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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February 12, 2013

Boston Man Charged for Murder After Asthma Death


A Boston man, from Dorchester, was charged with Murder after the man he allegedly shot at, but missed, died from an asthma attack.

The defendant was arraigned this week in Suffolk Superior Court and charged with Murder, Armed Assault to Murder, and Unlawful Possession of a Firearm.

According to Suffolk County prosecutors, the defendant allegedly started shooting at three men. One of the men shot at was Kelvin Rowell, 40 years old. Although Rowell was able to get away safely and was not hit by any of the bullets, he apparently suffered an asthma attack and was unable to breathe, falling into a coma shortly thereafter and eventually dying.

The Massachusetts Office of the Medical Examiner has ruled the death a homicide.

What is interesting in a murder case such as this is that the victim was never struck with a bullet, i.e., his death was not a direct result of having been shot, or shot at all.

So how is the Suffolk County District Attorney's Office able to charge this defendant with murder?

Prosecutors are likely proceeding with murder charges on the theory that the defendant's actions or conduct was the proximate cause of the defendant's death. Under Massachusetts criminal law, "proximate cause" is established when the conduct of the defendant sets forth into motion a chain of events that result in death.

In other words, the prosecution is likely theorizing that the defendant's conduct in shooting at the defendant, despite missing, by the natural and continuous sequence of events, i.e., the victim suffering an asthma attack, caused the death. Put different, without the unlawful conduct of shooting at the victim, he would not have suffered an asthma attack and would not have died.

Although the defense will surely examine this and other available defenses in this case, it will surely be very interesting to see how this specific issue is addressed and ultimately handled.

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January 7, 2013

Malden Teenager Charged with Rape of Child


A Malden teenager has been arrested and charged with Massachusetts Sex Crimes Charges for allegedly sexually assault a young child.

The teenager, Robert Guevara, 18, was arrested by the Malden Police Department last week on two counts of Aggravated Rape.

According to the Malden Police Department and the Middlesex County District Attorney's Office, the defendant allegedly sexually assaulted the child on various dates between February 2011 and December 2012. Malden Police allege that the teen had access to the child when his mother was entrusted with babysitting the child.

Following his arraignment in Malden District Court, the defendant was ordered held on $100,000 bail with strict conditions should that be posted.

The Massachusetts Sex Crime of Aggravated Rape is defined as rape with the additional element that the acts resulted in serious bodily injury or were committed during the commission or attempted commission of another crime.

The potential penalty upon conviction for Aggravated Rape is imprisonment to state prison for any term of years up to life. A conviction for this sex crime would also require the person to Sex Offender Registration; submit his DNA to the Massachusetts DNA Database; and could subject him to a term of community parole supervision for life.

In many cases involving allegations of rape of child, there are several issues that should be explored in the defendant's defense, including the medical records and examinations of any (or lack thereof) physical abuse/damage, as well as the veracity of the purported victim's allegations.

Some studies that have been conducted, for example, suggest that purported child victims of rape are, for whatever reason, inclined to fabricate or at least embellish the accounts. Children are also more susceptible to influence, and so the police interview process (which is usually video recorded for this reason) should be scrutinized very carefully for any such undue influence.

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January 2, 2013

Two Boston Men Arrested for Shoplifting in Braintree


Two men from Dorchester - Boston were arrested for Massachusetts Theft Crimes Charges last week for allegedly stealing from two stores at the South Shore Plaza in Braintree, Massachusetts.

Johnny Hippolite, 30, and Gerald Blain, 35, were with arrested and charged with Shoplifting and Receiving Stolen Property Over $250.

According to the Braintree Police, one was allegedly observed stealing two bottles of cologne while the other man served as a lookout. Police also allegedly recovered over $400 of stolen merchandise from Macy's.

The Massachusetts Theft Crime of Shoplifting is the intentional taking of merchandise offered for sale by a merchant with the intention of depriving the merchant of its possession without paying for its value. A first offense Shoplifting charge only carries a penalty of $100 and a fine of $500 for a second offense. A third conviction for shoplifting carries the potential for imprisonment for up to 2 years in the House of Corrections.

By contract, the Massachusetts Theft Crime of Receiving Stolen Property is the receiving or aiding in the concealment of stolen property knowing it to have been stolen. The crime of Receiving Stolen Property carries a potential penalty of up to 2.5 years in the House of Corrections for a first offense; and up to 5 years in state prison for a second or subsequent offense (or of the value of the items stolen exceeds $250).

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December 25, 2012

Passenger Entering Logan Arrested for Drug Trafficking After Cocaine Found in Wheelchair


A man entering attempting to enter the country through Boston's Logan Airport was arrested for Massachusetts Drug Crimes Charges after 4 kilo's of cocaine were found in his wheelchair.

According to the Suffolk County District Attorney's Office, the passenger had a cast on his leg and was in a wheelchair, but airport security suspected he did not need the wheelchair for any medical reason. Security x-rayed the wheelchair and also drilled a hole in one of the chair's tire, revealing approximately 4 kilograms of cocaine hidden in the tires and frame of the wheelchair.

Prosecutors also reported that the man was taken to Whidden Memorial Hospital and his leg with the cast was x-rayed. Doctors then told police that the man allegedly did not need a cast.

Drug Trafficking of 200 grams in Massachusetts or more of Cocaine is punishable with commitment to state prison for a term of not less than 15 years and up to 20 years.

The defendant, Emmanuelli Rojas-Moraza, of Puerto Rico, was arraigned last Friday in East Boston District Court and was held on $45,000 bail.

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December 23, 2012

Massachusetts Supreme Court Upholds Murder Dismissal of Juvenile Lynn Defendant


In a recent case, the Supreme Judicial Court upheld the dismissal of a juvenile defendant's Murder dismissal, but also establishing new parameters in murder cases involving juvenile defendants who are to be tried as adults.

In the case of Commonwealth v. Javon Walczak, the Massachusetts Supreme Judicial Court considered whether the trial court properly dismissed an indictment against the juvenile defendant who was charged with Second Degree Murder. The prosecution had presented evidence that the defendant, who was 16 at the time, stabbed the victim (Rene Valdez) when the victim and an accomplice tried to rob him.

Following the defendant's arraignment in the Superior Court, a judge dismissed the indictment because the Commonwealth failed to present sufficient evidence to the grand jury establishing the offense of second degree murder.

Although the Massachusetts Supreme Judicial Court reversed the trial judge's findings and held that there was, in fact, probable cause for the charge of second degree murder, the court also held that the grand jury should have been instructed by the prosecution on the elements of murder, as well as the legal significance of mitigating circumstances raised by the evidence.

The Court specifically held that:

"In any case where the Commonwealth seeks to indict a juvenile for murder, the grand jury must be properly instructed by the prosecutor on the elements of murder, and if there are mitigating circumstances and defenses...raised by the evidence, the grand jury must be instructed as to that as well."

The basis for the court's ruling is that, unlike other crimes, a murder indictment against a juvenile adds significant other consequences, including the case being tried in the superior court, whereas for any other crime he would be tried in the juvenile court.

Presently, the Massachusetts criminal justice system treats juvenile defendants in one of three ways:

If a juvenile is charged by way of a complaint, he may be committed to the Department of Youth Services until the age of 18;

If a juvenile is charged by way of an indictment, he may be classified as a youthful offender and face more severe penalties than a juvenile tried as a delinquent, including the sentence that would be applicable to an adult defendant charged with the same crime;

In circumstances where the juvenile is charged with murder, however, both of these above are inapplicable because the juvenile court does not have jurisdiction over a person between the ages of 14 and 17 and the juvenile defendant indicted for murder must be tried according to the same criminal proceedings as if he were an adult.

For these reasons, the Massachusetts Supreme Judicial Court held that the grand jury must be presented with the elements of the crime and be apprised of any mitigating circumstances to ensure that the integrity of the grand jury process is maintained.

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December 20, 2012

Boston Man Charged with Human Trafficking for Sexual Servitude


Boston Police arrested a Dorchester man earlier this week for Massachusetts Sex Crimes Charges.

The defendant, who was arraigned in the Dorchester Division of the Boston Municipal Court, was arraigned on sex crimes charges including Human Trafficking for Sexual Servitude and Deriving Support from a Prostitute.

According to the Boston Police Department and the Suffolk County District Attorney's Office, police stopped a car for routine civil motor vehicle infractions. A woman passenger in the car who appeared to police to be nervous, was questioned and told police that she had been subjected to prostitution by the defendant. According to the woman, she was forced to buy clothes and take photographs that were posted on various websites advertising escort services.

The defendant, who was held on $75,000 bail, was also reportedly a Level 3 Sex Offender who was previously convicted of Aggravated Rape Charges involving two women when he was 17.

The Massachusetts Sex Crime of Human Trafficking for Sexual Servitude is the act of knowingly subjecting, by any means, another person to engage in commercial sexual activity, sexually explicit performance, or for the production of unlawful pornography.

A conviction for the sex crime of Human Trafficking for Sexual Servitude is punishable by commitment to state prison for not less than 5 years and up to 20 years; and also subjects the defendant to Sex Offender Registration.

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December 12, 2012

Wakefield Man Charged with Over 100 Sexual Assault Charges Against 13 Children


A 49 year old Wakefield man was arrested earlier this month on 100 counts of Massachusetts Sex Crimes Charges for allegedly raping and sexually abusing 13 children ranging in age from 8 days to 3.5 years old.

The defendant, identified as John Burbine, was charged with several sex offenses including Aggravated Rape of a Child, Indecent Assault & Battery on a Child, Unlawful Possession of Child Pornography; and Dissemination of Obscene Material.

According to the Middlesex County District Attorney's Office, the defendant had access to the child victims through the Waterfall Education Center, a child care center that was reportedly run by his wife, Marian Burbine. Middlesex County prosecutors have alleged that the defendant helped his wife at the daycare used that position to sexually abuse the children at the daycare center, which was allegedly not licensed.

Following his arrest on these sex crimes charges, police allegedly seized evidence that the defendant videotaped himself raping and sexually abusing the victims. After his arraignment in Malden District Court, the defendant was held without bail under the Massachusetts Dangerousness statute.

The defendant's wife, Marian Burbine, was also charged in connection with this incident with Reckless Endangerment of a Child.

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December 10, 2012

Lowell Man Charged with Beating 2 Year Old Child


A Lowell man was charged last week with several counts of Massachusetts Violent Crimes Charges for allegedly beating and causing serious injuries to his girlfriend's 2 year old daughter.

The defendant, Bunthang Ponn, of Lowell, was arraigned in Lowell District Court last Friday and charged with several counts of Aggravated Assault & Battery on a Child with Serious Injury and Intimidation of a Witness.

According to the Middlesex County District Attorney's Office, the defendant allegedly assaulted his girlfriend's 2 year old daughter, breaking her back and ribs. At his arraignment, prosecutors represented that the child may also have suffered irreparable brain damage from a massive stroke.

Speaking with police, the defendant denied having been left alone with the child but did allegedly admit to having baby-sat the girl. Prosecutors alleged that the defendant also stated to his girlfriend that the child had fallen out of a high chair and began to shake.

Aggravated Assault & Battery with Serious Injury is defined as the intentional touching, however slight, that is harmful or offensive and committed without justification and which results in serious bodily injury. Under Massachusetts criminal laws, "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.

Following his arraignment in Lowell District Court, the defendant was ordered held on $500,000 bail.

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December 9, 2012

Massachusetts Court Rules Search of Drug Dealers Phone After Arrest Valid


The Massachusetts Supreme Judicial Court last week ruled that police officers are not required to obtain a search warrant before they can search an arrestee's cell phone call list following an arrest.

In the case of Commonwealth v. Demetrius A. Phifer, the state's highest court rules that a search of a drug dealer's cell phone call list was not a constitutional violation because it was a limited search and they had probable cause to believe the recent call list would reveal evidence relating to the crime for which he was arrested.

The defendant in this case was arrested after Boston Police allegedly saw him get into a car with a known drug use and engage in actions they believed was a drug transaction. After the police pulled his car over, they got his cell number and checked it against the cellphone they had seized from the buyer and determined the number was in the other's call list.

This search, the court ruled, was a lawful search incident to arrest.

Notably, the Massachusetts Supreme Judicial Court left undecided and did not go as far to making a bright-line rule that a search of a cell phone incident to arrest is valid under all circumstances; and if so, to what extent.

In limiting its decision, the court also did not go as far as extending this ruling to other areas of cell phone contents, such as texts and e-mails.

The court's decision, unfortunately, could lead to further constitutional violations by police and law enforcement in general. With vague parameters, police will undoubtedly now further exploit the constitutional limits of this case and certainly try to extend the scope of what is permissible to other areas.

Practically speaking, there is no need for this ruling, as it just gives the police unfettered authority to search for evidence without restrictions. The alternative, which would be requiring police to obtain a warrant before conducting a cell phone search, would ensure that police have the requisite probable cause to conduct such a search.

Further, there would be no harm in requiring police to get a warrant. Arguably, the person is already arrested and the cell phone is already in evidence so there is no danger that the contents on the phone might be damaged or destroyed. By requiring a warrant to be obtained, all citizens' constitutional rights would be fully protected.

Notably, in reaching its decision, the Massachusetts Supreme Judicial Court relied, in part, on a California case which held that "...although an individual's reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrested and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest."

The reality, however, is that cell phones today are not the cell phones of even 5 years ago. Where most people today now store very personal and highly information on the phones (credit card info., bank accounts, personal contacts and communications, etc. etc.), the public today does, in fact, perceive their cell phone and the data within to be very personal and confidential, not meant for the public. We do, therefore, have a tremendous expectation of privacy in these devices and the court's ruling here, unfortunately, contradicts this reality.


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