Boston Criminal Defense Lawyer Blog

JUDGE DISMISSES FELONY COUNT OF OPEN AND GROSS LEWDNESS

Thu, 26 Apr 2012 15:39:16 -0500

Unfortunately, in Massachusetts many defendants are often "overcharged" and face crimes, including felonies, when the complained of conduct simply does not meet the threshold legal requirements. We all know that being charged with a crime and dragged into court can interfere not only with someone's liberty but with their job, family and lifestyle. This situation is particularly true if a defendant is charged with a crime that has sexual connotations, such as open and gross lewdness or indecent exposure. Massachusetts General Laws chapter 272, §16 does not define “open and gross lewdness and lascivious behavior,” but five elements have been generated by case law. These five elements are as follows: (1) that the defendant has exposed his or her genitals, buttocks or female breasts to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so openly, either intending public exposure or recklessly disregarding a substantial risk of public exposure, to others who might be offended by such conduct; (4) that the defendant’s act has been done in such a way to produce alarm or shock ; and (5) that one or more persons have in fact been alarmed or shocked by the defendant’s thus exposing himself. Commonwealth v. Kessler, 442 Mass. 770, 773 (2004). In other words, the Commonwealth is required to prove “intention, manner, and impact.” Commonwealth v. Quinn, 439 Mass. 492, 496 (2003). This offense is a felony in Massachusetts and can have sex offender registry consequences.

Open and gross lewdness is similar to the offense of indecent exposure, which is proscribed by G.L.c. 272, §53, but the two have different elements reflecting, in part, their different origins. Commonwealth v. Quinn, 439 Mass. 492, 495 (2003). Indecent exposure, although seems to implicate some sort of sexual misconduct, this is a misdemeanor. While open and gross lewd and lascivious behavior requires that the defendant’s act be committed in such a way as to produce alarm or shock, indecent exposure requires only “an intentional act of lewd exposure, offensive to one or more persons.” Commonwealth v. Fitta, 391 Mass. 394, 396 (1984). Thus, the presence of “alarm or shock” is what distinguishes the open and gross offense from the indecent exposure offense, and being “offended” is not the equivalent of undergoing “alarm or shock.” Commonwealth v. Kessler, 442 Mass. 770, 774 (2004). Likewise, being “nervous” or “excited” does not “connote the serious negative emotional experience” required. Id.

While lewd and lascivious behavior is not confined to exposure of genitals, cases involving open and gross lewdness “invariably have involved exposure of the genitalia.” Commonwealth v. Arthur, 420 Mass. 535, 541 (1995). While sudden exposure of a buttocks by dropping one’s pants may alarm or shock, cases involving buttocks exposure in the context of open and gross lewdness have involved such exposure in front of children. See Quinn, 439 Mass. at 497-98. Indeed, the offense of open and gross lewdness has been applied primarily to indecent exposure in front of, and sexual conduct with, children. Commonwealth v. Sefranka, 382 Mass. 108, 116 (1980). Cases involving open and gross lewdness, as opposed to indecent exposure, tend to involve public masturbation or fellatio, Commonwealth v. Adams, 389 Mass. 265, 272 (1983), Commonwealth v. Dickinson, 348 Mass. 767, 767-68 (1964), Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901-02 (1996), exposure to young children, Commonwealth v. Fitta, 391 Mass. 394, 395-97 (1984), Commonwealth v. Wardell, 128 Mass. 52, 53-54 (1880), or sexual conduct with, and abuse of, young children. Commonwealth v. Lucas, 332 Mass. 594, 595-96 (1955).
Unfortunately, police officers are often not familiar with the different types of conduct required in order for them to charge an individual with either indecent exposure, lewd and lascivious conduct or no crime at all!

Lowell Man Charged With Domestic Assault And Battery, Firearm Offenses And Related Charges Stemming From A Domestic Dispute

Sun, 01 Jan 2012 09:41:12 -0500

According to The Lowell Sun, thirty six year ol Shawn Price from Lowell MA is charged with a number of criminal offenses including domestic assault and battery, assault and battery, illegal possession of a firearm, unlawful possession of ammunition, improper storage of a firearm and intimidation of a witness. It was reported that the police were dispatched to a Lowell address where Price's girlfriend alleged that Price punched her, struck her with a coffee cup and coffee maker in an unprovoked attack. Following a bail hearing in the Lowell District Court Judge Barbara Pearson ordered that the defendant be held on $1,500.00 bail. The defendant pleaded not guilty.

According to reports, when the police responded to the alleged domestic violence, Price's girlfriend claimed that Price had fled. The girlfriend alleged that while Price was in the bedroom using a cell phone he attacked her by grabbing her around the neck then dragging her by the hair. Price then threw the phone in the toilet so that his girlfriend could not call for help. This conduct must be the basis for the intimidation of a witness charge. The witness was apparently hysterical and had visible bumps and bruises. The witness did not seek medical attention and did not receive a restraining order against her boyfriend.

This type of case is often categorized as a "domestic abuse case." In many situations, however, not in this case, the witness may apply for and receive a temporary 209A restraining order. Initially a "temporary 209A restraining order" is issued by a District Court Judge. In order for such an order to issue the complaining witness must allege facts indicating that he or she was placed in reasonable apprehension of immediate physical harm by the conduct of the defendant. In most cases, a complainant applies for this in a local district courthouse and fills out an affidavit in support of the restraining order. If it is an "emergency" and the courthouse is closed, often a clerk magistrate will call a judge that is "on call." If the criteria is met, a temporary order may issue. For the order to have legal impact, it must be served on the defendant or he or she must be made aware of the specific conditions of the order. Following this initial order, a court hearing is scheduled approximately ten days from the issuance of the order. The defendant and the complaining witness are expected to show up. If neither party appears in court the order expires by "operation of law" at four o'clock in the afternoon.

In order to be able to apply for a 209 A restraining order the parties must be related, be roommates or be involved in a substantial dating relationship. However, if this criteria is not met a person may apply for a Harassment Prevention Order pursuant to Chapter 258E. In order to apply for this type of order it is not necessary that the parties be related, be roommates or have been in a substantial dating relationship. However, the standard for for the issuance of this order is different. The most common theory under which this type of order is sought is when a witness alleges that a defendant "harassed" him or her. The type of conduct that constitutes harassment is similar to that required for criminal harassment.
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Andover Couple Convicted Of Criminal Harassment And Related Charges In The Lawrence District Court Headed To Prison For Christmas

Mon, 05 Dec 2011 07:05:38 -0500

According to the Lawrence Eagle Tribune, an Andover couple convicted of harassing their neighbor, State Representative James Lyons Jr., will be spending Christmas in jail after a jury in the Lawrence District Court found them guilty of criminal harassment and related charges. Apparently, approximately three years ago, in 2008, William and Gail Johnson were arrested while out on their morning run and charged with making false accusations of child abuse, criminal harassment, identify fraud and making a false report. One of the Commonwealth's key pieces of evidence was the testimony from Gerald Colton, a former friend of the Johnson's, who implicated the pair in the illegal activities. Following three hours of deliberations both were found not guilty on the identity fraud count. William Johnson was convicted of criminal harassment and making a false accusation of child abuse to the department of family services. Gail Johnson was convicted of criminal harassment. The judge sentenced William Johnson to eighteen months in prison and Gail Johnson to six months in jail. The pair will also serve a probationary term when they are released. Although criminal harassment is considered a misdemeanor, because the maximum penalty is a sentence in the house of correction as opposed to state prison, the Judge apparently had not patience for the troubling behavior of the Andover couple and sent them to prison for the holidays.

Relative to the crime of criminal harassment Massachusetts General Laws Chapter 265 Section 43 A states the following:

Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished. . .
In Massachusetts, in order to establish that there has been a "pattern of conduct or series of acts" there must be three or more incidents and the alarming conduct must be directed to a specific person, the person who is seriously alarmed by the harassment. See, Commonwealth v. Welch, 444 Mass 80, (2005).

In Massachusetts an individual can apply for civil restraining orders if certain conditions are met. The "traditional" type of restraining order is the "209A" restraining order. In order to have a "209A" restraining order issue the parties must be "family member" or have been involved in a substantial dating relationship. The plaintiff must demonstrate that he or she has been subjected to "abuse".

Massachusetts recently enacted another type of civil restraining order typically referred to as a "Criminal Harassment Prevention Order." In order to apply for this type of order the parties do not have to be related, dating or have been involved in a substantial dating relationship. Chapter 258E provides that a plaintiff can get a civil harassment prevention order if it can be established that the defendant engaged in the following conduct: (1) ”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.

The first branch of harassment has five components. The first requires that there be three or more acts of harassment. The additional requirements are as follows: (1) Each act must be aimed at a specific person; (2) Each act must have been both willful and malicious; (3) Each act must have been done with intent to cause fear, intimidation, abuse or property damage; and (4) Each act must in fact have caused fear, intimidation, abuse or property damage.

Defending Against A Harassment Prevention Order Issued Pursuant To Massachusetts General Laws Chapter 258E

Wed, 16 Nov 2011 08:19:47 -0500

In Massachusetts, an individual can go to a local clerk's office and apply for a Harassment Restraining Order pursuant to Massachusetts General Laws Chapter 258E even if the parties have not been dating, are not related and have not been married. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1) ”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.

The first branch of harassment has five components and appears to be the most utilized portion of the statute for the issuance and extension of orders pursuant to this section. . The first requires that there be three or more acts of harassment. The additional requirements are as follows: (1) Each act must be aimed at a specific person; (2) Each act must have been both willful and malicious; (3) Each act must have been done with intent to cause fear, intimidation, abuse or property damage; and (4) Each act must in fact have caused fear, intimidation, abuse or property damage.

In may cases, a complainant goes to a local district court and applies for a temporary order that requires a defendant to stay away from the plaintiff, the plaintiff's home and the plaintiff's work. A judge must evaluate the available information and decide whether to issue a temporary order. If a temporary order is issued, then the defendant must receive notice of the order and its relevant terms for the order to be enforceable. A defendant usually has no knowledge of the fact that an order has been issued against him or her. After a temporary order issues, there is a hearing date, approximately fourteen days later, in which the defendant can appear and give his or her side of the story. If both parties do not appear the order will expire by operation of law at four o'clock that day. If the plaintiff appears and the defendant does not appear, and the plaintiff claims he or she is still in fear of the defendant, the order is usually extended. The order can be extended for up to one year, however, the judge has discretion to issue it for a shorter period of time. It is important to note that although a Harassment Prevention Order is a civil order, an alleged violation of it can land a defendant in a criminal court.

An order often requires that the defendant refrain from any contact with the complainant. The "no contact" requirement means that a defendant cannot have ANY contact, direct or indirect, with the complainant. Thus, emails, flowers, text messages and contact through a mutual friend would be considered a violation of the order. If the case involves a couple that has children, the judge may make some rulings relative to the parties arrangements for the children. However, most of these situations are best handled in the probate court.

If you have been served with a Harassment Prevention Order, it is important that you have an experienced restraining order attorney on your side. In the unfortunate situation that the order is extended, it can be appealed. At this time, the venue in which to appeal Harassment Restraining Orders has not yet been clearly defined. Pursuant to G.L.c. 211, §3, the Supreme Judicial Court has “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly must 'demonstrate both a substantial claim of violation of [their] substantive rights and error that cannot be remedied under the ordinary review process.' Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990)], quoting Dunbrack v. Commonwealth, 398 Mass. 502, 504, (1986); McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). Currently, G.L.c.258E does not provide any express appellate remedy from a district Court entering or extending such an order. Prior to Zullo v. Goguen, 423 Mass. 679, 672 (1972), review of restraining orders issued pursuant to G.L. 209A was sought pursuant to the superintendence powers afforded the Supreme Judicial Court under G.L.c.211,§3. Frizado v. Frizado, 420 Mass. 592, 593 (1995) [Challenging an order entered under 209A by suing G.L.c.211,§3 was proper]. However, in Zullo v. Goguen, 423 Mass. 679, 682 (1996) the Massachusetts Supreme Judicial Court directed the appeals from 209A orders to the Massachusetts Appeals Court by holding, “. . . unless and until the Legislature decides otherwise, litigants seeking judicial review of an order made pursuant to G. L. c. 209A are directed to the Appeals Court.”
The outcome of the pending case of Borwoski v. O’Brien will determine the proper venue for filing appeals from the issuance and extension of Harassment Prevention Orders. The case was scheduled for oral argument this month.

Four Lawrence Massachusetts Men Face Possession Of Marijuana With Intent To Distribute And Related Charges In The Haverhill District Court

Sat, 05 Nov 2011 10:56:09 -0500

The Lawrence Eagle Tribune reports that a Police Detective pulled over a car because he saw one of the passengers holding a bag "containing a green leafy substance." According to the Tribune, based on that observation the Lawrence Massachusetts Police Detective pulled the car, that was filled with what the thought was "marijuana smoke" over. All four occupants were charged with possession of marijuana with intent to distribute and conspiracy to violate the drug laws. The driver faces additional charges including operating after his license was suspended.

Although all of the facts of this case are not known at this time, it appears that based on these facts an experienced Haverhill defense attorney should file a motion to suppress evidence. As most in the criminal law arena are aware, Massachusetts recently decriminalized the possession of marijuana that is under one ounce.

The state and federal constitution provide that individuals have a reasonable expectation of privacy on their person and in their home. This expectation of privacy often extends to drivers and passengers in a motor vehicle. What that means, is that police officers must have probable cause to believe that a crime has been committed or is going to be committed before conducting a search. Even a threshold inquiry, which is considered less intrusive, must be supported by "reasonable suspicion" of criminal activity.

In this case, it appears that an argument can be made that even if the detective saw smoke, that would not be a reason to pull the car over. How would the detective know that the smoke was "marijuana" smoke as opposed to cigar or cigarette smoke? Furthermore, the possession of marijuana under an ounce is no longer a crime but treated like a civil infraction Another are to peruse would be to investigate how the detective was able to see the alleged "bag of marijuana." It seems that the likelihood of being able to see a clear plastic bag of anything in a moving vehicle, never mind being able to identify the substance is slim to none. Based on the facts available at this time, ti does not appear that the driver was committing any traffic violations. Accordingly, a strong argument can be made that the detective had no legitimate reason to pull the car over. Along the same lines, even if the detective smelled a "strong aroma of marijuana" upon opening the door, that does not necessarily support ordering the occupants out of the car and conducting a search. There is no indication that the driver was impaired, in fact it appears that he was not charged with operating under the influence of marijuana.

In the event that a motion to suppress evidence was filed and allowed, it is likely that would be the end of the case. However, even if the case went to trial these defendants have viable defenses. In order for the Commonwealth to secure a guilty on the charge of possession of marijuana with intent to distribute, they must prove beyond a reasonable doubt that a defendant possessed the substance with the intent to distribute. To prove "possession" the government must prove that the defendant had knowledge of the substance and the ability to control it. Thus, an argument can be made that the individuals that were not "holding" the bag did not have control over the substance. Additionally, in order to prove "intent to distribute" there must be some evidence that the defendants were going to share, sell or otherwise distribute the produce. In most cases large amounts of cash, scales, baggies, customer lists and cell phones are usually confiscated at the time of arrest to support this charge. It does not appear that there was any such evidence in this case.

A Legal Analysis Of The Relationship Between Standing And The Expectation of Privacy In The Context Of A Motion To Suppress

Fri, 28 Oct 2011 17:12:50 -0500

One of the most valuable tools that an aggressive and successful defense attorney has in his or her arsenal is the motion to suppress evidence. Whether a case is in the Lowell District Court, Peabody District Court or Lawrence District Court the viability of filing a motion to suppress evidence should always be considered when a client is charged with an offense in which the Commonwealth must prove possession to secure a conviction against a defendant. Boston area criminal Defense Attorney Kathleen M. McCarthy has successfully litigated motions to suppress evidence in the Massachusetts Superior and District Courts. Whenever a client is charged with possession of a controlled substance, possession of a controlled substance with intent to distribute, trafficking in a controlled substance, possession of a firearm, possession of ammunition or possession of a dangerous weapon a Massachusetts criminal defense attorney should consider filing a motion to suppress evidence. If a motion to suppress evidence is successful that is often the end of the case.

STANDING

In order to be in a position to file a motion to suppress a defendant must have standing and an expectation of privacy. Standing generally means that a person is legally in a position to file such a motion. Whenever a defendant is charged with an offense in which the Commonwealth must prove possession to convict a defendant, such as unlawful possession of a firearm, G.L. c. 269 § 10 9h), he has automatic standing to contest the reasonableness of the search under Article Fourteen of the Massachusetts Declaration of Rights. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990) [adopting doctrine of “automatic standing” where defendant is charged with a possessory offense and seeks to exclude evidence under the Massachusetts Declaration of Rights]. Whether an individual has a reasonable expectation of privacy is usually a separate--but related issue. In Commonwealth v. Kirschner, 67 Mass. App. Ct. 836 (2006) the Appeals court recognized that a defendant charged with a possessory offense is relieved of the burden of showing an expectation of privacy. See, Commonwealth v. Frazier, 410 Mass. 235 (1991).

STANDING/EXPECTATION OF PRIVACY

Under the Fourth Amendment, the question of whether the defendant has standing to challenge a search or seizure is merged with the determination of whether the defendant had a reasonable expectation of privacy in the place searched, and a defendant has no standing if he has no reasonable expectation of privacy. Rakas v. Illinoi, 439 U.S. 128, 138-39 (1978); Commonwealth v. Mubdi, 456 Mass. 385, 391 (2010). In contrast, under Article Fourteen, the question of standing remains separate from the question of reasonable expectation of privacy. Mubdi, 456 Mass. at 391; Commonwealth v. Williams, 435 Mass. 203, 207-08 (2009); Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3 (1991). “This separation matters most in cases where a defendant is charged with a possessory offense, because Article Fourteen gives a defendant automatic standing to challenge a search of a private place, such as an automobile or home, in which the object he is alleged to possess is found.” Mubdi, 456 Mass. at 392. Where a defendant has automatic standing, he does not need to show that he has a reasonable expectation of privacy in the place searched. Id. “The practical consequence of automatic standing is that, if a defendant is charged with illegally possessing drugs or firearms that were seized during a search, the defendant may succeed in suppressing such evidence where the search was unconstitutional, regardless of whether he has a subjective or objectively reasonable expectation of privacy in the place where the drugs or firearms were found.” Id. at 392-93.

Superior Court Judge Orders Suppression Of Gun And Related Evidence Following Motion To Suppress Evidence

Sun, 23 Oct 2011 17:03:07 -0500

If you are looking for an experienced and successful defense attorney for any drug crime, firearm offense or violent crime Attorney Kathleen M. McCarthy will bring good results and hard work to your case. She recently successfully litigated a motion to dismiss and suppress evidence in a Massachusetts Superior Court. The defendant was initially charged with being a career criminal, illegal possession of a firearm and improper storage of a firearm as the result of a search of a motor vehicle in which the defendant was a passenger. Attorney Kathleen McCarthy filed a number of pre-trial non-evidentiary motions including a motion to dismiss the career criminal portion of the indictment. She argued that the grand jury was not presented with the requisite number of previous offenses to charge the defendant as a career criminal. A superior court judge agreed and allowed the motion without a hearing. This eliminated the mandatory minimum state prison sentence that the defendant faced. This, however, was not the end of the case.

The defendant was still facing the illegal possession of a firearm charge that carried a mandatory committed sentence of eighteen months in jail if convicted. Attorney McCarthy conducted a thorough pre-trial investigation and filed a motion to suppress evidence based on the illegal search of the car that the defendant was a passenger in.

The Commonwealth claimed that local police officers responded to a local street after receiving a report that there was a “suspicious” car idling outside one of the buildings. During an evidentiary hearing Attorney McCarthy established that when the police arrived there was no car “idling.” The police officers approached the car that the defendant was in and questioned the driver. Apparently, the driver did not have a valid driver’s license and was arrested. The defendant, passenger in the vehicle, was allowed to go the nearby police station to bail out the driver. In the meantime the police conducted what they claimed was an inventory of the car and found a firearm and two ski masks.

Successful defense attorneys file these motions to zealously defend their clients. The motions usually assert that the evidence should be suppressed for the following reasons:
• said evidence was not seized pursuant to a lawful arrest;
• it was not in plain view;
• there was no probable cause;
• there was no warrant;
• there were no exigent circumstances;
• the search was not pursuant to a lawful stop-and-frisk;
• the search was not consented to;
• the search, stop and/or inquiry of the defendant was conducted without probable cause, reasonable suspicion or exigent circumstances;
• the search was a “pretextual search”;
• the search was not done in conformity with written police inventory policy;
• the stop of the defendant was unlawful;
• the search of the defendant and the car was unlawful;
• the stop and search was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and G.L. c. 276.

In Massachusetts, individuals have an expectation of privacy in their homes, person and in appropriate circumstances a motor vehicle. Attorney McCarthy filed a motion to suppress claiming that he police had no right to tow the car because it was parked in a private area and the owner of the building, or anyone for that matter, did not call requesting that the car be towed. Following an evidentiary hearing the superior court judge agreed with Attorney McCarthy and allowed the defendant’s motion. Thus, the Commonwealth will not be allowed to introduce the gun and masks into evidence. The result is that the government does not have a case.

Lowell High School Student Faces Drug And Related Charges In The Lowell District Court

Wed, 05 Oct 2011 07:15:02 -0500

According to The Lowell Sun, seventeen year old Sergio Figueroa, a student at Lowell High School was escorted out of school and charged with a number of criminal offenses in Lowell District Court including threats, disturbing a school assembly and possession of marijuana with intent to distribute. According to the Sun, after a teacher told him to leave the classroom the student made a motion similar to shooting and made threats to the teacher. Apparently, after the police caught up with Figueroa, he did not have a binder with him that he had with him when he left school. The authorities eventually searched his locker and found a bag containing four smaller baggies of what they believe is marijuana and one-hundred thirty five dollars in cash.

Although all of the facts of the case are not known at this time, it would be important for an experienced defense attorney to examine all of the facts that led to the decision by law enforcement to search the student's locker. In Massachusetts an individual has a right to an expectation of privacy on his or her person and in his or her home. Depending on the circumstances, this "expectation" can extend to cover motor vehicles. Whether a student has an "expectation of privacy"in his or her locker could depend on the rules promulgated by the school. An argument can be made that it is a privilege to go to school and the students must abide by the rules. However, the constitutionality of any "rules" and whether the proper procedure was followed can often be the subject of a viable motion to suppress evidence.

Filing a motion to suppress evidence is one of the many tools that an aggressive defense lawyer has in his or her arsenal. In cases in which a person is charged with illegal possession of an item i.e., a firearm or a controlled substance, examining the circumstances surrounding any stop, search and seizure is a good place to start in mounting a successful defense. In the event that evidence is suppressed, and the Commonwealth cannot prove its case, the case is often dismissed by a judge or nolle prossed by the prosecution.

In Massachusetts, if a defendant loses a motion to suppress, in most circumstances that decision cannot be appealed unless, and until, the case goes to trial and a defendant loses and appeals his case. Thus, even if a defendant loses a motion to suppress, that he or she should have won, if a defendant then pleads guilty, the defendant cannot then appeal the improper denial of the motion to suppress. However, if the Commonwealth feels that a motion was improperly allowed, the prosecution can appeal. The rationale for this is that the Commonwealth will not be able to prosecute without the evidence so in the interest of fairness, they are allowed to appeal the allowance of motions to suppress. However, if a defendant is found not guilty, the Commonwealth has not right of appeal.

Salem District Court Judge Orders Marblehead Man Held Without Bail Who Faces Charges Of Operating Under The Influence Of Alcohol Second Offense And Rlated Charges

Thu, 29 Sep 2011 06:57:47 -0500

The Lawrence Eagle Tribune reports that a Marblehead man, Richard Burke, faces charges of a second offense operating under the influence of alcohol, driving an uninsured motor vehicle, driving after his license was suspended and related motor vehicle charges in the Salem District Court. The charges stem from a collision that his car had with a minivan on Sunday during the early afternoon. Apparently, the two car accident left the defendant and two others in the hospital. Unfortunately for Burke, these new charges have been lodged while he was released on bail for another drunk driving case in the Woburn District Court. For that reason the judge ordered that he be held for up to sixty days without the possibility of posting bail and/or until the case is resolved. Although the defense attorney argued that there were other conditions including alcohol monitoring and a curfew that cold be imposed short of incarceration, the Salem District Court Judge did not go for it. It was represented that the defendant has a previous "continuance without a finding" on a previous operating under the influence from 2005.

According to reports, the car driven by the defendant traveled into the path of the minivan and hit it head on. Police officers and an EMT indicated that they smelled an odor of alcohol from the defendant. The defendant did not submit to a blood alcohol test at the hospital.

According to the Tribune, the defendant's first case was "continued without a finding." A "continuance without a finding" means that a defendant admitted to sufficient facts but the judge did not find him or her guilty. In many of these situations, the judge continues the case for one year and orders that a defendant enter and complete and "ASAP" alcohol program, pay court fees and not get rearrested. In the event these conditions are satisfied the case is dismissed. The benefit of this type of disposition is that a defendant can state that he or she has not been convicted of a crime. In situations in which a defendant pleads guilty or is found guilty by a jury, that is considered a criminal conviction. However, it is important to understand that even a continuance without a finding on the charge of operating under the influence of alcohol counts as a first offense, even though it is not considered a conviction. Therefore, if a defendant is arrested for operating under the influence or drunk driving after receiving a continuance without a finding, it will be considered a second offense.

The Commonwealth must prove three things beyond a reasonable to secure a conviction for driving under the influence of alcohol. The prosecutor must prove that a defendant was driving a motor vehicle on public way and was under the influence of alcohol. In order to prove "operation" it is not necessary for the government to prove that a person was driving a car down the street in the traditional sense. Simply having a key in the ignition is sufficient in many cases. A public was is a way in which the public has a right to access. For example, a mall parking lot or a restaurant parking lot is usually considered a "public way" even though they may technically be "private property." They are considered "public" because the public has the RIGHT to access the area. However, a driveway or private property like a private access road is not considered a public way. The most litigated area is the "under the influence" element of the crime. The Commonwealth is not required to prove that the defendant was "drunk." The prosecutor must however prove that the defendant's ability to safely drive a motor vehicle was impaired from alcohol.

Salem Massachusetts Man Sentenced To Six Years In Prison On Charges Of Assault With Intent To Murder And Assault And Battery By Means Of A Dangerous Weapon Causing Bodily Injury

Sun, 18 Sep 2011 17:58:53 -0500

A twenty-eight year old Salem Massachusetts man, Michael Marino, will spend the next six years behind bars after pleading guilty to stabbing his mother's former boyfriend seven times. According to The Salem News, Paul Goodwin told the Superior Court Judge that this situation was the most "horrifying thing in [his] life." Goodwin wanted Marino to be sentenced to the maximum of thirty-five years, twenty years for the count of assault with intent to murder and fifteen years for count of assault and battery causing serious bodily injury. The prosecutor described the incident as a "brutal attack" and requested that the defendant be sentenced to a seven to ten year sentence. Superior Court Judge David Lowy imposed a six year sentence followed by a probation term when Marino is released from prison. Marino was ordered to participate in drug and alcohol counseling and attend an anger management class during his probationary period.

According to reports, the victim explained to the Judge that the defendant sliced his throat and then opened up his belly "like a fish." Apparently, Goodwin, [who had previously received a restraining order against his former girlfriend and mother of the defendant, Brault] went to Brault's mother's house after she had been kicked out. As Goodwin and Brault were speaking, Brault received a phone call from her son, Marino who appeared at the scene. An altercation ensued that left Goodwin with lacerations to his liver, lung and diaphragm and fighting for his life. Defense counsel explained that his client did not land the first blow and was not sure what to expect when he arrived at the scene. Counsel further explained that Marino was under the influence of Klonepin and alcohol. The struggle landed Marino in jail and Goodwin in the hospital.

In many cases where a defendant is charged with a violent crime there are a number of defenses to pursue. Obviously, the type of defense that is mounted depends on the facts of the case. For example, if a defendant was not identified at the scene and the accuser and the defendant are unknown to one another, a defense of misidentification should be evaluated. That type of defense would not make sense in a case such as this because the parties knew each other.

Although all of the facts of this case are not known, it appears that if the case went to trial a viable defense would be that Marino acted in self-defense. In cases in which a defendant claims self-defense the Commonwealth must prove that beyond a reasonable doubt that an assault and battery by means of a dangerous weapon occurred AND must prove beyond a reasonable doubt that the defendant did NOT act in self-defense. However, in cases of self-defense and individual has the obligation to retreat if possible and can only use as much force as is necessary to defend oneself. Thus, the fact that Marino introduced a knife into the struggle could be problematic to the claim of self-defense. In these types of cases the size of the individuals involved in the altercation can be important as a slighter person may need to use more force to protect himself from a bigger, stronger person.

Danvers Massachusetts Woman Held For A "Dangerousness Hearing" Following Her Arraignment For Charges Stemming From An Alleged Armed Robbery

Sat, 17 Sep 2011 07:12:03 -0500

A disagreement over a debt landed one neighbor in jail and the other crying and calling the police. According to The Danvers Herald, forty-four year old Jayniene McCarthy of Danvers barged into a neighbor's apartment, kneeing a two-year old toddler before putting a knife to the boy's mother's throat and taking a wallet from the kitchen table. According to reports the front door of the victim's apartment was kicked in and McCarthy faces charges including armed robbery, assault and battery on a child causing injury, breaking and entering, assault and battery to collect a loan and malicious destruction of property. The assailant allegedly took a knife from the dish rack and put it to the victim's neck demanding repayment of a $100.00 loan. When the police arrived she was crying and the child had a bruise on his head. Both were evaluated at the hospital. According to the paper, the suspect allowed the police to search her apartment and the wallet was found in the suspect's apartment.

Apparently, the defendant was held without bail pending a dangerousness hearing set for this Wednesday. The District Attorney's Office files a request for a "dangerousnsess hearing" in the event that they believe that an individual is a danger to herself, himself, a particular individual or the community and there are no other reasonable means to ensure the safety of the public without having the defendant held in jail without bail. The prosecutor must also be able to present probable cause that the defendant committed the offense. In the event a judge finds that an individual fits this criteria he or she may be held without the opportunity to post bail.
Although all of the facts of this case are not known at this time, if the defendant does not have a record that is a positive factor that should be emphasized by a qualified defense attorney. In cases in which is is alleged that a defendant engaged in violent behavior which may concern a Judge, arguing that the defendant could routinely report to probation and abstain from alcohol and or drugs (if they were involved in the offense) may help an individual be able to be eligible for bail. If things are not looking good, it is sometimes a good idea to argue that the individual be placed on a "bracelet" and only allowed to go to work and other enumerated activities.

In this case, it appears that the defendant consented to the police entering her apartment and searching it. In Massachusetts the police must get a search warrant in order to search a person's home. A few exceptions to that rule are if there are "exigent circumstances" or if a person in control of the premises "consents" to the search. "Consent" must be given freely and without coercion. An experienced defense lawyer will often file a motion to suppress evidence based on illegal entry, search of an apartment and seizure of evidence from a home in situations in which law enforcement did not get a warrant prior to entry and there was not exigency or consent. Whether an individual "consented" to a search is often the subject of litigation during a motion to suppress evidence.

Billerica Man Faces Assault And Battery Charges And Assault With Intent To Murder Charges In Lowell District Court

Thu, 08 Sep 2011 10:19:51 -0500

The Lowell Sun reports that forty year old Shawn Kelley has been charged with assault with intent to murder and assault and battery relating to an incident that occurred on Tuesday, September 6th during the evening. It has been alleged that a woman reported the incident the following morning claiming that Kelley choked and threatened her. Following his arraignment in Lowell District Court, Judge Thomas Brennan ordered that Kelley be held on $10,000 cash bail. In the event that the bail is posted, Brennan ordered that Kelley have a mental health and a substance abuse evaluation, refrain from abusing the victim and have no access to weapons. A probable cause hearing is set for October 6th.

Massachusetts General Laws Chapter 265 section 13A provides that the punishment for a defendant convicted for assault or assault and battery is up to two and one half years in prison or by a fine of not more than one-thousand dollars. The charges of assault and assault and battery are considered felonies because the potential penalty in this case is a “house of correction” or “jail” sentence. When a potential sentence that a defendant can receive includes a state prison commitment, the charge is considered a felony.

In order to be convicted of assault and battery the Commonwealth must prove beyond a reasonable doubt that there was an intentional and unjustified touching, however slight, on another OR that a defendant intentionally engaged in wanton or grossly negligent conduct that cause injury to another person. Thus, the charge of assault and battery is often described as having two “branches,” the “intentional” branch and the “wanton” or “negligent” branch. The government can prove their case by establishing either theory. The crime of simple assault can also be committed in one of two ways. One can be convicted of assault by “attempting a battery” on another or by putting another person in fear of an immediately threatened battery. Relative to the “attempted battery” type of offense, it is not necessary for the “victim” be put in fear.

Although all of the facts of this case are not known at this time, it appears that the reason for the delayed reporting should be investigated for the defense. Furthermore, while the case is still “new” it may be appropriate for the defense team to employ an investigator to determine whether there are any witnesses to the alleged incident other than the defendant and the complaining witness.

Depending on the circumstances of the case, it will be important to establish if there is a viable claim of self-defense, defense of another, accident, misidentification or that the incident simply did not happen. Relative to a claim of self-defense or defense of another, the Commonwealth has the burden to prove its case beyond a reasonable doubt and then to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.

Lawrence Massachusetts Man Charged With Possession Of Cocaine With Intent To Distribute In A School Zone, Possession Of Marijuana With Intent To Distribute In A School Zone And Related Charges

Sun, 28 Aug 2011 11:50:15 -0500

The Lawrence Eagle Tribune recently reported that twenty-seven year old Luis Nunez of Lawrence Massachusetts has been charged with possession of maijuana with intent to distribute, possession of marijuana with intent to distribute, possession of cocaine with intent to distribute in a school zone, possession of cocaine with intent to distribute and resisting arrest. According to the Tribune, police responded to the area of Bennington Street and saw a parked car and heard loud music coming from inside. Apparently, a man was seen dancing in the Bennington Street area.

The paper indicated that when the police checked Nunez's pockets they found a substance that they believe is cocaine. When the defendant was being booked at the police station the authorities claim that he was in possession of three small bags of what they think is marijuana. The defendant was charged with the above described drug related crimes and resisting arrest.

Although all of the facts of this case are not known at this time, it appears that the defense should examine the circumstances that led up to the police “finding” the alleged controlled substance in the defendant’s pocket. The Fourth Amendment to The United States Constitution protects individuals from unreasonable searches and seizures. In other words, individuals in this country enjoy a reasonable expectation or privacy relative to their person, home and other protected areas such as in their office and car. Here, Nunez had an expectation of privacy on his “person” unless the government can demonstrate that the authorities had probable cause that Nunez was committing, had committed or was about to commit a crime. Another exception could arguably be that there were “exigent” circumstances that eliminate the need for the police to get a warrant before searching Nunez. These circumstances generally include a situation in which the officers are in fear for their safety or for the safety of others. Based on the available information from this article, it does not appear that there was any indication that Nunez was armed or dangerous thus, this is likely not an exception that would apply to the facts in this case.

An experienced Massachusetts Criminal defense lawyer would likely file a motion to suppress in this case. The defendant could move to suppress the stop and search of the defendant at the Bennington Street area and the search of him during the booking process. The defendant may claim that the fact that the police were called to Bennington Street did not justify them searching Nunez’s pockets. In fact, depending on the circumstances, once the police arrived and saw the defendant, they could have just told him to turn down the music and be on this way. Even though there was apparently music coming from the car, the defendant was not charged with any criminal or civil violations relative to the operation of the vehicle. Thus, a viable argument could be made that the police had no right to search Nunez at the scene. If the search at the scene it held to be unconstitutional then the marijuana confiscated from the search of Nunez at the police station would also likely be suppress as “fruits of the poisonous” tree.

A Salem District Court Judge Dismisses Charge Of Threats To Commit A Crime Against A Marblehead Police Officer

Sat, 27 Aug 2011 20:27:18 -0500

The Salem News reported that a Salem District Court Judge dismissed one criminal count of threats to commit a crime against a Marblehead police officer, forty-one year old Christopher Adkerson of Lynn. Apparently, a distraught Adkerson told his wife that he was going to kill himself and that he would take them too. However, when his estranged wife questioned who he was referring to, Adkerson never specified anyone.

Massachusetts General Laws Chapter 275 section 2 and Massachusetts decisional law provides that in order to be convicted for "threats" to commit a crime a defendant must have both the intention and the ability to carry out a threat and the circumstances must justify apprehension on the part of the recipient of the threat. Furthermore, the recipient of a threat does not have to be the victim of the threatened crime. For example, in the recent case of Commonwealth v. Hamilton,, 459 Mass. 422 (20110) the Supreme Judicial Court held that there was sufficient evidence to convict a defendant for threats to commit a crime when the defendant threatened a probation officer's daughter because there was evidence that the defendant intended that the threat be forwarded to the officer's young daughter through the probation officer. A defendant who blocked the path of a car, glared at its occupants, addressed the individual's with closed fists stating that he would "wipe the grin" off the victim's face and stopped his car twice close to victim and looking at the victim and his son with a "menacing grin" was appropriately convicted for criminal harassment.

In the Adkersen case, the judge held that Adkersen's threat was not directed at a specific victim and therefore, the conduct was not conduct forbidden by the statute. According to the News, Adkerson's conduct had recently been "erratic" however, his wife claimed that he had never been physical with her or their daughter.

Another crime that is often charged in conjunction with threats to commit a crime is criminal harassment. Massachusetts General Laws Chapter 265 Section 43 A provides that anyone who "willfully and maliciously" directs conduct at a specific person over a period of time establishing a pattern that seriously alarms that person and the conduct causes a reasonable person to suffer "substantial emotional distress" can be punished for up to two and one half years in jail or by a one-thousand dollar fine or both. The Massachusetts Supreme Judicial Court has held that three or more incidents is required in order to prove a pattern of harassment. Examples of conduct that would constitute criminal harassment include the posting of fliers advertising concert tickets and cars for sale that listed the complainant's phone number and hang up calls. The "substantial" distress must be more than minor or passing anxiety.

Practical Effects Relating To The Decriminalization Of Possession Of Marijuana Under One Ounce On Massachusetts Criminal Cases

Mon, 08 Aug 2011 15:13:04 -0500

As most in the legal community know, possession of an ounce or less of marijuana has been decriminalized in Massachusetts. That does not mean that it is not "against the law" to possess and ounce or less of marijuana, it simply means that a fine is the potential penalty, similar to a speeding ticket or another traffic violation. If the individual is an adult a $100.00 fine is imposed and the marijuana is confiscated. In the event that a person under eighteen is found to be in the possession of the substance, he or she must attend a drug awareness program. However, the legislature has not decriminalized possession of marijuana with intent to distribute, distribution of marijuana or trafficking marijuana. Furthermore, operating under the influence of marijuana is a criminal offense.

In Commonwealth v. Cruz, 459 Mass. 459 (2011) , the Massachusetts Supreme Judicial Court discussed the effects that the decriminalization of a possession of marijuana can have on traffic stops by police officers and subsequent searches of the car, driver and passengers. In Cruz, the Court upheld the lower trial court's suppression of evidence holding that a civil citation should have issued for the car being parked next to a hydrant however, reasonable suspicion of criminal activity was necessary to further detain the driver and probable cause is necessary to support an exit order and search of the car. Thus, from a defense point of view, the decriminalization has been a step in further securing an individual's right to be free from unlawful searches and seizures.

As briefly discussed above, the law does not exempt an individual from all crimes that relate to marijuana. A person can still be charged with illegal possession of marijuana with intent to distribute, distribution of marijuana and trafficking of marijuana, even if the amount is under an ounce if other factors are present. Furthermore, if the intent to distribute or distribution occurs in a school zone a defendant can face a mandatory sentence of two years in jail. Items that are often associated with the distribution of marijuana are scales, baggies, razor blades, cutting agents and a large amount of cash.

A practical approach to defending a client charged with any drug offense include examining the facts to determine whether a motion to suppress the stop, motion to suppress the evidence and motion to suppress the search should be filed. Furthermore, a motion to dismiss is also often appropriate in circumstance in which there is clearly not enough to infer that the defendant actually distributed or intended to distribute the substance.