Com v. Belmer, 10/14/10

Commonwealth v. Belmer, October 14, 2010

78 Mass. App. Ct. 62

Daye rule, Affidavits Submitted in Support of Abuse Prevention Orders, Prior Inconsistent Statements, Sufficiency of Evidence


The defendant was charged with assault and battery.  At trial, the mother of the victim sought to recant her claims made to obtain the abuse prevention order against the defendant, claiming that the defendant had accidentally hit the victim while talking with his hands instead of intentionally striking the victim.  The prosecutor sought and was allowed to introduce the mother’s prior testimony from the hearing for the abuse prevention order and the affidavit submitted in support of the order despite the defendant’s objection.  The judge later found the defendant guilty of assault and battery.  On appeal, the defendant challenged the extension of the rule established in Commonwealth v. Daye, 393 Mass. 55 (1984), which allows a prior inconsistent statement to be used substantively if the declarant is available for cross-examination, to include affidavits from a request for an abuse prevention order.  The defendant also challenged the sufficiency of the evidence for his conviction.

Com v. McIntosh, 10/8/10

Commonwealth v. McIntosh, October 8, 2010
78 Mass. App. Ct. 37



Sufficiency of the Evidence, Ineffective Assistance of Counsel


The defendant was convicted on three indictments: 1) possession of a firearm, second and subsequent offense, 2) possession of ammunition, and 3) possession of a loaded firearm.  On appeal, the defendant is claiming that the judge committed a reversible error by denying the defendant’s motion for a required finding of not guilty on the three indictments because the evidence was insufficient to convict him.  The defendant also claimed that his trial counsel was constitutionally ineffective.  The Court agreed that the defendant’s trial counsel was constitutionally ineffective and reversed the judgments, set aside the verdicts, and remanded the case to Superior Court for a new trial.

Com. v. LeBoeuf, 10/8/10

Commonwealth v. LeBoeuf, October 8, 2010
78 Mass. App. Ct. 45

Fourth Amendment, Warrantless Seizures, Random Stops, Administrative Inspections

The defendant was charged with operating a motor vehicle on a suspended license under G.L.c. 90, § 23.  The defendant claims that the random stops conducted by the Framingham Police Department’s “Truck Team” that were not based on reasonable suspicion of a violation were in violation of the Fourth Amendment to the United States Constitution.  The case was reported to the Court of Appeals by a judge of the District Court to answer the challenges to the stop presented by the defendant prior to the trial.  The Court of Appeals is permitted to review this case pursuant to Mass.R.Crim.P. 34 when the US Supreme Court or any of the appellate courts in MA have not considered the question.

Com v. Truong, 10/7/10

Commonwealth v. Truong, October 7, 2010
78 Mass. App. Ct. 28

Juvenile Record, Impeachment, Statutory Interpretation, Due Process

The defendant was charged with and later convicted of possession of ammunition without a firearm identification card under G.L.c. 269, § 10(h).  On appeal, the defendant challenged the impeachment of his credibility with his juvenile record.  The defendant also questioned whether spent shell casings were prohibited under the statute under which he was convicted.  Lastly, the defendant challenged the statute under which he was convicted as being vague and in violation of his due process rights under the United States and Massachusetts Constitutions.  The Appeals Court affirmed the conviction.