Published on: | by

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

Published on: | by

In Commonwealth v. Jovani A. Garcia, the defendant was charged with possession with intent to distribute crack cocaine. Two detectives were doing undercover surveillance in a “high crime area” at the prompting of neighbor complaints. One detective was in an unmarked vehicle, while another was near a residential building.

A detective saw a car turn right on the street, stayed still, drove north, and then made a U-turn to drive south again. Around the same time, a man came out of the building. The detectives were familiar with him. They described him as “light-skinned” and “Spanish.” The man got into the car’s back seat. The car traveled a short distance and stopped, whereupon the man got out and went back inside the building and the car drove off.

The police believed they’d just witnessed a drug transaction. They radioed takedown detectives to stop the car. At the stop, the takedown officers discovered 3-4 bags of crack cocaine on the front seat.
Continue reading

Published on: | by

In Commonwealth v. Rivera, co-defendants were convicted of armed assault with intent to murder, armed robbery, assault and battery with a dangerous weapon, kidnapping, and armed carjacking. They appealed from their conviction. One claimed the judge showed racial bias during jury selection and that there was insufficient evidence to sustain a conviction for armed assault with intent to murder. The other challenged a jury instruction on eyewitness identification and remarks in the prosecutor’s closing argument.

The case arose when the defendants stopped the victim, a food delivery driver. They wanted a ride. One of the defendants sat in front while the other sat in back. The defendant in front showed the victim a gun and told him to drive them to various places. At a stop where one defendant’s friend lived, the other defendant grabbed him by the neck and beat him with the gun, pulling him into the back of the car. The other defendant moved into the driver’s seat. The victim heard the defendants say they would kill him and throw him in the lake.

The victim managed to get the back door open, but the defendant in the front seat got out and hit him with the gun. The defendant said he would kill him for staining his shorts. The defendants robbed the victim of about $1,400 plus his cell phone. The victim ran away and heard three gunshots. One of the defendants pointed a gun at him.
Continue reading

Published on: | by

Under G. L. c. 90, § 24G(b), somebody who operates a car or other vehicle recklessly or negligently and endangers the lives of others, and thereby causes another’s death, can be convicted of homicide by a motor vehicle. The punishment is imprisonment in jail or a house of correction for a minimum of 30 days and a maximum of 2 1/2 years, or a fine of $300-3,000, or both of these.

In Commonwealth v. Gallien, the defendant was convicted of motor vehicle homicide by negligent operation. The evidence showed the defendant didn’t stop the tow truck he was driving, resulting in a crash with a Honda Civic stopped at a red light. The collision killed a passenger in the rear-seat of the Honda.

The judge precluded the defendant from presenting evidence about modifications made to the Honda. The court explained that in criminal cases, a victim’s contributory negligence, even if it is a big part of the cause of a homicide, doesn’t excuse the defendant for also causing the victim’s death. To the extent that the defense’s goal was to show the victim was also negligent, excluding the evidence was proper. On appeal, however, the defendant argued that the modifications evidence should have been admissible not to show the victim’s negligence, but to show that the driver’s actions were an intervening or superseding cause of the victim’s death. The driver was a third party, not the victim.
Continue reading

Published on: | by

Under G. L. c. 90, § 24(1)(a)(1), anybody in Massachusetts who operates a motor vehicle in a place where the public has access with .08 blood alcohol content, or while under the influence of intoxicating liquor, marijuana, narcotics, depressants, stimulants, or glue vapors can be punished by a fine of $500-$5,000 or by imprisonment for not more than 2 1/2 years, or both. A person who is convicted, is placed on probation, or otherwise pleads guilty to an OUI is subject to an assessment of $250, which cannot be reduced or waived by the court.

If the defendant was previously convicted or assigned to an alcohol substance education or rehabilitation or treatment program, the defendant faces a fine of $600-$1,000 and imprisonment of 60 days-2 1/2 years. The sentence may not be reduced to less than 30 days, and the defendant won’t be eligible for probation, parole, or furlough.

In Commonwealth v. Nahimana, the appellate court reviewed the sufficiency of evidence for the OUI conviction of a defendant who was not given a breath or blood test. The case arose when the defendant was driving 25 mph on a 55 mph roadway after midnight, and a state trooper who was off-duty pulled him over. The trooper observed that the defendant’s slow speed was causing other cars to swerve or hit the brakes. He also saw that the defendant’s car failed to signal when crossing about 75% of the left lane, before moving back into his own lane.
Continue reading

Published on: | by

In the nonbinding Massachusetts appellate case of Commonwealth v. Morris, the court considered a defendant’s conviction by jury for assault with intent to rape, assault and battery, and indecent assault and battery. He appealed on the grounds that the judge should not have allowed improper testimony about the demeanor of the victim and that the prosecutor’s closing argument improperly supported the government’s rebuttal witness.

The case arose when the victim was hitchhiking with three friends. The defendant picked them up, and the victim sat in the front seat. When the defendant came to the victim’s street, he drove to a street that was past her house, and when the victim asked that he stop the car, he refused. She opened the door and jumped out of the car as the defendant slowed down. The victim tried to run back to the main road, but the defendant knocked her down and sexually assaulted her.

The victim passed out and then heard someone yell that the cops were coming. The defendant left, but the victim memorized some of the numbers on the defendant’s license plate. When the police came, she gave them the details of the attack and a description of the defendant. The next morning, an officer took her and a friend to identify the defendant, which she did.
Continue reading

Published on: | by

Last month, prosecutors in certain Massachusetts counties suspended the use of Breathalyzer test results in OUI cases. Meanwhile, the State Police reviewed whether the test procedures were reliable. In March, prosecutors were told about concerns with the tests, which caused a number of attorneys to look at older cases to see whether there were Breathalyzer test results with issues.

A spokesperson for the Executive Office of Public Safety and Security stated that when properly maintained, the breath test instrument is one of the most accurate tools available to identify drunk drivers. However, the district attorney for Middlesex County claimed that the issue was the calibration of Breathalyzers, and her staff was temporarily ordered to stop using test results in cases. Similarly, the Cape and Islands district attorney issued an order not to introduce the breath test in any case until further information is obtained. One official initially claimed that 69 out of 6,000 tests administered throughout the state were involved.

At the end of April, the Public Safety Secretary Daniel Bennett announced that only a small number of 39,000 breath analysis tests were flawed because police officers had made mistakes calibrating the machines. He claimed the tests themselves were not malfunctioning.
Continue reading

Published on: | by

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.
Continue reading

Published on: | by

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.
Continue reading

Published on: | by

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.
Continue reading

Contact Information
90 Canal St 4th Floor
Boston, MA 02114
Phone: 617-367-0450Fax: 781-523-5454

We accept the following credit cards

Credit cards

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2025, Law Office of Patrick J. Murphy
JUSTIA Law Firm Blog Design