Boston Criminal Defense Lawyer Blog

Carrying a Firearm Without a License in Massachusetts

Published on: August 18, 2014 | by Patrick J. Murphy, Esq.

Massachusetts gun laws are some of the strictest in the nation. Handgun owners must be licensed to buy firearms and ammunition and to carry them. A police officer must have reasonable suspicion to stop you for carrying a handgun without a license. What is reasonable suspicion?

In a recent appellate decision, a Massachusetts appellate court considered a situation in which two police officers tried to stop and question a defendant suspected of illegal activity. At the time, one of the officers had served in the department for 9 years and had been trained to identify those carrying concealed firearms. Part of the training was that an unlicensed carrier is less likely to use a holster and more likely to adjust the weapon inside his clothes. Another characteristic is head movements in multiple directions in order to determine if the weapon is being detected.

On the night in question, the officer was on an overnight shift, in the passenger seat of an unmarked patrol car. The neighborhood was home to three or four gangs and the officer had previously responded to gunfire incidents there. At 12:30 a.m. the officer and his partner saw the defendant walking with his hand inside his pocket. The defendant was adjusting an object. When he saw the patrol car, he looked surprised. The officer asked to speak with him. The defendant looked away and kept his right hand inside his pants. He turned the corner and started jogging.
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Larceny in Massachusetts

Published on: August 4, 2014 | by Patrick J. Murphy, Esq.

In Massachusetts, the type of charges that will be brought for stealing someone else’s property (larceny) depends on the value of what you steal. If the property is worth less than $250, you will be charged with petty theft, but if the property is more than $250, you will be charged with grand theft. Larceny can include shoplifting from a department store or car theft. Generally, it involves theft without force. The punishment for grand theft is up to five years in prison plus fines of up to $25,000.

In Massachusetts, the Commonwealth can prosecute you for personally committing theft, but it can also prosecute you if there is no evidence of direct participation under a joint venture theory. Joint venture is a theory of criminal liability most often applied to drug cases, but it can also come up in a larceny case. The Commonwealth argues that (1) the defendant was present, (2) the defendant helped commit the crime, and (3) the defendant intended the crime to be carried out.

In the recent case of Commonwealth v. Vaillancourt, a Massachusetts court considered the appeal of a defendant convicted of larceny under $250. The Commonwealth had moved forward under two theories: principal liability and joint venture liability. The judge instructed the jury that they could convict the defendant either if she had personally committed larceny or if she had acted as a joint venturer.
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Duplicative OUI Charges in Massachusetts

Published on: July 15, 2014 | by Patrick J. Murphy, Esq.

If you hurt someone while drunk driving in Massachusetts, you may be charged with multiple counts, some of which may seem quite similar. In a recent case, a Massachusetts defendant was convicted of (1) drunk driving (operating under the influence or OUI), (2) drunk driving that caused a serious bodily injury, (3) driving on a suspended license, (4) manslaughter by motor vehicle, and (5) motor vehicle homicide. The case arose because the defendant was driving drunk on the wrong side of an access road and crashed into a Saturn. A 17-year-old passenger in the Saturn was killed and the driver seriously injured.

A state police trooper later testified that when the crash happened, the defendant was driving at 55 mph in a 25-mph zone, and the defendant didn’t try to avoid the crash. The defendant claimed he had drunk two 16-oz. mojitos and a vodka-Red Bull drink before the crash happened. The trooper also noted the defendant’s slurred speech, glassy eyes, unsteadiness, and failure to pass a sobriety test. The trooper arrested the defendant.

During the booking process, blood ran from the defendant’s ear, and he asked for medical assistance. Paramedics examined him. He agreed to a breathalyzer test with two measurements, and his blood alcohol level measured at .17 and .18. Next, he was taken to the hospital, where his blood alcohol level was measured at .15.
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Protective Sweeps in Massachusetts

Published on: July 8, 2014 | by Patrick J. Murphy, Esq.

In a recent case, a Boston Municipal Court granted the defendants’ motion to suppress evidence based on a protective sweep. The sweep arose when a Massachusetts State Trooper ran a license plate check on a Mercedes. The car’s owner had an active warrant for operating his car on a suspended license and other offenses.

The trooper activated his lights to stop the Mercedes, but he gave up the pursuit after the car sped away. Later, he verified the warrant was still active, but he learned that the man now had a valid license. He ran the license plate and went to the man’s address in East Boston. He saw the Mercedes nearby and went to the apartment building to serve the warrant.

Several police officers waited at the back of the building, while three officers entered from the front. They knocked, claiming to be delivering pizza. A voice from inside the apartment stated the police couldn’t enter without a warrant. The officer knocked and identified himself, but nobody responded. The police heard sounds of toilet flushing and a door that might have been opening to the outside. An officer kicked the front door open to stop the suspect’s escape.
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Prior Bad Acts in Massachusetts Domestic Violence Cases

Published on: June 15, 2014 | by Patrick J. Murphy, Esq.

It is not uncommon for Massachusetts domestic violence cases to arise after multiple violent acts by the defendant. Some of these may be documented by the police. Others are only known to the two partners. Whether the judge will permit testimony about a defendant’s previous treatment of his or her partner depends on the particular circumstances. Criminal evidence rules restrict an alleged victim’s testimony and evidence on the subject of “prior bad acts” of the defendant, except for certain purposes.

In a recent case, a defendant appealed on the basis of a judge’s instructions to the jury about prior bad acts. He was convicted of assault and battery of his girlfriend. The appellate court explained that the jury could have found particular facts that justified the judge’s ruling.

The defendant and victim met in Seattle in 2010 and moved to Massachusetts the following year so that the defendant could pursue a graduate degree at MIT. After moving to Massachusetts, the two began arguing over the victim’s relationship with a male friend. The defendant was verbally abusive and sometimes physically abusive as well. Once, the defendant pushed her into a wall, creating a hole about three feet across.
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Unlawful Carrying of a Firearm in Massachusetts

Published on: June 5, 2014 | by Patrick J. Murphy, Esq.

In a recent non-precedential case, a Massachusetts defendant was charged with unlawful possession of a firearm. He was subject to enhanced penalties. A judge granted the defendant’s motion to suppress evidence of the firearm. The case arose when a uniformed police officer was standing outside a bar that he routinely surveilled for weapons violations and fights. The officer was approached a stranger who pointed out the defendant, claiming the defendant had shown him a gun holstered on his hip.

The defendant was already walking away and then turned back to look at the police officer. He abruptly turned left, and the officer inferred that the defendant changed his course in response to seeing the stranger talking to the officer. The officer requested backup and drove around the block in a cruiser. Another officer responded to the call for backup. When the officer found the defendant, he got out of his cruiser and told the defendant he wanted to talk to him.

The defendant ignored the office and crossed in front of a minivan. The officer heard something metallic drop to the ground. One of the officers saw him drop a gun and pulled out his own weapon. The defendant was ordered to the ground. The first officer handcuffed the defendant and arrested him. The defendant had been in possession of a .45 caliber pistol.
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Showing Someone Else Committed a Drug Crime in Massachusetts

Published on: May 15, 2014 | by Patrick J. Murphy, Esq.

In Massachusetts, there are five different categories of controlled substances that are grouped based on their composition. Class A includes designer drugs and heroin. Class B includes methamphetamine, cocaine, ecstasy, and oxycodone (obtained without a prescription). Class C includes various hallucinogenic drugs and prescription narcotics like Vicodin. Class D includes marijuana and phenobarbitol. Class E includes prescription drugs that have weak amounts of morphine and other opiates. Except for one ounce of marijuana, possession of any of these can lead to severe criminal penalties.

Generally in Massachusetts, a criminal defendant can use evidence that tends to show somebody else committed a crime or had opportunity, motive or intent to commit the crime in order to exculpate themselves. However, it can be difficult to introduce evidence that is overly speculative on this point. In a recent non-precedential case, a defendant appealed from his drug crime convictions. He argued that the judge shouldn’t have excluded evidence of a third-party culprit and permitted testimony that the defendant was investigated for drugs.

The issue in this case was whether the defendant was in constructive possession of drugs found in an apartment bedroom in 2009. The defendant tried to blame the son of the primary apartment-dweller. He wanted to admit non-hearsay evidence that the son had been arrested for selling crack cocaine there 3 1/2 months after the search warrant had been executed. The son had been contacted by the police on the home phone and had been witnessed coming and going.
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Threatened Battery and Assault in Boston

Published on: May 2, 2014 | by Patrick J. Murphy, Esq.

In a recent case a jury convicted a defendant of assault by means of a dangerous weapon. In the version of events that prevailed, Nathan and David came to the defendant’s residence in order to talk to Nathan’s then-girlfriend. The girlfriend had been living with Nathan but didn’t come home the night before. Nathan heard rumors she was at the defendant’s and drove there with David. When they drove onto the defendant’s property, they saw someone mowing the lawn.

They asked the man if the girlfriend could come out to talk to them. Nathan parked his car in the driveway, lining it up so the vehicle faced the street. Because of the tensions between him and the defendant and in order to stop the situation from blowing up, David left the car and approached the defendant’s house. Both men stood on the porch, while David asked to speak to the girlfriend and said he didn’t want trouble.

The defendant pushed David out of the way, came down the steps and approached Nathan speaking aggressively. The defendant pulled out a gun. The guy mowing the lawn told him to put it away. Nathan and David saw the defendant point the gun at Nathan who stayed still.
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Showup Identification in Massachusetts Assault Case

Published on: April 16, 2014 | by Patrick J. Murphy, Esq.

In a recent case, a man appealed a judge’s ruling on a motion to suppress after being convicted of assault and battery with a dangerous weapon. The case arose when Boston police officers received 911 telephone calls that reported a robbery on a street near the intersection of Coolidge Road.

An officer arrived shortly after that and spoke with a male and a female victim. The female victim told the officer she and her boyfriend had been robbed and beaten by fifteen black men.

Another officer responding to the call saw an SUV coming the wrong way on the road. He followed because of the violation of traffic rules. He also turned on the blue lights of his cruiser in order to stop the SUV. Even though the windows were tinted, the officer could see there were a number of people in the SUV.
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Search Warrant Requirements in Massachusetts

Published on: April 3, 2014 | by Patrick J. Murphy, Esq.

In a non-precedential case, the Massachusetts appellate court considered a case involving marijuana transportation from New York to homes in Massachusetts. There were many vehicles and people involved in transporting it. The Commonwealth applied for and received two search warrants in connection with the contraband. The affidavit it submitted was based on information from a confidential informant developed in collaboration with the New York State police. Because of the warrants, the police were able to discovery and seize large amounts of marijuana, firearms and a huge quantity of ammunition.

One of the people involved was indicted for trafficking in marijuana and conspiracy to traffic. After he was indicted, he filed a motion to suppress evidence seized pursuant to the warrants. A judge denied the defendant’s motion and he appealed.

The appellate court affirmed the ruling. It explained that the inquiry involves the affidavit attached to the application for the warrant. The affidavit has to contain enough information that (1) the issuing magistrate would be able to determine that items sought by the search warrant were related to criminal activity that was being investigated and (2) that the items were expected to be located in the place covered by the warrant.
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