Boston Criminal Defense Lawyer Blog

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In a recent non-precedential case, a Massachusetts defendant was charged with unlawful possession of a firearm.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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Miranda Rights in a Massachusetts Investigatory Stop

Published on: March 19, 2014 | by Patrick J. Murphy, Esq.

Miranda rights are frequently misunderstood. When police officers take a suspect into custody intending to conduct an interrogation, they must advise the suspect of his (1) right to remain silent, (2) that what he says can be used against him/her, (3) right to an attorney and that one will be provided at no charge if he can’t afford one. However, Miranda rights need not be given before asking questions at a crime scene, before a suspect volunteers statements, questioning for fact-finding purpose and questioning someone during an investigatory stop.

In a recent case that is not binding precedent, a defendant appealed the jury’s finding he was guilty of operating a motor vehicle while under the influence of alcohol, negligent operation of a motor vehicle and assault. He appealed on the grounds that statements he made at the time of his arrest should have been suppressed.

The appellate court explained that a jury could have found facts that supported the conviction. In the version the jury believed, a police officer was sent to a car crash at 2:00 a.m. and found the car near a broken telephone pole on a lawn with heavy tire marks. The defendant was at the scene, smelling of alcohol and slurred his speech.
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Disorderly Houses in Massachusetts

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

Boston police officers and those from neighboring suburbs are cracking down on local parties and particularly tracking houses that have a lot of noise and other complaints. Recently four Boston University Students were charged for repeatedly throwing wild parties at a house in Allston and held for three nights in jail. The most recent party in January violated their pretrial probation terms. In September 2013, they were arrested and charged with one count apiece of keeping a disorderly house at an earlier party involving over 200 people. The house was used by the BU fraternity Zeta Beta Tau and the fraternity was suspended because BU believes the house was being used for underage drinking.

At the second, party, the police arrived at 1:00 a.m. People at the party slammed the door in their faces and locked them. People began exiting in droves through doors and windows. When they got inside, the police officers found furniture rearranged, the smell of marijuana and more than 1000 beer cans in their house. As a result of the second arrests and probation violation, the students’ bail was revoked.

The two parties were considered to be in the top 10% of disorderly parties. However, the second arrest and jail stay had to do with violating probation, not with the disorderly house. At the arraignment, all four young men hid their faces with their hands. They were released from jail on their personal recognizance, but criticized strongly by the judge who noted the sacrifices their parents had made for them to attend a world-class university (that costs about $58,530 per year for an undergraduate degree. All four decided to move out of the house.
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Crime of Perjury in Massachusetts

Published on: February 17, 2014 | by Patrick J. Murphy, Esq.

To prove the crime of perjury in Massachusetts, a prosecutor must prove (1) a defendant was required by law to state the truth in a judicial proceeding, (2) the defendant willfully testified falsely, and (3) the false statement was material to something at issue. What is materiality in this context? Something is material to the extent it reasonably affects an aspect or result of the judicial inquiry.

A recent case arose from a defendant’s conviction for perjury after he testified to a grand jury as to a shooting death. The defendant’s cousin was a suspect and was indicted for the murder. The issue in the defendant’s perjury trial was whether he had falsely testified to the grand jury.

The victim was shot near Maynard Street in Springfield just after midnight in May 2008. The defendant had testified to the grand jury he was with Keison Cuffee at another cousin’s (Whitney Walton) house on Westminster Street in Springfield until 1:15 a.m., providing the person with an alibi.
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Wiretaps in Massachusetts

Published on: February 17, 2014 | by Patrick J. Murphy, Esq.

When a police officer seeks a wiretap to obtain evidence against someone suspected of illegal activity and a prosecutor tries to use that evidence, certain rules must be followed. A recent case arose after a defendant was convicted of drug and firearm charges in connection with wiretap evidence. The police started investigating him for drug dealing in 2009, using various surveillance tools including a GPS tracking device on his car and following him. These methods didn’t provide enough information so the officers applied for a wiretap under G. L. c. 272, § 99 to wiretap the defendant’s two cellphones.

The officers attested to their prior investigation efforts and stated that they wouldn’t be able to figure out the scope of the defendant’s drug dealing otherwise. The court granted their application, permitting them to start in July and granting them an extension. They arrested the defendant in August and charged him.

The defendant filed a motion to suppress the evidence obtained from the wiretap, which was denied. At trial, the jury came back with a mixed verdict. He appealed the decision on the motion to suppress. The appellate court explained that a warrant permitting a wiretap is only appropriate if the applicant can demonstrate that ordinary investigative procedures were tried, but failed.
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Conspiracy and Double Jeopardy in Massachusetts

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

The double jeopardy clause of the Fifth Amendment of the United States Constitution states that nobody can be placed in jeopardy twice for the same criminal offense. In other words, it prohibits duplicative convictions — more than one conviction for the same course of conduct. However, not all cases in which there are multiple charges for the same set of facts violate this prohibition.

A recent appellate case illustrates how this constitutional prohibition against double jeopardy works in Massachusetts. The case arose out of a defendant’s conviction for conspiracy to violate drug laws, which was entered as part of a plea, and his conviction for distribution of cocaine. The defendant argued these two convictions arose out of the same facts and were essentially punishing the same offense.

In this case, an informant had infiltrated a narcotics distribution ring. He contacted Wisdom Ellerbee to buy cocaine. Ellerbee told him a place where they could meet to finish the sale. The informant went there and Ellerbee drove up. The defendant was in the front seat next to him.
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