Boston Criminal Defense Lawyer Blog

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.

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.
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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.
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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.
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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.
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