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various-abusive-drugs-1194951-300x225In Commonwealth v. Eldred, the Supreme Judicial Court affirmed the revocation of the defendant’s probation and concluded (1) that “a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation”; and (2) that where a defendant has violated that condition, the judge has the authority, pending the final probation violation hearing, to detain the defendant while she awaits admission into inpatient treatment “for the safety of the defendant and the community.”

The background was as follows. Charged with the theft of jewelry, “[t]he defendant admitted to the police that she had stolen the jewelry and had sold it to obtain money to support her heroin addiction.” Subsequently, she admitted to sufficient facts to warrant a finding of guilt. The District Court judge “continued the defendant’s case without a finding, and imposed a one-year term of probation with special conditions related to her substance abuse that included requiring her to remain drug free, submit to random drug screens, and attend outpatient substance abuse treatment three times each week.” “[O]nly eleven days after … the probation had been imposed, the defendant tested positive for fentanyl, following a random drug test administered by her probation officer…. The … officer then filed a ‘Notice of Probation Detention Hearing’ with the District Court,” seeking to hold the defendant in custody pending a probation revocation hearing to determine whether her probation should be revoked.

At “the detention hearing, the judge … determined that there was probable cause to believe the defendant had violated the ‘drug free’ condition of her probation by using fentanyl. Because defense counsel was not able to secure a placement for the defendant at an inpatient treatment facility [that day], the judge ordered that the defendant be held in custody until a placement became available. The defendant was released into an inpatient treatment facility after ten days in custody.” Two months later, “a different District Court judge presided over the defendant’s probation violation hearing. Despite conceding that she had used fentanyl, the defendant contested that she had violated the terms of her probation.” She contended that because “she had been diagnosed with SUD [substance use disorder, i.e., addiction],” she was “incapable of remaining drug free,” such that “her use of drugs could not constitute a wilful violation of her probationary condition to remain drug free…. The judge determined that the defendant had violated the drug free condition of her probation by testing positive for fentanyl. The defendant filed a motion to vacate the condition of probation requiring her to stay drug free, arguing that the condition violated various State and Federal constitutional rights. That motion was denied. The judge then modified the conditions of the defendant’s probation by adding the condition that she continue inpatient treatment.” The defendant appealed. Continue reading →

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speeding-ticket-2-2-1198851-300x199In Commonwealth v. O’Leary, the Supreme Judicial Court affirmed the dismissal of the indictments charging the defendant with various motor vehicle offenses because the police did not comply with the requirements for issuance of citations set forth in the so-called “no-fix” statute (G.L. c.90C, §2).

The background was as follows. The “no-fix” statute provides that a police officer responding to an automobile law violation should prepare a citation and give it to the violator as promptly as possible. Under the statute, “[a] failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure. In such case the violation shall be recorded upon a citation as soon as possible after such violation.” In this case, state trooper Gray “responded to an accident on a highway off-ramp. Gray arrived to find that a single vehicle had rolled over.” The driver of the vehicle (the defendant) and a passenger (Murphy) had been injured in the accident. The defendant and Murphy were transported to a hospital. “Gray followed the ambulances to the hospital to interview the defendant and Murphy…. [T]he defendant admitted [to Gray] … that he had had ‘a couple of beers.’ The defendant’s ‘eyes were glassy’ and ‘his speech was slurred.’ At the time of the accident, the defendant was on probation for operating a motor vehicle while under the influence of alcohol (OUI), subsequent offense. His license had been suspended, and he was not legally permitted to drive. Gray informed the defendant that he would be receiving a summons in the mail for OUI, a marked lanes violation, and operating with a suspended or revoked license. Gray did not issue a citation at that time. [He] later submitted his investigation report to his supervisor, who approved the report nine days later…. On that day, Gray issued citations” and mailed them to the defendant. “A Superior Court judge granted the defendant’s motion to dismiss on the ground that Gray had failed to issue a citation ‘at the time and place of the violation,’ as required under §2, and because the Commonwealth did not meet its burden of demonstrating that an exception in §2 applied.” The Commonwealth appealed.

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gavel-2-1236453-300x200The Supreme Judicial Court reversed the defendant’s convictions of first-degree murder and a related offense in Commonwealth v. Combs.  The Court based its decision on the ground that the evidence was insufficient to prove that the victim, whose body was discovered in Connecticut, was killed in Massachusetts.

The background was as follows. The Commonwealth’s theory was that the defendant acted as part of a joint venture with a person named Manny to rob and murder the victim. There was evidence that at 10:20 a.m. on January 22, 2010, the victim, who was driving a white SUV, picked up Manny from his place of work in Hartford, Connecticut. “Both men sold cocaine, and they had arranged a drug deal. The plan also involved the defendant,” an acquaintance of Manny. The victim and Manny drove to the Springfield apartment of the defendant’s girl friend (where the defendant often stayed), arriving sometime shortly before 11:00 a.m. “The jury could reasonably infer that the victim was alive when [the SUV] arrived at the Springfield apartment.” A neighbor “saw the defendant in the front yard, signaling to Manny to drive the SUV over the grass on the side of the [building] and around to the back yard…. [The neighbor] witnessed Manny step out of the vehicle and show the defendant something in the back seat…. [Manny and the defendant] appeared ‘excited.’” “After spending approximately thirty minutes … at the apartment, at around 11:40 a.m., Manny and the defendant began driving back toward Hartford. It is not clear whether the victim was alive at this time. Manny traveled in the victim’s SUV, presumably with the victim or the victim’s body, while the defendant followed them in his mother’s Pontiac Grand Prix automobile.” Shortly after noon, the men were in the Bloomfield, Connecticut, area. Continue reading →

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questions-1151886-300x225In Commonwealth v. D.M., the Supreme Judicial Court reversed the single justice’s denial of the Commonwealth’s petition for relief from an interlocutory order of the Juvenile Court, requiring the Commonwealth to reveal the identity of an informant.

The background was as follows. “Acting on information provided by a confidential informant, the Boston police apprehended, searched, and arrested the juvenile, D.M., on firearm-related charges. Before a hearing on the motion to suppress in the Juvenile Court, the juvenile sought an order requiring the Commonwealth to disclose the identity of its informant and other related information. The Commonwealth asserted that it was privileged not to disclose the information, … because disclosure would jeopardize the informant’s safety. It averred that the informant was not a percipient witness to the juvenile’s arrest, and that the juvenile had not met his burden of demonstrating that disclosure was required…. [T]he judge allowed the juvenile’s motion. The judge determined that … the juvenile adequately had challenged the assertion of the privilege on the ground that it interfered with his right to present a defense…. The judge concluded that the ‘informant’s identity and concomitant information are sufficiently “relevant and helpful to the defense of an accused” that it must be disclosed.’ [Commonwealthv. Bonnett, 472 Mass. 827,] 847 [2015], quoting Commonwealthv. Dias, 451 Mass. 463, 468 (2008). The Commonwealth thereafter filed a G.L. c.211, §3 petition …, seeking reversal of the interlocutory ruling…. The single justice denied the petition, and the Commonwealth appeal[ed].” Continue reading →

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money-stack-1423986-300x222In Commonwealth v. Vallejo, the Supreme Judicial Court vacated the judge’s order requiring that the defendant pay restitution because the judge’s findings were inadequate as to whether the defendant had sufficient resources to fulfill that obligation.

The background was as follows. “The defendant … admitted to facts sufficient for a finding of guilty of operating a motor vehicle while under the influence of intoxicating liquor…. Her operator’s license was suspended, and she received a continuance without a finding for one year, with probationary conditions including payment of $140 in restitution. The defendant appealed, claiming In its decision, the SJC “conclude[d] that the judge failed to make adequate findings to support an order of restitution.” The Court stated, “Before any such order may be entered, … ‘the judge must determine the amount the defendant is able to pay.’…. Commonwealthv. Henry, 475 Mass. 117, 121 [] (2016).” Continue reading →

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what-s-that-1527433-300x264In Commonwealth v. Monteiro, the Appeals Court reversed the suppression of items seized by the police from the defendant’s apartment because the judge erroneously ruled that “the information provided by a first-time, confidential police informant (CI) was [not] sufficiently corroborated by a single, imperfectly executed controlled ‘buy’ of cocaine for the purposes of establishing probable cause [in the affidavit in support of an application for] a warrant to search the defendant’s apartment.”

The basic facts were as follows. A police detective (Gracia) spoke with a first-time CI, who reported that he regularly purchased cocaine from the defendant. Gracia and the CI met “to arrange a controlled buy of cocaine from the defendant. The CI was searched and determined to be free of contraband and money…. Gracia then gave the CI money to purchase cocaine from the defendant…. Gracia and other [officers] maintained surveillance of the CI. They observed the CI walking toward the rear exterior door of the defendant’s apartment building. A short time later, the CI was seen leaving the walkway [outside of] the rear exterior door. The defendant was not observed entering or exiting the apartment building through the rear exterior door. The CI was kept under surveillance until [he] met … Gracia at a predetermined location where the CI provided … Gracia with a quantity of what” was later determined to be cocaine. “The CI stated that [he] purchased the cocaine from the defendant inside [the latter’s] first-floor apartment. The CI was again searched and determined to be free of money and contraband.” Based on the controlled buy, Gracia procured a warrant to search the defendant’s apartment. During the search, the police found drugs and drug paraphernalia, which led to the return of an indictment charging the defendant with trafficking in cocaine. The defendant filed a motion to suppress the seized items on the basis that the police affidavit in support of the application for a warrant did not establish probable cause. The judge allowed the motion, on the ground that under the AguilarSpinelli test, the affidavit failed to establish the CI’s veracity. The Commonwealth appealed. Continue reading →

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questions-1151886-300x225The Supreme Judicial Court affirmed the defendant’s conviction of first-degree murder in Commonwealth v. Gardner, despite the fact that the prosecutor questioned the defendant about his pre-arrest silence at trial.  In the ruling, the Court stated that although the prosecutor’s questions and comments concerning the defendant’s pre-arrest silence were improper, the errors did not create a substantial likelihood of a miscarriage of justice.

The background was as follows. On November 5, 2011, the defendant and the victim “met to conduct a drug transaction at a house in New Bedford…. Four days later, … the police found the victim’s body … hidden beneath the basement stairs of that house. The police also found … a trash bag outside the house that contained clothing and a hammer bearing both the victim’s and the defendant’s blood. Further investigation showed that the victim had died of blunt force trauma to the head.” On November 9, police officers in Fairfield, Connecticut, “learned that the victim’s Honda Civic was at a rest area off of Interstate Route 95. When the first officer arrived, she observed … the defendant sitting in the driver’s seat” of the Honda. “When the defendant saw the police cruiser, he fled in the [Honda], reaching speeds in excess of one hundred miles per hour…. [He] eventually lost control of the vehicle, abandoning it in a wooded area.” Officers arrested the defendant and transported him to a police station in Fairfield, where he was questioned by a Massachusetts state trooper and a New Bedford police detective. “The interview was recorded and later shown to the jury at trial…. [The defendant told the officers] that he was traveling with a ‘buddy’ who was going to Florida.” The defendant said that “[e]n route, they pulled off at the Fairfield rest stop, where they remained for two days. The defendant said that his friend had been inside a restaurant at the rest stop when the police cruiser had appeared…. After some prompting, the defendant indicated that the person he had been traveling with was the victim.” At trial, the defendant testified that he “killed the victim with the hammer that the police had found, but claimed that he had acted in self-defense.” He stated that the victim had punched him after the two had argued over the amount of money owed by the defendant for his purchase of heroin. “[T]he prosecutor repeatedly cross-examined the defendant about his failure to contact the police during the period between the victim’s death on November 5, 2011, and his arrest on November 9, 2011.” On appeal, the defendant argued that the prosecutor’s cross-examination and subsequent comments in closing argument regarding the defendant’s pre-arrest silence violated his rights under the common law and art. 12 of the Massachusetts Declaration of Rights. Continue reading →

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gavel-1238036-300x201In Commonwealth v. Wimer, the Supreme Judicial Court ruled that the defendant did not have to register as a sex offender because his two convictions for sex offenses – specifically, two convictions for open and gross lewdness – were adjudicated during the same proceeding, such that he did not have a “second and subsequent” conviction (a prerequisite for imposition of the registration requirement under G.L. c.6, §178C).

The background was as follows. “[T]he defendant pleaded guilty to two counts of open and gross lewdness, in violation of G.L. c.272, §16. The charges arose from two incidents in which the defendant masturbated in front of his girl friend’s nine year old daughter. The defendant’s sentence on the second conviction included an order to register as a sex offender pursuant to G.L. c.6, §178C, which requires such registration upon a ‘second and subsequent adjudication or conviction of open and gross lewdness.’” Subsequently, the defendant challenged the registration requirement by filing in the trial court a motion to correct an illegal sentence, pursuant to Mass.R.Crim.P. 30(a). The judge denied the motion. On appeal, the defendant “argu[ed] that, as [his] two convictions were adjudicated during the same proceeding, he did not have a ‘second and subsequent’ conviction as required by §178C and, thus, he was not required to register as a sex offender.” Continue reading →

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cell-phone-tower-3-1236272In a recent decision – Carpenter v. United States – the United States Supreme Court ruled that under the Fourth Amendment, the government must obtain a warrant supported by probable cause in order to procure from a telecommunication company the historical cell-site location information (CSLI) for a cellular telephone.

The background was as follows. In 2011, police officers investigating a series of robberies applied for court orders under the Stored Communications Act [18 U.S.C. §2703(d)] to obtain historical CSLI for petitioner Carpenter’s cellular telephone. “That statute … permits the Government to compel the disclosure of certain telecommunications records when it ‘offers specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.’…. Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers — MetroPCS and Sprint — to disclose” the requested CSLI for “the four-month period when the string of robberies occurred.” The first order produced cell-site records from MetroPCS spanning 127 days. The second order produced two days of records from Sprint. “Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements — an average of 101 data points per day.” The CSLI “placed Carpenter’s phone near four of the charged robberies.” “Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence…. Prior to trial, [he] moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion.” At Carpenter’s trial, the government presented the CSLI to the jury. “Carpenter was convicted on all but one of the firearm counts.” The Sixth Circuit affirmed the convictions, holding “that Carpenter lacked a reasonable expectation of privacy in the [CSLI] … because he had [voluntarily] shared that information with his wireless carriers.” Carpenter sought certiorari. Continue reading →

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gavel-2-1236453-300x200In Commonwealth v. Crayton, the Appeals Court reversed the defendant’s convictions of possession of child pornography because the judge erroneously “deprived [the defendant] of eight peremptory challenges to which he was entitled during the first phase of the [bifurcated] trial.”

The background was as follows. A “grand jury returned two indictments charging the defendant … with possession of child pornography…. [Because] [h]e was charged as a subsequent offender …, he faced imprisonment for ‘not less than five years.’ G.L. c.272, §29C(vii).” “At the beginning of the first phase of the trial, the defendant requested twelve peremptory challenges, or more, depending on the number of jurors seated. Although the Commonwealth agreed that the defendant was entitled to additional peremptory challenges, the judge nonetheless denied the request and allotted each side six peremptory challenges for a jury of fourteen (twelve plus two alternates). The defendant objected and renewed his objection during the empanelment process when, after having exercised five peremptory challenges, he sought additional challenges to exclude Jurors 50, 61, and 48. [Defense] counsel’s reasons for wanting to exclude these three jurors were as follows. Juror 50, a Baptist minister, hesitated when asked whether he would be willing to look at the evidence in order to decide whether it constituted pornography…. Juror 61 worked” as a university librarian, which was of concern to counsel because the charged “offenses allegedly occurred in a library…. Lastly, as to Juror 48, … counsel observed that the juror’s brother was a law enforcement officer and, although Juror 48 ultimately stated that he would not believe a police officer over another witness, he also stated that he trusted his brother…. [C]ounsel … [stated] that she would exclude all three jurors if she could. The defendant then used his sixth and last peremptory challenge to remove Juror 50, the Baptist minister. Jurors 61 and 48 remained seated. When the judge asked the parties whether they were content with the jury, … counsel stated, ‘I don’t have any more challenges’” and “requested extra challenges.”

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