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The Massachusetts Appeals Court recently ruled that it is reversible error and improper for a prosecutor to suggest the defendant had the opportunity to tailor his testimony and lie because he had heard the other witnesses during trial.  This issue was addressed in Commonwealth v. Alphonse, and because the error was reversible, the defendant’s conviction was reversed.

The defendant was tried for the crime of assault & battery in the Brockton District Court.  During closing arguments, the prosecutor argued:

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The Massachusetts Supreme Judicial Court considered whether evidence or documents that were provided to an attorney by the client are obtainable by prosecutors from the attorney via subpoena.  The question, the court ruled, depends on whether or not the the evidence was provided to the attorney for purposes of legal assistance.

This case involved circumstances where the defendant was the subject of a grand jury investigation who, in the course of seeking legal advice, had given his phone to his lawyer.  The government, on behalf of the grand jury, obtained an order from a superior court judge ordering the attorney to produce the phone so that the grand jury could examine its contents.  The attorney refused to honor the superior court judge’s ordering him to do so and the appeal reached the Supreme Judicial Court. Continue reading →

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The Massachusetts Supreme Judicial Court addressed the issue whether a defendant, who was the object of the police investigation, may still move to suppress evidence seized from the co-defendant under the theory of “target standing”.  Target standing is a legal theory that permits a defendant, who is charged with a possessory offense, such as unlawful possession of drugs or guns, to challenge the lawfulness of the seizure of that evidence even though it may have been seized by police from a co-defendant or other third-party.

In the case of Commonwealth v. Santiago, the SJC held that, a challenge to the suppression of evidence on the theory of target standing does not apply unless the defendant is charged with a possessory offense, even though he may have been the primary suspect in the police investigation. Continue reading →

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In the recent case of Commonwealth v. Walter Crayton, the Massachusetts Supreme Judicial Court established a new standard for the admission at trial of an in-court identification of the defendant where the witness had not, prior to trial, been asked to participate in an out of court identification procedure.  The new rule imposes the burden on the Commonwealth to request. prior to trial, that the prospective witness be permitted to make an in-court identification if there has not been any previous identification of the defendant.

Once the prosecutor makes this request, the burden remains on the defendant to establish that the proposed in-court identification would be “unnecessarily suggestive” and that there would be no “good reason” for it.  Examples of “good reason” for the first identification procedure by a witness against a defendant at trial may include circumstances where the eyewitness was familiar with the defendant before the commission of the crime; or where the eyewitness was the arresting officer.  In other words, circumstances where the witness and the defendant were known to one another or where the identity of the defendant is not a live issue at trial – where the witness is not identifying the defendant based solely on his memory of witnesses the defendant at the time of the incident and therefore, little risk of misidentification from the in-court show-up. Continue reading →

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The Massachusetts Appeals Court recently suppressed evidence in a case that was seized as a result from an arrest by Boston Police based on mistaken information.  In the case of Commonwealth v. Maingrette, the Appeals Court ruled that the arrest, based on a default warrant that was no longer active at the time of the defendant’s arrest, was unlawful and evidence seized as a result must be suppressed.

When “an arrest is wrongly made on the basis of mistaken information chargeable solely to the police, the burden is on the government to show that i twas not at fault in the circumstances” and that the mistake was reasonable.”

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In a case decide today, in L.L., a Juvenile v. Commonwealth, the Massachusetts Supreme Judicial Court rules on the standard a juvenile court judge determines the risk of re-offense on the part of a juvenile who committed a ‘sex offense’ that imposes the requirement of sex offender registration.  The SJC ruled that, even as it pertains to juvenile offenders, it is within the judge’s discretion to determine whether the juvenile offender should or should not be relieved of the obligation to register as a sex offender.

In this case, the juvenile was charged in Essex County Juvenile Court as a result of allegations that occurred in Lynn, Massachusetts.  The juvenile was charged with two counts of Indecent Assault & Battery on a Person.  The charges arose from allegations that the juvenile, who was 16 at the time, went up to an adult woman from behind; pulled down her pants; and then made inappropriate comments about her private area while also grabbing his genitals.  A week after this incident, the juvenile did something very similar to a second woman. Continue reading →

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

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

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

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

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

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

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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…