Articles Posted in Law Commentary

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

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 →

Published on:

child-1468032-300x225In Commonwealth v. 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 →

Published on:

united-states-passport-1422398-225x300The SJC vacated the denial of the defendant‟s motion to withdraw his guilty plea in Commonwealth v. Lys and remanded the case because the judge, in evaluating the motion, “(1) might have failed to recognize his discretion to credit or discredit the defendant‟s affidavits [pertaining] to plea counsel‟s allegedly” inadequate advice on immigration consequences; and “(2) failed to make factual findings about whether special circumstances relevant to the prejudice inquiry existed.”

The background was as follows. “The defendant pleaded guilty … to violating multiple controlled substances laws. He was a lawful permanent resident who had emigrated from Haiti, and his plea rendered him deportable.” Subsequently, the defendant filed a motion to withdraw his plea on the ground that his trial counsel had rendered ineffective assistance by failing to advise him adequately as to the immigration consequences of the plea. In two affidavits in support of his motion, the defendant contended “that he would not have pleaded guilty if his counsel had properly advised him.” Plea counsel did not submit an affidavit. The judge denied the motion after a nonevidentiary hearing. Regarding the absence of an affidavit from plea counsel, the judge “declared that, „[f]aced with this paucity of factual information,‟ „the [c]ourt feels strongly that it must give the [d]efendant‟s … [a]ffidavits full credit.‟ Accordingly, the judge found that plea counsel had performed deficiently. But the judge went on to find that this deficient performance did not prejudice the defendant. Without making any factual findings, [the judge] concluded that „[he did] not find the presence of any special circumstances‟ suggesting that the defendant would have placed particular emphasis on immigration consequences when deciding whether to plead guilty.” The defendant appealed. Continue reading →

Published on:

mobile-phone-in-hand-1307594-m-300x200The Appeals Court reversed the defendant’s conviction of domestic assault and battery on a family or household member in Commonwealth v. Wilson because the admission of testimonial out-of-court statements by the complainant, who did not testify at trial, violated the defendant’s right to confrontation.

The background was as follows. At the defendant’s trial, the complainant (the defendant’s wife) “assert[ed] spousal privilege and … decline[d] to testify.” In lieu of the wife’s testimony, the judge admitted a recording of a 911 call made by her and the testimony of a police officer (Barnes) who, in response to the 911 call, went to the marital home and spoke to her. During the 911 call, the defendant’s wife “stat[ed] that [the defendant] ‘choked [her] out,’ and that he said he would be back in fifteen minutes to kill her.” Barnes testified that when he spoke to the defendant’s wife, she reiterated “that the defendant left the premises and said that he would be back in fifteen minutes to kill her…. Barnes then testified, ‘I asked her to give me the rundown of exactly how it happened.’ He continued as follows: ‘[She said that] [h]er husband came home, and he was extremely upset … that he had seen a picture of her with a friend that he thought to be a drug addict. He accused her of being a drug addict…. He attempted to strangulate her and stick her head into a pill (sic) and suffocate her. He then went upstairs. He grabbed a handful of pills, tried to shove them down her throat, and said[,] ‘If you want to be a drug addict, I’m going to make you a drug addict.’” On appeal, the defendant argued that the judge erred in admitting his wife’s 911 call and Barnes’s testimony. Continue reading →

Published on:

house-1177416-225x300In Commonwealth v. Owens, the Supreme Judicial Court agreed with the dissenting justice on the Appeals Court panel below and ordered suppression of “evidence discovered when police officers ‘froze’ a house while they obtained a warrant.”

The basic facts presented at the hearing on the defendant’s motion to suppress were as follows. “A team of Boston police officers believed … that a particular house … was being used for prostitution. The building was at least a two-family dwelling, and the owner, Farhad Ahmed, lived in an apartment on the first floor. The police officers were informed that a woman known as ‘Cinnamon’ worked there as a prostitute. One of the officers, posing as a prospective customer, made contact with Cinnamon, who … described the services she offered, arranged to meet him, and gave him the address of the house. The officer arrived at the house and entered. Ahmed was present in the first-floor common hallway. The … officer was aware that Ahmed rented out one or more of the rooms on the second floor for twenty dollars per two hours.” The police did not have probable cause to believe that drugs or alcohol were being sold at the house. “Cinnamon asked the officer for twenty dollars. On the pretext of getting his wallet from his motor vehicle, the officer opened the door and signaled other police officers to enter. They arrested Cinnamon and Ahmed.  Continue reading →

Published on:

police-car-1515955-300x225In Commonwealth v. Moore, the Supreme Judicial Court clarified the admissibility of Bowden evidence and affirmed the defendant’s convictions of first degree murder and related offenses, despite the occurrence of two trial errors.

The background was as follows. The victim “was shot … by a masked gunman during an armed robbery and home invasion.” At the time, the victim was sharing an apartment with a roommate (LaPalm). “The victim sold cocaine and marijuana, and she kept large sums of money … in a small … strongbox.” On the date in question, the victim and LaPalm were at home when “a masked African-American man carrying a gun entered the [apartment]. The intruder was dressed in black and wore a ski mask covering his face; he was approximately six feet tall and slim.” LaPalm ran from the apartment. As she did so, she “saw a second man standing at the foot of the stairs outside…. He was approximately five feet, six inches tall, was dressed in black, and was wearing a ski mask.” LaPalm encountered a neighbor (Brown) and told him what had happened. Moments later, Brown saw two men wearing masks and dressed in all black leave [the victim’s] apartment. One of the men was shorter than the other, approximately five feet, six inches tall; the other was over six feet tall and thin. The two men ran past Brown’s motor vehicle toward a light colored minivan. One of the men was carrying a black box. Although he was unable to see either perpetrator’s face, Brown believed that he saw the hands of both men and concluded that they were African-American.” Around the time of the incident, three college students “who lived in a house next to the [victim’s] apartment complex” “saw two African-American men walking out of [their] backyard” towards the victim’s apartment complex. Also around the time of the incident, other neighbors saw an unfamiliar minivan parked nearby; they noted the license plate number and the police ascertained that the vehicle was registered to the defendant’s mother. A short time later, the police “observed [the vehicle] idling on a street; the defendant and his brother were inside…. At some point …, the defendant said, without any prompting, ‘That’s my little brother. He had nothing to do with what happened earlier.’” Police conducted showup identification procedures during which two of the college students positively identified the defendant as one of the men who had been in the students’ backyard. The defendant was arrested. Forensic testing revealed the presence of the victim’s DNA on the defendant’s T-shirt and inside the minivan in which he was apprehended. Continue reading →

Published on:

various-abusive-drugs-1194951-300x225In a recent decision – Commonwealth v. Martinez – the Supreme Judicial Court applied the holding of Nelsonv. Colorado, 137 S.Ct. 1249 (2017) and “provide[d] guidance to trial courts and litigants regarding the repayment [to a defendant] of probation fees, victim-witness assessments, restitution, fines, forfeitures, and court costs after a conviction has been invalidated.”

The background was as follows. In Nelson, “the United States Supreme Court held that ‘[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,’ the State is required under the due process clause of the Fourteenth Amendment … ‘to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.’ There can be no doubt that, because of this controlling authority, Massachusetts courts are required to order” such refunds after the invalidation of a defendant’s conviction. In the present cases, defendants Martinez and Green sought refunds … after their drug convictions were vacated and their indictments were dismissed with prejudice pursuant to Bridgemanv. District Attorney for Suffolk Dist., 476 Mass. 298 (2017), because the convictions were tainted by the misconduct of [state drug laboratory chemist] Annie Dookhan.” The two cases “present ten reported questions regarding the scope and application of the due process obligations established in the Nelsondecision. [The SJC] reformulated the reported questions into three broader questions.”

In its decision, the SJC “address[ed] each of the reformulated reported questions.” Question 1: “What is the scope of the due process obligation to refund money paid by a defendant ‘upon, and as a consequence of’ a conviction that has been invalidated?” Response to question 1: (a) Probation fees. “Here, all of the counts for which both defendants were sentenced to probation have been invalidated. As a result, all paid probation fees [under G.L. c.276, §87A] must be refunded.” (b) Victim-witness assessments. “As with probation fees, … the victim-witness assessment [paid] under G.L. c.258B, §8,” must be refunded. (c) Restitution. “Due process requires the refund of restitution.” “Because the restitution here was paid [by Martinez] to the Haverhill police department and has been repaid, we need not decide whether Nelsonrequires the Commonwealth to refund restitution paid by a defendant as a consequence of an invalidated conviction where the restitution was paid not to the Commonwealth, but to a private victim.” (d) Fines. “Green is … entitled to a refund of fines and surfines” that she paid as part of her sentence. (e) Forfeiture. “Green is not entitled to return of … forfeited funds because forfeiture … ‘is outside the scope of the criminal matter and constitutes a civil proceeding.’ Commonwealthv. Brown, 426 Mass. 475, 480 (1998).” Continue reading →

Contact Information