Articles Posted in Law Commentary

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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 →

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balance-1172786-300x204In Commonwealth v. Jeannis, the Appeals Court reversed the denial of the defendant’s motion to suppress a bag of drugs seized from his rectum, because the police did not have a warrant to conduct the seizure.

The basic facts were as follows. In the booking area of a police station to which the defendant was transported after having been arrested, Lieutenant Callahan noticed that the defendant was sitting “oddly, leaning to one side.” Later, “Callahan noticed that the defendant had an unusual gait as he walked to [his] cell…. The defendant moved slowly, was rigid and tense, and was ‘clenching his buttocks area.’ Callahan believed that [the defendant] might have something secreted in that area, which could be a potential safety risk. Callahan asked Officer … Singer to accompany the defendant and Callahan to the … cell. Callahan ordered the defendant to remove his clothing….. [W]hile wearing only underwear, [the defendant] continued to clench his buttocks and attempted to shield his backside from Callahan’s and Singer’s view…. [When] [t]he defendant pulled down [the] waistband” of his underwear, Singer “saw a plastic bag protruding from the defendant’s buttocks. Singer ordered the defendant to remove the bag or have Singer remove it. The defendant agreed to remove it himself and then pulled down his underwear. Singer put his hand on top of the defendant’s hand as the defendant ‘removed the bag.’ The bag contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.” After the return of indictments charging the defendant with possession with intent to distribute cocaine and heroin, he filed a motion to suppress the drugs. The motion was denied and the defendant was convicted as charged. On appeal, he challenged the denial of the motion to suppress. He argued that under “the principles concerning manual body cavity searches articulated in [Rodriquesv.] Furtado, [410 Mass. 878 (1991)], … seizures from a body cavity may be made only on the authority of a warrant issued by a judge and supported by a high degree of probable cause.” Continue reading →

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gavel-4-1236439-300x200In a recent case – Commonwealth v. Robertson – the SJC reversed the defendant’s convictions of first-degree murder and related offenses because “the Commonwealth improperly excluded black men from the jury [by means of peremptory challenges] in violation of Batsonv. Kentucky, 476 U.S. 79 (1986), and Commonwealthv. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979).”

The background was as follows. During empanelment of the jury, “[t]he Commonwealth used [a] peremptory challenge on the first black man who was a potential juror. The defendant objected and defense counsel stated, ‘My client is a black male and this is the first black male to come before the court to be a potential juror.’ The judge found no prima facie evidence of impropriety,” i.e., no “discriminatory pattern in the prosecutor’s peremptory challenges and, as a result, did not inquire about the prosecutor’s reasoning.” Later, “[t]he defendant raised a second objection to the Commonwealth’s use of a peremptory challenge to exclude a man from the Dominican Republic…. [T]he parties disagreed about the potential juror’s race. The Commonwealth argued that the potential juror was ‘Hispanic’ and the defendant argued that he was black.” “The judge observed that the potential juror was ‘lighter skinned than [the defendant].’” Without “deciding how to consider the juror’s race,” “[t]he judge explained that he did not see a pattern because, in part, there were two black women on the jury.” On appeal, the defendant challenged “[t]he judge’s failure to inquire about the Commonwealth’s reason for excluding” the two black male jurors. Continue reading →

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breakout-1181601-300x213The Supreme Judicial Court recently came to a disappointing conclusion in Commonwealth v. Baez.  In the case, the SJC ruled that juvenile delinquency adjudications for violent offenses may serve as predicate offenses for enhanced penalties for adults convicted under G.L. c.269, §10G, the armed career criminal act (ACCA).

The background was as follows. “At age eighteen, the defendant … was indicted for a violation of G.L. c.269, §10(a), unlawful possession of a firearm. If convicted, and if he had no qualifying convictions for sentence enhancement, he would ‘be punished by imprisonment … for [no] more than five years.’” However, “[t]he defendant had twice been adjudicated delinquent for crimes of violence as defined by the Legislature; therefore, the Commonwealth charged the defendant with violating §10G,” which “mandates enhanced sentencing for adults who violate G.L. c.269, §10(a), (c), or (h), and have ‘been previously convicted of a violent crime or of a serious drug offense.’ G.L. c.269, §10G (a)-(c)…. Here, the Legislature imported the definition of ‘violent crime’ from G.L. c.140, §121, which includes ‘any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult.’ See Commonwealthv. Anderson, 461 Mass. 616, 631, cert. denied, 568 U.S. 946 (2012).” “While the defendant’s current case was proceeding, a judge in the Superior Court raised sua sponte the issue whether using juvenile adjudications to enhance sentencing in the same manner as adult convictions violated due process rights and protections under the Eighth Amendment.” The judge reported the question “[w]hether in light of Millerv. Alabama, [567 U.S. 460 (2012)], a juvenile adjudication may be used as a predicate offense for enhanced penalties under G.L. c.269, §10G.” Continue reading →

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gun-1517016-300x225In Commonwealth v. Santiago, the Appeals Court reversed the denial of the defendant’s motion to suppress items seized from the vehicle in which he was a passenger, because the show of force by the police during the stop of the vehicle “was sufficiently significant to convert the stop to an arrest,” for which there was no probable cause.

The basic facts were as follows. A “confidential informant told police that the defendant was selling cocaine and was ‘involved with firearms.’” The police ascertained that the defendant had a prior conviction of a firearm offense. “Based on the informant’s report that the defendant would be traveling to Lynn to pick up cocaine,” the police initiated surveillance of the defendant. “During the course of the surveillance, officers observed the defendant, along with three other men,” travelling in a GMC vehicle. “The defendant was seated in the right rear passenger’s seat. The surveillance team followed the GMC surreptitiously” in unmarked vehicles. At some point, the GMC “suddenly more than doubled its speed…. Believing that the GMC’s occupants had detected the surveillance, officers decided to stop the [vehicle].” After the GMC pulled over, four “police cars moved in around the [vehicle], effectively boxing it in. Four or five officers simultaneously approached the GMC’s four doors, yelling for the occupants to raise their hands. At least two of the officers had their guns drawn. As one officer neared the GMC, he observed the defendant … reach forward, pull open the seat-back pocket in front of him, and stuff an object into it. Suspecting that the defendant had attempted to conceal a firearm, the officer opened the left rear door…. He observed a firearm in the seat-back pocket in front of the defendant.” Officers seized the firearm, a loaded revolver. “The defendant was arrested and searched, and just under $5,500 in cash was found on his person.” After the return of indictments charging the defendant with firearm offenses, he filed a motion to suppress the items seized during the stop of the GMC. The motion was denied. The defendant was convicted as charged. On appeal, “[h]e maintain[ed] … that his motion to suppress was improperly denied because” “police conduct during the stop [of the GMC] — including boxing the vehicle in and approaching with guns drawn — escalated the encounter to an arrest, for which probable cause was lacking.” Continue reading →

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info-sign-question-mark-1445039-300x265In Commonwealth v. Gomez, the Supreme Judicial Court ruled that conditional guilty pleas are permissible.

The background was as follows. Two police officers observed the defendant hand an object to another man (Zimmerman) in exchange for cash. When Zimmerman drove away from the site of the exchange, the officers followed and executed an investigatory stop, in the course of which they seized from Zimmerman’s pocket “a small glassine bag with a white powdery substance…. The officers arrested Zimmerman and then returned to the [location] where they had seen the defendant….  As the officers approached, the defendant reached toward his waistband. The officers each grabbed one of the defendant’s arms…. He moved and shook his body as if trying to remove something from his waist. The officers pat frisked him and found a loaded handgun. On searching him further, they found ammunition” and a glassine bag containing “a substance resembling heroin. The defendant was then arrested.” After the return of indictments charging the defendant with drug and firearm offenses, he filed a motion to suppress the evidence seized from him. The motion was denied. “Prior to the scheduled trial date, the defendant ‘indicated he wishe[d] to plead guilty and avoid the costs of trial, provided he [were] able to secure appellate review of the ruling on the motion to suppress and to withdraw his plea if he prevail[ed] on appeal.’ He argued that ‘the outcome of the trial is a fait accompli, effectively determined by the suppression ruling.’ The Commonwealth … would not agree to a conditional guilty plea…. [The] judge stayed the trial date and reported … the following question: ‘To avoid a trial that is otherwise only required to preserve appellate review of the denial of a dispositive pretrial motion, may the Superior Court, with the Commonwealth’s agreement or over the Commonwealth’s objection, accept a defendant’s guilty plea and sentence the defendant expressly conditioned on [the] defendant’s rights to appeal the denial of the specific dispositive pretrial motion and to withdraw his/her plea if defendant prevails on appeal?’” Continue reading →