Com. v. Ferreira

Commonwealth v. Kris N. Ferreira (October 21st, 2011)

Docket No. SJC-10902

Massachusetts Superior Judicial Court

Facts: The victim was a pizza delivery man. When delivering a pizza, two men pushed him down and demanded that he give them his money. One of the men told the victim they didn’t want to hurt him, then showed him a paring knife. Then they took his money and left. The victim gave the police the descriptions and picked out photographs of the potential robbers. He identified Shawn Pacheco as the hooded one who had first grabbed him. He also identified the defendant as the second person involved, but at one point said he was only 80% sure about that. Pacheco testified, under an order if immunity, that he had committed the robbery with another person (Dias). Dias also testified he committed the robbery, and he testified without the grant of immunity. The defendant also called Kristen Bennett testified the defendant was at her place at the time, babysitting her children with his girlfriend cause she was recovering from a medical procedure.

In the closing arguments, the prosecutor tried to discredit the 80% statement and the testimonies of Pacheco and Dias. The other point the prosecutor made was that the victim was shown two arrays of 7 pictures each, and out of all the possible combinations, he picked the two that were good friends; the defendant even has a child with Pacheco’s sister.

Issue #1: Is the prosecution’s closing statement misleading?

Yes. The prosecution’s closing argument basically said that there was a 1 in 49 chance the victim would have picked out those two robbers, and therefore a 98% chance that that the victim had accurately identified the defendant. But, the victim is not randomly selecting pictures; he is basing his picks on his observations. Also, the victim said he saw the victim in the hoodie (Pacheco) a lot more, so he easily recognized him, then he had a 1 in 7 chance of picking the defendant at random from the second array. And since the other pictures were of people from Fall River the similar age as Pacheco, it wouldn’t be surprising that he would happen to know a person from the other photographs.

Also, if the Commonwealth wanted to offer analysis of mathematical probability, it would have to be offered through expert testimony. This way the defense would have a chance to challenge the admissibility of the expert testimony under Daubert v. Merrel Dow, and the judge would look to see if the Commonwealth established the five requirements necessary to admit expert testimony in a criminal case.

Issue #2: Did the errors in the prosecutor’s closing argument result in a substantial risk of a miscarriage of justice?

Yes. The closing argument could lead the jury to put undue weight on mathematical probability analysis that did not constitute proof beyond a reasonable doubt. The victim had admitted uncertainty as to the accuracy of the identification. On top of that, Pacheco testified that he committed the robbery with Dias; Dias testified to committing the robbery with Pacheco; and there was testimony that put the defendant in a different place at the time of the crime. The jury apparently did not consider these facts, but they cannot be ignored when considering whether there was a substantial risk of a miscarriage of justice.

Conclusion: The prosecutor’s closing argument created a substantial risk of a miscarriage of justice, therefore the judgment is reversed, the verdict and habitual offender finding are set aside. The case is remanded to the Superior Court for a new trial.

Prepared by KP

Com. v. Charles P. Dyer

Commonwealth v. Charles P. Dyer

Docket # SJC-07460

Massachusetts Supreme Judicial Court

Facts: Janice lived with the defendant in Maine and had a four year old daughter with him. She moved away to the Fall River area where her mother, Carol, lived. The defendant went looking for her, and told her mom and her brothers, Roy and George, that he had damaging tapes of her engaging in sexual acts. They all met at Carol’s house, the defendant showed them a couple of tapes of Janice, including one which he admitted that he had two guys raped Janice and taped it. It was a heated and emotional confrontation. The defendant eventually pulled out a gun, shot Roy, then shot George in the hand and shoulder, then pointed the gun at Carol and then at Janice but it did not fire both times. George survived the gunshot wounds, but Roy died. The defendant had set up the video recording of Janice because he thought she was an unfit parent. When Janice discovered it, she left Maine with the child.

The defendant testified to a different version of the story. After showing the videotapes at the house, the brothers blocked the exit and cornered him. They demanded money and told him he would never get visitation rights. Roy had the gun and hit the defendant with it, then a struggle ensued with both George and Roy grabbing and beating the defendant. In the struggle the gun went off and Roy fell to the ground. Then George hit the defendant with a chair. The defendant then shot twice to scare him off, but George then tried to push him down the stairs and the defendant shot George. He was then attacked by Carol and Janice, he put the gun down and left after Carol threatened to kill him.

Issue #1: Was the defendant’s right to a public trial denied when potential jurors were questioned by the judge in her lobby with the public excluded?

No. The defendant waived his right by consenting to the proceedings. The defendant didn’t bring up any factors that would suggest that a substantial likelihood of a miscarriage of justice occurred.

Issue #2: Were the defendant’s due process rights violated when he was not present when the judge addressed a couple issues of potential juror bias with the jurors?

No. A defendant has a right to be present if a judge conducts an inquiry into the potential serious juror misconduct or a suggestion of juror bias. But, if the defendant makes no request to be present, the judge does not exclude him, and his counsel never objects to his absence, the issue is waved and will not be addressed on appeal.

Issue #3: Was the defendant improperly excluded from discussion between the judge and counsel regarding questions from the jury?

No. Defense counsel was consulted by the judge and agreed to the answers the judge would give

Issue #4: Should the judge have granted an evidentiary on potential bias by two jurors?

No. The boyfriend of one juror worked at the correctional facility the defendant was being held, and another juror was a cook at another correctional facility. The trial judge already addressed bias with the cook earlier in the trial. As for the guard, the defendant did not fulfill the burden of showing pretrial bias, and Juror D said that she would not have any trouble being fair and impartial.

Issue #5: Was the admission of evidence that the Drew family was afraid of the defendant erroneously admitted?

No. Evidence that the Drew family was afraid of the defendant was necessary to rebut the defendant’s version of the story, which said that he acted in self-defense against the aggressive brothers who threatened the defendant and tried to extort money from him. There was no error because the defendant tried to portray the family as a whole as the aggressor.

Issue #6: Was the admission of Janice’s statement that she did not tell anyone about the rapes because she was afraid the defendant would beat her, erroneously included?

No. Normally evidence showing previous misbehavior cannot be admitted, unless such evidence is relevant for some other purpose. In this case, Janice’s statements were used to rehabilitate he credibility after the defendant theorized that Janice threw out the rape accusations only when her brothers were siding with the defendant instead of her. Since this evidence was used towards Janice’s credibility, which was attacked by the defendant, it is admissible.

Issue #7: Did the three claims of error in the jury instructions create a substantial likelihood of a miscarriage of justice?

No. 1) The judge erroneously referenced all three prongs of malice instead of just focusing on intent; but this didn’t affect the verdict cause the jury is required to find, beyond a reasonable doubt, that the defendant intended to kill the victim. 2) The judge also erroneously described the Commonwealth’s burden when it comes to proving voluntary manslaughter, but, the judge followed that with a correct description of the type of provocation sufficient and not sufficient to reduce murder to manslaughter. Also, the defendant was not entitled to a voluntary manslaughter instruction based on provocation; voluntary manslaughter involved an intentional killing, and according to the defendant, Roy’s death came about accidentally when the gun went off. 3) The judge incorrectly stated the Commonwealth’s burden with respect to self-defense, but reading the instruction as a whole, there is no substantial likelihood of a miscarriage of justice. 4) The defendant also argues that the judge should have instructed on the use of nondeadly force in self-defense, since he only used his hands in the struggle with Roy. The extent of force the defendant used is irrelevant to whether or not it was an accident; the defendant is raising a defense of accident and is not entitled to an instruction on the nondeadly use of force.

Issue #8: Did the ineffectiveness of the defendant’s counsel enough to warrant a new trial?

No. 1) The defendant provided an affidavit by a professor of criminalistics who said that there should have been testing of the gunshot and powder discharge, but, there is not evidence to indicate that these analysis could have been done because the appointed attorney did not begin working on the case until 18 months after the shooting, and even if the investigation could have been made, it’s only a theory that it would have proved useful for the defendant. 2) The defendant also claims that his counsel failed to bring up the custody dispute between Janice and his sister, and that it was relevant because it brought up Janice’s potential bias. But, the transcripts are full of evidence of Janice’s bias and the ill will between her and the defendant. 3) The defendant argues that his counsel should have objected to the ID cards that were found in his car and were brought into evidence because they suggested criminal activity. Usually you are not allow to bring up anything suggestive of bad character (which includes aliases, fake ID’s and nicknames), but the prosecutor can refer to these things when there is a reason to do so. The prosecution’s questions were relevant in this case because they referred to the defendant’s premeditation about committing the crime and intent to flee. The defense counsel also later clarified that these cards had been owned and used by the defendant way before these events occurred, thus the counsel was not ineffective.

Conclusion. The SJC affirms the decision. The defendant was found guilty of murder in the first degree on a theory of deliberate premeditation, and also armed assault with intent to kill.

Prepared by KP

Com. v. Steven M. Lahey

Commonwealth v. Steven M. Lahey (October 12th, 2011)

Docket No. 10-P-568

Massachusetts Appeals Court

Facts: The police officer from Norton was in Attleboro escorting an ambulance. On his way back, while still in Attleboro, he noticed the defendant speeding and passing cars in a no-passing zone. The defendant’s car drove into oncoming traffic in front of the police cruiser, forcing the police officer to drive off the road in order to avoid a collision. The officer let his dispatcher know to notify Attleboro police and pursued the suspect. After a chase he finally pulled him over. The Attleboro police arrived right after and proceeded to do the investigation that led to the charges. The judge rules that the stop had been made to prevent a fatal accident.

Issue #1: Was the admission of the evidence valid since the stop lacked jurisdictional authority?

Yes. Police officers are not allowed to act outside of their jurisdiction, unless they are specifically authorized by statute, or in the performance of a valid citizen arrest at common law. Here, the judge found that these exceptions did not qualify, but the inevitable discovery exception does. The facts indicate that there was a practical certainty that the defendant would be discovered by Attleboro police. He was swerving onto on-coming traffic and passing cars in a no-pass zone. The Norton police officer pulled him over a quarter to a half mile after initially spotting the driver, and the Attleboro police arrived only 30 seconds after the officer took the defendant’s keys and driver’s license. The Attleboro officers also testified that they reach the scene within a minute of hearing the dispatch. The judge also accepted that the officer was acting in good faith, and his goal was not to arrest the defendant and gather evidence, but to remove him from the highway and prevent an accident.

Issue #2: Was the motion to suppress based on newly discovered evidence introduced too late?

Yes. The tape that the defense wants to bring in was easily discoverable in the original motion, but the defense did not present the motion until 8 months after the judge initially ruled on the original motion to suppress the evidence, and only 5 weeks before trial began. Even though the renewal motion was very late, the court still looked at the contents of the tape and the ambiguities that it offers do not show clear evidence that would affect the judge’s decision. The information on the tape does indicate however that the Attleboro police would be more likely to discover the vehicle based on the officer’s descriptions.

Conclusion: Appeals court agrees with the motion judge. The test for the inevitable discovery exception is one of practical certainty, not absolute certainty, and it is fulfilled here. And as for the tape, it would actually strengthen the prosecution’s case and substantial justice did not require the allowance of the motion to renew based on the new evidence.

Prepared by KP

Com. v. Byron DeWeldon

Commonwealth v. Byron DeWeldon (October 12th, 2011)

Docket No. 10-P-1357

Massachusetts Appeals Court

Facts: The defendant was found to be a SDP as defined in G. L. c. 123A, § 1,(2). In 1995, he had pleaded guilty in MA to indecent assault and battery on a child under the age of 14, and during the same time, he had pleaded guilty in Rhode Island to three counts of second degree child molestation. Both sentences were suspended and the defendant moved to California. Three years later he pleaded guilty to contributing to the delinquency of a minor. He was extradited to Rhode Island, where he picked up another charge for child molestation. A Rhode Island judge found him in violation of probation and imposed the original 10 year sentence in State prison.

The defendant was released on parole in 2004 because he had participated in multiple rehabilitative programs and earned good time credit. Mass. then took him into custody, and he was charged with violating the terms of his probation. He was convicted to his original sentence; the judge granted the eight years he had served in Rhode Island, but did not grant any credit for good time earned because only sentences prisoners in Mass. can receive earned good time.

Issue #1: Should the defendant’s motion to dismiss the SDP petition be granted because he was entitled to the earned good time credit, which would have brought his sentence to expiration before the date of the Commonwealth’s SDP petition?

No. The judge was correct in establishing the starting date of the sentence. The DOC has discretion on whether or not to allow good time credit; a prisoner does not have any entitlement to earned good time. The DOC does not have to adopt the determination made by another state on the quality of the rehabilitation and on the quantity of credit attributable to those programs.

Conclusion: The DOC had the right to not grant the good time credit and thus the defendant remained a lawful prisoner subject to the process of the SDP petition.

Prepared by KP

Janet Vaccari & another, petitioners

Janet Vaccari & another, petitioners

Docket # SJC-10914

Massachusetts Supreme Judicial Court

Facts: Vaccari and Pistone were indicted on charges of motor vehicle insurance fraud, conspiracy and larceny. They were part of a scheme, along with Forlizzi and Battista, to submit and be paid for false insurance claims. The Commonwealth intends to have the petitioners testify against Forlizzi and Battista at trial. One Superior Court judge granted them immunity for their testimony, but another judge denied it. They appealed and the single justice denied their motion for reconsideration.

Usually you cannot appeal this kind of order, your only option is to not show up and fight the contempt charge later on. The petitioners argue that they could not follow the contempt route. The petitioners do not offer any evidence to show that their familial relationship with an alleged organized crime figure makes it unduly burdening to find them in contempt and incarcerate them. They have not met their burden of proof showing that this is an extraordinary case.

The petitioners claim that the immunity they were offered will not protect them from Federal prosecution or prosecution in another state. But the actual immunity they have been granted does protect them from Federal prosecution and prosecution in another state. They also argue that the immunity they have received does not protect them from prosecution for perjury from statements they previously gave to the police. But the immunity orders preclude the use of their immunized testimony against them for this purpose.

Prepared by KP

Com. v. Adkinson

Commonwealth v. Nancy Adkinson (October 5th, 2011)

Docket No. 10-P-432

Massachusetts Appeals Court

Facts: The defendant’s husband continually beat and threatened the defendant; there was an on-going cycle of abuse and control. The two were both accused of abuse and rape of their four boys. The defendant claimed that her husband threatened to hurt her if she didn’t participate in the abuse. The husband also administered cocaine to the kids and the defendant. The children were taken away, and afterward the abuse continued, including an incident when the husband put a knife to the defendant’s throat and threatened to kill her if she told anyone what had happened to the children. She escaped but after being visited by her husband at a mental health center she withdrew her allegations of her husband and returned home. The two were later arrested for the abuse of their children.

            The husband pressured the defendant to take back a statement made to the Lowell police about the abuse of her husband, and forced her to be a co-defendant with him. During the defendant’s own case, the husband hired a different attorney than the one the defendant already held, and told the defendant that that attorney would represent them in their own case. Any time the defense attorney suggested that a unified defense was not beneficial, the husband violently disagreed, and also strongly objected to any pleas the defense counsel was considering. The husband also made a rule that no defense attorney could meet separately with each defendant; the two of them and any defense attorney had to all be present at every meeting. During the trial, the judge himself expressed concern about whether the defendants had considered severance. Even at sentencing, the husband decided that the defendant’s counsel would not speak, and the two defendants would be represented by the husband’s counsel. The defendant’s history of abuse was not presented and thus she was sentence to 35 to 40 years.

            The defendant presented three expert testimonies in support of her motion of a new trial. The judge found that the testimony of Dr. Joss was not credible and not reliable but did not give much of an explanation. A social worker testified that the relationship was controlling and abusive. A psychologist testified that the defendant was experiencing a severe mental disorder and the evidence was overwhelming in support of a diagnosis of Battered Women’s Syndrome. But the judge found that these testimonies did not address the issue of competency and denied the motion for a new trial, and ruled that a competency hearing was not required because the competency issue was never raised at trial and because the defendant had answered all questions during the trial in an appropriate and responsive manner.

Issue #1: Were the defendant’s rights violated when the court did not conduct a competency hearing?

Yes. Whether a competency hearing was required depends on the defendant’s behavior during trial. Although in this case the court also has to consider the fact that the defendant was incapable of rationally assisting in her own defense because of the pattern of abuse and domination exercised upon her by her husband. There was clear evidence of physical and emotional abuse, and testimony that suggested some evidence of battered woman syndrome. The defendant, her son, and the two defense attorneys corroborated the expert testimony. There was also overwhelming evidence of the control the husband exercised over the defendant throughout the proceedings. Even if the defendant’s goal was to be reunited with her children when choosing the unified defense, as the judge suggests, it doesn’t change the fact that the defendant did not have the ability to consult rationally with her attorney and assist in her own defense.

Conclusion: The motion for a new trial should have been allowed.

Prepared by KP

Com. v. Lavoie

Commonwealth v. Matthew G. Lavoie (October 3rd, 2011)

Docket No. 09-P-838

Massachusetts Appeals Court

Facts: In 2003, a jury found the defendant guilty of murder in the second degree; the defendant challenged the verdict but the conviction was affirmed and any further appellate review was denied. In 2007, the defendant became aware of a new Federal court decision that addressed the constitutional implications of the exclusion of a defendant’s family from the courtroom during jury selection. The defendant’s family in this case had been asked to leave the courtroom during jury selection. The court officers had asked the family to step out because there was not enough room in the courtroom for all the potential jurors; the judge was not made aware that this procedure was being used. On the first day of jury selection there were 88 potential jurors and the courtroom capacity was 80. Nothing was stated on the record regarding the exclusion of the family; neither objection or explicit waiver by the defendant. The judge ruled that although there had been an impermissible courtroom closure, the defendant was not entitle to relief because 1) the public would have made no meaningful observations of the voir dire process since it is done mainly at sidebar, and 2) the defense attorney failed to object.

Analysis: The template for analysis for a closure of the courtroom comes from Commonwealth v. Cohen 456 Mass. 94, 106-119 (2010), which held that the closure of a courtroom violated the 6^th Amend. right to a public trial and the defendant had not waived that right. We also consider Waller v. Georgia, 467 U.S. 39 (1984), which sets out a four-factor test for determining whether a courtroom closure comports with constitutional requirements.

Issue #1: Was there a closure?

Yes. Both sides don’t dispute that there was some closure of the courtroom.

Issue #2: Did the closure satisfy the Waller factors?

No. Cohen suggests that insufficient space may provide a substantial reason for a partial closure during jury selection. But looking at the second Waller factor, that closure be no broader than necessary, members of the public cannot be prevented from witnessing the proceedings if space becomes available, which seems to be the case here. Also, other alternatives were not considered. Therefore, the Waller factors were not met and the closure was impermissible.

Issue #3: Did the defendant waive his right to a public trial?

No. The judge found that the defense counsel was aware of the defendant’s right to a public trial and was aware that the family had been removed from the courtroom during jury selection, but for strategic reasons he did not object. But the counsel did not discuss the removal of the family with the defendant. Therefore, the defendant did not waive his right to a public trial; defense counsel could not waive the right without discussing it first with his client.

Issue #4: What relief is the defendant entitled to?

The only adequate remedy is a new trial. The violation of the right to a public trial does not lead to an analysis under the substantial risk of a miscarriage of justice standard.

Conclusion: Motion for a new trial is granted.

Prepared by KP

Com. v. Vladimir Samuel

Commonwealth v. Vladimir Samuel (October 3rd, 2011)

Docket No. 10-P-166

Massachusetts Appeals Court

Facts: Officer working at the Chelsea Police Department got a call that he was in a room with a man who had a loaded gun and was saying that he had been hired to kill someone. The caller said he was afraid for his safety and the police officer dispatched several officers to the address. The police arrived at the address and asked if they could do a well-being check of the interior. They went to the backroom where they saw the suspect as described by the caller, found the gun and arrested the defendant. In court, in response to the defendant’s motion to suppress the evidence, the judge found that the entry of the police in the apartment was proper, but their search of the firearm under the pillow was an improper search because it exceeded the scope of the consent given to searching the apartment. Courts in the past have not held that there can be reasonable suspicion based just on reports of gun possession.

Issue #1: Was there reason to believe this was an emergency situation where the police were allowed to search for the firearm?

Yes. The Commonwealth claims that there was an emergency situation that justified the seizure of the firearm and the arrest of the defendant. The Commonwealth therefore has the burden of showing that an emergency existed and the search was reasonable under the circumstances. Here, the police had information that the suspect had a loaded firearm and had said that he was going to kill someone, and this had frightened the caller. Due to this information, the police had reasonable grounds to believe that an emergency existed and that lives were in danger. When they entered, the room matched the description the caller had given so the police had reasonable suspicion to believe there was a loaded firearm and that it was going to be used to kill someone.

Conclusion: The search under the pillow was reasonable. Reverse the order allowing the motion to suppress.

Prepared by KP

Com. v. Jackson

Commonwealth v. Jackson
Massachusetts Appeals Court
September 29, 2011
Docket No. 10-P- 116

Assault and Battery by Means of a Dangerous Weapon, Assault and Battery, Practice, Criminal,
Duplicative Convictions, Sentence

Defendant appeals from a sentence imposed by a District Court judge claiming the
convictions were duplicative and the District Court judge erred in revising and revoking his
sentence. The lower court ruling was affirmed.

Facts

On March 29, 2009, Tiffany Pimental, a loss prevention officer at Shaw’s Supermarket in
the Porter Square area of Cambridge, watched the defendant via surveillance system place items
that were not paid for into a bag then leave the store. Ms. Pimental left her office and followed
behind the defendant. The defendant then turned around, lunged at Ms. Pimental and began to
punch her high in her body and stomach. Ms. Pimental screamed that she was pregnant and
went into a defensive position crouched on the ground. The defendant then began to kick her in
her legs between five and seven times.

Duplicative Charges

The defendant was found guilty of assault and battery by means of a dangerous weapon,
in violation of G.L.c. 265 § 15A(c) (count 1) and assault and battery, in violation of G.L.c. 265 §
13A (count 4). He defendant argued, for the first time on appeal, that his conviction for assault
and battery was duplicative of his conviction for assault and battery by means of a dangerous
weapon because the former was a lesser included offense of the latter. Because the defendant
failed to preserve the issue for appeal, the court reviewed his claim “only to determine if a
substantial risk of a miscarriage occurred.” Commonwealth v. Vick, 454 Mass. 418, 430 n.13
(2009).

The court ultimately held that the lower court judge could have found that two separate
acts occurred: the first act occurred when the defendant began punching the victim and the
second act occurred when the defendant began to kick the victim with his shoe. Commonwealth
v. Lord, 55 Mass.App.Ct. 265, 272 (2002).

Sentencing

On count 1, the defendant was sentenced to a two year prison term, with one to serve
and the balance to be suspended for a period of four years. On count 4, defendant received
a concurrent sentence of a two year prison term with one year to serve and the balance to be
suspended for four years. The sentences were to start from and after an eighteen-month sentence
that the defendant was currently serving.

Later in the afternoon following the sentencing, the probation department informed the
judge that the defendant refused to sign the conditions of probation agreement pursuant to the
sentence imposed. At a hearing held ten days later on October 16, 2009, the judge explained to
the defendant that that he imposed the probation term as a part of his sentence because he “did
not want to give up on [the defendant].” The judge further explained that he chose to give
this lesser sentence in lieu of two and a half years on each count and may instead impose this
sentence in if the defendant continues to refuse to sign the conditions of probation. After giving
the defendant an opportunity to think about it during a recess, the defendant still refused to sign
the conditions of probation. He judge subsequently vacated his original sentence sua sponte and
imposed a two and one half year sentence for count 1 and eighteen months sentence for count 4,
both to run concurrently with the sentence that the defendant was already serving.

The defendant argued that the judge’s revocation of the original sentence and imposition
of a lengthier sentence was impermissible pursuant to various case law cited stating that a
judge’s sentence should reflect careful thought and consideration and could only be revoked
within a sixty day statutory period. The issue before the court on appeal was whether the
judge’s decision to revise and revoke the sentence was based on consideration of post sentencing
conduct, which is impermissible, or on information which existed at the time of the original
sentencing but was not known to the judge, which is a permissible ground for revision and
revocation.

In accordance with Mass.R.Crim.P. 29(a), the court held that the defendant’s refusal to
sign the conditions of probation was a manifestation of his attitude at the time of sentencing.
At this time of sentencing, the judge’s understanding was that the defendant would sign the
conditions of probation form. The rejection of the judge’s sentencing structure became, in effect,
cause for revision and revocation. Under this reasoning, and in accordance with a maximum
sixty day period for revisions, the judge acted within the limits of the statutes under which the
defendant was convicted. Defendant’s argument that pursuant to Commonwealth v. Christian,
26 Mass.App.Ct. 477, 482 (1999), “a refusal of a defendant to acknowledge probation conditions
constitute[s] a violation of them and grounds for revocation,” was of poor comparison to the
case at hand because the defendant in Christian was serving a sentence consisting of probation
(no incarceration component) whereas in the instant case, the defendant’s refusal to sign the
probation component of the sentence was a refusal to adhere to the entire sentencing scheme as
contemplated by the judge.

Judgment AFFIRMED; revised sentencing upheld.

Prepared by GD

Com. v. Newcomb

Commonwealth v. Thomas Newcomb
Case No. 10-P-1369
2011 Mass. App. LEXIS 1218
Appeals Court
September 28, 2011

Rape; Sufficiency of the Evidence; Prior Misconduct; Constructive Force


The defendant on appeal argued that the trial judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence to convict him on two counts of adult rape.  Specifically, the defendant argued on appeal that the Commonwealth did not present sufficient evidence to support its theory of constructive force.

Com. v. Ramon Perez

Commonwealth v. Ramon Perez (September 23rd, 2011)

Docket SJC-10208

Massachusetts Supreme Judicial Court

Facts: The defendant had previously worked with the victim and engaged in drug transactions. After some phone conversations, he met the victim behind a supermarket distribution warehouse, and shot him. He proceeded to get rid of the clothes and wash his car, and he covered the body, which he had dumped in a ditch by the warehouse. The defendant was convicted by a jury of murder in the first degree and intimidation of a witness.

Issue #1: Did the judge’s questioning of potential jurors about their beliefs on scientific evidence in trials, violate the defendant’s constitutional right to a fair trial?

No. The judge was attempting to search for potential juror bias regarding the so-called “CSI effect,” which says that jurors that watch these forensic science television programs will hold prosecutors to an unreasonably high standard or proof and will go against the Commonwealth’s case if the prosecution doesn’t provide adequate forensic evidence. The court rules that the judge did not abuse his discretion. The judge was making sure that the jurors did not have any bias and could decide the case based on the evidence; the questioning did not suggest that a lack of scientific evidence could not be considered whether there was any doubt towards the guilt of the defendant.

Issue #2: Did the judge err when he didn’t instruct the jury to consider the lack of police investigation and physical evidence when determining whether there was a reasonable doubt as to the defendant’s guilt?

No. A judge can but is not required to bring up the lack of physical evidence or adequacy of the police investigation in front of the jury; it’s up to the defense to prove those points.

Issue #3: Did the judge err by allowing Chisholm, the defendant’s girlfriend, to express her opinion as to whether or not the defendant was guilty?

No. The judge should not have allowed the testimony, even though the defense did not specifically object to her statement that she thought he had committed the murder after she had heard the body was found. However, when addressing whether this created a substantial likelihood of a miscarriage of justice, the court says that the error was insubstantial when compared to the strong circumstantial evidence of the defendant’s guilt.

Issue #4: Did the judge err by allowing the admission of prior bad act evidence?

No. The fact that there were multiple witnesses that testified that they had seen the defendant carry a weapon that could have been responsible for the murder was relevant evidence in the case. On the other hand, the testimony of the defendant’s fight with his estranged wife should not have been admitted because it had the sole purpose of demonstrating bad character, propensity for anger, propensity to commit a crime, and was not connected to the case. While this evidence should not have been allowed, the court did not believe that it unduly prejudiced the defendant in light of the strong circumstantial evidence of the defendant’s guilt, and there was other evidence admitted at trial that showed the poor relationship between the defendant and his estranged wife and son.

Issue #5: Did the judge err in allowing evidence of the phone conversation between the defendant and his estranged wife since the two were still married?

No. The rule generally is that a husband or wife cannot be made to testify against each other. One exception is that a third party can satisfy if they observed the conversation, which did happen in this case. Therefore the telephone conversation was not private, and Dube was not disqualified from testifying about the conversation.

Issue #6: Was the journal that the wife held that documented their meetings correctly admitted into evidence?

Yes. The journal was authentic, and since the journal had almost daily entries and provided details about the interactions between the wife and the defendant, provided sufficient foundation that the wife would have written about all face-to-face meeting with the defendant. However, there was no entry for the time they met the night of the murder, but the judge correctly found that this was not an inconsistent statement. The admission of the omitted journal entry was unlikely to affect the jury, and there was no substantial likelihood of a miscarriage of justice.

Issue #7: Did the judge err in not allowing the motion for a required finding of not guilty on the charges of witness intimidation?

No. The defendant wrote a letter from prison to his girlfriend trying to convince her not ot testify against him. It also told her to recant her grand jury testimony, and if she did she would not have to worry about what happened after the trial. Chisholm also testified that the defendant had abused her at times, had instructed her not to speak to police, and had kept her under surveillance. This was enough evidence to convince a jury that there was witness intimidation.

Conclusion: Judgments affirmed.

Prepared by KP

Com. v. Glen S. Alebord

Commonwealth v. Glen S. Alebord (September 21st, 2011)

Docket No. 09-P-1290

Massachusetts Appeals Court

Facts: The defendant was convicted by a jury of murder in the second degree, but he argues for postconviction relief because he was denied his right to a public trial because the public was excluded from the jury selection portion of the trial. The defendant’s friend, his sister, and his brother-in-law were prevented from entering the courtroom by a court officer because the court room was full and there were no more seating areas. The judge found that the exclusion was done for safety reasons, and that reasonable restrictions on court room access are permissible. The judge also found that the defendant waived his objection by failing to object during the trial, and the judge was not aware that the individuals were not allowed to enter the courtroom.

The courtroom in this case was closed, and a courtroom can be considered closed even without an express judicial order. If there is no more room in a courtroom, it can justify closing a courtroom to the public. However, the judge has to address the closing and determine whether there are other alternatives. Since that did not happen in this case, the closure of the courtroom does not satisfy the conditions set out in case law. Also, the defendant does not need to show prejudice in order to obtain a new trial if there has been a violation of the right to a public trial.

Issue: Did the defendant waive his right to a public trial?

No. The court does need to look into whether the objection was raised in a timely manner; the Commonwealth has the burden to show that the defendant knowingly waived his right to public trial, either personally or through counsel. The defendant here did not waive his right to a public trial. There is also an exception if the closure is found to be short, inadvertent, or trivial, but his exception does not apply here.

Conclusion: The order denying the motion for a new trial is vacated and the case is remanded. The closure here does not meet the four-factor test in Waller, the defendant never waived his right to a public trial, and the exclusion does not apply.

Prepared by KP

Com. v. Brian Keith Cavitt

Commonwealth v. Brian Keith Cavitt (September 21st, 2011)

Docket SJC-10436

Massachusetts Supreme Judicial Court

Facts: Defendant robbed a Western Union in Springfield. A manager and an employee at the supermarket chased the defendant on foot. There was a brief scuffle, but the defendant got away and the store employees did not continue the chase. He entered a house and stabbed the resident who tried to get him to leave, and stabbed another resident who was in bed due to a stroke, then he set fire to the residence. He had described these events to the neighbor’s boyfriend who he had initially tried to persuade to do the robbery with him.

Issue #1: Was there probable cause for the police to get a search warrant for LaVoice’s apartment (where the defendant had been staying)?

Yes. The search warrant was supported by probable cause, and the information did not come from an unknown source, but rather by a citizen who presented herself to the police and was identifiable. The defendant also alleges the his counsel was ineffective because he failed to pursue the suppression of the sneakers based on his contention that there was no probably cause to search for sneakers because the affidavit only mentioned a robbery and possible car jacking, not murders or sneakers or any footwear impressions at the scene of the crime. However, the affidavit sets forth probable cause to search the apartment for items of clothing of the defendant, therefore the search and seizure of the sneakers is within the scope of the search warrant. The discovery of incriminating evidence in the bloody sneakers did not negate the validity of the original search. Since the defendant’s claim is rejected, even if his counsel had pursued the suppression of the evidence, the defense council would not have been successful. As for the veracity of the citizen informant, the informant had wished to remain anonymous because of safety concerns. However, she was identifiable given the fact that she had contacted the police officers, then met in person, and provided the address of the apartment.

Issue #2: Did the judge err in not allowing the motion to suppress the photographic identification by one of the witnesses?

No. The defendant has the burden of proving by a preponderance of the evidence that the procedures used by the police led to the mistaken identification. Here, Vargara, a witness, got up from his booth where he was being shown photos, and looked over to another witness’ booth, where he identified the suspect as the person he had seen on the street that day. The court says that this identification was not the product of unnecessarily suggestive police procedures.

Issue #3: Was the DNA evidence relating to the gold necklace erroneously included into evidence, without the proper statistical explanation?

No. There was testimony that said that there was a mixture of two people’s DNA on the necklace, and that they could neither exclude not include the defendant based on those results. The admittance of the DNA evidence from the necklace into evidence was inconsequential, and did not create a substantial likelihood of a miscarriage of justice.

Conclusion: The court affirms the defendant’s convictions and declines to reduce the degree of guilt or order a new trial.

Prepared by KP

Com. v. Andre Walker

Commonwealth v. Andre Walker (September 21st, 2011)

Docket SJC-10470

Massachusetts Supreme Judicial Court

Facts: The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty by a Superior Court jury. The murder allegedly planned by the defendant was in retaliation for the murder of a member of the defendant’s gang by a rival gang in Dorchester. The defendant was in the lead car, followed by another car, when he opened fire on three people at an intersection. He then got out and continued firing on the victim who had been shot and was laying on the ground.

Issue #1: Defendant argues that he was denied the effective assistance of counsel. He provides different examples of the ineffectiveness of his counsel.

a) Defense counsel’s failure to file a motion to suppress Harrison’s (one of the witnesses) out-of-court identification of the suspects.

Defendant argues that the out-of-court identification was impermissibly suggestive and unreliable and a competent attorney would have moved to suppress. The court says that, even if filed, the motion would most likely not have been successful, and thus there was not a substantial likelihood of a miscarriage of justice

The detectives that conducted the identification procedure admittedly did not follow all the right protocol in an identification procedure. One question was whether a sequential lineup or simultaneous lineup should have been used, but the court says that there is not conclusive evidence that to suggest that the sequential display is so superior that if not used it is grounds for suppression of the testimony of the witness.

The defendant argues that another problem was that the photographic array was improper because it was composed entirely of suspects. The court does believe that an all-suspect array significantly increases the chances for a wrongful prosecution. Police should use an array with one suspect and the rest should be fillers. The court has suggested that there need to be 5 fillers for every suspect in a photographic array, but this is a new guidance. The court concludes that the array did not represent a substantial likelihood of a miscarriage of justice because the police did not decide on a suspect based on the identification, and the Commonwealth’s case was based on testimony from Clark, Dotson and Boyd (other gang members or people that were in contact with Walker).

b) Defense counsel’s failure to object to hearsay in Harrison’s out-of-court identification.

The court concludes that there was no error in admitting the testimony by the police officer, even though Harrison did not remember making some of the statements to the police officer. Defense counsel would have been overruled if he made an objection, therefore he was not ineffective for failing to object.

c) Defense counsel’s failure to object to the prosecutor’s closing argument pertaining to the Harrison testimony.

The defendant says that the prosecutor made some glaring mistakes when describing Harrison’s testimony. The judge correctly concluded that the prosecutor was referring to Harrison’s pretrial identification of the photographs, not to the trial testimony, and a reasonable jury would have understood this. Therefore, since the defense counsel’s objection would have been overruled, not making the objection did not constitute ineffective counsel.

d) Defense counsel’s failure to introduce evidence of third-party confessions.

There were inconsistencies in the statements one of the witnesses made (Dotson). In the direct testimony he said that he had heard around the streets that Green’s brothers had done the shooting, but on cross-examination of the detective, he said that Dotson had told him that statement was not true. The court reasons that by not pressing the issue, defense counsel was able to leave the jury with the impression that he had said the word in the streets was that the Green borthers had done the murder. But if the defense counsel had pressed the point, she risked getting Dotson to say that that which Dotson had admitted, that the Green brothers had done the murder, was not true. Therefore it was not unreasonable for the defense counsel to not pursue the cross-examination of Dotson.

Conclusion: Affirm the denial of the motion for a new trial; the court found that all the claims of ineffective assistance of counsel had no merit.

Issue #2: Was the judge reasonable in excluding from the evidence the testimony of a police officer from the scene who had been told by an unknown black male that two Hispanic males had left the suspect’s car and possibly dropped something up the street?

Yes. It is not clear whether the unknown black male personally observed the crime, or whether he could really see and distinguish the suspects, and there was no other information about the observer. The judge acted in his discretion in limiting the use of the evidence.

Issue #3: Did the judge err by permitting evidence that said the defendant sold crack cocaine?

No. Evidence of prior bad acts may be admitted where it is not unduly prejudicial and is relevant in establishing motive, intent, identity, pattern of operation etc. The judge did not abuse his discretion by admitting this testimony.

Conclusion: The court affirms the defendant’s judgments of conviction, and the motion for a new trial is denied.

Prepared by KP

Com. v. Lopez

Commonwealth v. Daniel Lee Lopez (September 15th, 2011)

Docket #10-P-855

Massachusetts Appeals Court

Facts: Lopez lured delivery man to a house and brutally punched him in the face and proceeded to rob him. The man later died in the hospital from the injuries. There was another man, Ramos, present when Lopez hit the delivery man. Defendants were indicted for murder in the first degree on a theory of felony-murder, Lopez as the principal and Ramos as a joint venturer, with unarmed robbery as a predicate offense. Superior Court judge accepted motion to dismiss murder indictments on the ground that jury heard insufficient evidence to support murder charges. The Commonwealth appeals the judge’s decision.

Issue #1: Was there an intent to harm by the defendant or a conscious disregard for human life, so as to hold the defendant responsible for the felony murder?

Yes. The judge on the case reasoned that the death coming from one punch was unforeseeable, and that the defendant did not have the mental state required for murder and did not have conscious disregard for human life, thus dismissing the murder indictments. However, the punch cannot be looked at in isolation. It was a sucker punch, on a vulnerable victim who was in an exposed situation; the defendant should have known that a punch in that situation could be deadly. The defendant’s actions following the punch, robbing the victim and not helping as he struggled for his life, further illustrate that the defendant carried out the robbery with conscious disregard for human life.

Issue #2: Was there evidence to show that Ramos, the joint venturer, knowingly participated in the commission of the crime and had the intent required for the offense?

No. There was no evidence of a preexisting plan and there was no evidence that he aided in making the phone call to bring the delivery man to the address. Also, there was no evidence that showed that Ramos knew what Lopez was planning on doing.

Conclusion: The motion to dismiss the indictment of Lopez on murder in the first degree is reversed; remanded to Superior Court for further proceedings. The motion to dismiss the indictment of Ramos on murder in the first degree as a joint venturer is affirmed.

Prepared by KP

Com. v. Joseph Nelson

Commonwealth v. Joseph Nelson (September 15th, 2011)

Docket SJC-10811

Massachusetts Supreme Judicial Court

Facts: Police raided defendant’s home and found a backpack of marijuana in plastic baggies, drug paraphernalia, and prescription drugs. Police determined that this was possession with intent to distribute. Defendant argued that he was a “pothead” and the marijuana and prescription pills belonged to the other people that lived there, and that the police never saw the defendant sell drugs. The defendant was convicted of possession of a class C and E substance, possession with intent to distribute of a class D substance, and a drug violation near a school or park.

Issue #1: Should the motion to suppress have been allowed because the warrant was obtained without a proper oath and the sergeant in charge did not personally appear before a neutral magistrate?

No. When trying to get a search warrant after receiving information from the defendant’s mother about the drugs, the sergeant was only able to reach one on-call judge, who was visiting family in New Jersey. He was able to get the warrant through phone conversations with the judge and through facsimile transmissions. A proper oath was given over the telephone and the sargeant signed the affidavit under the pains and penalties of purgery confirming that everything on the affidavit was true, and the judge crossed out the line that says he personally appeared before him. Even though there is a requirement that the officer appear in person before the judge, the court finds that the combination of fax and telephone conversations fulfilled the constitutional requirements for a proper search warrant.

There is an exclusionary rule that is meant to remedy illegal searches. In order to apply the exclusionary rule to the evidence seized during the search, the court must determine if the defendant suffered prejudice either because of his right to be free from unreasonable searches and seizures or because the defendant could not challenge the warrant and thus the violation was substantial. The sergeant searched the bedroom as specified by the warrant, and since there’s a writing, the defendant could challenge the scope of the search, therefore there is no prejudice.

Issue #2: Did the police officer exhaust all reasonable efforts to find a judge before whom he could appear personally?

No. There was a judge in Roxbury that the officer could have gone to see before getting in touch with the judge away in New Jersey. In court, the officer was not asked about the specific efforts he made to reach this judge or others. The case has to be remanded and the judge must have further findings to determine whether the officer exhausted all reasonable efforts to find a judge before whom he could appear.

Issue #3: Commonwealth admits that the admission of the chemical analysts’ testimony that identified the drugs, instead of the drugs themselves, violated the defendant’s right to confrontation; but, did this have any effect on the outcome of the trial?

Yes. To answer this question we must consider whether the Commonwealth’s circumstantial evidence is so overwhelming that it nullifies any effect that the admission of the certificate might have had on the verdict. The Commonwealth concedes that the admission of the certificate identifying clonazepam was not harmless beyond a reasonable doubt, so the conviction on that charge is vacated. As for trazadene, the court finds that the certificate is not enough, the pills and the prescription bottle should have been introduced into evidence, therefore the charge is vacated. As for the marijuana, since the two officers that testified were asked to identify the marijuana based on their training and experience, the admission of the drug certificate identifying the marijuana was not harmless beyond a reasonable doubt. Standard of harmlessness is “stringent;” the court reverses all the defendant’s convictions.

Conclusion: The court reverses the convictions, sets aside the verdicts, and remands the case to the District Court.

Prepared by KP

Com. v. Gerald Porges

Commonwealth v. Gerald Porges (September 6th, 2011)

Docket #10883

Massachusetts Supreme Judicial Court

Facts: The victim was sexually assaulted and raped for three years by the defendant when they were both under 14 years old. The crimes were reported to the police in 2007 when the victim was 23 years old. A Juvenile Court judge found that there was probable cause that the defendant committed the offenses and determined that the interests of the public require that the defendant be tried for the alleged offenses, which were six charges of rape of a child with force and two charges of indecent assault and battery on a child under the age of 14. Based on the ruling in Juvenile Court the case was transferred to Superior Court, but defendant filed a motion to dismiss, claiming that there was no subject matter jurisdiction to adjudicate offenses that were allegedly committed before he was 14 years old.

Issue: Whether a person who committed an offense under the age of 14 but is over 18 when apprehended, can be prosecuted.

Yes. The Supreme Court has jurisdiction to try the person for the offense committed before the person was 14 years old and the person is apprehended after he has reached the age of 18, provided that a judge in Juvenile Court has decided that there is probable cause to believe that the person committed the crime and that the interests of the public require that the person be tried for the offense.

Analysis: Although some cases under G. L. c. 119 § 72A with defendants whose crimes have been committed before the age of 14 have “fallen through the cracks” and been dismissed, revisions to the statute in 1996 have made it clear that the Legislature does not intend to allow these crimes to go without prosecution. The statute clearly says that the Superior Court does have jurisdiction in this type of case, as long as a Juvenile Court judge rules that there is probable cause that the defendant committed the offenses and that the interests of the public require the person to be tried for the offenses rather than be discharged.

Conclusion: Motion to dismiss is denied; matter is remanded to the Superior Court for further proceedings.

Prepared by KP 

Com. v. McGrail

Commonwealth v. Stephen M. McGrail (September 2nd, 2011)

Docket #10-P-571

Massachusetts Appeals Court

Facts: The defendant was involved in a motor vehicle accident when his pick up truck hit a utility poll. He was picked up by the police down the street from the accident smelling of alcohol and bleeding. He was convicted of an OUI and leaving the scene of an accident. He is challenging the decision, claiming that the admission of DNA testimony was a violation of his 6th Amendment rights, and he challenges his denials of his motions to suppress evidence of the blood alcohol test and testimony by the police officers.

Issue #1: Can an expert witness give a testimony on DNA results when they were not the primary analyst of the evidence.

Yes. Defendant argues that the expert witness provided was not the expert that did the analysis on the DNA evidence. But, an expert can give opinion testimony on hearsay if that hearsay evidence could be independently administered by the right witness, in this case the lab analyst who got the actual results, and if it is the type of evidence that experts customarily testify about. The testimony in this case by the lab supervisor does not violate the 6th Amendment because the expert witness is subject to cross-examination, where the defense can question whether the evidence was mishandled or manipulated or somehow not accurate.

Issue #2: Charts not marked as evidence, used by the DNA expert witness, erroneously went to the jury as evidence, without objection from the defense. Did this error create a substantial risk of a miscarriage of jusice?

No. The DNA charts and numerical data had little value, and there is overwhelming evidence that the defendant did operate the vehicle.

Issue #3: Should the statements defended gave at the scene of the accident and at the hospital be suppressed?

No. Police properly gave the defendant his Miranda warning. Also, the interrogation done by the police at the scene and at the hospital was done correctly; while at the hospital, the defendant was in an unsecured area, surrounded by the public, and the defendant’s statements were voluntary.

Issue #4: Was drawing of the defendant’s blood at the hospital unreasonable search and seizure in violation of the 4th Amendment?

No. The blood test was done by the physician solely for the diagnosis and the treatment of the patient, not for law enforcement purposes

Conclusion: Expert testimony was admissible and motions to suppress were denied. Judgment affirmed.

Prepared by KP

Com. v. Hall

Commonwealth v. Kenneth Hall (September 1st, 2011)

Docket #09-P-1030

Massachusetts Appeals Court

Facts: The defendant approached the victim, an 11 year old girl, on the street and promised her one of the puppies from his pregnant dog. The two became friendly and the girl would spend a lot of time at the defendant’s home. When they were alone, the defendant would ask to see the girl’s underwear and would ask to touch it. In exchange he would promise to buy her things. This kind of behavior and relationship went on for over a year. The defendant bought the girl cell phones and sent her lewd messages and asked her to send pictures of herself, which she did, and he promised to buy her more stuff. The victim’s foster mom had gotten possession of the cell phone and saw the messages and pictures and reported it to the police.

Issue #1: Was there sufficient evidence to show that he intended to lure the victim into entering, exiting, or remaining in a particular vehicle, dwelling, building or outdoor space?

No. Prosecution argues that even though the defendant did not physically lure the victim or force to take the nude pictures or take them himself, giving her the phone and promising to buy her stuff is sufficient evidence to show that he had the intent to lure the victim into posing nude. However, there is no case law that says that the cell phone conversations as they appear in this case constitute luring. The statute in question does not address a situation where the victim takes nude photographs of herself in a place of her choosing. Also, the point of the statute is to protect kids from being lured to a place chosen by the assailant.  

Issue #2: Since the pictures were on his cell phone, a medium that is not specifically listed in the statute, and they were not in his phone when the police seized it, should the pictures be included as evidence?

Yes. The court in Perry v. Com. reasoned that pictures produced by a digital camera or a cell phone are the same; the legislative intent behind the statute was to include any type of photograph, no matter how it was taken. As for the pictures not being on the phone when the police seized it, there was sufficient evidence to show that the defendant at one point possessed and viewed the pictures. There was testimony from a representative from the cell phone company that clarified that he had sent messages to the girl and received digital images, and had responded to the images. The court also said that duration for which the defendant had the pictures in his possession does not matter as long as they were under his control for a period of time.

Conclusion: Since there was insufficient evidence to support the fact that the defendant lured the child to enter, exit, or remain within any vehicle, dwelling, building, or other outdoor space, it was erroneous to deny the defendant’s motion for a required verdict of not guilty as to the offense of child enticement; verdict is set aside and judgment entered for defendant. There was sufficient evidence to prove that the defendant possessed child pornography; that judgment is affirmed.

Prepared by KP

Com. v. Dodgson

Commonwealth v. Sean K. Dodgson (September 1st, 2011)

Docket #09-P-1972

Massachusetts Appeals Court

Facts: Police officers were conducting an undercover online investigation, posing as minors. Two officers, with undercover screen names, had conversations with the defendant that were sexually graphic. The defendant sent a picture of his penis, and went on to make specific plans to meet with the girls. Defendant showed up at location, a Dunkin Donuts, looked at the officers, went in, then came back out and left. The next day he sent a message to one of the screen names saying that he was glad the girls of Kingston were being protected by the police, and that he was only testing the effectiveness of the system. He proceeded to delete his Yahoo contacts, edited his account, reinstalled the Windows Operating system on his computer, and wrote a document describing the events, his motives, and the perceived flaws in the police operation. The police arrested the defendant and interviewed him. He claimed he was testing the police to make sure his daughter was safe online.

The defendant was convicted on three counts of attempted dissemination of matter harmful to a minor, one count of dissemination of obscene matter, and two counts of enticement of a child under the age of 16. The defendant appeals on 5 grounds: 1) online instant messages are not matter; 2) the private transmission of a picture is not “dissemination” of obscene material; 3) the admission of his subscription to an online adult dating service was improper; 4) the prosecutor’s closing argument was improper; 5) he suffered ineffective assistance of counsel.

Issue #1: Do online instant messages count as “matter,” under matter harmful to children?

No. In Com. v. Zubiel, the court held that online electronically submitted messages are not matter. However, the Legislature amended the statute in 2010 to broaden the definition of matter to “any electronic communication, including online messages.” But, the 2010 amendment cannot apply in this case because the events of this case happened in 2006.

Issue #2: Does the transmission of the naked erect penis in a private online conversation fall under “dissemination” of obscene matter?

Yes. Dissemination does not require proof of commercial activity or multiple recipients. It’s dissemination as long as the harmful material is distributed to a person.

Issue #3: Was the admission of the defendant’s subscription to an online dating service improper?

No. This is left to the trial judge’s discretion, but this kind of evidence can be admissible in order to show a “common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Com. v. Helfant, 398 Mass. 214, 224 (1986). In this case, the trial judge was correct in letting this evidence in as relevant. The subscription showed a motive of sexual indulgence, and weakened the defendant’s claim that he was doing it to test the effectiveness of the law enforcement.

Issue #4: Were statements from the prosecutor’s closing argument improper?

No. The prosecutor used the word “guilty” following the description of the picture of the erect naked penis, and used the word “we” to improperly align himself with the jury. Although it is improper for a prosecutor to express his personal belief and to use the word “we” (should use the word “community”, he is allowed to advocate in favor of his client, which he did here, and his word choice was not excessive and did not create a substantial risk of a miscarriage of justice.

No. The defendant argued that the prosecutor should not have led the jury to believe that he had been rehearsing his testimony. Generally, a prosecutor should not use the word “rehearse” because it can impose on the defendant’s right to prepare for a trial; but, this is usually a problem when the prosecutor makes reference to the defendant preparing and rehearsing a defense with their counsel. In this case, the prosecution provided evidence that writing the explanatory document and reinstalling Windows were parts of a preemptive defense strategy, thus references to rehearsal were not improper.

No. The prosecutor was not wrong to refer to the fact that the defendant had never discussed his plan with his wife, if in fact it was a plan to test the effectiveness of law enforcement. The prosecutor did not try to find information of conversations between the defendant and his spouse, he just commented on the lack of conversation.

Issue #5: Was the defendant’s counsel ineffective?

No. This appeal should be brought in a motion for new trial directed to the original trial judge, but the court does not see any reason to find ineffective counsel based on the record.

  

Conclusion: Affirm judgments for dissemination of obscene matter and enticement of a child. Reverse the judgments for attempted dissemination of matter harmful to a minor.

Prepared by KP

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

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

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.
Facts

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

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.

Facts:

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