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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December 5, 2012

Cape Cod Man Charged with Rape of a Child


A Cape Cod man was recently arrested and charged with several Massachusetts Sex Crimes Charges for allegedly sexually assault a 9 year old girl.

The defendant, a chiropractor from Hyannis, Massachusetts, was arraigned in Barnstable District Court this past Monday on sex crimes charges including Rape of a Child and Indecent Assault & Battery on a Child Under 14.

According to county prosecutors, the defendant, 58 years old, alleged assaulted the 9 year old at a home in Yarmouth in November. It is alleged that the man's girlfriend was watching the child but was in another room at the time.

Prosecutors alleged that the alleged sexual assault came to light when the child reportedly told her mother that the man touched her on her chest and beneath her underwear.

The Massachusetts Sex Crime of Rape of a Child is punishable with imprisonment for any term of year up to life. As with all sex crimes, a conviction for this offense would subject the defendant to Sex Offender Registration, and also require him to submit his DNA to the state's DNA database.

Although the public instinctively attributes 100% credibility to the victim in a child rape case, the statistics in these types of cases are alarming in that a percentage of cases are often 'unfounded'.

There are not many studies or statistics that precisely attribute a percentage of false allegations of rape, though the FBI over the years has set 8% - 15% as the average rate of false accusations. Another independent study that was conducted using data between 1978 and 1987 found that 41% of all forcible rape complaints were false; and another study conducted in the midwest over a 3 year period found that approximately 50% of rape complaints were false.

Unfortunately, despite the statistics and even if sex crimes cases get dropped, the effect on the person's life is everlasting. The person will inevitably suffer a damaged reputation between family, friends, and business relations. Even if a person was truly falsely accused and the prosecutor acknowledged as such and dropped the case, the defendant's reputation may have been harmed beyond repair. This is so because of the perception that the person's case was dropped because the victim was perhaps pressured; or the defendant had a good lawyer, etc.

Guilty or Not Guilty, the effects of being charged with a Massachusetts Sex Crime are devastating...

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November 28, 2012

Boston Police Arrest Boston Man in Beacon Hill Sexual Assault and Home Invasion


Boston Police arrested a Boston man suspected of sexual assaulting and robbing a woman in her Beacon Hill apartment earlier this month and charged him with several Massachusetts Crimes of Violence.

The defendant, Anthony Williams, was arraigned yesterday in the Boston Municipal Court on criminal charges including Rape.

According to the Boston Police Department and the Suffolk County District Attorney's Office, the defendant broke into a woman's Beacon Hill apartment in the early morning hours of November 10. The man allegedly robbed the woman and sexually assaulted her.

Although it is still unclear at this point what evidence investigators relied upon to link this defendant to this particular crime, the Boston Police have indicated that surveillance video from a nearby ATM machine was relied upon.

In these types of sexual assault, prosecutors will also make efforts to bolster their case by seeking the obtain the suspects DNA for comparative analysis to any forensic evidence that might have been left at the scene.

The Massachusetts Sex Crime of Rape carries a potential penalty of up to 20 years in state prison, including Sex Offender Registration and the possibility of Sexually Dangerous Person and/or Lifetime Community Parole commitment.

Where a rape is committed during the commission of another felony, the person may be charged with Aggravated Rape, which carries the potential for life imprisonment upon conviction.

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November 27, 2012

Undercover Boston Police Officers Arrest Quincy Man on Drug Charges


Boston Police Drug Control Unit Officers arrested a man from Quincy and another from West Roxbury last week on Massachusetts Drug Crimes Charges.

Both men where arrested for Unlawful Possession of a Class A Substance, Heroin.

According to the Boston Police Department, officers were conducting undercover surveillance in the area of CVS in Roslindale, which they allege is a high drug transaction area. The officers reportedly recognized the Quincy man and followed him to West Roxbury, where he allegedly met another man.

That second individual allegedly got into the Quincy man's car and drove off. After allegedly committing traffic violations, Boston Police officers stopped the car and allegedly observed a package of heroin on the driver's side floor.

Massachusetts Drug Crime Arrests come in a variety of different contexts, but the motor vehicle stop is one of the most common. Police officers conducting undercover drug surveillance must have reasonable suspicion that a crime has or is being committed before they can pull a car over.

Often times, however, where their observations does not meet the requisite level to justify a stop based on suspicion of a drug transaction, police will follow the car and pull it over for a "traffic violation". Even though the police officers' real intention in pulling the car over is to investigate for the presence of drugs, using a traffic stop to justify pulling the car over is lawful.

In any type of drug case, whether the result of a vehicle stop, street encounter, or search warrant, the specific facts justifying the police officer's Search and Seizure of the person should be heavily scrutinized and, in most cases, challenged on constitutional grounds by way of a motion to suppress.

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November 10, 2012

Boston Man Charged with Massachusetts Gun Crimes Following Search of Dorchester Apartment


Boston Police Officers executed a search warrant charged the Dorchester homeowner with several Massachusetts Gun Charges this past week.

The Dorchester man, Magnetic Tom, was charged with two counts of Unlawful Possession of a Firearm, Unlawful Possession of Ammunition, Improper Storage of a Firearm and being a Level II Armed Career Criminal.

According to the Boston Police Department, a search warrant was executed at the man's Washington Street apartment in Dorchester this past Thursday and recovered two handguns and several rounds of ammunition.

The police further allege that the man told them "You're here to look for guns. I need to protect my family" and basically admitted that he illegally possessed guns. [Take that with a grain of salt. According to police, almost everyone admits to the illegal activity].

The Massachusetts Gun Crime of Improper Storage of a Firearm makes it unlawful to store any firearm that is not secured in a locked container or equipped with a tamper-resistance mechanical lock or other safety device.

For those defendants that do not have a firearms identification license, a conviction for this gun crime can carry up 1 to 10 years for a firearm that is not a large capacity weapon; or 2.5 to 10 years in state prison for a large capacity weapon or machine gun.

Even persons that are properly licensed to possess gun can be charged with Improper Storage of a Firearm, and a conviction in this context can carry up to 1 year imprisonment for non-large capacity weapons; and 1 to 10 years for large capacity weapons.

Additionally, a conviction for the above offenses would also trigger the Armed Career Criminal ("ACC") Sentencing Enhancement, which provides enhanced penalties for those defendants who have been previously convicted of a 'violent crime' or a 'serious drug offense'.

On a Level 2 ACC conviction, the person would face a minimum-mandatory 10-15 year sentence to state prison.

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October 28, 2012

Boston Man Arrested for Milford Home Invasion


Two men have been arrested and charged with Massachusetts Crimes of Violence charges in connection with a Milford home invasion on September 29.

Rashad Blount, of Boston, and Richard Booker, of Middleboro, were both arrested this past week and charged with several violent crimes, including Armed Home Invasion, Armed Robbery, Assault with a Dangerous Weapon, and Unlawful Possession of a Firearm.

According to police, Blount allegedly appeared at the home of the victim identifying himself as a pizza delivery man. A short time later, Booker allegedly entered the home, identifying himself as a police officer. Police also believe a third suspect may have also arrived.

After donning masks, one of the men then ordered the occupants to lay on the floor while the other man opened the safe in the bedroom. Blount is alleged to have pulled out a gun during the robbery, in which $7,000 in cash, checks and other items were taken.

When the Milford couple returned from their honeymoon, the wife allegedly identified one of the suspects from the profile of a mutual friend on Facebook. Both Blount and Booker were each arrested following that Facebook identification.

One of the central defenses in a case of this nature is certainly going to be the veracity of the identification made by the victim through Facebook. Comparing whatever initial descriptions of the suspects may have given to the police with the eventual identification could make or break the prosecution's case. Particularly if one or both of the men are able to establish any alibis for themselves during the date and time of the alleged incident.

Identification of the defendant is one of the most important issues in a criminal case, as the prosecution would obviously have no case if it cannot prove the identity of the perpetrator of the crime.

In assessing whether a witness' identification of the defendant is adequate, a jury is aksed to consider whether they are convinced that the witness had the capacity, and an adequate opportunity, to observe the person.

Whether an identification is adequate can depend on a number of factors, including how long or short a time was available for the observation; how far or close the witness was; the lighting conditions; whether the witness had occasion to see or know the suspect in the past; and the length of time that lapsed between the occurrence of the crime and the identification of the defendant.

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October 26, 2012

Everett Man Also Charged in Murder of Boston Man in May


Boston Police have arrested a second man in connection with the May Murder of Steven Fuentes.

Anthony Solomon is to be arraigned in the Roxbury Division of the Boston Municipal Court and charged with Murder and Unlawful Possession of a Firearm. He is the second defendant charged in connection with this murder. George Ortega, of Lynn, was previously charged and arraigned in September.

According to the Suffolk County District Attorney's Office, George Ortega and Steven Fuentes confronted each other in front of the victim's home. The prosecution alleges that there was an "ongoing dispute" between the two men.

At some point during the confrontation, Ortega pulled out a gun and shot Fuentes several times. He was allegedly identified by witnesses and is also believed to be on a nearby surveillance video.

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