Articles Posted in Law Commentary

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

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

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

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

In Commonwealth v. Hernandez, the Supreme Judicial Court affirmed the denial of the defendant’s motion for a new trial on his indictment for first degree murder.  In its ruling, the SJC ruled that the Commonwealth’s nondisclosure of exculpatory evidence prior to trial was error, but that it was not prejudicial.

The background was as follows. The defendant and the victim got into an argument outside the defendant’s residence. The victim eventually walked … to his motor vehicle, which was parked in front of the defendant’s home, and started the engine. The defendant walked up to the passenger side of the motor vehicle, where the argument continued. The defendant then pulled [a] handgun from his pocket and fired into the vehicle, striking the victim in the chest. The defendant testified that he shot the victim in self-defense when he saw the victim reach for something shiny [in his vehicle] that the defendant believed was a gun. The prosecution presented evidence that the only items found in the motor vehicle in which the victim sat were a steering wheel locking device, a baseball hat, a cigarette lighter, a cellular telephone, and a twenty dollar bill, and argued that none of these items could have been mistaken for a firearm. At trial, the state crime laboratory chemist who had supervised the search of the crime scene (Koester) testified that at the scene he inspected the outside of the vehicle and searched the surrounding area. Unbeknownst to the defense, just twelve days prior to the commencement of the trial, Koester was informed that … he [had] received an unsatisfactory result … on his 2011 crime scene proficiency test regarding the method for measuring blood spatter. Moreover, just six days prior to trial, a member of the crime lab quality assurance management section was informed that Koester [had] received unsatisfactory results on an earlier (2010) crime scene proficiency test, also as a result of improperly measured blood spatter evidence. This information [regarding Koester’s two test failures] was not disclosed to the defense prior to trial. The defense became aware of Koester’s work-related performance issues after the defendant’s conviction. The defendant then filed a motion for a new trial, which was denied after a non-evidentiary hearing. On appeal, the defendant argue[d] that the motion was improperly denied because the information on Koester’s performance deficiencies raise[d] doubts as to the accuracy and reliability of the evidence collection in [this] case. Continue reading →

In affirming the defendant’s conviction of voluntary manslaughter in Commonwealth v. Franceschi, the Appeals Court ruled that although the judge erred in admitting an accident reconstruction expert’s testimony about a shoe scuff that was not shown to be scientifically reliable, the error was not prejudicial.

The background was as follows. The victim was killed as she was walking across a street and was struck by the defendant’s motor vehicle. The day before the fatal collision, the victim and a friend visited Rosario’s Mini Market where they conversed with the owner (Orlando). “[T]he defendant entered Rosario’s and began criticizing Orlando, whom she was dating at the time, for talking to the victim and her friend…. [T]he defendant gave [the victim and her friend] dirty looks and referred to them as “nobodies and whores.” The next day, the victim again planned to visit Rosario’s to talk to Orlando. As she was crossing the street near the store, the defendant arrived in her vehicle and struck the victim, fatally injuring her. The Commonwealth’s case included the testimony of an accident reconstruction expert (Laviolette) that a “particular mark left in the middle of the road … was a scuff mark from the victim’s shoe (also known as a shoe scuff), and opined that … it represented the approximate point of impact between the victim and the defendant’s vehicle.

Prior to the trial, “[t]he defendant [had] filed a motion in limine to exclude this portion of Laviolette’s proposed testimony, which the judge denied after a hearing pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 25-27 (1994), regarding the reliability of the evidence. At the hearing, Laviolette stated that his conclusion that the mark on the road “look[ed] like a shoe scuff” was based on his training and experience. But he could not describe what properties of the mark established that it came from a shoe in general or the victim’s shoe in particular. “When the judge … asked of Laviolette, is there a body of scientific evidence that you have studied regarding interpretation of scuff marks off the road, Laviolette responded, It’s something that they do ask you to look for. It’s discussed among the accident reconstruction community.” Continue reading →

In an atypical decision, the SJC declared that the case of Commonwealth v. Salazar “presents one of the rare situations” in which the Court should reduce the defendant’s first degree murder conviction to a second degree murder conviction, pursuant to G.L. c.278, §33E, even though the evidence was sufficient to support the first degree guilty verdict, because such a result would be more consonant with justice.

The background was as follows. In the evening on the date of the killing, the defendant appeared at the door of a fire station. “His clothes … were covered in blood. The lone injury [that] firefighters discovered was a minor laceration [on the defendant’s hand] that was not bleeding heavily.” The defendant was transported to a hospital. “Subsequent investigation led police to the defendant’s home…. On entry into the … third-floor apartment, police discovered the victim lying dead on the floor” in a pool of blood. The victim’s injuries included several stab wounds, “the most lethal” of which had cut “the victim’s carotid artery and his jugular vein.” Police observed reddish-brown stains which “created a trail from the area of the victim’s body … through the kitchen, onto the back porch, over the third-floor railing and down to the railings on the second and first floors, through the backyard, … over a chain-link fence,” and “through nearby streets, eventually leading to the fire station. DNA testing identified the victim’s blood as a possible source of many of these reddish-brown stains and other stains on the defendant’s clothing. “The defendant testified in his own defense and denied killing the victim. He stated that the victim was “almost like my brother” and that the two had spent the day of [the killing] together in the apartment cooking and drinking beer…. The defendant testified that [at some point he fell asleep on the couch and was later] awakened by loud voices.” He “saw two strange men inside the apartment arguing with the victim. One of the men had a knife and began stabbing the victim, causing the defendant to intervene. The defendant said that he was then beaten by the two men and fled the apartment, going directly to the fire station to find help.” There was evidence that at the hospital the defendant’s “breath smelled of alcohol, and his eyes were bloodshot.” At the defendant’s request, “the judge instruct[ed] the jury on intoxication as relevant to both intent and deliberate premeditation.” Continue reading →

In Commonwealth v. Cruz, the single justice affirmed the Commonwealth‘s petition pursuant to G.L. c.211, §3, ruling that the discovery order from which the Commonwealth sought relief was erroneous because it ordered the prosecution to disclose information over which it did not have control.

The background was as follows. The defendant is charged in the BMC with various firearm and drug offenses. “[A] judge in that court granted in part [the defendant’s] motion for discovery from the Commonwealth, including a request … that the Commonwealth produce [d]ocuments and information concerning whether [the Boston Police Department] has ever admonished, disciplined, investigated, [or] reprimanded the police officer who drafted the search warrant affidavit in [the defendant’s] case. At the hearing on the motion, the judge made clear to the prosecutor that in [her] view that mean[t] personally looking through [internal affairs division] materials, personnel files of this officer, and finding out from supervisors whether there’s anything of that nature. The Commonwealth sought reconsideration of the order insofar as it purported to require the prosecutor, pursuant to Mass. R. Crim. P. 14, … to review files not in the Commonwealth’s possession, custody or control.” The motion judge denied the request for reconsideration, and the Commonwealth then sought relief from a single justice … pursuant to G.L. c.211, §3. After a hearing, the single justice allowed the Commonwealth’s petition, reasoning that “[h]ere, as in Commonwealth v. Wanis, 426 Mass. 639, 644 (1998), the judge erred in ordering discovery pursuant to rule 14 of records of the internal affairs division of a police department against a prosecutor who did not have possession, custody, or control of any of the requested information.” Commonwealth v. Rodriguez, 426 Mass. 647, 648 (1998). The defendant appealed. Continue reading →