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big-brother-is-wa-1550805-300x225In a recent decision, Commonwealth v. Connolly, the Appeals Court ruled that testimony from a police officer describing a video that he watched, but that the Commonwealth failed to produce in discovery, should not have been admitted.  In reversing the defendant’s conviction of assault and battery under G. L. c. 265, § 13A, the Court ruled that the Commonwealth (1) failed to authenticate the contents of the videotape and (2) failed to lay a sufficient foundation for admission of the officer’s identification testimony.

The background was as follows. “[S]ome sort of incident occurred between the defendant and the victim [a woman named White] at an apartment building.” Officer Giardina was dispatched to the scene of the incident “where he spoke with both White and the defendant. He observed that White was ‘elderly.’…. The defendant told the officer that he had been in the community bathroom … and accidentally bumped White over when he opened the bathroom door. The officer did not arrest the defendant because ‘it appeared that it was an accident.’ About a month later, … Giardina returned to the apartment building and spoke again with the defendant. This time, the defendant admitted that he and White ‘had a small argument’ before going their separate ways. The defendant also admitted that he made contact with White twice: first, when he knocked her over with the bathroom door, and second, when he bumped into her in the hallway. According to the defendant’s description of this second incident, after he ‘walked down the hallway and came back,’ he ‘was turned around looking away from [White]’ when ‘she came up behind him’; at that point he ‘quickly turned around,’ ‘didn’t realize she was there,’ and ‘just threw his hands up to stop her and knocked her down.’ That same day, … Giardina met with [a man name] Crouse, who he ‘believe[d] … was one of the building supervisors.’ The officer testified, over the defendant’s objection, that Crouse showed him ‘video of the incident.’ [Giardina] then described the contents of the video, again over the defendant’s objection, as follows: ‘In the video you can see Mrs. White going to the bathroom door. The door swings open. You see Mrs. White go into the bathroom and then she comes out from the bathroom and you also see Mr. Connolly come out from the bathroom. They go their separate ways…. Mr. Connolly was walking away from the bathroom. Mrs. White was still by the bathroom door…. [I]t appears that they’re having some sort of shouting match. And then Mr. Connolly walks back towards Mrs. White and shoves her to the ground.’” In his appeal, the defendant argued “that the officer’s testimony should not have been admitted [1] because the Commonwealth failed to authenticate the video; and [2] [because] the officer’s identifications of the defendant and White constituted inadmissible lay opinion testimony.” Continue reading →

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american-flag-series-1-1466783-300x225The Supreme Judicial Court recently issued an important decision related to the Valor Act. In the decision, Commonwealth v. Morgan, the SJC ruled that “the pretrial diversion statute [G.L. c.276A], as amended by the VALOR Act in 2012, permits a judge to continue without a finding (CWOF) or to dismiss a charge of operating a motor vehicle while under the influence of alcohol or drugs (OUI), second or subsequent offense, notwithstanding the provisions of G.L. c.90, §24, which generally proscribe such dispositions.”

The background was as follows. “The VALOR Act, St.2012, c.108, …  , amended the statute providing young adults with pretrial diversion, … c. 276A …, to include qualifying veterans and active duty members of our armed forces facing criminal charges in the District and Boston Municipal Courts.” The defendant, a veteran of the United States Army, served in Iraq and Afghanistan. While serving, “he began to experience symptoms of posttraumatic stress disorder (PTSD)…. He also had numerous physical disabilities as the result of injuries received during his” military service. After he returned to civilian life, “the defendant was stopped for erratic driving” and was arrested for operating his vehicle while under the influence of alcohol. “[N]ine years and ten months prior to [that] incident …, [the defendant] admitted to sufficient facts to warrant a finding that he had operated a motor vehicle while under the influence of alcohol or drugs…. [That] case was continued without a finding and dismissed upon [the defendant’s] successful completion of probation.” In light of the prior OUI case, the defendant was arraigned in the District Court in the present case on a charge of OUI, second offense. His attorney “sought pretrial diversion under the VALOR Act. [The defendant] was evaluated by the VA, which determined that he would benefit from such a program.” He began receiving various rehabilitative services, including detoxification, counselling regarding substance abuse, and PTSD counselling. “Three months after arraignment, … [the defendant] filed a motion, pursuant to the pretrial diversion statute, seeking dismissal of all charges should the pretrial diversion program prove successful. In the alternative, he sought to admit to sufficient facts and have the case continued without a finding. “Acknowledging that the case presented an unsettled question of law, the judge reported the following two questions …, pursuant to Mass. R. Crim. P. 34 …: [1] ‘Under the VALOR Act, may a judge exercise discretion to enter a CWOF after an admission to an OUI-second offense?’[;] [2] ‘If a CWOF is not available, may a court dismiss the charge upon successful completion of diversion, over the Commonwealth’s objection?’” Continue reading →

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injection-1422245According to an article in the MetroWest Daily News, a man and woman reportedly broke into a home in Framingham this past week. The article states that police were dispatched to the home at around 12:45pm for a report of “suspicious people.” It is unclear who made the report or what the basis for the conclusion that the people were suspicious was. When the police arrived, the door to the basement was reportedly forced open and the man and woman were on the second floor of the home. The man was in a closet and was found with syringes and a bloody needle. The man told the police that a friend had let them enter the home, but according to the police, no one with the name provided by the man lived at that address. The police arrested the man and woman and charged them with: (1) breaking and entering with the daytime with the intent to commit a felony; and (2) malicious destruction of property.

For the Commonwealth to obtain convictions against the defendants for breaking and entering in the daytime with the intent to commit a felony under G. L. c. 266, § 18, it would have to prove the following beyond a reasonable doubt: (1) that the defendants broke into a building belonging to another person; (2) that the defendants entered that building; and (3) that the defendants did so with the intent to commit a felony in that building. As to the third element of the offense, the Commonwealth must prove that the defendants intended to commit a felony at the time they broke into and entered the building.

For the Commonwealth to obtain convictions for malicious destruction of property under G. L. c. 266, § 127, it would have to prove the following beyond a reasonable doubt: (1) that the defendants injured or destroyed the building of another; (2) that the defendants did so willfully; and (3) that the defendants did so with malice. As to the second element, an act is “willful” if it is done intentionally and by design, in contrast to an act which is done thoughtlessly or accidentally. A person acts willfully if s/he intends both the conduct and its harmful consequences. As to the third element, an act is done with “malice” if it is done out of cruelty, hostility or revenge. To act with malice, one must act not only deliberately, but out of hostility toward the owner of the property. This does not require that the person committing this offense knew the identity of the owner, but it does require that defendant was hostile toward the owner, whoever that was. Continue reading →

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cigarettes-908564-mAccording to an article in the MetroWest Daily News, two men were arrested in Framingham this week for breaking into an apartment building. The article states that a tenant in the building called the Framingham Police Department at approximately 2:15am because she heard a noise coming from the basement. When the police arrived, they found the two men sitting in the basement of the apartment building smoking cigarettes. One of the men told the police that he had a friend that lived in the apartment building. He further stated that he and the other man were walking and that it was extremely cold outside, so they decided to go hang out in the basement and smoke some cigarettes. Both of the men were subsequently charged with trespass and breaking and entering.

For the Commonwealth to convict them men of breaking and entering under G. L. c. 266, § 16, it would have to prove the following beyond a reasonable doubt: (1) that the men broke into a building; (2) that they entered that building; (3) that they did so with the intent to commit a felony; and (4) that the breaking and entering happened at night. For the Commonwealth to convict the men of trespass under G. L. c. 266, § 120, it would have to prove the following beyond a reasonable doubt: (1) that the men did not have the right to enter the building; (2) that they knowingly entered the building; and (3) that they were forbidden to enter the building of another person with lawful control of the premises.

It appears that both men have a strong defense to the breaking and entering charges, as well as a potential defense to the trespass charge. As to the breaking and entering, the Commonwealth may have trouble proving both that there was a breaking, and that either of the men entered the building with the intent to commit a felony. A breaking is defined as exerting physical force and thereby forcibly removing an obstruction to gain entry. Obvious examples of a breaking are breaking a window or forcing open a door or window. Going into a building through an unobstructed entrance, such as an open door, however, is not a breaking. Given the fact that there is no indication that the men used any force to get into the building, in conjunction with the fact that one of them reportedly knew someone that lived there, it is not beyond the realm of possibility that this individual left a door open for the men, or that they entered the building through an open, unobstructed door. It also appears that the Commonwealth will have an even harder time proving the third element: that the men entered the building with the intent to commit a felony. There is no indication that there was any property damage or any items stolen from the building – to the contrary, one of the men explicitly stated that they were there smoking cigarettes, and that is exactly what the police found them doing. Therefore, there seems to be a fairly strong argument that the third element of the offense could not be met. Continue reading →

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speed-boat-1-598323-mAccording to an article in the MetroWest Daily News, a Framingham man was recently arraigned on a charge of homicide by negligent operation of a boat. The charges stem from an incident last summer when the defendant and his friends, including the alleged victim, were boating on Lake Cochituate. According to the article, the defendant initially told the police that the alleged victim was wakeboarding, that he slipped while attempting to get back into the boat, and that the defendant heard the engine hit something and saw the alleged victim floating face down. The defendant also made a written statement, however. The written statement differed from his initial account, stating that the alleged victim had grabbed the rope to continue wake boarding when he somehow went under and then came back up, hurt and unconscious.

Another witness that was also on the boat gave a third version of events. He told police that the alleged victim was on the wake board when the boat suddenly accelerated and went too close to the alleged victim. The boat hit the alleged victim and he went under. After two to three seconds, the alleged victim floated to the surface. The witness told the defendant that the alleged victim had been hit and asked if he was going to help him. The witness stated that the defendant then jumped into the water and attempted to drag the alleged victim into the boat. Again, however, the boat accelerated quickly and both the defendant and the alleged victim fell back into the water. The defendant succeeded in getting the alleged victim back into the boat after a second attempt and the three men returned to the landing dock. The alleged victim was taken to Beth Israel Deaconess Medical Center where he ultimately died. The state medical examiner ruled that he suffered a fractured skull with brain damage, as well as lacerations on his face, arms and hands from the propeller.

For the Commonwealth to prove that the defendant is guilty of homicide by negligent operation of a boat under G. L. c. 265, § 13, it would have to establish the following beyond a reasonable doubt: (1) that the defendant caused the alleged victim’s death; (2) that the defendant intended the conduct that caused the alleged victim’s death; and (3) that the defendant’s conduct was negligent. Negligent conduct is conduct that a reasonable person knows, or should know, endangers human life. Continue reading →

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k9-1-62877-mAccording to an article in the MetroWest Daily News, a Concord man was found with LSD and marijuana in his possession while he was traveling in Ashland. An officer stopped the defendant’s car in Ashland for speeding. After the officer pulled the defendant over, he approached his car and reportedly smelled burnt marijuana in the car and an odor of alcohol on the defendant. The officer then questioned the defendant and the defendant admitted that he had had a few beers and that he had just smoked marijuana.

The officer then ordered the defendant out of the car and searched him for weapons. During the pat frisk, the officer felt large bulges in the defendant’s pockets. The defendant told the officer that the bulges were money, but refused to explain why he had such a large quantity of cash. The officer then asked the defendant if he had any drugs in the car, but the defendant did not respond. The officer told the defendant that he had a K9 dog in his cruiser that was trained to detect drugs. After that statement, the defendant admitted that he had some marijuana in the trunk of the car, as well as LSD. The officer then searched the car and found three bags of marijuana, totaling slightly more than one ounce, as well as about 10 hits of LSD, and what appeared to be a drug transaction ledger. The officer also found several envelopes of cash and seized a total of $11,639. After these items were found, the defendant ultimately admitted to selling marijuana. As a result, the defendant was arrested and charged with possession with intent to distribute class B and D substances.

Fortunately for the defendant, he appears to have a strong argument that the officer did not have the right to search him in the first place. He can therefore argue that the evidence that the officer found as a result of the search should not be admitted against him. Specifically, under the Fourth Amendment to the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights, the police are not allowed to search people whenever they feel like it – there must be some legal basis for the search to be valid. If the police conduct a search without a sufficient legal basis, any evidence they find is not admissible against a defendant at trial, and the defendant can file a motion to suppress to have the evidence excluded.

Continue reading →

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stop-light-566449-mAccording to an article in the MetroWest Daily News, former New England Patriot Aaron Hernandez is facing new murder charges out of Suffolk County. Hernandez is already accused of murdering a man (Odin Lloyd) last year, and has pending murder charges in Plymouth County. The new charges stem from an incident that happened outside a nightclub in Boston’s South End in 2012, prior to the Plymouth County murder. The article states that on July 16, 2012, Hernandez allegedly got into a disagreement with two men in the nightclub – Daniel de Abreau and Safiro Furtado. Both men were later shot to death while they sat in a car outside the club. The shooter reportedly drove up in an SUV with Rhode Island plates, pulled alongside the victims’ car, and opened fire. According to a third individual who was in the car with the victims, the gunshots were fired from the rear passenger seat of the SUV.

Hernandez was reportedly seen on surveillance footage in the nightclub on the evening of the shooting, and the SUV reportedly used in the shooting was found at Hernandez’s uncle’s home in Bristol, Connecticut months after the incident took place. The SUV was dusty and had a dead battery, which led police to speculate that the vehicle had not been used for a significant period of time. Continue reading →

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I recently had the pleasure of being interviewed for an article in the Metrowest Daily news regarding the frequent and sometimes over aggressive use of civil forfeiture laws by prosecutors and police.

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http://www.metrowestdailynews.com/news/x1522324581/Drug-money-pads-DA-police-budgets