Com v. Dargon, 7/29/10

Commonwealth v. Joshua Dargon, July 29, 2010

457 Mass. 387

Rape, Indecent Assault and Battery, Admissibility of Records challenged under G.L.c. 233 § 79, First Complaint, Closing Argument, Ineffective Assistance of Counsel

The defendant was found guilty of aggravated rape, indecent assault and battery on a person over the age of fourteen, assault and battery, and assault and battery by means of a dangerous weapon.  The defendant appeals his convictions claiming that evidence in written form that was part of the sexual assault evidence kit included statements made by the victim that should not have been allowed, that the prosecutor’s closing argument was improper, and that his counsel was ineffective.  The SJC affirmed the defendant’s convictions.

Com v. Tlasek, 7/22/10

Commonwealth v. Paul J. Tlasek (No. 1), July 22, 2010

Assistance of Counsel, Waiver of Constitutional Rights

After a jury trial in the Superior Court, the defendant was convicted of trafficking in cocaine, and trafficking in cocaine in a school zone. The Appeals Court reversed these convictions in accordance with Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The reasoning for the reversals are contained in a companion memorandum. For purposes of a potential retrial, the Appeals Court separately addressed an evidentiary claim in this opinion. The defendant argued that incriminating statements he made to the Canton police should have been suppressed as a violation of his right to counsel under the 6th Amendment to the US Constitution. The Appeals Court affirmed the denial of the defendant's motion to suppress.

Com v. Sliech-Brodeur, 7/19/10

Commonwealth v. Joann Sliech-Brodeur, July 19, 2010

457 Mass. 300

Plain View, Search and Seizure, Discovery Orders and Mass. R. Crim. P. 14(b)(2), Jury Instructions, Daubert-Lanigan Hearing, Evidentiary Rulings

The defendant was found guilty of murder in the first degree of her husband on theories of deliberate premeditation and extreme atrocity or cruelty.  The defendant appealed her conviction by challenging a denial of her motion to suppress evidence, the scope of discovery orders granted on motion to the commonwealth concerning her defense of lack of criminal responsibility, and a number of rulings by the trial judge.  The SJC stated that the defendant’s motion to suppress was properly denied but that the discovery orders violated Mass. R. Crim. P. 14(b)(2), as appearing in 442 Mass. 1518 (2004).  These discovery orders resulted in prejudice to the defendant, and thus the SJC reversed the conviction and ordered a new trial.

Com v. F Velez, 7/16/10

Commonwealth v. Fred C. Velez, July 16, 2010
77 Mass. App. Ct. 270

The defendant was indicted on a charge of trafficking in cocaine. After a hearing, a judge denied the defendant's motion to suppress evidence and seeking disclosure of the identity of a confidential informant. Trial was jury-waived before a different judge, who found the defendant guilty. The defendant appealed, arguing that (1) his motion to suppress evidence obtained by searches of his automobile and apartment was erroneously denied and there was no probable cause for his warrantless arrest; (2) the identity of the informant should have been disclosed; (3) he received ineffective assistance of counsel; (4) the judge improperly questioned one of the Commonwealth's witnesses; and (5) cumulative errors require reversal. The Appeals Court affirmed.

Com v. A Hernandez, 7/16/10

Commonwealth v. Anthony Hernandez, July 16, 2010
77 Mass. App. Ct. 259

Witness Confrontation, Search and Seizure, Drug Certificate, Required Finding, Motion to Suppress, Protective Frisk, Reasonable Suspicion

The defendant appealed from convictions of unlawful possession of cocaine with intent to distribute, G.L. c. 94C, § 32A(a), and violation of the school zone law, G.L. c. 94C, §32J. On appeal, the defendant argued that his motion to suppress evidence was wrongly denied, and that the trial judge erred in denying his motion for a required finding of not guilty and in allowing into evidence a certificate of chemical analysis without affording the defendant his confrontation rights under the 6th Amendment to the US Constitution. The Appeals Court found reversible error occurred with the admission of the drug certificate; the Appeals Court affirmed the denial of the defendant's motion to suppress and motion for a required finding of not guilty. The Appeals Court reversed the convictions and remanded for a new trial.

Com v. D Mendez, 7/15/10

Commonwealth v. David W. Mendez, July 15, 2010
77 Mass. App. Ct. 253

Assault and Battery, Rape-Shield Statute, Prior Misconduct

The defendant was found guilty of indecent assault and battery on a person over fourteen years of age following a jury trial in District Court. On appeal, the defendant argued that (1) the judge erred in not allowing defense counsel to reference testimony concerning the victim's prior sexual conduct in his closing argument, (2) the evidence was insufficient to permit an instruction about the victim's incapacity to consent, and (3) the judge's use of the word “unconscious” in the jury instructions on the element of consent was improper. The Appeals Court affirmed the judgment.

Com v. Sommer, 7/13/10

Commonwealth v. Steven Sommer, July 13, 2010
77 Mass. App. Ct. 907

Idle and Disorderly Person, Prior Violent Conduct, Self-Defense, Assault and Battery

The defendant was charged with assault and battery; threats to commit a crime; disorderly conduct, and assault and battery by means of a dangerous weapon. After a jury trial, he was convicted of assault and battery and disorderly conduct, and acquitted on the remaining charges. The defendant appealed, arguing that (1) although the disorderly conduct instruction given by the trial judge was consistent with the SJC's interpretation of the disorderly conduct in Alegata v. Commonwealth, 353 Mass. 287 (1967), the Alegata decision was erroneous and (2) the trial judge's refusal to give a “first aggressor” instruction was error. The Appeals Court found error in the second contention, but affirmed the judgment on reason of no substantial risk of a miscarriage of justice.

Com v. Womack, 7/13/10

Commonwealth v. Leo Womack, July 13, 2010
457 Mass. 268
 
Accusations and Denials, Juror Intimidation, Right to Remain Silent

The defendant was convicted of felony-murder in the first degree.  His appeal for a new trial was denied by the trial judge.  The appeal of that denial as well as his direct appeal were consolidated into this appeal.  The defendant contends that the judge erroneously admitted evidence of accusations by police during a custodial interrogation and evidence of the defendant's blanket denials and his silence, and that the judge should have declared a mistrial based on evidence of alleged juror intimidation.  The SJC affirmed the conviction and the order denying a new trial and also declined to reduce the degree of guilt.

Com v. Clemens, 7/8/10

Commonwealth v. Jeffrey L. Clemens, July 8, 2010
77 Mass. App. Ct. 232

Assistance of Counsel, Self-Representation, Waiver of Constitutional Rights

The defendant appealed from his conviction for disorderly conduct, in violation of G.L. c. 272, § 53, following a jury trial in the District Court. The appeal challenges the manner in which the judge coupled allowance of the defendant's request to discharge appointed counsel (denying his request for new counsel) with a decision to require the defendant to represent himself. The defendant argued that there was inadequate colloquy between the judge and the defendant to inform the defendant of the risks of going forward if unrepresented by counsel. Without adequate warning, the judge could not conclude that the defendant was sufficiently informed to warrant an implied waiver of his right to counsel. The Appeals Court reversed, holding that the colloquy was inadequate to support a finding of a knowing waiver of counsel. 

Com v. Springfield Terminal Railway Co., 7/8/10

Commonwealth v. Springfield Terminal Railway Company (and seven companion cases), July 8, 2010
77 Mass. App. Ct. 225

MA Oil and Hazardous Material Prevention Act, Execution of Sentence, Stay of Proceedings

The defendants are four corporations that operate railways in MA and other states. Each defendant was found guilty of two counts of violating the reporting procedure mandated by the MA Oil and Hazardous Material Release Prevention Act. The charges arose out of the defendants' failure to notify the Department of Environmental Protection about a diesel fuel leak from a parked locomotive. The judge sentenced each defendant on the first count to pay a fine of $100,000, plus a $25,000 surfine, payable within thirty days, and on the second count each defendant was placed on probation for three years with special conditions.

Com v. Rivas, 7/6/10

Commonwealth v. Felix Rivas, July 6, 2010
77 Mass. App. Ct. 210

Drug Certificate, Search and Seizure, Reasonable Suspicion, Motion to Suppress

The defendant was convicted of trafficking in cocaine with a net weight of twenty-eight grams or more in violation of G.L. c. 94C, §32E(b)(2). The defendant appealed, arguing that the admission of laboratory drug certificates violated his rights under the 6th Amendment to the US Constitution. He also appealed from an order denying a motion to suppress, in which the motion judge concluded that a red rejection inspection sticker affixed to the defendant's vehicle supplied the police with an objectively reasonable suspicion to stop the defendant. The Appeals Court reversed the conviction and remanded for a new trial due to the error in the admission of drug certificates. The Appeals Court affirmed the denial of the motion to suppress.

Com v. CR King, 7/6/10

Commonwealth v. Christopher Robert King, July 6, 2010
77 Mass. App. Ct. 194

Assault and Battery, Self-Defense, Jury Instructions, Closing Argument, Assistance of Counsel

After a jury trial, the defendant was convicted of assault and battery, and was sentenced to one year of supervised probation. On appeal, the defendant claimed that the judge's jury instruction on self-defense, and the prosecutor's closing argument, created a substantial risk of a miscarriage of justice. The defendant also claimed that trial counsel was ineffective for not objecting to the prosecutor‟s closing argument. The Appeals Court reviewed the defendant's claims under a substantial risk of a miscarriage of justice standard of review, and affirmed the judgment.

Com v. J King, 7/2/10

Commonwealth v. Joshua L. King, July 2, 2010
77 Mass. App. Ct. 189

Drug Certificate, Melendez-Diaz v. Massachusetts

After a jury-waived trial, defendant was found guilty of distribution of a class B substance (cocaine), G.L. c. 94C, § 32A(c), as a subsequent offense, G.L. c. 94C, § 32A(d). Defendant appealed, arguing that the trial judge erred in admitting a drug certificate in evidence without live testimony in violation of his constitutional right to confrontation under the 6th Amendment to the US Constitution and that the error was not harmless beyond a reasonable doubt. The Appeals Court affirmed the judgments.

Com v. F Mendez, 7/2/10

Commonwealth v. Florencio Mendez, July 2, 2010
77 Mass. App. Ct. 905

First Complaint Doctrine, Hearsay, Cross-Examination, Sexual Assault

In October 2007, defendant was tried and convicted on indictments charging that he sexually assaulted two of his wife's nieces, Alice (10 years old) and Betty (14 years old). The victims' mother testified as the Commonwealth's designated first complaint witness with respect to Alice. Commonwealth offered no 1st complaint witness as to Betty. Defendant appealed, arguing that additional complaint evidence was admitted erroneously. The Appeals Court affirmed the judgments.

Com v. Indelicato, 7/2/210

Commonwealth v. David Indelicato, July 2, 2010
77 Mass. App. Ct. 182

Probation Modification, Alcohol

Defendant's original conditions of probation following his 3rd conviction of operating while under the influence included mandatory attendance at Alcoholics Anonymous (AA) meetings four times per week. While on probation, police placed defendant in protective custody after encountering him on the street in a state of intoxication. Defendant smelled of, and admitted consuming, alcohol.

A District Court judge modified defendant's conditions of probation to include “no alcohol” and random alcohol screenings. Defendant appealed, arguing that neither a violation of defendant's probation, nor any “material change in circumstances” warranted the modification.

The Appeals Court held that the defendant's being taken into protective custody by the police for extreme intoxication in public was a material change in circumstances within the meaning of case law sufficient to support the motion judge's modification of probation conditions.

Modification of probation conditions affirmed.


- Prepared by AYK