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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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Cambridge police recently announced that they had made an arrest of a Boston man who was wanted on charges relating to two break-ins in Cambridge.State police and members of a U.S. Marshals task force seized cocaine, bath salts, oxycodone and more than $8,000 in cash. The man was arrested pursuant to an arrest warrant for the housebreaks.

In addition to the charges stemming from the warrant, the man was also charged with two counts of possession of a class B drug and trafficking of cocaine. These charges were based on police stating that they seized 18 grams of cocaine, nine ounces of “bath salts,” and 38 grams of oxycodone pills that had been packaged for distribution pursuant to the arrest. Police also reportedly seized drug paraphernalia, items believed to have been taken during break-ins, and more than $8,000 in cash.
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Freetown police responded to an alarm that was set off inside of a GM car dealership at 12:44 a.m. Saturday, and instead of encountering the potential intruders, discovered some 31 pounds of marijuana.When officers first arrived, they said they saw an open door, through which they entered, sweeping the store for intruders. While inside the dealership, officers noticed several large plastic bags on a shelf and bookcase, all of which contained marijuana.

Police then secured the building while one detective obtained a search warrant. The officers then seized the marijuana, and a camera system. After reviewing the video footage, officers saw two intruders, which they say can be seen running from the scene, carrying no items. Police questioned and then later arrested the owner of the dealership whom they suspect intended to distribute the drugs.
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Massachusetts State Police announced that an arrest has been made in the case of a motorcyclist believed to have been traveling on highways around the greater Boston area at speeds in excess of 100 MPH, and using the breakdown lanes in order to evade police for several weeks.The 29 year old motorcyclist was recently arraigned on various charges, including reckless driving and speeding. An arrest was made on Tuesday morning, after the motorcyclist was found allegedly hiding behind a tractor-trailer in a parking lot in Randolph, just minutes after he was seen speeding along Route 24, where he was also reportedly making sudden lane changes, traveling in the median, and traveling south in a northbound lane.

A State Trooper reported that on a prior occasion, when he activated his lights, the driver flipped down his clear visor, and sped off at approximately 100 miles per hour. The motorcycle on which the man was riding had no license plates, and his helmet obscured his features. Another trooper reported a similar exchange, whereby the man reportedly took off onto the sidewalk, and then down the wrong side of the road. State Police reportedly posted information regarding the wanted motorcyclist on Facebook and Twitter, which led to a trucker informing police when he saw the motorcyclist behind his tractor trailer.
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A Winthrop auxiliary police officer was arrested earlier this month on suspicion of dealing drugs while on duty.

According to sources, the suspect sold cocaine not only from his police car, but while he was parked within a school zone, amongst other locations. Federal law enforcement officials reportedly followed him for six months, following a tip from a local police department.

The man was reportedly an unpaid volunteer auxiliary police officer for a year and a half prior to his arrest.
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A group of several housing activists blocked the entrance to Boston’s Municipal Court building last week, resulting in several arrests. The act of civil disobedience was intended to evoke a change in fair housing policies and practices.According to sources, it was the third time in four weeks that protesters have been arrested outside the Municipal Court building downtown, demonstrating against what are known as no-fault evictions. According to some of the participants, the acts were intended to bring awareness to situations involving individuals among them who are currently, “fighting eviction, condo-ization, or raising [of] rent.”

One of the men arrested was a nearly 85 year old housing rights activist, who was shortly thereafter arraigned and charged with disorderly conduct. Following the arraignment, the judge and attorneys said that the criminal charges were reportedly to be converted to civil charges.
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Newton police were called to the Dunkin’ Donuts on Needham Street this week for a reported robbery. Law enforcement believe the latest incident may be the 18th for the same individual.Witnesses say the thief entered the location through the back door and was holding a pistol. He then reportedly told workers to get onto the floor, and that he would shoot them if they tried anything. The man then reportedly took money out of the register and the box near the register where workers store larger bills, and thereafter left store.

Police say the gunman was wearing all black, including his clothing and mask. The same location was purportedly targeted previously in July. Law enforcement believes that the same man has targeted at least 18 Dunkin’ Donuts stores in the last several months in eastern Massachusetts and New Hampshire. An investigation remains ongoing.
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