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