Boston Criminal Defense Lawyer Blog

Prescription Drug OUI in Massachusetts

Published on: July 27, 2017 | by Patrick J. Murphy, Esq.

In a 2017 Massachusetts appellate case, the defendant appealed from convictions for operating a vehicle under the influence of drugs (M.G. L. c. 90, § 24(1)(a)(1)) and negligent operation of a motor vehicle (M.G. L. c. 90, § 24(2)(a)). The case arose when a cop in an unmarked car saw the defendant drift over the centerline and travel toward him head-on. The cop swerved to avoid crashing into the defendant, and then he pulled her over.

The cop, who’d known her for a minimum of 23 years, observed she “wasn’t right” but was sleepy, lethargic, and disheveled with a low attention span and a physical unsteadiness. A different cop grabbed her hand to stop her from falling while she was performing the nine-step walk and turn test and the one-leg stand.

The defendant said she’d taken Sertraline, Symbicort, Albuterol, Spiriva, Singulair, Prozac, Dextral, and Paxil on that day. The officer asked to see her prescriptions, and she only produced Lorazepam and Oxycodone prescription bottles. The Oxycodone bottle included only a single pill, even though the prescription was for 75 pills and had been refilled three days before. The defendant had a redness around her nose, and it was visible in her booking photograph.

Evidence Found Before a Pat Frisk in Massachusetts

Published on: July 7, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the court considered whether the district court judge had made a mistake in denying a criminal defendant’s pretrial motion to suppress evidence that was found just before a pat frisk.

The firearm that was seized was discovered when the defendant and his companions were stopped by cops to investigate a report that shots had been fired. A cop had moved toward the defendant when the defendant was trying to avoid a pat frisk. The cop had only a general description of possible shooters. There was nothing linking the defendant and those with him to the crime scene or the group that a witness saw entering a courtyard.

The defendant moved to suppress the evidence (the firearm), claiming that the cops didn’t have a reasonable suspicion for the stop. The motion judge denied the motion, and the defendant was convicted. He appealed from his convictions, arguing that the police didn’t have a reasonable suspicion to stop him, so it was a mistake to deny the motion to suppress.

Self-Defense in a Massachusetts Assault Case

Published on: June 16, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant was convicted of assault and battery on a girlfriend. He appealed on the grounds that the conviction was a result of speculation and conjecture and that there were no findings to support it.

The appellate court explained that after a defendant raises self-defense while being prosecuted for assault and battery, the burden shifts to the prosecutor to show the defendant didn’t act in self-defense. This requires the prosecutor to prove beyond a reasonable doubt that the defendant didn’t use all appropriate ways to avoid physical fighting before resorting to the use of force. Generally the right of self-defense can’t be claimed by someone who starts the fight or assault unless he withdraws from the fight and lets the other party know that this is what he’s doing.

In this case, the defendant argued that the judge hadn’t properly considered whether he acted in self-defense based on his speculative finding that he and the victim had been involved in a mutual fight, rather than a one-sided attack. He basically argued that the evidence was insufficient on the issue of self-defense. The appellate court reviewed whether a rational fact-finder could find the prosecution proved beyond a reasonable doubt he hadn’t acted to defend himself.

Charges for Possessing Counterfeit Money in Massachusetts

Published on: June 16, 2017 | by Patrick J. Murphy, Esq.

A recent Massachusetts appellate case arose when a cop stopped to get coffee during his patrol hours. While in line, there was a commotion in which the defendant argued with the cashier. The cop didn’t hear the discussion but saw the defendant hurry away. After talking to the cashier, the cop followed the defendant and asked to talk to her.

The defendant was holding a $20 bill when she turned to answer the cop. Since he thought there was a problem with the bill, he asked if he could look at it and then called for backup. Upon being asked, the defendant said she’d gotten the bill while eating at a pizza parlor the previous night. The cop went back to the donut shop to talk to the cashier and then issued a summons to the defendant.

The defendant was charged for possessing counterfeit currency. An agent testified that the $20 bill was counterfeit, and he could tell because it wasn’t cut correctly so that the color was white at the edges, and there weren’t tiny red and blue fibers, nor a security strip running down the side of the bill, nor a watermark of Andrew Jackson. He testified it was a low quality counterfeit but also noted that the red flags to show a bill is counterfeit can be difficult to see if you aren’t searching for them. About $60-80 million in counterfeit currency is being circulated at any time.

Carrying a Firearm Without a License in Massachusetts

Published on: June 16, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate decision, the defendant was convicted of carrying a loaded firearm without a license and carrying a firearm without a license. The case arose when an officer was patrolling in Boston and saw a car blocking traffic. After running its license plate number, he found that the owner of the car had a suspended license. The car turned without signaling, so he pulled it over.

The officer discovered that the owner of the car was also the driver. He confirmed she was driving with a suspended license. Neither of the passengers had licenses either, so all three had to get out of the car so that it could be towed away. Another officer joined the first, and they did an inventory search of the car. Inside the center console was a bullet.

One officer asked the defendant if he could look in her bag in a conversational way. The other officers were several feet away, discussing what should happen with the car. The defendant gave the officer the bag, and inside he saw a gun. The defendant was then taken into custody. She was convicted and then appealed.

Child Pornography Charges in Massachusetts

Published on: May 18, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant appealed from a conviction for possessing child pornography. The case arose in 2009 when a State police sergeant used a peer-to-peer software client to investigate the use of a file-sharing network to possess and distribute child pornography. While connected, the sergeant saw that a computer in Massachusetts was sharing what he suspected were child pornography files.

The sergeant got a list of 7,237 files that the computer showed were available for sharing. Most of the file names included terms that the sergeant knew were associated with child pornography, and one included an attribute that provided a unique identifier for one that the sergeant had previously examined and believed contained child pornography.

The police subpoenaed the Internet service provider and found the street address associated with the IP address. A registry of motor vehicles records showed that the subscriber and defendant lived at the address. A warrant was obtained to search the premises for a computer that used LimeWire and for materials that were associated with possession of child pornography. The warrant was executed. The subscriber owned the house, and the defendant was the subscriber’s wife’s cousin, who lived in the attic.

Plain View Doctrine in a Massachusetts Stolen Property and Heroin Case

Published on: April 19, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts case, the defendant appealed from convictions for receiving stolen property and trafficking in heroin. The case arose when the police received a report that someone had stolen a generator from a construction site. The surveillance video depicted a truck leaving the construction site with the generator. A few days later, the police were told that the replacement generator was also stolen from the site. The video showed that the same truck took the equipment and traveled onto Route 93.

About a week later, a construction company reported to a police department in Dedham that a trailer-mounted generator was stolen from a construction site. The generator had a wireless GPS tracking device that showed it was in Boston. When the police went to where it was located, they saw it was signaling in a parking area and a three-car garage. The officers peered through the fence around the parking area and saw the truck, as well as a generator that had the name of the second construction company on the side. The officers got a search warrant for the property and came back with a Boston police officer.

The Boston police officer also got a warrant to search a truck in Dorchester for construction equipment believed to be stolen. The police officer’s affidavit said he’d first come into the property with police officers under their search warrant for the stolen generator. He got another search warrant to investigate a different theft of a generator from a Boston construction site. On location, he got information from neighbors and also saw a metal stabilizer that would hold up a trailer.

Fingerprint Evidence in Massachusetts Larceny Case

Published on: April 5, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant was found guilty of breaking and entering in the daytime, intending to commit a felony in violation of MGL chapter 266, § 18, as well as larceny of property over $250, a violation of MGL chapter 266, § 30 (1). The defendant appealed on the ground that the evidence was not enough to support the convictions.

The case arose from a 2013 break-in and robbery at a market. At trial, a store proprietor testified she’d closed the store at 6:00 p.m. one night and then come back after being told there was a break-in. She saw that somebody had broken the side window to get in and that $400-500 worth of cigarettes were stolen.

At the trial, police officers also testified. One testified he got there with his partner early in the morning, and when they got there, two men who lived next door to the market told them the front window to the store was missing. The officer noticed that a window pane had been taken off and was set against the door. Photographs showed that plexiglass was propped against the front door.

Larceny and Belief of Abandonment in Massachusetts

Published on: March 15, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the defendant appealed from a conviction for larceny of more than $250 under MGL c. 266 section 30(1). The defendant argued that the jury should have been given an instruction related to his defense of honest yet mistaken belief that the property was abandoned, and that the lower court should have granted his motion for a required not guilty finding.

The case arose when the defendant and two other people with a pickup torch and a blowtorch were on another man’s land. The land was fenced off, and no trespassing signs were posted. Access to the area where the defendant and his friends were was through a closed gate that wasn’t always locked, but had a chain. On the day at issue, the landowner’s son found the gate open. A metal cutting screener had been cut with the blowtorch and piece of it had been taken from the land. When he approached the defendant and his friends, the defendant ran. However, while he was talking to the friends, the defendant asked him not to call the cops and asked if they could work something out.

The landowner’s son called the cops. When a police officer arrived, the defendant told him that he and the other men had cut metal from the screener for days and brought it to the scrap yard for cash. The defendant gave the police officer a receipt, and then he was arrested and charged with larceny.

Massachusetts Juvenile Convicted of Assault and Battery

Published on: March 5, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, a juvenile was found delinquent on a charge of assault and battery. He appealed, arguing that the judge had made a mistake in denying his motion for a required finding of not guilty and requiring him to pay restitution when there was no causal link between the crime and the loss.

The case arose out of an assault and battery. The juvenile claimed there wasn’t enough evidence to show that he’d pushed the victim or that he’d committed a joint venture, and none of the state’s witnesses identified him as a perpetrator. In order to convict him of assault and battery, the prosecutor was supposed to show beyond a reasonable doubt that he’d intentionally touched the victim in a harmful or offensive way without justification or excuse or that he’d wantonly engaged in conduct that resulted in an injury to somebody else.

To prove a joint venture, the prosecution had to show beyond a reasonable doubt that he knowingly participated in the commission of a crime alone or with others with the required level of intent.