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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October 12, 2012

Lowell Man Held on Kidnapping and Armed Robbery Charges

A Lowell man was arraigned in Lowell District Court and charged with several Massachusetts Crimes of Violence charges in connection with an alleged kidnapping of two brothers and their friend in Chelmsford.

The defendant, Bounnee Lakongpheng of Lowell, was charged with Armed Robbery and Kidnapping.

According to the Essex County District Attorney's Office, Chelmsford police received a call from two people complaining that they had been held against their will at gunpoint in the basement of a Chelmsford home. The victim told police that he, a friend and his brother went to hang out in that basement when they were allegedly threatened by three men. The three man allegedly demanded to know where the money and drugs was or they would kill him.

The defendant was identified after police showed a photo array to the victim, but the other two suspects are still unknown at this time.

Kidnapping in Massachusetts is punishable by imprisonment for up to 10 years in state prison, but where it is alleged that the kidnapping was commitment while armed with the intent to extort money, the punishment is imprisonment for any terms of years up to life.

Kidnapping is defined as the unlawful and forcible confinement of another person against his or her will.

Armed Robbery is also punishable for any term of years up to life in state prison. Armed Robbery is committed when the person, armed with a dangerous weapon, applies force or violence to the victim and takes his property with the intent to steal it.

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October 10, 2012

Topsfield Fair Vendor Charged with Rape of Woman at Fair

A sausage vendor at the Topsfield Fair was arrested this past week and charged with Rape in connection with an alleged sexual assault that occurred this past Monday night.

The New Hampshire man, Paul R. Carson, was charged with one count of Rape.

According to police, the alleged sexual assault occurred on the Topsfield fairgrounds in an area not accessible to the public at around 10:30 p.m. The woman reportedly gave a description of her attacker and police arrested the defendant.

In many cases such as this, identification is a critical, and sometimes, only area of defense. In every criminal case, the government has the burden of proving that the defendant is the perpetrator of the alleged crime. If this cannot be proven beyond a reasonable doubt, the person should be acquitted.

What might be important in a case such as this for the defense is knowing how many people had access to that specific area; how specific, or vague, was the description that was given to the police; how much of an opportunity did the victim have to see her attacker; and how much can her identification of him be challenged.

Other issues involved in Rape cases include whether the victim was treated to a rape exam. If so, the medical examination may or may not reveal evidence of forced sexual intercourse, in which case there might also be a defense of consent.

Rape in Massachusetts is punishable by imprisonment for up to 20 years for a first offense, and up to life for a subsequent offense.

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October 6, 2012

Mattapan Brothers Charged with Manslaughter in Boston Stabbing

Two brothers from Mattapan were charged with Massachusetts Murder Crimes Charges last week in connection with the stabbing of 15 year old Lance Hartgrove in Roxbury on July 10, 2012.

The two brothers were arraigned in Suffolk Superior Court and each are charged with Manslaughter and Assault & Battery with a Dangerous Weapon.

According to the Suffolk County District Attorney's Office, a fight broke out outside the Social Security Administration building in Roxbury. The victim, Lance Hartgrove, armed with a kitchen knife, reportedly went to the building after being called there by a friend. After throwing a glass bottle at a window, Hartgrove went into the building with two others and began fighting with one of the defendants, which eventually spilled outside.

Prosecutors reported that one of the defendants was at the social security office with his mother, and when the fight broke out, the mother called her other son to assist. Ultimately, the victim was stabbed in the chest, and a friend of his was stabbed in the back.

Following their arraignment in Suffolk Superior Court, both defendant brothers were each held on $500,000 bail.

In Massachusetts, Manslaughter is defined as an intentional unlawful killing that occurred with mitigating circumstances. Mitigating circumstances lessen a defendant's culpability for the act, and some examples of mitigating circumstances are excessive force in self-defense; heat of passion upon reasonable provocation; or heat of passion by sudden combat.

The crime of Manslaughter in Massachusetts is punishable by imprisonment for up to 20 years.

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September 28, 2012

Massachusetts Drug Lab Scandal: How Defendants Were Affected and What Can Be Done

The Massachusetts Department of Health Lab in Jamaica Plain (William A. Hinton Drug Laboratory) was ordered shut down by the governor a few weeks ago when it was discovered that at least one of the chemists at the lab allegedly engaged in malfeasance and violation of protocol with drug samples in criminal cases. The drug lab handled several thousand drug samples seized from criminal drug arrests in multiple counties, including Suffolk County, Middlesex County (until 2009), Bristol County, Worcester County and Norfolk County.

By way of background, when the police seized drugs in criminal cases, the drugs were ultimately sent to the DPH drug lab for testing and confirmation that the substance was, in fact, the certain controlled substance it was thought to be. At the lab, each drug sample was analyzed by one chemist, whose results were then checked by another chemist.

As it turns out, one of the supervising chemists is alleged to have engaged in intentional violation of protocol by tampering with evidence bags; altering the weight of drugs; not calibrating the drug testing machines properly; and even altering drug samples so that they would test as drugs when they were not! This particular chemist, who was employed by the DPH drug lab in Jamaica Plain from 2003 to 2012, is believed to have been involved with as many as 60,000 samples and 182,000 criminal drug cases.

Even more disturbing, the analyst under investigation, considered a 'supervisor', had unsupervised access to the drug safe and evidence room, theoretically calling into questioned every single drug case that passed through the Jamaica Plain drug lab, even where she was not directly responsible for the testing of those samples.

Obviously, this discovery creates a very serious problem as defendants who were charge with a Massachusetts Drug Crime were potentially prosecuted with tainted and/or fabricated drug evidence and leading to erroneous convictions and in some cases, deportation from the United States.

Since the governor ordered the lab closed and the matter referred for investigation, prosecutors and criminal defense attorneys are scrambing to determine which cases were affected. Many defense attorneys like myself, have been pulling old files out of storage in an effort to identify all defendants whose cases might have been affected in any way.

So who is affected and what should they do?

Any person who was charged with a Massachusetts Drug Crime whose case resulted in a conviction or plea is potentially affected and they should contact an attorney, particularly any individual who was recently convicted and is currently serving a prison/jail sentence as a result of that drug conviction.

Depending on each defendant's individual circumstances, there are various options that should be considered:

  • Defendants convicted of a drug crime should consider a Motion for New Trial, which would essentially vacate the conviction. Where the defendant is currently serving a sentence as a result of a potentially tainted drug conviction, there could also be the possibility that the person is released from custody and otherwise file a Motion to Stay their sentence.
  • Defendants who pled guilty to a Massachusetts drug crime should consider a Motion to Withdraw Guilty Plea.
  • Defendants who have received any disposition short of a dismissal or acquittal, for instance, persons who admitted sufficient facts and their case was Continued Without a Finding ("CWOF") and placed on probation, should also consider a Motion to Withdraw their plea.
Though attorneys on all sides of the issues are working to identity whose cases may have been affected, the list is long and time consuming. For this reason, if you believe your Massachusetts drug case may have been impacted by this you should contact an attorney for assistance.

Boston Criminal Lawyer Lefteris K. Travayiakis has extensive experience in defendant Massachusetts Drug Crimes and is available 24/7 for a free consultation if you were affected by the DPH Drug Lab Scandal.

Click Here to contact a Massachusetts Drug Lawyer or call 617-325-9500.

September 17, 2012

Massachusetts State Trooper Charged with Sexual Assault

A Massachusetts State Trooper was recently indicted by the Worcester County District Attorney's Office on Massachusetts Sex Crimes Charges.

The state trooper, who was most recently assigned to the Sturbridge barracks, allegedly assaulted an 18 year old girl four years ago. The Worcester grand jury indicted the Massachusetts trooper with three charges of Indecent Assault and Battery and two counts of Open and Gross Lewdness.

The Massachusetts Sex Crime of Indecent Assault & Battery involves an 'indecent act'. Massachusetts criminal law defines an indecent act as one that is fundamentally offense to contemporary standards of decency. Typical and most common forms of indecent assault and battery are the inappropriate touching of the private portions of ones anatomy.

The crime of Indecent Assault & Battery is punishable by imprisonment for up to 2.5 years in the House of Corrections or up to 5 years in state prison.

The sex crime of Open and Gross Lewdness and Lascivious Behavior is the intentional, indecent and offensive exposure of one's genitals to another person; and is punishable with imprisonment in the House of Corrections for up to 2 years or up to 3 years in state prison.

Although a 'sex offense', a conviction for a first offender for Open and Gross Lewdness will not trigger Sex Offender Registration. However, if a person is convicted for a second time for Open & Gross Lewdness, he/she will be subject to registration as a sex offender.

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September 16, 2012

Former Somerville Priest Charged with Sexual Abuse of a Child

A former priest of an Episcopal church in Somerville was arrested earlier this month on Massachusetts Sex Crimes Charges for allegedly sexually abusing a child over a period of 10 years.

The priest was charged with Assault with Intent to Rape and three counts of Indecent Assault and Battery on a Child.

According to the Middlesex County District Attorney's Office, the priest allegedly committed the sexual abuse over a 10 year period and reportedly only ceased when he left the church. The alleged sexual abuse began in the 1990's when the child was in elementary school. The victim recently came forward to the police, which then prompted these charges being filed.

The Massachusetts Sex Crime of Assault with Intent to Commit Rape is punishable with imprisonment of up to life imprisonment. As with many sex crimes charges, a conviction for this offense would subject the offender to Sex Offender Registration and the person must submit his/her DNA to the state's DNA database.

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September 13, 2012

Cambridge Woman Arrested for Assault Brookline Police Officer

A Cambridge woman was arrested this week on Massachusetts Crimes of Violence Charges for allegedly assaulting a Brookline Police Officer. She was charged with Assault & Battery on a Police Officer, Resisting Arrest and Disorderly Conduct.

According to the Brookline Police Department, the officer came across the woman on Harvard Street in Brookline and she appeared to be unsteady on her feet. She and a male companion were apparently trying to locate a taxi. 15 minutes later, the Brookline Police came across the Cambridge woman again, this time in the company of two other men. Upon speaking with her, she then allegedly began yelling at other men passing by to take her home.

When police asked her to sit down, she allegedly became irate and attempted to hit the police officers, spit on them and kicked one in the groin.

The crime of Assault and Battery on a Police Officer is defined as the intentional harmful or offensive touching (however slight) upon a police officer without justification. A conviction for this crime carries a sentence of not less than 90 days and up to 2.5 years in the House of Corrections.

Resisting Arrest is the act of knowingly preventing or attempting to prevent a police officer from effecting an arrest of a person by the use of threats or physical force or violence. The crime of Resisting Arrest is punishable by imprisonment in the House of Corrections for up to 2.5 years.

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