Boston Criminal Defense Lawyer Blog

Probable Cause to Believe a Joint Venture Crime Has Been Committed

Published on: August 21, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Sanchez, the Commonwealth of Massachusetts appealed from orders that granted motions to suppress evidence that was seized during the search of codefendants. There were four companion cases.

The issue in the case was whether the police had enough of a basis to believe that the codefendants were joint venturers with Jose Rotger, a man who’d broken into a car and stolen objects from it while the codefendants stood nearby. On the evening of the theft, the codefendants and Rotger were walking down the street. Rotger looked into a parked car. The codefendants didn’t look into the car but stood nearby looking around. The three men kept walking, but Rotger looked into another car, while again the codefendants stood nearby.

At this car, the defendant opened the passenger door, reached into the car, and then closed the door, leaving it unlocked. The three continued down the street. Officers who were watching them thought they were handing something back and forth. They ran the license plate of the car and found it was registered to a woman.

Tips from Confidential Informants Related to Massachusetts Drug Crimes

Published on: August 3, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Ortiz, the defendant appealed from a second conviction of cocaine possession with intent to distribute within 100 feet of a public park or playground in violation of MGL chapter 94C, § 32A(c). He filed a motion to suppress on several grounds, including that the Commonwealth’s substitute chemist had not properly testified about the composition of what the police found during the search and that the evidence was not enough to prove he committed the previous offense. The motion judge denied his motion. The defendant appealed.

On appeal, the defendant didn’t dispute the reliability of the confidential informant, but he argued the Commonwealth had not established how he knew. The motion judge found the informant had given an accurate description of the defendant and his address and living arrangements. The defendant supplied drugs to the two heroin addicts leasing the apartment instead of rent.

The detective had independent knowledge of the nickname the defendant used, and the informant confirmed the defendant’s identity from a photograph showed to him. The informant had told the police the defendant sold drugs from a park adjacent to the apartment.

Uttering a False Check in Massachusetts

Published on: July 21, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Robinson, the defendant was convicted of two counts of uttering a false check. The defendant came into a bank in Cambridge in 2011 and presented a check at a teller window. The $8,539.29 check made out to Bonnie Green was to be deposited into a savings account held by Bonnie Green. It was drawn on another bank account held by the Clark S. Binkley Company.

A few days later, the defendant withdrew money from Bonnie Green’s savings account. On the same day, the bank from which the check had been drawn returned the check and marked it as an altered fictitious check. An investigator for bank fraud found that the other bank hadn’t returned the check, based on insufficient funds. He obtained surveillance footage associated with the deposit.

A few days later, the defendant came to another bank branch and presented a check to be deposited into Megan Neilson’s bank account for over $8,000. It was drawn on a company account at another bank. The check was returned to the bank unpaid. A fraud investigation was started, and surveillance footage was reviewed.

Collateral Estoppel in a Heroin-Related Criminal Case in Massachusetts

Published on: July 6, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Rodriguez, a Massachusetts appellate court considered a case involving a conviction for possession of heroin with intent to distribute in violation of MGL c. 94C, § 32(a) & (b). The case arose when a state trooper and sergeant were waiting outside an address in Brockton. The state trooper had a search warrant authorizing him to search for controlled substances at the address and on the defendant’s person. The officers saw a rental car driving up the road. The trooper knew that the defendant’s license was suspended, and so they pulled the car over and arrested the driver (the defendant).

When the defendant came out, the trooper told him that they were there to execute a search warrant and put him in handcuffs. The police searched the defendant and found 14 small bags of heroin, weighing about five grams, in his pants pocket and $1,155 in another pocket.

Later at trial, an expert police officer testified that users usually pay for heroin in cash, but it would be unusual for a user to have 14 bags of heroin at once or a large amount of cash. Plus, users usually have paraphernalia to use the drugs. Dealers usually sell individually wrapped half grams of heroin. The 14 small bags were worth roughly $700 altogether. The police also found keys to the building. They used the keys to enter the outer door as well as the defendant’s individual unit. There, they found 11 1/2 fingers of heroin, scales, bags, and firearms. The heroin weighed more than 100 grams.

Distributing Cocaine in Massachusetts

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

In Commonwealth v. Dominguez, a Massachusetts Appeals Court considered a drug distribution case. The defendant, Jose Dominguez, was convicted of distributing the class B substance of cocaine, which is a violation of MGL c. 94C, § 32A(b), and doing so in a school zone, thereby violating MGL c. 94C, § 32J. The defendant appealed, arguing that the evidence was insufficient and that the judge shouldn’t have admitted implied hearsay by two police officers.

The case arose when an officer and a detective were in an unmarked car near the door of a CVS. They were conducting surveillance and saw Danielle and Alan Frieta standing nearby. Danielle was looking at her cell phone, and the detective thought she looked like she was hoping to buy narcotics. Danielle walked toward the CVS and met Dominguez there. Talking, they stepped into the vestibule. Their hands touched, but the officer saw nothing in their hands and the two left the vestibule. Then Dominguez walked one way, and both Danielle and Alan Frieta walked a different way, going into a car parked on the side of the road.

The officer got out of the police car and stopped Dominguez. He identified himself as an officer and read the defendant his Miranda rights. He then searched the defendant’s pockets and found a one-dollar bill in one pocket and four twenty-dollar bills in a different pocket. Nothing else associated with a drug transaction was found on the defendant.

Intentional Assault and Battery in Massachusetts

Published on: June 3, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Romero, a Massachusetts defendant appealed from a conviction arising from M.G. L. c. 265, § 13A(a), which covers assault and battery. The defendant argued that the judge improperly denied her motion for a required finding of not guilty and had given incorrect jury instructions regarding the elements of the crime and the burden of proof.

The case arose when the defendant became angry over a dispute between her daughter and the victim’s son. The victim was a woman who lived across the street with her husband. In 2010, the defendant and her husband argued with the victim and her husband. It escalated into a physical confrontation in the victim’s hallway. The victim wasn’t injured, and the defendant, her husband, and two other men left the house. However, minutes later, the defendant came back into the victim’s house with a machete and tried to kick the victim’s five-year-old son. The victim’s husband punched the defendant to protect the son. The victim felt somebody pull her hair and push her down. The husband pushed the defendant off his wife.

The defendant’s husband then came back with the two other men and attacked the husband. Later, the victim’s daughter testified she saw the defendant and her mother fight. The defendant was convicted at trial.

Pat Frisks When Suspected of Possessing a Firearm in Massachusetts

Published on: May 3, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Bouyer, a Massachusetts defendant appealed from convictions of possessing a loaded firearm, possessing ammunition without a firearm card, and carrying a firearm without a license to do so. The case arose at around 12:20 a.m. when three plainclothes police officers were patrolling in an unmarked cruiser. They saw 8-10 people leaving an alley, and one of the officers told the others that two people in the group were gang members.

When the group noticed the cruiser, they changed their behavior. The defendant started walking faster with his right arm held to his body, although his other arm was swinging. Based on their training, the officers suspected he was holding an illegal firearm. The officers got out of the cruiser without activating their sirens or lights and without saying anything to the individuals or drawing weapons. Two officers followed the defendant, who slipped into a building.

The door shut before the second officer got there, but once he opened the door he saw the first officer in a struggle with the defendant. The first officer told the second officer that the defendant had a firearm, and so the second officer helped to subdue the defendant and get hold of the firearm, which was at the defendant’s waist.

Trespassing and Larceny in Massachusetts

Published on: May 3, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Bermudez, a Massachusetts defendant appealed from his convictions of trespass under M.G. L. c. 266, § 120 and larceny of property over $250 under M.G. L. c. 266, § 30(1). Both convictions arose after the defendant took an unattended laptop at the Boston University library.

On appeal, the defendant argued that there was a required finding of not guilty on both trespass and larceny. The appellate court explained that the critical inquiry was whether any rational trier of fact could have found beyond a reasonable doubt that the fundamental elements of the crime were met.

With regard to trespass, the court explained that to convict a defendant of trespass, the Commonwealth needed to prove he entered or stayed on BU property after being directly or indirectly forbidden to do so by someone with lawful control of the premises. At trial, a police officer testified that he did notify the defendant he wasn’t allowed to be on the BU campus. The court found this was sufficient for a jury to find direct notice to the defendant.

Sentencing for Receipt of Stolen Goods in Massachusetts

Published on: May 3, 2016 | by Patrick J. Murphy, Esq.

In the recent Massachusetts case of Commonwealth v. Lemery, the defendant appealed from a conviction of receiving stolen goods worth over $250. She argued on appeal that there was insufficient evidence to support her conviction, that the judge should not have admitted irrelevant evidence, and that impermissible factors went into her sentence.

The appellate court explained that in order to be guilty of the receipt of stolen property, a defendant has to buy or receive property that has been embezzled or stolen and know of its stolen status. This crime can be established through the use of circumstantial, rather than direct, evidence.

The appellate court reasoned that the jury could infer that the defendant knew the jewelry was stolen because she told conflicting stories about how she got it, and she had the items in her hands 24 hours after the report they were stolen. It noted that if a defendant possesses property that’s been stolen recently, possessing it is enough of a basis for the jury to infer she knows it was stolen. The court also reasoned that the jury could have found that the items were worth at least $250 because she sold them for $2,400. The victims had identified several pieces, including an engagement ring that had been appraised at between $7,000 and $8,000.

Trying to Withdraw Guilty Plea After Probation Violation in Massachusetts

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

In Commonwealth v. Wallace, the defendant appealed from a sentence that was imposed when his probation for an unarmed burglary was revoked. He’d pled guilty, but the court denied his motion to withdraw the plea.

The case arose when the defendant entered a home one night and stole various effects while the homeowner and her granddaughter were sleeping. The defendant pled guilty to larceny from a building and unarmed burglary. He entered into a plea deal even though he had a significant criminal record, and the Commonwealth claimed that he was a habitual offender. Habitual offenders have a mandatory minimum sentence of 20 years. The defendant was sentenced to three years of probation for burglary and time served on the larceny conviction. His probation issue was transferred.

In 2012, the defendant was charged for a daytime breaking and entering. The Commonwealth alleged he stole property from someone’s house, and the police chased him in his car through residential streets before he jumped out of his car and ran away on foot. Because of the new offense, failure to pay restitution, and a DNA sample, the defendant was found to have violated his probation related to the burglary conviction. He was sentenced to 7-10 years in prison.