Boston Criminal Lawyers Blog
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As you may have heard in the news lately, former New England Patriot and NFL player Brandon Spikes’ Mercedes was involved in an accident on I-495 in Foxboro, Massachusetts last week. According to the Massachusetts State Police, Spikes’ Mercedes was allegedly speeding when it crashed into the rear of a SUV. The Mercedes was located further along the road in the early morning hours after the vehicle’s roadside assistance indicated that the driver reported hitting a deer.

The driver who spoke with roadside assistance was apparently not identified; and none was in the vehicle when it was located. The New England Patriots then released Brandon Spikes later that day.

Massachusetts State Police report they will now summons the former New England Patriot into Wrentham District Court and charge him with several criminal motor vehicle violations, including Leaving the Scene of an Accident Resulting in Personal Injury and Negligent Operation of a Motor Vehicle. But do they even have a case?

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The Massachusetts Supreme Judicial Court, in the case of Commonwealth v. Brescia, affirmed a judge’s allowance of the defendant’s motion for new trial on the grounds of, because of the defendant’s having had an undetected stroke during the course of his testimony, this medical condition could have affected his credibility before the jury.

James Brescia was tried in the Middlesex Superior Court in 2006, charged with murder in the shooting death of a man whom he believed was having an affair with his wife.  The Middlesex County District Attorney’s Office alleged that the defendant had hired an assassin to kill his wife.  During trial, the defendant elected to testify in his own defense; and he was cross-examined by the prosecution over two days.

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The Massachusetts Appeals Court recently ruled that it is reversible error and improper for a prosecutor to suggest the defendant had the opportunity to tailor his testimony and lie because he had heard the other witnesses during trial.  This issue was addressed in Commonwealth v. Alphonse, and because the error was reversible, the defendant’s conviction was reversed.

The defendant was tried for the crime of assault & battery in the Brockton District Court.  During closing arguments, the prosecutor argued:

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The Massachusetts Supreme Judicial Court considered whether evidence or documents that were provided to an attorney by the client are obtainable by prosecutors from the attorney via subpoena.  The question, the court ruled, depends on whether or not the the evidence was provided to the attorney for purposes of legal assistance.

This case involved circumstances where the defendant was the subject of a grand jury investigation who, in the course of seeking legal advice, had given his phone to his lawyer.  The government, on behalf of the grand jury, obtained an order from a superior court judge ordering the attorney to produce the phone so that the grand jury could examine its contents.  The attorney refused to honor the superior court judge’s ordering him to do so and the appeal reached the Supreme Judicial Court. Continue reading →

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The Massachusetts Supreme Judicial Court addressed the issue whether a defendant, who was the object of the police investigation, may still move to suppress evidence seized from the co-defendant under the theory of “target standing”.  Target standing is a legal theory that permits a defendant, who is charged with a possessory offense, such as unlawful possession of drugs or guns, to challenge the lawfulness of the seizure of that evidence even though it may have been seized by police from a co-defendant or other third-party.

In the case of Commonwealth v. Santiago, the SJC held that, a challenge to the suppression of evidence on the theory of target standing does not apply unless the defendant is charged with a possessory offense, even though he may have been the primary suspect in the police investigation. Continue reading →

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In the recent case of Commonwealth v. Walter Crayton, the Massachusetts Supreme Judicial Court established a new standard for the admission at trial of an in-court identification of the defendant where the witness had not, prior to trial, been asked to participate in an out of court identification procedure.  The new rule imposes the burden on the Commonwealth to request. prior to trial, that the prospective witness be permitted to make an in-court identification if there has not been any previous identification of the defendant.

Once the prosecutor makes this request, the burden remains on the defendant to establish that the proposed in-court identification would be “unnecessarily suggestive” and that there would be no “good reason” for it.  Examples of “good reason” for the first identification procedure by a witness against a defendant at trial may include circumstances where the eyewitness was familiar with the defendant before the commission of the crime; or where the eyewitness was the arresting officer.  In other words, circumstances where the witness and the defendant were known to one another or where the identity of the defendant is not a live issue at trial – where the witness is not identifying the defendant based solely on his memory of witnesses the defendant at the time of the incident and therefore, little risk of misidentification from the in-court show-up. Continue reading →

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The Massachusetts Appeals Court recently suppressed evidence in a case that was seized as a result from an arrest by Boston Police based on mistaken information.  In the case of Commonwealth v. Maingrette, the Appeals Court ruled that the arrest, based on a default warrant that was no longer active at the time of the defendant’s arrest, was unlawful and evidence seized as a result must be suppressed.

When “an arrest is wrongly made on the basis of mistaken information chargeable solely to the police, the burden is on the government to show that i twas not at fault in the circumstances” and that the mistake was reasonable.”

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In a case decide today, in L.L., a Juvenile v. Commonwealth, the Massachusetts Supreme Judicial Court rules on the standard a juvenile court judge determines the risk of re-offense on the part of a juvenile who committed a ‘sex offense’ that imposes the requirement of sex offender registration.  The SJC ruled that, even as it pertains to juvenile offenders, it is within the judge’s discretion to determine whether the juvenile offender should or should not be relieved of the obligation to register as a sex offender.

In this case, the juvenile was charged in Essex County Juvenile Court as a result of allegations that occurred in Lynn, Massachusetts.  The juvenile was charged with two counts of Indecent Assault & Battery on a Person.  The charges arose from allegations that the juvenile, who was 16 at the time, went up to an adult woman from behind; pulled down her pants; and then made inappropriate comments about her private area while also grabbing his genitals.  A week after this incident, the juvenile did something very similar to a second woman. Continue reading →

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The Massachusetts controlled substance laws punishes with enhanced penalties those persons who violated the drug laws for the sale or distribution of drugs within 100 feet of a “public park or playground”. This week, the Massachusetts Appeals Court ruled that a defendant cannot be criminally liable if he distributes drugs within a park or playground that is NOT “public”, even if it is accessible to members of the public.

In the case of Commonwealth v. Gopaul, the defendant was convicted for selling marijuana to an undercover police officer within 100 feet of an outdoor playground at the Windsor Meadows Apartment Complex, a private apartment complex in Marlborough, Massachusetts. The playground was not fenced in and, arguably, anyone could enter the playground.

The defendant challenged his conviction after trial, arguing that the Drug Distribution Near School Zone, Park or Playground Statute in Massachusetts General Laws Chapter 94C, section 32J, applies only to “public” playgrounds, not those that are on private property. Continue reading →

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Many clients, and even attorneys, don’t understand the perils of interviewing potential witnesses without the assistance of an investigator. Even when I explain and encourage client to retain the services of an investigator, many of them forego the use of an investigator for no other reason than to save some money. Unfortunately, not hiring an investigator can end up costing the client much more in the long run, and in some cases, even a conviction.

The recent case of Commonwealth v. Zabek was heard before the Massachusetts Appeals Court and specifically addressed the issue of trial counsel interviewing witnesses on his own and the potential conflict of interest that may arise as a result.

In that case, the defendant was convicted after trial on charges of rape of child and other sexual offenses. In his appeal, the defendant claimed that his trial attorney was ineffective because he had an actual conflict of interest and could not therefore zealously defend him. The lawyer, the defendant argued, had interviewed a witnesses prior to trial without an investigator, which then potentially made the lawyer a potential impeachment witness at trial.

Specifically, because the lawyer interviewed the witness alone and without the use of an investigator, had the witness testified inconsistently at trial, the lawyer would have had an actual conflict against his client because his testimony might be necessary to properly defend his client.

The Appeals Court noted that the Massachusetts Rules of Professional Conduct prohibit an attorney from acting as trial counsel at a trial in which the lawyer is likely to be a necessary witness.

In this case, however, the Appeals Court rejected the defendant’s appellate claims because it turned out that the witness did not ultimately testify inconsistently with what was stated to the lawyer in the pre-trial interview. Additionally, the issue was raised before the trial judge and both the attorney and the defendant conceded that there was no reason to believe that the witness would offer any inconsistent testimony.

Nonetheless, this case is illustrative of the precise circumstances as to why a trial attorney should never interview witnesses on his own. By having another person witness the interview, that other person would then be available and able to be called at trial in the event the witness were to testify inconsistently.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes and may be reached at 617-325-9500.