Boston Criminal Defense Lawyer Blog

Appellate Court Affirms Violation of Defendant’s Probationary Sentence

Published on: October 27, 2018 | by Patrick J. Murphy, Esq.

Recently, a state appellate court issued an opinion in a Massachusetts violation of probation hearing that was premised on the defendant’s alleged possession of an unlicensed firearm. The case presented the court with the opportunity to discuss the quantum of evidence necessary to sustain a violation of probation.

The Facts

The defendant was a juvenile who was placed on probation for an unarmed robbery. While on probation, the defendant was arrested for the possession of a firearm without a license. Evidently, police responded to a call for an instance of breaking and entering. Upon entering the residence, police found several teens in the attic. The defendant was sitting on a chair with a black jacket draped over the back of it.

The police officers put all the teens up against the wall after seeing what they believed to be a handgun protruding out of another teen’s jacket. After searching all the teenagers, police officers found a gun in the black jacket that was draped over the chair that the defendant was sitting in. Later in the evening, two of the teens in the attic told police that the black jacket belonged to the defendant. However, one of the other teens told police that it was his jacket.

The Issue of Race and Jury Selection in Massachusetts Criminal Trials

Published on: October 9, 2018 | by Patrick J. Murphy, Esq.

During jury selection in a Massachusetts criminal trial, both the prosecution and the defense are able to ask the court to strike potential jurors from the jury whom they do not believe could be fair. These strikes “for cause” are unlimited in number. However, both sides are also given a limited number of peremptory strikes, which can be used at the party’s discretion.

Decades ago, in a landmark case issued by the United States Supreme Court, the Court held that a criminal defendant has a constitutional right, under the Equal Protection Clause of the 14th Amendment, to ensure that members of his race are not excluded from the jury pool based solely on their race. Since then, Massachusetts criminal courts have implemented their own rules to deal with a prosecutor’s racially discriminatory use of their peremptory strikes during jury selection.

In a recent case, the Supreme Judicial Court of Massachusetts discussed the analysis that must be conducted when a defendant raises this type of challenge. The facts of the case are not particularly relevant to the court’s discussion; however, the case involved an African-American man who was charged with homicide.

Court Denies Defendant’s Motion to Suppress Text Message Sent to His Phone While in Police Custody

Published on: October 9, 2018 | by Patrick J. Murphy, Esq.

Recently, a state appellate court issued an opinion in a Massachusetts criminal law case discussing whether a text message that was sent to the defendant’s phone while the phone was in police custody should be suppressed. Ultimately, the court concluded that the phone was lawfully seized after a search incident to the defendant’s arrest. Further, the court held that the manner in which the officer saw the text message did not constitute a “search.” Thus, the court denied the defendant’s motion.

The Facts of the Case

A police officer observed what he believed to be a drug transaction being conducted in a grocery store parking lot. As the police officer approached the defendant, who was alleged to have been the seller, the defendant ran. Another police officer caught up to the defendant a short time later and arrested him. The officer found cash and a cell phone on the defendant, and a black bag containing crack cocaine nearby on the ground.

The police officer took custody of the defendant’s phone and took it back to the station. A short time later, while the defendant was being processed, the cell phone began to ring. The officer looked at the ringing phone and saw a text message notification on the main screen. The court did not disclose the contents of the message, but it was likely damaging to the defendant as the prosecution planned on entering it into evidence. The defendant filed a motion to suppress the text message, arguing that it was discovered as the result of an illegal search.

Massachusetts Court Considers Whether Juvenile Adjudications Qualify as Predicate Offenses under the ACCA

Published on: September 20, 2018 | by Patrick J. Murphy, Esq.

Recently, a state appellate court issued a written opinion in a Massachusetts gun possession case discussing whether a defendant who is found guilty of a qualifying offense, and has previously been adjudicated delinquent of another qualifying juvenile offense, can be sentenced as a repeat offender under the Armed Career Criminal Act (ACCA). In discussing the issue, the court conducted an analysis of the Eighth Amendment protection from “cruel and usual” punishment. However, the court ultimately concluded that qualifying juvenile adjudications may count as predicate offenses under the ACCA.

The Facts of the Case

The defendant was arrested and charged with unlawful possession of a firearm and carrying a loaded firearm in a Massachusetts gun case. After a jury trial, but before the defendant was sentenced, the issue was raised as to whether the defendant should be sentenced under the ACCA as a repeat offender. Specifically, the issue presented to the court was whether the defendant’s juvenile adjudications, of which there were two, counted as “convictions” under the ACCA.

The Massachusetts ACCA creates a tiered system of punishment under which those who have previous qualifying convictions are sentenced to mandatory minimum sentences based on the number of previous qualifying convictions. The mandatory sentence for each subsequent conviction gets longer, ultimately reaching a sentence of 15 to 20 years for those with three or more qualifying convictions.

Massachusetts Court Explains the Difference Between “Attempted” and “Threatened” Battery

Published on: September 1, 2018 | by Patrick J. Murphy, Esq.

In a recent Massachusetts criminal law appellate opinion, a state court discussed the difference between the two types of battery, attempted and threatened, and whether the latter requires a finding that the victims were aware of the defendant’s conduct. Ultimately, the court concluded that a threatened battery does require that the victim be aware of the defendant’s conduct, and reversed two of the defendant’s four convictions on that theory.

The Facts of the Case

The defendant was charged with four counts of assault for allegedly using his vehicle to intentionally crash into another vehicle containing his ex-girlfriend, her new boyfriend, and two other passengers.

The two rear-seat passengers testified that they got in the car, everything seemed fine, and then the next thing they knew they had been hit by another vehicle. They both believed they had been struck by a drunk driver. The two front seat passengers saw the defendant’s car approaching, although only one of them was able to make out the defendant as the driver.

Court Denies Motion to Suppress in Brockton Robbery Case

Published on: August 7, 2018 | by Patrick J. Murphy, Esq.

Recently, a state appellate court issued a written opinion in a Massachusetts robbery case discussing whether the lower court properly granted the defendant’s motion to suppress. Ultimately, the appellate court concluded that the lower court erred in applying settled legal principles, and it reversed the granting of the defendant’s motion to suppress.The Facts of the Case

Police were investigating a series of robberies that occurred at various Dunkin Donuts restaurants. The first robbery occurred on July 8, 2015. Witnesses reported that the robber was a black man, about 180 to 200 pounds, who wore a stocking cap and drove a small blue car. Video surveillance showed the man was wearing a hooded sweatshirt.

Later on July 8, another Dunkin Donuts store was robbed. Witnesses gave police a similar although not identical description. The store manager told police that the robber drove up to the drive-thru window, told the employee at the window not to push the panic button, and then reached in through the window to open the cash register. Video of the incident showed the robber was wearing plastic gloves and had on a distinctive sweatshirt.

Appellate Court Finds “Imperfect” Controlled-Buy Following Confidential Tip Provided Police with Probable Cause to Obtain Warrant

Published on: August 7, 2018 | by Patrick J. Murphy, Esq.

Recently, a state appellate court issued a written opinion in a Massachusetts drug case discussing whether the police possessed probable cause to obtain the warrant they used to search the defendant’s apartment. Finding that the tip from a confidential informant gave police probable cause to believe the defendant was involved in the sale of narcotics, and followed by an “imperfectly” executed controlled-buy, the court reversed a lower court’s ruling granting the defendant’s motion to suppress.

The Facts of the Case

Police were given a tip by a confidential informant (CI) that the defendant sold cocaine from his apartment. The CI provided police with a description of the defendant, as well as his name and address. Police verified that a man by the defendant’s name lived at the address provided by the CI, and then arranged for the CI to make a controlled-buy from the defendant.

The CI was seen approaching the defendant’s foyer, and then seen a short time later leaving the defendant’s foyer. At no point was the defendant seen, and the CI was not seen entering the defendant’s home. When the CI returned to police, he provided them with cocaine and told the police it was obtained from the defendant.

Massachusetts Court Upholds Officer’s Frisk Although It Was Not Justified at Its Inception

Published on: July 6, 2018 | by Patrick J. Murphy, Esq.

Earlier this month, a state appellate court issued a written opinion in a Massachusetts gun case requiring the court determine if a firearm that was recovered from the defendant after he was illegally stopped by police should be suppressed. The court found that the defendant’s act of punching the police officer after the illegal search had begun was an intervening criminal act justifying the defendant’s arrest and the officers’ subsequent search. Thus, the lower court’s decision to deny the defendant’s motion to suppress was affirmed.

The Facts of the Case

Several police officers were in an unmarked car when they observed what they believed to be a drug transaction. The officers circled back to see if they could confirm their suspicions, but by the time they returned to where the transaction had occurred the parties had left.

Shortly after, the officers came across a group of several men, one of whom was the defendant. Another one of the men was a known gang member. Initially, the officers thought that they may have been involved in the drug transaction, but upon approaching, they realized that not to be the case. Nevertheless, the officers exited their car and frisked members of the group, including the defendant. Nothing was recovered.

U.S. Supreme Court Determines Police Need a Warrant to Track Cell Phone Location

Published on: June 26, 2018 | by Patrick J. Murphy, Esq.

Earlier this month, the United States Supreme Court issued a landmark opinion in a Fourth Amendment privacy case that will have a major effect on Massachusetts criminal investigations. The court’s holding was that police are required to obtain a warrant before they retrieve cell-phone tracking data from a cellular phone provider.

The Facts of the Case

The case related to a police investigation of a robbery that allegedly involved several people. The police made four arrests, and one of those men told police about several others who were also involved in the robbery. The man gave police the phone numbers of several of the alleged conspirators, including the defendant.

Police took the defendant’s cell phone number, and filed a request under the Stored Communications Act to obtain his cell phone records. That Act allows for cell providers to hand over customer information when the government can show that there is a “reasonable belief” that it is “relevant and material” to an ongoing investigation. Chief among the information sought was historical location data of where the defendant’s cell phone had been over the past 127 days. The information was given to police, and it provided them with 12,898 location points, all of which were around where the alleged robbery occurred.

Massachusetts Court Reverses Indecent Assault Conviction Based on Insufficient Evidence

Published on: June 14, 2018 | by Patrick J. Murphy, Esq.

Earlier this month, a state appellate court issued an opinion in a Massachusetts sex crime case, finding that the jury’s verdict was based on insufficient evidence. The court determined that a hug given to the complainant by the defendant was not “indecent” in nature, and thus, the Commonwealth’s evidence was insufficient to support the indecent assault charge.

The Facts of the Case

The complainant was a 13-year-old girl who was interning at an aviation company. One day, the defendant, a 60-year-old man, approached the complainant, whom he had previously met at the airport, and told her he would like to get her a gift for her upcoming birthday. He also told her that he would like to give her a hug in another room. The complainant went into the hallway and waited, but she returned to work a few minutes later when the defendant never showed up. Later, the complainant ran into the defendant and offered him a hug.

A little later that day, the defendant asked if the complainant wanted another hug. This time, the defendant led the complainant into a private room, gave her a hug, and kissed her on the cheek. The complainant testified that she was not initially alarmed because it seemed like a common greeting for someone of “European descent.”