Boston Criminal Defense Lawyer Blog

Larceny by False Promises in Massachusetts

Published on: February 14, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate decision, the defendant was convicted of violating MGL c. 266 section 30(1). This section criminalizes larceny by false pretenses involving over $250. To secure a conviction, the Commonwealth is supposed to prove beyond a reasonable doubt that the defendant made a false statement of fact that he knew or believed was false at the time he said it, that he intended to induce someone else to rely on it, and that someone did rely on it and as a result gave up his or her property. The defendant appealed, arguing that the evidence in his case was not enough to prove that he made a false statement of fact intending to induce reliance.

The defendant was a contractor who had agreed to repair a home in 2014, and in exchange for the homeowners’ agreement to pay 50% of the repair costs, he claimed he’d start the repair work the next day. Although he deposited the homeowners’ payment right away, he didn’t come back to the home for a few weeks. The work he did was poor and not completed.

The homeowners got in touch with him, but he kept putting them off. They saw him working on other homes in the neighborhood during that period. He tried to perform some additional work for an extra $550, claiming that he needed to pay laborers who were in his truck in order to start working. The homeowners found out that he had outstanding warrants in another state and asked for a partial refund. They didn’t talk further, and the work didn’t get done.

Application of the Crime Bill to Massachusetts Cocaine Trafficking Law

Published on: February 3, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate case, the court considered whether certain aspects of the Crime Bill applied to drug crimes. The defendant had been charged before the effective date of the law but convicted after it. The case arose when he was observed by cops performing what they thought were drug deals on the street. When they searched him, they found eight bags of cocaine weighing 28.14 grams.

In 2011, he was indicted for violating MGL c. 94C, § 32E(b)(2). This was a second-tier violation involving cocaine trafficking in the amount of 28 grams-100 grams. For a violation, the law required judges to sentence a defendant to at least five years, with at most 20 years imprisonment.

The Crime Bill was enacted in 2012 and changed § 32E by upping the weights that set the first tier to 18 grams-36 grams. Previously, the upper weight for this tier had been 28 grams. Judges were required to sentence defendants convicted of a first-tier offense to a minimum sentence of two years.

Trafficking in Oxycodone in Massachusetts

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

In Commonwealth v. Marcelin, the defendant was convicted of trafficking in oxycodone, a Class B substance. After being convicted, he pled guilty to conspiring to violate drug laws.

The case arose in 2011, when a USPS inspector saw a package he believed might contain illegal drugs. What triggered his suspicion was that the package was mailed from Las Vegas, which was known to be a source city for illicit pills, and the sender listed didn’t appear in the postal service database. The addressee didn’t appear in the database as linked to the recipient’s address. The inspector contacted the police, who confirmed there was no record of the recipient living at that address in their database. The inspector learned on a different day that another package was due to be delivered at noon to the same address.

The police set up a controlled delivery by working with the USPS inspector and drug task force. On the morning of the delivery, five police officers used unmarked cars to watch the recipient’s address. They saw two people, one of whom was the defendant in a parked car, who were also watching the address. When another postal worker came to deliver mail, the defendant emerged from the car to watch the postal carrier. The two people looked around as if they were engaged in counter-surveillance.

Break-in at a Massachusetts Jewelry Store

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

In Commonwealth v. Burns, a Massachusetts appellate court considered a conviction for an after-hours break-in and larceny of items valued over $250. The case arose when somebody broke and entered a jewelry store after hours and stole jewelry.

At trial, there was testimony that the defendant admitted he stole from the jewelry store, and items from the burglary were found at his home, on him, and in the possession of his family members. There was also testimony that there were tire tracks at the scene that were similar to those from a tire removed from the defendant’s car.

The defendant appealed, arguing that the affidavit attached to the search warrant to search his home didn’t provide the police with probable cause to believe the stolen jewelry would be found at his house seven months after a confidential informant saw it there. The facts to establish probable cause in a warrant must show that there is a belief that evidence of a crime will be located at the place to be searched when the warrant is executed.

Application of the Plain View Doctrine in Massachusetts Drug Crime Case

Published on: December 31, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Dow, a defendant appealed after being convicted of multiple counts, including possession of a class B substance under G. L. c. 94C, § 34, a class C substance under G. L. c. 94C, § 34, illegally possessing a firearm and ammunition, possessing without a firearm identification card, and possessing a large capacity feeding device.

The police had searched the defendant’s home after applying for and receiving a search warrant. The detective on the case had been an officer since 2001 and had experience with narcotics cases. He received a tip from a confidential informant that the defendant was selling cocaine from his cars. The informant told the detective detailed information about the cars and the defendant’s apartment. During 2011, the informant made four controlled buys of cocaine from the defendant, and during three of them, the police saw the defendant go from his apartment to the purchase location without stopping. The informant came back to the police station without stopping and handed them cocaine.

At that point, a warrant was obtained to search the defendant’s apartment. The warrant covered all class B substances, as well as paraphernalia and any materials used to prepare cocaine, money used to buy or sell cocaine, and personal property. While searching, the police found a $40 bag of cocaine, half of a Suboxone pill, a cell phone, and over $1,500. They also seized paraphernalia, $11,000, guns, ammunition, and a pill box filled with four different kinds of prescription drugs.

Assault and Battery on a Family Member in Massachusetts

Published on: December 30, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Jones, the appellate court considered a case in which the defendant was convicted of violating M.G.L. c. 265, § 13M, assault and battery on a family member. In 2015, the defendant and his wife were at home. The wife was using the husband’s cell phone to get some information for him, and she saw that he’d been texting with a woman. When she mentioned it to the husband, he got angry. They went to dinner for their anniversary and returned to their bedroom afterward.

The husband lay down, but the wife watched television. She saw that the husband’s cell phone was receiving text messages and that it kept beeping. The text message said, “I made money.” She woke up her husband to ask about the text, and the defendant jumped up and grabbed her neck with his hands, squeezing. Later at trial, the wife testified that this was common for him—jumping out of bed and getting verbally abusive. She went to a dollar store nearby and called her mom. The defendant called her and asked that she come home.

The wife told him she didn’t like the texts she’d seen and asked for an explanation. She called 911. An officer came to her at the dollar store, and another officer went to the defendant’s home. The husband was charged, and the wife testified against him, explaining that he’d sometimes gotten violent with her, sending her to the floor.

Pleading Guilty to Unarmed Burglary and Larceny in Massachusetts

Published on: November 17, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Wallace, the defendant appealed from a sentence imposed for an unarmed burglary conviction. He’d pled guilty to larceny from a building and unarmed burglary. The event giving rise to the charges involved his going into a home in the dead of night and stealing many items while two people were asleep.

The defendant entered into a plea agreement. In the agreement, the prosecution agreed not to pursue an allegation in the indictment that the defendant had habitually offended. The defendant was previously charged in connection with breaking and entering during the daytime. He’d stolen property and led the police through a neighborhood before he jumped out of his car and fled.

Because of the new offense and the defendant’s failure to pay the DNA sample fee and restitution, the court found that he’d violated his probation. He then asked to withdraw the guilty plea. The defendant was sentenced to 7-10 years in state prison. After the charges, the defendant started attacking his guilty plea. A motion judge denied his motion and his request that the court reconsider.

Possession with Intent to Distribute Crack Cocaine in Massachusetts

Published on: November 4, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Bowens, a Massachusetts appellate court considered a crack cocaine possession with intent to distribute case. The defendant was convicted of possessing a class B controlled substance with intent to distribute as well as possessing a controlled substance with intent to distribute within a park or school zone.

The case arose when police officers were engaged in surveilling a particular high-crime area that was known for violence and drug dealing. An officer saw the defendant walk from the parking lot toward a playground one afternoon. The officer saw the defendant pick up a milk carton in a playground area, place something white in the carton, and then put the carton in the trash. The defendant went back the other way.

The officer went to the trash and took out the carton. Inside, he found a white tissue-covered item, inside of which were eleven rocks, each packaged individually in a baggie. The rocks were found to be crack cocaine. The officer described the defendant to other officers, and they stopped him. They found that he had $180 on him but didn’t find paraphernalia for using the crack.

Right to an Attorney Before Breathalyzer in Massachusetts?

Published on: October 18, 2016 | by Patrick J. Murphy, Esq.

Under the Sixth Amendment and article 12 of the Massachusetts Declaration of Rights, a defendant is supposed to be advised of the right to an attorney before a critical stage of criminal proceedings. In Commonwealth v. Neary-French, the Massachusetts Supreme Judicial Court considered whether the 2003 amendment to M.G.L. chapter 90 section 24, which created a theory whereby a breath test reading .08 or more is an element of the offense, made the decision of whether to take a Breathalyzer a critical stage, such that the defendant needed to be advised of the right to counsel.

The case arose when a woman signaled to the police department that the defendant’s car was bumping into another car. An officer approached the defendant and observed she might be operating under the influence. Another officer came to the scene to administer a field sobriety test.

Due to his observations and her performance on the tests, the defendant was arrested. At the police station, she was advised of her Miranda rights and given a statutory rights and consent form, which advised her of her right to make a phone call, her right to a physician, the consequences of a refusal to submit to a chemical test, and other warnings. The defendant initially refused the Breathalyzer but a few minutes later agreed. The test showed her blood alcohol content was greater than .08.

Resisting Arrest in Massachusetts

Published on: October 5, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Hill, the defendant was convicted of resisting arrest in violation of G. L. c. 268, § 32B, larceny in violation of G. L. c. 266, § 30(1), and assault and battery on a police officer. The case arose when a Sears & Roebuck Company loss prevention officer was monitoring the sales floor of the department store and spotted the defendant leaving the store with certain clothing items that were still tagged, not in bags, and without a receipt.

The jury could have found the following facts. William Punch, a loss prevention officer employed by Sears & Roebuck Company in Dedham, was watching the sales floor of the department store when he noticed the defendant leaving with multiple un-bagged clothing items that still had tags. He called the loss prevention office, which told him none of these things had been paid for. He followed the defendant as he left the store and called the police from his cell phone as he continued to follow the defendant.

The police responded. An officer saw the defendant run down the street without the clothes. The defendant fled into the back yard of a nearby residence. A little bit later, the police caught the defendant where he had hidden behind a tractor trailer at the mall.