These summaries of case decisions are intended for informational purposes only. They are not intended to be interpretations of the law, nor do they encompass the subtleties of each case. Therefore, reference to the original text is indispensable.

Tuesday, May 31, 2011

Com v. Cullen

Commonwealth v. Cullen (May 31, 2011)
Docket No. 10 – P – 1399.
Appeals Court of Massachusetts.

The defendant was convicted of stalking his former therapist. He appeals from that judgment the judge erred in denying his motions to suppress evidence and for a required finding of not guilty.

Facts: Robert Nazarro, a therapist at the Counseling and Psychotherapy Center (CPC), treated the defendant from December, 2006 to August, 2008. In 2009 over an eight-month period, the CPC office began to receive 25 anonymous mailings. The mailings contained newspaper articles, including several critical of sex offender treatment programs, a poster visually depicting numerous sexual positions etc. The director of CPC opened all mailings and uncovered the defendant’s identity. He finally informed Nazarro of the correspondence. Upon knowing the mailings, Nazarro was shocked and contacted the police.

The officer took the defendant into custody. During the booking process, officer conducted an inventory search to ensure that he did not possess contraband. The search revealed several copies of a newspaper article, and a list of names, including the director of CPC.

Issue1: Whether 25 mailings constitute “a pattern of conduct or series of acts” to support a finding of stalking.

Yes. To support a stalking under G.L. c. 265, § 43(a), the Commonwealth must prove that a person willfully and maliciously engaged in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cuase a reasonable person to suffer substantial emotional distress. Even though the victim was exposed to the mailings in bulk on one sole occasion, the statute does not require each act in the series or pattern to produce the result separately. The twenty-five separate mailings over a period of eight months satisfies the requisite pattern or series.

Issue2: Whether there is sufficient evidence of a targeted threat to constitute a requisite threat under the statute.

Yes. The statute provides that the Commonwealth must prove that a person makes a threat with the intent to place that person in imminent fear of death or bodily injury. The court does not recognize the generalized complaints about the workings of an organization. However, here the mailings were focused on the victim, and sufficiently explicit in the threatening nature of their message. The threats were more than enough to place a reasonable person in imminent fear of death or bodily harm and induce him to suffer substantial emotional distress.

Issue3: Whether the police officer was entitled to remove and unfold papers found on the defendant during patfrisk conducted during booking process.

Yes. The police officer was not required to ignore materials that obviously related to the charges underlying the arrest. No purpose is served by requiring him to do so.

Judgment affirmed.

Prepared by YK

Thursday, May 26, 2011

Com v. Carey

Commonwealth v. Carey (May 26, 2011)

Docket No. 09 – P – 1832.
Appeals Court of Massachusetts.

The defendant was convicted of armed home invasion, assault and battery and attempting to murder the victim by strangulation.

Facts: The victim opened the door for the defendant, whom she knew as her friends’ ex-husband. The defendant entered and asked where her husband was. The victim said he was not there. The victim opened the door for him to leave but he did not leave. Instead, he took a necktie, put it around her neck and began to pull the ends. He kicked her legs, and she fell on to the floor. The defendant continued to pull harder and harder. The victim asked help for her son. Her son got a knife from the kitchen and stabbed the defendant in the back. The victim ran out to the back yard and ran to the home of neighbors. The neighbor called police. As part of their investigation, police conducted a forensic examination of the defendant’s computer. The police found “400 or more” photographs “that were strangulation-oriented,” and eight were offered and received in evidence. The police also searched the defendant’s computer for the term “asphyxia” and found 978 “hits” and 47 files. A 90-second video clip depicting strangulation was found too.

Issue1: Whether the defendant’s contention that his intent was to have sex with her, not to kill the victim, is a defense.

No. The defendant argued his intent was not to kill the victim but to have sex with her, that his interest in sexual asphyxiation did not mean that he wanted to kill her, and “asphyxiation activities” were consensual. The defendant relies on Lawrence v. Texas, 539 U.S. 558 (2003), contending that consensual sexual activity is a defense. However, a consent is not a defense to harmful conduct, under existing Massachusetts precedent. Massachusetts does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result.” Here, the violent and physically harmful nature of the defendant’s acts defeats his argument.

Issue2: Whether admission in evidence of photographs, video, and computer search records were abuse of discretion of trial judge.

No. The trial judge did not abuse its discretion to admit such evidence. The defendant asserts that these graphic materials were of negligible relevance but highly prejudicial. Case law establishes that if such evidence possess evidential value on a material matter, the determination whether a photograph possess such value is within the discretion of the trial judge. The trial judge determined that the evidence was admissible because it was highly probative on the issue of the defendant’s motive and intent. The record demonstrates that the judge was aware of the evidentiary issue to be determined, recognized his discretion, and exercised properly.

Judgments affirmed.

Prepared by YK

Tuesday, May 24, 2011

Com v. Virgilio

Commonwealth v. Virgilio (May 24, 2011)

Docket No. 10 – P – 519
Appeals Court of Massachusetts.

The defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor. She appeals and contends that the judge denied her motion for a required finding of not guilty and that the judge gave her an excessive sentence.

Facts: The defendant resides in a single-family cottage. Next door to her house is a two-story, two-family dwelling, in which resides the owner of the other car involved in this scenario. Between the two houses is a paved driveway that widens and ends in a parking area. Only the occupants of the two houses park in this area. There are no businesses or public services of any kind along the driveway parking area.

Issue: Whether the place on which the defendant was operating the vehicle was “public way” within the meaning of the relevant statute, G.L. c. 90, § 24(1)(a)(1).

No. Here the place in question is a private driveway and parking area that only serves two residences, containing three dwelling units in total. It neither contains nor leads to any businesses or public accommodations. There is nothing in the appearance of the driveway or parking area that would give an impression to the general public or members of thereof that it is anything other than a private driveway or that public use was invited, notwithstanding that it is neither gated nor posted. These circumstances foreclose its consideration, as matter of law, as a way or place to which the public has access as invitees or licensees. To decide otherwise would be to essentially overrule the requirement that members of the public must be able to reasonably conclude from the physical circumstances of the way that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature.

Judgment reversed.

Prepared by YK

Com v. Rutkowski

Commonwealth v. Rutkowski

459 Mass. 794 (2011)
Supreme Judicial Court
May 24, 2011

First-degree Murder, Extreme Atrocity and Cruelty

A jury found the defendant guilty of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant appealed her conviction claiming: 1) the judge erred when he failed to instruct the jury that they could consider evidence of mental impairment on the question or extreme atrocity or cruelty, 2) ineffective assistance of counsel, 3) the judge erred when he failed to limit instruction as to the use of the defendant’s statements to mental health professionals, and 4) that the verdict should be reduced to murder in the second degree or manslaughter or a new trial should be granted pursuant to G.L. c. 278, § 33E. The Supreme Judicial Court (SJC) held that the jury was not properly instructed, but that the conviction of murder in the second degree could stand unless the Commonwealth moved for a new trial.

The victim was disabled due to partial paralysis, moved slowly, had difficulty

speaking, and had a long history of mental illness. He frequently left the home he shared with his wife without saying where he was going, and this made her upset.

On the afternoon of August 17, 2004, the victim and defendant (his wife) went fishing at a lake in Wales. While they were fishing they got into an argument, and the victim walked away. When he did not return, the defendant frantically searched for him for two hours without finding him. She then drove home by herself. At 6 P.M the defendant noticed the victim in the parking lot outside their apartment. She rushed outside, demanded to know how he got home, and became angry when he did not respond. She told him she was “kicking him out” of the apartment. After this statement the victim began to laugh.

Neighbors heard the defendant scream at the victim, call him “retarded,” and tell him he would not need his belongings anymore because, “he was going to be dead very soon.” The victim did not get upset, but continued laughing. The defendant went inside, got the victim’s belongings and threw them down the stairs. She went back outside, gathered the victim’s belongings out of their van and threw them in the dumpster. As this was happening the victim continued to laugh. The defendant got in the van and drove away, then returned and purposely drove into the victim. She drove back and forth over him several times, about five times total. She then parked the van and threatened a neighbor that if she didn’t “get back into [her] own apartment” she would be next.

The victim was lying on the ground when police arrived. When an officer asked the defendant if she saw what happened she said, “Yes, I did. I ran him over. We had what you’d call a domestic situation here.” Police arrested the defendant, and the victim was transported to the hospital. He died shortly thereafter.

At trial expert psychiatric testimony revealed the defendant had a long history of mental illness. The psychiatrist also testified that the defendant’s headache medication “fuel[ed]” her bipolar disorder and that this disorder, along with depression and a history of psychosis and head injuries “were in play” when she ran over the victim. The psychiatrist testified that as a result of mental illness, the defendant “lacked the substantial capacity to conform her conduct to the requirements of the law.”

Even though the defendant requested a jury instruction specifically “on all of the factors” to prove “murder with extreme atrocity or cruelty,” the jury was instructed on mental impairment only as it related to intent and knowledge, which are not aspects of extreme atrocity or cruelty.
Issue 1: Did the judge err in his jury instructions for extreme atrocity or cruelty?

The SJC found it “should have been made clear to the jury that they could consider evidence of mental impairment on the specific question whether the murder was committed with extreme atrocity or cruelty.” In Commonwealth v. Gould, 380 Mass. 672, 686 (1980), the SJC found that “impairment of a defendant’s ability to make a decision in a normal manner may have a direct bearing on the degree of murder, and consequently, on the issue of extreme atrocity or cruelty.” The defendant argued it was error for the jury not to be instructed on mental impairment as it applies to extreme atrocity or cruelty, and because of her long history of mental illness presented at trial, the jury should have been instructed accordingly.

Issue 2: Was the assistance of counsel ineffective?

Because the SJC found that the jury instructions were erroneous, they did not decide whether counsel was ineffective.
Issue 3: Did the judge err in limiting the use of defendant’s statements to mental health professionals?

The defendant claims the jury should have been allowed to consider statements to mental health professionals, presented in her medical records, for the truth of such statements. However, as shown in Commonwealth v. Brown, 449 Mass. 747, 768 (2007), “an instruction limiting consideration of a defendant’s statement to her expert as the basis for the expert’s opinion, not for the truth of the underlying statements, is a correct statement of the law.” Therefore, it was not error for the trial judge to instruct the jury not to consider the truth of statements made by the defendant to mental health professionals.

Issue 4: Should the verdict be reduced?

The defendant requested a reduction of the verdict to murder in the second degree, manslaughter or a new trial. The SJC found no error in the jury’s verdict for second-degree murder. The case is remanded, and the Commonwealth can choose whether to retry the defendant for murder on the theory of extreme atrocity or cruelty, or to accept the lesser conviction of second-degree murder.

Remanded to the Superior Court

Prepared by JC

Monday, May 23, 2011

Commonwealth v. Dobbins

79 Mass.App.Ct.555 (2011)
Appeals Court of Massachusetts
May 23, 2011

Arrest resistance, substantial risk of a miscarriage of justice, defendant’s pre and postarrest conduct.

A jury found a defendant guilty of resisting arrest. Defendant appealed from the decision arguing that judge’s failure to give either a limiting instruction regarding which of the defendant’s actions could constitute resisting arrest, or a unanimity instruction, resulted in a substantial risk of a miscarriage of justice.

The Appeals Court upheld the trial’s court decision.


On May 3, 2003, a neighbor of the defendant alerted Woburn police that a man he believed to be the defendant was driving erratically on their street. When the police observed the reported vehicle in the driveway of the defendant's house, the defendant was seated inside the vehicle, talking on the telephone. A police officer approached, smelled the odor of alcohol, and saw several cans of beer in the car. The defendant's speech was slurred.

The officer followed the defendant when the latter left the car and began to walk away from the officer, toward the house. Being concerned that the defendant was intoxicated and might later attempt to drive the vehicle, the officer informed the defendant that he was “going to be arrested.” When the officer took hold of the defendant's arm, the defendant began to flail his arms. Another officer arrived and, while the officers attempted to handcuff the defendant, he started to “fight” them by “swinging with his left hand and trying to push away and pull away and get away” as well as “punching with a fist” and “swinging” in the directions of the officers. One officer sustained a finger laceration and bruised elbow during the struggle.
The officers subdued the defendant with pepper spray, placed him on the ground, handcuffed him, and placed him in the back of the cruiser. On the way to the police station, the defendant kicked the door and window of the cruiser repeatedly. Once in the station, during booking, the defendant remained belligerent and continued swinging his fist. Due to this behavior, the defendant was placed in a cell before the booking process had been completed.
Issue 1: When does the crime of resisting arrest occur? Can resisting arrest conviction rest on postarrest conviction of the defendant?
The crime of resisting arrest occurs at the time the arrest is “effected,” i.e., when there “is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.’ ” Commonwealth v. Grandison, 433 Mass. 135, 145, 741 N.E.2d 25 (2001) (Grandison ), quoting from Commonwealth v. Cook, 419 Mass. 192, 198, 644 N.E.2d 203 (1994).
In light of this, “a resisting arrest conviction can, in no way, rest on postarrest conduct.” Grandison, supra. According to G.L. c. 268, § 32B, “A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another....”

Here, the defendant's arrest was effected at his house, in a process that continued until police gained control of the defendant and placed him in the cruiser Commonwealth v. Ocasio, 71 Mass.App.Ct. 304, 306, 311, 882 N.E.2d 341 (2008) (process of “effecting” arrest continued until defendant was placed in cruiser); Commonwealth v. Knight, 75 Mass.App.Ct. 735, 739, 916 N.E.2d 1011 (2009) (Knight ) (effecting an arrest “ends when the person is fully detained by his submission to official force or placed in a secure location from which he can neither escape nor harm the police officer or others nearby ”.)

Since the defendant's arrest was fully effected by the time he was placed in the cruiser, the Commonwealth's argument that the defendant's conduct at the police station was part of a pattern of “continuing conduct” of resisting arrest is not persuasive.
Issue 2:
Did trial court's failure to give instruction limiting what jury could consider to defendant's prearrest conduct at defendant's home, and before he was placed in police cruiser result in substantial risk of a miscarriage of justice?
While the judge should have instructed the jury to consider only prearrest conduct in evaluating the resisting arrest charge, the facts here, when viewed in the context of a substantial risk analysis, are adequate to support the ultimate conclusion that the jury relied on “solely the events at the scene in reaching their verdict.” Grandison, supra at 147, 741 N.E.2d 25. Unlike in Grandison, where the prosecutor emphasized the defendant's postarrest conduct in her closing statement, here the prosecutor confined her arguments to prearrest conduct and made no any mention of the postarrest conduct in the police cruiser or station making the jury to rely solely on events at prearrest scene.
According to the facts at hand, having concluded with reasonable certainty that the jury relied solely on the defendant's prearrest conduct in reaching their verdict on the resisting arrest charge, we need not reach the defendant's argument that the judge erred in failing to give a unanimity instruction thus causing no substantial risk of a miscarriage of justice.
Judgment affirmed.

Prepared by SF

Friday, May 20, 2011

Com v. Chown

Commonwealth v. Chown

459 Mass. 756 (2011)
Supreme Judicial Court
May 20, 2011

Drug Offense, Motion to Suppress Evidence, Constitutional Law
Defendant charged with drug offenses filed a motion to suppress evidence on the ground that his arrest and the subsequent search were unlawful. After an evidentiary hearing, the motion was granted. The Appeals Court reversed, further review was granted, and the Supreme Judicial Court allowed the motion.


On January 20, 2006, the defendant was driving home from his job as a bartender at a restaurant when he was stopped for speeding. As the officer approached the vehicle he noticed the rear window was broken and recognized the driver-defendant. The officer had eaten in the restaurant where the defendant worked several times, and had also responded to a call at the defendant’s house in 2005. When the officer asked for the defendant’s license, the defendant gave a valid Canadian license with a New Brunswick address. The officer knew the defendant previously had a Massachusetts license, and when he asked why he didn’t have one now, the defendant said he was planning to get one in the morning. The officer returned to his cruiser and ran a record check. The check confirmed that the defendant’s old Massachusetts license had expired and that the defendant had a history of motor vehicle violations dating back to 1989.

The officer arrested the defendant for operating a vehicle without a Massachusetts license. Because the rear window of the truck was damaged, the department’s written inventory policy required the officer to secure the vehicle and conduct a search. During the search the officer found a backpack containing drugs and two scales, along with credit cards, a check from the defendant’s account with a Massachusetts address, a piece of mail addressed to the defendant with the same Massachusetts address, and $6,355 in cash. The truck also had a “dump sticker” from 2002 on the window.

The defendant moved to suppress evidence discovered during the search of his vehicle on the ground that his arrest and the subsequent search were unlawful because he possessed a valid Canadian driver’s license, so he did not need a Massachusetts driver’s license when he was stopped. Defendant relied on the Fourth Amendment to the Constitution and Article 14 of the Massachusetts Declaration of Rights for his claim. A Superior Court judge allowed the motion, and a divided panel of the Appeals Court reversed the order.

Issue 1: Did the officer have probable cause to make an arrest?

Operating a motor vehicle without a proper Massachusetts license is an arrestable offense, but G.L. c. 90, § 10 provides that “persons who are licensed in another state or country” and “nonresidents” do not need to have a Massachusetts driver’s license to drive legally in the Commonwealth for 30 calendar days. The SJC found that because the defendant provided the officer with a valid Canadian driver’s license he was claiming to be a resident of Canada. Even though the officer was familiar with the defendant and knew him to have lived and worked in Massachusetts for more than 30 days, the factors listed in G.L. c. 90, § 3 ½ (a) (whether a person is registered to vote in Massachusetts, receives public assistance, has homeowner’s liability insurance on property declared the principal residence, etc.) are the only ones that are determinative when deciding whether a person claiming to be a nonresident is in fact a resident of Massachusetts. Because the officer did not conduct an investigation to determine whether the defendant met any of the § 3 ½ (a) criteria, the defendant was still presumed to be driving legally as a nonresident, and there was no probable cause for arrest.

Order Allowing a Motion to Suppress Affirmed

Prepared by JC

Thursday, May 19, 2011

Com v. Wynton

Commonwealth v. Wynton

459 Mass. 745 (2011)
Supreme Judicial Court
May 19, 2011

Juvenile, Possession of a Dangerous Weapon on School Grounds, Question of Law

Juvenile charged with possessing a dangerous weapon on school grounds filed a motion to dismiss. The Juvenile Court reported a question of law to the Appeals Court, and the Commonwealth filed an application for direct appellate review. The Supreme Judicial Court (SJC) found that the phrase “dangerous weapon,” as used in G.L. c. 269, § 10(j), incorporates the common-law definition of that phrase.


On April 1, 2009, a juvenile student at a high school brought a small folding knife with a two-inch blade to school. The knife fell out of the juvenile’s pocket during class, and the juvenile was suspended from school and charged with possession of a dangerous weapon on the grounds of a school in violation of G.L. c. 269, § 10(j).

The juvenile filed a motion to dismiss, claiming the knife was not a dangerous weapon. The juvenile judge determined the question of law in this case was dispositive, and both parties moved to report to the Appeals Court. The SJC granted the application for review from the Commonwealth.

Issue 1: What is a “dangerous weapon” under the meaning of the statute?

The applicable statute for the charge of possession of a dangerous weapon on the grounds of a school is G.L. c. 269, §10. The term “dangerous weapon” is not defined in section ten, in the remainder of G.L. c. 269, or in the General Laws. Because the ordinary language of the statute did not provide a definition of the term, the SJC consulted the common law. Under the common law, “dangerous weapon” means both an object that is dangerous per se - “designed for the purpose of bodily assault or defense” Commonwealth v. Appleby, 380 Mass. 296, 303 (1980) - and an object that is dangerous as used - “dangerous because they are ‘used in a dangerous fashion.’” Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). The SJC presumed that the Legislature’s intent in drafting § 10 was to adopt the common law definition, and that “dangerous weapon” included both objects that are dangerous per se and as used. Because knives that are designed to produce great bodily harm are dangerous per se under the common law, under § 10 they are prohibited on school grounds.

Issue 2: Is the knife in question a “dangerous weapon” under the meaning of the statute?

The SJC speculated that it was unlikely a two-inch folding knife is a dangerous weapon under the meaning of the statute, but they made no holding because they were without complete information, and instead remanded to the Juvenile Court.

Remanded to the Juvenile Court

Prepared by JC

Tuesday, May 17, 2011

Com v. Holley

Commonwealth v. Holley

79 Mass.App.Ct. 542 (2011)
Appeals Court of Massachusetts
May 17, 2011

Motion to suppress statements, motion to suppress physical evidence, Miranda rights, voluntary waiver of Miranda rights, evidentiary hearing, unconstitutional search or seizure, use of trickery by the interrogator.

Trial Court granted defendant's motion to suppress his statements during a police interview, and, without an evidentiary hearing, denied defendant's motion to suppress physical evidence. The Commonwealth appealed from an order suppressing certain statements of the defendant, and the defendant cross-appealed from an order denying his motion to suppress evidence seized in a search. The Appeals Court consolidated the appeals and held that:

(1) defendant's waiver of Miranda rights, before police interview at police station, was knowing, voluntary, and intelligent;

(2) assuming that state trooper's comments falsely suggested to defendant that he had been identified by two sources as being near the victim's apartment on the night of the murder, defendant's confession was voluntary; and

(3) defendant did not establish a reasonable expectation of privacy as to box in common basement area of multiunit apartment building to which defendant's girlfriend moved after defendant's arrest.

The Appeals Court reversed the Trial Court’s decision allowing the motion to suppress the defendant's statements made at the police station interview on April 21, 2005, and issued a new order denying the motion in its entirety. The order entered December 15, 2009, denying the defendant's motion to suppress evidence obtained at the Flint Street address was affirmed.

The case involves an indictment for murder in the first degree, in which the defendant was charged with the homicide of Suzy Goulart. On April 16, 2005, following a report of a fire at Pleasant View apartments, number 21D, Fall River police discovered Goulart's dead body on the kitchen floor. She had suffered more than fifty stab and cutting wounds.

The police arrested and interviewed the defendant on April 21, 2005 at the police station. The interview was recorded with audio-visual equipment. Commonwealth v. DiGiambattista, 442 Mass. 423, 447–449, 813 N.E.2d 516 (2004).

The defendant asserted in his suppression motion that the statements made during the interview were subject to exclusion on two grounds: (1) the Miranda warnings were inadequate, and (2) the statements were involuntary because the police had engaged in trickery by suggesting that witnesses had seen the defendant near the apartment of the murder victim.

On October 22, 2008, police executed a search warrant at 37 Flint Street in Fall River, the place where the defendant’s girlfriend had moved following the defendant's arrest. During the execution of the warrant, the police entered a common basement area in the apartment building. There the police found and opened a box left by the girlfriend, and from within this box he police seized a pair of sneakers that appeared to be the Adidas brand identified by the FBI as likely matching the size and tread of bloody footprints found at the murder scene.

Issue 1: Was defendant's waiver of Miranda rights before police interview at police station knowing, voluntary, and intelligent?

The judge suppressed defendant’s statements given during the interview dated April 21, 2005 on the basis that Miranda rights were spoken too quickly by State Trooper Eric Swenson and, were difficult to discern “in real time”, therefore, the defendant's Miranda waiver was not made knowingly and intelligently. The judge also commented that the oral warnings did not contain the so-called “fifth” warning that the defendant may stop answering questions at any time.

However, failure to give the fifth warning orally does not warrant suppression here—this is especially true in light of the inclusion of the extra fifth warning on the written waiver. “We do not require that [a] defendant be informed of his right to terminate questioning, a so-called ‘fifth’ Miranda warning.” Commonwealth v. Silanskas, 433 Mass. 678, 688 n. 11, 746 N.E.2d 445 (2001).
Notwithstanding that the trooper spoke at a rapid pace, defendant's waiver of Miranda rights, before police interview at police station, was knowing, voluntary, and intelligent, though state trooper spoke at rapid pace as defendant acknowledged three times that he understood the oral warnings. First, immediately following trooper's recitation defendant nodded in the affirmative when asked whether he understood the Miranda rights that just had been delivered orally, second, after trooper indicated that if defendant understood his Miranda rights but still was willing to speak to the interviewing officers he should sign a written Miranda waiver form, defendant acknowledged that he understood and signed the waiver form, and third, defendant stated, while signing the waiver form, “I know how it goes,” which comment could be considered in light of defendant's prior involvement in criminal investigations and the prosecution process. U.S.C.A. Const.Amend. 5. A defendant's experience with and in the criminal justice system is a factor to consider in weighing whether the defendant understands Miranda warnings, waives them, and gives a statement knowingly, intelligently, and voluntarily quoting from Commonwealth v. Mandile, 397 Mass. 410, 413, 492 N.E.2d 74 (1986). Given the foregoing, The Appeals Court concluded that the defendant's waiver of his Miranda rights was a knowing, voluntary, and intelligent act.
Issue 2: Did state trooper's falsely suggested comments to defendant that he had been identified by two sources as being near the victim's apartment on the night of the murder gave rise to such trickery or deception as to have overborne defendant's free will.

While the use of false statements during interrogation is a relevant factor on both waiver and voluntariness, such trickery does not necessarily compel suppression of the statement. Rather, the interrogator's use of trickery is to be considered as part of the totality of the circumstances, the test that is used to determine the validity of a waiver and the voluntariness of any statement. Where the use of a false statement is the only factor pointing in the direction of involuntariness, it will not ordinarily result in suppression, but that if the circumstances contain additional indicia suggesting involuntariness, suppression will be required.” Commonwealth v. DiGiambattista, 442 Mass. at 432–433, 813 N.E.2d 516.

Assuming that state trooper's comments falsely suggested to defendant that he had been identified by two sources as being near the victim's apartment on the night of the murder, defendant's confession was voluntary; trooper's comments did not give rise to such trickery or deception as to have overborne defendant's free will, and defendant had been given Miranda warnings and had acknowledged that he understood the warnings. U.S.C.A. Const.Amend. 5. “A statement is voluntary if it is the product of a ‘rational intellect’ and a ‘free will.’ ” Commonwealth v. Selby, 420 Mass. 656, 662, 651 N.E.2d 843 (1995), quoting from Commonwealth v. Davis, 403 Mass. 575, 581, 531 N.E.2d 577 (1988).
Despite false statement about suspect's handprint being found at crime scene, Miranda waiver and confession both voluntary where “all other relevant factors specific to the instant case indicate a voluntary waiver was made” and trickery was only factor suggesting involuntariness; Commonwealth v. Edwards, 420 Mass. 666, 671, 651 N.E.2d 398 (1995) (confession admissible where nothing other than use of trickery would suggest involuntariness). Thus, the first Superior Court judge erred in allowing the defendant's motion to suppress statements from the April 21, 2005, interview.
Issue 3: Was the search or seizure enacted by the police at girlfriend’s apartment unconstitutional enabling the judge to conduct an evidentiary hearing and suppress the evidence seized?
On October 22, 2008 police executed a warrant at 37 Flint Street in Fall River, the place where the girlfriend had moved following the defendant's arrest. During the execution of the warrant, the police entered a common basement area in the apartment building. There the police found and opened a box left by the girlfriend of the defendant, and from within this box the police seized a pair of sneakers that appeared to be the Adidas brand identified by the FBI as likely matching the size and tread of bloody footprints found at the murder scene. The girlfriend signed a consent form for the basement search, but not specifically for the box itself. The defendant challenged the validity of the consent, and the major part of the defendant's brief is directed to the need for an evidentiary hearing concerning the privacy issue vis-à-vis the basement area. The defendant contends that the second Superior Court judge erred in not holding an evidentiary hearing on his motion to suppress evidence obtained in the Flint Street search. Such an evidentiary hearing was not warranted for two reasons. First, the affidavits filed in support of the motion to suppress were not sufficient to prompt an evidentiary hearing. Neither the affidavit of the defendant, nor that of his girlfriend, Reis, set forth facts that would demonstrate a reasonable expectation of privacy in the unsecured box held in the common basement area of the Flint Street multi-unit apartment building.
Second, the motion judge held a lengthy nonevidentiary hearing on the suppression issues, and heard argument of counsel concerning the dual issues of standing and expectation of privacy. “A defendant has standing if [he] has a possessory interest ... in the property seized.” Commonwealth v. Williams, 453 Mass. 203, 208, 900 N.E.2d 871 (2009). See Commonwealth v. Genest, 371 Mass. 834, 836, 359 N.E.2d 950 (1977). The defendant had such a possessory interest in the Adidas sneakers, at least sufficient to have standing. Commonwealth v. Deeran, 364 Mass. 193, 195, 302 N.E.2d 912 (1973) Based on the information presented, the judge ruled that the defendant had standing, but “still must show that there was a search in the constitutional sense, that is, that someone had a reasonable expectation of privacy in the place searched, because only then would probable cause, reasonable suspicion, or consent be required to justify the search.” But that the defendant's motion was not supportable because there was no reasonable expectation of privacy in the common basement area searched. Furthermore, the girlfriend's affidavit acknowledges that the door to the basement was not locked, and that all tenants of the Flint Street apartment building had common access to, and use of, the basement. See Commonwealth v. Williams, 453 Mass. 203, 208–209, 900 N.E.2d 871 (2009), wherein the court held that, while the defendant had standing, he nonetheless lacked a reasonable expectation of privacy in the common basement shared by other tenants. Thus, suppression was not warranted in Williams because “any subjective expectation of privacy the defendant may have had was not objectively reasonable.” Ibid. The same result obtains in this case.
Issue 4: Was there a procedural error in that the motion judge indicated at the original nonevidentiary hearing that, if the judge determined that the defendant had standing, then the judge may conduct an evidentiary hearing?
The defendant reads this remark as a guarantee—which it was not—that an evidentiary hearing would be held after the nonevidentiary suppression hearing. Thereafter, the judge entered an order denying suppression and ruling that the defendant had standing, but no reasonable expectation of privacy. In denying the motion filed by the defendant, the judge issued another ruling, stating that the expectation of privacy issue was “encompassed” in the standing issue—both of which issues were addressed by counsel at the nonevidentiary suppression hearing, and resolved by the order denying suppression. The defendant's claim that his expectation of privacy was not addressed at the nonevidentiary hearing was not supported. Thus, there was no error in the motion judge's denial of the defendant's motion to suppress evidence obtained at the Flint Street address.
For the foregoing reasons, the order entered December 17, 2008, allowing the motion to suppress as to the defendant's statements made on April 21, 2005, at the police station interview is reversed, and a new entered denying the motion in its entirety. The order entered December 15, 2009, denying the defendant's motion to suppress evidence obtained at the Flint Street address is affirmed.
Judgement affirmed in part- reversed in part.

Prepared by SF

Com v. Johnson

Commonwealth v. Johnson
79 Mass.App.Ct. 542 (2011)
Appeals Court of Massachusetts
May 17, 2011

Distribution of controlled substance, second or subsequent offence, oral waiver, illiteracy of the defendant, signing of jury trial waiver.
Defendant was convicted in the trial court of distribution of a controlled substance, second or subsequent offense. Defendant appealed contending that her conviction as a second or subsequent offender was invalid because she never signed a written waiver of her right to a jury trial.. The Appeals Court held that defendant's illiteracy did not excuse Commonwealth's failure to obtain a written waiver of defendant's right to jury trial. Portion of decision that found the defendant guilty of a subsequent offense, pursuant to G.L. c. 94C, § 32A(b ), is reversed, the finding is set aside, and the case is remanded for resentencing.

On September 5, 2008, an Essex county grand jury returned an indictment charging the defendant with distribution of cocaine, second or subsequent offense, in violation of G.L. c. 94C, § 32A(b). A separate indictment charging the same was issued on September 24, 2008. The two offenses were joined, and the defendant's trial began on November 30, 2009. On December 3, 2009, following a three-day jury trial, the defendant was found guilty on one count and was acquitted on the other. Immediately following the jury's verdict, a bench trial was conducted on the second and subsequent offense portion of the indictment. Before beginning, the judge engaged the defendant in an extensive jury waiver colloquy, during which the defendant explained that she could not read or write. The defendant did acknowledge, however, that she had the opportunity to discuss her decision with counsel, understood the consequences of waiving a jury, and was doing so voluntarily. Satisfied with the defendant's oral waiver, the judge proceeded with the bench trial. No written waiver was ever filed with the court. At the close of the evidence, the judge determined that the Commonwealth had proved the defendant's prior conviction beyond a reasonable doubt, and sentenced the defendant to a prison term of five to six years.

Issue 1: Was defendant’s conviction as a second or subsequent offender invalid because she never signed a written waiver of her right to a jury trial?

Under a “bright-line” rule a defendant's jury waiver is only effective when a signed written waiver is filed with the court. Commonwealth v. Osborne, 445 Mass. 776, 781, 840 N.E.2d 544 (2006). The Commonwealth suggests that the rule should not be enforced in this case, since the execution of a written waiver would have been an “empty gesture” given the defendant's inability to read or write. The Appeals Court in this case did not agree with this suggestion.

The defendant's illiteracy does not, by any means, render the exercise of signing a written waiver meaningless. As the Supreme Judicial Court observed in Osborne, “the requirement of a signed, written jury waiver is an important protection provided by the Legislature for the benefit of a criminal defendant.” Id. at 780, 840 N.E.2d 544. “The solemnity of the written waiver and the formality of the colloquy also further the purposes of ‘assuring that the ultimate decision regarding waiver of the jury be left to the defendant himself, not his counsel,’ Commonwealth v. Pavao, 423 Mass. 798, 803, 672 N.E.2d 531 (1996), and ensuring an evidentiary record that will foreclose most posttrial disputes about whether the waiver was knowingly and voluntarily made.” Commonwealth v. Osborne, supra at 781, 840 N.E.2d 544. Without having signed a written waiver, the defendant was not afforded these procedural safeguards. Accordingly, any waiver obtained was ineffective, and the defendant's conviction was invalid. See ibid.

In Massachusetts, it is well established that “signing does not necessarily mean a written signature....” Finnegan v. Lucy, 157 Mass. 439, 443, 32 N.E. 656 (1892). See Irving v. Goodimate Co., 320 Mass. 454, 459, 70 N.E.2d 414 (1946). Unless a particular statute provides otherwise, which G.L. c. 263, § 6, does not, a signing may be done “by mark, by print, by stamp, or by the hand of another.” Finnegan, supra. Thus, defendant's illiteracy did not excuse Commonwealth's failure to obtain a written waiver of defendant's right to jury trial, and thus any waiver obtained was ineffective. M.G.L.A. c. 263, § 6

Issue 2: Was defendant’s trial counsel ineffective for failing to sever the two drug charges against her?

In this case, a motion to sever the charges would certainly have been denied, since the two charges against the defendant clearly were “based on the same criminal conduct....” Commonwealth v. Pillai, 445 Mass. 175, 180, 833 N.E.2d 1160 (2005), quoting from Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979). Accordingly, defense counsel was not ineffective for failing to file such a motion. See Commonwealth v. Conceicao, 388 Mass. 255, 264, 446 N.E.2d 383 (1983) (“It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success”).

For the foregoing reasons, the judgment on the defendant's underlying conviction of distribution of a class B substance is affirmed. The portion of the judgment that found the defendant guilty of a subsequent offense, pursuant to G.L. c. 94C, § 32A(b ), is reversed, the finding is set aside, and the case is remanded for resentencing.

Judgement Affirmed in Part- Reversed in Part – Prepared by SF

Friday, May 13, 2011

Com v. McConaga

Commonwealth v. McConaga

2011 Mass. App. LEXIS 705
Massachusetts Appeals Court
May 13, 2011

Motion to Suppress, Denial of the Motion to Dismiss the Appeal

The trial court’s judgment denying defendant’s motion to dismiss was reversed with directions to allow the motion, and the Commonwealth’s appeal was dismissed.

McConaga was charged with trafficking drugs and filed a motion to suppress evidence because the search warrant authorizing the search was issued without establishing a sufficient connection between the alleged criminal conduct and the vehicle that was searched. Trial judge allowed the motion because of insufficient nexus and the Commonwealth filed a motion to reconsider arguing that a sufficient nexus existed. The latter motion was denied and Commonwealth appealed. McConaga filed a motion to dismiss this appeal which was denied. Now McConga is appealing the denial of the motion to dismiss.

Issue 1: Whether a motion to reconsider, filed sixty-six days following the entry of Superior Court order, is sufficient to bring an appeal from the allowance of the suppression motion?

No. Commonwealth’s motion to reconsider was not filed in a timely manner and as such its motion to suppress was time barred. As a result the trial court erred in denying the defendant’s motion to dismiss the Commonwealth’s appeal. Court relied on Rules 15(a)(2) and 15(b)(1) of the Massachusetts Rules of Criminal Procedure and General Laws c.278, § 28E.

Issue 2: Whether a motion to reconsider is adequate to revive appellate rights that have lapsed under rule 15(b)(1)?

No. The “reasonable time” standard established in Commonwealth v. Balboni and in Commonwealth v. Powers does no longer apply. From 2000, Mass.R.Crim.P. 15 and G. L. c. 278, § 28 E has substituted the “reasonable time” standard with a period of ten days. As such Commonwealth’s appeal was not filed in a timely manner.

Prepared by BH.

Thursday, May 12, 2011

Com v. Lavendier

Commonwealth v. Lavendier

79 Mass. App. Ct. 501 (2011)
Massachusetts Appeals Court
May 12, 2011

Motor Vehicle, Operating under the influence, Voluntariness of Statement, Intoxication


The defendant was seen driving a white pickup trick in an erratic manner and striking objects on the side of a road. Witnesses called the Orleans police and by the time they arrived the truck was parked in front of a house at 80 Great Oak Road. The defendant was inside the house breaking things and a toilet was seen hanging outside one of the windows. When the police entered the house the defendant was holding the refrigerator at a 45 degree angle and claimed he owned the house. The police set with the defendant in the dining room and was inquiring as to what was going on. During the conversation that lasted for about 15 minutes the defendant stood up, said he was “cocked” and threatened both officers, at which point he was arrested.

Issue 1 Whether the defendant was already in custody when he made the incriminating statements?

No. The court held that the trial court was correct in holding that the defendant was not in custody when he made the incriminating statements. The holding was based on four elements established in Commonwealth v. Groome and reinforced in Commonwealth v. Morse, namely 1) the place of interrogation 2) whether the officers made it clear to the defendant that he was a suspect 3) the formality and overall nature of the interrogation 4) whether the defendant had the possibility to end the interrogation by leaving or asking the police officers to leave. The court held that the place of interrogation was ‘wide open,’ the questions that officers asked were investigatory and not accusatory in nature, the defendant was not physically restrained and the interrogation was not coercive. Finally, a reasonable person in the defendant’s circumstances would have thought that he was able to leave whenever he wanted. Considering these findings the defendant was not in custody when the police officers questioned him.

Prepared by BH

Go-Best Assets Ltd. v. Citizens Bank of Mass.

Go-Best Assets Ltd. v. Citizens Bank of Mass.

2011 Mass. App. LEXIS 704
Massachusetts Appeals Court
May 12, 2011

Misrepresentation, Aiding and Abetting, Breach of Fiduciary Duty, Fraud, Conversion.

Upon review the appellate court decided 1) the trial court erred in granting summary judgment on the negligence claim against Citizens Bank because there was a genuine issue of fact as to whether the latter exercised reasonable care in complying with Massachusetts law 2) the trial court also erred in granting summary judgment on the aiding and abetting claim against the bank 3) the trial court was right in granting summary judgment for the partners.

Investors adversely affected by a $5 million Ponzi scheme run by a Massachusetts attorney, Mr. Morris M. Goldings, filed a complaint against Citizens Bank for negligence, misrepresentation, aiding and abetting, breach of fiduciary duty, fraud and conversion, and against the defendant’s partners on the grounds of aiding and abetting the defendant.
Issue 1: Whether a bank that has sufficient notice of wrongdoing (consisting of repeated overdrafts and insufficient funds) may have a duty to make further inquiry or to take steps to prevent diversion of funds?

Yes. Although a bank does not generally have such a duty, an exception exists if there is a chronic insufficiency of funds in a client funds account. The appellate court made clear that this duty is only triggered if there a history of overdrafts, a single or isolated overdraft will not trigger a bank’s duty. This conclusion was drawn by relying on Massachusetts Rules of Professional Conduct 1.15. Moreover, once a bank becomes aware of such overdrafts it needs to report it to the Board of Bar Overseers.
Issue 2 Was the account created by Mr. Goldings a trust account?

Yes. According to Massachusetts Rules of Professional Conduct 1.15 an account is a trust account if it is held “for clients and in any other fiduciary capacity in connection with a representation.” The appellate court held that this account was labeled as a “client account” and as such implying a fiduciary duty.
Issue 3 Does intentional and improper transferring of money into the client’s account give raise to a claim of aiding and abetting fraud?

Yes. The appellate court held that the trial court gave a very narrow interpretation of the knowledge requirement of aiding and abetting of fraud. Knowledge means that “the defendant actually knows about its substantial, supporting role in an unlawful enterprise.” Maruho Co. v. Miles. Considering the history of insufficiency of funds, the bank’s employee had such knowledge.

Judge Berry J. wrote the dissenting opinion. According to Judge Berry, Rule 1.15 of the Massachusetts Rules of Professional Conduct, did not apply to the case because that was essentially a commercial activity and a business deal, as such it did not have anything to do with attorney-client representation. Moreover, to establish aiding and abetting, actual knowledge of fraud is necessary and in this case the bank’s employee did not possess the neccessary knowledge.

Prepared by BH