Com v. Dargon, 7/29/10

Commonwealth v. Joshua Dargon, July 29, 2010

457 Mass. 387

Rape, Indecent Assault and Battery, Admissibility of Records challenged under G.L.c. 233 § 79, First Complaint, Closing Argument, Ineffective Assistance of Counsel

The defendant was found guilty of aggravated rape, indecent assault and battery on a person over the age of fourteen, assault and battery, and assault and battery by means of a dangerous weapon.  The defendant appeals his convictions claiming that evidence in written form that was part of the sexual assault evidence kit included statements made by the victim that should not have been allowed, that the prosecutor’s closing argument was improper, and that his counsel was ineffective.  The SJC affirmed the defendant’s convictions.

Com v. Tlasek, 7/22/10

Commonwealth v. Paul J. Tlasek (No. 1), July 22, 2010

Assistance of Counsel, Waiver of Constitutional Rights

After a jury trial in the Superior Court, the defendant was convicted of trafficking in cocaine, and trafficking in cocaine in a school zone. The Appeals Court reversed these convictions in accordance with Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The reasoning for the reversals are contained in a companion memorandum. For purposes of a potential retrial, the Appeals Court separately addressed an evidentiary claim in this opinion. The defendant argued that incriminating statements he made to the Canton police should have been suppressed as a violation of his right to counsel under the 6th Amendment to the US Constitution. The Appeals Court affirmed the denial of the defendant's motion to suppress.

Com v. Sliech-Brodeur, 7/19/10

Commonwealth v. Joann Sliech-Brodeur, July 19, 2010

457 Mass. 300

Plain View, Search and Seizure, Discovery Orders and Mass. R. Crim. P. 14(b)(2), Jury Instructions, Daubert-Lanigan Hearing, Evidentiary Rulings

The defendant was found guilty of murder in the first degree of her husband on theories of deliberate premeditation and extreme atrocity or cruelty.  The defendant appealed her conviction by challenging a denial of her motion to suppress evidence, the scope of discovery orders granted on motion to the commonwealth concerning her defense of lack of criminal responsibility, and a number of rulings by the trial judge.  The SJC stated that the defendant’s motion to suppress was properly denied but that the discovery orders violated Mass. R. Crim. P. 14(b)(2), as appearing in 442 Mass. 1518 (2004).  These discovery orders resulted in prejudice to the defendant, and thus the SJC reversed the conviction and ordered a new trial.

Com v. F Velez, 7/16/10

Commonwealth v. Fred C. Velez, July 16, 2010
77 Mass. App. Ct. 270

The defendant was indicted on a charge of trafficking in cocaine. After a hearing, a judge denied the defendant's motion to suppress evidence and seeking disclosure of the identity of a confidential informant. Trial was jury-waived before a different judge, who found the defendant guilty. The defendant appealed, arguing that (1) his motion to suppress evidence obtained by searches of his automobile and apartment was erroneously denied and there was no probable cause for his warrantless arrest; (2) the identity of the informant should have been disclosed; (3) he received ineffective assistance of counsel; (4) the judge improperly questioned one of the Commonwealth's witnesses; and (5) cumulative errors require reversal. The Appeals Court affirmed.

Com v. A Hernandez, 7/16/10

Commonwealth v. Anthony Hernandez, July 16, 2010
77 Mass. App. Ct. 259

Witness Confrontation, Search and Seizure, Drug Certificate, Required Finding, Motion to Suppress, Protective Frisk, Reasonable Suspicion

The defendant appealed from convictions of unlawful possession of cocaine with intent to distribute, G.L. c. 94C, § 32A(a), and violation of the school zone law, G.L. c. 94C, §32J. On appeal, the defendant argued that his motion to suppress evidence was wrongly denied, and that the trial judge erred in denying his motion for a required finding of not guilty and in allowing into evidence a certificate of chemical analysis without affording the defendant his confrontation rights under the 6th Amendment to the US Constitution. The Appeals Court found reversible error occurred with the admission of the drug certificate; the Appeals Court affirmed the denial of the defendant's motion to suppress and motion for a required finding of not guilty. The Appeals Court reversed the convictions and remanded for a new trial.

Com v. D Mendez, 7/15/10

Commonwealth v. David W. Mendez, July 15, 2010
77 Mass. App. Ct. 253

Assault and Battery, Rape-Shield Statute, Prior Misconduct

The defendant was found guilty of indecent assault and battery on a person over fourteen years of age following a jury trial in District Court. On appeal, the defendant argued that (1) the judge erred in not allowing defense counsel to reference testimony concerning the victim's prior sexual conduct in his closing argument, (2) the evidence was insufficient to permit an instruction about the victim's incapacity to consent, and (3) the judge's use of the word “unconscious” in the jury instructions on the element of consent was improper. The Appeals Court affirmed the judgment.

Com v. Sommer, 7/13/10

Commonwealth v. Steven Sommer, July 13, 2010
77 Mass. App. Ct. 907

Idle and Disorderly Person, Prior Violent Conduct, Self-Defense, Assault and Battery

The defendant was charged with assault and battery; threats to commit a crime; disorderly conduct, and assault and battery by means of a dangerous weapon. After a jury trial, he was convicted of assault and battery and disorderly conduct, and acquitted on the remaining charges. The defendant appealed, arguing that (1) although the disorderly conduct instruction given by the trial judge was consistent with the SJC's interpretation of the disorderly conduct in Alegata v. Commonwealth, 353 Mass. 287 (1967), the Alegata decision was erroneous and (2) the trial judge's refusal to give a “first aggressor” instruction was error. The Appeals Court found error in the second contention, but affirmed the judgment on reason of no substantial risk of a miscarriage of justice.