March 2013 Archives

March 27, 2013

Massachusetts Police Make (Un)Lawful Gun Arrest in Stoughton?

A Massachusetts State Police Trooper pulled over two Boston men in Stoughton late Sunday night, ultimately arrested the passenger on Massachusetts Gun Crimes Charges.

The passenger, Brian Marsh, 45 of Hyde Park, was arrested and arraigned in Stoughton District Court for unlawful possession of a firearm and unlawful possession of drugs.

According to the Massachusetts State Police, a trooper on his way home from a paid detail after 11:00 p.m. Sunday night observed a car with an invalid inspection sticker. Attempted to pull the car over for this violation, the trooper alleged that the vehicle accelerated to speeds of approximately 90 miles per hour.

When the car finally pulled over, the trooper approached the driver and could smell an odor of marijuana. The operator of the car, Jason Brewer of Roxbury, allegedly admitted he was unlicensed and could not locate the registration for the car. The trooper additional spoke with the passenger of the, who allegedly made inconsistent statements concerning the who owned the vehicle.

The Massachusetts State Police trooper, based on inconsistencies of the passenger's stories, ordered him out of the car and conducted a pat-frisk. As a result of the frisk, state troopers recovered an unloaded revolver on the passenger.

The fact pattern in this incident is one that could potentially raise several constitutional challenges by way of a motion to suppress evidence. For instance, was the officer's stop of the car even lawful in the first place? The trooper is going to say that it was because he saw the car traveling with an expired inspection sticker...but are we really going to believe that? How did he see it? At 11:00 p.m. at night while the car was traveling down the road and through his rear view mirror?

Secondly, there is a serious concern whether the trooper's exit order and pat-frisk of the passenger was even lawful. Under Massachusetts law, before a police officer in a routine traffic stop may order a person out of the car, he must have a reasonable belief that his safety or the safety of others is in danger. I also don't believe that simply because the passenger's story was inconsistent was enough to justify the exit order. There must be something specific that would give the officer concern that his safety was in danger, and hunch is not enough.

Additionally, with regard to pat frisks, Massachusetts law considers even a limited search for weapons as a serious intrusion against a person's constitutional rights. Unless there is probable cause to arrest, a search will only be justified if there is both a reasonable suspicion of criminal activity and a reasonable apprehension of danger.

If the prosecutor cannot meet his burden in establishing that the exit order and subsequent pat frisk was justified pursuant to constitutional standards, then any evidence obtained as a result should be suppressed or excluded from the case.

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March 25, 2013

Braintree Karate Instructor Charged With Sexual Assault Against Student

A Braintree karate instructor was arrested by the Braintree Police Department this past weekend on Massachusetts Sex Crimes Charges involving one of his students.

The instructor was arraigned in Quincy District Court on charges including Indecent Assault & Battery on a Child Under 14.

According to the Braintree Police Department and the Norfolk County District Attorney's Office, the karate instructor was giving a 10 year old girl a private lesson when it is alleged that he pulled down her pants. The incident is alleged to have occurred in December.

The karate instructor was arrested by the Braintree Police Department after he reportedly went to the police station voluntarily this past Saturday to speak with detectives.

Defending allegations of this sort is obviously very sensitive, particularly where a young child is involved and where there is likely no other evidence other than the word of the complainant. Although it is our human nature to immediately believe a child victim who reports allegations of this type, numerous studies have suggested that, in many cases, children who report sex crimes either fabricate, exacerbate or misinterpret the purported criminal conduct.

The Massachusetts Sex Crime of Indecent Assault and Battery on a Child Under 14 is a felony punishable by up to 2.5 years in the House of Corrections or up to 10 years in state prison. As with most sex crimes, a conviction for this offense would require the defendant to register as a sex offender and submit his DNA to the state's DNA database.

Given the sensitive nature and extreme consequences involving Massachusetts sex crimes allegations, anyone charged with such crimes should immediately consult with a criminal defense attorney who has particular experience in defending these types of cases.

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March 16, 2013

Massachusetts Law on Improper Storage of a Firearm and the Second Amendment

The Massachusetts Supreme Judicial Court recently decided a case involving a challenge to the constitutionality of a statute that criminalizes the Improper Storage of a Firearm.

G.L. c. 140, section 131L(a), which criminalizes the improper storage of a firearm that is not within the immediate control of the owner. By law, a firearm that is not within the immediate control of its owner must either be kept in a locked container equipped with a trigger lock.

In the case of Commonwealth v. John McGowan, the defendant was a licensed to carry firearms. He kept the firearm, however, loaded in his bedside table.

One evening, he got into an argument with his roommate, who took the firearm and tossed it outside in the bushes. The defendant called 911 and when police responded, they found the gun in the bushes. He was later charged with Improper Storage of a Firearm.

The defendant moved to dismiss the charges on the basis that the statute was unconstitutional as a result of the United States Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago.

The United States Supreme Court in Heller held that the Second Amendment to the United States Constitution protects the right of citizens to possess a handgun in the home for the purpose of self-defense. In so doing, the court ruled that the District of Columbia's ban on handguns was unconstitutional.

In McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right, as explained in Heller, was incorporated into the Fourteenth Amendment and was therefore applicable to the states.

In a previous case of Commonwealth v. Runyan, the Massachusetts Supreme Judicial Court held that although a complete ban on the possession of all firearms would not be constitutional, Massachusetts is legitimately able to limit that right by requiring that all firearms that are not in the immediate possession or control of the owner or user be properly stored.

The question then became, does requiring that a firearm within the home be properly stored or locked infringe upon a citizens' constitutional right of self-defense?

The Massachusetts Supreme Judicial Court said no. Although a person's right to exercise self-defense might be delayed as a result of having the firearm in a locked container or equipped with a trigger lock, the requirement, whose purpose is to prevent accidents, does not invalidate the storage requirements.

The court explained that because the requirement that a firearm not within the immediate control of the owner/user be locked or equipped with a trigger lock is designed to prevent unauthorized access to the firearm, the statute is consistent with the right to bear arms of the Second Amendment in self-defense in one's home.

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March 14, 2013

Massachusetts Fugitive Arrested for Murder of Boston Father

A Massachusetts man wanted by the Boston Police Fugitive Unit was arrested on Murder Charges in connection with the death of a Boston man on Valentine's weekend in Mattapan.

The defendant, Kewon Kelley, was arraigned in the Dorchester Division of the Boston Municipal Court on murder and firearms charges.

According to the Boston Police and Suffolk County District Attorney's Office, the victim, Rawshawn Lamont Few, 27, was shot in Mattapan on February 17, while he was at a party. Prosecutors and police believe that during an argument, the defendant pulled out a gun and shot Few.

The defendant was arrested in Brockton by Boston Police, U.S. Marshalls and members of the Brockton Police Department.

Interestingly enough, another man was suspected by Boston Police as having been responsible for this murder. Osmell Odena had previously been charged with firearms charges after his car was allegedly seen speeding from the area of the shooting. Prosecutors are now saying that Osmell Odena is not connected in any way to this incident.

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March 12, 2013

Cambridge Teenager Arrested for Attempted Rape of Woman in Watertown

A Cambridge teenager was arrested on Massachusetts Sex Crimes Charges for allegedly attacking a woman in Watertown as she walked to her home after getting off the bus.

Watertown Police report that the woman, who had just gotten off the bus on Belmont Street, was attacked by a teen wearing a Halloween type 'skull' mask. The woman reported that the teen struck her in the head several times and demanded she give him whatever she had. The teenager then told the woman to take off her clothes.

Police reportedly identified the teenager, who is 16, from video surveillance footage from nearby business. Watertown Police also secured a search warrant for his home, in which they recovered the woman's cell phone and credit cards.

The teenager was formally charged with Armed Robbery While Being Masked; Assault & Battery; Kidnapping; and Assault with Intent to Rape.

The Massachusetts Sex Crime of Assault with Intent to Commit Rape is the assault of another with the intent to engage in sexual intercourse without consent, and is punishable with imprisonment for life or for any term of years.

In addition to any potential prison sentence, a conviction for this sex crime would also subject the defendant to mandatory sex offender registration; require him to submit his DNA to the state's DNA database; and could subject him to a term of community parole supervision for life.

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March 8, 2013

Massachusetts 15 Year Old Charged with Attempted Murder

A 15 year old from Attleboro is charged with several Massachusetts Violent Crimes for allegedly kidnapping and attempting to drown and stab a 63 year old woman.

The teenager was arraigned this week in Taunton District Court on several charges, including attempted murder; kidnapping; home invasion; assault with intent to murder; aggravated assault & battery; and intimidation of a witness.

According to the Bristol County D.A.'s Office, the defendant broke into the woman's home around 10:00 p.m. Wednesday and a scuffle ensued, during which time the victim was slashed about her body. Several hours later, the woman was reportedly taken to a pond near Seekonk where the teenager allegedly tried to drown her.

Unable to accomplish the drown, the teenager then allegedly drove the woman to another location where he tried to asphyxiate her by clogging the vehicle's tailpipe. While he was doing this, the woman was able to break free from her restraints and drove the car to the hospital.

The crime of Attempted Murder in Massachusetts is punishable by up to 10 years in state prison. In order to prove the crime of attempted murder, the prosecutor would have to establish (1) a specific intent to commit the crime of murder; (2) an overt act towards committing the crime of murder and that the defendant was reasonably close to actually carrying out that intent; and (3) that the defendant's act did not result in the crime being completed.

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March 6, 2013

Lawrence Police Officer Charged with Sexual Assault of a Child

A city of Lawrence Police Officer was recently arrested on Sex Crimes Charges arising out of an incident in Florida.

Lawrence Police Officer Carlos Gonzalez was arrested last week by Andover Police while attending classes at the Massachusetts School of Law on sex crimes allegations that he committed a sexual assault on a child between the ages of 12 and 18; and serving alcohol to a person under 21.

Detectives from Florida traveled to Massachusetts to issue the arrest warrant on the Lawrence police officer. He was arraigned in Lawrence District Court on a fugitive from justice warrant.

A conviction for most sex crimes will have everlasting and life altering consequences. Even if a defendant can escape jail time from a sex offense conviction, he would not be able to escape the Sex Offender Registration requirements.

There are 3 levels of sex offender classification: Level 1, considered low risk to re-offend and for which there is no dissemination to the public; Level 2, considered to be a moderate risk to re-offend and for which there may be some dissemination to the public; and Level 3, considered to pose a high risk to re-offend and for which there is extensive dissemination to the public.

How long a person convicted of a sex offense would have to continue to register depends on a number of factors, but generally, those convicted of a single sex offense and most juveniles will typically be required to register for 20 years from the date of conviction or release from custody.

A sex offender may apply for termination of the registration requirements 10 years from teh date of conviction or release from custody, but must prove, by clear and convincing evidence, that he/she has not committed any new sex offenses and is not likely to pose a danger to the community.

Those persons who have 2 or more sex offense convictions, however, or those that are considered to be 'sexually violent predators', would likely be subject to lifetime registration.

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March 3, 2013

New Bedford Man Arraigned for Murder in Death of 9 Month Old Baby

A New Bedford man was charged this past week with Massachusetts Murder Charges in connection with the death of a 9 month old infant.

The defendant, Ethen Harrison, was arraigned in New Bedford District Court this past week on the upgraded charge of murder. He had previously been arraigned on various assault charges.

According to the Bristol County District Attorney's Office, the defendant allegedly assaulted the infant in the apartment he shared with the child's mother. Although the two were reportedly living together, the defendant was not the biological father of the child.

New Bedford Police Officers reported that the defendant made some alleged statements following his arrest, including that he allegedly admitted that the infant because fussy and that he caused the child to hit its head on the floor. The child's mother reportedly left the child alone with the defendant.

The infant was found to have succumbed to blunt force trauma to the head and had a large blood clot on its brain.

Defendant's who are the subject of any criminal investigation, particularly those involving criminal charges as serious as murder, should think twice about discussing any part of the allegations with police prior to engaging the representation of a criminal defense lawyer.

There is a reason why police are required to read to a defendant his Miranda rights and specifically advise him that he has a constitutional right to consult with an attorney and that any statements he makes may be used against him in a court of law.

Although there are mechanisms to challenges whether any alleged statements were properly and constitutionally elicited, suppressing or excluding any admissions or inculpatory statements is extremely difficulty, particularly if the interview was video recorded. Typically, where a defendant has made inculpatory statements and the proper warnings were given, courts are reluctant to rule that the statements were not intelligently, knowingly and voluntarily made in light of the defendant's constitutional rights.

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March 1, 2013

Two Boston Men Charged with Murder of Roxbury Man on MBTA Platform

Two Boston men were arraigned on Massachusetts Murder Charges involving the shooting death of Courtney Jackson at the Dudley MBTA Station while he was waiting for the bus.

The two defendants, Brian Cooper and Jamel Bannister, were each arraigned in the Roxbury Division of the Boston Municipal Court on charges of Murder and Gun Possession Charges.

According to the Suffolk County District Attorney's Office, after an argument, the defendants pointed a gun at Courtney Jackson who was standing amongst a crowd of people at the Dudley MBTA Station. At the arraignment of the defendant, the prosecutor also represented that the entire incident was allegedly caught on video.

Two Boston Police Officers who were working a detail nearby the station alleged chased and arrested the two defendants shortly after the shooting. One of them was allegedly found to be in possession with the murder weapon.

Murder in Massachusetts is defined as the unlawful killing of another with either malice or in the commission or attempted commission of a felony, and is punishable by life imprisonment.

For example, 1st degree murder and those killings that occur with deliberate premediation and malice; with extreme atrocity or cruelty and with malice; or in the commission or attempted commission of a felony. An unlawful killing that does not meet these three criteria is murder in the 2nd degree.

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