preponderance of the evidence that the stolen goods would otherwise have been sold, in which case the retail sales value is the better measure of actual loss.” Continue reading →

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jury-box-courtroom-29662886In July of 2015, amendments to the Massachusetts Rules of Professional Conduct took effect. The revisions covered a wide range of issues, including post-trial communications with jurors. Such commuication is specifically governed by Mass. R. Prof. C. 3.5(c). The revised rule now permits lawyers to contact jurors after their discharge without first securing leave of court (as was previously required by the old rule) so long as (i) the communication is not otherwise prohibited by law or court order, (ii) the juror has not made known to the lawyer (directly or otherwise) a desire not to communicate with the lawyer, and (iii) the communication involves no misrepresentation, coercion, duress or harassment.

In a recent case – Commonwealth v. Moore – the Supreme Judicial Court considered the application of the new rule. The SJC specifically responded to five questions reported by a Superior Court judge concerning the effect of the 2015 amendment to Rule 3.5(c), and whether it overruled certain holdings from prior case law governing the issue of post-trial communications with jurors, names Commonwealth v. Fidler, 377 Mass. 192 (1979). In Fidler, the SJC specifically announced the rule that required all “post-verdict contact with and interviews of jurors by attorneys to occur under court supervision and direction, and to be permissible ‘only if the court [were to find] some suggestion that there were extraneous matters in the jury’s deliberations…. [C]ounsel, litigants, and those acting for them [were prohibited from] independently contact[ing] jurors after a verdict [was] rendered.”

The facts of Moore are as follows: the defendant had a trial by jury in 2012 and was convicted of four offenses, including first-degree murder.  During the course of the trial, issues regarding possible exposure of the jurors to extraneous influences arose. In 2015, two weeks after the effective date of the amendment to Rule 3.5(c), Moore’s appellate attorney communicated by mail with the jurors who had deliberated at Moore’s trial. “[T]he Commonwealth [then] filed an emergency motion for judicial intervention to prohibit post-conviction inquiry of the jury.” After a hearing, the judge reported to the Appeals Court the five questions at issue here.

The five reported questions and the SJC’s responses to them were as follows. Question 1: “‘In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?’” SJC’s response: “[W]e answer the first reported question in the affirmative: by adopting rule 3.5 (c), we effectively overruled our rule, first stated in Fidler, that prohibited attorney-initiated, post-verdict contact of and communications with jurors free from court oversight…. To the extent that the Fidler rule operated to define a manner of contact and communication with jurors post-verdict that was ‘prohibited by law’ before the adoption of rule 3.5 (c), the latter effectively superseded the Fidler rule and the prohibition against unsupervised, post-verdict attorney communication that the Fidler rule had imposed. This is not to say, however, that rule 3.5 (c) implicitly overruled this court’s opinion in Fidler in its entirety, a point that leads us to the second reported question.” Continue reading →

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old-car-door-handle-1412625According to an article in the MetroWest Daily News, a Framingham man was recently arrested in relation to an alleged road rage incident. The article states that the defendant believed that the alleged victim cut him off on Route 9 and that the defendant then began to follow the alleged victim, reportedly beeping his horn and tailgating. According to the alleged victim, the defendant exited his car at an intersection, approached the alleged victim’s car, and pulled the door open. The police apparently saw the defendant exit the car to “confront” the alleged victim. There is no indication, however, that that the police observed him yelling, opening the alleged victim’s door, or that the door was in fact open. The police did, however, observe the alleged victim’s car door handle in the defendant’s hand – the defendant indicated that it had fallen off. The defendant was subsequently arrested for assault, under G. L. c. 265, § 13A, and vandalizing property, under G. L. 266, § 126A.

An assault may be committed in one of two ways. It is either an attempted battery or an immediately threatened battery. A battery is a harmful or an unpermitted touching of another person, so an assault can be either an attempt to use some degree of physical force on another person, or it can be a demonstration of an apparent intent to use immediate force on another person. In this case, the defendant did not attempt to commit a battery, therefore the Commonwealth would have to proceed on the immediately threatened battery theory. For the Commonwealth to obtain a conviction for assault under this theory, it would have to prove the following beyond a reasonable doubt: (1) that the defendant intended to put the alleged victim in fear of an imminent battery; and (2) engaged in some conduct toward the alleged victim which the alleged victim reasonably perceived as imminently threatening a battery.

For the Commonwealth to obtain a conviction for vandalizing property, it would have to prove the following beyond a reasonable doubt: (1) that the defendant destroyed property; (2) that he did so intentionally; (3) that he did so willfully with malice, or wantonly; and (4) that the property was owned or possessed by someone other than the defendant. As to the second element, the Commonwealth must prove the defendant acted consciously and deliberately, rather than by accident or as the result of negligence. As to the third element, the Commonwealth must prove that the defendant acted willfully with malice, or wantonly.

A person acts willfully if he intends both the conduct and its harmful consequences. The act must be done with the intent that it have harmful consequences. A person acts with malice when acting out of cruelty, hostility, or revenge. To act with malice, one must act not only deliberately, but out of hostility toward the owner or person in possession of the property whoever that may be. A person acts wantonly by acting recklessly or with indifference to the fact that his conduct would probably cause substantial injury to, or destruction of, another’s property. The Commonwealth must prove that the defendant consciously disregarded, or was indifferent to, an immediate danger of substantial harm to another’s property. It is not enough for the Commonwealth to prove that the defendant acted negligently — that is, acted in a way that a reasonably careful person would not. Continue reading →

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leaf-on-the-pavement-1563587According to an article in the MetroWest Daily News, a Framingham man stole a $600 leaf blower this past month. The article states that at approximately 12:45pm on a recent Monday, the alleged victim called the police and reported that a man had just stolen his leaf blower. He indicated that the item was taken from his front yard, located on Swanson Street. According to the alleged victim, the man who took the leaf blower then drove of off in a U-Haul. Police responded to the area, located a U-Haul truck matching the alleged victim’s description, and pulled over the driver. The driver, who was later identified as the defendant in this case, denied stealing the item and told officers that he believed that the leaf blower was his. The defendant was subsequently charged with larceny over $250 and driving with a suspended license.

For the Commonwealth to obtain a conviction against the defendant for larceny over $250, under G. L. c. 266, § 30, it would have to prove the following beyond a reasonable doubt: (1) that the defendant took and carried away property; (2) that the property was owned or possessed by someone other than the defendant; (3) that the defendant did so with the intent to deprive that person of the property permanently; and (4) that the value of the property exceeded $250. An honest and reasonable belief that the property belonged to the defendant is a legitimate defense to the charges. Specifically, if the defendant took the leaf blower in an honest and reasonable belief that he had a legal right to it, then he cannot be convicted of the charge (even if that belief was in fact mistaken) because he lacked the intent to steal. Continue reading →

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gun-wrist-1193474The Supreme Judicial Court recently issued a decision – Commonwealth v. Beal – striking down a portion of the Armed Career Criminal Act  (ACCA).  The ACCA allows for sentencing enhancements for a defendant charged with possession of a firearm under G. L. c. 269, § 10(a), 10(c), or 10(h) if the defendant has previously been convicted of two (1) violent crimes; or (2) drug distribution crimes. A first time violation under the Act carries a minimum mandatory sentence of three years.  A second time violation carries a minimum mandatory sentence of ten years.  A third time violation carries a minimum mandatory sentence of fifteen years.  The SJC’s decision specficially addresses what constitutes a violent crime under the statute.

The facts of the case were as follows: the defendant initially fired two gunshots at a group of people standing on the porch of a house. Two of those people, brothers Joao and Ovidio Pereira, “ran to the back of the house with the defendant chasing after them…. They [then] ran back to the front porch where the defendant … fired several more shots at them. One bullet struck Joao in the lower back,” rendering him “unable to walk without the use of crutches and braces on his legs.” The defendant was convicted of unlawful possession of a firearm; carrying a loaded firearm; unlawful possession of ammunition; assault and battery by means of a dangerous weapon causing serious bodily injury to Joao; and assault by means of a dangerous weapon against Joao and, in a separate count, against Ovidio.  “The indictments charging unlawful possession of a firearm also alleged that the defendant previously had been convicted of two violent crimes and thus was subject to enhanced penalties” under the ACCA.  In a separate trial regarding that matter, the defendant was found guilty on the basis of certified copies of convictions “of assault and battery upon a public employee and assault and battery.” On appeal, the defendant argued that the Commonwealth had failed to establish that both prior offenses constituted ‘violent crimes’ within the meaning of the Act.

In its decision, the SJC noted that under the ACCA, “a ‘violent crime’ is [as defined in G.L. c.140, §121] ‘any crime punishable by imprisonment for a term exceeding one year … that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another [force clause]; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another [residual clause].’” The Court further noted that the Massachusetts ACCA was essentially similar to the Federal ACCA, whose residual clause had recently been struck down, in Johnson v. United States, 135 S.Ct. 2551 (2015), as unconstitutionally vague. The SJC followed suit, striking down the residual clause of the Massachusetts ACCA as unconstitutionally vague. Continue reading →