The Massachusetts controlled substance laws punishes with enhanced penalties those persons who violated the drug laws for the sale or distribution of drugs within 100 feet of a “public park or playground”. This week, the Massachusetts Appeals Court ruled that a defendant cannot be criminally liable if he distributes drugs within a park or playground that is NOT “public”, even if it is accessible to members of the public.

In the case of Commonwealth v. Gopaul, the defendant was convicted for selling marijuana to an undercover police officer within 100 feet of an outdoor playground at the Windsor Meadows Apartment Complex, a private apartment complex in Marlborough, Massachusetts. The playground was not fenced in and, arguably, anyone could enter the playground.

The defendant challenged his conviction after trial, arguing that the Drug Distribution Near School Zone, Park or Playground Statute in Massachusetts General Laws Chapter 94C, section 32J, applies only to “public” playgrounds, not those that are on private property. Continue Reading ›

Many clients, and even attorneys, don’t understand the perils of interviewing potential witnesses without the assistance of an investigator. Even when I explain and encourage client to retain the services of an investigator, many of them forego the use of an investigator for no other reason than to save some money. Unfortunately, not hiring an investigator can end up costing the client much more in the long run, and in some cases, even a conviction.

The recent case of Commonwealth v. Zabek was heard before the Massachusetts Appeals Court and specifically addressed the issue of trial counsel interviewing witnesses on his own and the potential conflict of interest that may arise as a result.

In that case, the defendant was convicted after trial on charges of rape of child and other sexual offenses. In his appeal, the defendant claimed that his trial attorney was ineffective because he had an actual conflict of interest and could not therefore zealously defend him. The lawyer, the defendant argued, had interviewed a witnesses prior to trial without an investigator, which then potentially made the lawyer a potential impeachment witness at trial.

In a recent appeal concerning a sexual assault case, he Massachusetts Appeals Court considered whether the purported ‘first complaint testimony’ must be remembered by the complainant in order to be admissible against a defendant at trial.

In Commonwealth v. Dale, the defendant appealed from his conviction of indecent assault & battery on a child under 14, arguing that the trial judge improperly admitted ‘first complaint testimony’ by the brother of the victim, who was 7 or 8 at the time of the incident. At trial, the brother testified that, at the time of the incident, the complainant had reported the abuse to him; but the complainant could not recall herself that she had, in fact, reported the abuse to her brother.

In Massachusetts, the first complaint doctrine permits a judge to admit testimony from the recipient of a victim’s initial report of sexual assault. The ‘first complaint witness’, i.e., the person to whom the sexual assault was first reported to, may also testify to the circumstances surrounding the complaint, including observations of the complainant; the events or conversation that culminated; the timing of the complaint; and other relevant conditions that might help the jury assess the truthfulness of the complainant as to the allegations of sexual abuse.

A defendant’s motion for new trial from his conviction in a 1986 murder was upheld by the Massachusetts Supreme Judicial Court as a result of re-testing of critical forensic evidence.

In the case of Commonwealth v. Sullivan, the SJC affirmed the trial judge’s allowance of the defendant’s new trial motion from his convictions of 1st degree murder and armed robbery because forensic testing, technology not then available at the time of trial, would have been a substantial factor in the jury’s deliberations.

In this case, the defendant was convicted in the death of the victim in 1986. The evidence at trial illustrated two different eyewitness accounts: one version implicating the defendant in the killing; and the other that he was not even present at the scene at the time. One of the key pieces of evidence suggesting to implicate the defendant was the jacket he was wearing on the day of the murder…

In the case of Commonwealth v. Overmyer, the Massachusetts Supreme Judicial Court considered whether the smell of ‘unburnt marijuana’ provides police officers with probable cause to believe there is more than (the legal) one ounce to justify a search of the car without a search warrant. The court ruled that, no, the mere smell of unburnt marijuana does NOT justify a search.

In this case, police officers responded to a motor vehicle accident. On scene, the officers smelled “a very strong odor of unburnt marijuana near” the defendant’s car. In response to questioning by the police officers, the defendant admitted that marijuana was present in the car and gave the keys to the glove compartment to the police. Inside, there was a “fat bag” of marijuana. Because the odor of unburnt marijuana persisted, a further search was conducted and more marijuana in a backpack in the backseat.

As a result, this defendant was charged with possession with intent to distribute a class D substance and school zone violation.

Earlier this month, Massachusetts enacted the “Act Relative to Domestic Violence”. Though arguably the intent of the act is in good faith, it has very profound and serious implications on those defendants charged with a domestic violence offense in Massachusetts, directly altering the landscape at a defendant’s arraignment and bail, as well as the potential criminal penalties a defendant may face.

There are now dramatic changes to the domestic violence laws in Massachusetts, including new criminal domestic violence charges; changes to issues concerning bail, release upon arrest, and detention hearings; as well as issues affecting the person’s CORI information.

First, persons who are charged with a criminal offense that involves ‘domestic abuse’ are not eligible for release or bail within 6 hours from their arrest (unless the release or conditions of bail are imposed directly from a judge in court).

In circumstances where criminal defendants, for whatever reason, elect to change their plea to guilty, the attorney must ensure that the client understands the full panoply of potential consequences that might result. One of the issues that must always be addressed before any change of plea is ensuring that the client, if he is not a citizen, understands the potential consequences of deportation of a conviction.

A conviction for many crimes may lead to deportation, removal from the country, or denial of re-entry, and it is the attorney’s duty to inform the client if the offense for which he pleads guilty to would result in removal. Following certain amendments to the 1952 Immigration and Nationality Act, if a non-citizen commits a removable offense, his removal is essentially inevitable, with a few exceptions.

Where a client elects to plead guilty to those removal offenses, simply advising the client that he is “eligible for deportation” or that he would “face deportation” is not enough.

The Massachusetts Supreme Judicial Court considered the case of Silva v. Carmel, and decided that an abuse prevention order may issue where the defendant and victim live in the same state facility may not issue.

Both the defendant and the victim in this case were intellectually disabled persons who both resided at the same state-residential facility of the Department of Developmental Services. Following an altercation where the defendant pushed the victim into a bathtub and caused her injuries, the victim applied for and obtained a restraining order from a district court judge. The order was issued for one year following the judge’s finding that both parties resided in the same “household”.

On appeal, the SJC agreed with the defendant that the district court judge was mistaken in issuing the restraining order because the parties (1) did not reside together in the same household as contemplated by the statute; and (2) the relationship of the parties was not of the type the abuse prevention statute set out to protect.

The Massachusetts SJC unfortunately decided a case, in my opinion, the wrong way. In Commonwealth v. Kevin Keo, the Supreme Judicial Court considered whether the defendant, convicted of first-degree murder, was entitled to a new trial where his attorney failed to obtain a full transcript of a witness’s testimony from a separate trial and where the prosecutor gave two inconsistent closing argument at the two trials as to who the shooter was.

At the defendant’s murder, trial the prosecutor presented a theory of deliberate premeditation and he was convicted by a jury. HIs trial, however, came after the trial of his co-defendant, in which the prosecutor proceeded under the theory that the co-defendant was the shooter. In this case and in the subsequent trial, the prosecutor suggested that the defendant was the shooter – arguably inconsistent theories.

The Massachusetts Supreme Judicial Court, however, held that the defendant’s due process rights were not violated because the Commonwealth proceeded on a theory of aiding and abetting – that he had or shared the intent required to commit the crime of murder. The SJC also pointed out that that, in both trials, the prosecutor stated in his closing argument that it didn’t matter who shot the victim and the evidence was similar in each trial.

In a recent decision in Commonwealth v. Shabazz Augustine, the Massachusetts Supreme Judicial Court ruled that prosecutors seeking access to a defendant’s cellular site location information are first required to obtain a search warrant based on probable cause.

In recent years as the popularity of cell phone use has become so widespread, prosecutors have increasingly sought search warrants of a defendant’s cell phone records from their cell providers. The information commonly sought not only included a defendant’s call list, incoming and outgoing phone calls, text messages and pictures on the phone, but also cell site location information.

Cell site location information, or CSLI, is when a user’s cell phone transmits signals to cell phone towers that ‘ping’ the coordinates of the person’s mobile phone. The cell phone towers assist the cell phone in connecting to a call, and if the person moves closer to a different cell tower, the call is automatically transferred to that closer cell tower. By triangulating these pings, the user’s cell site location information can reveal a specific geographic location of where the phone was on a particular date and time.

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