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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January 18, 2012

Newton School Teacher Charged with Child Porn


A Newton Public School Teacher was arraigned yesterday in Brighton District Court on Massachusetts Sex Crimes Charges. He was arraigned on two charges of Unlawful Possession of Child Pornography.

According to the Suffolk County District Attorney's Office, the Newton second-grade teacher allegedly had hundred of images on his computer that they say constitute child pornography; and also allegedly discovered videos of the teacher allegedly assault a young teenage girl.

The teacher, who was reportedly very well respected by his peers and the Newton Public School system, was arrested at his home in Brighton after the Massachusetts State Police executed a search warrant.

Following his arraignment in Brighton District Court, the teacher was held on $10,000, but was also detained without bail as a result of an outstanding warrant in West Roxbury District Court on what is believed to be additional Sex Crimes Charges.

Unlawful Possession of Child Pornography in Massachusetts is defined as the possession of a photograph or visual reproduction of any child whom the person knows or reasonably should know to be under the age of 18, and the child is engaged in sexual intercourse or otherwise depicted in an act or pose of a sexual nature.

A person convicted for the Sex Crime of Possession of Child Pornography may face up to 5 years in state prison and will also render him/her subject to the Massachusetts Sex Offender Registry Laws.

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January 17, 2012

Massachusetts Police Arrest Man Driving Wrong Way on I-93


Massachusetts State Police arrested Richard S. Saunders, of Reading, on Monday night on Motor Vehicle Charges after he allegedly drove the wrong way on I-93 in Boston.

Saunders was charges with Reckless Driving, Receiving Stolen Motor Vehicle, and Failure to Stop for Police.

According to the Suffolk County District Attorney's Office, Massachusetts State Police began pursuing a minivan that had been reported out of Medford earlier Monday morning. The 'slow-speed' pursuit reportedly began in Dorchester and eventually led into South Boston and onto I-93.

State Police called off the pursuit for safety concerns when the vehicle began going the wrong way on I-93, but the minivan nonetheless still caused a 4 car crash and eventually exited the highway at the Neponset Circle exit.

Saunders had allegedly fled the vehicle and was arrested after he was allegedly found hiding under a pickup truck.

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January 10, 2012

4 Charged with Massachusetts Drug Trafficking Over 75 Pounds of Marijuana


Lowell Police yesterday arrested four people on Massachusetts Drug Crimes Charges in connection with the seizure of 75 pounds of marijuana and 2 guns.

Phaly Chhoeun, 28; Samnang Sath, 34; Sanith Siv, 35; and Mao Keo, 33, all of Lowell, are each facing charges of Drug Trafficking; Drug School Zone Violation; and Conspiracy to Violate the Massachusetts Drug Laws.

Mao Keo is also charged with Massachusetts Gun Charges and being an Armed Career Criminal.

The drug investigation by the Lowell Police Department that led to these arrests came after police executed a search warrant at an apartment in Lowell.

In many drug cases where search warrants are involved, police will often have to rely on a period of undercover surveillance of the target location and the suspected individuals believed to be involved. Sometimes police will also employ undercover police officers, but most often they will rely on confidential informants who will conduct 'controlled drug buys' with the individuals.

In drug investigation where police believe that drugs are being sold from a particular location but are unsure of the identity of the individuals involved, the use of confidential informants becomes even more important. Sometimes, however, police will be reluctant to reveal the identity of the confidential informants, even at trial, and this could sometimes prove advantageous to the defense.

In every case involving search warrants in drug cases, the application for the search warrant should be scrutinized extremely carefully for any deficiencies. In some cases, the probable cause necessary for the issuance of the search warrant may be lacking, and the person may have meritorious challenge in getting the drugs excluded (by filing a Motion to Suppress Evidence).

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December 30, 2011

Misleading a Police Officer is a Crime in Massachusetts


In Massachusetts, it is a crime to lie to or mislead a police officer, or otherwise impede a criminal investigation.

Under the Intimidation of a Witness statute, the Massachusetts legislature criminalized conduct where a person willfully misled or lied to a person furthering a criminal investigation with the intent to impede or obstruct justice.

In one recent case, Commonwealth v. Patrick Fortuna, the Massachusetts Appeals court considered a case where the defendant had been shot. While being treated at the hospital, he was interviewed by the police about who had shot him. He told the police that he was shot while walking home and didn't know by whom, because the shooter had been far away.

During questioning, however, the police officer noticed what appeared to be gunshot residue near his wound and on his clothing. When the officer questioned the defendant about the gunshot residue, the defendant became confrontational and refused to answer any further questions.

At trial, the prosecutor called a forensics experts from the Boston Police crime lab who offered testimony that, based on the chemical testing of the gunshot residue on the defendant's clothing, he had been shot from a distance of no more than 18 inches. Based on this testimony, a jury then convicted the defendant of Intimidation of a Witness for intentional misleading a criminal investigation.

In considering the defendant's appeal of his conviction, the Appeals Court ruled that where the defendant's account differed from the account of the forensic expert, a jury was able to infer that the defendant had lied or intentionally misled police.

It seems almost paradoxical that a person has a right to remain silent by asserting his Privilege Against Self-Incrimination, yet can be prosecuted and sentenced to prison for lying to police for fear of facing criminal prosecution. The better practice, under the law, would be simple to refuse to answer any questions and consult with an attorney.

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December 28, 2011

Massachusetts Criminal Appeals: New Trial Motions


images.jpegThose convicted of any crime in Massachusetts should always consider challenging their conviction by filing an appeal. One way to litigate a Massachusetts Appeal is asking the trial judge to consider a Motion for New Trial based on undisclosed evidence by the prosecution.

In order to secure a new trial on the basis of undisclosed evidence, a defendant must be able to establish 3 things:

  1. the evidence was in the possession, custody or control of the prosecutor;

  2. the evidence is potentially exculpatory (e.g., tends to show evidence of innocence); and

  3. the prosecutor's failure in disclosing the evidence prejudiced the defendant.
Once the defendant has demonstrated to the trial judge that the evidence was potentially exculpatory, he must establish that he was prejudiced by not having had the benefit of this evidence. In order to establish prejudice, the assessment is whether there is a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial.

In a case recently litigated before the Massachusetts Supreme Judicial Court, the defendant had filed a Motion for New Trial based upon the prosecutor's failure to produce exculpatory evidence.

In the case of Commonwealth v. Murray, the defendant had been convicted of 1st Degree Murder. During the trial, the defendant had brought forward a theory of manslaughter based on the assertion that the victim was a gang member. The trial judge, however, did not allow the defendant to refer to the assertion that the decedent and his friends were part of a "gang", but only allowed him to reference their affiliation as a "group". During the trial, the witnesses also denied they were part of a gang; and a police officer who testified at trial also stated that he wasn't sure that the decent was a member of that 'group'.

Two years after the trial, 20 members of that gang were indicted by state and federal prosecutors. Those indictments, however, contained an affidavit that referenced this group as a violent street gang; identified 3 of the witnesses who testified at trial as gang members; and also identified the decedent as a gang member.

Even though that the defendant's attorney had not specifically requested the gang related information prior to the trial, the Massachusetts Supreme Judicial Court upheld the Motion for New Trial on the basis that the information contained in the affidavit could "bolster [the defendant's] theory of the case, contradict the testimony of [witnesses], and demonstrate their motive to lie."

In this regard, as a result of the newly discovered evidence, the judge ruled that there was a 'substantial miscarriage of justice' because, if the jury had heard this evidence, they could have reached a different verdict.

Contact a Massachusetts Criminal Appeals Lawyer.

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December 26, 2011

Massachusetts Appeals Court Issues Detrimental Opinion on "Constructive Possession"


In the recent case of Commonwealth v. Romero, the Massachusetts Appeals Court issued a split-decision where the defendant, charged with Massachusetts Gun Crimes, challenged his conviction based on insufficient evidence for "constructive possession".

The defendant in the case was in the driver's seat of a parked car - he was the owner and operator in the car - along with three other passengers who were sitting in the car as well. At 1:30 a.m., a police officer drove past the car and testified that, as he drove by, he could only see the top of 4 peoples' heads because they were crouching down in their seats. Upon seeing this, the officer turned around and parked behind the defendant's car.

As the officer began to approach the car, from about 3 feet away, he testified he could see in the car and from his vantage point one of the rear passengers reach towards the front of the car through the two front seats, this while the defendant/driver was looking side to side and also looking at the front seat passenger, who was looking at an object in his hand.

When the officer shined the flashlight into the car, the front seat passenger dropped the object in his lap, which turned out to be a gun. The defendant denied any knowledge of the gun being in the car. At trial, the defendant testified that when he picked up the front seat passenger, he showed him a gun and that he had touched it.

In his appeal, the defendant challenged the sufficiency of the evidence at trial as to Unlawful Possession of a Firearm based on "constructive possession".

Under Massachusetts criminal law, in order to prove "constructive possession", the Commonwealth must establish knowledge on the part of the defendant, coupled with the ability and intent to exercise dominion and control over the object. The court has recognized that mere presence, without more, is not enough to demonstrate knowledge or ability to and intent to exercise dominion and control, but could be inferred with the presence of other incriminating evidence.

The Appeals Court in this case rejected the defendant's challenge that there was insufficient evidence of knowledge and held that because the gun was on the lap of the front seat passenger and the defendant was sitting next to him, the evidence was sufficient.

With regard to whether there was sufficient evidence of "ability and intent to exercise control" of the gun, the Appeals Court was divided. Unfortunately, the majority relied on several "plus factors", in addition to mere presence, that warranted the inference that the defendant intended to exercise control over the firearm. Among the "plus factors" the Appeals Court relied upon were (1) ownership of the vehicle; (2) the defendant was the operator of the car; and (3) the defendant's proximity to the person who had the gun, which was in plain view (and not hidden). The court also noted other "incriminatory factors" that suggested "intent", including that the occupants were slouching down, the location of the incident on a dark street; and the time of night.

In reaching its decision, the majority of the Appeals Court reasoned that:

"an owner and operator of a motor vehicle, who has knowledge of the presence of a firearm, unquestionably has the ability to exercise dominion and control over that firearm...if the owner and operator of the car chooses not to exclude a passenger who he knows has a weapon, it is a reasonable inference that the owner and operator also has the intent to exercise dominion and control over the firearm as he does over the car itself."


I believe the dissent, however, correctly pointed out that the majority in this decision essentially created a new strict liability for vehicle owners or operators, even if they truly had not intent to possess a weapon or any other unlawful object. The dissent cautioned that "courts may now punish an owner or operator of an automobile, or a property owner, for simply tolerating the presence of a weapon or contraband within the limits of their proprietary interest."

Moving forward, one would hope that a further appeal is taken and the matter is review by the Massachusetts Supreme Court.

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December 24, 2011

Massachusetts Man Arrested in Mall Robbery


Randolph Police reported that they have arrested a man that was wanted in connection with the late-night robbery in the North Dartmouth Mall.

Michael Killory, 26, was arrested and charged with Armed Robbery while Masked; 4 counts of Assault with a Dangerous Weapon; and Use of a Firearm in Commission of a Felony.

According to police, Michael Killory allegedly exiting one of the dressing rooms at a store in the North Dartmouth Mall wearing a ski mask. He allegedly ordered the store employees on the floor and grabbed a deposit cash bag before running out the rear door.

Recent reports have suggested that one of the store employees followed him out the door and, when Killory took the ski mask off prior to getting into his car, the employee recognized him as someone he had worked with in the past at that same store.

Randolph Police reported that Michael Killory was arrested at the Outback Steakhouse in Randolph, where he was currently employed.

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