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gavel-2-1236453-300x200The Massachusetts Sentencing Commission recently approved a series of changes to the Massachusetts Sentencing Guidelines. The general formula (criminal history and offense level) for calculating a sentence range has remained the same, but the new guidelines have a number of major changes. The key changes are as follows:

  1. The Commission recommends that judges and lawyers consider the disparate racial, ethnic, and socioeconomic impact of the criminal justice system and give careful attention to increasing and widespread concern that the system is unfair to people of color and the poor;
  2. The Commission cautions judges and lawyers on the use of the guidelines for juveniles and emerging adults, advising that the Guidelines are not suitable for application to juveniles, and suggesting that considerations of adolescent brain development may be important to the sentencing of young “adults;”
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slow-shutter-1171923-1-300x200In a recent Appeals Court decision, Commonwealth v. Ross, the Appeals Court ruled that the evidence was sufficient to support the defendant’s conviction of negligent operation of a motor vehicle.

The background was as follows. At 9:50 p.m., a police officer observed the defendant driving his vehicle at a high rate of speed on “a public two-lane road with narrow, unpaved shoulders and no breakdown lane. The road is lined by trees, telephone poles, and residential fences along where the incident occurred. The officer testified that the speed limit was thirty-five miles per hour. Using radar, [he] determined that the defendant was travelling at fifty miles per hour. The officer activated his police cruiser’s lights, and the defendant promptly pulled over to the side of the road. The officer observed that the defendant was the driver and noticed two … passengers in the [vehicle]. When the defendant lowered the driver’s side window, the officer ‘immediately detected … a strong odor of an alcoholic beverage’ and observed that the defendant’s eyes appeared ‘very glossy.’ The officer asked the defendant to get out of the vehicle and then performed three field sobriety tests on him.” “The officer testified that, in his opinion, the defendant failed to perform two [of the] tests satisfactorily, and failed to perform [the] third test ‘[a]s instructed.’” Also, “[w]hile conducting the sobriety tests, the officer observed that the defendant … spoke in ‘thick,’ slurred language; and … emitted the smell of alcohol as he spoke.” “The defendant ultimately was tried by a jury on a complaint charging him with (1) operating a vehicle while under the influence of intoxicating liquor (OUI) … and (2) negligent operation of a motor vehicle. The jury acquitted the defendant of OUI and convicted him of negligent operation.” Continue reading →

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booze-1481628-300x226The Supreme Judicial Court recently issued a decision – Commonwealth v. Wolfe – which vacated a defendant’s conviction of operating a motor vehicle while under the influence of alcohol because the judge erroneously instructed that the jury “should disregard the lack of evidence of a breathalyzer test, blood test, or field sobriety test.”

The background was as follows. At 2:00 a.m. on the date in question, a police officer observed the defendant’s vehicle “being driven with a broken taillight. The officer followed the vehicle for [several] minutes. During that time, [he] witnessed the vehicle cross the double yellow line in a ‘jerking motion’ to avoid hitting a snow bank, and later saw the vehicle cross the double yellow line again while executing a turn. The officer then stopped the vehicle…. Upon approaching the vehicle, the officer observed the defendant in the driver’s seat with ‘bloodshot glassy eyes, slurred speech and a distinct odor of alcohol coming from his breath when he spoke.’…. The defendant gave ‘delayed’ responses to several of the officer’s questions. The officer then asked the defendant to step out of the vehicle and walk back to the officer’s patrol vehicle. During this walk, the defendant used his own vehicle ‘for balance.’ Another officer at the scene testified that the defendant was ‘swaying’ and ‘unsteady on his feet.’ The defendant was placed under arrest and transported to the … police station for booking.” At the defendant’s trial, “[t]here was no mention … of the lack of a breathalyzer test or other alcohol-test evidence. Nevertheless, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests, field sobriety tests, or blood tests.” In his appeal, the defendant challenged the judge’s instruction. Continue reading →

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dpd-1497175-300x225In Commonwealth v. O’Leary, a divided panel of the Appeals Court reversed the trial court judge’s order “dismissing a multiple-count indictment [which charged the defendant with various motor vehicle offenses] on the ground that the police failed to make a timely delivery of the citation pursuant to G.L. c.90C, §2.”

The background was as follows. The defendant was involved in a motor vehicle accident when the vehicle “he was driving left the highway, hit an exit sign, and rolled over five times.” The defendant and his passenger were seriously injured and were transported by ambulance to a hospital. A state trooper (Gray) “followed the ambulances to the hospital. When he arrived at the emergency room, he left his citation book in his patrol vehicle…. Gray … spoke with the defendant. Gray noticed that [the defendant’s] eyes were glassy and his speech was slurred. [Gray] also noticed the odor of alcohol coming from the defendant. The defendant told Gray he had had ‘a couple of beers.’…. At the time of the accident, the defendant was on probation for operating under the influence of alcohol, subsequent offense. His license was suspended and he was not legally permitted to drive…. Gray told the defendant he would be receiving ‘a criminal summons in the mail.’ Gray’s intent was to complete his investigation, file his report with his supervisor, and then send a citation to the defendant. After filing his report with his supervisor, Gray waited nine days for the report to be approved. Once it was approved …, it was mailed to an address on file with the State police. Due to an incorrect zip code, however, it was another five or six weeks before the defendant received the citation in the mail.” After the return of indictments charging the defendant with operating while under the influence of alcohol, negligent operation, and operating with a suspended or revoked license, the defendant filed a motion to dismiss, which was allowed. Continue reading →

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colorado-ski-trip-1378259-1-300x225In Commonwealth v. Dew, the Supreme Judicial Court affirmed the defendant’s conviction of masked armed robbery, ruling that the judge properly admitted evidence of the victim’s out-of-court show-up identification of the defendant, and concluding concluded that the judge properly allowed the victim to make an in-court identification of the defendant. Regarding the latter holding, the Court rejected the defendant’s contention that “all in-court identifications preceded by out-of-court show-up identification procedures” should be precluded because show-up identifications are inherently suggestive.

The basic facts were as follows. On the date in question, “the victim, a pizza delivery driver, telephoned 911 to report that he had been robbed at knifepoint” by a black male on a street in Brockton. A police officer (Abrahamson) “responded to the scene and spoke to the victim. Abrahamson immediately drove” to the apartment of a man named Torres, “located a short distance away…. Abrahamson suspected, from previous interactions with Torres and the defendant, who is African-American, that the two might have been involved in the armed robbery. Torres’s mother allowed Abrahamson to enter the apartment. Once inside, Abrahamson found the defendant hiding in Torres’s bedroom…. Other occupants of the apartment informed Abrahamson that the defendant had left the apartment earlier in the evening” and “Torres’s mother told Abrahamson that she had overheard the defendant using his cellular telephone to order a pizza. Abrahamson brought the defendant and another person who had been in the apartment to the end of the driveway for a show-up identification…. The victim immediately identified the defendant as the robber. The show-up was conducted ‘[n]o more than thirty minutes, and perhaps less’ from the time that the victim reported the crime.” After the return of the indictment against the defendant, he filed a motion to suppress the show-up identification. The judge denied the motion. Later, the judge, invoking principles set forth in Commonwealth v. Collins, 470 Mass. 255 (2014), allowed the Commonwealth to present to the jury an in-court identification of the defendant by the victim because the show-up identification had been unequivocal. Continue reading →

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dutch-weed-1595294-200x300The Supreme Judicial Court recently issued a decision – Commonwealth v. Gerhardt – on the admissibility of field sobriety tests for marijuana use. The decision was issued in response to four reported questions by a trial judge in Worcester Country. In its opinion, the SJC set forth guidelines regarding “the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence  of marijuana.”

The background was as follows. At 12:20 a.m. of the date in question, a state trooper (French) stopped the vehicle being driven by Gerhardt because the rear lights were not on. French approached the vehicle, in which the defendant and two passengers were seated. The trooper “saw smoke inside the vehicle” and “detected ‘the distinct odor of burnt marijuana.’” He “asked when the occupants had smoked marijuana. One of the passengers responded that they had smoked about twenty minutes previously. Gerhardt said that it had been about three hours earlier. French walked to the driver’s side of the vehicle and noticed that the light switch was in the ‘off’ position. He asked Gerhardt how much he had smoked. Gerhardt responded that he had smoked approximately one gram of marijuana. French then asked Gerhardt to step out of the vehicle to perform” FSTs. “French administered a number of [tests], including the horizontal gaze nystagmus test (HGN); the nine-step walk-and-turn test (WAT); and the one-leg-stand test (OLS). French also asked Gerhardt to recite the alphabet from D to Q and to count backward from seventy-five to sixty-two. Gerhardt had no nystagmus indicators, and was able to recite the requested portion of the alphabet and to count backwards.” However, he did not perform the WAT or the OLS as instructed.” As a result, “French concluded that Gerhardt was under the influence of marijuana.” Subsequently, Gerhardt was charged “with operating a motor vehicle while under the influence of drugs, pursuant to G. L. c.90, §24(1)(a)(1), and traffic violations.” “Gerhardt filed a motion for a DaubertLanigan hearing, seeking to challenge the admissibility of evidence concerning his performance on [the] FSTs conducted after the stop…. After an evidentiary hearing, [the] judge reported four questions …, pursuant to Mass. R. Crim. P. 34[:] ‘1. Whether police officers may testify to the administration and results of standard [FSTs] in prosecutions for [o]perating [u]nder the [i]nfluence of [m]arijuana as they do in [o]perating [u]nder the [i]nfluence of [a]lcohol prosecutions? 2. Are the effects of marijuana consumption sufficiently within the common knowledge and experience of a lay person, such that a non-expert witness may offer opinion evidence whether a person is “high” on marijuana? 3. May a police officer, who has not been qualified as an expert witness, testify to the effects of marijuana on a person such as bloodshot eyes, lack of coordination and/or balance, reaction times, slow speech, paranoia, or relaxed responses[?] 4. May a juror rely on their own experience and common sense about the effects of marijuana as they may do in an [o]perating [u]nder the [i]nfluence of [a]lcohol prosecution?’” Continue reading →

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balance-1172786-300x204In Commonwealth v. Brown, a unanimous Supreme Judicial Court, pursuant to its authority under G. L. c.278, §33E, reduced the defendant’s conviction of first degree felony-murder to second degree murder, and a majority of the Court ruled “that the scope of felony-murder liability should be prospectively narrowed, [such] that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.”

The background was as follows. On the evening of the incident in question, “the defendant was a passenger in a [vehicle] that was being driven around [a] section of Lowell. The other occupants of the vehicle were [three of the defendant’s] friends,” Hernandez, Hill, and Doby. Hernandez, the driver, parked the car. [He and] Hill … got out of the vehicle and Hernandez removed a firearm from the trunk.” “[W]hile the defendant and Doby waited in the vehicle,” Hernandez and Hill confronted two women who were walking down the street. “Hill stood and watched from a few feet away as Hernandez, gun in hand, grabbed [the women’s] purses. The two men returned to the vehicle, and Hernandez drove away.” Later that night, at the defendant’s apartment, “Hernandez stashed the handgun he had used in the robbery (a nine millimeter pistol) in a kitchen cabinet.” Later, at around midnight, Jamal and Karon McDougal and a friend of theirs (Silva) visited the defendant’s apartment. In the defendant’s presence, “Jamal asked Hernandez if he wanted to participate in” a robbery and Hernandez agreed to do so. “Silva joined them as the getaway driver…. Hernandez retrieved his gun from the kitchen cabinet … and tucked it inside his waistband…. Hernandez asked the defendant for a hooded sweatshirt so that he could ‘hide his face.’…. The defendant gave Hernandez a … hooded sweatshirt…. Jamal and Karon also borrowed hooded sweatshirts from the defendant. Before leaving, Jamal asked to borrow the defendant’s ‘burner’ (gun)…. The defendant … gave Jamal a .380 pistol that had been stored underneath his bed.” Jamal, Karon, Hernandez, and Silva left the defendant at his apartment and drove to the townhouse where the two intended victims resided. Jamal, Karon, and Hernandez barged into the townhouse. In the ensuing chaotic altercation, the residents were shot to death. The intruders departed without taking any of the victims’ belongings. “Police recovered five nine millimeter cartridge casings from” the crime scene. The perpetrators drove back to the defendant’s residence where Hernandez talked about having shot the victims. “Jamal returned the defendant’s gun to him…. Within an hour of the shootings, Lowell police” “stopped [Hernandez’s] vehicle, arrested Hernandez and Hill, and found the gun Hernandez had used in the shooting hidden in the trunk.” A few days later, the defendant was interviewed by the police. He admitted that he had given his gun to the perpetrators and “that he believed they were going to rob someone, based on conversations that he overheard inside his apartment and the fact that Hernandez had robbed two women earlier that evening.” At the defendant’s trial, the Commonwealth’s theory was “that the defendant was liable as an accomplice to felony-murder because he supplied [the perpetrators] with a pistol and provided hooded sweatshirts to [them] to help them conceal their identities.” The defendant was convicted of two counts of first degree felony-murder and related offenses, “with the underlying offenses of attempted armed robbery and [armed] home invasion as the predicate felonies.” In his appeal, “[t]he defendant’s primary argument … [was] that the Commonwealth failed to produce sufficient evidence to prove that he … shared the intent of the other participants to commit” the underlying felonies. “The defendant contend[ed] also that [the SJC] should abolish the felony-murder rule” as unconstitutional. Continue reading →

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gavel-2-1236453-300x200In Commonwealth v. Perez, the Supreme Judicial Court reviewed a juvenile defendant’s sentence and ruled “that where a juvenile is sentenced for a nonmurder offense or offenses and the aggregate time to be served prior to parole eligibility exceeds that applicable to a juvenile convicted of murder, the sentence cannot be reconciled with art. 26 [of the Massachusetts Declaration of Rights] unless, after a hearing on the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478 (2012) (Miller hearing), the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder.”

The background was as follows. “In the early morning hours of December 23, 2000, the juvenile defendant, … who was then seventeen years of age, embarked on a crime spree…. Accompanied by his adult uncle and armed with a handgun, the defendant committed two robberies … within a span of thirty minutes. While attempting a third robbery, he shot the intended victim, a plain-clothed … police officer. In November, 2001, a Superior Court jury convicted the defendant of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and related firearms offenses.” “Before pronouncing sentence, the trial judge stated, ‘I recognize … that at the time of these offenses [the defendant] was only [seventeen] years old. And young men of the age of [seventeen] frequently do not have the maturity to make good judgments. But the law makes them responsible for their acts as adults, nonetheless.’” “The judge sentenced the defendant to multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one-half years, with parole eligibility after twenty-seven and one-half years. In 2015, after [the SJC’s] decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015)” — “declar[ing] unconstitutional G.L. c.265, §2, to the extent that it mandated a sentence of life in prison without the possibility of parole for a juvenile convicted of murder in the first degree” — the defendant filed a motion for resentencing under Mass. R. Crim. P. 30 (a).” In the motion, he “argu[ed] that [his] aggregate sentence … violated the prohibition on cruel and unusual punishment under … art. 26 …, by requiring him to serve twelve and one-half years longer before parole eligibility than a juvenile defendant convicted of murder [who would be eligible for parole after fifteen years]…. A Superior Court judge denied the motion, and the defendant appealed.” “The crux of his [appellate] argument [was] that [the SJC’s] decision in Diatchenko I created a presumptive ceiling on parole eligibility for crimes less serious than murder, and that a sentence that treats him more harshly than a juvenile convicted of murder therefore violates the principle of proportionality inherent in art. 26.” Continue reading →

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jail-1211438-200x300In an important decision for indigent defendant, the Supreme Judicial Court recently issued an opinion – Commonwealth v. Brangan – holding that a judge must consider a defendant’s ability to pay when setting bail at a bail hearing. The SJC specifically ruled that “in setting the amount of bail, whether under G.L. c.276, §57 or §58, a judge must consider a defendant’s financial resources, but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant’s ability to provide the necessary security for his appearance at trial. Where, based on the judge’s consideration of all the circumstances, including the record of defaults and other factors relevant to the likelihood of the defendant’s appearance for trial, neither alternative nonfinancial conditions nor a bail amount the defendant can afford will adequately assure his appearance for trial, the judge may set bail at a higher amount, but no higher than necessary to ensure the defendant’s appearance for trial…. [W]here it appears that a defendant lacks the financial resources to post the amount of bail set, such that his indigency likely will result in a long-term pretrial detention, the judge must provide written or orally recorded findings of fact and a statement of reasons for the bail decision.”

The background was as follows. In 2014, Brangan was arrested for allegedly robbing a bank while masked. “At the time, [he] was on probation following a prison sentence … for rape of a child and related charges.” On the basis of the armed robbery charge, proceedings were initiated to revoke Brangan’s probation in the rape case. “[A] judge of the Superior Court set bail at $20,000 cash … based on the probation violation notice.” In the armed robbery case, bail was set at $50,000 cash (later reduced to $20,000). “Brangan remained in custody pending his trial.” Over the ensuing three and one-half years, he “followed a long and tortuous path to seek relief from his pretrial detention, filing four successive petitions in the county court pursuant to G.L. c.211, §3.” In the fourth petition, he argued “that the Superior Court judge had failed to give meaningful consideration to his inability to make the [$40,000 aggregate] bail….. The single justice denied the fourth petition, ruling that Brangan’s inability to make a particular bail amount did not render the Superior Court judge’s order a functional denial of bail, and did not establish, without more, that Brangan was entitled to extraordinary relief under … c.211, §3. [Brangan] appealed from the single justice’s order pursuant to S.J.C. Rule 2:21.”

In its decision, the SJC reversed the single justice’s order and remanded the case for a new bail hearing, because “it does not appear that the judge … considered Brangan’s financial resources in setting the bail.” The Court opined that “[a] bail that is set without any regard to whether a defendant is a pauper or a plutocrat runs the risk of being excessive and unfair.” The Court noted that G.L. c.276, §57, relating to the setting of bail in the Superior Court, does not require a judge to consider a defendant’s financial resources, although §58 (relating to bail in the District Court, the BMC, and the Juvenile Court) does explicitly require consideration of that factor. In any event, stated the SJC, “[a] Superior Court judge … must … consider a defendant’s financial resources when setting bail” under common law and constitutional principles. “Both the Eighth Amendment … and art. 26 of the Massachusetts Declaration of Rights prohibit excessive bail.” Moreover, a “defendant’s right to an individualized bail determination that takes his or her financial resources into account is … supported by the constitutional principles of due process and equal protection.” Continue reading →

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breakout-1181601-300x213The Supreme Judicial Court recently issued a decision – Commonwealth v. Francis – addressing plea agreements and when the court may order the specific performance of such an agreement by the Commonwealth. In its decision, the SJC reversed the allowance of the defendant’s motion for a new trial, ruling that that the judge abused her discretion in ordering the specific performance of a plea agreement in the defendant’s case.

The background was as follows. In 1967, the defendant was convicted of first-degree murder. “In 1989, a … judge allowed the defendant’s motion for a new trial because of errors in the reasonable doubt jury instruction given in his 1967 trial.” In 1994, the defendant reached an agreement with the Commonwealth, pursuant to which “[t]he defendant would plead guilty to [second-degree] murder … in exchange for the opportunity to immediately seek parole, which the Commonwealth would not oppose. If the parole board declined to grant the defendant parole, the agreement allowed the defendant to withdraw his guilty plea and proceed to trial on the [first-degree] murder … charge.” At the plea hearing, after the defendant pleaded guilty, “the defendant’s counsel made representations that there was an understanding between the parole board and the defendant that the defendant would not be required to be in custody to be considered for parole. To effectuate the understanding as it was represented, the plea judge — over the Commonwealth’s objection — stayed the execution of the sentence” for second-degree murder “while the defendant’s parole application was being considered. The parole hearing was scheduled for August, 1994.” Before the scheduled hearing date, “the parole board informed the parties and the plea judge of its position that pursuant to the terms of G.L. c.127, §133A, the defendant had to be in custody in order for the parole board to have jurisdiction over him. Because the defendant disagreed with returning to custody, the August parole hearing was canceled.” Over the ensuing six years, various efforts were made to resolve the custody issue, but when these efforts proved unsuccessful, a judge “allow[ed] the defendant to withdraw his guilty plea to murder in the second degree.” In 2003, “[t]he defendant was retried on the original indictment for [first-degree] murder…. His conviction of that crime was upheld by [the SJC]….  In 2013, the defendant filed a motion for a new trial…. [T]he judge[,] who was the judge at the defendant’s 2003 trial[,] … granted the motion based on ‘principles of fundamental fairness and due process,’ even though she found that the Commonwealth had not reneged on the plea offer. The judge ordered specific performance of the 1994 plea agreement, and allowed the defendant to plead guilty to murder in the second degree. The judge reasoned that this was the correct result because ‘another party to the negotiation, the [plea judge], adopted an interpretation of the [s]tatute — that the Parole Board could entertain the defendant’s request for parole and conduct a hearing at the Board’s office without his surrendering into [Department of Correction] custody — on which the defendant relied to his detriment.’” The Commonwealth filed a gatekeeper application in the single justice session of the SJC, which was allowed. Continue reading →