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