Boston Criminal Defense Lawyer Blog

Aggravated Assault and Kicking a Victim Down Steps in Massachusetts

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

In a recent Massachusetts aggravated assault case, the defendant was convicted of assault and battery by a dangerous weapon, assault and battery, and threatening. The case arose from the defendant allegedly kicking the victim multiple times with a closed-toe shoe while the victim was trying to go down a flight of stairs to get away from her. The kicks were such that the victim needed help from her boyfriend to avoid falling down.

Among other things, the defendant claimed that “dangerous weapon” as described in M.G. L. c. 265, § 15A(b) was unconstitutionally vague. A law is considered unconstitutionally vague if people with ordinary intelligence have to guess at what it means. When a law has been clarified by a court’s explanation, it withstands such a challenge. “Dangerous weapon” has a meaning that’s regularly applied, and dangerous weapons include objects designed and constructed to cause death or catastrophic injuries, as well as objects that aren’t dangerous per se but become dangerous based on how they’re used. Whether a weapon is dangerous within the law’s meaning is a question for the jury or fact-finding judge.

The appellate court reasoned that someone of usual intelligence would realize that using closed-toed shoes to kick someone multiple times as they went down the stairs was prohibited by the statute. It found no error on this point.

Evidence Obtained Extraterritorially in Massachusetts

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

In a recent Massachusetts theft decision, the court considered a motion to suppress. The case arose when a sergeant of the police department joined other officers in surveilling a car that was the subject of an investigation related to multiple breaking and entering crimes. The police department of another neighboring town had asked for assistance to see whether the car would lead the cops to evidence related to the breaking and entering crimes.

The police cars were unmarked and changed places to avoid being detected in the relevant communities. One officer saw the car at issue go down a dead-end road and make a U-turn before going in the original direction. He followed, and the car got onto Route 9, going west. There were two men in the car, and the officer believed the driver was the defendant, whom he’d known in high school.

Earlier that day, a sergeant looked up the defendant’s license and found it to be suspended. He called another police department, and the information was confirmed. The sergeant pulled up next to the car and recognized the defendant. He was worried he’d lose the car and told a detective he’d asked to assist that he would stop the defendant. He stopped the defendant’s car and pulled him out. The other police officers arrived 3-5 minutes later.

Armed Robbery of a Gas Station in Massachusetts

Published on: August 17, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts armed robbery case, a defendant appealed his conviction for armed robbery while masked. The case arose from an armed robbery of a gas station. The defendant, a regular customer, came in at 9 p.m. and bought $10 worth of gas. He was wearing a T-shirt and jeans. Ten minutes later, a man came into the store in jeans, a sweatshirt, and a facemask. Later, the second man was revealed to be same as the first — the defendant.

The defendant pointed a gun at one of the gas station attendants and told him to get money. He also pointed the gun at the other attendant and told him to get money. He told the first attendant to walk around the counter and stand by the other one. The second attendant opened the register and handed him the cash from inside it. The first attendant recognized the voice of the defendant and identified him to police later.

The robbery was recorded by surveillance cameras. The jury was shown a video recording of what happened, including the part in which the defendant bought gas just before the robbery. The defendant and the robber were wearing the same jeans and shoes, and they had the same height and weight.

Proof of Domestic Violence with a Dangerous Weapon in Massachusetts

Published on: August 4, 2017 | by Patrick J. Murphy, Esq.

In a recent Massachusetts criminal case, a defendant appealed after being convicted of rape, assault, and battery with a dangerous weapon. The case arose when the defendant started dating the victim, and the victim moved into his apartment, where he lived with a male roommate. Soon afterward, the defendant and the victim started arguing, and these arguments turned into physical fights. The victim would later testify that the defendant physically abused her each week within months of her moving in.

After one argument, the roommate asked the defendant and the victim to leave. When they left, they went to the victim’s car outside the building. Inside the car, the defendant strangled and hit her. The police came, and the assault stopped. The victim would later testify she didn’t tell the cops what happened because the defendant made her feel guilty for getting him in trouble. There was no arrest. Shortly after that, the victim saw the defendant texting another woman. She told him the relationship was over and locked herself in the bathroom and got in the shower. The defendant broke in with a knife. He took off his clothes and got in the shower and smashed her head against the shower wall three times.

The police responded to a domestic violence report. The officer saw the victim crying in the bathroom. There were unattached pieces of hair on her shoulder. He arrested the defendant.

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.