Published on:

calendar-1192688-300x231The Appeals Court affirmed the denial of the defendant’s motion to dismiss indictments charging drug offenses, in Commonwealth v. Polanco. In its decision, the Appeals Court ruled that the time that elapsed while the charges were pending in District Court should not be included in the speedy trial calculation under Mass.R.Crim.P. 36(b).

The background was as follows. In the course of a drug investigation in May, 2013, the police arrested the defendant. “On May 8, 2013, the Lowell District Court issued a complaint charging the defendant with several drug-related offenses and arraigned him [the] same day. After two months, a District Court judge dismissed the charges for failure to prosecute. Over one year later, on August 7, 2014, a Middlesex grand jury returned indictments arising from the same incident, charging the defendant with [the same offenses as those charged in the District Court complaint]. The defendant was arraigned in Superior Court on August 13, 2014. On October 30, 2014, the defendant moved to dismiss the charges, alleging a violation of rule 36(b).” The motion was “denied, the defendant was ultimately convicted of both charges by a jury,” and the defendant appealed.

In its decision, the Appeals Court stated, “Under rule 36(b)(1)(C), a defendant is entitled to dismissal if he is not brought to trial ‘within twelve months after the return day in the court in which the case is awaiting trial.’” “Because the case was awaiting trial in the Superior Court when the defendant moved to dismiss, the return date must be calculated from his August 13, 2014, arraignment in that court [not from the date of the defendant’s arraignment on the criminal complaint in District Court]. The Reporter’s Notes to Rule 36(b)(1) … are consistent with this conclusion, stating that, ‘if … the Commonwealth elects to proceed by direct indictment in a case commenced by complaint which is within the District Court’s jurisdiction[,] … the time limits of this rule begin anew upon the return day in the Superior Court.’” Continue reading →

Published on:

whopper-1496664-300x203The Appeals Court recently reversed the defendant’s conviction of armed robbery while masked in Commonwealth v. Anitus, finding that “there was insufficient evidence to support” a conclusion that DNA found on items at the crime scene was placed there during the commission of the crime.

The background was as follows. “[T]wo men broke into a Burger King … at around 11:30 P.M. and stole approximately $3,000. Both men were described by the restaurant manager, who was present during the robbery, as African-American and wearing … masks…. Surveillance recordings from the Burger King and the neighboring Dunkin’ Donuts captured images of both men as they fled the crime scene. The recordings showed the second assailant removing his mask and, as he [was] fleeing the crime scene, tossing something into the Dunkin’ Donuts plaza…. One of the police officers who responded to the crime scene discovered two cloth items — a white toddler-sized T-shirt and a blue knotted bandana — in the Dunkin’ Donuts plaza. The Commonwealth’s theory was that the defendant” “threw the cloth items into the Dunkin’ Donuts plaza as he passed it and that he wore the T-shirt as a mask during the robbery, while his coventurer wore the bandana. The T-shirt and the bandana were tested for DNA…. Each sample from the T-shirt had the DNA of more than one person; the bandana contained DNA from at least three individuals. For the T-shirt samples, the major profile matched the defendant’s DNA profile [to a very high degree of statistical probability]. One of the major profiles of the bandana also matched the defendant’s DNA profile. The DNA analyst could not determine when any of the defendant’s DNA was deposited on either the T-shirt or the bandana.” At trial, the defendant presented an alibi defense. On appeal, the defendant challenged the sufficiency of the Commonwealth’s evidence. Continue reading →

Published on:

ir-hemp-leaf-1364000In Commonwealth v. Richardson, the Supreme Judicial Court reversed the defendant’s conviction of unlawful cultivation of medical marijuana because “the jury were not properly instructed as to the standard for evaluating whether a defendant exceeded the home cultivation limit,” and because “the evidence was insufficient to support such a finding.”

The background was as follows. In 2013, the defendant, an unemployed tattoo artist, “obtained a written certification from a qualifying physician that approved his use of medical marijuana to treat a number of medical conditions…. The certification constituted a valid hardship cultivation registration permitting the defendant to grow up to ten ounces of marijuana every sixty days for his personal, medical use…. [T]wo months later, … the defendant telephoned 911 to report a home invasion at his residence.” Police officers converged on the scene and, in the course of their investigation, discovered twenty-two marijuana plants growing in the basement of the defendant’s home. In another room, the officers observed a digital pocket scale and numerous plastic baggies. The defendant was arrested. When the officers searched him, they found $2,135 in his pocket. He was charged with unlawful cultivation of medical marijuana and possession of marijuana with intent to distribute. At trial, the defendant’s former girl friend testified “that [the defendant] was not working at the time” of his arrest and that he was not a regular user of marijuana. In the judge’s instructions on unlawful cultivation of medical marijuana, he told the jurors “that the defendant had a valid hardship cultivation registration and that it was the Commonwealth’s burden to prove the defendant ‘had so many marijuana plants that the plant yield was certain to exceed [ten] ounces of usable marijuana every [sixty] days or that he intended to sell or distribute any of his usable marijuana.’” The defendant was convicted of both charged offenses. Continue reading →

Published on:


In a disappointing decision – Commonwealth v. Faherty – the Appeals Court affirmed the defendant’s conviction of operating a motor vehicle while under the influence of alcohol (OUI), fourth offense.  In the decision, the Appeals Court specifically ruled that a defendant’s conviction as “a subsequent offen[der] may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration.”

The background was as follows. “[T]he defendant was injured while riding his motorcycle…. A … State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of … bourbon in the defendant’s saddle bag. The defendant was transported to a hospital. Hospital records recorded that the defendant’s serum alcohol level was 359 milligrams per deciliter. An expert from the … State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent. The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted. He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance. The jury convicted the defendant on both available theories under the statute: a theory of impairment and a theory of having a blood alcohol level of .08 percent or higher. At the jury-waived trial on the subsequent offense portion of the complaint, the Commonwealth presented evidence that the defendant had received a continuance without a finding for OUI in District Court in 1989. The Commonwealth then introduced, over objection, evidence of two convictions for OUI in New Hampshire, from 1992 and 2005. The New Hampshire cases were prosecuted as first offenses, and the defendant received no incarceration but instead was fined and had his license revoked. The judge [here] found the defendant guilty as a fourth [OUI] offender.” Continue reading →

Published on:

police-car-1515955-300x225In recent decision – Commonwealth v. Escobar – that Supreme Judicial Court reversed the denial of the defendant’s motion to withdraw her plea of guilty of identity fraud pursuant to G.L. c.266, §37E(b), because in the Court’s view, the defendant did not receive “‘anything of value’” when she lied to a police officer in order to evade criminal prosecution.

The background was as follows. “[A] State police trooper stopped the defendant for driving an automobile with an excessively loud exhaust.” The defendant gave the trooper a false name and a citation was issued in that name. A year later, “an investigation revealed that the defendant had been untruthful at the time of the stop. A complaint was issued charging the defendant with” identity fraud. “[P]ursuant to a plea agreement, the defendant admitted to sufficient facts.” Subsequently, “the defendant filed a motion to withdraw her plea …, alleging that there was an insufficient factual basis for the charge.” Under G.L. c.266, §37E, “[t]he elements of identity fraud … are ‘that a defendant (1) posed as another person; (2) did so without that person’s express authorization; (3) used the other person’s identifying information to obtain, or attempt to obtain, something of value; and (4) did so with the intent to defraud.’ Commonwealthv. Giavazzi, 60 Mass. App. Ct. 374, 376 (2004) (footnote omitted). [In her motion,] [t]he defendant argue[d] that the Commonwealth failed to present any facts tending to establish that she attempted to obtain something of value pursuant to §37E(b) because the evasion (or the attempted evasion) of criminal prosecution is not something of value within the meaning of the statute.” The judge denied the motion. Continue reading →

Published on:

glasgow-police-1241195-300x233In Commonwealth v. Rivers, the Appeals Court ordered suppression of the defendant’s inculpatory statements to the police because they were induced by improper promises of leniency and, therefore, were not shown to be voluntary beyond a reasonable doubt.

The background was as follows. The defendant was involved in “[a] group altercation outside a party on Martha’s Vineyard,” during which the defendant and two friends struck the victim. The victim and the defendant lived in the same neighborhood; the victim often saw the defendant and one of the other alleged attackers “around town.” Detective Morse discussed the case with Officer Johnson and “directed Johnson to contact the defendant and ask him to come to the police station for an interview.” “Morse chose Johnson to contact the defendant based at least in part on the fact that the two had grown up together on the island.” Johnson telephoned the defendant and advised him “that the police were interested in him as an involved party in the case and that it was the police understanding that he committed a simple assault. Johnson went on to advise the defendant that if he came forward and gave a detailed account, he would be ‘very highly likely to avoid being charged with a felony.’” The defendant was later interviewed by Morse at the police station and made inculpatory statements that led to the return of indictments charging him with two felonies (aggravated assault and battery and assault and battery by means of a dangerous weapon). The defendant then filed a motion to suppress his statements on the ground that they “were involuntary because they were products of improper police-initiated promises of leniency and assurances that his statements would aid in his defense.” The motion was denied. Continue reading →

Published on:

alcatraz-inside-3-1494395-300x225In J.H. v. Commonwealth, the Supreme Judicial Court responded to two reported questions from a Juvenile Court judge, ultimately ruling that: (1) where the Juvenile Court judge found no probable cause for the crime charged (forcible rape of a child) but did find probable cause for the lesser included offense of statutory rape, the judge has the authority under G.L. c.119, §72A, to transfer the case to adult court for a criminal trial on the lesser offense; and (2) in such circumstances, the Juvenile Court judge must first offer the “defendant a meaningful opportunity to present evidence and argument as to why discharge, rather than transfer, of the lesser included offense is consistent with protection of the public.”

The background was as follows. In 2007, when the defendant was sixteen years old and the complainant was thirteen, the two engaged in three episodes of sexual intercourse. The matter was investigated by law enforcement authorities at that time, but the complainant “did not wish to participate in a prosecution…. As a result, the investigation was closed.” It was reopened two years later, but “[t]he complainant again decided not to pursue the matter because she thought that the defendant ‘eventually wanted to be with [her], and at that time [that] is what [she] wanted’ and ‘didn’t want [the defendant] to be in any trouble.’” Five years later, however, when the complainant was twenty years old, she told the police that she wished “to go forward with the case…. Complaints [then] issued in the … Juvenile Court … against the defendant for three counts of rape of a child with force.” Because “[t]he defendant was not apprehended, for the purposes of G.L. c.119, §72A, until” after his nineteenth birthday, a Juvenile Court judge held a transfer hearing. After the complainant’s testimony, which did not include any allegation that the defendant had employed force during the sexual episodes, “the prosecution … sought, for the first time, a probable cause finding and transfer of the lesser included offense of rape of a child (statutory rape). The defendant objected. In the defendant’s argument against transfer, which was focused on disproving the element of force, defense counsel” contended that it would be improper for a criminal court to consider “the lesser included charge … where the Commonwealth had not charged [the defendant] with statutory rape.” “Without addressing the objection or otherwise alerting the defendant that she intended to consider the lesser included offenses, the judge thereafter issued a decision in which she found insufficient evidence to establish probable cause for rape of a child with force on any of the charges but found sufficient evidence to establish probable cause for statutory rape on all three charges. She also found that it was in the public interest that the” case be transferred for a criminal trial on the statutory rape charges in adult court. The defendant filed a petition for relief pursuant to G.L. c.211, §3, to which the single justice responded by reporting two questions to the full SJC: “‘1. Whether G.L. c.119, §72A, permits a Juvenile Court judge, who has dismissed an offense charged for lack of probable cause, to order a defendant to be tried in an adult court for lesser included offenses, where the lesser included offenses are supported by probable cause[; and] 2. Whether, if the statute so permits, its application against this defendant would be unconstitutional for failure to have provided him with proper notice of the charges pending against him or the possibility of such a transfer.’” Continue reading →

Published on:

signature-sticker-1239475-1-300x226According to a recent news article in Commonwealth Magazine, Governor Charlie Baker signed a sweeping criminal justice reform bill into law on April 13, 2018.  The bill had been passed by both the House and Senate earlier this month.

The major provisions of the new law are as follows:

Decriminalizes minor offenses

  • Civil infractions, first offense misdemeanors with penalties under 6 months, and disruptive behavior in school cannot be the subject of delinquency findings;
  • Repeals offense of being the presence of heroin;
  • Expands scope of good Samaritan protections to youth use of alcohol and to probation violations;
  • Specifies that use of prescribed drugs and medical marijuana shall not constitute a probation violation.

Diverts minor offenses away from prosecution/incarceration

  • Creates mechanism for judicial diversion of juveniles for less serious offenses;
  • Improves and expands mechanism for district court diversion of adults;
  • Eliminates defunct requirement for probation certification of diversion programs;
  • Eliminates age restrictions on diversion;
  • Excludes serious offenses from diversion;
  • Assures that victims are heard in diversion decisions;
  • Creates legal/administrative framework to expand use of restorative justice programs for diversion of both juveniles and adults;
  • Requires judges to make written findings before imposing a sentence of incarceration of primary caretakers of children;
  • Improves drug diversion by increasing range of professionals who can make findings of dependence;
  • Preserves powers of District Attorneys to divert cases.

Reforms Bail to reduce unnecessary incarceration

  • Codifies main holding of the Brangan case;
  • Requires that if judge needs to set unaffordable bail to assure return, the judge make written findings that the Commonwealth’s interest in assuring return outweighs the harm of detention to the individual and their family;
  • Allows judges to use community corrections facilities for pre-trial release;
  • Creates pre-trial services unit to remind defendants of upcoming court dates using modern messaging approaches;
  • Creates commission on bail to monitor change and suggest improvements.

Repeals/limits mandatory minimums for non-opiate, non-weight retail drug offenses

  • Limits applicability of school zone law to cases involving guns or minors;
  • Eliminates mandatory sentence for first offense cocaine/PCP/meth;
  • Eliminates mandatory sentence for second offense class B (moving fentanyl to class A), class C, and class D;
  • Eliminates mandatory sentence for sales of drug paraphernalia.

Strengthens minimum mandatories for opiate trafficking

  • Makes all federally scheduled opioids class A drugs in Massachusetts;
  • Includes fentanyl, carfentanil and emerging synthetic opiates in trafficking weight ladder, including mixtures containing these substances;
  • Modifies fentanyl trafficking statute so that it applies to mixtures;
  • Adds minimum mandatory of 3 years to fentanyl in the trafficking weight ladder;
  • Adds a minimum mandatory applicable to mixtures of any weight containing carfentanil in any quantity but, Commonwealth must prove knowledge that the mixture contained carfentanil.

Strengthens Protections for Public Safety

  • Strengthens penalties for intimidation of witnesses;
  • Broadens eligibility for witness protection programs;
  • Strengthens penalties for solicitation of murder and other penalties;
  • Allows district court prosecution of conspiracy, solicitation, and intimidation;
  • Strengthens penalties for high repetition of OUI offenses;
  • Broadens definition of inhalants that may result in OUI prosecution;
  • Strengthens penalties for reckless homicide by motor vehicle;
  • Creates new crime of assault and battery on police officer causing serious injury;
  • Creates new crime of unlawful possession of credit card scanner;
  • Expands crime of providing false information to police officer;
  • Discloses findings of not guilty by reason of insanity in the same way as convictions for general employers and landlords;
  • Strengthens DNA collection procedures from serious offenders;
  • Mandates creation of police training for bias-reduction and de-escalation.

Reduces solitary confinement

  • Repeals solitary confinement concept (“isolation”);
  • Requires that prisoners confined to restrictive housing have “access to vocational, educational and rehabilitative programs to the maximum extent possible consistent with the safety and security of the unit;”
  • Requires that prisoners confined to restrictive housing receive regular reviews to see if they are ready to return to general prison population and have an opportunity to participate in those reviews;
  • Assures that correctional officers staffing restrictive housing facilities have appropriate training;
  • Protects LGBTQ prisoners from arbitrary use of restrictive housing;
  • Assures that those segregated from other inmates for their own safety are placed in conditions comparable to general population;
  • Creates a balanced oversight board to report on conditions in restrictive housing and progress in reducing restrictive housing.

Generally improves prison conditions

  • Assures that transgender prisoners are housed with prisoners of the same gender identity unless it would endanger the prisoner or other prisoners;
  • Requires that all prisoners without high school diplomas have access to education programming;
  • Requires that all prisoners are assessed for substance use disorders (but do not require medically assisted treatment);
  • Preserves inmate access to regular in-person visitation – video visits permitted, but not in lieu of in person visits;
  • Expressly authorizes creation of special prison units for emerging adults (18 to 24);
  • Creates commission to study LGBTQ prison health;
  • Creates task force to study correctional officer suicides;
  • Studies prison long distance phone costs.

Continue reading →

Published on:

bike-on-a-rack-1468792-300x225In a recent decision – Commonwealth v. Harris – the Appeals Court reversed the denial of the defendant’s motion to suppress a firearm seized by the police because the police lacked reasonable suspicion justifying the stop of the defendant.

The basic facts were as follows. On the afternoon in question, three Northeastern University police officers “heard a radio broadcast stating, ‘two black males in their early 20’s, one wearing a black hoody, and the other wearing a gray hoody, possibly with a third person, casing the bike racks by Snell [L]ibrary’ at the university. This information was initially provided by a security officer employed by the university, who was stationed by the bicycle racks because the area was a high-crime area for bicycle theft…. [T]wenty minutes after the broadcast,” the police “saw two men fitting the broadcast description, along with a female” walking together “from the direction of the library. The three people in the group were the defendant,” another man (Ferguson-Boone), and a woman (Wade-Joseph). The defendant and Ferguson-Boone were in possession of bicycles. The officers approached and “stated to the group that there had been a number of bicycle thefts in the area, and asked where the group was coming from. The companions responded that they had eaten at [a certain] restaurant in the campus food court; at least one of the group was carrying a container from that restaurant…. [T]hree separate conversations ensued,” in each of which an officer spoke to one of the three companions. “The officers asked [the two men] whether [they] had stolen the bicycles [in their possession], and they responded that they had not. [The defendant’s interviewer] asked the defendant if he had previously had issues with the police, and he responded by raising his pant leg, revealing a GPS-monitored ankle bracelet. [That officer] then asked the defendant for identification, and the other two officers followed suit, asking for identification from Ferguson-Boone and Wade-Joseph. The defendant did not produce identification, but did orally provide his name, date of birth and address,” which his interviewer then called in to “to police dispatch, in order to conduct a criminal history and warrant check. Ferguson-Boone provided some form of identification card, which [his interviewer] took and held…. Wade-Joseph produced her university student identification card…. As [the defendant’s interviewer] was calling in the defendant’s information, [another officer] observed the defendant make a movement to his left side, causing his sweatshirt to ride up and expose a knife clipped inside of his waistband.” The police seized the knife and commenced a pat frisk of the defendant, whereupon he fled. “While fleeing, the defendant dropped [a] firearm.” He was later apprehended and charged with illegal possession of a firearm and related offenses. He filed a motion to suppress the firearm, contending that the police lacked reasonable suspicion to stop him. The motion was denied. The defendant was convicted of firearm offenses.   Continue reading →

Published on:

gavel-2-1236453-300x200The United States Supreme Court reversed a judgment of the Court of Appeals for the District of Columbia Circuit in Class v. United States. The U.S. Supreme Court specifically ruled that in pleading guilty, the defendant, Class, did not waive his right to a direct appeal on the ground that the statute of conviction was unconstitutional.

The background was as follows. “Class pleaded guilty [in Federal District Court] to ‘Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. §5104(e).’” A written “agreement set forth the terms of [the] guilty plea, including several categories of rights that [Class] expressly agreed to waive. Those express waivers included: (1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined, maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investigation and prosecution of his criminal case…. At the same time, the plea agreement expressly enumerated categories of claims that Class could raise on appeal, including claims based upon (1) newly discovered evidence; (2) ineffective assistance of counsel; and (3) certain statutes providing for sentence reductions…. Finally, the plea agreement stated under the heading ‘Complete Agreement’: ‘No agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements … be made unless committed to writing and signed.’…. The agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional.” Subsequently, Class filed an appeal in the D. C. Circuit, claiming that 40 U. S. C. §5104(e) “violates the Second Amendment and the Due Process Clause because it fails to give fair notice of which areas fall within the Capitol Grounds where firearms are banned. The [D. C. Circuit] held that Class could not raise his constitutional claims because, by pleading guilty, he had waived them.” Class sought certiorari on the question “whether a guilty plea by itself bars a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.” Continue reading →