Boston Criminal Defense Lawyer Blog

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.

Witness Violates Sequestration Order in Massachusetts Assault and Battery Trial

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

In Commonwealth v. Bonsu, the defendant was convicted of assault and battery with a dangerous weapon for using a stick on the victim. The defendant argued that the judge shouldn’t have admitted hearsay evidence and unfairly excluded rebuttal testimony by her husband on the issue of bias, creating a risk of miscarriage of justice.

During trial, the victim of the defendant’s assault with a stick testified that neighbors ran outside during their fight shouting “Stop hitting her.” The appellate court found the judge had not erred in admitting these statements because the prosecution was entitled to tell the jury everything that happened. They were not offered as hearsay—to show the victim was in distress—but to explain what caused the assault to stop.

The judge had instructed the jury that it couldn’t conclude the statement was actually made based only on the victim’s testimony. The court added that, even assuming the statements were inadmissible, there was no prejudice, since the testimony was cumulative to an eyewitness’s testimony. The eyewitness had testified that she called 911 because she saw the defendant beating the victim with a tire iron and told the defendant to get off the victim.

Witness Identification of Defendant in Massachusetts Burglary

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

In Commonwealth v. Coughlin, the jury convicted the defendant of breaking and entering a building at night and possessing tools to commit burglary. The defendant was drinking with his friend in Beverly. The friend drove him to Peabody and waited for him while the defendant broke into a used car dealership. The defendant was unaware that the building wasn’t empty. The service manager and his girlfriend were staying overnight inside the service manager’s car inside the dealership.

The service manager and his girlfriend heard glass break and witnessed a man in dark clothes go behind the counter. The defendant was looking around when the service manager opened the garage door and honked his horn. The defendant escaped through a window and went back to his friend’s truck, telling him they should hurry and go. The defendant’s hand was cut and bleeding. The friend drove him back. However, the service manager followed behind them and reported the friend’s license plate number to the police.

The police found the truck was registered to the friend’s name. The service manager and his girlfriend identified the truck, but they said that the friend wasn’t the person they’d seen inside the dealership that night. The friend later spoke to an officer and confessed that he’d driven someone to the dealership. He took the police to the defendant’s Beverly apartment, and the friend identified him based on a Facebook photograph on the day after the break-in. Later, he identified him in court. The prosecutor didn’t bring criminal charges against the friend.

Defense of Mistake to Massachusetts Theft Crime Charges

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

In Commonwealth v. Tremblay, the defendant was accused and convicted of breaking and entering while intending to commit misdemeanor larceny and a fifth offense of operating a motor vehicle while under the influence. He appealed on the basis that the trial judge made a mistake in limiting his cross-examination of a witness about an issue that was key to his defense.

At trial, the defendant argued he’d made a factual mistake about whether he was permitted to go onto the property of his dead uncle’s neighbor, break a lock, and take a model airplane. He tried to present evidence to this effect. However, the trial judge wouldn’t allow the defendant to question the neighbor about the defendant’s father’s challenge to the uncle’s will, which gave the neighbor the contents of the shed, including the model airplane. The defense attorney claimed that if the neighbor admitted that the ownership of the model airplane was disputed by the defendant’s family, it would have given the defendant more credibility on the question of whether he’d made an honest mistake of fact about his right to go onto the property and take the airplane model.

The appellate court explained that the element of intent to steal, which is required to convict someone of larceny, is negated if the defendant can show he had an honest, even if mistaken, belief he was allowed to take the property at issue. The court explained that testimony about the will dispute was relevant, and the judge should have allowed some cross-examination of the neighbor on whether there was a will dispute.

Offensive Battery in Massachusetts

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

In Commonwealth v. Messina, a Massachusetts appeals court considered a case involving charges of offensive battery. Under G. L. c. 265, § 13A, the Commonwealth is required to prove beyond a reasonable doubt that the defendant intentionally touched a victim, without justification or excuse, and this touching occurred without the consent of the victim.

Offensiveness is an element, but it is established by proving lack of consent, not by showing a particular harm to the victim. Proof that there was no consent doesn’t require a victim to explicitly state nonconsent by screaming, asking for help, or even asking the defendant to leave her alone.

The case arose when a 24-year-old victim was working for an animal rescue organization. One morning, while in her work uniform and hat, she left her cell phone in her locker and drove to a grocery store to buy some work items. It was crowded, and she lined up to pay with six or seven people in line before her. Her friend was working at the service desk. The defendant was a stranger who came about one foot from her and stared at her hat. He had the smell of alcohol on his breath. He said hello and asked her questions about where she worked. He walked away to pay at a different register.

Intent to Distribute Marijuana in Massachusetts

Published on: January 20, 2016 | by Patrick J. Murphy, Esq.

In Commonwealth v. Stampley, a Massachusetts defendant appealed from a jury conviction under G.L. c. 94C, § 32C(a) for possession of marijuana with intent to distribute. He argued that the evidence was not sufficient to show he had intent to distribute.

The case arose in the evening when the defendant and a female friend were alone on the bleachers in a field smoking a blunt (a marijuana cigar). The smell attracted a police officer’s attention. He approached them and noted they seemed to be in their mid-teens. He noticed they were fidgeting, and they gave him false names. The defendant consented to a search of his backpack. Inside the front were 13 blue-tinted sealed mini-Ziploc bags. The defendant’s friend had four of these. There was nothing else on the defendant that suggested he was involved in drug sales.

In a prior case, the court held that five plastic bags of marijuana inside a defendant’s pocket didn’t support an inference that he intended to distribute them. Neither did his defensive demeanor. He didn’t have cash, a scale, a cell phone or pager, or empty plastic bags. There wasn’t enough probable cause to issue a complaint.

Distribution of Heroin in Massachusetts

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

Trafficking in heroin in Massachusetts is prohibited by Section 32E of the Controlled Substances Act. Often, attorneys must defend a drug crime like this one by using a motion to suppress evidence. In Commonwealth v. Alix, the defendant appealed from a conviction for possession with intent to distribute heroin and violating drug laws within 300 feet of a park or school. Before trial, the defendant filed a motion to suppress evidence that was seized at his home. He argued that the affidavit supporting the search warrant didn’t establish a connection between the alleged crime and his home. The motion was denied.

The defendant appealed. The affidavit had claimed that a confidential informant had told police that a Hispanic man (who had the same first name as the defendant and drove a gray Saab) was selling heroin. Detectives became aware due to another investigation that the defendant had the name mentioned by the informant and drove a Saab.

The informant initiated a transaction that the police controlled. He called the defendant and asked to buy heroin at a specific location. The detectives searched the informant and his vehicle for controlled substances and gave the informant money to conduct the transaction. They also watched the defendant’s home and saw him leave his home and go into a gray Saab. The detectives watched continuously as the informant went into the Saab to meet the defendant and went to a location to meet the detective, where the informant handed the detective heroin. The informant returned home.