Articles Posted in Law Commentary

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calendar-1568148-300x199In Commonwealth v. Davis, the Appeals Court affirmed the allowance of the defendant’s motion to dismiss under Mass.R.Crim.P. 36(b). This rule of criminal procedure addresses a defendant’s right to a speedy trial and allows for a dismissal of the charges where a defendant is not brought to trial within one year after his arraignment, not including any “excludable” time – i.e., any period of delay resulting from justifiable delays or agreed upon continuances, as laid out under the rule. The decision was based on the fact that the defendant was not brought to trial within the requisite one-year time frame, and the Commonwealth failed to demonstrate that the delay was justified. The main focus of the decision was the justification for various “continuances contributing to the delay of the defendant’s trial.” Four of the continuances, “accounting for 268 days, [were] attributable to what the parties agree[d] was court congestion. The occasion of each of these four delays was a lack of any or a sufficient number of jurors, but the length of the delays was also due at least in part to the court’s calendar constraints…. The defendant objected to each of these delays and the motion judge found that these 268 days [were] attributable to the Commonwealth.” Continue reading →

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gavel-2-1236453-300x200The Supreme Judicial Court recently issued a decision in a petition filed under G. L. c.211, §3, ruling that the public defender’s office, not judges, have the independent authority to decide who represents indigdent defendants in court. In the decision – Deputy Chief Counsel for the Public Defender Division of CPCS v. Acting First Justice of The Lowell District Court – the SJC “affirm[ed] CPCS’s independent authority under G. L. c.211D [and S.J.C. Rule 3:10] to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court).”

The background was as follows. Drug courts have been developed to provide the option of treatment as an alternative sentencing option “in cases where the underlying criminal behavior is thought to be motivated by a defendant’s substance abuse.” The “drug court model … favors a collaborative and nonadversarial approach to supervision of the drug court defendant.” “A judge is the leader of the drug court team,” which includes clinicians and treatment providers. Ordinarily, “[d]efense counsel has no formal role in the drug court sessions because in the post-adjudicative setting, the drug court defendant has no right to counsel. However, if a drug court defendant is issued a probation violation notice, defense counsel is appointed.” “In July, 2015, CPCS initiated a drug court pilot program (pilot), which, in a departure from [the usual] policy, permitted the assignment of counsel to indigent drug court defendants for every stage of the drug court proceedings.” “The impetus for the pilot” was the idea “that a drug court defendant’s likelihood of success in substance abuse treatment would be enhanced if defense counsel gained expertise in addiction issues and was familiar with the team’s view of the defendant’s participation. This pilot innovation permitted assigned counsel to participate in drug court ‘staffings’ [planning sessions] which ordinarily would not involve the presence of appointed counsel.” In September, 2015, “a disagreement between the Justice [of the drug court] and CPCS attorneys surfaced … in an incident involving one of the CPCS attorneys chosen to participate in the pilot…. [T]he upshot was that the Justice” determined “that this attorney would not be permitted to represent probationers in the drug court…. Eventually the Justice announced a categorical ban on CPCS attorneys in the drug court, effectively terminating the drug court pilot…. [The Justice] expressed the belief that CPCS attorneys in the Lowell office were ‘extremely hostile’ to the drug court mission and that they refused to ‘participate fully’ as team members.” In response to the judge’s actions, CPCS filed its c.211, §3, petition, “argu[ing] that under … c.211D and S.J.C. Rule 3:10, … CPCS has independent authority to assign counsel to indigent criminal defendants and that a judge may not remove assigned counsel without notice and the opportunity to be heard, or categorically exclude CPCS attorneys from assignments in the drug court.” The single justice reported the matter to the full SJC. Continue reading →

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school-bus-1431472-300x178The Appeals Court recently issued a decision – Commonwealth v. Cooper – clarifying what clarifies as an “accredited” preschool for the purposes of G. L. c. 94C, § 32J, the school zone statute. The defendant was convicted of drug distribution of a class E substance, in a school zone. In its decision, the Appeals Court ruled (1) that the evidence was sufficient to establish that the pills seized from the defendant at the time of his arrest were a class E substance (gabapentin); and (2) that the evidence was insufficient to establish “that the school furnishing the basis for [the defendant’s] school zone violation was an ‘accredited private preschool’ within the meaning of [G.L. c.94C,] §32J.”

The background was as follows. Undercover police officer “Munro told the defendant that she was looking to buy drugs” and the defendant told Munro that he had a prescription for a medication called gabapentin (a class E substance). Munro and the defendant made arrangements to meet for a sale at a restaurant. There, “Munro watched as the defendant removed yellow pills from a prescription bottle and placed them in a plastic bag. The defendant then handed the pills to Munro underneath the table at which they were seated, and Munro handed him the agreed-upon payment in exchange. Following the exchange, the defendant cautioned Munro to be careful when taking the pills, and not to consume more than five pills at once. He further explained that the pills were 300 milligram, quick-release capsules. During their conversation, Munro observed the defendant holding a prescription pill bottle, and saw the defendant’s name on the label.” In due course, “[t]he pills … were sent to the State police drug laboratory and examined by [a] chemist” who “determined that [they] were all the same color, appearance, and size, and [that] each bore the marking ‘G5027.’ Based on her examination … and after consulting reference materials maintained in the laboratory concerning the markings of prescription medications, [the chemist] concluded that [the capsules] contained gabapentin.” Regarding the school zone charge, there was evidence that the restaurant where the drug sale occurred was “located within 300 feet of the Bright Horizon Children’s Center,” a private preschool “licensed by the Department of Early Education and Care, as required for it to operate in Massachusetts.” On appeal from his conviction of possession of gabapentin in a school zone, the defendant argued (1) “that the Commonwealth’s failure to present evidence of a chemical analysis of the substance [in question] left the jury to speculate whether [it] was gabapentin”; and (2) that the fact that the Bright Horizon Children’s Center was licensed did not necessarily mean that it was “accredited” within the meaning of c.94C, §32J. Continue reading →

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balance-1172786-300x204In a recent Supreme Judicial Court decision – Commonwealth v. Garvey – the SJC In affirmed the dismissal of the habitual offender portions of the defendant’s indictments and, in the process, clarified subsection (a) of the statute. In the decision, the SJC specifically ruled that that in order to procure enhanced sentencing of a defendant under the habitual offender statute (G.L. c.279, §25[a]), the Commonwealth must prove that the requisite prior convictions with qualifying sentences arose “from separate incidents or episodes of criminal behavior.”

The background was as follows. “After returning eight indictments relating to the charged drug crimes, the grand jury received evidence concerning the defendant’s prior convictions, which the prosecutor introduced to establish probable cause for enhanced penalties to be available in relation to these drug offenses. In particular, the grand jury heard that on March 13, 2002, the defendant was convicted of four offenses, each described in a separate count of a single indictment, and was sentenced to at least three years in State prison on each offense…. The grand jurors did not, however, hear any evidence as to when these offenses occurred. The grand jury also heard that on December 5, 2002, the defendant was convicted of distribution of a class B substance and conspiracy to violate the controlled substance act, but they did not hear any testimony related to sentencing on those offenses.” “The defendant moved to dismiss the habitual offender portions of the indictments, arguing that the grand jury heard no evidence that his four underlying 2002 convictions arose from different criminal episodes. [The] judge allowed the motion in a margin endorsement, writing that ‘to be a[] habitual offender, one must have at least two prior convictions with qualifying sentences resulting from separate, prior criminal episodes’ (emphasis in original; quotation omitted). The Commonwealth appealed from the judge’s order.” Continue reading →

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home-deck-lines-on-the-porch-1193976-225x300In Commonwealth v. Leslie, the SJC weighed in on privacy interests for residents of multi-family dwellings. In its decision, the SJC affirmed the allowance of the motions to suppress of defendants on the ground that the sawed-off shotgun seized by the police “as a result of [their] unlawful physical intrusion into the curtilage of [Price’s] residence,” a multifamily building, violated the warrant requirement of the Fourth Amendment and art. 14 of the Massachusetts Declaration of Rights.

The basic facts were as follows. “Detective Griffin … observed a group of four men, who “appeared ‘nervous,’” walking down the street toward “a certain residence on Everton Street (residence)…. [T]the residence was a known location of gang associates and … the neighborhood in which the residence is located was a ‘hotspot’ for shootings and firearms offenses. The property at the residence, which is a three-family home, was fenced in on the front and left side…. The left-side porch area was blocked by a large, blue recycling bin, which obstructed the view of the area from Everton Street…. Griffin observed the four men, including Leslie, enter the front gate of the residence and meet a fifth man, Price, on the porch…. Five minutes after the men arrived, Leslie walked off the front porch, swiveling his head from side to side in a surveillance-conscious manner, toward the left side of the front yard to the side porch area. Although …Griffin’s view was [partially] obstructed…, he was able to observe Leslie crouch down and appear to manipulate something under the side porch.” Later, Griffin “observed Price walk over to the side porch area” and behave “as Leslie had done previously.” “[S]uspect[ing] that a firearm was hidden under the left-side porch area,” Griffin “contacted the other members of his unit … for assistance. The officers intended to approach the men at the residence to conduct field interrogation observations…. The officers approached the men on the porch and began to engage them in conversation…. Griffin, however, veered … to the left side of the yard, where Leslie and Price previously had gone. He saw a sawed-off shotgun on the ground under the porch.” Leslie and Price were arrested. “Subsequently, the officers learned that Price lived at the residence in the second-floor apartment, but Leslie was not a resident.” After the grand jury returned indictments against the defendants for firearm offenses, they filed motions to suppress the shotgun. “The judge allowed the motions …, ruling that the search was governed by [Florida v.] Jardines, 133 S.Ct. [1409,] 1417-1418 [2013], in which the United States Supreme Court held that a warrantless search of the front porch of a single-family home with a drug-sniffing dog violated the Fourth Amendment. The [Supreme] Court reasoned that the porch was part of the curtilage to which the police could lawfully approach but that in bringing a drug-sniffing dog, the police exceeded the scope of their implied license to enter the defendant’s property.” Continue reading →

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3d illustration: Mobile technology. mobile phone

In a recent Supreme Judicial Court decision – Commonwealth v. Fulgiam – the Court held that the search of the content of text messages requires a search warrant. Despite the existence of such a warrant in this case, however, the SJC rule that reversal was not required.

The background was as follows. The two victims (a man and a woman) were robbed and killed in their apartment. There was evidence that the defendants were involved in drug sales with the male victim. “[T]hrough a court order pursuant to 18 U.S.C. §2703(d)” (part of the Stored Communications Act), in response to an administrative subpoena issued pursuant to G.L. c.271, §17B, the Commonwealth procured the defendants’ cellular telephone records. The records “include[ed] call detail information …, subscriber information, cell site location information …, and, for Corbin, the content of text messages.” On appeal, Corbin argued that the Commonwealth’s warrantless access to the content of his text messages “was unlawful on statutory and constitutional grounds, and that his trial counsel was constitutionally ineffective in failing to file a motion to suppress the records.”

In its decision, the SJC opined that under 18 U.S.C. §2073(a) and art. 14 of the Massachusetts Declaration of Rights, “a warrant was required to obtain access to the content of Corbin’s text messages.” The Court explained that “[a] warrant with probable cause was required because Corbin had a reasonable expectation of privacy in the content of his text messages.” Therefore, stated the Court, “a motion to suppress challenging the Commonwealth’s access [to the text messages] on these grounds likely would have been successful.” The Court concluded, however, that defense counsel’s failure to seek suppression of the text messages did not create a substantial likelihood of a miscarriage of justice. Continue reading →

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Detail of a ambulance light.

The Supreme Judicial Court recently dealt a blow to motions to suppress in roadblock cases in Commonwealth v. Baker.

In this OUI prosecution, the Appeals Court ruled that the motion judge erred in suppressing evidence of the defendant’s intoxication at a sobriety checkpoint. The basic facts were as follows. Under the direction of State Police Captain Majenski, “a detail of State troopers and police officers from the town of Abington (the town)” “conduct[ed] a saturation patrol and sobriety checkpoint.” The police had a “written operational plan” containing guidelines for implementing the checkpoint. “During the roadblock, the defendant was pulled over and greeted by Sergeant … Cutter of the town police…. Cutter observed signs of intoxication in the defendant and directed him to the ‘pit’ area. The defendant refused ‘to drive the vehicle.’ He then was escorted from the vehicle to the pit area where [another officer] of the town police asked him to perform sobriety tests. After the tests, the defendant was placed under arrest.” Upon issuance of a criminal complaint for operating while under the influence of alcohol and negligent operation, the defendant “moved to suppress evidence of his intoxication, arguing that the evidence was secured from a sobriety checkpoint not conducted in strict and absolute compliance with the written operational plan.” The judge allowed the motion on the ground “that the roadblock deviated from the plan in four respects: (1) a number of officers arrived after the reporting time detailed in the plan, (2) while Captain Majenski was briefing the late officers, he was not performing supervisory duties as instructed, (3) one trooper, who was not the officer involved with stopping the defendant’s vehicle, did not sign the duty roster affirming [that] he had reviewed the plan and other relevant documents, and (4) after the roadblock was completed, several officers failed to submit a report as required by the plan.” Continue reading →

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navigating-gps-maps-1466837In Commonwealth v. Johnson, the Supreme Judicial Court found that it was not error for the trial court to admit data from the defendant’s GPS tracking device at the defendant’s trial for breaking and entering a building during the daytime with the intent to commit a felony, under G. L. c. 266, § 17 and larceny over $250, under G. L. c. 266, § 30.

The background was as follows. “On July 8, 2013, the defendant was charged with having committed various crimes stemming from an incident of domestic violence on Nancy Jones that took place … in the Dorchester section of Boston.” At the defendant’s arraignment, the judge imposed several conditions of pretrial release, to which the defendant formally agreed, “includ[ing] GPS monitoring, staying away from Jones’s home address in Dorchester, and staying away from Jones herself.” On August 31, 2013, Sarah Dundon returned from a six-day vacation trip to find that her home in the West Roxbury section of Boston had been broken into and some jewelry had been stolen. “At some point thereafter, Norfolk County law enforcement officials were conducting a criminal investigation into the defendant. As part of that investigation, they requested that … the probation department review and analyze the data captured by the GPS monitor imposed as a condition of the defendant’s pretrial release in the Dorchester case.” An employee of the probation department’s electronic monitoring program (ELMO) “noticed and mapped the defendant to [Dundon’s] home in West Roxbury, at about 4:20 A.M. on August 29, 2013, where the GPS data showed he remained for approximately fifteen to thirty minutes.” Based on this information, a criminal complaint was issued, charging the defendant with the offenses at issue in the present case. The defendant filed a motion “to suppress the GPS data that was obtained without a warrant based on his claimed expectation not to be subjected to extended GPS surveillance by the government.” In the motion, “he averred that as conditions of his pretrial release on his Dorchester case, he was required to stay away from Jones’s address, i.e., an exclusion zone, and he was required to wear a GPS device to monitor whether he violated that condition. The defendant claimed that he did not know he would be monitored and tracked everywhere he went, and that he had not agreed to that condition.” The judge denied the motion. On appeal, “the defendant claim[ed] that the judge erred in admitting the GPS data because the ‘search’ conducted by the police was unreasonable in light of his expectation of privacy in that data.” Continue reading →

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gun-1623761-300x202The Supreme Judicial Court recently affirmed the allowance of the defendant’s motion to suppress a firearm in Commonwealth v. Crowley-Chester on the grounds that the police were not justified in impounding the vehicle in which the weapon was discovered.

The basic facts were as follows. At 3:00 a.m. on the date in question, police officer Longo and a colleague “were on routine patrol on Williams Street when they observed a Honda Accord automobile parked on the street in front of a vacant lot and across the street from a church. The vehicle’s engine was running, and its lights were off. Using the police cruiser’s spotlight, … Longo observed two individuals seated in the front of the vehicle, both of whom appeared to be making furtive type movements. The defendant was the front seat passenger. The officers approached the vehicle and, after observing an unknown object in the defendant’s hand and a knife in the center console, ordered the driver out of the vehicle. When the driver got out of the vehicle, a white rock-like substance fell to the ground…. Longo recognized the object to be consistent with ‘crack’ cocaine, and the driver was placed under arrest. At this point, the defendant was … ordered out of the vehicle” and Longo “retrieved and secured the knife. The driver then asked that the defendant, who was not yet under arrest and who was free to leave the scene, be allowed to drive the vehicle.” However, because “the defendant did not have a driver’s license,” “[t]he officers … decided to impound [and tow] the vehicle. In the course of the resultant inventory search [which is required any time the police tow a motor vehicle], … Longo found a backpack containing a firearm. The backpack, which had the name ‘Atreyo’ [the defendant’s given name] written on it, also contained a pay stub with [his] name.” After the issuance of a complaint charging the defendant with firearm offenses under G. L. c. 269, §10(a), he filed a motion to suppress the firearm. “At the hearing on the motion …, the defendant introduced in evidence a computer-aided dispatch (CAD) log of telephone calls made to the … police department reporting criminal activity for three streets in the area around, and including, Williams Street.” The judge allowed the motion to suppress, “bas[ing] his decision that impoundment [of the Honda] was improper solely on his findings that the vehicle was not in danger of damage or theft.” Continue reading →

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cash-money-1520773-300x225In a recent decision – Nelson v. Colorado & Madden v. Colorado – the United States Supreme Court issued an important opinion impacting individuals who have had their criminal convictions invalidated. Specifically, the U. S. Supreme Court ruled that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur, … the State [is] obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

The case consists to two joined cases. The backgrounds were as follows. “Nelson … was convicted … of five counts … arising from the alleged sexual and physical abuse of her four children…. The trial court imposed a prison sentence of 20 years to life and ordered Nelson to pay court costs, fees, and restitution totaling $8,192.50…. On appeal, Nelson’s conviction[s] [were] reversed for trial error…. On retrial, a new jury acquitted Nelson of all charges…. Madden … was convicted by a Colorado jury of attempting to patronize a prostituted child and attempted third-degree sexual assault by force…. The trial court imposed an indeterminate prison sentence and ordered Madden to pay costs, fees, and restitution totaling $4,413.00…. The Colorado Supreme Court reversed one of Madden’s convictions on direct review, and a postconviction court vacated the other…. The State elected not to appeal or retry the case…. Between Nelson’s conviction and acquittal, the Colorado Department of Corrections withheld $702.10 from her inmate account, $287.50 of which went to costs and fees and $414.60 to restitution…. Following Madden’s conviction, Madden paid Colorado $1,977.75, $1,220 of which went to costs and fees and $757.75 to restitution…. The sole legal basis for these assessments was the fact of Nelson’s and Madden’s convictions.” Continue reading →