July 8, 2013

Evidence of Gang Affiliation in Massachusetts Criminal Jury Trials

In Commonwealth v. Akara, the Massachusetts Supreme Judicial Court considered whether evidence of a defendant's "gang affiliation" was properly admissible in his murder trial on a theory of joint venture.

In that case, the defendant was charged as a joint venturer in the murder of Philip Gadsden at an MBTA station.

At trial, the government introduced evidence of the defendant's gang affiliation through the testimony of a Boston Police Officer. The officer testified that the Boston Police Department classifies any group or association of four or more people who call themselves by a group name and have various identifying signs, symbols or clothing. At trial, witnesses testified that the defendants were associated with a particular gang, but there was no evidence of any specific criminal activity by this gang other than alleged vandalism.

Notably, there was also no evidence of any motive for the murder or that the victim was associated with any "rival" gang.

Gang evidence may be admissible in criminal trials to show motive or to establish "joint venture". Although the gang evidence in this case did not go to establish motive, the Massachusetts Supreme Court held that it was properly admitted to establish evidence of the defendants' relationship, which in turn bolstered the prosecutor's theory of joint venture.

This is not to say that all evidence of gang affiliation is automatically admissible in criminal trials. Defense attorneys will make efforts to exclude gang evidence at trial, particularly where a defendant's purported gang membership is so prejudicial that it might suggest to a jury that he has a propensity to crime of violence.

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July 6, 2013

Can Police Use a Drug-Sniffing Dog Outside a Home Without a Warrant?

In the recent decision in Florida v. Jardines, the United States Supreme Court considered whether police could lawfully use a drug sniffing dog to search a the curtilage of a person's home.

In a unanimous decision, the United States Supreme Court held that law enforcement must apply for and obtain a search warrant before they can enter the private property of a person for the purposes of gathering evidence of a crime.

In this particular case, after receiving a tip, the police conducted surveillance of the defendant's home. Officers eventually approached the house with a drug-sniffing canine dog, who sniffed the defendant's porch area and front door. After the canine signaled positive for drugs, the police used that information and applied for a search warrant and eventually arrested the defendant for drug trafficking.

In reaching its decision, the United States Supreme Court reiterated that when government obtains information by physically intruding on persons or their homes, a "search" within the constitutional sense has occurred. In this particular case, search occurred that required the police to first obtain a search warrant supported by probable cause.

The United States Supreme Court grounded its decision, however, based on the actions of the police officers physically intruding on the defendant's property (and not because they had necessarily used a drug-trained dog). Quite simply, because the officers invaded the defendant's property to gather evidence, a search requiring probable cause was required.

If the officers didn't go inside, what are the property boundaries that are protected?

The U.S. Supreme Court regards the area "immediately surround and associated with the home", or "curtilage", as part of the home itself when analyzing any searches for constitutional purposes. While there could always be some grey areas in determining the curtilage of a home, in most cases, the curtilage or boundaries of the home are clearly marked.

Most certainly in this particular cases, the officers' actions in going up to the porch area of the home and just outside the front door was very clearly an intrusion to the home's property and curtilage, and the officers needed to have obtained a warrant before "searching", even with a drug-trained canine.

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July 3, 2013

Speedy Trial Issues in Massachusetts Criminal Cases

The Massachusetts Rules of Criminal Procedure establish time limitations as to when a criminal defendant is charged and to be brought to trial, and these protections are guaranteed in the United States Constitution and the Massachusetts Declaration of Rights.

But in many criminal cases, there are a variety of delays that often occur. Delays can result from simple discovery or evidentiary issues; witness issues; or in some cases, neglect.

By way of background, defendants are protected from potential criminal charges through the Statute of Limitations or where the initiation of criminal charges are delayed. By statute. Massachusetts General Laws Chapter 277, Section 63, many felonies must be charged within 10 or 15 years from the date of the commission of the alleged crime. The exception is murder, however, for which there is no statute of limitation. By contrast, most misdemeanor offenses must be charged within 6 years from the alleged commission of the crime.

Generally (with some exceptions and variations), the statute of limitations begins to toll (starts running) upon the completion of every element of the criminal offense.

Against this backdrop, a defendant's speedy trial rights, more specifically defined in Rule 36 of the Massachusetts Rules of Criminal Procedure, establish time limits for when a case should proceed to trial. Because criminal cases can vary in complexity, there are different time limits for cases that are non-complex (drug cases); somewhat complex (cases that might involve forensic evidence or unique evidentiary issues; and complex (murder, rape, etc.).

Rule 36 essentially mandates that all criminal defendants are guaranteed a trial within 12 months from arraignment. If the 12 months period expires without a trial, a defendant may petition the court to have the charges dismissed, which would bar prosecution for this offense.

However, simply because a criminal case went beyond the 12 month period without a trial does not guarantee that the case will be dismissed. The government may rebut the motion to dismiss by offering evidence that certain delays in the case were excusable.

Excusable delays or "excluded periods" of time can arise from any circumstances that was not the result of the conduct of the prosecution; or where those delays benefited the defendant or he agreed to such delays. A delay benefitting the defendant and that would thereby be 'excluded' from the computation for purposes of speedy trial issues include: unavailability of a witness or even the defendant; competence to stand trial; continuances that were granted by the court that were at the request of the defendant or upon the court's own motion; and some other extraordinary circumstances.

So when does the clock start ticking for purposes of speedy trial issues?

Under Article 11 of the Massachusetts Declaration of Rights, the clock starts ticking when a criminal complaint issues against the defendant.

Courts scrutinize speedy trial violations very carefully and, more often in not, the calculations do not benefit the defendant, particularly when the "excluded time period" is calculated. Nonetheless, extraordinary circumstances do present themselves in some cases.

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June 21, 2013

Medford Northeastern Student Charged with Boston Attack on Women

A Northeastern student was recently charged with various Massachusetts Crimes of Violence against two women in Boston in separate incidents.

The student, who is from Medford, was charged in Roxbury District Court last week with Assault with Intent to Rape, Armed Robbery, and Assault & Battery with a Dangerous Weapon. In this incident, the student is alleged to have jumped out of bushes and attacked a woman, threatening to rape her while trying to remove her clothes. The woman reportedly suffered wounds to her hand and her leg and reported that the student used a knife in this attack.

In another incident occurred later that same evening, the student allegedly knocked another woman over and tried to rape her. He was charged in connection with that incident in West Roxbury District Court with Assault with Intent to Rape.

Although these attacks are technically 'separate' incidents, the prosecutor may seek to "join" the offenses and try them together as one single scheme.

Generally speaking, evidence of a separate crime cannot be introduced at a defendant's trial for another crime in order to show a propensity for criminal conduct, but there are some exceptions. Smart prosecutors may seek to join the two incidents by asserting to the court that they are related by way of common scheme or pattern, and it would be in the interests of judicial economy to have the two matters tried at one trial.

Among the factors a judge would consider for joinder of the offenders would be the similarity of the alleged conduct, i.e., common scheme or pattern; and whether the same witnesses would be testifying at both trials.

Although allegations of random sexual attacks often turn on the sufficiency of the identification of the alleged perpetrator, in each of these cases, the police reportedly had video surveillance footage of the student at or near the alleged incidents.

Not having scene the surveillance video or still images, any competent defense attorney would certainly want to thoroughly review the integrity of the images and determine if there are then any challenges to the defendant's identification.

Assault with Intent to Rape in Massachusetts is punishable by imprisonment to state prison for life or for any term of years. A conviction would further subject the defendant to other collateral consequences, including mandatory Sex Offender Registration.

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June 14, 2013

Boston Man Charged with Provincetown Rape

A Boston man was charged this past week with various Massachusetts Sex Crimes Charges involving the alleged sexual assault of a woman in Provincetown on Cape Cod.

The defendant was charged in Orleans District Court with Rape, Indecent Assault & Battery and Distribution of Drugs.

Rape in Massachusetts is defined as the natural or unnatural sexual intercourse with another person by force and against that person's will, and is punishable by up to 20 years in state prison.

A rape conviction carries other several collateral penalties as well, including Sex Offender Registration and the possibility of lifetime community parole and/or commitment as a sexually dangerous person.

The success of a defendant's defense when charged with any crimes of alleged sexual assault can depend on a number of factors, including whether there were any witnesses; the credibility of the complainant; the results of a SANE exam or an evidence collection kit; and the existence of any forensic evidence, such as DNA.

Not all rape charges result from "forced" sexual conduct. In many cases, there may be a defense of consent or even a defense of mistaken identification.

Unlike other 'average' crimes, rape cases often involve intricate legal and scientific issues, including an understanding of forensic evidence and other issues, such as first complaint testimony; prior sexual acts of the complainant; and cases involving late disclosure or child victims.

For those reasons, a person charged with any sex crimes should take great care with choosing the right criminal defense attorney and consider someone who has experience in defending sex crimes.

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May 21, 2013

Lowell Father Charged with Assaulting 2 Month Old Son

A Lowell father was arraigned in Lowell District Court last week on Massachusetts Violent Crimes Charges for allegedly assaulting his two month old infant.

The defendant, Christopher Berry, was formally arraigned on Aggravated Assault & Battery charges, but that charge could be upgraded if the child succumbs to its injuries. He was held on $500,000 cash bail.

According to the Middlesex County District Attorney's Office, the defendant was caring for the infant when, over apparent frustration, allegedly violently shook the baby for as many as 30 seconds. Prosecutors believe that the infant suffered grave brain injuries and it is not known at this time if it will survive. Prosecutors do not believe the child's injuries are consistent with accidental trauma.

The Massachusetts Violent Crime of Aggravated Assault & Battery is defined as an intentional touching, without justification, that results in serious bodily injury. Under the law, 'serious bodily injury' is defined as injury that results in permanent disfigurement, loss or impairment of a bodily function or organ, or a substantial risk of death.

A conviction for the crime of aggravated assault & battery is punishable by up to 5 years in state prison.

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May 16, 2013

Massachusetts Pastor Charged with Rape of a Child

A Lynn priest was arraigned in Lynn District Court on various Massachusetts Sexual Assault Charges for allegedly sexually molesting over several years.

The defendant, Daniel Lopez, was a priest at the Vida Real Internacional Congregation in Lynn. The Essex County District Attorney's Office alleges that between 2004 and 2008, he sexually assaulted several children who were younger than 9 years old. During that time, he is also alleged to have raped one of those children.

The defendant was arraigned in Lynn District Court and charged with several counts of Indecent Assault & Battery on a Child Under 14 and Rape of a Child by Force.

The Massachusetts Sex Crime of Rape of a Child is the sexual intercourse with a child under 16 where the child is compelled to engage in such acts by force. A conviction for this sex offense would subject a defendant convicted of this crime to Sex Offender Registration; require that he submit his DNA to the state's DNA database; possible community parole supervision for life; and could also serve as a predicate offense for civil commitment as a "sexually dangerous person".

A conviction to Rape of a Child by Force carries a potential prison sentence of any term of years up to life.

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April 20, 2013

2nd Suspect Charged with Massachusetts Murder in Dorchester Stabbing

A second defendant was charged with Murder in connection to the October stabbing death of Cherby Lajoie in Dorchester, Massachusetts.

The female defendant, Tarayiah Hunt, 21, of Dorchester, was formally arraigned in the Dorchester Division of the Boston Municipal Court recently and charged with murder.

The victim in this case, Cherby Lajoie, was found on on Charles Street on October 6th just after 1:00 a.m. suffering from 37 stab wounds and was pronounced dead at the scene.

According to the Suffolk County District Attorney's Office, this defendant was allegedly identified in connection with this murder through DNA evidence at the crime scene and nearby surveillance video. Prosecutors also represented that police were provided with an anonymous tip identifying this defendant by her nickname, "Tip".

The other person first charged with murder on this case is a 15 year old juvenile, and he is the person prosecutors allege actually stabbed the victim.

In cases where the crime is committed by one actor, others may also be charged with the crime under the principle of aiding and abetting or joint venture. Under this theory of criminal law, a person may be guilty of a crime even if he did not personally commit the crime, but somehow aided and abetted in its commission.

In a joint venture, a person is guilty of the crime as a joint venturer if he intentionally participates with another in the commission of a crime as something he wishes to bring about and seeks by his actions to make it succeed.

In order to prove a defendant guilty of a crime as an aider and abetter, the government must prove that the defendant (1) was present at the scene of a crime; (2) had knowledge that another person intended to commit the crime and shared that person's intent; and (3) aided or assisted the commission of that crime; or by agreement, was willing and available to assist the other person in carrying out that crime if necessary.

In some circumstances, the government would not have to prove that the defendant was even present at the scene of the crime. In this scenario, the government would have to prove that the defendant actually aided in the commission of the crime or was an accessory before the fact of the crime by counseling, hiring or otherwise procuring the crime to be committed.

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April 20, 2013

Lowell Fugitive Arrested and Charged in 2011 Home Invasion

A man who used to reside in Lowell was arrested on a fugitive warrant in New York and returned to Massachusetts to face Violent Crime Charges relative to a 2011 home invasion in Lowell.

The defendant, Samuel Merced, 22, was arraigned in Lowell District Court and charged with Home Invasion, Assault & Battery, Intimidation of a Witness, Malicious Destruction of Property and Violation of Abuse Prevention Order.

According to the Lowell Police Department and the Middlesex County District Attorney's Office, the defendant allegedly assaulted his pregnant ex-girlfriend in the summer of 2011, grabbing her by the jaw and threatening her with a knife. At the time, there was reportedly an active restraining order in place.

When officers responded to the scene, they allege that they approached the defendant, who gave them a false name and resisted arrest. He was also reportedly on probation at the time of the offenses prior to defaulting on the case when he allegedly fled the state.

Although the issuance of a restraining order against a person is a civil action (and not criminal), an alleged violation of an issued restraining order is a criminal offense.

The criminal offense of Violation of Restraining Order is punishable by up to 2.5 years in the House of Corrections. Additionally, a person convicted for this offense must also complete a certified batterer's intervention program. Completion of a batterer's program is mandated by statute and can only be waived if the court issues findings detailing the reasons why the batterer's program should not be ordered; or the batterer's program otherwise determines that the defendant is not suitable for intervention.

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April 17, 2013

Framingham Man Charged in Rape of 15 Year Old Girl

A 19 year old Framingham man was arrested on various Massachusetts Sex Crimes Charges for allegedly raping a 15 year old girl after she got off the school bus.

The defendant was charged with Aggravated Rape of a Child, Indecent Assault & Battery and Kidnapping.

According to the Middlesex County District Attorney's Office, the defendant allegedly accosted the girl after she got off the school bus and forcibly led her into the woods at knifepoint where he raped her. Prosecutors do not believe that the girl knew the defendant and that the incident appeared to be a random attack.

The Massachusetts sex crime of Rape of a Child is the act of compelling a child under 16 by force or against his/her will to engage in sexual intercourse, and is punishable by commitment to state prison for any term of years up to life.

In addition to a lengthy prison sentence, a conviction of Rape of a Child, as with other sex offenses, would require the defendant to register as a sex offender and submit his DNA to the state's DNA database.

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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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