Articles Posted in Law Commentary

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info-sign-question-mark-1445039-300x265In Commonwealth v. Hernandez, the Supreme Judicial Court affirmed the denial of the defendant’s motion for a new trial on his indictment for first degree murder.  In its ruling, the SJC ruled that the Commonwealth’s nondisclosure of exculpatory evidence prior to trial was error, but that it was not prejudicial.

The background was as follows. The defendant and the victim got into an argument outside the defendant’s residence. The victim eventually walked … to his motor vehicle, which was parked in front of the defendant’s home, and started the engine. The defendant walked up to the passenger side of the motor vehicle, where the argument continued. The defendant then pulled [a] handgun from his pocket and fired into the vehicle, striking the victim in the chest. The defendant testified that he shot the victim in self-defense when he saw the victim reach for something shiny [in his vehicle] that the defendant believed was a gun. The prosecution presented evidence that the only items found in the motor vehicle in which the victim sat were a steering wheel locking device, a baseball hat, a cigarette lighter, a cellular telephone, and a twenty dollar bill, and argued that none of these items could have been mistaken for a firearm. At trial, the state crime laboratory chemist who had supervised the search of the crime scene (Koester) testified that at the scene he inspected the outside of the vehicle and searched the surrounding area. Unbeknownst to the defense, just twelve days prior to the commencement of the trial, Koester was informed that … he [had] received an unsatisfactory result … on his 2011 crime scene proficiency test regarding the method for measuring blood spatter. Moreover, just six days prior to trial, a member of the crime lab quality assurance management section was informed that Koester [had] received unsatisfactory results on an earlier (2010) crime scene proficiency test, also as a result of improperly measured blood spatter evidence. This information [regarding Koester’s two test failures] was not disclosed to the defense prior to trial. The defense became aware of Koester’s work-related performance issues after the defendant’s conviction. The defendant then filed a motion for a new trial, which was denied after a non-evidentiary hearing. On appeal, the defendant argue[d] that the motion was improperly denied because the information on Koester’s performance deficiencies raise[d] doubts as to the accuracy and reliability of the evidence collection in [this] case. Continue reading →

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black-car-1450351-300x200The Appeals Court reversed the denial of the defendant’s motion to suppress items seized pursuant to a warrantless search of his motor vehicle in Commonwealth v. Darosa.

The basic facts were as follows. Detective Donahue and other detectives were on patrol in a high crime area when they saw a minivan in front of them pulled alongside a Mercedes sport utility vehicle parked on the side of the road. “The detectives observed an arm come out of the minivan and hand a plastic grocery bag to someone in the Mercedes…. No person in either vehicle made an attempt to conceal the transfer of the bag, and none of the detectives testified [at the hearing on the defendant’s motion to suppress] that it was consistent with a drug sale. When the minivan began moving again, the detectives followed it and observed the driver abruptly change lanes without signaling, as a result of which Donahue effectuated a traffic stop…. The defendant was the driver and only occupant of the minivan. Upon Donahue’s request the defendant could produce a registration but not a license. He told Donahue that he did not have his license with him, but continued to search the headboard and middle console area of the driver’s compartment. When Donahue asked what he was looking for, the defendant replied, [my] license, prompting Donahue to ask, [W]hy are you looking for it if you already told me you don’t have it with you? The defendant then stopped looking around. Donahue conducted a computer query, which revealed that the defendant’s license was revoked and that he had a criminal record for narcotics violations. Nothing until this point caused Donahue or the other detectives to perceive the defendant as armed and dangerous. To the contrary, Donahue [indicated] that the defendant was cooperative throughout the encounter. Nonetheless, because the defendant did not have a valid license, Donahue ordered him out of the minivan, pat frisked him, and told him to sit on the curb at the rear of the minivan. The defendant remained there, guarded closely by one of the detectives, while the other two searched the front driver and passenger compartments. During the search Donahue smelled fresh marijuana‖ and a colleague discovered a large package of money under the front passenger seat. Based on these discoveries, Donahue requested that a K-9 unit respond to the scene. The canine led the detectives to the rear compartment of the minivan, where they discovered a bag containing a large amount of marijuana. At this point Donahue placed the defendant under arrest for the license being revoked. Subsequently, upon being charged with possession with intent to distribute marijuana, the defendant moved to suppress the items seized from his vehicle. The judge denied the motion on the ground that the officers could have released the defendant and summonsed him to court to answer to the charge at a later date. Accordingly, the defendant could have regain[ed] access to the vehicle. The search of the front [driver] and passenger compartment was an appropriate step for the police as a protective sweep prior to allowing the defendant to return to his vehicle. The defendant was convicted as charged. Continue reading →

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mud-shoe-print-1341848-200x300In affirming the defendant’s conviction of voluntary manslaughter in Commonwealth v. Franceschi, the Appeals Court ruled that although the judge erred in admitting an accident reconstruction expert’s testimony about a shoe scuff that was not shown to be scientifically reliable, the error was not prejudicial.

The background was as follows. The victim was killed as she was walking across a street and was struck by the defendant’s motor vehicle. The day before the fatal collision, the victim and a friend visited Rosario’s Mini Market where they conversed with the owner (Orlando). “[T]he defendant entered Rosario’s and began criticizing Orlando, whom she was dating at the time, for talking to the victim and her friend…. [T]he defendant gave [the victim and her friend] dirty looks and referred to them as “nobodies and whores.” The next day, the victim again planned to visit Rosario’s to talk to Orlando. As she was crossing the street near the store, the defendant arrived in her vehicle and struck the victim, fatally injuring her. The Commonwealth’s case included the testimony of an accident reconstruction expert (Laviolette) that a “particular mark left in the middle of the road … was a scuff mark from the victim’s shoe (also known as a shoe scuff), and opined that … it represented the approximate point of impact between the victim and the defendant’s vehicle.

Prior to the trial, “[t]he defendant [had] filed a motion in limine to exclude this portion of Laviolette’s proposed testimony, which the judge denied after a hearing pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 25-27 (1994), regarding the reliability of the evidence. At the hearing, Laviolette stated that his conclusion that the mark on the road “look[ed] like a shoe scuff” was based on his training and experience. But he could not describe what properties of the mark established that it came from a shoe in general or the victim’s shoe in particular. “When the judge … asked of Laviolette, is there a body of scientific evidence that you have studied regarding interpretation of scuff marks off the road, Laviolette responded, It’s something that they do ask you to look for. It’s discussed among the accident reconstruction community.” Continue reading →

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blood-1312378-300x225In an atypical decision, the SJC declared that the case of Commonwealth v. Salazar “presents one of the rare situations” in which the Court should reduce the defendant’s first degree murder conviction to a second degree murder conviction, pursuant to G.L. c.278, §33E, even though the evidence was sufficient to support the first degree guilty verdict, because such a result would be more consonant with justice.

The background was as follows. In the evening on the date of the killing, the defendant appeared at the door of a fire station. “His clothes … were covered in blood. The lone injury [that] firefighters discovered was a minor laceration [on the defendant’s hand] that was not bleeding heavily.” The defendant was transported to a hospital. “Subsequent investigation led police to the defendant’s home…. On entry into the … third-floor apartment, police discovered the victim lying dead on the floor” in a pool of blood. The victim’s injuries included several stab wounds, “the most lethal” of which had cut “the victim’s carotid artery and his jugular vein.” Police observed reddish-brown stains which “created a trail from the area of the victim’s body … through the kitchen, onto the back porch, over the third-floor railing and down to the railings on the second and first floors, through the backyard, … over a chain-link fence,” and “through nearby streets, eventually leading to the fire station. DNA testing identified the victim’s blood as a possible source of many of these reddish-brown stains and other stains on the defendant’s clothing. “The defendant testified in his own defense and denied killing the victim. He stated that the victim was “almost like my brother” and that the two had spent the day of [the killing] together in the apartment cooking and drinking beer…. The defendant testified that [at some point he fell asleep on the couch and was later] awakened by loud voices.” He “saw two strange men inside the apartment arguing with the victim. One of the men had a knife and began stabbing the victim, causing the defendant to intervene. The defendant said that he was then beaten by the two men and fled the apartment, going directly to the fire station to find help.” There was evidence that at the hospital the defendant’s “breath smelled of alcohol, and his eyes were bloodshot.” At the defendant’s request, “the judge instruct[ed] the jury on intoxication as relevant to both intent and deliberate premeditation.” Continue reading →

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gavel-2-1236453-300x200In Commonwealth v. Cruz, the single justice affirmed the Commonwealth‘s petition pursuant to G.L. c.211, §3, ruling that the discovery order from which the Commonwealth sought relief was erroneous because it ordered the prosecution to disclose information over which it did not have control.

The background was as follows. The defendant is charged in the BMC with various firearm and drug offenses. “[A] judge in that court granted in part [the defendant’s] motion for discovery from the Commonwealth, including a request … that the Commonwealth produce [d]ocuments and information concerning whether [the Boston Police Department] has ever admonished, disciplined, investigated, [or] reprimanded the police officer who drafted the search warrant affidavit in [the defendant’s] case. At the hearing on the motion, the judge made clear to the prosecutor that in [her] view that mean[t] personally looking through [internal affairs division] materials, personnel files of this officer, and finding out from supervisors whether there’s anything of that nature. The Commonwealth sought reconsideration of the order insofar as it purported to require the prosecutor, pursuant to Mass. R. Crim. P. 14, … to review files not in the Commonwealth’s possession, custody or control.” The motion judge denied the request for reconsideration, and the Commonwealth then sought relief from a single justice … pursuant to G.L. c.211, §3. After a hearing, the single justice allowed the Commonwealth’s petition, reasoning that “[h]ere, as in Commonwealth v. Wanis, 426 Mass. 639, 644 (1998), the judge erred in ordering discovery pursuant to rule 14 of records of the internal affairs division of a police department against a prosecutor who did not have possession, custody, or control of any of the requested information.” Commonwealth v. Rodriguez, 426 Mass. 647, 648 (1998). The defendant appealed. Continue reading →

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gavel-2-1236453-300x200In Commonwealth v. Alexis , the Supreme Judicial Court affirmed the allowance of the defendant’s motion to suppress.  The Court ruled that under art. 14 of the Massachusetts Declaration of Rights “the police cannot avail themselves of the exigency exception to the warrant requirement when it was foreseeable that their actions would create the exigency, even if their conduct [approaching the front door of the defendant’s house] was lawful.”

The basic facts were as follows. Police officers responded to a report of a home invasion. At the scene, Detective Pohle spoke with the victim, Garcia, who stated that three men “forced their way into [his] apartment” and “took his jewelry and wallet.” In the course of the incident, one of the men struck both Garcia and his six month old baby in the face with a silver handgun. Later that day, after looking through a large set of photographs at the police station, “Garcia saw a photograph of the defendant and stated with [one hundred] percent certainty that” it depicted the intruder “who had hit him and his baby. Pohle wrote an incident report and filled out an arrest warrant application. Because it was late in the afternoon and his shift had ended,” he did not seek action on the application at that time, but rather, placed it in “the court box for the next day.” The next morning, Pohle informed the supervisor of the police department’s warrant task force (Sergeant Kenny) “that he was in the process of getting an arrest warrant” against the defendant. Kenny was acquainted with the defendant and knew where he lived. “Without an arrest warrant, but believing that there was probable cause to arrest the defendant and that exigent circumstances existed, Kenny and four other members of the warrant task force proceeded to the defendant’s address.” “Kenny and two officers approached the front door, while two other officers went to the side of the house to secure a perimeter…. As Kenny ascended the front porch steps, the defendant saw the officers through the glass front door.” The defendant ran toward the rear of the house and began to climb out a window, but when he saw the officers setting up a perimeter outside, he “retreated into the house…. Because of the volatile situation …, the officers forced their way through the front door” and arrested the defendant. Continue reading →

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various-abusive-drugs-1194951-300x225On January 19, the SJC issued its decision in Commonwealth v. Plasse, ruling that a court may, in certain circumstances, incarcerate a defendant for the sole purpose of addiction treatment.

The background was as follows.  The defendant received a one year continuance without a finding for stealing video games from Walmart. The one year probationary period was ultimately extended for an additional two years (for a total of three years of probation) because the defendant repeatedly tested positive for controlled substances and was kicked out of a number of treatment programs due to lack of compliance. Having already been detained during the course of the probationary period as a result of these various violations, the defendant eventually asked for a committed sentence of nine months and specifically requested to be sent to the Howard Street jail facility in Hampden County, as there was a particular substance use disorder treatment program at the facility in which the defendant wanted to participate. The judge calculated that the incarceration term would need to be nine months to participate in the Howard Street program. The judge then sentenced the defendant to two years of incarceration, which exceeded the eighteen month recommendation of the probation officer and the nine month request of the defendant. The judge stated that he was not punishing the defendant, but rather that he was making sure that she got the help that she needed. The defendant subsequently filed an appeal, arguing that the judge unfairly considered the length of a jail rehabilitation program in determining the length of the sentence. Continue reading →

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sunflower-child-1436893-300x200In Commonwealth v. Santos, a case of first impression, the Appeals Court reversed the dismissal of the complaint charging the defendant with reckless endangerment of a child under G.L. c.265, §13L, which was based on the defendant’s inadequate supervision of her daughter.

The application for a complaint alleged as follows. At 10:50 a.m. on a day in May, the police received “a report of a [three year old] female child found wandering alone in the playground” of an elementary school. The officer who was dispatched to the scene (Wood) “recalled that [several weeks earlier], school employees had reported finding the same child alone in the playground. Another officer had responded to that call, located the child’s mother (the defendant), and reunited her with the child.” When Wood arrived at the school, he “was directed to the nurse’s office where he saw the child. She was wearing a T-shirt and diaper and had bare feet, but was in good health with no cuts or abrasions…. Meanwhile, based on information from the [earlier] incident,” another officer (Donahue) was dispatched to an apartment located two-tenths of a mile from the school. “Though he rang the doorbell and pounded on the door repeatedly, he received no response.

After dispatch placed a telephone call to the apartment, the defendant came to the door…. It appeared to Donahue that the defendant had just awoken from sleeping and she was not alarmed, panicked, or crying. She also did not ask Donahue for help finding the child. Donahue asked the defendant if she knew where her daughter was, and she replied, “At the playground?” The defendant explained that she had set the child down in the living room to watch cartoons while she went to the upstairs bathroom for approximately ten to fifteen minutes to attend to “women problems.” When she came back down, the child was gone; the door to the apartment was open; and the key to the deadbolt had been inserted from the inside. The defendant said that she looked for the child for approximately ten minutes and then just assumed she was playing with a neighbor[’]s child. When Donahue asked why she did not call 911, the defendant replied, “That was my mistake.” Donahue drove the defendant to the school and reunited her with the child. The child’s father also arrived at the school…. [He] stated that after [the earlier] incident he installed a deadbolt on the apartment door and instructed family members to hang the key on a high hook in the kitchen. The defendant believed, however, that her teenage son may have instead left the key on the counter where the child could reach it.” The defendant was charged with reckless endangerment of a child under G.L. c.265, §13L. She filed a motion to dismiss the complaint, which the judge allowed for “lack of probable cause.” The Commonwealth appealed. Continue reading →

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money-1238608-300x225The Supreme Judicial Court affirmed the defendant’s conviction of deriving support from prostitution in Commonwealth v. Brown, ruling that the statute (G.L. c.272, §7) is not unconstitutionally vague.  The Court also ordered modifications to the model jury instructions for use in future prosecutions.

The background was as follows. The defendant “accompanied a woman to a prearranged prostitution transaction and was caught [by the police], immediately after leaving the scene with that woman, with the entire proceeds of the transaction hidden in his shoe.” He was charged with deriving support from prostitution under G.L. c.272, §7. The statute provides for punishment of “[w]hoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of [that person’s] prostitution.” “Historically, ‘pimps’ have been understood to be the objects of this prohibition, although no definition of … ‘pimp’ … has ever appeared in the statutory text.” On appeal from his conviction, the defendant “[c]laim[ed] that, without further clarification, the language of [the] statute is unconstitutionally vague and that he suffered prejudice from jury instructions tracking such language.” Continue reading →

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child-1468032-300x225In Commonwealth v. Rosa (http://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-michael-c.-rosa), the Appeals Court ruled that the evidence at the defendant’s bench trial — on a criminal complaint charging him with assault and battery by means of a dangerous weapon (shod foot) –“was sufficient to support the judge’s finding that at least one of the parental discipline defense prongs was disproved beyond a reasonable doubt.”

The background was as follows. The defendant entered a CVS store with the victim, his five year old daughter. At some point, the victim began to run around the store; she “was laughing and hiding from the defendant.” In response, the defendant yelled and cursed at her. Later, as the defendant stood in the checkout line, “he saw his daughter by the front doors, hiding near the metal detectors. He did not pursue her, and she approached him.” When she “grabbed his legs,” “[h]e shoved her in her chest with his hand, causing her to take a step or two to regain her balance.” He “warned his daughter to stay away from him, telling her, ‘[G]et the fuck away from me. Trust me, you don’t want to fucking be near me right now.’ His daughter came toward him again. In response, the defendant lifted his foot and kicked his daughter in the chest, knocking her to the ground.” After the defendant completed his purchase, he and the victim left the store. A “CVS employee called the police to report the incident, and two police officers stopped the defendant shortly thereafter.” When they “asked him why he had kicked his daughter,” he “answered, ‘I don’t raise pussies,’” by which he meant “that he did not want to raise his children to be victims of bullying.” At his trial on a charge of assault and battery by means of a dangerous weapon (shod foot), the defendant invoked the affirmative defense that his “conduct was protected by the parental privilege defense.” Continue reading →