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jewelery-in-a-store-window-1427243-300x200In Commonwealth v. Carlson, the Appeals Court reversed the defendant’s conviction because the judge erred in denying the defendant’s motion to suppress evidence of “the single-photograph identification procedure [employed by the police, which] violated the defendant’s rights under art. 12 of the Massachusetts Declaration of Rights.”

The background was as follows. “Pauline and Emile Daigle, a couple in their seventies, hired a professional moving company to move from their single-family home … to a condominium unit.” The day after the move, “Pauline Daigle reported to [the] police that seventeen pieces of jewelry valued at approximately $30,000 were missing; only empty boxes remained in the dresser drawers where she had stored the jewelry.” The police investigator (Detective Hall) “learned that two moving men had handled the move: [a man named] Norton and the defendant…. Norton told Hall that the defendant had been alone in the … bedroom [of the victims’ old house] where the jewelry had been stored and also when he (the defendant) had unpacked the bedroom dresser drawers at the end of the move in [the victims’ new residence]. Norton also said that when he gave the defendant a ride home after the move, the defendant asked to be dropped off instead at a [certain] pawn shop…. This request struck Norton as odd” because “the pawn shop was only two doors away from the defendant’s home.” Hall went “to the pawn shop, where he spoke with its owner, Euidong Do, and asked whether anyone had come into the store on the day of the move in order to pawn or sell anything. Do said that a man, with whom Do had previously dealt at a different store, had come in to the shop around 3:00 P.M. wanting to sell jewelry…. Do only agreed to hold the jewelry as collateral for a three-week loan, i.e., the jewelry was pawned. Do asked whether Hall had a picture of the suspect. Hall produced a photograph of the defendant and showed it to Do. At that point, Do positively identified the defendant as the person who had come into the shop and pawned jewelry on the day of the move. Do then gave Hall an envelope containing the pawned jewelry. Hall took the jewelry and later showed it to Pauline Daigle, who identified the pieces as among those taken during the move. After the return of the indictment charging the defendant with larceny over $250, he moved “to suppress Do’s identification, which was made as a result of the single-photograph display conducted two days after the theft and in response to Do’s request to see a photo of the ‘suspect.’” The judge denied the motion. Do’s “identification was an important part of the evidence at the defendant’s jury trial, which resulted in his conviction.” Continue reading →

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classroom-1424729-300x225In Commonwelth v. Orbin O., a juvenile, the Supreme Judicial Court issued a decision addressing a Juvenile Court judge’s authority to dismiss a case prior to arraignment. Unlike the decision recently issued in Newton N., however, the SJC ruled that the judge in this case did have the authority to dismiss the complaint prior to arraignment. The SJC specifically held that where a delinquency complaint is sought by a private party under G.L. c.218, §35A ((rather than by the police, as in Newton N.), and where the prosecutor does not affirmatively move for arraignment, “a judge considering [the] juvenile’s motion to dismiss prior to arraignment may consider whether the clerk-magistrate abused his or her discretion in issuing the complaint and, in doing so, may consider whether dismissal is in the best interests of the child and in the interests of justice.”

The background was as follows. “[T]he fourteen year old juvenile was in class at the charter school he attended. [He] became frustrated during a classroom interaction with the paraprofessional instructor assigned to the class, prompting the instructor to tell the juvenile to take a break, which was in keeping with the juvenile’s individualized education program (IEP)…. The juvenile swore at the instructor, and when the instructor told the juvenile he needed to go to the office, the juvenile replied, ‘Fight me.’ The instructor … stood in front of the classroom door while the juvenile remained in the classroom. When the juvenile ‘shouldered’ into the instructor in an attempt to leave the classroom, the instructor placed the juvenile in a ‘basket hold’ for approximately thirty seconds as a safety maneuver. As the juvenile struggled against the basket hold, he elbowed the instructor in the face.” “[T]he vice-principal of the … school filed an application under G.L. c.218, §35A, for a delinquency complaint, alleging that the juvenile [had] committed an assault and battery … against [the] instructor….  Following a show cause hearing, the clerk-magistrate issued a … complaint…. The juvenile then moved to dismiss the complaint before arraignment.” The Juvenile Court judge allowed the motion on the ground “that the instructor ‘caused the touching’ by physically blocking the juvenile from leaving the classroom when ‘[the juvenile] was trying to deescalate a situation using steps the [school] incorporated into his [IEP].’ The judge concluded that, under these circumstances, there was not probable cause to believe that the juvenile acted intentionally or recklessly…. The Commonwealth appealed.” Continue reading →

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need-an-ambulance-1512594-300x196The Supreme Judicial Court recently issued a decision in Commonwealth v. Newton N., a juvenile addressing a judge’s authority to dismiss a delinquency complaint against a juvenile prior to arraignment. In its decision, the SJC vacated the dismissal of the delinquency complaint against the juvenile defendant, holding that the Juvenile Court judge did not have the authority to dismiss the “complaint before arraignment where the complaint was supported by probable cause and where the prosecutor wished to proceed to arraignment.”

The background was as follows. “[P]olice officers were dispatched to [an] apartment complex … in response to a report that a young boy … was making noise and carrying a gun.” When officers approached the boy, who was twelve years old, he “‘loudly curs[ed]’ at them…. The boy sounded ‘deranged[,] making no sense at times.’” The police escorted the boy to his home, where he “declared himself to be ‘Satan’ and said ‘we have weapons’ and ‘we are going to kill everyone.’” The police called for an ambulance so that the juvenile could be transported to a hospital for a mental evaluation. “As the juvenile waited for the ambulance, he … hit himself on the head with closed fists.” In the ambulance, “he began punching himself in the genitals with his closed fists and had to be placed in restraints. The ambulance report indicated that the juvenile had an autism diagnosis and that he had not received his morning medication.” On the basis of the juvenile’s actions that precipitated the initial report to the police, an “officer applied for and obtained a delinquency complaint from a clerk-magistrate, charging the juvenile with [several offenses, including] disorderly conduct…. The Commonwealth moved for arraignment and the juvenile moved pre-arraignment to dismiss the … complaint. The Juvenile Court judge … allowed the juvenile’s motion…. The judge noted that each of the alleged offenses included an element of specific intent. [She] concluded … that there was not sufficient evidence as to the element of intent or the element of recklessness (for the charge of disorderly conduct) to support a finding of probable cause. [She] determined, based on the juvenile’s statements and actions, that the juvenile ‘was acting in a diminished, if not psychotic state, and therefore could not have possessed the requisite mental state.’…. The judge further reasoned that the juvenile’s age … was a ‘relevant’ consideration in determining probable cause…. [She] added: ‘It is not only in the best interest of [the juvenile] but in the interest of justice to dismiss these four charges prior to arraignment. [The juvenile] is a child in need of aid.’” The Commonwealth appealed from the dismissal. Continue reading →

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breakout-1181601-300x213In Josh J., a juvenile v. Commonwealth, the SJC ruled “that where an individual has been released on bail pursuant to G.L. c.276, §58, and there is probable cause to believe the individual committed a crime while released on bail, the Commonwealth may seek to revoke bail under either §58 or §58B.”

The background was as follows. “On May 6, 2016, a delinquency complaint issued charging the juvenile with [two offenses]. A judge in the Juvenile Court set the juvenile’s bail at $1,000…. The juvenile posted bail and was released. In August, 2016, two delinquency complaints issued against the juvenile for several new crimes he allegedly committed while on release on the pending charges….  In November, 2016, based on the new charges, the Commonwealth sought to revoke the juvenile’s bail pursuant to G.L. c.276, §58. A Juvenile Court judge allowed the Commonwealth’s motion, revoked the juvenile’s bail, and set a date for a bail review hearing on January 30, 2017, which amounted to a ninety-day bail revocation. By January 10, 2017, the charges stemming from the juvenile’s conduct while he was released on bail had been resolved. The juvenile continued to be held on the original charges, however, so he moved to vacate the bail revocation order, but the judge who had revoked bail denied that motion. In response, the juvenile filed an emergency petition … pursuant to G.L. c.211, §3.” He “claim[ed] that the judge erred in applying the ninety-day revocation period under … c.276, §58B, as opposed to the sixty-day revocation period under … c.276, §58, after finding probable cause to believe that the juvenile had committed a crime while released on bail under §58. The crux of the juvenile’s argument is that because bail can be revoked under either §58 or §58B, where an individual commits a crime while on release, the statutes create an ambiguous bail revocation framework, and therefore, the rule of lenity requires the application of the sixty-day revocation period under §58.” The single justice reserved and reported the juvenile’s petition to the full SJC. Continue reading →

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sadness-4-1308914-300x201In Commonwealth v. McGonagle, the Supreme Judicial Court addressed two questions relating to judicial consideration of victim impact statements. In the decision, the Court affirmed the judge’s sentencing decision holding (1) that the “judge’s consideration of victim impact statements ‘as to a recommended sentence’ [under G.L. c.258B, §3(p)] [was] constitutional;” and (2) “that a victim’s right to recommend a sentence pursuant to [the statute] satisfies the requirements of due process.”

The background was as follows. “[A] jury convicted the defendant … of assault and battery…. At the … sentencing hearing, the Commonwealth requested that the defendant be sentenced to two and one-half years in a house of correction, the maximum possible sentence under the statute, to be served from and after his release on an unrelated one-year sentence…. Immediately after the Commonwealth’s recommendation, the victim gave an impact statement, during which he told the judge, ‘I would like … for [the defendant] to get the maximum [sentence], and not concurrent.’ The defendant then requested a sentence of nine months … to be served concurrently with his unrelated sentence. The judge sentenced the defendant to eighteen months in a house of correction to be served concurrently with the sentence he was then serving. This was a lesser term of imprisonment than the maximum possible sentence or the sentences recommended by both the Commonwealth and the victim. The judge did not explicitly reference the victim’s statement, but explained that in deciding the appropriate sentence, he placed great weight on the victim’s injuries and the defendant’s criminal record.” On appeal, the defendant “challenge[d] the portion of [G.L. c.258B, §3(p)] that permits victims to provide an impact statement ‘as to a recommended sentence.’ The defendant relie[d] on Booth v. Maryland, 482 U.S. 496 (1987); … and Bosse [v. Oklahoma], 137 S.Ct. 1 [2016] [per curiam] to support his claim that a victim’s recommendation as to a particular sentence violates the proscription against cruel and unusual punishments under the Eighth Amendment, and its ‘cruel or unusual punishments’ counterpart under art. 26 [of the Massachusetts Declaration of Rights]. The defendant further contend[ed] that allowing a victim to recommend a particular sentence violates due process.” Continue reading →

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alcatraz-inside-3-1494395-300x225In Commonwealth v. Cole C., the SJC weighed in jurisdictional issues relating to the Juvenile Court. Specifically, in its decision, the SJC reversed the Juvenile Court judge’s dismissal of youthful offender indictments against the defendant.

The background was as follows. “On April 20, 2016, Boston police arrested the defendant on a variety of charges related to an armed home invasion that occurred that day. He was seventeen years old at that time. After his arrest, the police took him to a Department of Youth Services (DYS) facility” and a multicount delinquency complaint was issued. “The defendant was arraigned on April 25, 2016, and two days after that (one week after the alleged incident), he turned eighteen. On July 5, 2016, a grand jury indicted the defendant as a youthful offender on five charges, [including] armed home invasion.” On the date set for arraignment, however, the Juvenile Court judge “refused to arraign the defendant on the youthful offender indictments on the grounds that — because the defendant had turned eighteen prior to the issuance of the indictments — the court lacked jurisdiction over them.” The defendant then moved to dismiss the indictments, the judge allowed the motion, and the Commonwealth appealed. Continue reading →

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bedroom-bliss-no-3-1542621-300x225The Appeals Court recently reversed the suppression of a statement made by the defendant to the police upon his arrest in Commonwealth v. Barbosa.

The basic facts were as follows: in the course of an investigation of “trafficking of persons for sexual servitude, G.L. c.265, §50,” the police dialed a telephone number at a hotel, which was listed in “an illicit online advertisement.” A woman answered the phone and told the caller to come to room 540 at the hotel. Officers proceeded to room 540, where they conversed with the woman. She “became very agitated” “[u]pon learning that she was speaking with law enforcement officers.” “She told the officers, ‘You guys can’t be here. He’s coming.’…. [One of the officers] noticed that the woman had a telephone in her hand that was continuously ringing.” That officer contacted Detective Bartkiewicz, who was elsewhere on the fifth floor of the hotel, and told him “that the defendant, who was the target of the investigation, was heading upstairs…. Bartkiewicz observed the defendant … step out of the elevator” and walk toward room 540. “After the defendant walked past him, … Bartkiewicz stated that he was a police officer and asked to speak with the defendant. The defendant, who was eight to ten feet from room 540” at that point, “‘pushed Bartkiewicz out of his way, and started to run back toward the elevators.’” The defendant was subdued and handcuffed by other officers. “‘Bartkiewicz informed [the defendant] of his Miranda rights’” and then “‘patted [the defendant] down and searched his pockets. [Bartkiewicz] found and removed a hotel room key, a knife,’” and other items. He “‘asked [the defendant] what room the key was for. [The defendant] said it was Room 540.’” In response to the defendant’s motion to suppress, “[t]he judge ruled that … Bartkiewicz … properly searched [the defendant] for weapons incident to [his] arrest [for assault and battery on a police officer], and ‘acted lawfully in … removing the knife from his pocket.’ The judge concluded that the room key would have properly and inevitably been seized under an inventory search at booking and, thus, should not be suppressed…. However, the judge, sua sponte, suppressed the defendant’s statement that the room key found in his pocket was for room 540. The judge concluded that … Bartkiewicz ‘was not entitled to inspect the hotel key … as a search incident to arrest’ and, in violation of G.L. c.276, §1, improperly used the room key ‘for an investigatory purpose, i.e., asking [the defendant] what room it went to.’” In the ensuing interlocutory appeal, “[t]he Commonwealth argue[d] that the judge erred in suppressing the defendant’s statement because the initial discovery of the room key attended a proper search incident to arrest for the crime of assault and battery on a police officer, and the room key had immediate evidentiary significance vis-à-vis the crime of human trafficking, which the officers were then investigating.” Continue reading →

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gavel-4-1236439-300x200In Commonwealth v. Lastowski, the Supreme Judicial Court affirmed the denial of the defendant’s motion to withdraw his guilty pleas due to the purported ineffectiveness of his attorney. The specifically SJC ruled that the defendant had failed to satisfy the prejudice requirement of the test for ineffectiveness under Commonwealth v. Saferian, 366 Mass. 89 (1974).

The background was as follows. “In 2014, the defendant pleaded guilty to three counts of indecent assault and battery on a person age fourteen or older.” At the plea hearing, the Commonwealth presented evidence that each of the three victims reported to the police that the defendant had inappropriately touched her breast and that “[o]ne of the victims also reported that ‘on one occasion [the defendant] had grabbed her groin area.’” The judge accepted the defendant’s pleas without “inform[ing] [him] of the possible consequences of registration as a sex offender.” The judge “adopted the defendant’s recommendations” as to sentencing and “placed [him] on probation for one year” with conditions. “One year later, the defendant moved to withdraw his guilty pleas, contending that plea counsel was constitutionally ineffective because [he] failed to advise [the defendant] of the duty to register as a sex offender, and its consequences, or explain that [the defendant] might have sought a continuance without a finding.” “[T]he motion judge, who … had also been the plea judge, denied the defendant’s motion.” Continue reading →

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cocaine-stripes-1194923-300x225The Supreme Judicial Court recently issued a decision in Commonwealth v. Holley, affirming the first degree murder convictions of defendants Holley and Pritchett despite (1) the lack of particularity in the warrant pursuant to which the police procured the defendants’ text messages from their cellular telephone service provider; and (2) the judge’s failure to instruct properly on the joint venture exception to the hearsay rule.

The background was as follows. The victim was shot in his apartment building as he was preparing to sell drugs to Holley. There was evidence that on the morning of the shooting, Holley and the victim exchanged text messages confirming the impending transaction, and that the defendants then exchanged messages coordinating their plans to converge on the victim’s residence. Video surveillance footage from the entryway of the victim’s “building showed two young, African-American males [resembling the defendants] enter[ing] the building at [around the time of the shooting] and running out of the building three minutes later. “Prior to trial, both defendants … sought to suppress the text messages obtained from” their telephone service provider (MetroPCS). The judge denied the motions. On appeal, the defendants challenged that ruling, “contend[ing] that the warrants to obtain those records … were lacking particularity.” Continue reading →

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1174747_by_a_beerIn Commonwealth v. Camblin, the SJC affirmed the denial of the defendant’s “motion to exclude [breathalyzer] evidence as scientifically unreliable” in the defendant’s trial for operating under the influence of alcohol.

The background was as follows. The defendant was charged “with operating a motor vehicle while under the influence of alcohol…. Before trial, the defendant moved to exclude admission of breath test evidence generated by the” breathalyzer utilized by the police, the Alcotest 7110 MK III-C (Alcotest). The judge denied the motion without conducting a DaubertLanigan hearing as to the scientific reliability of the Alcotest. The case proceeded to a jury trial at which the defendant was found “guilty of operating a motor vehicle while under the influence of alcohol and operating a motor vehicle with a blood alcohol level of or exceeding 0.08 per cent.” In response to the defendant’s direct appeal, in which he challenged the scientific reliability of the Alcotest, the SJC remanded the case to the trial court. On remand, the judge conducted a DaubertLanigan hearing, after which he “found that the Alcotest was capable of producing scientifically reliable breath test results, and denied the defendant’s motion to exclude this evidence at his trial.” In the present appeal, “[t]he defendant … contend[ed] that the judge abused his discretion in finding that the Alcotest satisfies the DaubertLanigan standard for the admissibility of scientific evidence.” The “focus of the defendant’s challenge … [was] that,” contrary to the judge’s finding, the Alcotest “cannot distinguish ethanol from other ‘interfering’ substances that might be present in a breath sample.” Continue reading →