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To prove the crime of perjury in Massachusetts, a prosecutor must prove (1) a defendant was required by law to state the truth in a judicial proceeding, (2) the defendant willfully testified falsely, and (3) the false statement was material to something at issue. What is materiality in this context? Something is material to the extent it reasonably affects an aspect or result of the judicial inquiry.

A recent case arose from a defendant’s conviction for perjury after he testified to a grand jury as to a shooting death. The defendant’s cousin was a suspect and was indicted for the murder. The issue in the defendant’s perjury trial was whether he had falsely testified to the grand jury.

The victim was shot near Maynard Street in Springfield just after midnight in May 2008. The defendant had testified to the grand jury he was with Keison Cuffee at another cousin’s (Whitney Walton) house on Westminster Street in Springfield until 1:15 a.m., providing the person with an alibi.
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When a police officer seeks a wiretap to obtain evidence against someone suspected of illegal activity and a prosecutor tries to use that evidence, certain rules must be followed. A recent case arose after a defendant was convicted of drug and firearm charges in connection with wiretap evidence. The police started investigating him for drug dealing in 2009, using various surveillance tools including a GPS tracking device on his car and following him. These methods didn’t provide enough information so the officers applied for a wiretap under G. L. c. 272, § 99 to wiretap the defendant’s two cellphones.

The officers attested to their prior investigation efforts and stated that they wouldn’t be able to figure out the scope of the defendant’s drug dealing otherwise. The court granted their application, permitting them to start in July and granting them an extension. They arrested the defendant in August and charged him.

The defendant filed a motion to suppress the evidence obtained from the wiretap, which was denied. At trial, the jury came back with a mixed verdict. He appealed the decision on the motion to suppress. The appellate court explained that a warrant permitting a wiretap is only appropriate if the applicant can demonstrate that ordinary investigative procedures were tried, but failed.
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The double jeopardy clause of the Fifth Amendment of the United States Constitution states that nobody can be placed in jeopardy twice for the same criminal offense. In other words, it prohibits duplicative convictions — more than one conviction for the same course of conduct. However, not all cases in which there are multiple charges for the same set of facts violate this prohibition.

A recent appellate case illustrates how this constitutional prohibition against double jeopardy works in Massachusetts. The case arose out of a defendant’s conviction for conspiracy to violate drug laws, which was entered as part of a plea, and his conviction for distribution of cocaine. The defendant argued these two convictions arose out of the same facts and were essentially punishing the same offense.

In this case, an informant had infiltrated a narcotics distribution ring. He contacted Wisdom Ellerbee to buy cocaine. Ellerbee told him a place where they could meet to finish the sale. The informant went there and Ellerbee drove up. The defendant was in the front seat next to him.
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Drug sale and distribution charges in Massachusetts can be treated more harshly based on factors other than the type and amount of drug in question. The context of the sale or distribution can make a big difference. For example, a “school zone violation” is a sentencing enhancement for people who commit drug crimes beyond mere possession. A school zone violation requires the court to impose a mandatory minimum term of incarceration that begins only upon the expiration of the sentence for the drug crime with which it is associated.

The recent appellate decision Commonwealth v. Bradley considered an amendment to the school zone violation law. The case arose when the police received a search warrant in 2010 to search the defendant’s dorm room, where they found marijuana. The dorm room was about 700 ft. from a preschool. Accordingly, the defendant was charged with possession of a class D substance with intent to distribute within 1000 feet of a preschool facility (a school zone violation.)

Two years later, the governor signed a bill that reduced the radius of the school zone from 1000 to 300 feet. The defendant’s case had not yet been adjudicated. He asked for his school zone violation to be dismissed, since his actions were committed 400 feet outside the school zone as described in the amendment. He argued that the change in the law should apply retroactively to cases that had not been decided before 2012.
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In addition to some of the common criminal laws and statutes regarding the Commonwealth of Massachusetts, there is also a parallel system of federal laws which applies to all citizens living within any state in our nation.One such law that may be unknowingly violated is the Lautenberg Amendment of the Gun Control Act of 1968, 18 U.S.C. § 922(g)(9), which states that it is unlawful “for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to … possess in or affecting commerce, any firearm or ammunition.”

The issue of what sorts of domestic violence convictions count under this federal law was recently reviewed by the United States Court of Appeals, First Circuit, which is the federal court to which all Massachusetts district court cases are appealed.
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In a very narrow plurality opinion, the U.S. Supreme Court recently decided to overrule a decision reached just 11 years ago, in the name of protecting defendants’ Sixth Amendment rights.In the case, Alleyne v. US, 133 S. Ct. 2151, Sup. Ct. (2013), the Court examined the role of the jury and judge in proving elements versus enhancements for sentencing purposes.

In the case, Alleyne had been involved in a robbery involving a firearm. The underlying criminal statute stated that regarding sentencing, a conviction of the crime would result in a minimum of 5 years in prison. If a firearm was brandished during the commission of the crime, the minimum sentence would be bumped up to 7 years.
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On this blog, we often discuss how due to the serious nature of criminal offenses, the government bears the burden of proving all elements of a crime beyond a reasonable doubt. However, in certain cases, that is not the only burden of proof that the Commonwealth must bear. For example, as one Appeals Court decision affirms, in charging and sentencing based upon prior offenses, the prosecution must also prove that it was the same individual who committed the prior relevant offenses.In the case, Commonwealth v. Cruz, Mass. App. Ct. (2013), the defendant was subjected to a two part trial. In the initial phase of the trial, the jury convicted the defendant of operating under the influence of intoxicating liquor (OUI) and of negligent operation of a motor vehicle. In the second part, the jury convicted the defendant on the subsequent (third) offense portion of the operating under the influence charge. However, the defendant, Michelle Cruz, appealed on the later charge, arguing that there was insufficient evidence to establish that she was the individual who committed the two prior OUI offenses.

According to the opinion, the only evidence introduced by the Commonwealth to establish the defendant’s identity, was a certified copy of Michele MacCord’s 1993 OUI conviction and a certified copy of Michele Fortenbacher’s 2003 OUI conviction. Both of those conviction records reflected a birth date of March 17, 1962.
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The Appeals Court of Massachusetts seated in Suffolk County handed down a decision earlier this year regarding a defendant who had been unlawfully indicted on a charge which the prosecution had not fully proven.In the case, Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267 (2013), following a jury trial in Superior Court, the defendant was found guilty of rape aggravated by kidnapping; kidnapping aggravated by sexual assault; and indecent assault and battery. The judge sentenced him on the aggravated rape and indecent assault and battery charges, and placed the indictment for aggravated kidnapping on file, to which the defendant objected. The defendant’s appeal centered on the filed indictment. He argued that, the jury instruction setting forth the elements of aggravated kidnapping was erroneous.

Under the relevant portion of the statute, “[w]hoever commits any offense described in this section [the crime of kidnapping] while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person or who sexually assaults such person…” shall be found guilty of the crime. [emphasis added by court].
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The Supreme Judicial Court of Massachusetts recently reached a decision regarding the application of mandatory minimum sentences to defendants who are caught in the middle of sentence reduction law changes.In the case, Commonwealth v. Galvin, Mass: Supreme Judicial Court 2013, the court examined the case of a defendant who was caught in the middle of changes made to G.L. c. 94C, § 32A (d) (§ 32A [d]), which was reduced effective August 2, 2012.

In the case, the defendant had allegedly committed the offense prior to the date that the law changed, but both his conviction and sentencing occurred after the change. The affect of the law was to lower the mandatory minimum sentence from five to 3 1/2 years.
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The Supreme Judicial Court issued an opinion earlier this month, that held the common practice of eliciting opinion testimony from police officers regarding impairment in OUI cases is not permissible as evidence.This case is noteworthy, because in practice, many prosecutors have developed a habit of simply asking officers their opinion regarding whether a driver was impaired at the time of the arrest, which the court held is a legal issue upon which a lay witness is not qualified to speak.

The case involved the stop of a driver in 2009. In addition to recanting facts regarding the circumstances of the driver’s field sobriety tests, the prosecutor asked the officer whether he had formed any opinions regarding the driver’s sobriety. To this, the officer replied, “I believed that his ability to drive was diminished.” This is testimony that the court held was impermissible, as it comes close to an opinion on the ultimate issue of guilt or innocence, in this case the standard for the OUI charge is whether “the defendant’s consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely.” Therefore, due to the well established law that “[n]o witness, including a police witness, may testify as to a defendant’s guilt or innocence,” this type of testimony is not allowed.
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