Boston Criminal Defense Lawyer Blog

Pre-trial Diversion Programs in Massachusetts

Published on: December 15, 2015 | by Patrick J. Murphy, Esq.

When someone is charged with a crime in Massachusetts, they face the possibility of imprisonment, probation, or fines, and sometimes all three. However, individuals who don’t have significant criminal records or who are veterans may be eligible for a pre-trial diversion program. The District Attorney’s Office runs the program.

If a case goes through the pre-trial diversion program, the client doesn’t go before a judge. The purpose of pre-trial diversion is to give a defendant the possibility of avoiding the criminal justice system by meeting certain requirements. Massachusetts General Law chapter 276A section 1-11 includes the requirements that allow courts to divert defendants charged with certain misdemeanors.

Under MGL chapter 276A section 2, district courts and the municipal court of Boston have jurisdiction to divert someone charged with an offense for which imprisonment can be imposed and over which district courts can exercise final jurisdiction. However, the defendant must be between 18 and 22, never have been convicted in a criminal court after reaching 18 (except for traffic violations that were not punished with imprisonment), not have outstanding warrants or appeals or cases pending anywhere in the country, and have received a program recommendation that he or she would benefit from the program. A separate code section (section 10) covers pre-trial diversion for adult veterans. Adult veterans must meet other requirements and need not be between ages 18 and 22.

Probable Cause When Investigating Theft Crimes in Massachusetts

Published on: December 7, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Fasanelli, a Massachusetts defendant appealed after convictions for breaking and entering and larceny. The case arose in 2012 when a police officer sitting in an unmarked car was monitoring a residential area of Malden for suspicious activities and break-ins. He saw two men approaching from behind the car and witnessed them walk past a particular house before turning back and entering the porch. A minute later, they left the porch and returned the way they came.

The officer drove around, trying to find them, and contacted other officers to watch out for the men. He came back to the home where the men had entered the porch to talk to the homeowner. She later testified that she was preparing for the day when someone rang the doorbell. The doorknob jiggled. She opened the door and did not recognize the two men standing there. They asked for someone. and she didn’t recognize the name. They left.

A second officer identified the two men who fit the first officer’s description. One held a red gym bag. While the second officer watched, a marked police car approached the men, who reacted by going behind a house to avoid being seen.

Scope of Permissible Search and Seizure in Massachusetts

Published on: November 17, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Romero, the court considered an interlocutory appeal of an order denying the defendant’s motion to suppress evidence seized and statements made after a warrantless search of a parked car that was registered in his name. At the suppression hearing, the police officers testified that five individuals, including the defendant, were gathered and drinking from open alcohol containers in a parking lot on the night in question. One of the individuals crouched behind a parked car. There were no trespassing and no parking signs posted, and the lot was dim.

The officer pat frisked the person crouching by the parked car and found nothing. The officer told him to go back to the group. The officer searched for 30-45 seconds and, finding nothing, returned to the other officers. The officers learned that none of the group lived in the area, and the defendant was previously arrested for armed robbery and might have had a knife on him. However, when he was pat frisked, no weapons were found.

An officer noticed that the side windows of a Dodge Caravan parked in front of the officer’s car were opened partway, and there was a fanny pack and jacket on the floor behind the driver’s seat. The officer thought there might be valuables in the car, and he asked if anyone owned the car or knew the owner. Nobody responded. The officer was worried for the officers’ safety and opened the Caravan’s door. He looked in the glove box, and when he frisked the fanny pack he found a loaded firearm.
Continue reading

Aiding and Abetting in Massachusetts

Published on: November 4, 2015 | by Patrick J. Murphy, Esq.

Somebody can be found guilty of a criminal offense even if he or she didn’t actually commit the crime but aided and abetted the perpetrator of the offense in a “joint venture.” You can be guilty if you intentionally act with another to commit a crime in order to bring it about and make it succeed. In some cases, statements made by someone in a joint venture are used to convict his or her partner.

In Commonwealth v. DiGregorio, the defendant was found guilty of home invasion, kidnapping, assault, and battery by means of a dangerous weapon. On appeal, he claimed that the judge had improperly admitted statements between two friends, these statements didn’t fall under any exceptions to the hearsay rule, and they were therefore inadmissible.

One of the exceptions at issue was the joint venture exception to the hearsay rule. Under this rule, when joint criminal venturers make out-of-court statements against others, these statements are admissible if they are made while a criminal enterprise is pending and in order to further it. The judge must determine whether there was a criminal joint venture between the person making the statement and the defendant, but the judge doesn’t need to make a preliminary ruling that there was a joint venture. The evidence can come in, subject to a motion to strike at a later time if the prosecution doesn’t show there actually was a criminal enterprise. The judge needs to give a jury instruction informing the jury they can only consider the hearsay if they find there was a joint venture, based on all the other evidence except the hearsay statements.
Continue reading

Criminal Harassment in Massachusetts

Published on: October 15, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Leboeuf, the defendant appealed from a conviction for criminal harassment and making harassing telephone calls under G. L. c. 265, § 43A and G. L. c. 269, § 14A. He presented seven arguments as to why the conviction should be overturned: insufficient evidence, erroneous denial of a motion to dismiss, improper entry of a partial nolle prosequi, violation of due process, erroneous jury instructions, violation of confrontation rights, and double jeopardy.

The case arose when a woman received about 30 phone calls on her cell phone from an unavailable number in the middle of the night. She recognized the defendant’s voice when he asked for contact information for her friend, who was also the mother of his child. She refused to give him the information, but he continued calling both her cell phone and her employer’s home phone. He asked her if he needed to come to Boxford, which was the location of the home where she served as a nanny. After 26 phone calls, she let her employer know and called the police.

In order to prove criminal harassment, the Commonwealth must show: (1) the defendant engaged in a knowing series of actions or speech on at least three different occasions, (2) the defendant intended to target the victim with harassment, (3) the conduct was such that it seriously alarmed the victim, (4) a reasonable person would suffer significant emotional distress due to the conduct, and (5) the defendant acted maliciously and willfully. The defendant argued that the Commonwealth had not shown the conduct was willful and malicious or that a reasonable person would have experienced significant emotional distress.
Continue reading

Threatening to Commit a Crime in Massachusetts

Published on: October 1, 2015 | by Patrick J. Murphy, Esq.

Under Massachusetts General Laws, Chapter 275, Section 4, it is a crime to threaten to commit a crime against someone else. If the defendant is convicted, he can be punished by a fine of $100 or less, or by imprisonment for six months or less. In many cases, there are additional charges brought against someone prosecuted for threatening to commit a crime, such as assault and battery.

In Commonwealth v. Montoya, the court considered a case in which the defendant was convicted of assault, battery, and threatening to commit a crime. The crimes arose from a turbulent romantic relationship between the defendant and the victim. The victim lived with the defendant, their four-year-old son, and her daughter from an earlier relationship. The defendant accused the victim of infidelity, and this developed into a physical confrontation.

The victim ran from the apartment with the children and went to her aunt’s, where she called 911 to report domestic violence. She asked the police to hurry because the defendant was crazy and was using her car to chase her around the neighborhood. A police officer responded to the call and came to the victim’s apartment. The officer observed blood on the victim’s ear, scratches, and a bruise. The apartment was in disarray.
Continue reading

OUI on a Suspended or Revoked License in Massachusetts

Published on: September 14, 2015 | by Patrick J. Murphy, Esq.

In the recent case of Commonwealth v. Ross, the defendant appealed from an OUI conviction, her fifth offense, and operating a motor vehicle under the influence with a suspended or revoked license under
Massachusetts G. L. c. 90, § 23.

The case arose when the defendant was driving on a part of the road that was under construction. Later, someone working at the construction site would testify he saw the defendant crash into a construction vehicle parked there. The police came to the scene shortly thereafter. A policeman asked to see the defendant’s license, and she told him she didn’t have one that was good. He continued to interview her and then arrested her for an OUI. Her vehicle was searched, and wine bottles were found.

At trial, the defendant claimed her appearance and actions during the interview and arrest were due to the fact she suffered from seizures. The judge bifurcated the trial. In the first part of the trial, the judge heard testimony about what happened leading to the arrest. He ultimately found her guilty of operating a car with a suspended or revoked license and of an OUI. In the second half, the defendant stipulated to the evidence, and the judge determined the defendant was guilty of OUI, fifth offense, and that her license had been revoked for a previous OUI conviction.
Continue reading

Choosing Not to Testify in a Massachusetts OUI Trial

Published on: September 2, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Botelho, the defendant appealed after being convicted of a second offense OUI. The only issue before the jury at trial was whether he was drunk at the time of the collision or whether his demeanor arose out of his hearing impairment plus the effect of the crash.

The case arose one night in 2012, when an officer responded to a dispatch about a one-vehicle accident. The defendant was discovered behind the steering wheel of a truck that had crashed into a utility pole. There was significant damage at the front of the car, and the side air bag had deployed. When the defendant got out of the truck, he said his stabilizer broke. He said he hadn’t been drinking.

However, the arresting officer later testified that the defendant’s speech was slurred and his eyes were bloodshot, and that he smelled of alcohol. When he administered two field sobriety tests, the defendant tried to perform the tests before he’d finished giving instructions. The officer failed the defendant for both tests and then arrested him and charged him with OUI and negligent operation of a motor vehicle.
Continue reading

Motion to Suppress Breathalyzer Test Results in Massachusetts OUI

Published on: August 17, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Cormier, the defendant was arrested for an OUI and speeding in 2012. He agreed to take a Breathalyzer test. The results of the test showed he was above the statutory limit for alcohol consumption.

During discovery, the defendant asked for the manual for the particular Breathalyzer machine that had given results in his case. The Office of Alcohol Testing (OAT) responded there was no manual. In response, the defense asked to exclude the breath test under 501 Code Mass. Regs § 2.04(f), which requires OAT to develop and maintain an operator’s manual.

The defense asked for an evidentiary hearing. At the hearing, an OAT supervisor testified that the machine in question was new and had only been introduced the year before the defendant’s arrest and that it was in use throughout the state. She explained the machine had two parts. The information related to the first part, the inner workings that measured breath, wasn’t in a manual because the manufacturer had a proprietary interest in the technology. The second part related to state-specific software that had to be installed because of different breath test requirements across the country.
Continue reading

Breaking and Entering in Massachusetts

Published on: August 5, 2015 | by Patrick J. Murphy, Esq.

Breaking and entering is a crime under G. L. c. 266, § 18. The law defines breaking and entering as the act of entering a dwelling at night or a building, ship, or motor vehicle during the day with the intent to commit a felony. It can lead to fines as well as substantial terms of incarceration in state prison. Punishments are increased for those who break and enter while armed.

In Commonwealth v. Bethune, a defendant appealed from convictions for breaking and entering with intent to commit a felony and stealing in a building. The convictions arose from two different events. The first involved a breaking and entering when the police saw him walking with a jewelry box that they later learned was stolen. The second involved a breaking and entering when the police saw the defendant flee from a house with the burglar alarm ringing.

The second incident arose when the police officer was parked across the street for other reasons and heard a voice alarm. He came up to the house where the alarm was sounding, and he saw someone wearing a tank top leave. The officer yelled for the defendant to stop to no avail, and he and another officer ran after the man. Eventually the first officer had to stop, but the second officer continued running after the man. A third officer joined in and saw someone running who matched the description he’d been given, and he saw him hide behind a trash compactor. The original two officers came and identified the defendant as the person who had fled 3-4 minutes before.
Continue reading