COMMONWEALTH v. CABERA, FEBRUARY 25, 2010, APPEALS COURT
Search and seizure, Threshold Police Inquiry, Protective frisk
Boston Police arrested the defendant after a pat frisk revealed he was unlawfully carrying a loaded firearm. The defendant moved to suppress the firearm. After an evidentiary hearing the motion was allowed. The Appeals Court reversed.
Thursday, February 25, 2010
Com v Montalvo, Appeals Ct, 2/25/10
COMMONWEALTH vs. ANGEL MONTALVO, FEBRUARY 25, 2010, Appeals Court
Sufficiency of evidence, Possession
The defendant argued that there was insufficient evidence to convict him of constructive possession of cocaine and of heroin. The appellate court found sufficient evidence to establish constructive possession of cocaine, but not of heroin. The court found ample evidence that the defendant knew that there were drugs in the apartment, that he was in close proximity to drugs and packaging materials, and that he had the ability and intent to exercise control over at least some of the cocaine in the apartment. Important factors in finding sufficient evidence included the location of the defendant and the drugs (together in one room, drugs in plain sight near the defendant) as well as the fact that the house in which the defendant and drugs were found was a “hot house” (such that it had “New York style” locks, was heavily barricaded, and there were few indicators of occupancy). The court emphasized that the evidentiary inference to support a conviction need not be inescapable or necessary, but just that the evidentiary record as a whole supports a conclusion of guilty beyond a reasonable doubt.
While there was sufficient evidence regarding the cocaine conviction, the court did not find the same ample evidence regarding the constructive possession of heroin. The appellate court found that there was no way to infer the defendant’s knowledge of or control over the heroin based on the apparently invisibility of the heroin to the defendant when the police entered the house. The defendant’s conviction of constructive possession therefore was vacated.
Sufficiency of Evidence; Intent to Distribute
The defendant argued that there was insufficient evidence to convict him of intent to distribute cocaine, and the appellate court agreed, finding insufficient evidence of intent. Because there were none of the common factors used in the assessment of intent to distribute, such as large quantities of drugs, the absence of implements for personal use, and the presence of cash and pagers, the court found that the jury must have used guesswork – and not proper inferences – to convict the defendant. The appellate court accordingly reversed the defendant’s intent to distribute conviction.
Sufficiency of Evidence; Joint Venture
The defendant contended that there was insufficient evidence to convict him of participation in a joint venture to sell drugs, and the appellate court agreed. The court found that there was no evidence that linked the defendant to a common venture with the other individuals arrested in the house. The fact that the defendant was found in the house with other individuals engaging in drug sells was not sufficient and accordingly the court reversed the conviction.
Sufficiency of evidence, Possession
The defendant argued that there was insufficient evidence to convict him of constructive possession of cocaine and of heroin. The appellate court found sufficient evidence to establish constructive possession of cocaine, but not of heroin. The court found ample evidence that the defendant knew that there were drugs in the apartment, that he was in close proximity to drugs and packaging materials, and that he had the ability and intent to exercise control over at least some of the cocaine in the apartment. Important factors in finding sufficient evidence included the location of the defendant and the drugs (together in one room, drugs in plain sight near the defendant) as well as the fact that the house in which the defendant and drugs were found was a “hot house” (such that it had “New York style” locks, was heavily barricaded, and there were few indicators of occupancy). The court emphasized that the evidentiary inference to support a conviction need not be inescapable or necessary, but just that the evidentiary record as a whole supports a conclusion of guilty beyond a reasonable doubt.
While there was sufficient evidence regarding the cocaine conviction, the court did not find the same ample evidence regarding the constructive possession of heroin. The appellate court found that there was no way to infer the defendant’s knowledge of or control over the heroin based on the apparently invisibility of the heroin to the defendant when the police entered the house. The defendant’s conviction of constructive possession therefore was vacated.
Sufficiency of Evidence; Intent to Distribute
The defendant argued that there was insufficient evidence to convict him of intent to distribute cocaine, and the appellate court agreed, finding insufficient evidence of intent. Because there were none of the common factors used in the assessment of intent to distribute, such as large quantities of drugs, the absence of implements for personal use, and the presence of cash and pagers, the court found that the jury must have used guesswork – and not proper inferences – to convict the defendant. The appellate court accordingly reversed the defendant’s intent to distribute conviction.
Sufficiency of Evidence; Joint Venture
The defendant contended that there was insufficient evidence to convict him of participation in a joint venture to sell drugs, and the appellate court agreed. The court found that there was no evidence that linked the defendant to a common venture with the other individuals arrested in the house. The fact that the defendant was found in the house with other individuals engaging in drug sells was not sufficient and accordingly the court reversed the conviction.
Tuesday, February 23, 2010
Com v Rivera, Appeals Ct, 2/23/10
COMMONWEALTH v. RIVERA, FEBRUARY 23, 2010, APPEALS COURT
Confrontation of witness, Authentication, Ballistician’s certificate
The defendant was convicted of carrying a firearm without a license and carrying a loaded firearm. He appealed and argued the admission of the ballistic certificate during trial violated his Confrontation Right under the Sixth Amendment. The Appeals Court agreed. Under Melendez-Diaz, the government may not prove its case "via ex-parte out-of-court affidavits." Here the Court reasoned that without the certificate there was no other evidence presented that would have enabled the jury to have found the firearm was capable of firing a bullet. Since there was no objection at trial the standard of review was whether the admission of the certificate created a substantial risk of a miscarriage of justice. The Court found it did and reversed the conviction.
Confrontation of witness, Authentication, Ballistician’s certificate
The defendant was convicted of carrying a firearm without a license and carrying a loaded firearm. He appealed and argued the admission of the ballistic certificate during trial violated his Confrontation Right under the Sixth Amendment. The Appeals Court agreed. Under Melendez-Diaz, the government may not prove its case "via ex-parte out-of-court affidavits." Here the Court reasoned that without the certificate there was no other evidence presented that would have enabled the jury to have found the firearm was capable of firing a bullet. Since there was no objection at trial the standard of review was whether the admission of the certificate created a substantial risk of a miscarriage of justice. The Court found it did and reversed the conviction.
Friday, February 19, 2010
Com v Haskell, Appeals Ct, 2/19/10
COMMONWEALTH v. HASKELL, FEBRUARY 19, 2010, APPEALS COURT
Plea
The defendant pled guilty in 1986 to operating under the influence of alcohol and was sentenced to one year of probation. Twenty years later he moved to withdraw his change of plea because, as he claimed in his affidavit, the plea judge did not provide a colloquy. In an affidavit his former attorney stated he could not recall whether a colloquy was given. Two other attorney’s submitted affidavits. They stated that they regularly practiced before the judge at the relevant time and that the judge accepted guilty pleas without conducting a complete colloquy. The Commonwealth filed an affidavit from the now retired plea judge. In the affidavit the judge stated that it was his practice at the time to provide the required colloquy before accepting a defendant’s change of plea.
The motion judge, after a non-evidentiary hearing, found that a colloquy had not been given but denied the motion to vacate because based on other extrinsic evidence and given the prolonged delay in challenging the plea there was not a substantial risk of a miscarriage of justice.
The Appeals Court affirmed on other grounds. The Court stated that the motion judge erred by viewing the plea judge’s affidavit as mere evidence upon which he could make a determination of credibility. The statement in the affidavit that it was his usual practice to administer the warnings to all defendants, constituted a “record” within the meaning of the statute. Therefore, the affidavit served to reconstruct the "record" of the plea and enjoyed the presumption of regularity unless rebutted. In this case, the defendant did not submit a single transcript or recording of the plea judge conducting a plea colloquy, much less several contemporaneous transcripts that demonstrated a pattern of grossly inadequate colloquies as was provided in another case.
Plea
The defendant pled guilty in 1986 to operating under the influence of alcohol and was sentenced to one year of probation. Twenty years later he moved to withdraw his change of plea because, as he claimed in his affidavit, the plea judge did not provide a colloquy. In an affidavit his former attorney stated he could not recall whether a colloquy was given. Two other attorney’s submitted affidavits. They stated that they regularly practiced before the judge at the relevant time and that the judge accepted guilty pleas without conducting a complete colloquy. The Commonwealth filed an affidavit from the now retired plea judge. In the affidavit the judge stated that it was his practice at the time to provide the required colloquy before accepting a defendant’s change of plea.
The motion judge, after a non-evidentiary hearing, found that a colloquy had not been given but denied the motion to vacate because based on other extrinsic evidence and given the prolonged delay in challenging the plea there was not a substantial risk of a miscarriage of justice.
The Appeals Court affirmed on other grounds. The Court stated that the motion judge erred by viewing the plea judge’s affidavit as mere evidence upon which he could make a determination of credibility. The statement in the affidavit that it was his usual practice to administer the warnings to all defendants, constituted a “record” within the meaning of the statute. Therefore, the affidavit served to reconstruct the "record" of the plea and enjoyed the presumption of regularity unless rebutted. In this case, the defendant did not submit a single transcript or recording of the plea judge conducting a plea colloquy, much less several contemporaneous transcripts that demonstrated a pattern of grossly inadequate colloquies as was provided in another case.
Thursday, February 18, 2010
Com v LeBlanc, SJC, 2/18/10
COMMONWEALTH v. LeBLANC, FEBRUARY 18, 2010, SJC
Instructions to jury, Consent
The defendant was convicted of inter alia rape, cocaine distribution adn drugging a person for unlawful sexual intercourse. The evidence at trial showed that the defendant raped an eighteen year old female after providing her cocain and alcohol. On appeal the defendant argued the judge erroneously instructed the jury on incapacity to consent by stating that consumption of alcohol or cocaine “does not necessarily mean incapacity to consent. Specifically, the defendant argued the use of the word “necessarily” was misleading because it created a substantial risk that the jury understood the instruction to mean theat the mere consumption of alcohol or cocain might mean that she was incapable of giving consent. The SJC disagreed. The trial judge properly told the jury that the fact that the victim consumed alcohol or drugs did not inevitably mean she was not capable of consenting.
Instructions to jury, “Administer”
The defendant argued that the judge’s instructions interpreting the word “administer” as “gave or provided” were erroneous. The SJC agreed. The statute requires some forceful action, deceit or trickery on the part of the defendant. Merely making alcohol or drugs available is not enough to convict. The SJC found that the error was not harmless and reversed the conviction of drugging a person for unlawful sexual intercourse.
Instructions to jury, Consent
The defendant was convicted of inter alia rape, cocaine distribution adn drugging a person for unlawful sexual intercourse. The evidence at trial showed that the defendant raped an eighteen year old female after providing her cocain and alcohol. On appeal the defendant argued the judge erroneously instructed the jury on incapacity to consent by stating that consumption of alcohol or cocaine “does not necessarily mean incapacity to consent. Specifically, the defendant argued the use of the word “necessarily” was misleading because it created a substantial risk that the jury understood the instruction to mean theat the mere consumption of alcohol or cocain might mean that she was incapable of giving consent. The SJC disagreed. The trial judge properly told the jury that the fact that the victim consumed alcohol or drugs did not inevitably mean she was not capable of consenting.
Instructions to jury, “Administer”
The defendant argued that the judge’s instructions interpreting the word “administer” as “gave or provided” were erroneous. The SJC agreed. The statute requires some forceful action, deceit or trickery on the part of the defendant. Merely making alcohol or drugs available is not enough to convict. The SJC found that the error was not harmless and reversed the conviction of drugging a person for unlawful sexual intercourse.
Tuesday, February 16, 2010
Com v Leonardi, Appeals Ct, 2/16/10
COMMONWEALTH v. LEONARDI, FEBRUARY 16, 2010 APPEALS COURT
Waiver of trial by jury, Defendant Pro se
The defendant was convicted at a jury waived trial of assault and battery. He argued on appeal that the waiver of his right to a trial by a jury was not valid because the requirements of a written waiver of counsel was not signed as required by G.L. c. 218, s 26A. The Appeals Court agreed and reversed the conviction.
Under G.L. c.218, s26A a court cannot receive a waiver of the right to a jury trial unless the defendant is represented by counsel or has filed a written waiver of counsel at the time of the waiver. Here, at the time the defendant’s jury waiver was purportedly received, the defendant was not represented by counsel but instead was proceeding pro se, assisted by standby counsel. No written waiver of counsel had been signed or filed. A standby counsel does not formally represent the defendant. Nor does standby counsel protect the defendant’s interest in the same way or to the same extent as counsel. Therefore because the defendant was not represented by counsel at the time his jury waiver was received (standby counsel being no substitute), and because he had not previously filed a written waiver of counsel, his jury waiver was ineffective for failure to satisfy the requirements of section 26A.
Waiver of trial by jury, waiver of constitutional rights
The Appeals Court also took the opportunity to comment upon the defendant’s argument that neither the jury waiver colloquy nor the counsel waiver colloquy was adequate, and that he did not effectively waive counsel because no written waiver was secured as required by SJC rule 3:10. The Court noted that the absence of a written counsel waiver does not alone require reversal provided there is sufficient other evidence in the record to demonstrate that the waiver was voluntary and intelligent. Here, the absence of the written waiver was indicative of the incomplete nature of the truncated interactions the defendant had with three different judges concerning the waiver of his constitutional rights. No judge inquired into the defendant’s disclosures of his alleged mental condition or the effect they might have on his ability to make rational decisions consistent with self-representation or with waiving a jury. Nor had any judge inquired into whether the defendant had been induced, coerced, or cajoled into waiving his rights, or whether he was intoxicated or mentally impaired. Finally, the Court cautioned judges about relying on earlier inquiries into a defendant’s state of mind concerning the waiver of constitutional rights. Ultimately, the Court noted, the trial judge should conduct the colloquies personally and obtain the necessary written waivers.
Waiver of trial by jury, Defendant Pro se
The defendant was convicted at a jury waived trial of assault and battery. He argued on appeal that the waiver of his right to a trial by a jury was not valid because the requirements of a written waiver of counsel was not signed as required by G.L. c. 218, s 26A. The Appeals Court agreed and reversed the conviction.
Under G.L. c.218, s26A a court cannot receive a waiver of the right to a jury trial unless the defendant is represented by counsel or has filed a written waiver of counsel at the time of the waiver. Here, at the time the defendant’s jury waiver was purportedly received, the defendant was not represented by counsel but instead was proceeding pro se, assisted by standby counsel. No written waiver of counsel had been signed or filed. A standby counsel does not formally represent the defendant. Nor does standby counsel protect the defendant’s interest in the same way or to the same extent as counsel. Therefore because the defendant was not represented by counsel at the time his jury waiver was received (standby counsel being no substitute), and because he had not previously filed a written waiver of counsel, his jury waiver was ineffective for failure to satisfy the requirements of section 26A.
Waiver of trial by jury, waiver of constitutional rights
The Appeals Court also took the opportunity to comment upon the defendant’s argument that neither the jury waiver colloquy nor the counsel waiver colloquy was adequate, and that he did not effectively waive counsel because no written waiver was secured as required by SJC rule 3:10. The Court noted that the absence of a written counsel waiver does not alone require reversal provided there is sufficient other evidence in the record to demonstrate that the waiver was voluntary and intelligent. Here, the absence of the written waiver was indicative of the incomplete nature of the truncated interactions the defendant had with three different judges concerning the waiver of his constitutional rights. No judge inquired into the defendant’s disclosures of his alleged mental condition or the effect they might have on his ability to make rational decisions consistent with self-representation or with waiving a jury. Nor had any judge inquired into whether the defendant had been induced, coerced, or cajoled into waiving his rights, or whether he was intoxicated or mentally impaired. Finally, the Court cautioned judges about relying on earlier inquiries into a defendant’s state of mind concerning the waiver of constitutional rights. Ultimately, the Court noted, the trial judge should conduct the colloquies personally and obtain the necessary written waivers.
Thursday, February 11, 2010
Com v Medeiros, SJC, 2/11/10
COMMONWEALTH v. MEDEIROS, FEBRUARY 11, 2010, SJC
Rape, Joint Enterprise, Inconsistent Verdicts
The defendant was convicted of rape of a child under the age of sixteen with force, aggravated rape and assault and battery. On appeal the he argued that the conviction of "aggravated rape by reason of joint enterprise" should be reversed because the jury simultaneously acquitted the co-defendant, the sole other member of the joint enterprise. The SJC agreed. The Court, while acknowledging that it is well established Massachusetts law that “mere inconsistency” in verdicts will not necessarily render a guilty verdict erroneous, found that the present case constituted an instance where the inconsistency was sufficiently troubling so as to require judicial intervention in the form of a reversal. Aggravated rape by reason of joint venture requires the united act of two or more persons to constitute an offense. The co-defendant’s acquittal reflected either a failure of the Commonwealth to prove the united act element of the crime or a misunderstanding by the jury as to the necessity of that proof. Under either explanation, the SJC found that reversal of the conviction was warranted.
Rape, Joint Enterprise, Inconsistent Verdicts
The defendant was convicted of rape of a child under the age of sixteen with force, aggravated rape and assault and battery. On appeal the he argued that the conviction of "aggravated rape by reason of joint enterprise" should be reversed because the jury simultaneously acquitted the co-defendant, the sole other member of the joint enterprise. The SJC agreed. The Court, while acknowledging that it is well established Massachusetts law that “mere inconsistency” in verdicts will not necessarily render a guilty verdict erroneous, found that the present case constituted an instance where the inconsistency was sufficiently troubling so as to require judicial intervention in the form of a reversal. Aggravated rape by reason of joint venture requires the united act of two or more persons to constitute an offense. The co-defendant’s acquittal reflected either a failure of the Commonwealth to prove the united act element of the crime or a misunderstanding by the jury as to the necessity of that proof. Under either explanation, the SJC found that reversal of the conviction was warranted.
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