Articles Posted in Law Commentary

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A divided panel of the Appeals Court reversed the denial of the defendant’s motion to suppress cocaine and other items seized from his vehicle in Commonwealth v. Barreto on the ground that the police did not have reasonable suspicion to issue the exit order that led to the discovery of the seized items.

The evidence presented at the hearing on the defendant’s motion to suppress was as follows. The police received a tip “from an undisclosed source” “that a green Volvo station wagon containing a ‘large’ amount of drugs would be near a certain intersection [at an unspecified time]…. No other information regarding the tip [and none about the tipster] was provided at the … hearing” because “the prosecutor … did not want to risk identifying the informant.” The prosecutor sought to demonstrate that the search of the defendant’s vehicle was justified solely on the basis of the observations of the police officers who responded to the tip. According to the police testimony at the suppression hearing, four officers “set up surveillance at the intersection mentioned by the informant.” At some point, the officers “saw a green Volvo station wagon turn at the intersection” and park nearby. Then “one of the officers observed the vehicle’s operator, subsequently identified as the defendant, lean down toward his right side ‘as if he [were] reaching toward the floor of the passenger side with both hands.’…. [T]he officer could not see the defendant’s hands…. Observing from a distance, the officers saw a man approach the parked vehicle from an adjacent building[,] interact with the defendant at the driver’s side window for approximately half a minute[,]” and then walk away. While the judge found that the police observed the unidentified man … lean toward [the vehicle] ‘in a manner consistent with that man placing his hands on the Volvo door or reaching inside the Volvo,’ [the judge] also found that the police did not observe the defendant and the unidentified man actually ‘reach their hands toward each other … or exchange any object.’…. [Nonetheless,] the judge found that their interaction was ‘consistent with the two men exchanging something.’ After the man walked away, the defendant drove … to an adjacent street, where the police pulled his vehicle over.” “The defendant cooperated with the police after the stop.” “Although [he] appeared nervous, he produced his driver’s license and vehicle registration when requested to do so…. [One of the officers] ordered the defendant out of the vehicle. As [he] was stepping out …, the officer saw a roll of cash in a clear plastic bag on the inside of the driver’s door. After … a patfrisk of [the defendant] revealed nothing, the police initiated a thorough search of the vehicle,” which revealed “a large amount of cocaine,” $11,050 in cash, and other items. The judge denied the defendant’s motion to suppress those items, “conclud[ing] that the police had reasonable suspicion to stop the vehicle and to order the defendant out of it based on the brief interaction [purportedly consistent with a drug transaction] … between the defendant and the unidentified man who had approached his vehicle. Then, according to the judge, once the police observed the wad of bills in the driver’s door while the exit order was being executed, they gained probable cause that justified their subsequent search of the vehicle.” The defendant appealed.   Continue reading →

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snow-covered-street-1223222-225x300In Commonwealth v. Goldman, the Appeals Court reversed the defendant’s convictions of “violating the provisions of two G.L. c.258E harassment prevention orders that required him to ‘remain away from [the protected persons’] residence,’” because the judge did not adequately instruct the jurors as to the meaning of the phrase “remain away.”

The background was as follows. The defendant was a member of the congregation of a small synagogue. “After [his] conduct at the synagogue led to disputes between him and John and Mary Smith (pseudonyms) — a husband and wife who held leadership positions in the congregation — the Smiths obtained essentially identical c.258E orders against the defendant.” The orders required that the defendant “‘remain away from [the Smiths’] residence,’” but indicated that “the defendant could ‘attend services at the synagogue … respectfully[, so long as he did] not abuse’ the Smiths.” When “a large snowstorm [was] forecast for Saturday, February 21, 2015, the Smiths invited members of the synagogue to spend the night of February 20 at the Smith residence, so that services could be conducted at the residence the following day without members having to travel outdoors. About fourteen members accepted.  The defendant was not invited.” During the services the next morning, “John Smith looked out his living room window and noticed the defendant walking along the street … thirty to forty feet [from] the Smiths’ property.” A short time later, Mary Smith “looked out another window, saw the defendant walking up their driveway, and called 911. A police officer arrived a few minutes later and observed the defendant standing in front of the Smiths’ house. The officer spoke to the Smiths and then arrested the defendant for violating the c.258E orders. The defendant told a different story…. [He] testified that he … came no closer [to the Smiths’ residence] than an intersection that … was one and one-half blocks [away].” The judge instructed the jury that the central issue was “whether the defendant had violated the [harassment prevention] orders ‘by failing to stay away from [the Smiths’] address.’…. [D]uring their deliberations, the jury sent a note asking, ‘Is there further definition/specification available for what it means to “remain away from the plaintiff’s residence”…?  Does it mean to stay off … or a certain distance away … or nowhere in vicinity, etc.?’” Over the defendant’s objection, “[t]he judge … instructed the jury: ‘[T]he term stay away has no strict definition for you to consider; instead, you are to assess the term by the plain meaning [of] what it is to stay away from a given location using your common sense and life experiences….’ The jury then returned guilty verdicts on both charges.” On appeal, the defendant challenged the adequacy of the judge’s instructions. Continue reading →

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various-abusive-drugs-1194951-300x225In Committee for Public Counsel Services & others v. Attorney General & others, the Supreme Judicial Court announced a comprehensive remedy for the evidence tampering by Amherst state laboratory chemist Sonja Farak and for “the deceptive withholding of exculpatory evidence by members of the Attorney General’s office, who were duty-bound to investigate and disclose Farak’s wrongdoing.”

The background was as follows. In a prior decision addressing the Amherst lab scandal, Commonwealthv. Cotto, 471 Mass. 97 (2015), the SJC “remanded the matter to the Superior Court to provide the Commonwealth an opportunity to fulfil its duty to ‘learn of and disclose … any exculpatory evidence that is held by agents of the prosecution team, who include chemists working in State drug laboratories’ (citation and quotations omitted). Id. at 112, 120. On remand, on December 7, 2015, the Chief Justice of the Superior Court appointed Superior Court Judge Richard J. Carey to hear all cases arising from Farak’s misconduct. In December, 2016, Judge Carey conducted an evidentiary hearing …, after which he found that the government had vastly understated the extent of Farak’s misconduct. Moreover, he determined that two assistant attorneys general [Foster and Kaczmarek] had perpetrated a ‘fraud upon the court’ by withholding exculpatory evidence” — Farak’s mental health records, which showed that her misconduct commenced earlier than had been thought — “and by providing deceptive answers to another judge in order to conceal the failure to make mandatory disclosure to criminal defendants whose cases were affected by Farak’s misconduct. The judge determined that certain cases in which Farak had signed a certificate of drug analysis … during her employment at the Amherst lab were subject to dismissal. He found further, however, that Farak’s misconduct had not undermined testing results reported by other chemists who had been assigned to the Amherst lab during the period that Farak was employed there.” The petitioners in the present case “sought relief in the county court through a petition pursuant to G.L. c.211, §3, and G.L. c.231A, §1, claiming that” a “‘global remedy’” was required. “Following a number of hearings, the district attorneys agreed to the vacatur and dismissal of approximately 8,000 cases in which Farak had signed a drug certificate…. The single justice reserved and reported the matter to the full [SJC], and issued three questions for the parties to answer in their briefs.” The first question subsequently became moot. “The [remaining] reported questions asked: ‘2. Whether the definition of “Farak defendants” being employed by the District Attorneys in this case is too narrow; specifically, based on the material in the record of this case, whether the appropriate definition of the class should be expanded to include all defendants who pleaded guilty to a drug charge, admitted to sufficient facts on a drug charge, or were found guilty of a drug charge, if the alleged drugs were tested at the Amherst Laboratory during Farak’s employment there, regardless [of] whether Farak was the analyst or signed the certificates in their cases[;]’ [and] ‘3. Whether, as the petitioners request, the record in this case supports the court’s adoption of additional prophylactic measures to address future cases involving widespread prosecutorial misconduct, and whether the court would adopt any such measures in this case.’”

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air-soft-gun-1-1500175-300x189The Appeals Court ruled in Commonwealth v. Resende (1) that the evidence in support of the charge of possession of a loaded firearm without a license, pursuant G.L. c.269, §10(n), “was sufficient to permit the fact finder to infer that the defendant had knowledge that the firearm was loaded”; and (2) that the evidence in support of the charge of possession of a large capacity firearm, pursuant to G.L. c.269, §10(m), “was insufficient to permit the fact finder to infer that the defendant had knowledge that the firearm was capable of holding more than ten rounds of ammunition.”

The background was as follows. The police received a 911 call indicating “that an individual … was yelling for his girl friend and issuing unspecified threats, and that the individual had mentioned a ‘gun.’” The caller provided descriptive information about the individual and his clothing. Officer Delehoy and other officers responded to the location mentioned by the caller, which was in a high crime area. Upon arriving there, Delehoy saw the defendant, who fit the description provided by the caller. “Delehoy told the defendant to remove his hands from his pockets, and the defendant complied.” The officer “then asked the defendant whether he had any weapons on him. In response, the defendant … lifted his jacket, and exposed the grip end of a firearm that was located in his waistband…. The defendant was arrested after he failed to produce a valid license to carry the firearm.” Delehoy “removed the magazine from the firearm and inspected the firearm…. The magazine contained fourteen rounds of ammunition and was capable of holding up to fifteen rounds…. At the time the firearm was removed from the defendant’s waistband, the ammunition inside the magazine was not visible and only became visible when … Delehoy removed the magazine from the firearm. No shell casings were observed in the area where the defendant was arrested, and the defendant made no statement indicating he knew that the firearm was loaded or that it was a large capacity firearm. The defendant did not have any loose rounds of ammunition on his person. During booking, the defendant stated that ‘a guy’ gave him the firearm because the defendant ‘likes guns.’” On appeal from his convictions of possession of a loaded firearm without a license and possession of a large capacity firearm, the defendant challenged the sufficiency of the evidence.

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mobile-in-hand-1239462-300x200In Commonwealth v. Arthur, the Appeals Court reversed the suppression of the contents of cell phones seized by the police, because the judge erroneously ruled that “the police unreasonably delayed obtaining a warrant to search the contents of” the phones.

The basic facts were as follows. “[T]he defendant and two accomplices [Williams and Richardson] participated in a coordinated attack on a home at 7 Morse Street in … Boston. Much of the attack was witnessed by various Boston police officers…. At approximately 4:30 p.m. two cars drove onto Brinsley Street, one street away from and parallel to the block of 7 Morse Street. The defendant was driving one of the cars and was alone. Williams was driving the other car, with Richardson in the front passenger seat. Both cars parked on Brinsley Street…. Shortly after parking, Williams and Richardson got out of their car … [and] walked briskly … in the direction of Morse Street…. [As they approached] Morse Street, the defendant got out of his car … and began peering through the yards toward the area of 7 Morse Street ‘as if he was waiting to see something occur.’ Shortly thereafter, shots were heard coming from Morse Street. Williams and Richardson then were observed running down Morse Street, with Williams holding a gun in his hand…. Williams [ran] to Brinsley Street and, after discarding his firearm, got into the passenger seat of the defendant’s car. The defendant had, by this time, returned to his car, but before he could drive away with Williams they were stopped and arrested by the police. Later, the police confirmed that multiple bullets had been fired into the home at 7 Morse Street…. An officer on the scene observed two cell phones in the defendant’s car — one on the driver’s seat and one on the front passenger’s seat. The officer observed three cell phones in the car initially driven by Williams — two on the driver’s seat and one in the passenger’s side door handle. The police impounded both cars. Three days [later], [they] sought and received [an initial] warrant to search both cars and to seize all the cell phones…. [T]he cell phones were seized[] and … were thereafter held as evidence. The Commonwealth did not seek to view the contents of the cell phones, however, until eighty-five days after the impoundment. On [that day], the Commonwealth sought [a] second warrant, this time specifically requesting to search the ‘electronic data’ of each of the seized cell phones…. The second warrant was issued on the same day, and the cell phones were searched. [Subsequently,] the defendant was indicted for two counts of armed assault with intent to murder,” and related offenses. The defendant filed a motion to suppress evidence found as a result of the search of the two cell phones found in his vehicle, on the ground “that the eighty-five-day delay in seeking the second warrant rendered the search unreasonable.” The judge granted the motion and the Commonwealth appealed.   Continue reading →

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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 →