May 23, 2012

Man Charged with Attemted Murder for Home Invasion in Massachusetts State Trooper's Home


A Massachusetts State Trooper's home was the subject of an attempted robbery and shooting this past weekend by a man reportedly from Oklahoma who was in town for a family funeral. The man, charged with Massachusetts Crimes of Violence Charges, was arraigned in Plymouth District Court on charges including Home Invasion, Attempted Murder, and Gun Crimes Charges.

According to the Plymouth County District Attorney's Office, the man allegedly appeared at the Massachusetts trooper's home with a gun and attempted to gain access. When other police officers responded to the area, the man then allegedly fired his gun at them.

The crime of Home Invasion in Massachusetts is defined as the unlawful entry into the home of another with the threat to use force and while armed with a dangerous weapon. The penalty upon conviction for the crime of Home Invasion is severe, which carries a minimum-mandatory sentence of 20 years and up to life in state prison.

The crime of Attempted Murder in Massachusetts is where a person, with the specific intent to commit the crime of Murder, takes an overt act towards committing murder and came reasonably close to doing so. Attempted Murder is punishable with a sentence to state prison for up to 10 years.

Strictly considering the potential penalties involved in these types of crimes, there aren't that many crimes that are considered more 'serious' than Home Invasion. As such, these types of crimes are prosecuted extremely aggressively. In this case, given that the purported victim was a Massachusetts State Trooper, the defendant here can expect that the district attorney's office will make this case a priority.

That being said, the defendant here should be sure to have competent and aggressive counsel on his side.

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May 22, 2012

Boston City Workers Charged With Massachusetts Drug Crimes


Two Boston city employees were arraigned this morning on Massachusetts Drug Crimes Charges following their arrest last friday. Each were charged with Drug Distribution; Unlawful Drug Possession; School Zone Violation; and Conspiracy to Violate the Drug Laws.

According to the Suffolk County District Attorney's Office, one of the city workers was employed as a Boston parking enforcement officer and the other, while the other was employed as a Boston crossing guard.

Boston Police were reportedly conducting surveillance when they allegedly observed the parking enforcement officer, while in uniform, enter a vehicle and then get out with his fist clenched. Police allegedly recovered two percocet pills when he was later stopped and searched.

In cases such as these, it is critical that the defense scrutinizes the facts that the police purportedly relied upon in justifying their stopping and then searching anyone alleged to be involved in a drug transaction. A person charged with a Massachusetts Drug Crime will certainly want to consider challenging whether the police had reasonable suspicion or even probable cause to initiate a search. A successful constitutional challenge on these grounds could lead to the drugs and other evidence being 'suppressed' or thrown out, without which there might not be any evidence for the prosecution to go forward.


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May 16, 2012

Massachusetts' Armed Career Criminal Sentencing Enhancement


Enacted in 1998, the Massachusetts Armed Career Criminal Statute, M.G.L. c. 269, section 10G, otherwise known as "ACC", imposes enhanced penalties for persons previously convicted of a "violent crime" or a "serious drug offense."

Depending on the number of prior convictions that might form the basis of an ACC enhanced indictment, a person may be indicted as an armed career criminal as a level 1, 2 or 3. ACC Level 1 provides for an additional punishment of a minimum-mandatory sentence of 3 to 15 years; Level 2 provides for 10-15 years; and Level 3 provides for a 15-20 year sentence to state prison.

But what "violent crime" is sufficient to form a basis of an enhance Armed Career Criminal indictment?

Massachusetts criminal law defines a violent crime as:

Any crime punishable by imprisonment for a term exceeding one year...that:
  1. has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another;
  2. is burglary, extortion, arson or kidnapping;
  3. involves the use of explosives; or
  4. otherwise involves conduct that presents a serious risk of physical injury to another.

However, some crimes that might appear to be "violent crimes" may not qualify as a predicate "violent crime", such as the crime of Assault & Battery, which may be prosecuted under various theories. For instance, a "harmful battery" and "reckless battery" are violent crimes because they each have as an element the use of "physical force".

Another theory of Assault & Battery, however, is an "offensive battery", which does not have as an element the use of "physical force".

Especially in cases where someone is charged with an enhanced sentencing indictment such as under the Armed Career Criminal Statute, it is so critical that they are represented by an experienced Massachusetts Criminal Lawyer that knows the law well and how to apply that knowledge in the defense of his client.

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May 11, 2012

Massachusetts Man Charged with Manslaughter In Brother-In-Law's Death


A Cohasset man was arrested for Massachusetts Murder Charges following the family brawl that ended in the death of his brother-in-law. The man was arraigned in Quincy District Court earlier this week and charged with Manslaughter.

According to the Norfolk County District Attorney's Office, Cohasset police responded to the defendant's home and found him to be unresponsive. The victim's father told police that family were celebrating the man's birthday when he became loud and began swearing. One witness told police that the victim had gone into a rage and had hit someone over the head with a chair.

The defendant allegedly tried to calm him and the two began fighting, eventually putting the victim in a headlock. When the defendant released him, the victim was motionless and unresponsive.

Voluntary Manslaughter in Massachusetts is defined as murder but with mitigating circumstances the lessen a defendant's culpability for the act. Where both crimes of Murder and Manslaughter each require proof of an unlawful killing, the crime may be voluntary manslaughter if it occurred under mitigating circumstances; in other words, without malice.

Some examples of mitigating circumstances involving the crime of manslaughter could be heat of passion upon reasonable provocation; heat of passion by sudden combat; or excessive force in self-defense.

By contrast, Involuntary Manslaughter in Massachusetts is defined as the unlawful killing unintentionally caused by wanton or reckless conduct, which creates a high degree of likelihood that substantial harm will result to another. It may also be commission of a batter in circumstances that the person knows or reasonably should know endanger human life.

In either theory of manslaughter, it is an absolute defense if the person acted in self-defense or in the defense of another, which appears to be the case here.

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May 3, 2012

Massachusetts Court Rules Antique Guns Exempt from Criminal Statute


In the recent case of Commonwealth v. Leslie Burton-Brown, the Massachusetts Supreme Judicial Court considered the issue of whether a gun, manufactured before 1900, were unlawful to own/possess under the Massachusetts' Gun Crimes Laws.

After a jury trial, the defendant was convicted of Unlawful Possession of a Firearm, Unlawful Possession of Ammunition, and Unlawful Possession of a Loaded Firearm. In his appeal, the defendant asserted that his convictions should be overturned because the gun at issue was manufactured before 1900, and under the law as written, he could lawfully possess the firearm with having been issued a license to carry.

Under the statute which criminalized the possession of a firearm without a license, the language further reads that the "...provisions of the [statute] shall not apply to...any firearms, rifle, or shotgun manufactured in or prior to the year 1899."

In reversing the defendant's conviction, the Massachusetts Supreme Judicial Court resounded that, given the language of the statute, the defendant could not have been convicted of unlawfully possession this antique gun. The SJC went even further and overruled a prior Massachusetts Appeals Court case which had previously ruled that no "antique gun exemption" existed.

Moving forward, where a defendant is charged with Unlawful Possession of a Firearm, attorneys should give the appropriate pre-trial notice to rely on the affirmative defense of exemption so that the defendant could demonstrate to the jury, through expert testimony, that the gun is, in fact, an antique.

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April 3, 2012

Boston Man Arrested for Drug Trafficking Charges in Braintree


A Boston man and woman from Dedham were arrested by Braintree Police Officers this yesterday on Massachusetts Drug Crimes Charges in what police are calling a "month-long investigation."

Aris W. Veras, 35, of Boston, and Luz M. Cepeda, 29, of Dedham, have both been charged with Drug Trafficking, Distribution of Heroin and Cocaine, and Possession with Intent to Distribute Drugs.

According to the Braintree Police, search warrants were executed for two cars and a home in Dedham when an undercover police officer allegedly purchased drugs from Veras and Cepeda. Following the alleged transaction to the undercover police officer, both were arrested on drug charges.

The search warrant on the home in Dedham, alleged to be Cepedas, reportedly yielded additional drugs, including cocaine and heroin; drug packaging materials, and cash.

Although at first glance these circumstances may seem unbeatable, there are truly many intricacies and legal issues that surround a case like this. Any seasoned criminal defense attorney defending a case of this nature would certainly look to the specific details of the alleged drug sale, including who, specifically was involved and how the drug sale was allegedly transacted.

Additionally, that a search warrant was executed on Cepeda's home may not necessarily be fatal to Vera's defense, particularly if police cannot establish a strong link between him and the home - such as no evidence that he was ever seen near the home, let alone believed to have engaged in the selling of drugs at or near the residence. The search warrant should also be carefully scrutinized to ensure that it was properly issued based on the requisite probable cause. If not, the search warrant could be thrown out and any evidence recovered from the search could be excluded.

The penalties for Drug Trafficking in Massachusetts vary depending on the alleged drug in question and how much 'weight' was allegedly distributed. For instance, for cocaine, trafficking cocaine between 14 and 28 grams could result in a prison sentence of 3 to 15 years; while over 200 grams could result in a sentence of 15-20 years.

The penalties for Drug Trafficking Heroin in Massachusetts, however, are more severe. 14-28 grams could result in a sentence of 5-20 years; while trafficking over 200 grams of heroin could also result in a state prison sentence of 15-20 years.

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March 20, 2012

US Supreme Court Considers Constitutionality of Life Sentences for Youthful Offenders


The United States Supreme Court today heard arguments in the cases of Jackson v. Hobbs and Miller v. Alabama on the issue of whether it constitutes cruel and unusual punishment, in violation of the 8th Amendment, to sentence a youthful offender to life without the possibility of parole. The decision result in a change to Massachusetts law, which currently allows for juvenile life sentences without parole.

By way of background, the court has previously ruled against similar punishments for youth and adult offenders in the past. In 2005, the Court prohibited the imposition of the death penalty for any minor convicted of murder in the case of Roper v. Simmons. Then, in 2010, in the case of Graham v. Florida, the Supreme Court prohibited the imposition of a life without the possibility of parole sentence for a minor who committed any crime other than murder.

In both of those cases, the Supreme Court ruled that, due to the immaturity of youthful judgment and moral sense, those punishments were unconstitutional and therefore a form of cruel and unusual punishment in violation of the 8th Amendment. With those cases as a backdrop, attorneys are urging the court to rule that a sentence of life without parole for the crime of murder is also too severe and unconstitutional.

The decision could have long reaching implications to several cases, including those in Massachusetts, such as the case of John Odgren, who as a teenager, was convicted of First Degree Murder and sentenced to life without the possibility of parole. He was 16 at the time of the murder.

Prior to 1996, juveniles charged with murder in Massachusetts would have their cases tried in Juvenile Court. In 1996, however, the Massachusetts legislature amended the law which now mandates that juveniles between the ages of 14 and 17 who are charged with murder to have their cases transferred to adult court. In Massachusetts alone, there are 59 inmates who were charged with murder before they were 18. Notably, 38 other states have passed similar laws permitting juveniles to be sentenced to life without parole sentences for murder.

The indication from reporters, following oral arguments, is that the United States Supreme Court will lean towards ruling that sentencing youthful offenders to life without the possibility of parole is not cruel and unusual punishment. ...but the official decision is not expected until sometime this summer.

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March 7, 2012

Boston Man Arraigned for 2011 Jamaica Plain Murder


A 22 year old from Roslindale was arraigned yesterday on Massachusetts Murder Charges in connection with the stabbing death of Kenneth Soto, 19, in October 2011.

The defendant, Hector Soto, was arraigned in the West Roxbury Division of the Boston Municipal Court on First Degree Murder Charges.

According to the Suffolk County D.A.'s Office, prosecutors allege that Hector Soto and Kenneth Soto were in separate vehicles with respective friends in the 7-11 parking lot on Centre Street in Jamaica Plain. As Kenneth Soto exited the store, Hector Soto allegedly approached him the two engaged in a fight that resulted in the stabbing death of Kenneth Soto.

First Degree Murder in Massachusetts is the unlawful killing of another with deliberate premeditation and malice, and is punishable by imprisonment for life without the possibility of parole.

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March 6, 2012

Cambridge Security Guard Indicted on Rape Charges


A Cambrdige security guard was indicted by a Middlesex Grand Jury on several Massachusetts Sex Crimes Charges last week.

The security guard, who is reportedly from Hyde Park, has been indicted on sex charges including Assault with Intent to Rape and Indecent Assault and Battery. He is scheduled to be arraigned in Middlesex Superior Court tomorrow.

According to the Middlesex County District Attorney's Office, Cambridgeside Galleria police responded to a woman crying for help at 2:00 a.m. on November 11. A review of surveillance video reportedly shows the security guard from Hyde Park escorting a woman around the rear mall entrance to the Cambridgeside Galleria from Thorndike Street. At that point, the man allegedly grabbed the woman, forced himself on her and allegedly sexually assaulted her. The woman was reportedly able to walk away to a nearby hotel where she called for help.

Assault with Intent to Commit Rape in Massachusetts is a felony that is defined as an assault of another with intent to engage in sexual acts without their consent, and is punishable by commitment to state prison for any term of years up to life. If, however, the accused has previously been convicted of Assault with Intent to Commit Rape, the minimum-mandatory penalty to be imposed is 20 years in state prison.

Indecent Assault & Battery in Massachusetts is punishable by imprisonment in the House of Correction for up to 2.5 years, or to state prison for up to 5 years.

A conviction for the crimes of Assault with Intent to Rape and Indecent Assault and Battery would each render the person subject to Sex Offender Registration and require him to submit a sample to the Massachusetts State DNA Database.

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March 1, 2012

Newton Teacher Indicted on Additional Sex Crimes Charges


The Newton Public School teacher who has already been indicted by a Middlesex County Grand Jury on Massachusetts Sex Crime Charges, has now also been indicted by a Suffolk County Grand Jury on additional sexual assault charges, including Aggravated Assault & Battery on a Child Under 14.

The new charges against the former Newton second-grade elementary school teacher at the Underwood School, David Ettlinger, seem to have arisen from the discovery of files of his computer and from search warrants conducted following his initial arrest.

The Suffolk County District Attorney's Office also revealed the discovery of additional photographs that aren't 'pornographic', but have rather termed them as 'troubling.' The photos allegedly depict children playing the playground and on school grounds. Notably, however, Ettlinger did also make an annual video tutorial and photo collage for parents during his tenure at the school, which could also explain these other photographs.

Given the high profile and sensitivity of these charges, however, prosecutors will sort through everything they can find with a fine-tooth comb and certainly seek to charge him with anything they can. It's also been reported that the Ettlinger may also face federal sex crimes charges as well for an alleged connection in a 'global internet pornography ring'.

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February 28, 2012

Boston Man Charged with Murder in Roxbury Shooting Death


Boston Police have arrested a Dorchester man and charged him with Massachusetts Murder Charges in connection with the shooting death of Anthony Depina in Roxbury last week.

Jason Barbosa was arraigned in Roxbury District Court yesterday on charges of First Degree Murder and Gun Crimes Charges.

According to the Suffolk County District Attorney's Office, Jason Barbosa allegedly encountered Anthony Depina in area where Depina wasn't supposed to be, in an alleged referenced to gang turf. A few hours later, Barbosa allegedly encountered Depina again, at which point he is alleged to have shot him in the chest and head.

Prosecutors allege that Jason Barbosa was linked to the crime scene by video surveillance, as well as a GPS device that he was reportedly wearing as a condition of his probation on an unrelated criminal matter.

Simply because prosecutors have alleged that Jason Barbosa was in the vicinity at or around of the alleged murder, that does not necessarily mean that he was the one who pulled the trigger or was otherwise in any way connected with this crime. It is still unclear if there is any other evidence, whether forensic, ballistics, or otherwise, that could more accurately connect Barbosa to this murder.

First Degree Murder in Massachusetts is defined as the unlawful killing committed with deliberate premeditation with malice, and is punishable by commitment to state prison for life.

Following his arraignment in Roxbury District Court, Jason Barbosa was held without bail pending his next court appearance.

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February 27, 2012

Boston University Hockey Player Charged with Rape


Max Nicastro, a Boston University hockey player, was arraigned in the Brighton Municipal Court last week on Massachusetts Sex Crimes Charges for allegedly raping another BU student on campus.

Nicastro was arraigned on two counts of Rape and released on $10,000 bail.

According to the Suffolk County District Attorney's Office, the female student was allegedly raped last Sunday, a few hours following the Boston University and University of Massachusetts-Lowell hockey game. Boston University Police, after conducting "interviews", reportedly arrested Max Nicastro at 6:30 a.m.

The crime of Rape in Massachusetts is defined as the compelling another to engage in sexual acts against their will, and is punishable by life imprisonment for up to 20 years. Additionally, a conviction for rape also carries other collateral severe penalties, including Sex Offender Registration.

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February 19, 2012

Massachusetts High School Student Brings Gun to School


A freshman student at Falmouth High School allegedly brought a gun to school this past week and has been charged with Massachusetts Gun Crimes Charges.

According to Falmouth High School representatives, the student, who is reportedly 15 years old, was allegedly bragging to other students that he had a gun. Falmouth Police were called to the school and found that the student did, indeed, have a gun on him, but it was not loaded.

According to police, the student took the gun from a relative, who is reportedly licensed to carry firearms. His license to carry has reportedly been suspended pending a further investigation.

The student was arraigned in Falmouth Juvenile Court and charged with Unlawful Possession of a Firearm. He was released on personal recognizance and ordered to abide by a curfew and to stay away from Falmouth High School.

The Massachusetts Gun Crime of Unlawful Possession of a Firearm is punishable by imprisonment for not less than 18 months and up to 2.5 years in the House of Corrections. Under Massachusetts law, a "firearm" is defined as a pistol, revolver or other weapon, loaded or unloaded, from which a shot or bullet can be discharged, and whose barrel is less than 16 inches.

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February 3, 2012

Boston Man Charged with Murder of Roxbury Woman


Eldrick D. Broom, 27, of Roxbury, was arraigned today in Dorchester District Court on Massachusetts Murder Charges in connection with the death of Rosanna Camilo on November 21.

Brook has been charged with First Degree Murder and Aggravated Rape.

According to the Suffolk County District Attorney's Office, Broom allegedly attacked Rosanna Camilo inside her Roxbury apartment. Prosecutors allege that he raped and strangled her to death. Camilo's body was found in her bedroom by her 16 year old daughter while her other 17 month old child was in his crib.

Broom reportedly had previously been arrested for allegedly assaulting his pregnant girlfriend, who reportedly lived in an apartment close to Rosanna Camilo's. In that incident, he had been charged with Aggravated Assault & Battery.

At this point, Broom has only been charged at the district court level, and prosecutors would not be very forthcoming with offering all the alleged evidence that may be known to them. Typically from this point forward, prosecutor would be presenting a presentation to the Grand Jury in an effort towards obtaining an indictment. If and when an indictment is returned, Broom will then be arraigned in Superior Court.

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January 25, 2012

Newton Library Employee Charged with Child Pornography


An employee at the Newton Public Library was before the court today on Massachusetts Sex Crimes Charges. He was arraigned in Newton District Court on 3 counts of Unlawful Possession of Child Pornography.

According to the Middlesex County District Attorney's Office, the employee was arrested at his home where Massachusetts State Police investigators allegedly seized a laptop containing several images of child porn. At his arraignment, prosecutors alleged that the man admitting to possession the child pornography and that he had been using a peer to peer network to download the files.

Following his arraignment, the Newton library employee was held on $5,000 cash bail and ordered to have no contact with children under the age of 18 and to stay away from the Newton Public Library.

This is the second such arrest involving Unlawful Possession of Child Pornography. Last week, a Newton Public School teacher was also arrested and charged with similar Massachusetts Sex Crimes Charges.

In many cases involving child pornography, investigators will often target peer to peer networks where users can 'share' and download files from other users onto their own computer. Typically, an investigator will access the network and scan the files available on a person's computer being shared on the network. From there, police will then track who is uploading and/or downloading the files by locating the user's IP address.

The IP address will not provide the user's name, but will provide the investigator's the network, e.g., verizon, comcast, etc., that is hosting the address. Police will then subpoena the internet provider to obtain the registration information and name of the person for that specific IP address.

With this information, police will then apply for a search warrant to enter the person's home and seize the computer and any other images for evidence.

One of the most important and critical pieces of advice I can offer to someone who has been arrested or even being investigated for any crime is to never speak to the police without a lawyer. If the police are targeting you as a suspect or someone they are likely to arrest, they are not your friends. They will not 'help you help yourself'. If they come to your house or 'want to speak with you' about a potential crime you may be involved with they will inevitably arrest you whether you speak to them or not.

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