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girl-with-smart-phone-1616794-300x200In Commonwealth v. Alden, the Appeals Court affirmed the defendant’s conviction of intimidating a witness, ruling that the prosecutor’s cross-examination of the defendant was not improper even though it referred to facts that were not in evidence.

The background was as follows. “The victim in the case, E.B., was the defendant’s former girl friend…. In January, 2015, there was a criminal case pending against the defendant, in which E.B. was a potential witness. On January 19, 2015, E.B. reported to the police that she was receiving threatening text messages from someone she believed to be the defendant. The messages were received from the telephone number E.B. had used to communicate with the defendant by text messages and telephone calls every few days for over one year. The messages threatened that, if E.B. ‘went to court[, she would] be sorry[,] and that [the defendant] would have people come after [her]….’ More specifically, ‘[o]ne of [the messages] told [E.B.] to keep her hoe ass mouth shut. [Another] implied that she should kill herself….’ An additional text message stated that E.B. should ‘leave their personal stuff out of the courtroom and that if she opened her mouth it’d be … the biggest mistake she ever made.’ E.B. believed the text messages referred to her role as a witness in the [defendant’s pending] criminal case.”

Prior to his trial, the defendant filed a motion in limine seeking to exclude the text messages on the ground that “the evidence was not sufficient to authenticate [the messages] as having been authored by him. The judge … [ruled] that the Commonwealth had established by a preponderance of the evidence that the text messages were authentic.” At the trial, “[t]he defendant denied sending the threatening text messages to E.B.” “[He] testified that at the time the … messages were received by E.B., he … had been living with his aunt for ‘[a] couple of months.’ The defendant and his mother testified that the cellular telephone … associated with the number from which the … messages were received was not owned by the defendant. According to the defendant, his aunt had purchased the cell phone, but it was shared with the defendant and at least six other people who lived at his aunt’s residence,” including “his new girl friend [who] did not like E.B.” “At the close of cross-examination of the defendant, the prosecutor posed to the defendant a series of ten questions, each asking whether the defendant had sent a particular text message. Each question incorporated the exact language of the text message.” “For example, the prosecutor asked, ‘[D]o you deny saying, “I hope you kill yourself, bye-bye?”’” “In each instance, the defendant denied sending the text message. On appeal, the defendant claim[ed] that this line of cross-examination improperly relied on facts not in evidence.” Continue reading →

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cash-money-1520773-300x225The U. S. Supreme Court recently ruled in Lagos v. United States that ruled that the Mandatory Victims Restitution Act of 1996 requires the restitution of expenses incurred during a victim’s participation in government proceedings, as opposed to proceedings conducted by the victim.

The background was as follows. Petitioner Lagos “was convicted of using a company that he controlled (Dry Van Logistics) to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved generating false invoices for services that Dry Van Logistics had not actually performed and then borrowing money from GE using the false invoices as collateral. Eventually, the scheme came to light. Dry Van Logistics went bankrupt. GE investigated. The Government indicted Lagos,” who “pleaded guilty to wire fraud. And the [federal District Court] judge, among other things, ordered him to pay GE restitution” pursuant to the Mandatory Victims Restitution Act of 1996. That act “requires defendants convicted of a listed range of offenses to ‘reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.’ 18 U.S.C. §3663A(b)(4) (emphasis added).” The judge’s restitution order included a requirement that Lagos “reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in Dry Van Logistics’ bankruptcy proceedings. The [expenses] primarily consist of professional fees for attorneys, accountants, and consultants. The Government argued that the District Court must order restitution of these amounts under the Mandatory Victims Restitution Act because these sums were ‘necessary … other expenses incurred during participation in the investigation … of the offense or attendance at proceedings related to the offense.’ §3663A(b)(4). The District Court agreed, as did the … Fifth Circuit.” Lagos sought certiorari. Continue reading →

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orange-honda-motorcycle-1-1479792-300x229In Collins v. Virginia, the U. S. Supreme Court ruled that “the automobile exception [to the Fourth Amendment’s warrant requirement] does not permit [a police] officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.”

The background was as follows. An officer “saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded … [the officer’s] attempt to stop the motorcycle.” Subsequently, the police “learned that the motorcycle likely was stolen and in the possession of petitioner … Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.” From his cruiser, “Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp.” Although Rhodes did not have a warrant, he “walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. In order ‘to investigate further,’ … [he] pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident…. Rhodes … returned to his car to wait for Collins. Shortly thereafter, Collins” entered the house. Rhodes knocked on the front door of the house and Collins answered. During the ensuing conversation, Collins “admitted that the motorcycle was his and that he had bought it without title…. Rhodes then arrested Collins.” After the return of an indictment charging Collins with receiving stolen property, he filed a motion to suppress “the evidence that … Rhodes had obtained as a result of the warrantless search of the motorcycle. Collins argued that … Rhodes had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment.” The judge denied the motion and Collins was convicted. On appeal, the Supreme Court of Virginia ruled that the denial of the motion to suppress was proper under the automobile exception to the warrant requirement. Collins sought certiorari. Continue reading →

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1174747_by_a_beerIn Commonwealth v. Nascimento, the Supreme Judicial Court affirmed the dismissal of a complaint charging the defendant with operating a motor vehicle after his license had been administratively suspended for OUI on the ground that the statute under which the defendant was charged (G.L. c.90, §23, third par.) did not apply to the circumstances of his case.

The background was as follows. “On January 24, 2016, a State police trooper stopped the defendant’s vehicle after observing him commit several marked lane violations…. During the stop, the defendant was exhibiting signs of possible intoxication, including glassy or bloodshot eyes and slurred speech. A number of field sobriety tests were conducted, which indicated that the defendant was intoxicated. A breathalyzer test also was administered, which measured the defendant’s alcohol level at 0.132 per cent. The defendant was arrested and transported to the State police barracks, where he submitted to a blood alcohol test that registered his alcohol level to be 0.13 per cent. The defendant was given a citation and … his right to operate a motor vehicle was administratively suspended for thirty days” pursuant to G.L. c.90, §24(1)(f)(2), which “allows police to confiscate immediately the license of an individual who has failed a breathalyzer test.” “The defendant was then arraigned for, among other things, OUI, in violation of G.L. c.90, §24(1)(a). While the defendant’s charges were pending, on February 17, 2016,” the defendant’s vehicle was again stopped by a State trooper and when “the defendant admitted that his license had been suspended,” he “was arrested and charged with operating a motor vehicle after license suspension for OUI, in violation of [G.L. c.90,] §23, third par. The defendant moved to dismiss the charge of operating after a suspension for OUI. Concluding that §23, third par., did not apply to the defendant, the judge granted the motion in part and dismissed the OUI portion of the charge, leaving the defendant charged with operating after a suspension.” The Commonwealth appealed.  Continue reading →

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gavel-4-1236439-300x200The SJC vacated the defendant’s stalking conviction in Commonwealth v. Torres because the judge erred (1) by denying the defendant’s motion pursuant to Mass. R. Crim. P. 17 for production of records in the Attorney General’s office pertaining to the complainant’s application to the victim compensation program; (2) by giving the jury confusing instructions on an element of stalking; and (3) by redacting exculpatory information from the complainant’s dental records.

The background was as follows. The alleged crime occurred in the context of the deterioration of the romantic relationship between the defendant and the victim. “The complainant testified at trial that the defendant physically and verbally abused her during their relationship.” On the particular date in question, the defendant “grabbed her, pushed her up against a closet, and head-butted her between her nose and mouth. She said that her teeth broke as a result of this action…. The complainant … applied for victim compensation, through the Attorney General’s office,” pursuant to G.L. c.258C, §2(c), “to pay for the cost of having her teeth repaired.” The defendant was charged with nine offenses, including stalking. Prior to trial, upon learning that the complainant had applied to the Attorney General’s victim compensation program, the defendant sought access to records in the Attorney General’s office pertaining to that matter. The defendant sought the records “as mandatory discovery [under Mass. R. Crim. P. 14], and, in the alternative, as third-party records, pursuant to Mass. R. Crim. P. 17 … and the procedures [set forth in] Commonwealthv. Dwyer, 448 Mass. 122, 145-146 (2006). The judge concluded that the records could not be produced or disclosed to the defendant because the Attorney General’s regulations [940 Code Mass. Regs. §14.09] mandated that such records be kept confidential.” Eventually, the defendant was convicted of only one offense, stalking.

In its response to the defendant’s first appellate claim, the SJC ruled that the judge erred in denying the defendant’s rule 17 motion on grounds of confidentiality, because, in the Court’s view, “whether records are confidential does not affect whether they are discoverable…. Rather, confidential records, such as those in a victim compensation fund file, are subject to normal discovery rules.” The Court opined that “[t]he denial of the defendant’s request for records under rule 17 prejudiced him. The defendant established that the records … were relevant to” the complainant’s credibility and potential bias, which were probably significant issues for the jury. The judge’s ruling interfered with the defendant’s due process right to explore those issues by cross-examining the complainant on the subject of her request for financial compensation. (The Court also opined that “the records in the Attorney General’s files are not subject to mandatory disclosure under rule 14” because they “‘are not within the control of the prosecution….’ Commonwealthv. Lampron, 441 Mass. 265, 268 n.4 [2004].”) Continue reading →

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air-soft-gun-1-1500175-300x189The Supreme Judicial Court reversed the defendant’s conviction of unlawful possession of a loaded firearm, G.L. c.269, §10(n), in Commonwealth v. Brown because the evidence was insufficient to prove that the defendant knew that the firearm discovered by the police in the vehicle driven by the defendant was loaded.

The background was as follows. A state police trooper (Moran) stopped a vehicle the defendant was driving … for a defective rear brake light. There were two passengers in the vehicle.” Moran determined that because the driver’s licenses of the defendant and [one of the passengers] were suspended and “because [the other passenger] did not have a … license, the vehicle would have to be towed from the highway, as none of the occupants legally could drive it. In preparation for towing, Moran conducted an inventory search of the vehicle,” in the course of which he “discovered a handgun loaded with five rounds of ammunition in the console between the rear passenger seats.” “The defendant was convicted of unlawful possession of a firearm in a vehicle [c.269, §10(a)] and unlawful possession of a loaded firearm in a vehicle [c.269, §10(n)].” “In his appeal…, [he] challenged the sufficiency of the evidence to sustain the conviction under G.L. c.269, §10(n), arguing that the Commonwealth was required [but failed] to prove that he knew the firearm was loaded.” Continue reading →

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to-the-dump-1-1237954-300x277In Commonwealth v. Lee, the Supreme Judicial Court affirmed the defendant’s conviction of first-degree murder, rejecting the defendant’s contention that the judge seated a biased juror, thereby violating the defendant’s constitutional right to a fair and impartial jury.

The background was as follows. The victim was the defendant’s father. A woman for whom the defendant had done housework (Ruth) “saw the defendant walk behind her house carrying white garbage bags. Soon after, the defendant left without any garbage bags.” Ruth and her daughter “checked the backyard for the garbage bags. They found white garbage bags in a compost bin, and inside one of the garbage bags, they found a human head. When police arrived, officers found two arms and two legs in the other garbage bags. Ruth reported that she had seen the defendant carrying white garbage bags behind her house. Police officers learned that the defendant’s father had sought an abuse prevention order against him three days earlier. Officers went to the defendant’s father’s house to check on his safety. In the house, officers found white garbage bags and a human torso in a plastic tub. A fingerprint on the tub was later identified as the defendant’s.” When the police interviewed the defendant, he told them “that he had dismembered his father but not killed him.” “During jury empanelment, the judge informed each juror that participating in the trial would include viewing ‘graphic photos of body parts’ and inquired about the impact of those photographs on each juror’s impartiality. The defendant contends that prospective juror no. 226 ‘expressed doubts about his ability to be fair and impartial’ and was seated on the jury nonetheless. The transcript contains the following exchange between the judge and prospective juror no. 226: ‘The judge: “All right. In this trial you will see some graphic photos of body parts, and the question is whether you think that would affect your ability to be a fair and impartial juror?” The juror: ‘Yes.’ [] (Emphasis supplied.)’” At the time, “neither the defendant nor the Commonwealth opposed the juror’s empanelment. Later, [however,] when discussing another juror, the defendant asked to challenge prospective juror no. 226. The judge declined to allow the defendant [to] do so.” On appeal, “[t]he defendant argue[d] that the seating of prospective juror no. 226 was structural error [requiring] a new trial.”

Continue reading →

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dna-1-1444488-300x300The Supreme Judicial Court affirmed the defendant’s conviction for first degree murder in Commonwealth v. Seino, despite the erroneous admission of hearsay evidence through the testimony of substitute expert witnesses.

The background was as follows. The day before the victim was killed, “the defendant’s roommate warned [him] that he would be asked to move out [of their shared apartment] if he did not pay the total amount that he owed by the following day.” That evening, the defendant spent time at a local bar. Also at the bar was the victim, who “appeared to be drunk … and ‘flaunt[ed]’ [a large sum of cash] such that one of his friends urged him to ‘put [it] away.’” The defendant left the bar at 12:30 a.m. “The victim left the bar when it closed” at 1:00 a.m. At 1:30 a.m., the defendant gave his roommate the overdue rent money. At 7:00 a.m., “[t]he victim’s lifeless body was discovered” at an outdoor location “with contusions to his nose and the back of his head. Although his wallet was still on his person, most of the cash he had had was missing. Investigators took samples from the defendant’s clothing, including a snippet from the left front jeans pocket and a snippet from the front of the victim’s shirt, both of which had bloodstains. The DNA extracted from the jeans pocket sample was a mixture that matched the DNA profiles of both the victim and the defendant. The DNA extracted from the bloodstain on the victim’s shirt matched the profile of the defendant alone. The defendant, who testified at trial, offered weak alibi evidence.” On appeal from his convictions of first-degree murder and armed robbery, he contended that his constitutional right to confront witnesses was violated by the admission of substitute expert testimony regarding the DNA test results. Continue reading →

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securicam-1243585-300x228In Commonwealth v. O’Neal, the Appeals Court reversed the denial of the defendant’s motion for a new trial on an indictment charging him with assault and battery by means of a dangerous weapon, because the Commonwealth failed to preserve a videotape of the incident.

The background was as follows. Police officers responded to reports of an altercation outside a bar. At the scene, the defendant “was yelling at” some other people. He was “unsteady on his feet, smelled of alcohol, and had slurred speech. Concluding that the defendant was intoxicated, the officers placed him into protective custody … and transported him to the police station…. Once at the station garage, the defendant was unwilling or unable to exit the cruiser. The officers therefore pulled him out of the vehicle, and placed him on the ground after he could not, or would not, stand. At that point, the officers radioed their supervisors inside the station for assistance, and they were brought a restraint chair to transport the defendant to the booking area. A restraint chair is designed to immobilize unruly detainees. It has a seat that is tilted so that … the person sitting there is lying back at an angle with his knees elevated above his hips. The chair has straps to be used to hold in place a detainee’s wrists, ankles, lap and shoulders. In this instance, however, the officers did not use the available straps to secure the defendant…. Instead, after placing him in the chair with his hands handcuffed behind his back, they left him that way for the trip into the station. According to the defendant, who testified at trial, this meant that his entire weight fell on his handcuffed wrists, causing him ‘excruciating pain.’…. The failure of the police to secure the defendant in the restraint chair appears to be at odds with a written policy that emerged only in postconviction discovery…. At least at one point during the trip from the garage to the booking area, the defendant’s [unsecured] foot … was hanging off the side of the chair,” thus “imped[ing] the movement of the chair…. [In response,] the police officers tilted the restraint chair back in order to keep [it] moving…. The defendant described the tilting of the chair as a sudden jerking that caused him to flail in it. He admitted that his foot came into contact with one of the officers, but he characterized it as an accidental ‘knee-jerk reaction’ to the sudden tilting of the chair. The officers described it as a … deliberate [and forceful] kick to the … stomach,” which the officer who was struck described as painful. On the basis of the alleged kick, the defendant was indicted for assault and battery by means of a dangerous weapon, a shod foot. Continue reading →

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3d-illustration-a-group-of-trunks-1412102-300x225In Commonwealth v. Hernandez, the Appeals Court affirmed the denial of the defendant’s motion to suppress a firearm seized by the police in the defendant’s apartment.  In its decision, the Appeals Court ruled that “the defendant’s coinhabitant … validly consent[ed] to a warrantless search of a closed, unlocked suitcase located in a common closet of a bedroom she shared with the defendant.”

The basic facts were as follows. A police officer (Stilwell) “responded to a call [regarding] a domestic threat at the defendant’s apartment, and was met by Flor Prudencio, the victim. Prudencio shared the one-bedroom apartment with the defendant and their three children…. Prudencio reported that approximately three weeks earlier, she and the defendant had had an argument about the custody of the children. During the argument, the defendant told Prudencio that ‘if he wasn’t able to see the children … he would shoot her and kill her.’ Prudencio went on to tell the officer that she was concerned because the defendant had access to a firearm. Prudencio then brought the officer into the apartment’s only bedroom, which she shared with the defendant and the children. The bedroom had … a single closet. Prudencio opened the closet door. Inside were men’s and women’s clothes, bags on the floor, and children’s items; some of the items were Prudencio’s…. Prudencio pointed to a suitcase on the top shelf of the closet, about five feet up; she stated that the defendant’s firearm was located in the suitcase…. Stilwell pulled the suitcase down…. [It] did not have a locking mechanism” and “[i]t did not have a name or tag on it…. Stilwell opened the suitcase in Prudencio’s presence. Prudencio stated that the firearm was inside a red ‘Huggies’ container within the suitcase. Inside the Huggies container … Stilwell found a loaded revolver and a ‘baggie’ of ammunition. He confiscated the weapon…. Prior to opening the suitcase, … Stilwell did not ask Prudencio to whom the suitcase belonged, nor did Prudencio state whose suitcase it was.” After the issuance of a criminal complaint charging the defendant with firearm offenses and a related offense, he filed a motion to suppress the revolver. The motion was denied. At the ensuing trial, the defendant was convicted on all charges. On appeal, he “acknowledge[d] that Prudencio actually consented orally and, moreover, that she had authority, as the defendant’s coinhabitant, to consent to a search of the apartment and of the closet. But he contend[ed] … that Prudencio’s authority did not extend to the closed, unlocked suitcase.”  Continue reading →