December 2011 Archives

December 30, 2011

Misleading a Police Officer is a Crime in Massachusetts

In Massachusetts, it is a crime to lie to or mislead a police officer, or otherwise impede a criminal investigation.

Under the Intimidation of a Witness statute, the Massachusetts legislature criminalized conduct where a person willfully misled or lied to a person furthering a criminal investigation with the intent to impede or obstruct justice.

In one recent case, Commonwealth v. Patrick Fortuna, the Massachusetts Appeals court considered a case where the defendant had been shot. While being treated at the hospital, he was interviewed by the police about who had shot him. He told the police that he was shot while walking home and didn't know by whom, because the shooter had been far away.

During questioning, however, the police officer noticed what appeared to be gunshot residue near his wound and on his clothing. When the officer questioned the defendant about the gunshot residue, the defendant became confrontational and refused to answer any further questions.

At trial, the prosecutor called a forensics experts from the Boston Police crime lab who offered testimony that, based on the chemical testing of the gunshot residue on the defendant's clothing, he had been shot from a distance of no more than 18 inches. Based on this testimony, a jury then convicted the defendant of Intimidation of a Witness for intentional misleading a criminal investigation.

In considering the defendant's appeal of his conviction, the Appeals Court ruled that where the defendant's account differed from the account of the forensic expert, a jury was able to infer that the defendant had lied or intentionally misled police.

It seems almost paradoxical that a person has a right to remain silent by asserting his Privilege Against Self-Incrimination, yet can be prosecuted and sentenced to prison for lying to police for fear of facing criminal prosecution. The better practice, under the law, would be simple to refuse to answer any questions and consult with an attorney.

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December 28, 2011

Massachusetts Criminal Appeals: New Trial Motions

images.jpegThose convicted of any crime in Massachusetts should always consider challenging their conviction by filing an appeal. One way to litigate a Massachusetts Appeal is asking the trial judge to consider a Motion for New Trial based on undisclosed evidence by the prosecution.

In order to secure a new trial on the basis of undisclosed evidence, a defendant must be able to establish 3 things:

  1. the evidence was in the possession, custody or control of the prosecutor;

  2. the evidence is potentially exculpatory (e.g., tends to show evidence of innocence); and

  3. the prosecutor's failure in disclosing the evidence prejudiced the defendant.
Once the defendant has demonstrated to the trial judge that the evidence was potentially exculpatory, he must establish that he was prejudiced by not having had the benefit of this evidence. In order to establish prejudice, the assessment is whether there is a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial.

In a case recently litigated before the Massachusetts Supreme Judicial Court, the defendant had filed a Motion for New Trial based upon the prosecutor's failure to produce exculpatory evidence.

In the case of Commonwealth v. Murray, the defendant had been convicted of 1st Degree Murder. During the trial, the defendant had brought forward a theory of manslaughter based on the assertion that the victim was a gang member. The trial judge, however, did not allow the defendant to refer to the assertion that the decedent and his friends were part of a "gang", but only allowed him to reference their affiliation as a "group". During the trial, the witnesses also denied they were part of a gang; and a police officer who testified at trial also stated that he wasn't sure that the decent was a member of that 'group'.

Two years after the trial, 20 members of that gang were indicted by state and federal prosecutors. Those indictments, however, contained an affidavit that referenced this group as a violent street gang; identified 3 of the witnesses who testified at trial as gang members; and also identified the decedent as a gang member.

Even though that the defendant's attorney had not specifically requested the gang related information prior to the trial, the Massachusetts Supreme Judicial Court upheld the Motion for New Trial on the basis that the information contained in the affidavit could "bolster [the defendant's] theory of the case, contradict the testimony of [witnesses], and demonstrate their motive to lie."

In this regard, as a result of the newly discovered evidence, the judge ruled that there was a 'substantial miscarriage of justice' because, if the jury had heard this evidence, they could have reached a different verdict.

Contact a Massachusetts Criminal Appeals Lawyer.

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December 26, 2011

Massachusetts Appeals Court Issues Detrimental Opinion on "Constructive Possession"

In the recent case of Commonwealth v. Romero, the Massachusetts Appeals Court issued a split-decision where the defendant, charged with Massachusetts Gun Crimes, challenged his conviction based on insufficient evidence for "constructive possession".

The defendant in the case was in the driver's seat of a parked car - he was the owner and operator in the car - along with three other passengers who were sitting in the car as well. At 1:30 a.m., a police officer drove past the car and testified that, as he drove by, he could only see the top of 4 peoples' heads because they were crouching down in their seats. Upon seeing this, the officer turned around and parked behind the defendant's car.

As the officer began to approach the car, from about 3 feet away, he testified he could see in the car and from his vantage point one of the rear passengers reach towards the front of the car through the two front seats, this while the defendant/driver was looking side to side and also looking at the front seat passenger, who was looking at an object in his hand.

When the officer shined the flashlight into the car, the front seat passenger dropped the object in his lap, which turned out to be a gun. The defendant denied any knowledge of the gun being in the car. At trial, the defendant testified that when he picked up the front seat passenger, he showed him a gun and that he had touched it.

In his appeal, the defendant challenged the sufficiency of the evidence at trial as to Unlawful Possession of a Firearm based on "constructive possession".

Under Massachusetts criminal law, in order to prove "constructive possession", the Commonwealth must establish knowledge on the part of the defendant, coupled with the ability and intent to exercise dominion and control over the object. The court has recognized that mere presence, without more, is not enough to demonstrate knowledge or ability to and intent to exercise dominion and control, but could be inferred with the presence of other incriminating evidence.

The Appeals Court in this case rejected the defendant's challenge that there was insufficient evidence of knowledge and held that because the gun was on the lap of the front seat passenger and the defendant was sitting next to him, the evidence was sufficient.

With regard to whether there was sufficient evidence of "ability and intent to exercise control" of the gun, the Appeals Court was divided. Unfortunately, the majority relied on several "plus factors", in addition to mere presence, that warranted the inference that the defendant intended to exercise control over the firearm. Among the "plus factors" the Appeals Court relied upon were (1) ownership of the vehicle; (2) the defendant was the operator of the car; and (3) the defendant's proximity to the person who had the gun, which was in plain view (and not hidden). The court also noted other "incriminatory factors" that suggested "intent", including that the occupants were slouching down, the location of the incident on a dark street; and the time of night.

In reaching its decision, the majority of the Appeals Court reasoned that:

"an owner and operator of a motor vehicle, who has knowledge of the presence of a firearm, unquestionably has the ability to exercise dominion and control over that firearm...if the owner and operator of the car chooses not to exclude a passenger who he knows has a weapon, it is a reasonable inference that the owner and operator also has the intent to exercise dominion and control over the firearm as he does over the car itself."

I believe the dissent, however, correctly pointed out that the majority in this decision essentially created a new strict liability for vehicle owners or operators, even if they truly had not intent to possess a weapon or any other unlawful object. The dissent cautioned that "courts may now punish an owner or operator of an automobile, or a property owner, for simply tolerating the presence of a weapon or contraband within the limits of their proprietary interest."

Moving forward, one would hope that a further appeal is taken and the matter is review by the Massachusetts Supreme Court.

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December 24, 2011

Massachusetts Man Arrested in Mall Robbery

Randolph Police reported that they have arrested a man that was wanted in connection with the late-night robbery in the North Dartmouth Mall.

Michael Killory, 26, was arrested and charged with Armed Robbery while Masked; 4 counts of Assault with a Dangerous Weapon; and Use of a Firearm in Commission of a Felony.

According to police, Michael Killory allegedly exiting one of the dressing rooms at a store in the North Dartmouth Mall wearing a ski mask. He allegedly ordered the store employees on the floor and grabbed a deposit cash bag before running out the rear door.

Recent reports have suggested that one of the store employees followed him out the door and, when Killory took the ski mask off prior to getting into his car, the employee recognized him as someone he had worked with in the past at that same store.

Randolph Police reported that Michael Killory was arrested at the Outback Steakhouse in Randolph, where he was currently employed.

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December 23, 2011

Massachusetts State Trooper Arrested for Soliciting Prostitute

A Massachusetts State Police trooper was arraigned in Lynn District Court last week on Massachusetts Sex Crimes Charges for allegedly soliciting a prostitute in Lynn.

The trooper, who is reportedly a 27 year veteran with the Massachusetts State Police, was arraigned in Lynn District Court on charges including Sexual Conduct for a Fee, Failure to Stop for Police and Assault with a Dangerous Weapon.

According to the Lynn Police Department, the trooper was reportedly observed by Lynn Police who were conducted surveillance operations on prostitution in Lynn when they allegedly observed him and the woman inside his pickup truck.

The Essex County District Attorney's Office alleges that, when officers approached the trooper's truck, he put the truck in reverse and almost struck one of the officers.

The Massachusetts State Police Trooper, who was reportedly off-duty at the time of the alleged incident, has been suspended without pay indefinitely.

The Massachusetts Sex Crime of Sexual Conduct for a Fee involves the act of engaging or offering to engage in sexual conduct for a fee, and is punishable by imprisonment to the House of Corrections for up to 1 year.

By definition, 'sexual conduct' in Massachusetts may include intercourse, oral sex or any intrusion for someone's body into the genital or anal area of another person's body.

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December 14, 2011

Boston University Hockey Star Charged with Sexual Assault

trivino.jpgA hockey star from Boston University was arrested this past weekend on Massachusetts Sex Crimes Charges for allegedly sexually assaulting a female BU student.

Corey Trivino, who has already been drafted by the New York Islanders in the 2008 NHL Draft, was arraigned in the Brighton Division of the Boston Municipal Court on Monday on sexual assault charges including Assault with Intent to Commit Rape; 3 counts of Indecent Assault & Battery; and 2 counts of Breaking and Entering in the Nighttime.

According to the Boston University Police Department, Corey Trivino allegedly pushed his way into the room of a female BU student and groped her. BU police allege that Trivino was intoxicated at the time.

The Massachusetts Sex Crime of Assault with Intent to Commit Rape is an extremely serious felony charge that carries a sentence to state prison for any term of years up to life.

In order to prove the crime of Assault with Intent to Commit Rape, the government would have to show that the defendant assaulted the person with the specific intent to engage in sexual intercourse without their consent. Because the prosecutor would have to prove "intent" beyond a reasonable doubt, it is not necessarily an easy charge to prove unless the facts truly illustrate such a circumstance.

By contrast, the Massachusetts Sex Crime of Indecent Assault & Battery a touching that is done without the person's consent and where the touching involves an 'indecent act'. An 'indecent act' is defined as one that is offensive and most typically involves the touching of the private portions of the other person's anatomy.

A conviction for either crime of Assault with Intent to Rape or Indecent Assault & Battery, as with most Massachusetts sex crimes, would require the person to become subject to Sex Offender Registration.

Given the severe penalties involves in sexual assault charges, anyone charges with such crimes should Contact a Massachusetts Sex Crimes Lawyer.

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December 12, 2011

Harvard Grad Student Charged with Massachusetts Sex Crime

A graduate student from Harvard University was charged with Massachusetts Sex Crimes for allegedly sexually assault a woman on an MBTA train.

The Harvard graduate student is reportedly scheduled to be arraigned this morning in Cambridge District Court on one charge of Indecent Assault & Battery.

According to the MBTA Police, the man allegedly assaulted a woman on the red line train at near Kendall Sqaure on November 28. He later allegedly got off the train in Boston at Park Street.

The man was reportedly arrested last Friday after he was identified following a surveillance photo from the MBTA was posted in stations and on the internet.

The Massachusetts Sex Crime of Indecent Assault & Battery involves an 'indecent touching' without the person's consent. A conviction for this sex crime is punishable by imprisonment for up to 2.5 years in the House of Corrections or up to 5 years in state prison.

In addition, a conviction for the sex crime of Indecent Assault & Battery renders the person subject to Sex Offender Registration; as well as requiring him/her to submit a DNA sample to the state's database.

Contact a Massachusetts Sex Crimes Lawyer.

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December 9, 2011

Man Arraigned for Sexual Assault and Murder of Boston Woman

A man has been charged with Massachusetts Murder and Sexual Assault Charges in connection with the murder of Rosanna Camilo, whose naked was discovered in her Mattapan apartment two weeks ago.

Eldrick D. Broom, 27, of Boston, was arraigned this morning in the Dorchester Division of the Boston Municipal Court with 1st Degree Murder and Sex Crimes Charges.

The Suffolk County District Attorney's Office alleges that Brook, who once lived across the hall from Rosanna Camilo, had access to her apartment through one of her former roommates and attacked her two weeks ago. Following the alleged attack and sexual assault, he then allegedly strangled her to death. Her body was reportedly discovered with a cord around her neck.

Rosanna Camilo's half-naked body was discovered by her 16 year old daughter when she came home - and her infant 17 month old son was still in his crib.

Broom was arrested this morning in Roxbury after Boston Police allegedly linked his DNA to the crime scene.

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December 7, 2011

3 Boston Men Arrested for Armed Robbery in Newton

Newton Police have arrested three Boston men on Massachusetts Violent Crimes Charges in connection with the alleged robbery of a man and woman in Newton Centre last week.

Enemias Eliseo Ardon Valdez, 26, and Juan Francisco Rodenzo, 33, both of Allston, along with Marlon Rodenzo, 20, of Jamaica Plain, were all charged with Armed Robbery and Assault & Battery.

According to the Middlesex County District Attorney's Office, Newton Police officers were called to Cafe St. Petersburg in Newton Centre last Friday for a report that a man had been robbed at gunpoint. Newton Police allegedly located the three Boston men behind a liquor store on Beacon Street who allegedly matched the description.

All three men were arraigned in Newton District Court this week on Armed Robbery Charges, and were all held without bail pending a Dangerousness Hearing.

Armed Robbery in Massachusetts is punishable by imprisonment for any term of years up to life. In order to be convicted of armed robbery, the Commonwealth is required to prove, beyond a reasonable doubt, that the person:

  1. Was armed with a dangerous weapon;

  2. Applied actual force and violence to the victim or otherwise put him in fear by threatening words or conduct; and

  3. Took money or other property with the intent to steal it.
Boston Criminal Lawyer Lefteris K. Travayiakis has experience in defending persons charged with Massachusetts Crimes of Violence Charges, including Armed Robbery, and is available 24/7 for consultation.

To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Lawyer or call 617-325-9500.

December 6, 2011

Former Red Sox Manager Accused of Sexual Assault, Again

A former Boston Red Sox clubhouse manager, Donald Fitzpatrick, is again the subject of Massachusetts Sex Crimes allegations, this time involving two former Boston Red Sox clubhouse attendants, who claim they were sexually assaulted by him in the early 1990's.

One of the victims alleges he was sexually assaulted in 1991 in the Boston Red Sox clubhouse restroom; and the other victim alleges he was assaulted by Fitzpatrick when he was employed by the team as a clubhouse attendant.

Although Donald Fitzpatrick had passed away in 2005, the victims are still seeking compensation from the Boston Red Sox organization because he was employed by the team and the alleged assaults occurred on the team's property.

It has also been reported that 8 former clubhouse attendants had accused Fitzpatrick of sexual abuse. Notably, the Red Sox settled a lawsuit in 2003 with 7 other men who alleged that they were molested during spring training sessions in the 1970's. In that case, the Boston Red Sox settled for $3.15 million. Additionally, in 2002, Donald Fitzpatrick also reportedly pled guilty to Sex Crimes Charges.

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December 4, 2011

Boston Police Arrest Man Wanted for Nightclub Shooting

thumbnail.aspx.jpegThe Boston Police Department announced this weekend that they have arrested a man wanted on Massachusetts Violence Crimes Charges in connection with the shooting of 4 men outside a Boston nightclub on November 18, 2011.

Samuel Higginbottom, 23, fo Boston, was arrested this past Friday relative to this shooting, and is expected to be charged with 4 counts of Assault with Intent to Murder.

According to Boston Police, 4 men were shot outside the Venu club on Warrenton Street. All 4 men reportedly suffered non-life threatening injuries.

The Massachusetts crime of Assault with Intent to Murder is punishable by imprisonment to state prison for up to 10 years. Assault with Intent to Murder as an assault against another person with the specific or actual intent to cause the death of that person.

In many cases, prosecutors may actually avoid charging someone with this crime because it is not typically an 'easy' crime to prove. The crux of Assault with Intent to Murder is to prove a specific or actual intent to cause the death of another, and sometime the circumstances of a particular case do not necessarily reflect that intent.

In addition, an intent to even disable or ever scare off the person is not sufficient intent for the crime of Assault with Intent to Murder, not even an intent to inflict serious bodily harm.

In cases where prosecutors may be concerned about losing an Assault with Intent to Murder Charge, they might alternatively charge them with Assault & Battery with a Dangerous Weapon.

Every person charged with a crime is presumed innocent until proven guilty, and should Contact a Criminal Defense Lawyer so his/her rights can be explained and properly preserved.

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December 4, 2011

Occupy Boston Protester Arrested for Assault and Armed Robbery Charges

One of the Occupy Boston protesters was before a Boston Municipal Court Judge on Friday facing Massachusetts Crimes of Violence Charges.

Gary Williams, 24, of Quincy, was arrested on Thursday night when activists of Occupy Boston allegedly surrounded a Boston Police wagon and refused to let it move. The incident reportedly occurred when police officers confiscated a kitchen sink that protesters were trying to bring to the Dewey Square location where protesters have been camping out for months.

Williams was arrested and charged with Assault & Battery on a Police Officer.

At his arraignment in Boston Municipal Court, Suffolk County prosecutors also revealed that Gary Williams also had a pending criminal case out of Framingham District Court that charges him with Armed Robbery.

In that Framingham case, Middlesex County prosecutors allege that Williams robbed a man of $250 when that man tried to meet a woman at a hotel for sex. Krystal Cannizaro, of Quincy and Howard A. John, of Somerville, were also arrested and charged with Massachusetts Sex Crimes.

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December 2, 2011

Boston 1st Grader Investigated for Sexual Assault???

thumbnail.aspx.jpegA Boston Public Schools spokesperson confirmed to reporters that a Boston elementary school 1st grader is being investigated for an alleged sexual assault, apparently because the boy punched another boy in the groin.

Really?'ve got to be kidding me!

According to the child's mother, the other boy allegedly choked her son, and her son then in self-defense, then punched the boy in the groin. The mother of the child is apparently very concerned over the 'investigation', and countered that if that is the case, then the other boy should then also be investigated for Attempted Murder for choking her son.

It seems unbelievable that Boston Public School officials and/or the police are actually serious about possibly disciplining the child for the incident. What would be even more unbelievable is if school officials even go one step further and consider charging the child with a sexual assault.

One may wonder, what type of sexual assault charges might they be considering levying against the child? Perhaps Indecent Assault & Battery on a Child Under 14, a crime which could carry potential Registration as a Sex Offender?

I think most people would agree that, sometimes, kids will be kids, and school officials should be more concerned with trying to teach them right from wrong, instead of being so quick with subjecting children so young to school disciplinary, let alone criminal, liability.

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December 1, 2011

Cambridge Woman Charged with Murdering Father

A 29 year old Cambridge woman was formally charged with Murder in connection with the death of her father, Guy Verna, 62, also of Cambridge.

Gylene Verna was initially charges with Assault & Battery with the November 20th incident that involved her father, Guy Verna, who was later pronounced dead at Cambridge City Hospital.

This past week, Gylene Verna was arraigned in Cambridge District Court, charged with First Degree Murder.

The Middlesex County District Attorney's Office alleges that Gylene Verna and her father had an argument that became physical when he struck her. Cambridge Police say that Gylene Verna then allegedly squeezed his neck.

The Massachusetts Chief Medical Examiner's Officer reportedly determined the cause of death to be asphyxiation by manual strangulation.

If the evidence demonstrates that Gylene was first attacked, then she may very well have a Defense of Self-Defense.

Under Massachusetts law, a person may use reasonable force to defend himself from physical attack. At trial, once the defendant has raised the defense of self-defense, it is then the prosecution's burden to prove, beyond a reasonable doubt, that the defendant did not act in self-defense.

However, even where a person is entitled to use self-defense, the person may not use any more force than is reasonably necessary in all of the circumstances to defend himself. The question the jury will have to face in this case if self-defense is raise, is whether Gylene's actions in defending herself were reasonable.

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