Boston Criminal Defense Lawyer Blog

Misleading a Police Officer in Massachusetts

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

In the case of Commonwealth v. Parker, a Massachusetts appellate court issued a nonbinding decision ruling on the crime of misleading a police officer engaged in a criminal investigation. The case arose when a police officer was dispatched to a street in Chelsea after shots were purportedly fired at the defendant bus driver.

The officer arrived at the scene. The defendant told the officer that someone boarded the bus, showed a handgun, and ordered her to hand him all her money, and then fired a shot that lodged in the driver seat. The defendant claimed she stood to get her wallet, but the person hit her and caused her to fall on the floor, and then the person snatched her wallet and fired shots at her. She claimed none of the bullets struck her, but two of them pierced the sleeve of her jacket.

The defendant described her attacker as a white male wearing a hooded jacket and told the officer that his firearm was similar to the officer’s. The officer conducted a search of the bus but didn’t find any shell casing that would have been ejected if a gun like his had been fired. He also didn’t smell gunpowder residue.
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Possession with Intent to Distribute Drugs in Massachusetts

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

It is a felony to distribute or possess with intent to distribute a controlled substance in Massachusetts, if the substance falls into class A, B, or C. Distribution or possession with intent to distribute a controlled substance that falls into class D or E is a misdemeanor. Class B drugs include cocaine, crack cocaine, or methamphetamine.

Section 32A of Chapter 94C provides that conviction of manufacturing, distribution, or intent to distribute is punished by up to 10 years in state prison and up to a $10,000 fine. With a prior similar drug crime conviction, the mandatory minimum is two years in state prison. Those serving a mandatory minimum for this offense are only eligible for parole after serving half of the maximum term of the sentence if the sentence is to the house of correction, unless there is a finding of an aggravating circumstance, such as use of a firearm or threats of violence.

Possession with intent to distribute is a charge that usually relies on circumstantial evidence, and intent can be proved by evidence showing you had multiple individually wrapped baggies of drugs and large amounts of cash. Often, these charges can be defended by arguing that the way the police found the evidence was illegal.
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Victim’s State of Mind in Massachusetts Assault and Battery Cases

Published on: March 23, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Parker, a defendant was convicted of assault and battery, plus indecent assault and battery, for non-consensually touching the victim. He appealed, arguing the evidence was insufficient to convict him.

The case arose during a time when the defendant and victim lived separately in a condominium building. In 2010, the victim sought a restraining order against a third party on an unrelated case. The defendant offered to go with her to court. The victim agreed, and they drove to court separately.

When they left court, the defendant grabbed her hand as they walked to her car, and then asked for a ride to his car. The defendant grabbed the victim and kissed her. The victim wiped her mouth, spat, asked him to stop, and asked him to leave her alone.
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Massachusetts Defendant Withdraws Four Guilty Pleas for Drug Crimes

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

In Commonwealth v. Martin, a Massachusetts court considered a drug case in which a defendant filed motions to withdraw four guilty pleas related to 30 drug offenses. The case arose during the investigation of the defendant’s boyfriend. Contraband was discovered in the defendant’s car, a search warrant was executed at the defendant’s home, and a controlled buy was conducted with the defendant’s boyfriend’s half-brother. After the investigation, there were four sets of indictments involving 12 substantive drug crimes involving cocaine trafficking, as well as school zone and conspiracy charges.

The defendant pled guilty to the 30 drug offenses. All six of the cocaine trafficking charges were reduced to a lesser offense: possession with intent to distribute. She pled guilty to these and all remaining charges except a charge of possession to distribute a class D substance, a school zone violation, and a firearm violation. She was sentenced to 5-8 years in state prison on the possession with intent to distribute charges and all but one conspiracy charge. She was also sentenced to five years of probation that would follow her time in prison on a conspiracy charge.

Three years later, she filed a motion to withdraw the pleas, arguing there had been no factual basis to establish some of the charges, her guilty pleas weren’t made voluntarily or intelligently, and her attorney was ineffective in failing to file a motion to dismiss certain conspiracy counts that were duplicative and a motion to suppress. Her motions were denied. The judge ruled that the record showed that the defendant was informed of all elements and that the prosecutor recited facts establishing all of the charges.
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Probation Violation in Massachusetts Domestic Assault Case

Published on: February 16, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Polito, a Massachusetts appellate court considered the case of a defendant found in violation of his probation. The case arose on an afternoon in August 2009, when a police officer responded to a report of domestic battery and assault. The officer saw that the victim was shaking and crying and her nose was flat and swollen. The victim told the officer that the defendant had gotten angry and beaten her with an object, broken a broom, hit her with it, and thrown a mug at her face. The mug broke her nose. The officer arrested the defendant, and on his way out he yelled that the incident was the victim’s fault. The victim suffered a broken nose and finger.

The defendant was indicted on two sets of indictments, and he pled guilty. With regard to the first set of indictments, the defendant was sentenced to 2 1/2 years in a house of corrections on three counts of assault and battery with a dangerous weapon, and one witness intimidation count. A portion of the sentence was to be served, with the balance suspended for 10 years with supervised probation. Two conditions of the probation were to undergo mental health evaluation and treatment and to have no contact with the victim. He also received 10 years of concurrent probation with the same conditions for criminal harassment and violating an abuse prevention order.

The defendant also pled guilty on the second set of indictments. For two counts of assault and battery on a public employee and disruption of court proceedings, he was sentenced to 10 years straight probation under the same conditions as the probation for the first set of indictments.
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Forgery in Massachusetts

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

Presenting a forged instrument as a genuine instrument (known as “uttering a forged instrument“) is a crime in Massachusetts under General Laws, Chapter 267, Section 5. The Commonwealth must prove that the defendant (1) had the intent to injure or defraud, (2) uttered and published as true a false, altered, or forged instrument (e.g., a check), and (3) knew it was false or altered or forged. This crime is punished by a maximum of 10 years in state prison or up to two years in jail.

In Commonwealth v. Gianatasio, a Massachusetts appellate court reviewed forgery charges. The case arose from two checks the defendant deposited into his personal checking account. The first check was drawn on a woman’s account and made payable to the defendant for the sum of $45,611.94. The second check was drawn on the same account and was for the sum of $25,000.

The woman and her husband were the defendant’s next-door neighbors for years. They became ill in March 2007 and were admitted to the hospital. The husband died in May 2007, and the woman was transferred to a rehabilitation facility, where she died in June 2007. Between March and June 2007, the couple’s checkbook was in the control of the husband’s cousin, who was responsible for writing checks to pay the couple’s bills. A close friend of the couple delivered their mail to the couple and took bills from the mail to the cousin.
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Assault and Battery Causing Serious Injury in Massachusetts

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

Under Massachusetts law, anyone who commits assault or assault and battery may be punished by imprisonment for not more than two and a half years in a house of correction or with a fine of not more than $1,000. However, a defendant can be punished by up to five years in state prison or in the house of correction or by a fine of up to $5,000, or both a fine and imprisonment, when he or she commits assault and battery causing serious bodily injury.

Serious bodily injury includes those injuries that result in permanent disfigurement, the loss or impairment of a bodily function, limb, or organ, or the substantial risk that the victim will die. In a 2014 case, Commonwealth v. Rainey, a Massachusetts appellate court considered the conviction of a defendant convicted of assault and battery causing serious injury. He had appealed, arguing there was insufficient evidence of serious bodily injury for the conviction and that the Commonwealth had failed to prove there was an absence of self-defense beyond a reasonable doubt.

The appellate court explained that a reasonable jury could have interpreted what happened as follows. Three female friends arrived by car to a party. At the party they met a male they knew (Donald Gammon, the victim) who had been drinking and was holding a beer can. They walked towards the party and passed a group that included the defendant. The defendant gave one of the victim’s friends the middle finger as they passed by.
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Sexual Assault of an Uber Passenger in Boston

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

Recently, a 46-year-old Uber driver was accused of sexually assaulting a passenger in Boston. Uber customers use an app to arrange and pay for rides with drivers who are nearby. The driver pled not guilty to all charges, which included rape and kidnapping. The incident allegedly occurred on December 6, when the woman called an Uber car to take her home after a night spent with friends.

Once the woman was in the car, the driver allegedly said she would need to pay with cash and drove her to an ATM. Once she returned to the car, he drove to a secluded area, jumped into the back seat, and allegedly struck, strangled, and sexually assaulted her. Boston police have stated that they are investigating three other indecent assault allegations related to women using ride-for-hire services.

Rape is a felony charge described in Massachusetts General Laws Chapter 265 Section 22(b). It is taken very seriously in Massachusetts. To secure a conviction in a rape case, the Commonwealth will need to prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with the alleged victim and that the defendant used force or otherwise compelled the victim to submit against his or her will. “Sexual intercourse” means that there was penetration, but it doesn’t have to be significant. Even finger penetration or the use of a foreign object can satisfy this requirement. “Force” is usually defined as a threat of bodily injury, but it doesn’t always mean physical force. Sexual assault, in contrast to rape, is more broadly defined as any sexual activity that is coerced, forced, or unwanted.
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Receiving Stolen Property in Massachusetts

Published on: December 15, 2014 | by Patrick J. Murphy, Esq.

In the recent appellate decision of Commonwealth v. Hernandez, a defendant appealed from a conviction for receiving stolen property. The case arose when the defendant was riding a bicycle down the street, pulling another bicycle along with him. The police stopped him and asked what he was doing. The defendant offered two explanations for having a second bicycle. He also consented to the officers searching the duffel bag he wore on his back.

The duffel bag contained a package of Proactiv with a label addressed to Thomas Shepard. The defendant claimed he found the bike and the box nearby, and he offered to return them both. The officers arrested him on the grounds that he gave conflicting accounts of the objects and was carrying something that was addressed to someone else.

At a bench trial, the owner of the Proactiv, Thomas Shepard, testified that he hadn’t changed the address on his Proactiv shipments when he moved and hadn’t realized he was missing a package until the prosecutor contacted him. The defendant moved for a required finding of not guilty when the state closed its case, but his motion was denied. He was convicted.
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Drug Crimes in School Zones in Massachusetts

Published on: December 1, 2014 | by Patrick J. Murphy, Esq.

In the recent case Commonwealth v. Thompson, a Massachusetts court considered the conviction of a man charged with selling cocaine in a school zone. While the man’s appeal was pending, the statute related to school zone drug crimes was amended to reduce the radius of the area that is considered a “school zone.” Previously the radius was 1,000 feet, and while the appeal was pending it became 300 feet. An appellate panel ruled initially that the amendment wouldn’t apply retroactively and rejected the defendant’s arguments.

The case arose while the police were patrolling in Cambridge. They watched from an unmarked vehicle as two people sat on the curb next to the parking lot of a convenience store. They were familiar with the parking lot from previous investigations of drug crimes. The two people counted change and were glancing around. The woman stood up and made a call at a pay phone. Soon after, she hung up and came back to the curb. In 10 minutes, the defendant approached on his bike. He didn’t stop but said something to the woman. The woman followed the defendant quickly.

They stopped at a nearby house. They had an exchange that appeared to involve the passing of something between their hands. This happened about 500 feet from the school. The woman continued to pace and returned to the man at the curb. She and the man hurried away, and the defendant got back on his bike and rode off. The detectives pulled into the driveway and approached the house where the man and woman were. The man had a plastic baggie of crack cocaine in his hands, and he dropped it over a nearby fence to drop it.
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