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questions-1151886-300x225In Commonwealth v. Wentworth, the Supreme Judicial Court ruled (1) that under the Massachusetts armed career criminal act (ACCA), G.L. c.269, §10G, “the ‘modified categorical approach’ … is the appropriate analytical framework … when determining whether a predicate offense” of assault and battery “involved ‘force’”; and (2) that “the defendant’s [prior] conviction of assault and battery was a conviction of a violent crime in these circumstances and could serve as a predicate offense under the ACCA.”

The background was as follows. On the basis of an incident during which the police found a loaded handgun in the defendant’s vehicle, he “pleaded guilty to carrying a loaded firearm unlawfully as an armed career criminal with one predicate offense.” “At the plea colloquy, the judge and the Commonwealth made it apparent that the … [defendant’s] prior ACCA conviction [was] a domestic assault and battery from 2005.” Regarding that offense, the prosecutor stated, “‘[W]e have to show violence; that he … struck his girlfriend at the time in the face and shoved her down on the bed.’ To follow up, the judge asked the defendant, … [‘]Are the facts as stated by the prosecutor correct?’ The defendant answered, ‘Yes’” and proceeded to plead guilty to the charges.” Subsequently, he filed a motion to vacate the conviction and for a new trial, which was denied. On appeal, the defendant argued that his predicate offense, the 2005 assault and battery, was not “a violent crime under the ACCA.”

In its decision affirming the denial of the defendant’s motion to vacate the ACCA conviction and for a new trial, the SJC noted that under the “force” clause of the ACCA, the only “clause [that] is in play in the present case,” “a ‘violent crime’ is ‘any crime punishable by imprisonment for a term exceeding one year … that … has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another[.] [Commonwealth v. Beal, 474 Mass. 341,] 349 [2016].” Here, the defendant “claim[ed] that the ‘force clause’ … demands a strictly categorical, elements-focused approach, which” “generally requires a court to look only to … the statutory definition of the prior offense” and “prohibits inquiry into the factual means underlying the prior conviction.” Continue reading →

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police-car-1515955-300x225In Commonwealth v. Tavares, the Supreme Judicial Court reversed the denial of the defendant’s motion to suppress evidence obtained from the search and seizure of a motor vehicle in which he was a passenger, because the police officer improperly extended the duration of the stop of the vehicle.

The basic facts were as follows. “On the evening of May 21, 2007, John Lima was driving [a] Nissan Altima automobile, along with his friend Jorell Archer … in Brockton…. [A]nother car sped up and began to ‘tail’ them…. Lima became ‘aggravated’ and applied his brakes, giving the car behind him a ‘brake job’ as it followed them. The other car then drove up to the passenger’s side of the Altima, and someone fired seven or eight gunshots at them,” killing Lima. “The other car quickly sped away before Archer could determine the type of car or the number of people inside it.” “At the scene, the police interviewed an eyewitness, Nicholas Melo,” who reported that moments after he heard gunshots, he “witnessed a car [a Chevy Malibu] round the corner near his house, hit the curb, and speed down the street…. The day after the shooting, a police officer” on patrol was driving in Brockton when he passed a Chevy Malibu…. [B]elieving that he recognized an individual with an active arrest warrant [Correia] in the back seat,” the officer stopped the Malibu. “As he approached the vehicle, the officer quickly realized that the individual … in the back seat” was not Correia. “Instead, he found Christopher Hanson in the driver’s seat, the defendant in the front passenger’s seat, and [another man] in the back seat. The officer made brief conversation with the three occupants before learning that Hanson was not on the rental agreement for the vehicle. The officer then advised Hanson that … the vehicle would have to be towed. All three occupants left on foot.” The police towed the Malibu to the police station and brought Melo there to view the vehicle. Melo identified it as “the same car he had seen the night before and stated that it should have scrape marks underneath the front driver’s side quarter and the rear passenger’s side quarter — where the car had gone over the curb.” A detective “looked under the Malibu” and “observed what appeared to be fresh scrape marks in the area where Melo said they would be.” Continue reading →

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booze-1481628-300x226The Appeals Court affirmed the dismissal of the complaint charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor (OUI-liquor) in Commonwealth v. Werra.  The Court’s decision rested on the fact that the police citation for that offense “was not issued contemporaneously with the incident from which it arose” and did not “fall[] into the third exception of the so-called ‘no-fix’ statute, G.L. c.90C, §2.”

The background was as follows. On July 22, 2015, state trooper Donahue responded to a dispatch indicating that a green Ford Explorer travelling southbound on Route 3 “was being driven erratically…. [Donohue] saw the Explorer traveling in the breakdown lane. He pulled behind the vehicle and activated his cruiser’s emergency lights, but the driver, subsequently identified as the defendant, did not stop” until Donahue “drove in front of the Explorer” and blocked it. The defendant “seemed disoriented.” “When the trooper … asked her to identify herself, her speech was slurred” and she was unable to spell her name or state her date of birth. “Eventually the defendant clarified that she had taken methadone earlier that morning. Emergency medical services arrived and took the defendant to a hospital. An inventory search of the Explorer subsequently revealed a cup in the center console containing a clear liquid with a strong odor of an alcoholic beverage. That same day, … Donahue wrote a citation for operating a motor vehicle under the influence of drugs (OUI-drugs) … and other infractions.” “On August 5, 2015, a complaint issued charging the defendant with the offenses listed on the citation…. Only on March 16, 2016, over eight months after the incident, did the Commonwealth file a motion pursuant to Mass. R. Crim. P. 17 … for a summons of the defendant’s hospital records, which was allowed. The … records … indicated that on the afternoon of the alleged incident the defendant’s blood alcohol content was .25 percent, over three times the legal limit…. The case was scheduled for trial on October 13, 2016.” The day before that date, “five months after the medical records were received by the clerk’s office, and almost sixteen months after the incident, the State Police applied for a complaint against the defendant for OUI-liquor. The application included the same police report completed by … Donahue on July 29, 2015, along with … the defendant’s medical records. The application also included a new citation for OUI-liquor dated October 12, 2016. This citation issued more than one year and three months after the traffic incident occurred.” The next day, “the OUI-drugs charge was dismissed at the request of the Commonwealth. A new complaint alleging OUI-liquor, was issued on January 25, 2017. On July 14, 2017, … the motion judge heard the defendant’s motion to dismiss the complaint pursuant to the no-fix statute, G.L. c.90C, §2. That motion was allowed” and the Commonwealth appealed. Continue reading →

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dunkin-donuts-12-1329453-300x283In reversing the denial of the defendant’s motion for a new trial on an indictment charging him with first-degree murder, the SJC ruled in Commonwealth v. Ware that a substantial likelihood of a miscarriage of justice was created by the prosecutor’s failure to correct a state trooper’s false testimony regarding inculpatory statements purportedly made by the defendant.

The background was as follows. “Shots were fired into a crowd attending an outdoor baby shower … around 11:00 p.m. on April 25, 2009. Multiple people were injured, and one person was killed.” The Commonwealth’s theory at trial was that “[t]he defendant and the victim’s boyfriend were members of rival gangs” and that the defendant intended to kill the boyfriend at the baby shower, but “inadvertently killed the victim instead. Nobody at trial identified the defendant as [the] shooter. A resident of the area testified that she saw three people jump into her back yard after she heard gunshots just before 11:00 p.m. on April 25, and that her back yard abuts a Dunkin’ Donuts. The Dunkin’ Donuts is roughly a five-minute walk from the crime scene. The defendant’s marijuana dealer, David Barros, testified that the defendant telephoned and asked for a ride on the night of the shooting. Barros picked up the defendant around 11:30 p.m.” A state trooper who interviewed the defendant in the course of the investigation “testified that … the defendant stated that … Barros ‘picked him up in the area of Dunkin’ Donuts.’” “However, the … interview transcript reveals that the trooper characterized falsely the defendant’s statements regarding where [he] was picked up…. The defendant never stated that he was picked up at or near the Dunkin’ Donuts. He pointedly denied on at least four occasions being picked up there … and he consistently asserted that he was picked up at his house.” After his conviction, the defendant moved for a new trial on the basis of the trooper’s false testimony. The judge denied the motion and the defendant appealed. Continue reading →

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gavel-2-1236453-300x200In Commonwealth v. Kurko, the Appeals Court opined that where the Commonwealth failed to present to the jury a stipulation that the parties had intended to introduce, the evidence before the jurors at the close of evidence was insufficient to support the defendant’s conviction of violation of the harassment prevention order against her.

The background was as follows. “The complainant was a concierge at a luxury condominium complex…. During his employment there, he obtained a harassment prevention order against the defendant, a resident. The complainant continued to have regular daily contact with the defendant at the complex after obtaining the order, despite trying to avoid her. On the afternoon of January 5, 2016, … the complainant was beginning his shift, and was taking over from a coworker who was ending her shift. The complainant’s coworker had been assisting the defendant with paperwork, which was ‘jumbled and mixed up.’ When the complainant took over the task, he told the defendant that she needed to put the papers in order, and she ‘erupted.’ The defendant was ‘screaming at the top of [her] lungs’ and swearing. She lunged toward the complainant over the desk, and pointed her finger in his face. The complainant told her to lower her voice and ‘go to [her] unit,’ but she refused, and he ultimately called 911 for assistance.” “Prior to trial, the parties notified the judge that they intended to stipulate to (1) the existence of the [harassment prevention] order; (2) that it was in effect on the date of the offense; and (3) that the defendant was served with the order and [was] aware of its existence and terms. Ultimately, however, no such stipulation was introduced in evidence…. [Moreover,] [a]lthough the parties and the judge had expressed their expectation that the Commonwealth would introduce a redacted copy of the order itself in evidence, the order was never proffered. At the close of the Commonwealth’s evidence, the defendant moved for a directed verdict, arguing only that the defendant’s conduct did not rise to a level sufficient to violate the order…. During a charge conference, the parties reiterated their understanding of the stipulation…. Without objection, during the jury charge, the judge then instructed the jury that ‘both sides agreed and stipulated’ that (1) a court issued a harassment prevention order prohibiting the defendant from abusing or harassing the complainant; (2) the order was in effect on the day of the alleged violation; and (3) the defendant knew of the order and its terms. [The judge] instructed the jury that the only element that they needed to consider was whether the defendant violated the order by abusing or harassing the complainant.” On appeal, the defendant challenged the sufficiency of the evidence. Continue reading →

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questions-1151886-300x225In a recent case – Commonwealth v. Holbrook – the Supreme Judicial Court vacated the judge’s denial of the defendant’s motions for third-party discovery, for an evidentiary hearing, and for a new trial, because substantial evidence supportive of the defendant’s third-party culprit defense never reached the jury and further proceedings are required, on remand, to determine if a new trial is warranted.

The background was as follows. “On November 27, 2006, the Monday after Thanksgiving, the victim was found dead in his home.” He had been beaten to death. “The defendant, who was homeless at the time of the incident, had been raking leaves at the victim’s home the Friday prior to the murder. On Sunday morning, the day before the victim was discovered,” three people acquainted with the victim saw a person generally matching the defendant’s appearance at the victim’s home. At the crime scene, the police recovered DNA and fingerprints that were not from the defendant. “At trial, the defendant mounted an unsuccessful third-party culprit defense, implying throughout the trial that the victim’s alleged former boyfriend, Sean Meagher, was the killer.” “Meagher, who lived with the victim for approximately two years, testified that” they were just friends and “did not have a romantic relationship. Meagher further testified … that he had not seen the victim” during the month preceding the killing. “Not presented to the jury was the fact that, during the investigation, two witnesses provided information to police that contradicted Meagher’s story. Paul Williams informed investigators that he saw Meagher at the victim’s home on Saturday, two days prior to the victim’s body being discovered. In addition, Ian Anderson told police that Meagher and the victim had been involved romantically and that, on that same Saturday, the victim had mentioned to Anderson that Meagher had been sending e-mail messages to the victim ‘constantly’ in an attempt to extort money from him…. [N]o one conducted a follow-up interview with Meagher based on the information those two witnesses provided. Nor did investigators seek to obtain and compare Meagher’s fingerprints to the unknown prints recovered from” the crime scene. Although “the Commonwealth’s computer expert testified [at trial] that there was nothing of evidentiary value found on the hard drive” of the victim’s computer, “the defendant subsequently learned through posttrial discovery that the hard drive contained outgoing e-mail messages dated between September 2005 and July 2006 that were sent from the victim to Meagher or that referenced Meagher. In them, the victim wrote that he was ‘going crazy thinking of [Meagher]’ and that he ‘just want[ed] the past back.’…. These e-mail messages contradicted Meagher’s testimony that he and the victim … were not romantically involved.” Continue reading →

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gavel-1238036In Commonwealth v. Suarez, the Appeals Court vacated the defendant’s sentence for assault with intent to rape and remanded the case for resentencing before a different judge, because “the judge’s comments at sentencing risked creating at least the appearance that she sentenced [the defendant] for having committed either rape (a crime of which he was not convicted) or assault with intent to commit aggravated rape (conduct not recognized as a crime under the laws of the Commonwealth).”

The background was as follows. As the victim was walking home in the early morning hours of the date in question, “a man grabb[ed] her hair with one hand and cover[ed] her mouth with the other…. As they … struggle[d] …, he said, ‘I’m not going to kill you. I just want to have sex with you.’” The man “hit [the victim] and dragged her toward an alley…. [A]s she screamed for help, he tore off her clothes. As she was on the ground, with her ‘knees and [her] face … in the dirt,’ he was behind her and she could feel his penis touching her ‘butt’ and her vaginal area. At that moment, ‘[r]ight before it actually went to go penetrate [her], someone came around the corner.’ It was an Asian man [Chea]; he came closer and drew the attacker’s attention, allowing the victim to escape…. She ran over to a nearby fire station, where a firefighter brought her inside and called police and an ambulance.” In due course, the defendant was arrested and convicted of assault with intent to rape, kidnapping, indecent assault and battery on a person fourteen years of age or older, and assault and battery. On appeal, the defendant asserted that the judge’s statements at sentencing suggested “that the sentence of from twelve to eighteen years in State prison for assault with intent to rape had at least the appearance of being based on consideration of criminal conduct for which the defendant had not been convicted.” Continue reading →

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air-soft-gun-1-1500175-300x189In Commonwealth v. Wardsworth, the Supreme Judicial Court ruled that the occurrence of four trial errors required that the defendant’s convictions of first degree murder and related offenses be reversed.

The background was as follows. “[T]wo men opened fire at the Academy Homes residential complex, killing” one man and injuring another. One of the perpetrators was wearing a gray hooded sweatshirt; the other was wearing a black hooded sweatshirt. “The perpetrators fled on foot. Police officers arrived within minutes of the shooting” and, “[a]fter speaking with witnesses, … began to search for two men wearing gray and black hooded sweatshirts. Police knew that the Academy Homes housing complex was the territory of the Academy Homes gang, and that there were rival gangs in the area. Accordingly, officers canvassed the territory of several rival gangs, including the Walnut Park area, which was associated with a gang known as the Walnut Park Dogs…. [F]ifty minutes after the shooting, police stopped the defendant and [codefendant] Daughtry coming out of a building in Walnut Park. The defendant was wearing a gray hooded sweatshirt…. Daughtry was wearing a black hooded sweatshirt.” The men were arrested and prosecuted for the crimes. They were tried separately. “The Commonwealth’s theory at [the defendant’s] trial was that [he] was a member of the Walnut Park gang” and that on the day of the shooting, he and Daughtry “went together to the Academy Homes complex for the purpose of retaliating” for the fact that both of them “previously had been shot at by members of the rival Academy Homes gang.”

On appeal, the SJC reversed the defendant’s convictions on the basis of the following four trial errors. First: “[T]he judge erred in allowing [statements by Daughtry to the police] to be introduced under the joint venture exemption to the hearsay rule,” even though the “statements were not made during and in furtherance of a joint venture.” Daughtry told the police that after he heard gunshots in the area of the Academy Homes, “he walked around a building and encountered the defendant and a man named ‘Dee’ on the street. Daughtry described the defendant and Dee as having been dressed in gray and black hooded sweatshirts,” respectively. That description was not offered in furtherance of an ongoing joint venture. Rather, it was an “attempt[] to exculpate [Daughtry] himself,” while “inculpat[ing] the defendant and Dee in the shooting.” Moreover, opined the Court, the admission of Daughtry’s statements violated the defendant’s confrontation rights under the Sixth Amendment because the primary purpose of the statements was testimonial and Daughtry did not testify at the defendant’s trial. “Where an individual does not appear at trial, that individual’s ‘testimonial’ out-of-court statements are not admissible against a criminal defendant absent unavailability and a prior opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (2004).” Continue reading →

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united-states-passport-1422398-225x300The Supreme Judicial Court affirmed the defendant’s conviction of first degree murder in Commonwealth v. Chicas, ruling that the judge did not abuse her discretion in ordering that the trial testimony be communicated “through two translators — Spanish translated into English for the jury, which was then translated back into Spanish for the defendant” at counsel’s table.

The background was as follows. The defendant and the victim were involved in an altercation at a party. “[T]empers boiled over and the defendant punched the victim in the face.” Eventually, the defendant and a co-venturer “brought the victim outside the house, where they” beat him to death. At the commencement of the trial, the judge told the parties that she was going to use two interpreters, the first to translate the non-English speaking witnesses’ responses into English for the jury and the second to translate what the jurors heard in English back into Spanish for the defendant at counsel’s table. Defense counsel agreed with this procedure. However, on appeal, the defendant argued that the procedure impeded his ability “to hear actual witness testimony,” in violation of his right to due process.

In its decision, the SJC rejected the defendant’s argument. The Court noted that “the use of multiple interpreters complied with” the “Standards and Procedures of the Office of Court Interpreter Services” and with the case law, under which “it was the translation of the witnesses’ testimony that was to be considered as evidence. Commonwealth v. Portillo, 462 Mass. 324, 328 (2012) (when witness testifies in foreign language, English translation is [the] only evidence, not testimony in original language). Even if the defendant could not hear the Spanish testimony, it was the translation of the testimony that was considered by the jury, and the defendant received a Spanish translation of the English translation provided to the jury.” Continue reading →

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justice-srb-1-1040136-mIn a recent case – Commonwealth v. Zoe – the Appeals Court vacated the Boston Municipal Court judge’s order requiring that certain criminal records pertaining to the defendant — that were sealed pursuant to G.L. c.276, §100A — be “unsealed.”

The background was as follows. “In March 1997, the defendant and his then- roommate apparently got into an altercation, and in April of that year they each pursued criminal charges against the other in the Boston Municipal Court. The charges against the defendant were dismissed. Almost two decades later, the defendant applied to the Board of Registration in Medicine (board) for a medical license. On his application, the defendant disclosed four sets of criminal charges he previously had faced, but he did not mention the charges stemming from the roommate incident (April 1997 charges). The board issued the defendant a medical license notwithstanding the prior charges he had disclosed. However, when the board subsequently learned of the April 1997 charges — which had not yet been sealed — it commenced an investigation into whether the defendant’s failure to disclose them on his application warranted enforcement…. [I]n November 2015, the defendant filed a motion on the closed criminal docket requesting that the April 1997 charges be sealed for ‘good cause’ pursuant to G.L. c.276, §100C)…. [A] Boston Municipal Court judge allowed the defendant’s request and ordered the records of the April 1997 charges sealed. The defendant subsequently separately requested that the records be sealed by the Commissioner of Probation (Commissioner) pursuant to the automatic sealing procedures of G.L. c.276, §100A. Because the April 1997 charges met the qualifying criteria set forth in §100A, the Commissioner allowed the sealing of the records pursuant to that section. As the board acknowledges in its brief, ‘[t]he Commissioner is required to seal the criminal records automatically under G.L. c.276, §100A[,] if the individual meets the objective statutory requirements.’

The board eventually learned that the April 1997 charges had been sealed, and it concluded that this potentially could interfere with its enforcement efforts. Accordingly, it decided to request that the records be ‘unsealed’ on the grounds that the defendant had not disclosed the pendency of the board’s investigation when he had asked the judge to seal them pursuant to §100C. The board did not file an original action against the District Court or the Commissioner seeking such relief. Instead, without moving to intervene, the board simply filed a motion to that effect on the closed criminal docket. There is no indication in the record that the board notified the Attorney General, the District Attorney, or the Commissioner that it was taking such action. The defendant … opposed the board’s motion [to unseal the records], arguing that: (1) there is no procedure through which the board — a third party to the sealing process — can request that sealed records be unsealed, [and] (2) in any event, the records independently were sealed pursuant to the automatic provision in §100A….Nevertheless, the judge allowed the board’s motion and issued an order that on its face appears to order that the records of the April 1997 charges be unsealed.” The defendant appealed. Continue reading →

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