Recently in Criminal Appeals Category

November 1, 2014

Potential for Ineffective Assistance of Counsel When Attorneys Interview Witnesses Alone


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.

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October 10, 2014

Retesting of DNA Warrants New Trial from Massachusetts Murder Conviction


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...

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March 5, 2014

Massachusetts SJC Rules Peeping Tom "Upskirting" Not Illegal


The Massachusetts Supreme Judicial Court today decided the case of Commonwealth v. Michael Robertson and considered the issue of whether secretly photographing or videotaping a person in a nude or partially nude state is illegal. The court ruled that it is not.

The defendant in this case was charged under M.G.L. c. 272, section 105, "Photographing, Videotaping or Electronically Surveilling Partially Nude or Nude Person", which states in part:

"Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstances would have a reasonable expectation of privacy in not being so photographed or videotaped...and without that person's knowledge and consent..."

The defendant here, while a passenger on a trolley in Boston, allegedly used his cell phone to photograph the woman's upper thigh who was seated across from him. Another passenger who saw what the defendant was doing reported it to the police and the woman later acknowledged that she did not know she was being photographed.

Later on that same date, another female passenger noticed the defendant taking a photo of her crotch area. Using her own cell phone, she took a picture of the defendant photographing her.

In reaching its decision, the Massachusetts Supreme Court analyzed the language of the statute that reads "...another person who is nude or partially nude." The court distinguished between secretly photographing partial nudity and someone who is partially nude. In other words, the court explained that, as written, the statute prohibits the secret taking of a photograph of someone who is in a nude or partially nude state, and NOT secretly taking a photograph of partial nudity.

Put another way, the court interpreted the phrase "partially nude" to mean someone who is partially clothed and who has one or more of his/her body parts exposed at the time the secret photograph is taken. Analyzing the facts of this particular case, the court went on to specifically explain that a female passenger on a train, who is wearing a skirt or other clothing covering her body, is not a person who is "partially nude", irrespective of what is or not on underneath.

Obviously, the purpose of this law was to prevent "Peeping Tom's" from taking voyeur type secret photographs of person's private areas, but the statute as written does not appropriately proscribe that conduct. Given the court's ruling and interpretation of the statute as written, it would now be up to the legislature to revisit and amend the language in the statute.

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August 12, 2013

Accosting Person of Opposite Sex Requires Sexually Offensive Conduct


The Massachusetts Appeals Court recently reversed the conviction of a man who was convicted of Annoying or Accosting a Person of the Opposite Sex where the government failed to provide proof that the alleged conduct involved a sexual element.

The prosecution alleged that the defendant approached a woman and tried repeatedly to converse with her. She ignored his attempts and the defendant then left in his car. Sometime later, the defendant again approached the woman and ordered her to get in the car. Eventually, the defendant drove away, but not before the woman was able to get the man's license plate.

Following trial, the defendant was convicted with having Annoyed or Accosted a Person of the Opposite Sex and appealed.

The Appeals Court reversed the conviction, holding that although the defendant's conduct "may have been offensive in a generic sense", it did not comport with the legal definition of "offensive" under the law.

Under the statute, in order for the conduct to be "offensive", it must have caused displeasure, anger or resentment and was "repugnant to the prevailing sense of what is decent or moral. Whether the conduct is "decent or moral" suggests an intent to reach sexually explicit acts or language.

In this case, the appeals court found, although the conduct was offensive in the general sense, it was devoid of any sexual content, and the evidence was therefore insufficient to prove the crime.

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July 13, 2013

Massachusetts Prosecutors Crossing the Line in Closing Arguments


In the case of Commonwealth v. Joshua Lewis, the Massachusetts Supreme Judicial Court recently emphasized the limitations prosecutors are required to abide by when arguing their cases before juries.

In that case, the defendant was charged with assault with intent to murder and several firearms offenses after being shot and wounded by a Massachusetts State Police Trooper. At trial, the defendant's attorney argued that the defendant did not have a gun, fired at the defendant without justification, and then placed a gun where the defendant was laying.

In closing arguments, the prosecutor made statements to the jury that the defendant was a "street thug" and even went so far as calling the defendant's attorney a liar; and the defendant's theory of defense a "sham".

An except of the prosecutor's closing went like this:

"The entire defense in this case, I'd suggest to you, is a sham."
"[what about] the wad of money in his front pocket. Of course, all us unemployed people have a big wad of money in our pocket. Where's my money? They are street thugs who are out, and that they're going to do with those guns, luckily, we didn't get a chance to find out."
"It's the arrogance of street thugs that gets you in this case."
"As you look over all of this evidence...[it] will be obvious to you that the lies came from [the defense] table. And I'm not leaving out the attorney either..."

The defendant's convictions for the crimes of assault with intent to murder and firearms offenses were reversed by the Massachusetts SJC as a result of these improper comments made by the prosecutor to the jury.

In Massachusetts criminal trials, prosecutor are permitted to argue forcefully for a conviction based on the evidence, but it is improper to refer to: the defendant's election to not testify; misstate evidence or refer to facts not in evidence; interject personal belief in the defendant's guilt; play on racial, ethnic, or religious prejudice; play on the jury's sympathy or emotions; or comment on the consequences of a verdict.

Aside from being completely unprofessional, a prosecutor may also certainly not personally disparage the attorney or infer that the attorney is somehow misleading the jury.

In the same way, it is improper for prosecutors to repeatedly refer to the defendant as a "street thug", as this characterization encourages the jury to find the defendant guilty by virtue of his purported association with known criminals. Particularly in cases where there was no evidence of any such illicit associations, these arguments are extremely prejudicial to the defendant and may rise, as in this case, to the level of requiring reversal of the convictions.

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December 23, 2012

Massachusetts Supreme Court Upholds Murder Dismissal of Juvenile Lynn Defendant


In a recent case, the Supreme Judicial Court upheld the dismissal of a juvenile defendant's Murder dismissal, but also establishing new parameters in murder cases involving juvenile defendants who are to be tried as adults.

In the case of Commonwealth v. Javon Walczak, the Massachusetts Supreme Judicial Court considered whether the trial court properly dismissed an indictment against the juvenile defendant who was charged with Second Degree Murder. The prosecution had presented evidence that the defendant, who was 16 at the time, stabbed the victim (Rene Valdez) when the victim and an accomplice tried to rob him.

Following the defendant's arraignment in the Superior Court, a judge dismissed the indictment because the Commonwealth failed to present sufficient evidence to the grand jury establishing the offense of second degree murder.

Although the Massachusetts Supreme Judicial Court reversed the trial judge's findings and held that there was, in fact, probable cause for the charge of second degree murder, the court also held that the grand jury should have been instructed by the prosecution on the elements of murder, as well as the legal significance of mitigating circumstances raised by the evidence.

The Court specifically held that:

"In any case where the Commonwealth seeks to indict a juvenile for murder, the grand jury must be properly instructed by the prosecutor on the elements of murder, and if there are mitigating circumstances and defenses...raised by the evidence, the grand jury must be instructed as to that as well."

The basis for the court's ruling is that, unlike other crimes, a murder indictment against a juvenile adds significant other consequences, including the case being tried in the superior court, whereas for any other crime he would be tried in the juvenile court.

Presently, the Massachusetts criminal justice system treats juvenile defendants in one of three ways:

If a juvenile is charged by way of a complaint, he may be committed to the Department of Youth Services until the age of 18;

If a juvenile is charged by way of an indictment, he may be classified as a youthful offender and face more severe penalties than a juvenile tried as a delinquent, including the sentence that would be applicable to an adult defendant charged with the same crime;

In circumstances where the juvenile is charged with murder, however, both of these above are inapplicable because the juvenile court does not have jurisdiction over a person between the ages of 14 and 17 and the juvenile defendant indicted for murder must be tried according to the same criminal proceedings as if he were an adult.

For these reasons, the Massachusetts Supreme Judicial Court held that the grand jury must be presented with the elements of the crime and be apprised of any mitigating circumstances to ensure that the integrity of the grand jury process is maintained.

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December 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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August 29, 2012

Massachusetts Court Reverses Murder Conviction for Lowell Man


The Massachusetts Supreme Judicial Court recently reversed the conviction of William Santos, who in 2008 was convicted of the Murder of Luis Daniel Rodriguez during an alleged drug deal. Declaring that certain evidence was improperly admitted at his trial, the court has ordered a new trial.

Prior to his trial, Santos had argued that certain statements he allegedly made to police should have been excluded from trial because he had invoked his constitutional right to remain silent and asked to speak with an attorney. At the time, the judge in the case ruled that he wasn't in 'custody' and therefore, Miranda warnings are not required. The prosecution also pointed out that despite asking for an attorney, he continued to speak to police.

Miranda warning are technically only necessary when the person is subject to interrogation by law enforcement AND he is in custody or in a custodial setting.

The Massachusetts Supreme Court, however, overruled that decision, holding that once there was an unequivocal invocation of his right to speak with an attorney, the interview should have been terminated immediately and the police should not have allowed him to continue to speak.

In all my years in defending persons charged with any crime, I have yet to see a case where the defendant spoke to the police and it benefitted him. In the vase majority of cases where my clients have made statements, the clients then assert that their words were taken out of context, changed and have even denied making statements altogether.

There is a reason why there is a constitutional right to remain silent, for not other reason that whatever you say can and will be used against you in court. Chances are, if the police are questioning you and think you're a suspect, they're not asking questions to help you - they're asking questions to build a strong case and bury you when you get charged.

Unequivocally, the better and safest practice in ANY circumstances is to NOT answer any questions without first speaking to a lawyer.

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June 24, 2012

Massachusetts Court Reverses Woman's Murder Conviction in Death of Baby During Labor


The Massachusetts Supreme Judicial Court recently considered a case where a Milford woman was charged with Murder when she gave birth without medical assistance that resulted in the death of the baby (the baby was later found in the trash).

In its decision, the Court refused to impose a duty upon women that they must seek medical intervention when undergoing unassisted childbirth. The court thereby affirms a person's protected liberty interest in refusing unwanted medical treatment.

In this case, the Massachusetts woman realized she was pregnant after missing her period and then taking a home pregnancy test. She didn't tell anyone about the pregnancy and chose not to see a doctor. Approximately 6 months later, the woman believed she was experiencing a miscarriage and her water broke. After 5 minutes, the baby emerged from her body but was blue.

The woman told police she made repeated attempts to scoop out the baby's mouth and made rescue breaths, but the baby's color never changed and she did not notice the baby cry or move. After not being able to resuscitate the baby, she disposed of the baby in the trash. The police discovered the baby's body a few days later.

The Worcester District Attorney's Office ultimately charged the woman with Murder and, after trial, a jury convicted her. The Supreme Judicial Court however, reversed the conviction and ruled that prosecutor's failed to prove that the woman's decision not to seek medical help was the cause of the child's death. The Court distinguished this case from one where a woman intentionally foregoes medical assistance with the intent to kill her fetus; or where a woman undergoes unassisted childbirth after she was told doing so could jeopardize the baby's life.

Essentially, the Massachusetts Supreme Court held that someone can be subject to criminal liability if a viable fetus is intentionally killed, but this was not the case. In this case, the Court ruled that there was no evidence that the woman had any intention of killing her own fetus simply because she elected to not have medical treatment.

See court's full opinion at Commonwealth v. Allissa Pugh.

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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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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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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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January 26, 2011

Massachusetts Supreme Court Rules Simply Putting Key In Ignition Enough for DUI / Drunk Driving


In the recent case of Commonwealth v. Robert McGillivary, the Massachusetts Supreme Court addressed the legal issue as to whether an intoxicated driver, who only puts the key in the vehicle's ignition without turning the car on, can be found guilty of Drunk Driving in Massachusetts.

By way of background, Robert McGillivary was convicted after trial of Operating Under the Influence of Alcohol. At trial, the evidence presented by the prosecutor was simply that he was found in the passenger's seat of the car and had turned the ignition key once to activate the car's power - but not further to turn the car on. At some point, the defendant testified that he had moved from the passenger seat to the driver's seat, but did not recall ever putting the keys in the ignition. He ultimately found by the police slumped over the steering wheel. At his trial, there was absolutely no evidence that he actually drove the car at all.

McGillivary was convicted after trial and he appealed his conviction arguing that simply turning the car's power on was not "operation" for purposes of the crime of Operating Under the Influence of Alcohol or Drugs.

The Massachusetts Supreme Court, however, said that it was...

In reaching its decision, the court relied on previous Massachusetts caselaw that defined "operation" as anytime a person intentionally does an act or makes use of any mechanical or electrical agency which alone or in sequence sets in motion the motive power of that vehicle.

In following that definition, the court explained that turning the key in the ignition to the "on" position could therefore constitute a part of a sequence that would set the vehicle's engine in motion, thereby constituting "operation."

In my reading of this opinion, there is still an argument to be made that simply putting the keys in the ignition, without turning or activating the electrical power, does not constitute "operation" for purposes of Massachusetts Drunk Driving Laws.

The lesson learned here then, ladies and gentlemen, is that if you are in any way intoxicated and pass out in the car, make sure the keys are not in the ignition...

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