Articles Posted in Law Commentary

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suicide-blonde-4-1474465-194x300The Appeals Court vacated the dismissal of the plaintiff’s complaint that sought a G.L. c.209A abuse prevention order in M.G. v. G.A., because the trial court judge erroneously found that the parties’ conduct at the critical juncture did not constitute “sexual relations.”

The background was as follows. “[T]he plaintiff, M.G., filed a complaint for an abuse prevention order against the defendant, G.A., pursuant to G.L. c.209A…. An evidentiary hearing on the matter was … held…. Viewing the evidence in the light most favorable to the plaintiff, the judge could have found the following facts. The plaintiff and the defendant began dating in … 2012[] and purchased a condominium together by the end of 2013. In … 2015, the defendant moved out of the condominium, but the parties continued to have sexual relations. In December [of that year,] the defendant initiated a consensual sexual encounter with the plaintiff. The parties engaged in ‘genital-to-genital contact’ as well as ‘finger-to-genital contact.’ At some point during the sexual encounter, the plaintiff stated, ‘I’m done, I’m tired’ while the defendant was physically on top of her. She told the defendant at least twice that she ‘did not want to be doing this.’ The defendant stated ‘that he wanted to finish.’ The defendant then masturbated to ejaculation while remaining physically on top of the plaintiff.” At the close of the plaintiff’s case, the defendant moved for a directed finding that the evidence did not justify issuance of an abuse prevention order. “The judge allowed the motion [and dismissed the complaint], concluding that the plaintiff failed to prove that the defendant caused her to ‘engage involuntarily in sexual relations by force, threat or duress [G.L. c.209A, §1(c)],’” one of the predicates for issuance of an order, “because the parties were no longer engaging in sexual intercourse after the plaintiff said she was ‘done’ and ‘tired.’ Rather, the judge reasoned, ‘the most it could have been was an assault and battery at that point in time.’” On appeal, “[t]he plaintiff argue[d] … that the term ‘sexual relations’ as used in G.L. c.209A, §1, should not be so narrowly construed.” Continue reading →

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child-1468032-300x225In Commonwealth v. Childs, the Appeals Court affirmed the defendant’s convictions of indecent assault and battery and indecent assault and battery on a child.  In its decision, the Appeals Court ruled that the judge properly admitted evidence of uncharged misconduct by the defendant toward the complainant, in order “to show the nature of the relationship” between them and the absence of accident.

The background was as follows. The defendant was a close friend of the complainant’s family “and had been a part of the [complainant’s] life since her infancy.” The complainant alleged that the defendant sexually abused her over the course of seven years, starting when she was five or six years old. “The charged acts, which occurred in Middlesex County, happened at the beginning and the end of [the seven-year] period.” For some time between the dates of those acts, the complainant’s family lived in Hamden County. The complainant alleged that there, too, the defendant sexually abused her. The defendant was not charged with the commission of those offenses. At the defendant’s trial, the judge admitted the complainant’s testimony as to the defendant’s uncharged misconduct. On appeal, the defendant challenged the admission of that evidence. Continue reading →

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money-1189273-300x225The Appeals Court recently issued a decision in Commonwealth v. Bruno-O’Leary, reversing the revocation of the defendant’s probation because the judge “did not sufficiently consider [the defendant’s] financial resources and obligations before deciding to find her in violation.”

The background was as follows. In 2009, the defendant pleaded guilty to a single count of larceny over $250. “The plea judge sentenced her to a suspended house of correction term of two … years, with a five-year probationary period, and ordered the defendant to pay $98,000 in restitution.” Over the course of her probationary period, “[t]he probation department issued the defendant several violation notices …, primarily for failure to make restitution payments.” At three different junctures during the probationary period, the judge extended the defendant’s probation. “At the final probation revocation hearing held [in] 2016, the defendant stated that she could no longer afford the $300 monthly restitution payments…. Her testimony, supplemented by [an] affidavit …, showed that she and her two children received total monthly Social Security disability benefits of $2,087; she also received $324 per month in food stamps. She was unemployed and actively searching for work, which her felony conviction made difficult…. Her husband, who had been receiving workers’ compensation payments since September, 2015, had lost his job in January, 2016. Neither the defendant nor her husband had any retirement savings, bank accounts, or stocks…. As to expenses, the family rented a three-bedroom house for $1,695 per month. In order to pay the $1,600 heating oil bill for the winter, they had not paid the electric bill and owed $1,400. The defendant and her husband paid $105 per month for … cell phone service.” In response to this information, “the judge said that he simply did not believe” the defendant’s explanations as to why she was unable to make her monthly restitution payments. “Concluding that the defendant ‘made very little effort over the past seven years to make this good,’ the judge revoked the defendant’s probation and ordered [that she] serve the balance of her suspended sentence.” The defendant appealed.

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balance-1172800-1-300x204A divided SJC reversed the defendant’s convictions for various sex offenses – rape of a child and indecent assault and battery upon a child – in Commonwealth v. Alvarez because the prosecutor, in her closing argument, erroneously “told the jury of critical corroborative evidence that was not presented at trial.”

The background was as follows. “The strength of the Commonwealth’s evidence in this case rested on the credibility of Camila, a twelve year old girl who recounted acts of sexual abuse by the defendant that had allegedly occurred on various occasions when she was between the ages of six and nine. The defendant is Camila’s godfather, and is married to Camila’s aunt; Camila thinks of the defendant as her uncle.” Camila testified that during an episode of abuse in the defendant’s house, his “penis touched [her] vagina,” after which “her vagina felt ‘sticky,’ ‘wet, and disgusting.’” Camila stated that after the defendant drove her home, she still “felt ‘wet and sticky and gross,’ [so she] asked her mother if she could shower.” “This was the only [alleged] sexual incident in which there was any indication that the defendant had ejaculated, so corroboration from a source other than Camila that she felt ‘wet and sticky’ would strongly corroborate her testimony regarding that incident.” During the prosecutor’s opening statement, she told the jury “that Camila would testify that, after she returned home and told her mother that she needed to ‘take a tub or a shower,’ ‘[h]er mom said, “Why? You just took one before you left, a few hours ago.”’ However, when Camila testified, she [stated] only that she had asked her mother whether she could take a shower…. She was not asked what her mother said in response to her desire to take a shower, and did not testify as to any statement made by her mother regarding that incident. When Camila’s mother testified, the prosecutor did not ask about this incident; the mother said nothing about Camila asking to ‘take a tub or a shower’ or her saying she felt ‘wet,’ ‘disgusting,’ or ‘sticky’ when she came home.” “However, during closing argument, the prosecutor, in answer to defense counsel’s argument that the case rested solely on the words of Camila, said: ‘the Commonwealth submits that’s not true. You have some corroboration … of [Camila’s] word in other forms. You have her mom saying … she told you how that first time [Camila] came home and asked to take a bath, because she felt disgusting? Mom told you, “She did come home one day and ask to take a bath, and I thought it was weird, because she had taken a bath that morning.” That’s corroboration.’ Defense counsel objected at the end of the prosecutor’s closing argument, informing the judge that there was no evidence that the mother provided any corroboration of Camila’s testimony that she told her mother she needed to bathe…. The judge refused to give any curative instruction.” Continue reading →

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gavel-1238036-300x201In Sharris v. Commonwealth, the Supreme Judicial Court dismissed the indictments against the defendant (including one for first degree murder). In its decision, the SJC ruled that “[b]ecause it is undisputed that the defendant will never become competent, allowing charges that can never be resolved at a trial to remain pending indefinitely is inconsistent with his right to substantive due process.”

The background was as follows. “General Laws c.123, §16(f), provides for the dismissal of criminal charges when an individual is found incompetent to stand trial. The statute requires mandatory dismissal of charges at the time when the individual would have been eligible for parole if he or she had been convicted and had been sentenced to the maximum statutory sentence…. The statute also provides courts with the discretion to dismiss criminal charges ‘prior to the expiration of such period.’…. The defendant, who is now seventy-four years old, was charged with murder in the first degree and [a related offense] in 1994, when he was fifty-one years old. At that time, he was deemed incompetent to stand trial. Since then, he continually has been deemed incompetent, and at this point, the Commonwealth has conceded that he is permanently incompetent. The nature of the defendant’s mental impairment, a form of alcohol-induced dementia, is such that it is permanent, degenerative, and not amenable to any form of treatment. Additionally, his physical condition is deteriorating, and he is now physically frail, nourished through a feeding tube, and bedridden. It is likely that his physical condition also will continue to worsen. Due to the level of medical care he requires, in August, 2015, the defendant was released on bail, with conditions, so he could be placed in a hospital setting. He is civilly committed to the Department of Mental Health [], and is being cared for in an unlocked wing of a public hospital operated by the Department of Public Health []. Although G.L. c.123, §16(f), does not explicitly exclude murder in the first degree from its provisions for dismissal, it does so effectively, because the statute is based on the date of parole eligibility, and there is no parole eligibility date for the offense of murder in the first degree. The defendant contends that the charges against him nonetheless should be dismissed, either under the provision allowing discretionary release or on constitutional grounds. Beginning in 2001, through … 2016, the defendant has filed motions to dismiss, and motions for reconsideration, arguing that G.L. c.123, §16(f), violates his right to substantive due process because it restricts his fundamental right to liberty and is not narrowly tailored to achieve compelling State interests…. All of these motions have been denied. In … 2016, the defendant sought relief pursuant to G.L. c.211, §3, from the denial of his most recent motion for reconsideration. He thereafter appealed to [the full SJC] from the denial of his petition.” Continue reading →

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ouch-1434056-300x199The Appeals Court ruled in Commonwealth v. Sudler that the evidence was insufficient to support the defendant’s conviction of battery with intent to intimidate causing bodily injury, pursuant to G.L. c.265, §39(b) on the ground that the victim’s injury, “two cut fingers,” did not constitute “‘substantial impairment of the [victim’s] physical condition’ as required by the statute.”

The background was as follows. As the victim was walking toward a subway station in South Boston, “he heard a vehicle door slam, heard someone call him ‘faggot,’ and turned to see the defendant and the codefendant talking to him. The defendant continued to taunt the victim by calling him ‘faggot’…. As the defendant and the codefendant walked toward him, the victim noticed that the defendant held a knife in his hand…. The victim pulled out his own knife, an argument ensued, and the defendant ‘took a swing’ at the victim. The victim ‘jumped back’ and ‘took a swing back at [the defendant].’ The parties exchanged words” before separating. “[A]s the victim walked to the station he noticed” that blood was dripping from his hand and that he “‘was just losing a lot of blood.’ [He] … saw that two fingers of his hand had been cut. One cut was located on the victim’s left ring finger, which, according to his testimony, was ‘sliced … [f]rom nearly the top to the joint.’ The other cut was to the middle finger and went ‘from [the] side near the joint from the middle to the end, the corner.’” “Emergency medical services (EMS) … tended to the victim[,]” who “was upset because EMS did not offer him antibiotics or any other services. ‘All they did was basically [give him] a Band Aid.’” On appeal, “[t]he defendant contend[ed] that the evidence was insufficient to prove ‘bodily injury’ as defined under G.L. c.265, §39(b).” Continue reading →

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shhhh-1433634-225x300The Supreme Judicial Court ruled in Commonwealth v. Rosado that the Commonwealth had failed to prove, pursuant to the doctrine of forfeiture by wrongdoing, that the defendant forfeited his right to object to the admission of a witness’s out-of-court statements.

The background was as follows. “The defendant … is the former boy friend of the witness [Ortiz], and the father of her young daughter.” “Ortiz was a key witness for the prosecution” in the murder prosecution of a friend of the defendant (Mercado). “[T]he day before Mercado’s trial began, Ortiz was interviewed by two State police troopers regarding [Facebook] communications she had received from the defendant,” including statements calling her a “‘trifling bitch’” and “‘an undercover rat.’” Another posted message from the defendant “urged [Ortiz] not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her.” Ultimately, “Ortiz did testify at Mercado’s trial, but the jury” acquitted him. Subsequently, the defendant was indicted for intimidation of a witness (Ortiz), in violation of G.L. c.268, §13B. “[T]he Commonwealth moved in limine to admit in evidence Ortiz’s recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz’s testimony at the defendant’s trial.” Under that doctrine, “a defendant, by his or her wrongdoing, may … forfeit his or her right under art. 12 [of the Massachusetts Declaration of Rights] and our common-law rules of evidence to object to the admission of hearsay evidence.” In Commonwealthv. Edwards, 444 Mass. 526, 540 (2005), the Court “held that the Commonwealth must prove three elements by a preponderance of the evidence for forfeiture by wrongdoing to apply,” including that “‘the defendant acted with the intent to procure the witness’s unavailability.’” Continue reading →

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barbed-wire-1244350-224x300In Commonwealth v. Perez (Perez II), the Supreme Judicial Court “clarif[ied] the extraordinary circumstances requirement,” as set forth in Commonwealthv. Perez, 477 Mass. 677 (2017) (Perez I), which might “justify[] longer periods of incarceration prior to eligibility for parole for juveniles who did not commit murder than for those who did.”

The background was as follows. The seventeen year old defendant committed three serious crimes in one day. “[H]is uncle, … Abrante, gave the defendant a gun and encouraged him to … commit these crimes.” In the third incident, the defendant shot and grievously wounded an off-duty police detective. “For this crime spree, the defendant was convicted by a jury of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and firearms offenses…. [T]he trial judge sentenced him to an aggregate sentence of thirty-two and one-half years, with parole eligibility after twenty-seven and one-half years.” In its decision on the defendant’s direct appeal, Perez Iat 688, the SJC “determined that the … defendant … received a sentence for his nonhomicide offenses that was presumptively disproportionate under art. 26 of the Massachusetts Declaration of Rights in that the time he would serve prior to parole eligibility exceeded that applicable to a juvenile convicted of murder. [The SJC] therefore remanded the matter to the Superior Court for a hearing to determine whether, in light of the factors articulated by … Millerv. Alabama, 567 U.S. 460, 477-478 (2012), the case presented extraordinary circumstances justifying a longer parole eligibility period.” After considering the Millerfactors, including the immaturity of juveniles, the home environment of the defendant, and the circumstances of the defendant’s crimes, the judge “concluded that extraordinary circumstances [in particular, the detective’s  catastrophic injuries] were present. [The judge] therefore denied the defendant’s motion for resentencing, leaving intact a longer period of incarceration for the defendant prior to his being eligible for parole than would be the case for a juvenile convicted of murder. The defendant [remained] eligible for parole [only] after twenty-seven and one-half years in prison, while a juvenile convicted of murder at that time would have been eligible for parole after fifteen years. See Diatchenkov. District Attorney for the Suffolk Dist., 466 Mass. 655, 673 (2013), S.C., 471 Mass. 12 (2015). The defendant appealed.”  Continue reading →

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gavel-2-1236453-300x200The Appeals Court issued a decision – Commonwealth v. Johnson – affirming the revocation of the defendant’s probation and the denial of his motion to withdraw his stipulation to probation violations.  In its decision, the Court ruled “that the defendant’s admission [to probation violations] and his waiver of the right to a probation violation hearing were made knowingly and voluntarily,” as required by Commonwealthv. Sayyid, 86 Mass. App. Ct. 479, 489 (2014).

The background was as follows. The defendant pleaded guilty to several indictments charging him with sexual abuse of a child and a related offense. He was sentenced to concurrent terms of incarceration to be followed by concurrent terms of probation, with various conditions, including requirements “that he wear a global positioning system (GPS) monitoring device, attend and successfully complete sex offender counselling, [and] report to a probation officer.” Several weeks after the commencement of the probationary term, a notice of violation of probation was issued “because the defendant had failed to report to his probation officer, … had failed to attend an outpatient sex offender treatment program, and had removed his GPS monitoring bracelet.” A final probation violation hearing was scheduled for January 5, 2015.

On that day, “there was a sidebar conference attended by the defendant’s counsel, the prosecutor …, a probation officer, and the judge. The defendant was present in the court room, but did not hear the conference. Defense counsel indicated that her client was prepared to accept an additional one year of incarceration to resolve the case, but stated, ‘I discussed with him a two to three in order to dispose of it being more in line with the allegations….’” The judge made no commitments, stating “that the defendant’s sentence ‘could run the gamut from some period of incarceration to reprobating again.’ The sidebar concluded with defense counsel informing the judge that the defendant was ‘prepared to stipulate to the alleged facts.’” The judge then asked the defendant “whether he wanted to waive his right to an evidentiary hearing and to stipulate to the probation violations. The defendant responded in the affirmative…. [He was not] informed that no agreements had been reached about whether the judge would revoke his probation and, if she did, what sentence would be imposed.” Continue reading →

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calendar-1568148-300x199In Commonweath v. Dirico, the Supreme Judicial Court ruled that the defendant’s motion to dismiss for lack of a speedy trial under Mass. R. Crim. 36(b) was properly denied.

The background was as follows. “The defendant contend[ed] that the Commonwealth was responsible for the delay in providing him with the results of [DNA] evidence testing, and that none of the time after he filed a motion for mandatory discovery should be considered excludable delay.”

In its decision, the SJC “conclude[d] that the discovery the defendant characterized as ‘mandatory’ was not mandatory discovery that the Commonwealth must automatically provide to a defendant under Mass. R. Crim. P. 14(a)(1).” “[T]he defendant … did not seek ‘reports of … scientific tests’; instead, he sought all of the electronic data used to prepare the reports, all of the electronic files related to the case …, and the laboratory’s standard operating manual. The disclosure of these items of discovery might prove beneficial to an expert who is retained to analyze a DNA report and may properly be ordered to be disclosed, but the Commonwealth is not automatically required under rule 14(a)(1) to disclose these items in the course of mandatory discovery unless they are exculpatory.” The Court further “conclude[d] that, even if [the items sought by the defendant] did constitute mandatory discovery, a defendant who does not want the speedy trial clock to be tolled where a scheduled event [such as a final pretrial conference] is continued because of the Commonwealth’s delay in providing mandatory discovery must, under rule 14(a)(1)(C), move to compel the production of that discovery or move for sanctions, which the defendant [in this case] failed to do…. Here, the defendant acquiesced in, benefited from, and was partially responsible for the vast majority of the delay between the filing of his motion for mandatory discovery and the filing of his motion to dismiss for lack of a speedy trial: the defendant retained an expert to evaluate the results of the Commonwealth’s DNA testing, the defendant did not object to the Commonwealth’s delay in providing the additional information regarding that testing ordered by the judge to be produced, and a trial date could not reasonably be assigned until the expert had obtained and evaluated that additional information.” Continue reading →