Articles Posted in Law Commentary

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gavel-2-1236453-300x200The SJC recently issued a decision addressing which offenses qualify as predicate offenses for a dangerousness hearing under G.L. c.276, §58A: Commonwealth v. Barnes and Commonwealth v. Scione.  In Barnes, the Court ruled that a violation of G.L. c.265, §23A (rape of child aggravated by age difference, i.e., statutory rape) does not qualify as a predicate offense under G.L. c.276, §58A.  In Scione, the Court ruled “that, depending upon the circumstances,” a violation of G.L. c.266, §102A (use of incendiary device) “may (and, in this case, does) … qualify” as such a predicate offense.

“Predicate offenses under [G.L. c.276,] §58A either are specifically enumerated in the statute or fall within one (or more) of the following categories: (1) those felonies that ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another‟ (force clause); (2) any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result‟ (residual clause); or (3) a misdemeanor or felony involving abuse as defined in [G.L. c.209A, §1, the abuse prevention statute] (abuse clause).”

The background of the Barnes case was as follows. When he was forty-three years old, defendant Barnes had sexual intercourse with a fifteen year old girl. He was charged with statutory rape in violation of [G.L. c.265,] §23A. In his appeal from an adverse ruling at a dangerousness hearing under [G.L. c.276,] §58A, he “argu[ed] that (1) §23A does not qualify as a predicate offense under the force clause of §58A; and (2) the residual clause of §58A is unconstitutionally vague. A Superior Court judge agreed[,]” the Commonwealth filed a petition pursuant to G.L. c.211, §3, and the matter made its way to the SJC. In its decision favorable to Barnes, the SJC first ruled that “[b]ecause the use, attempted use or threatened use of physical force is not an element of §23A, [a violation of that] statute does not qualify as a predicate offense under the force clause of §58A.” The SJC also agreed with the Superior Court judge “that the language in the residual clause of §58A is unconstitutionally vague under art. 12 [of the Massachusetts Declaration of Rights] and therefore §23A cannot qualify as a predicate offense pursuant to it.” Continue reading →

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gun-1623761-300x202The United State Supreme Court issued a recent decision – Stokeling v. United States – weighing in on predicate offenses under the federal Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i).  In its decision, the Court ruled that that even if Stokeling’s prior robbery conviction in Florida involved a minimal use of force, it qualified as a predicate “violent felony” under the Act, thereby justifying an enhanced sentence on Stokeling’s burglary conviction in the present case.

The background was as follows. In the course of investigating a burglary, Miami police officers searched the defendant’s backpack and found a firearm and ammunition. “Stokeling had previously been convicted of three felonies — home invasion, kidnapping, and robbery.” He pleaded guilty in federal [District Court] to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U. S. C. §922(g)(1). The probation office recommended that [he] be sentenced as an armed career criminal under ACCA, which provides that a person who violates §922(g) and who has three previous convictions for a violent felony “shall be imprisoned for a minimum of 15 years. §924(e).” ACCA, in its “elements clause,” defines violent felony as “any crime … that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The District Court ruled that Stokeling did not qualify for an enhanced sentence under ACCA, but the Eleventh Circuit reversed that ruling. Stokeling appealed and sought certiorari. Continue reading →

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what-s-that-1527433-300x264In Commonwealth v. Sherman, the Supreme Judicial Court dealt with an issue of first impression in a sexual assault case prosecution.  In the decision, the SJC opined that, in a rape case, “an additional element of proof — [the victim’s] communication of the withdrawal of consent — is required to avoid the risk of a reasonable mistake of fact in a case where the jury may find that the initial sexual penetration was consensual but that the victim withdrew consent during the course of continued sexual intercourse.”

The background was as follows. The victim testified that she and the defendant met at a pub and “[t]he defendant asked [her] if she wanted to ‘hang out’” at his apartment. She “agreed, but explained to the defendant that it was ‘just going to be … hanging out’ because she was gay.” At the apartment, the defendant “attempted to kiss [the victim] on the cheek. [She] responded by putting her hand out and telling the defendant that she was gay and that ‘it is not going past just hanging out.’ The defendant apologized multiple times,” but then proceeded to forcefully restrain the victim and to rape her several times. According to the victim, she “screamed ‘stop’ repeatedly and attempted to push the defendant off her.” Eventually, she was able to leave the apartment. She reported the incident to the police. Officers went to the defendant’s apartment and arrested him after he acknowledged that he had sexual intercourse with the victim. Later, the police searched the apartment pursuant to a warrant and discovered a spoon containing cocaine on the kitchen counter. The defendant testified that he and the victim engaged in consensual intercourse, “that the victim did not ask [him] to stop[] [or] push him away,” and that she “did not seem upset.” During their deliberations, the jury sent the judge a note seeking clarification of the “‘[d]efinition of the rape — does it include if she says No in the middle of the Act? In other words, is it rape if it started consensual and she changed her mind?’ After conferring with counsel, the judge” told the jurors that he understood their “‘question to be can lawful sexual intercourse become unlawful at some point during the act. The answer to that is yes…. Lawful sexual intercourse can become unlawful sexual intercourse, but remember that the Commonwealth has to prove … both portions of the second element [of rape]: Lack of consent and use of force or constructive force.’ Neither party objected to this instruction. Later that day, the jury found the defendant guilty” of two counts of rape. On appeal, “[t]he defendant claim[ed] that it was reversible error for the judge not to instruct the jury explicitly that, in order for initially consensual intercourse to turn into rape, a victim must communicate his or her withdrawal of consent to a defendant and the defendant must persist with intercourse despite the communication.” Continue reading →

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pool-1534215-300x200In Commonwealth v. Fielding, the Appeals Court affirmed the defendant’s conviction of open and gross lewdness.  In its decision, the Court ruled that the judge properly declined to suppress: (1) the victim’s identification of a Facebook photo as depicting the man who had masturbated in front of her the day before; and (2) the victim’s in-court identification of the defendant at the trial.

The background was as follows. “[T]he victim was swimming laps [in a] health club’s pool. A man whom she had not before met appeared at the shallow end of the pool and began talking to her. The victim continued her workout but would pause to converse with him in between her laps. The man introduced himself to the victim as “‘Scott’ [the defendant’s given name] and the two interacted in the pool for approximately fifteen minutes. After the victim completed her swimming, she and the man … went into the hot tub, where they sat close to each other and chatted some more. They then each expressed an interest in going into the sauna…. [There] the two conversed some more, bringing their total interaction to about thirty minutes long.” Several minutes later, “the victim heard a ‘scratching’ sound from where [“Scott”] was sitting, and as she got up to leave the sauna, he asked her, ‘[D]o you want to look?’ She turned and observed the man stroking his genitalia, which shocked and angered her.” The following day, the victim reported the incident to the police. She also “returned to the health club for a yoga class, where she told her instructor” about the incident, including a description of the offender. “[T]he yoga instructor [said] that she thought she knew him because [a man of similar description] had approached her and her daughter.” Then, on the club’s computer, the yoga instructor located a photograph of the man she was thinking of” on Facebook. “She showed that photograph to the victim, who identified the man depicted there” as the offender. Nine months after the incident, the victim selected from a photographic array an image of the defendant as depicting the offender. After the issuance of a complaint charging the defendant with open and gross lewdness, “the defendant filed a motion to suppress the photograph that the yoga instructor had found on Facebook … and any in-court identification.” The judge denied the motion. “During the trial, the Facebook photo[,] scrubbed of any text or other potential indicator of its provenance[,] … [was] admitted over the defendant’s objection…. The victim also was allowed to identify the defendant as the perpetrator in court, again over the defendant’s objection.” The defendant was convicted. On appeal, he challenged the denial of his motion to suppress. Continue reading →

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balance-1172800-1-300x204In Commonwealth v. Vines, a case of first impression, the Appeals Court dismissed the defendant’s appeal from the denial of his post-conviction motion for information about the jurors who deliberated at his trial on the grounds that such a motion “is in the nature of a request for post-conviction discovery related to a motion for new trial, and therefore interlocutory and not appealable until a motion for new trial has been filed and decided in the trial court.”

The background was as follows. After he was convicted on several counts at a jury trial, the defendant filed a notice of appeal and, subsequently, a motion seeking the addresses and the dates of birth of the jurors who were seated in his case, for use in support of a motion for post-conviction relief. The motion for juror information was denied and the defendant appealed.  In its decision, the Appeals Court stated, “The defendant claims that he needs the juror information in order to contact the seated jurors pursuant to the procedures set forth in Commonwealth v. Moore, 474 Mass. 541, 551-552 (2016). His … grounds are that he is in possession of correspondence from a seated juror that raises questions whether there were extraneous influences from pretrial publicity that may have had an impact on individual jurors.” The defendant moved for, and was granted, a stay of his direct appeal in order to pursue the issue whether extensive pretrial publicity provided grounds for a new trial. While there are no cases that explicitly address the nature of the defendant’s motion, “we look for guidance to those cases involving a request for post-conviction discovery because the defendant’s motion seeks information that may be … relevant to a motion for new trial.” Continue reading →

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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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