Com. v. Balkind

March 31, 2011

Commonwealth v. Balkind

Docket No. 10-P-286

Appeals Court of Massachusetts

Unpublished; Rule 1:28 decision

Sex offender, assault and battery, witness testimony

The defendant was convicted after a bench trial of one count of indecent assault and battery on a child under the age of fourteen and one count of indecent assault and battery on a child under the age of fourteen by a previously convicted offender.

Comm. v. Petetabella

Commonwealth v. Petetabella

Supreme Judicial Court

March 30, 2011

Docket No. SJC-10720

Practice, Criminal, Postconviction relief, New trial, Assistance of counsel, Instructions to jury, Jury and jurors, Empanelment of jury, Presumptions and burden of proof. Felony-Murder Rule. Rules of Criminal Procedure. Constitutional Law, Assistance of counsel, Double jeopardy, Fair trial, Jury, Retroactivity of judicial holding. Intoxication.

Com. v. Lopes

Commonwealth v. Lopes
Massachusetts Supreme Judicial Court
March 29, 2011
Docket No. SJC-10731

Self-incrimination, Breathalyzer test, Motor Vehicle, Operating under the influence, Redaction

A jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI) and negligent operation of a motor vehicle on a public way. The defendant appealed his convictions claiming that the admission of the consent form for the breathalyzer test violated his privilege against self-incrimination as guaranteed by Article 12 of the Massachusetts Declaration of Rights. The Supreme Judicial Court (SJC) held that the admission of the consent form was not prejudicial error, but because it was not relevant to any issue of fact for the jury, it would have been better practice for the judge to order that the form be redacted before it was admitted into evidence.

Com. v. Ryan

March 29, 2011

Commonwealth v. Laura Ryan

Docket No. 09-P-1789.

Massachusetts Appellate Court

Contract, Larceny, Fraudulent Use of Credit Card, Common and Notorious Thief.

The defendant was found guilty of larceny over $250, fraudulent use of a credit card, and identity fraud, and a judge labeled her a common and notorious thief. See G.L. c. 266, § 40. On appeal, the defendant stated that 1) the evidence was not sufficient to sustain a conviction of credit card fraud pursuant to G.L. c. 266, § 37C. She also claimed that the judge erred in adjudging her a common and notorious thief, not providing a specific unanimity instruction, instructing on credit card fraud, and admitting evidence that the defendant was on work-release. The judgment was affirmed.

Com v. Haggett

Commonwealth v. Haggett

79 Mass. Appt. Ct. 167 (2011)

Massachusetts Appeals Court

March 29, 2011

Rape, Indecent Assault and Battery of person under 14 years, Evidence, First Complaint, Evidence, Relevancy

The defendant was convicted of rape of a child with force and indecent assault and battery in violation of G.L. c. 265 § 22(A) and G.L. c. 265 § 13(H) respectively.  On appeal the defendant complained of several errors in connection with the admission on testimony from witnesses.  Specifically, the defendant argued that the judge committed prejudicial error when the complainant was allowed to testify that she reported being sexually assaulted to both her teacher and guidance counselor notwithstanding that neither of these reports were her first complaint.  Second, the defendant argued that the judge committed prejudicial error when she refused to instruct the jury on the nature and purpose of “first complaint” evidence.  Lastly, the defendant argued that there was a substantial risk of a miscarriage of justice when the complainant’s guidance counselor was permitted to testify about the complainant’s complaint to her and her subsequent investigative actions.  The judgment was reversed.

Comm. v. Smith

March 15, 2011

Commonwealth v. Shawn Smith

Docket No 10-P-914.

Massachusetts Appellate Court

Memorandum and Order Pursuant to Rule 1:28

Comm. v. Walorz

Commonwealth v. Walorz

Massachusetts Appeals Court

March 25, 2011

Docket No. 07-P-1370

Controlled Substances. Practice, Criminal, Stipulation, Harmless error, Assistance of counsel. Evidence, Certificate of drug analysis. Constitutional Law, Harmless error, Assistance of counsel. Error, Harmless. Search and Seizure, Consent.

Comm. v. Basha

Commonwealth v. Basha

Massachusetts Appeals Court

March 18, 2011

Docket No. 10-P-615

Pursuant to Rule 1:28

The defendant was convicted on one count of assault and battery, in violation of G. L. c. 265, § 13A. On appeal, he argued that (1) the trial judge gave incorrect jury instructions that failed to address the 'offensive element' of assault and battery, and (2) the prosecutor's closing argument compounded the judge's incorrect instructions and created a substantial risk of a miscarriage of justice.  The judgment is affirmed.

Comm. v. MacDonald

Commonwealth v. MacDonald

2011 Mass. LEXIS 150

SJC-10737

March 18, 2011

Supreme Judicial Court

Criminal, Controlled Substances, Sufficiency of Evidence, Expert Opinion, Melendez-Diaz, Lack of Drug Certificates

            A jury convicted the defendant of distributing marijuana and committing a drug offense near a school.  The defendant appealed, arguing that the judge erred in denying his motion for required findings of not guilty because the testimony of the Commonwealth’s expert was inadequate proof that the substance seized was marijuana.  The SJC found that in these specific circumstances, the expert’s testimony regarding the substance at issue was sufficient evidence that it was marijuana.  In addition, the SJC denied defendant’s invitation to require a cautionary jury instruction concerning forensic testing or to limit the Commonwealth’s use of the facts in evidence in forming a hypothetical question for an expert witness.

Com v. Casali

Commonwealth v. Casali

459 Mass. 139 (2011)

Supreme Judicial Court

March 17, 2011

Criminal, Homicide, Evidence, Impeachment, Redirect Examination, Instructions to Jury

The defendant was convicted of first degree murder for the stabbing death of her grandaunt, seventy-three year old Winifred Moniz.  On appeal the defendant argued that (1) she was denied the right to rehabilitate a witness whom had been impeached; (2) the judge erred in allowing a witness to testify that allegations that the victim’s husband molested his stepdaughter three decades prior to the murder was “unfounded”; and (3) the judge failed to use the model jury instructions when instructing the jury on intoxication.  The judgment was affirmed and relief pursuant to G.L.c. 278 § 33E was denied.

Comm. v. Luciano

March 16, 2011

Commonwealth v. Kenneth Luciano

Docket No 09-P-1585.

Massachusetts Appellate Court

Assault and Battery by Means of a Dangerous Weapon, Error, Harmless.

The defendants, Kenneth Luciano and Kimberly White, were tried for armed robbery, witness intimidation, and assault and battery by means of a dangerous weapon. The were acquitted the defendants of armed robbery and witness intimidation, but the jury was deadlocked as to the other charges. A second jury trial was held before the same judge and both defendants were convicted of two counts of assault and battery by means of a dangerous weapon. The defendants appealed their convictions and moved for a new trial, claiming that the judge's denial of their requests to obtain a transcript of the first trial for use in the second trial was erroneous. The transcript should have been made available; however, they were not entitled to appellate relief. Also, an omission in the judge's instructions on joint venture required that defendant White's convictions of assault and battery by means of a dangerous weapon be reversed. The convictions were otherwise affirmed.

Comm. v. Putnam

Commonwealth v. Putnam

Massachusetts Appeals Court

March 15, 2011

Docket No. 10-P-117

            The defendant was convicted of enticement of a child under sixteen in violation of G. L. c. 265, § 26C(b). On appeal, the defendant argued that the evidence is insufficient to support the conviction. The Appeals Court affirmed.

Com. v. Ruell

Commonwealth v. Ruell
Massachusetts Supreme Judicial Court
March 14, 2011
459 Mass. 126

Homicide, Due Process of Law, Exculpatory Evidence, Juror Challenges for Cause

At trial, the jury convicted the defendant of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. The jury also found the defendant guilty of armed burglary and arson. On appeal, the defendant argued three theories for why the Supreme Judicial Court (SJC) should grant the defendant a new trial: first, the trial court improperly barred the defendant’s use of third party culprit evidence, second, it was an error for the judge to allow testimony of the medical examiner’s opinion as to the type of weapon used, and third, the trial court erred in denying four of the defendant’s challenges for cause during jury selection. The SJC affirmed the convictions, finding that there was no error or other reason to order a new trial or reduce defendant’s murder conviction to a lesser degree of guilt.

Com. v. Sosa

March 10, 2011

Commonwealth v. Sosa

Docket No. 10-P-484 

Appeals Court of Massachusetts

Criminal, Homicide, Self-defense

The defendant was convicted of manslaughter after a jury trial. He appeals claiming (1) the prosecutor’s cross-examination violated Doyle v. Ohio, (2) the judge erred by refusing to instruct the jury on the probative value of a witness’ testimony, (3) and the jury instruction on the “duty to retreat” element of self-defense was insufficient. 

Com. v. Eddington

March 10, 2011

Commonwealth v. Eddington

Docket No. 10716 

Supreme Judicial Court

Constitutional Law, Search and Seizure, Motor Vehicle, Firearms

Facts: Police officers observed defendants leave a party in a high crime area, enter a car with bottles of beer, and drive away. The officers followed, pulled them over, and noticed open beer bottles when asking for license and registration. The defendant-driver stated that he had neither a license nor the car’s registration. After confirming that the defendant’s license had been suspended, the officers arrested the defendant-driver. Since it was 4:30 am, officers decided not to notify the car’s owner immediately and to impound the car since it was located in a high crime area and they feared it would be stolen or vandalized if left there. Officers ordered the defendant-passenger out of the car, performed an inventory search, found a loaded revolved under the front passenger seat, and arrested the defendant-passenger. 

The trial judge concluded that the decision to impound the car was not justified and suppressed the firearm evidence. The Appeals Court reversed. 

Issue 1: Is each defendant in a multiple defendant criminal case required to file a timely application for appellate review pursuant to Bradford v. Baystate Med. Ctr., 415 Mass. 202 (1993)?

Yes. A defendant may not rely on the timely filing of his co-defendant to preserve his issues on appeal. 

Issue 2: Did the impoundment of the car meet the constitutional strictures required to make the impoundment proper? 

Yes. The impoundment of a car for non-investigatory reasons is justified if supported by (1) public safety concerns or (2) danger of theft or vandalism of the vehicle if left unattended. These determinations are fact-based and judged on a reasonableness standard. This rule serve the interests of protecting the vehicle from harm, the police from false charges, and the public from dangerous items which might be in the vehicle

The requirements for a proper impoundment are satisfied where, as here, the police dictate the location of the stop, the owner is not present at the scene, and there is no one at the scene who is currently capable or known to be authorized to drive the vehicle. This is distinguishable from Comm. v. Brinson, 440 Mass. 609 (2003), where the SJC held that the government cannot impound a car based on arrest of the owner where it is legally parked and there is no indication of a safety hazard or risk of theft or vandalism. 

Additionally, officers have no constitutional duty to contact the owner before impounding the car, and their reasons for not doing so in this case were reasonable. 

Concurrence: 

The impoundment was reasonable in this case, but (1) police should have to follow standard written procedures as to whether to conduct an inventory search, and (2) this decision does not state that a vehicle may be reasonably impounded whenever its owner is not present at the scene. 


--Prepared by RAA

Comm. v. Filoma

March 9, 2011

Commonwealth v. Stanley Filoma

Docket No. 09-P-1396

Massachusetts Appellate Court

Evidence, Intoxication, Motor Vehicle, Homicide, Assault and Battery by Means of a Dangerous Weapon.

The defendant was found guilty of involuntary manslaughter, two counts of aggravated assault and battery by means of a dangerous weapon (an automobile), and two counts of operating a motor vehicle under the influence of intoxicating liquor and causing serious bodily injury. On appeal, he argued that the Commonwealth did not show proper proof of impairment as an element for the latter two charges. He claimed that the jury’s finding of guilt with the alcohol-related offenses infected the other charges. He also said that his counsel was ineffective because there was no request for an instruction to the jury of the defense of accident. The appellate court reversed the judgments on the charges of operating under the influence of intoxicating liquor and causing serious bodily injury; however, the judgments on the charges of involuntary manslaughter and aggravated assault and battery by means of a dangerous weapon were affirmed.

Com. v. Maker

March 3, 2011

Commonwealth v. Maker 

Docket No. 10761 

Supreme Judicial Court

Regulations, Sex Offender Registration

Facts: The defendant, a level three sex offender, began living in a homeless shelter after his release from incarceration. He submitted his intended future address before release in compliance with statutory requirement G.L. c. 6 §178E(a), but did not register pursuant to regulation 803 Code Mass. Regs § 1.04(7)(b) promulgated by the Sex Offender Registry Board, which requires sex offenders to register in person at a police department within two days after release. He pled guilty to failure to register pursuant to that regulation. The trial court judge reported questions of law at the request of the Commonwealth, and the SJC transferred the case on its own motion.

Com. v. Washington

March 3, 2011

Commonwealth v. Washington

Docket No. 10128

Supreme Judicial Court 

Criminal, traffic stop, seizure, witness impeachment

A Superior Court jury found Derrick Washington guilty of murder in the first degree. Washington filed a motion for a new trial, which was denied. He then appealed to the Supreme Judicial Court. The Supreme Judicial Court affirmed his convicted and the denial of his motion for a new trial. 

Facts: Washington, along with two co-defendants, shot three men, two of whom died from their injuries. Washington and his co-defendants were pulled over while driving the next day due to a missing registration plate. The trooper requested identification from the driver and both passengers because the passengers were not wearing seatbelts. The trooper arrested them after discovering outstanding arrest warrants through warrant check, and discovered $6,720 on the defendant. The defendant chose not to testify at trial, and instead presented an alibi witness who asserted that he had been at her house the day of the crime until after the time of the crime. 

Issue 1: Did the defense attorney’s failure to challenge seizure of the money at the traffic stop constitute ineffective assistance of counsel? 

No. Defense counsel filed a motion to suppress the items found on the defendant prior to trial. The motion was denied by a judge in the Superior Court. Claims of ineffective assistance of counsel are examined to determine whether there was “error at trial and, if so, whether that error was likely to have influenced the jury’s conclusion.” 

On appeal the defendant maintained that his attorney should have argued that the trooper was unjustified in demanding identification from the passengers since he could not have seen the passengers without seatbelts when the car was in motion and thus had no probable cause to issue a citation. Police officers do not have a general right to demand identification from a passenger in a car, but may do so if they validly intend to issue a citation for violation of a seatbelt law. The standard of review for the issuance of a citation is probable cause. Probable cause is reasonably inferred where, as here,  passengers are not wearing seatbelts very shortly after the traffic stop. 

Issue 2: Was the prosecutor’s impeachment of defendant’s alibi witness improper? 

No. While a person has no duty to offer exculpatory evidence to the police, the failure to offer such evidence where one’s “natural response” would be to do so may support a reasonable inference that the information is not credible. A prosecutor may impeach a witness for failing to approach police officers with exculpatory evidence only if he first establishes (1) the witness knew of the pending charges in enough detail to realize the information was exculpatory, (2) the witness had reason to make the information available, and (3) the witness knew how to report the information to the proper authorities.

Only the first prong was at issue in this case. The court found it was satisfied since the witness knew the charges were serious and that the events had occurred close in time to when the defendant was allegedly at her house. In addition, the prosecutor’s rhetorical question to the jury was just an offhand comment and did not create a substantial likelihood of miscarriage of justice. 

Issue 3: Did the judge err in refusing to instruct the jurors in accordance with Comm. v. Ciampa? 

No. Ciampa instructions need only be given if a witness has promised to provide truthful testimony for the government, which the witness had not. 

--Prepared by RAA

Com. v. Miller

Commonwealth v. Miller
Massachusetts Appeals Court
March 2, 2011
78 Mass.App.Ct. 860

Search and Seizure, Motor vehicle, Operating under the influence, Registration, Administrative Law, Regulations

The defendant was arrested after he was stopped per a Registry of Motor Vehicle (RMV) regulation that prohibited any portion of a Massachusetts license plate from being blocked by a frame. The defendant was subsequently charged with operating a motor vehicle under the influence of alcohol, failure to properly display registration plates, and a safety standard violation for a cracked windshield. The District Court judge granted the defendant’s motion to suppress the evidence finding that the regulation upon which the trooper based his stop of the defendant exceeded the authority of the enabling statute. After a single justice of the Supreme Judicial Court granted the Commonwealth’s motion for interlocutory appeal, the Appeals Court affirmed the judgment of the trial court.

Com. v. Jansen

Commonwealth v. Jansen
Massachusetts Supreme Judicial Court
March 2, 2011
459 Mass. 21

Rape, Joint Enterprise, Double jeopardy, Joint Venturer, Deoxyribonucleic Acid (DNA), Consent

The grand jury returned three indictments against the defendant for aggravated rape. The first indictment charged the defendant with aggravated rape for the sexual intercourse he committed with the alleged victim. The second and third indictments charged the defendant with aggravated rape for the sexual acts committed by his alleged joint venturers. At trial, the jury was not able to reach a unanimous verdict, so the judge declared a mistrial. The defendant moved to dismiss the indictments arguing that because the evidence presented at the trial was legally insufficient, double jeopardy barred a retrial. The trial court granted the defendant’s motion as to all of the charges except for the lesser included charge of rape in the first indictment. The Supreme Judicial Court (SJC) affirmed the trial court’s ruling.