Aiding and Abetting in Massachusetts

November 4, 2015

dumpster-alley-1510844.jpgSomebody can be found guilty of a criminal offense even if he or she didn't actually commit the crime but aided and abetted the perpetrator of the offense in a "joint venture." You can be guilty if you intentionally act with another to commit a crime in order to bring it about and make it succeed. In some cases, statements made by someone in a joint venture are used to convict his or her partner.

In Commonwealth v. DiGregorio, the defendant was found guilty of home invasion, kidnapping, assault, and battery by means of a dangerous weapon. On appeal, he claimed that the judge had improperly admitted statements between two friends, these statements didn't fall under any exceptions to the hearsay rule, and they were therefore inadmissible.

One of the exceptions at issue was the joint venture exception to the hearsay rule. Under this rule, when joint criminal venturers make out-of-court statements against others, these statements are admissible if they are made while a criminal enterprise is pending and in order to further it. The judge must determine whether there was a criminal joint venture between the person making the statement and the defendant, but the judge doesn't need to make a preliminary ruling that there was a joint venture. The evidence can come in, subject to a motion to strike at a later time if the prosecution doesn't show there actually was a criminal enterprise. The judge needs to give a jury instruction informing the jury they can only consider the hearsay if they find there was a joint venture, based on all the other evidence except the hearsay statements.

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Criminal Harassment in Massachusetts

October 15, 2015

telephone-1543585.jpgIn Commonwealth v. Leboeuf, the defendant appealed from a conviction for criminal harassment and making harassing telephone calls under G. L. c. 265, § 43A and G. L. c. 269, § 14A. He presented seven arguments as to why the conviction should be overturned: insufficient evidence, erroneous denial of a motion to dismiss, improper entry of a partial nolle prosequi, violation of due process, erroneous jury instructions, violation of confrontation rights, and double jeopardy.

The case arose when a woman received about 30 phone calls on her cell phone from an unavailable number in the middle of the night. She recognized the defendant's voice when he asked for contact information for her friend, who was also the mother of his child. She refused to give him the information, but he continued calling both her cell phone and her employer's home phone. He asked her if he needed to come to Boxford, which was the location of the home where she served as a nanny. After 26 phone calls, she let her employer know and called the police.

In order to prove criminal harassment, the Commonwealth must show: (1) the defendant engaged in a knowing series of actions or speech on at least three different occasions, (2) the defendant intended to target the victim with harassment, (3) the conduct was such that it seriously alarmed the victim, (4) a reasonable person would suffer significant emotional distress due to the conduct, and (5) the defendant acted maliciously and willfully. The defendant argued that the Commonwealth had not shown the conduct was willful and malicious or that a reasonable person would have experienced significant emotional distress.

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Threatening to Commit a Crime in Massachusetts

October 1, 2015

depressed-girl-1429979.jpgUnder Massachusetts General Laws, Chapter 275, Section 4, it is a crime to threaten to commit a crime against someone else. If the defendant is convicted, he can be punished by a fine of $100 or less, or by imprisonment for six months or less. In many cases, there are additional charges brought against someone prosecuted for threatening to commit a crime, such as assault and battery.

In Commonwealth v. Montoya, the court considered a case in which the defendant was convicted of assault, battery, and threatening to commit a crime. The crimes arose from a turbulent romantic relationship between the defendant and the victim. The victim lived with the defendant, their four-year-old son, and her daughter from an earlier relationship. The defendant accused the victim of infidelity, and this developed into a physical confrontation.

The victim ran from the apartment with the children and went to her aunt's, where she called 911 to report domestic violence. She asked the police to hurry because the defendant was crazy and was using her car to chase her around the neighborhood. A police officer responded to the call and came to the victim's apartment. The officer observed blood on the victim's ear, scratches, and a bruise. The apartment was in disarray.

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OUI on a Suspended or Revoked License in Massachusetts

September 14, 2015

kitchen-1484790.jpgIn the recent case of Commonwealth v. Ross, the defendant appealed from an OUI conviction, her fifth offense, and operating a motor vehicle under the influence with a suspended or revoked license under
Massachusetts G. L. c. 90, § 23.

The case arose when the defendant was driving on a part of the road that was under construction. Later, someone working at the construction site would testify he saw the defendant crash into a construction vehicle parked there. The police came to the scene shortly thereafter. A policeman asked to see the defendant's license, and she told him she didn't have one that was good. He continued to interview her and then arrested her for an OUI. Her vehicle was searched, and wine bottles were found.

At trial, the defendant claimed her appearance and actions during the interview and arrest were due to the fact she suffered from seizures. The judge bifurcated the trial. In the first part of the trial, the judge heard testimony about what happened leading to the arrest. He ultimately found her guilty of operating a car with a suspended or revoked license and of an OUI. In the second half, the defendant stipulated to the evidence, and the judge determined the defendant was guilty of OUI, fifth offense, and that her license had been revoked for a previous OUI conviction.

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Choosing Not to Testify in a Massachusetts OUI Trial

September 2, 2015

booze-1481628 (1).jpgIn Commonwealth v. Botelho, the defendant appealed after being convicted of a second offense OUI. The only issue before the jury at trial was whether he was drunk at the time of the collision or whether his demeanor arose out of his hearing impairment plus the effect of the crash.

The case arose one night in 2012, when an officer responded to a dispatch about a one-vehicle accident. The defendant was discovered behind the steering wheel of a truck that had crashed into a utility pole. There was significant damage at the front of the car, and the side air bag had deployed. When the defendant got out of the truck, he said his stabilizer broke. He said he hadn't been drinking.

However, the arresting officer later testified that the defendant's speech was slurred and his eyes were bloodshot, and that he smelled of alcohol. When he administered two field sobriety tests, the defendant tried to perform the tests before he'd finished giving instructions. The officer failed the defendant for both tests and then arrested him and charged him with OUI and negligent operation of a motor vehicle.

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Motion to Suppress Breathalyzer Test Results in Massachusetts OUI

August 17, 2015

breathalyzer-1240974.jpgIn Commonwealth v. Cormier, the defendant was arrested for an OUI and speeding in 2012. He agreed to take a Breathalyzer test. The results of the test showed he was above the statutory limit for alcohol consumption.

During discovery, the defendant asked for the manual for the particular Breathalyzer machine that had given results in his case. The Office of Alcohol Testing (OAT) responded there was no manual. In response, the defense asked to exclude the breath test under 501 Code Mass. Regs § 2.04(f), which requires OAT to develop and maintain an operator's manual.

The defense asked for an evidentiary hearing. At the hearing, an OAT supervisor testified that the machine in question was new and had only been introduced the year before the defendant's arrest and that it was in use throughout the state. She explained the machine had two parts. The information related to the first part, the inner workings that measured breath, wasn't in a manual because the manufacturer had a proprietary interest in the technology. The second part related to state-specific software that had to be installed because of different breath test requirements across the country.

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Breaking and Entering in Massachusetts

August 5, 2015

buildings-and-creations-2-1518248.jpgBreaking and entering is a crime under G. L. c. 266, § 18. The law defines breaking and entering as the act of entering a dwelling at night or a building, ship, or motor vehicle during the day with the intent to commit a felony. It can lead to fines as well as substantial terms of incarceration in state prison. Punishments are increased for those who break and enter while armed.

In Commonwealth v. Bethune, a defendant appealed from convictions for breaking and entering with intent to commit a felony and stealing in a building. The convictions arose from two different events. The first involved a breaking and entering when the police saw him walking with a jewelry box that they later learned was stolen. The second involved a breaking and entering when the police saw the defendant flee from a house with the burglar alarm ringing.

The second incident arose when the police officer was parked across the street for other reasons and heard a voice alarm. He came up to the house where the alarm was sounding, and he saw someone wearing a tank top leave. The officer yelled for the defendant to stop to no avail, and he and another officer ran after the man. Eventually the first officer had to stop, but the second officer continued running after the man. A third officer joined in and saw someone running who matched the description he'd been given, and he saw him hide behind a trash compactor. The original two officers came and identified the defendant as the person who had fled 3-4 minutes before.

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Probable Cause in Massachusetts Drug Crime Cases

July 20, 2015

file0001336124698.jpgIn Commonwealth v. Jovani A. Garcia, the defendant was charged with possession with intent to distribute crack cocaine. Two detectives were doing undercover surveillance in a "high crime area" at the prompting of neighbor complaints. One detective was in an unmarked vehicle, while another was near a residential building.

A detective saw a car turn right on the street, stayed still, drove north, and then made a U-turn to drive south again. Around the same time, a man came out of the building. The detectives were familiar with him. They described him as "light-skinned" and "Spanish." The man got into the car's back seat. The car traveled a short distance and stopped, whereupon the man got out and went back inside the building and the car drove off.

The police believed they'd just witnessed a drug transaction. They radioed takedown detectives to stop the car. At the stop, the takedown officers discovered 3-4 bags of crack cocaine on the front seat.

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Armed Assault with Intent to Murder in Massachusetts

July 1, 2015

pistol-1329261-m.jpgIn Commonwealth v. Rivera, co-defendants were convicted of armed assault with intent to murder, armed robbery, assault and battery with a dangerous weapon, kidnapping, and armed carjacking. They appealed from their conviction. One claimed the judge showed racial bias during jury selection and that there was insufficient evidence to sustain a conviction for armed assault with intent to murder. The other challenged a jury instruction on eyewitness identification and remarks in the prosecutor's closing argument.

The case arose when the defendants stopped the victim, a food delivery driver. They wanted a ride. One of the defendants sat in front while the other sat in back. The defendant in front showed the victim a gun and told him to drive them to various places. At a stop where one defendant's friend lived, the other defendant grabbed him by the neck and beat him with the gun, pulling him into the back of the car. The other defendant moved into the driver's seat. The victim heard the defendants say they would kill him and throw him in the lake.

The victim managed to get the back door open, but the defendant in the front seat got out and hit him with the gun. The defendant said he would kill him for staining his shorts. The defendants robbed the victim of about $1,400 plus his cell phone. The victim ran away and heard three gunshots. One of the defendants pointed a gun at him.

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Motor Vehicle Homicide in Massachusetts

June 15, 2015

engine-start-button-1445913-m.jpgUnder G. L. c. 90, § 24G(b), somebody who operates a car or other vehicle recklessly or negligently and endangers the lives of others, and thereby causes another's death, can be convicted of homicide by a motor vehicle. The punishment is imprisonment in jail or a house of correction for a minimum of 30 days and a maximum of 2 1/2 years, or a fine of $300-3,000, or both of these.

In Commonwealth v. Gallien, the defendant was convicted of motor vehicle homicide by negligent operation. The evidence showed the defendant didn't stop the tow truck he was driving, resulting in a crash with a Honda Civic stopped at a red light. The collision killed a passenger in the rear-seat of the Honda.

The judge precluded the defendant from presenting evidence about modifications made to the Honda. The court explained that in criminal cases, a victim's contributory negligence, even if it is a big part of the cause of a homicide, doesn't excuse the defendant for also causing the victim's death. To the extent that the defense's goal was to show the victim was also negligent, excluding the evidence was proper. On appeal, however, the defendant argued that the modifications evidence should have been admissible not to show the victim's negligence, but to show that the driver's actions were an intervening or superseding cause of the victim's death. The driver was a third party, not the victim.

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Sufficient Evidence for OUI Conviction in Massachusetts

June 1, 2015

glass-of-beer-1440646-m.jpgUnder G. L. c. 90, § 24(1)(a)(1), anybody in Massachusetts who operates a motor vehicle in a place where the public has access with .08 blood alcohol content, or while under the influence of intoxicating liquor, marijuana, narcotics, depressants, stimulants, or glue vapors can be punished by a fine of $500-$5,000 or by imprisonment for not more than 2 1/2 years, or both. A person who is convicted, is placed on probation, or otherwise pleads guilty to an OUI is subject to an assessment of $250, which cannot be reduced or waived by the court.

If the defendant was previously convicted or assigned to an alcohol substance education or rehabilitation or treatment program, the defendant faces a fine of $600-$1,000 and imprisonment of 60 days-2 1/2 years. The sentence may not be reduced to less than 30 days, and the defendant won't be eligible for probation, parole, or furlough.

In Commonwealth v. Nahimana, the appellate court reviewed the sufficiency of evidence for the OUI conviction of a defendant who was not given a breath or blood test. The case arose when the defendant was driving 25 mph on a 55 mph roadway after midnight, and a state trooper who was off-duty pulled him over. The trooper observed that the defendant's slow speed was causing other cars to swerve or hit the brakes. He also saw that the defendant's car failed to signal when crossing about 75% of the left lane, before moving back into his own lane.

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Credibility of the Victim in a Massachusetts Indecent Assault Case

May 19, 2015

police-cruiser-1066864-m (1).jpgIn the nonbinding Massachusetts appellate case of Commonwealth v. Morris, the court considered a defendant's conviction by jury for assault with intent to rape, assault and battery, and indecent assault and battery. He appealed on the grounds that the judge should not have allowed improper testimony about the demeanor of the victim and that the prosecutor's closing argument improperly supported the government's rebuttal witness.

The case arose when the victim was hitchhiking with three friends. The defendant picked them up, and the victim sat in the front seat. When the defendant came to the victim's street, he drove to a street that was past her house, and when the victim asked that he stop the car, he refused. She opened the door and jumped out of the car as the defendant slowed down. The victim tried to run back to the main road, but the defendant knocked her down and sexually assaulted her.

The victim passed out and then heard someone yell that the cops were coming. The defendant left, but the victim memorized some of the numbers on the defendant's license plate. When the police came, she gave them the details of the attack and a description of the defendant. The next morning, an officer took her and a friend to identify the defendant, which she did.

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Is There a Problem with Breathalyzer Testing Equipment in Massachusetts?

May 4, 2015

breathalyzer-465392-m-3.jpgLast month, prosecutors in certain Massachusetts counties suspended the use of Breathalyzer test results in OUI cases. Meanwhile, the State Police reviewed whether the test procedures were reliable. In March, prosecutors were told about concerns with the tests, which caused a number of attorneys to look at older cases to see whether there were Breathalyzer test results with issues.

A spokesperson for the Executive Office of Public Safety and Security stated that when properly maintained, the breath test instrument is one of the most accurate tools available to identify drunk drivers. However, the district attorney for Middlesex County claimed that the issue was the calibration of Breathalyzers, and her staff was temporarily ordered to stop using test results in cases. Similarly, the Cape and Islands district attorney issued an order not to introduce the breath test in any case until further information is obtained. One official initially claimed that 69 out of 6,000 tests administered throughout the state were involved.

At the end of April, the Public Safety Secretary Daniel Bennett announced that only a small number of 39,000 breath analysis tests were flawed because police officers had made mistakes calibrating the machines. He claimed the tests themselves were not malfunctioning.

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Misleading a Police Officer in Massachusetts

April 15, 2015

ready-to-roll-542939-m.jpgIn the case of Commonwealth v. Parker, a Massachusetts appellate court issued a nonbinding decision ruling on the crime of misleading a police officer engaged in a criminal investigation. The case arose when a police officer was dispatched to a street in Chelsea after shots were purportedly fired at the defendant bus driver.

The officer arrived at the scene. The defendant told the officer that someone boarded the bus, showed a handgun, and ordered her to hand him all her money, and then fired a shot that lodged in the driver seat. The defendant claimed she stood to get her wallet, but the person hit her and caused her to fall on the floor, and then the person snatched her wallet and fired shots at her. She claimed none of the bullets struck her, but two of them pierced the sleeve of her jacket.

The defendant described her attacker as a white male wearing a hooded jacket and told the officer that his firearm was similar to the officer's. The officer conducted a search of the bus but didn't find any shell casing that would have been ejected if a gun like his had been fired. He also didn't smell gunpowder residue.

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Possession with Intent to Distribute Drugs in Massachusetts

April 2, 2015

addiction-215628-m-2.jpgIt is a felony to distribute or possess with intent to distribute a controlled substance in Massachusetts, if the substance falls into class A, B, or C. Distribution or possession with intent to distribute a controlled substance that falls into class D or E is a misdemeanor. Class B drugs include cocaine, crack cocaine, or methamphetamine.

Section 32A of Chapter 94C provides that conviction of manufacturing, distribution, or intent to distribute is punished by up to 10 years in state prison and up to a $10,000 fine. With a prior similar drug crime conviction, the mandatory minimum is two years in state prison. Those serving a mandatory minimum for this offense are only eligible for parole after serving half of the maximum term of the sentence if the sentence is to the house of correction, unless there is a finding of an aggravating circumstance, such as use of a firearm or threats of violence.

Possession with intent to distribute is a charge that usually relies on circumstantial evidence, and intent can be proved by evidence showing you had multiple individually wrapped baggies of drugs and large amounts of cash. Often, these charges can be defended by arguing that the way the police found the evidence was illegal.

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