Com v. Hampton, 6/30/10

Commonwealth vs. Lord Hampton, June 30, 2010

457 Mass. 152

Motion to Suppress Statement due to Failure to permit use of Telephone.  Jury Issues, Structural Error, Due Process, Criminal Record Checks of Jurors 

The defendant was convicted of the September 28, 1999, murders of a fourteen-year old girl (victim) and her eight-month old fetus, both on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal he asserts error in the denial of his motion to suppress the statement he gave to Boston police, allegedly because they violated his right under G.L. c. 276, § 33A, to make a telephone call; and in the denial of his request to obtain criminal records of jurors after the Commonwealth obtained criminal records of four jurors and after the jury were sworn. We affirm the convictions and decline to grant relief under G.L. 278, § 33E. 

Com v. Degray, 6/25/10

Commonwealth v. Norman Degray, June 25, 2010

77 Mass. App. Ct. 122

Seizure, Probable Cause 

The issue is whether police officers may reasonably search the trunk of an automobile where there was an odor of burnt marijuana in the vehicle, where the driver of the automobile admitted that he and the vehicle’s other occupants had been smoking marijuana in the automobile, and where two marijuana cigarettes as well as marijuana remnants were found in the passenger compartment.  The Commonwealth had appealed from a Superior Court judge’s allowance of the defendant’s motion to suppress evidence seized from the trunk.  The Appeals Court reversed. 

Com v. Lojko, 6/22/10

Commonwealth v. Brandon Lojko, June 22, 2010

77 Mass. App. Ct. 8

Firearm Storage 

The defendant was convicted in a bench trial of improper storage of a firearm. The Appeals Court concluded that the judged erred as matter of law in construing the requirements of the statute, and reversed.

Com v. Limone, 6/22/10

Commonwealth v. Joseph Limone, June 22, 2010

77 Mass. App. Ct. 903 

Seizure, Operating Under the Influence, Extraterritorial Stop, Breathalyzer Test, Field Sobriety Test 

The defendant was convicted of (1) operating a motor vehicle while under the influence of alcohol, (2) operating a motor vehicle after revocation of his license, and (3) operating a motor vehicle while under the influence of alcohol, fourth or subsequent offense.  On appeal, the defendant argued that the motion judge erred in denying his motion to suppress evidence.  He claimed that evidence was obtained as a result of an unlawful extraterritorial seizure.
   

Com v. Miranda, 6/21/10

Commonwealth v. Maria A. Miranda, June 21, 2010

77 Mass. App. Ct. 76

Jury Instructions, Defense of Another 

A jury convicted the defendant of assault and battery on a police officer. The defendant appealed, claiming that the judge erred in not instructing the jury on defense of another. The Appeals Court reversed the conviction.

The defendant was waiting for her friend while sitting in the driver’s seat of her SUV in a parking lot. A state trooper approached the vehicle and asked for the defendant’s license and registration.  He noticed indicia of alcohol impairment, and the defendant admitted to drinking.  At the trooper’s request, the defendant walked to the front of the SUV.  The defendant’s friend, Battle, approached the back of the SUV and began yelling at the trooper.  Battle also showed indicia of alcohol impairment. The defendant coaxed Battle into the vehicle.

Com v. Grannum, 6/18/10

Commonwealth vs. Kevin E. Grannum, June 18, 2010

457 Mass. 128

Motion to Withdraw Admission to Sufficient Facts for Failure to Provide Immigration Warnings 

Facts 

In 1986 the defendant was charged with receiving stolen property worth less than $100 and several motor vehicle offenses.  The defendant either pleaded guilty or admitted to sufficient facts with respect to all the charges.  Findings of guilty were entered for each charge and fines were imposed.  In 1999 the defendant moved for a new trial on the basis that the trial judge failed to warn him of the possible immigration consequences of his admissions.  Two court dates in district court were set but nothing happened.  Later, in 2006, the defendant filed a motion to withdraw his admission to sufficient facts based again on the failure to provide immigration warnings.  This motion was denied, and the defendant filed a timely notice of appeal.  In 2007 the defendant moved in district court for reconsideration of his 2006 motion arguing that in both the 1999 and 2006 motions, he had established that he was eligible for relief under G.L. c. 278, § 29D.  The defendant also included a letter from another attorney to his attorney stating the belief that the defendant’s admission in the prior case and a subsequent conviction for malicious destruction of property made him eligible for deportation.  This motion was denied in the district court.
  

Com v. Jones, 6/18/10

Commonwealth v. Kevin Jones, June 18, 2010

77 Mass.App.Ct. 53

New Trial, Assistance of Counsel, Witness Confrontation, Motor Vehicle, Drug Certificate, Ballistician’s Certificate, Firearms 

The defendant was convicted of (1) carrying a firearm without a license; (2) assault and battery; and (3) possession of a class B substance (cocaine).  The defendant’s direct appeal, appeal from the denial of his motion for a new trial, and appeal from the denial of his motion for reconsideration were consolidated.  

On appeal, the defendant claimed that (1) the judge committed reversible error in denying his motion for a new trial and his motion for reconsideration; (2) the evidence was insufficient to sustain his convictions of battery and possession of a firearm; and (3) his right of confrontation was violated by the introduction of ballistics and drug certificates without the supporting testimony of the individuals who performed the tests.   

The Appeals Court held in favor of the defendant in his contention regarding the admission of ballistics and drug certificates.  The Appeals Court reversed the judgments on the counts of the complaint charging carrying a firearm and possession of cocaine.  The remaining judgment and the order denying the motion for a new trial were affirmed.

Com v. Reddy, 6/15/10

Commonwealth vs. Dennis C. Reddy, June 15, 2010

457 Mass. 1002

       

Motion to dismiss a Habitual Offender Indictment 

Facts and Procedural History 

The defendant was charged in District Court with complaints of breaking and entering in the nighttime, malicious destruction of property, conspiracy, and possession of a burglarious instrument. He offered to plead guilty to those charges. The prosecutor would not agree to recommend anything less than the maximum period of incarceration that the District Court judge could impose on each offense.  The defendant, after entering his pleas, requested that he be sentenced to fifteen months on each offense, such sentences to run concurrently with each other and with a sentence he was likely to receive in connection with a parole violation then pending against him. 

Com v. Quintos Q., 6/15/10

Commonwealth vs. Quintos Q., a juvenile, June 15, 2010

457 Mass. 107

Delinquent Child, Resisting Arrest

Facts

In 2006, officers commenced pursuit of a vehicle in which the juvenile was the only passenger besides the driver. When the officers turned on his lights and attempted to stop the car the driver did not stop and instead tried to drive away.  The brief chase ended when the vehicle turned into the parking lot of a condominium complex and crashed into some bushes.  Both occupants left the vehicle and ran through the bushes. One officer exited his cruiser but did not have time to say anything to the fleeing pair before he tripped and fell in the bushes, losing sight of them.   A second officer who had joined the chase drove his cruiser to another part of the parking lot and saw the pair running. He commenced a chase on foot and yelled, "Stop, police. Stop, police." The officer followed the juvenile eventually trapping him between a building with a locked door, a fence, and the officer. The juvenile offered no resistance to his apprehension once he was cornered, which supports an inference that, at that point, the juvenile cooperated with his arrest.

Com v. Montoya, 6/15/10

Commonwealth vs. Luzander Montoya, June 15, 2010

457 Mass. 102

Resisting Arrest, Flight Creating Substantial Risk of Injury to Police 

Facts and Procedural History 

While on patrol late at night in September, 2005, two uniformed police officers saw the defendant riding a bicycle.  The officers testified that they saw the defendant extend his arm and fire three gunshots.  After seeing this, and with the intention to take the defendant into custody, the officers activated their cruiser lights and shouted at the defendant to stop. A chase ensued which ended temporarily when the defendant stopped and ran behind some stairs. The officers exited their cruiser with guns drawn and twice ordered the defendant to raise his hands and come out. Instead, the defendant ran off and the officers pursued on foot until the defendant ran into a parking lot near a canal. The lot was dark and although the canal was fenced off, a bent part in the fence allowed the defendant a place over which to jump. The defendant testified that when he jumped over the fence, he thought there was land on the other side, but to his surprise there was a drop of approximately twenty to twenty-five feet into shallow water and muck. The officers did not follow him over the fence, but told the defendant that he was under arrest.
  

Com v. Hinds, 6/10/10

Commonwealth vs. John J. Hinds, June 10, 2010
457 Mass. 83

Voluntary Manslaughter Jury Instructions, Homicide, Voir Dire 

The defendant appealed from his convictions of premeditated murder in the first degree, murder in the second degree, and armed assault with intent to murder.  The defendant argued that the judged erred by refusing to instruct the jury on voluntary manslaughter with respect to the two murder charges.  The SJC concluded that the evidence did not permit the jury to find the defendant guilty of voluntary manslaughter with respect to the killings, and the judge did not err in refusing to give such instruction.  The SJC further stated that after a review of the record there was no basis to exercise their powers under G. L. c.278 § 33E to reduce the convictions to a lesser degree of guilt or to order a new trial, and thus the convictions were affirmed.

Com v. Miller, 6/10/10

Commonwealth vs. Callum A. Miller, June 10, 2010

457 Mass. 69

Homicide, Jury Instructions, Malice, Closing Arguments by Prosecutor, Lesser Included Offense of Assault and Battery 

The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty.  He now appeals conviction and argues that the judge erred in his instructions to the jury, that the prosecutor’s closing argument contained several improprieties that violated the defendant’s right to a fair trial, and that the judge’s failure to include a jury instruction for the lesser included offense of assault and battery created a substantial likelihood of a miscarriage of justice.  The SJC, after hearing this case on appeal from the Superior Court trial, rejected the defendant’s arguments and declined to exercise their authority under G.L. c. 278 § 33E, to reduce the degree of guilt or order a new trial.

Com v. Weeks, 6/10/10

Commonwealth v. Rupert A. Weeks, June 10, 2010

77 Mass.App.Ct. 1

Witness Confrontation, Argument by Prosecutor, Business Record, Prior Conviction, Firearms

The defendant was found guilty by a Superior Court jury of unlawful possession of a firearm without a license, and not guilty of unlawful possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon. A Superior Court judge found the defendant guilty on the charge of carrying a firearm without a license, subsequent offense.  The defendant appealed from his two convictions arguing that the judge’s admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the 6^th Amendment to the US Constitution.  He also raised various trial issues.  The Appeals Court affirmed the convictions.

Com v. Marzilli, 6/9/10

Commonwealth vs. Joseph James Marzilli, June 9, 2010
457 Mass. 64

Attempt, Indecent Assault and Battery 

Prior to the defendant’s trial the Superior Court judge reported the case to the Appeals Court, along with two questions concerning the charge:

“Does an indictment alleging an attempt to commit the crime of indecent assault and battery charge a felony offense that is cognizable under the laws of the Commonwealth?  If not, is the indictment a nullity or is it one which should be read to charge a misdemeanor of assault or another offense?”

The defendant argued that the answer to the first question must be, “No”.  The defendant claimed there is no crime of “indecent assault” in either the common law or in the statutes, citing Commonwealth vs. Eaton, 2 Mass.App.Ct. 113 (1974), and he further contends that because the crime of “indecent assault” does not exist, that the crime of “attempted indecent assault and battery” cannot exist either.  The SJC transferred the case to their court and conclude the answer to the first question is, “Yes,” and that being so there is no need to consider the second question.

Com v. Sullivan, 6/4/10

Commonwealth v. James Sullivan, June 4, 2010

76 Mass.App.Ct. 864

Witness Confrontation, Prior Misconduct, Drug Certificate, Assistance of Counsel 

Defendant appealed from convictions of two counts of unlawful distribution of cocaine. He raised four evidentiary claims: (1) testimony describing the process by which the informant was authorized to serve as such and participate in controlled drug buys constituted improper vouching; (2) testimony indicating the informant had purchased cocaine from the defendant before the dates of the indicted offenses constituted impermissible prior bad act evidence; (3) testimony indicating law enforcement personnel were assigned to a gang task force was improper as it was irrelevant and prejudicial; and (4) the admission of drug analysis certificates violated the defendant’s rights under the confrontation clause of the 6th Amendment to the US Constitution.  The defendant also claimed ineffective assistance of counsel.  The Appeals Court affirmed the convictions.
  

Com v. Ramsey, 6/3/10

Commonwealth v. David Ramsey, June 3, 2010

76 Mass.App.Ct. 844

Medical Record, First Complaint, Hearsay, Witness Credibility

A Superior Court jury convicted the defendant of incest, and acquitted him of rape of a child. On appeal, the defendant complained of multiple violations of the first complaint rule. He also asserted error in the exclusion of an alleged recantation, the improper questioning of a witness, and exclusion of a journal kept by the complainant. The Appeals Court reversed because of the erroneous admission of some portions of the complainant’s hospital records.

Com v. Belliveau, 6/1/10

Commonwealth v. Gregory Belliveau, June 1, 2010
76 Mass. App. Ct. 830

Operating under the Influence, What Constitutes a Public Way, Ineffective Assistance of Counsel, Sentencing 

The defendant was observed obviously intoxicated with a beer in his hand urinating in public immediately after driving onto a pier in Charlestown.  The defendant was convicted of operating a motor vehicle under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90 § 24(1)(a)(1).  On appeal the defendant argued that the pier he was arrested on was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing.  The Appeals court affirmed the judgment.

Com v. Riedel, 6/1/10

Commonwealth v. Mark A. Riedel, June 1, 2010  

76 Mass. App. Ct. 911

Extraterritorial Stop, Operating Under the Influence, Operating Negligently so as to Endanger 

The defendant appealed the legality of an extraterritorial stop effectuated in Brewster by an Orleans police officer.  The stop resulted in charges of operating while under the influence of intoxicating liquor (of which he was convicted) and operating negligently so as to endanger (of which he was acquitted). The trial court denied the defendant’s motion to suppress and the Appeals Court affirmed.