Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Supreme Judicial Court Rules Police Opinion Inadmissible in OUI Cases

 

Last month, the Supreme Judicial Court issued a ruling that will have far-reaching consequences for criminal cases involving charges of Operating under the Influence (OUI). In Commonwealth v. Canty, the SJC ruled that, in an OUI case, a police officer’s opinion as to whether the defendant’s driving was diminished by alcohol consumption is inadmissible in court. While an officer can testify that he believed the defendant was drunk or intoxicated, he cannot give an opinion regarding the ultimate issue in the case.

OUI cases turn on whether the defendant’s driving was impaired by alcohol, so in stating an opinion as to this issue, the officer is effectively saying that he believes the defendant is guilty. This interferes with the ability of the fact trier (a judge or jury) to independently determine guilt or innocence, and therefore this sort of testimony is not admissible.

In Canty, one of the arresting officers testified that, in his opinion, alcohol diminished the defendant’s driving ability. The SJC ruled that this testimony essentially amounted to one witness’ opinion about the ultimate issue to be decided by the trier of fact. However, another officer’s testimony that the defendant was probably impaired was ruled admissible, because it did not address the defendant’s driving.

The SJC actually upheld the defendant’s conviction, ruling that the error in admitting the first officer’s testimonies was not dispositive. The defendant had pled guilty, and enough admissible evidence was presented during his trial to convict him even without the first officer’s inadmissible testimony.

Prosecutors for years have utilized a line of questioning in OUI trials that allowed the jury to hear the arresting officer’s opinion about the defendant’s ultimate guilt or innocence. The prosecutor would start by restating the officer’s testimony up to that point, and then would ask if, based on those observations, the officer was able to form an opinion about whether the driver’s ability to operate a motor vehicle had been diminished by alcohol consumption.

The officer would answer that yes, he had formed an opinion, and the prosecutor would ask him what that opinion was. The officer would then repeat his testimony again, and state that, based on those observations, he formed an opinion that the driver’s ability to operate a motor vehicle had indeed been diminished by alcohol consumption. The SJC’s decision in Canty effectively banned this sequence of questions. Police officers can still express an opinion that the defendant was intoxicated, but not that he is guilty of OUI.  

OUI is one of the most common crimes charged in Massachusetts. Police officers often commit procedural errors while investigating and arresting a suspect for OUI. It is paramount for a defendant in an OUI case to be represented by an effective criminal defense attorney. An attorney who has experience with OUI cases can pick apart every detail of the Commonwealth’s case and may be able to get the charges dropped or win a Not Guilty verdict in court.

If you have been charged with violating Massachusetts criminal laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

 

Supreme Judicial Court Clarifies Drug Possession Law in Light of Marijuana Decriminalization

Last week the Massachusetts Supreme Judicial Court released an important decision, generally favorable to defendants, dealing with marijuana possession laws and how to determine whether a suspect intends to distribute the drugs in his possession.

The juvenile defendant in Commonwealth v. Humberto H. was charged on January 24, 2011 with possession of a Class D substance (marijuana) with intent to distribute, in violation of G.L. c. 94C, § 32C, and a delinquency complaint issued later that day. A Boston school police officer, after conducting an administrative search of the juvenile, found five plastic bags of marijuana on his person, totaling one half ounce in weight.  

A district court judge later dismissed the complaint against the juvenile, stating that the evidence did not support a finding of probable cause that the juvenile intended to distribute the marijuana. The Commonwealth appealed the decision, and the case eventually made its way to the SJC.

In 2008, Massachusetts voters decriminalized possession of less than one ounce of marijuana. However, possession of less than one ounce with intent to distribute remained a crime. In order to prove this crime, prosecutors must show probable cause that the accused intended to distribute the drugs.

In Commonwealth v. Humberto H., the Court found that the five bags of marijuana were not packaged in a manner or weight consistent with intent to distribute. Therefore, according to the SJC, the lower court did not err in dismissing the charges. The Court also noted that the dismissal was without prejudice, and that the Commonwealth would be able to file a new delinquency complaint against the juvenile if it were to present evidence supporting a finding of probable cause of intent to distribute.

In addition, the SJC reflected on the strategic changes to policing and prosecution following passage of the decriminalization ballot initiative. Prior to 2008, when a suspect was allegedly caught with less than an ounce of marijuana, prosecutors would often charge him with simple possession even when there may have been probable cause that the suspect intended to distribute the marijuana.

Since the decriminalization, the only options available to prosecutors in this situation are to charge the suspect with possession with intent to distribute, or to charge him with nothing. Therefore, both police and prosecutors may have an incentive to infer intent to distribute even when probable cause cannot be established. The SJC stressed the need for law enforcement to avoid this temptation, since doing so would undermine the intent of Massachusetts voters. While prosecutors are entitled to change how they exercise their discretion in light of decriminalization, they must do so in a way that is consistent with the law.

This case may have important implications for criminal suspects and criminal defense attorneys. It makes it more likely that suspects, with effective legal representation, will be able to convince prosecutors and judges to drop or dismiss charges of possession of less than one ounce of marijuana with intent to distribute.

If you have been charged with violating Massachusetts criminal laws you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

 

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Criminal Defense

Mall Santa Faces Indecent Assault and Battery Charges after Allegedly Pinching Co-worker’s Buttocks

Hanover, Massachusetts shoppers have more to be upset about than Black Friday crowds this week now that a mall Santa Claus faces criminal charges. A 62-year-old Hanover Mall photo display Santa is charged with indecent assault and battery after allegedly touching a female employee in an inappropriate sexual manner.

According to kionrightnow.com, 62-year-old Herbert Jones, a Santa Claus working for Cherry Hill Photo, pinched the buttocks of his female co-workers this week at the picture display booth where they both worked. Mr. Jones was allegedly sitting in the Santa Claus chair when he made the offensive move, and told the co-worker that he wished she were younger as he pinched her. While reports indicate that there were no child witnesses to the inappropriate behavior, many mall shoppers are uneasy about the thought of a Santa facing criminal charges for indecent assault and battery. Cherry Hill Photo reportedly denies the allegations of misconduct and Mr. Jones is innocent until proven guilty.

Indecent, or sexual, assault and battery is a crime that is distinct from ordinary assault and battery in that it contains the element of offensive touching on certain parts of the victim’s body. Under Massachusetts criminal laws, indecent assault falls into two different categories for the purposes of sentencing: indecent assault and battery against a person 14-years-old or older; and indecent assault and battery against a child under 14-years-old. When a person is convicted of indecent assault and battery against a victim that is 14-years-old or older, he or she may be sentenced to up to five years in a state prison, or up to two and one-half years in a jail or house of correction. However, if the victim is either an elderly person or a person with a disability, as further defined under the law, the offender may be sentenced up to ten years in prison, or two and one-half years in a jail or house of correction. A subsequent conviction is punishable by up to twenty years in prison. A first-time offender of indecent assault and battery against a child under 14-years-old may be subject to a penalty of up to ten years imprisonment in a state prison, or up to two and one-half years in a jail or house of correction.

It is important to note that not only does an indecent assault and battery offense come with a potentially lengthy prison sentence, it also come with the penalties and consequences that are associated with a “sex offense.” A conviction on a crime that is a “sex offense” requires convicted persons to comply with sex offender registration requirement, which can impact all avenues of a person’s life once he or she is out of prison.

Indecent assault and battery, and all “sex offenses, are very complex cases and skill and experience are necessary in order to understand the full range of consequences of a conviction. If you have been charged with a sex offense, or any criminal offense under Massachusetts law, your best line of defense is to immediately speak with an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

See Related Stories:

Alleged Assault and Battery By Means of a Deadly Weapon at Boston Bar

Middlesex Appeals Court Sets Aside Verdict of Sex Offender on Accosting or Annoying Charges, Affirms Attempted Kidnapping Charges

 

Tags: 
Criminal Defense

Mall Santa Faces Indecent Assault and Battery Charges after Allegedly Pinching Co-worker’s Buttocks

Hanover, Massachusetts shoppers have more to be upset about than Black Friday crowds this week now that a mall Santa Claus faces criminal charges. A 62-year-old Hanover Mall photo display Santa is charged with indecent assault and battery after allegedly touching a female employee in an inappropriate sexual manner.

According to kionrightnow.com, 62-year-old Herbert Jones, a Santa Claus working for Cherry Hill Photo, pinched the buttocks of his female co-workers this week at the picture display booth where they both worked. Mr. Jones was allegedly sitting in the Santa Claus chair when he made the offensive move, and told the co-worker that he wished she were younger as he pinched her. While reports indicate that there were no child witnesses to the inappropriate behavior, many mall shoppers are uneasy about the thought of a Santa facing criminal charges for indecent assault and battery. Cherry Hill Photo reportedly denies the allegations of misconduct and Mr. Jones is innocent until proven guilty.

Indecent, or sexual, assault and battery is a crime that is distinct from ordinary assault and battery in that it contains the element of offensive touching on certain parts of the victim’s body. Under Massachusetts criminal laws, indecent assault falls into two different categories for the purposes of sentencing: indecent assault and battery against a person 14-years-old or older; and indecent assault and battery against a child under 14-years-old. When a person is convicted of indecent assault and battery against a victim that is 14-years-old or older, he or she may be sentenced to up to five years in a state prison, or up to two and one-half years in a jail or house of correction. However, if the victim is either an elderly person or a person with a disability, as further defined under the law, the offender may be sentenced up to ten years in prison, or two and one-half years in a jail or house of correction. A subsequent conviction is punishable by up to twenty years in prison. A first-time offender of indecent assault and battery against a child under 14-years-old may be subject to a penalty of up to ten years imprisonment in a state prison, or up to two and one-half years in a jail or house of correction.

It is important to note that not only does an indecent assault and battery offense come with a potentially lengthy prison sentence, it also come with the penalties and consequences that are associated with a “sex offense.” A conviction on a crime that is a “sex offense” requires convicted persons to comply with sex offender registration requirement, which can impact all avenues of a person’s life once he or she is out of prison.

Indecent assault and battery, and all “sex offenses, are very complex cases and skill and experience are necessary in order to understand the full range of consequences of a conviction. If you have been charged with a sex offense, or any criminal offense under Massachusetts law, your best line of defense is to immediately speak with an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

See Related Stories:

Alleged Assault and Battery By Means of a Deadly Weapon at Boston Bar

Middlesex Appeals Court Sets Aside Verdict of Sex Offender on Accosting or Annoying Charges, Affirms Attempted Kidnapping Charges

 

Tags: 
Criminal Defense

Supreme Judicial Court Rules that School Zone Amendment Applies Retroactively

This past week the Massachusetts Supreme Judicial Court ruled on an important issue regarding the 2012 law passed by the Massachusetts legislature decreasing the “school zone” limits for drug possession conviction enhancements from 1,000 feet to 300 feet.

The defendant in Commonwealth v. Bradley was originally charged on November 8, 2010 under G.L. c. 94C, § 32C (a ) for possession of marijuana (a class D substance) with intent to distribute it, and was in violation of Massachusetts’ school zone law, G.L. c. 94C, § 32J. The school zone law established sentencing enhancements for committing a drug offense within 1,000 feet of a school. The defendant had allegedly had some quantity of marijuana in his dormitory room, which was 700 feet from a preschool facility. The marijuana was seized by Williamstown police officers who had done so pursuant to a search warrant of the room.

On August 2, 2012, however, Massachusetts passed St.2012, c. 192, otherwise known as “An Act Relative to Sentencing and Improving Law Enforcement Tools.” Among other things, the act amended the school zone law by decreasing the school zone from 1,000 feet to 300 feet. At this time, the defendant in Commonwealth v. Bradley had still not been convicted of the charges against him related to possession of marijuana in a school zone.

The ultimate question before the Supreme Judicial Court was whether the amendment to the school zone law should be applied retroactively so that those who had been charged but not yet adjudicated of their crimes when the amendment was passed. The Massachusetts Supreme Judicial Court held that the amendment should apply to the defendant, and to all others who had been charged, but not yet adjudicated, pursuant to violating the school zone law, prior to August 2, 2012.

In analyzing whether the amendment should be applied prospectively or retroactively, the Supreme Judicial Court reviewed whether a prospective application was “inconsistent with the manifest intent of the law-making body,” that is, did the legislature express the intent for the law to be applied retroactively; and whether prospective application would be “repugnant” to the context of the statute. While the Supreme Judicial Court did not find that the legislature had expressly intended the statute to be applied retroactively, it did find that a prospective application would be repugnant to the context of the amendment.

The Supreme Judicial Court found that one of the bases for the amendment was the unequal pattern of conviction between urban residents and rural residents of Massachusetts. In urban communities, where it is nearly impossible to not be within 1,000 feet of a school zone, findings indicated that African American and Latino residents were being convicted at a much higher rate than white residents, even though African Americans and Latinos do not use more drugs and only make up one-quarter of the population of the state. Being aware that is imbalance was occurring among the state’s residents, the legislature enacted the amendment, which the court found was compelling enough evidence that prospective application would only delay inequality among Massachusetts’ residents.

If you have been charged with violating Massachusetts criminal laws you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

 

Tags: 
Criminal Defense

Alleged Assault and Battery by Means of a Deadly Weapon at Boston Bar

As the winter draws nearer, Bostonians will likely be found indoors at their favorite local bars, cozying up with pints of darker ales and hanging out with friends. Not surprisingly, as bars get busier and patrons become more intoxicated towards the later hours of the night and early morning, a friendly local watering hole may turn into the scene of a criminal offense.

Coogan’s Bar in Boston was the scene of an assault and battery incident this week on Sunday. According to WCVB.com, a fight allegedly broke out at the Milk Street establishment after the victim confronted a pair of men who were attempting to cut in line for entrance to the bar. According to a witness, the two men allegedly punched the victim in the face multiple times and then stabbed him in the torso. One of them men allegedly got into a cap and left the scene and he was later apprehended by police. He was later identified as Peter J. Damelio. The victim was transported to a nearby hospital for serious injuries. Ultimately, Mr. Damelio was charged with assault and battery by means of a dangerous weapon. His case is pending and he was scheduled to appear on Monday at the Boston Municipal Court.

Assault and battery by means of a dangerous weapon is a serious crime in Massachusetts. However, it may be a charge that is more expansive than one might think. Generally speaking, when people think of “dangerous weapons” they probably think of either a firearm or a knife. Each state has its own laws regarding what is considered to be a dangerous weapon, and what is included may be surprising.

What exactly is considered to be a dangerous weapon under Massachusetts law is neatly summarized in the 2005 case Commonwealth v. Christopher Fettes. In this case, a 66-year-old landlady was at her apartment complex to collect rent when she encountered an unknown man with an eight-month-old pit bull on leash by his side. The landlady accused the man of allowing his dog to defecate on the property, and became upset. After the landlady walked away, she heard the man say something to the dog and let the leash loose. The dog lunged at the landlady and injured her hand, causing nerve damage.

The man was convicted of assault and battery by means of a deadly weapon and appealed his judgment. He argued that it was an error to deny his motion for a required finding of not guilty, but the Massachusetts’ appellate court affirmed the lower court. The appellate court held that a dog, can, in fact, be a dangerous weapon under Massachusetts law. The court further held that a dangerous weapon is “any instrument or instrumentality so constructed or so used as to be likely to produce death or great bodily harm.” The court concluded that it was in the jury’s discretion to determine whether the man had caused the dog to bite to woman, or whether the dog did so of his own volition, in ultimately affirming the conviction.

If you have been charged with violating Massachusetts criminal laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

 

Tags: 
Criminal Defense

14-Year-Old Massachusetts Student Faces Serious Criminal Charges after Allegedly Killing Math Teacher

It is likely shocking to many people when young teenagers commit violent criminal offenses. Drug offenses or driving offenses are one thing, but murder perpetrated by a person under 18-years-old is often unthinkable.

This week families from the town of Danvers, Massachusetts, and families across the United States, mourned the death of a beloved high school math teacher. NBCnews.com reports that the body of 24-year-old Colleen Ritzer, of Danvers, was found in the woods nearby the high school where she taught at about midnight on Wednesday. Ms. Ritzer was allegedly stabbed to death with a box-cutter by 14-year-old student Philip Chism. Mr. Chism was a freshman at the school.

Ms. Ritzer had allegedly asked Mr. Chism to meet with her after his class on the day that she was killed. Security cameras show that Mr. Chism followed Ms. Ritzer into a bathroom, and then exited with blood on his clothing. Sources say that Mr. Chism disposed of Ms. Ritzer’s body by hiding it inside of a recycling bin and wheeling it away. After disposing of her body, Mr. Chism allegedly changed his clothing and then saw Woody Allen’s film “Blue Jasmine” at a theatre. He also allegedly used Ms. Ritzer’s credit card to buy food. Mr. Chism has been charged with first degree murder as an adult and is currently being held without bail.

Under Massachusetts law, first degree murder is murder that was deliberate and premeditated or extremely atrocious and cruel. Additionally, a person is guilty of first degree murder if he or she murders another person while committing or attempting to commit another crime that is punishable by life imprisonment. Murders that are not first degree murders are second degree murders. The degree of murder is determined by the jury in each case.

The maximum sentence for first-degree murder in Massachusetts is life imprisonment. Unlike many other states, Massachusetts has abolished the death penalty, even in first degree murder cases. According to deathpenaltyinfo.org, Massachusetts officially banned the death penalty in 1984. The seminal case that led to the abolition was Commonwealth v. Cruz, in which the Massachusetts Supreme Judicial Court ruled that the law allowing penalty of death was unconstitutional because it was not applied equally to all defendants; defendants who took their case to a jury trial were eligible, while defendants who pleaded guilty were not.

Interestingly, before 1951, in Massachusetts a first degree murder conviction was met with a mandatory death sentence. While this was later amended to allow for jury discretion, the death penalty was still required in cases where the murder involved rape or attempted rape of the victim.

First degree murder charges are very seriously prosecuted in Massachusetts and throughout the United States. A first degree murder charge can bring with it severe penalties and consequences, including incarceration for the remainder of a person’s natural life.

If you have been charged with violating Massachusetts criminal laws, you should immediately seek out the assistance of an experienced criminal defense attorney. An experienced defense attorney can help understand the substantive and procedural aspects of your criminal case, and may be able to defend your case in court. Contact Edward R. Molari Attorney at Law today for a confidential consultation.

 

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Former Football Star Faces First Degree Murder and Weapons Charges in Killing of Friend Massachusetts to Strengthen Gun Control Laws in the Wake of the Sandy Hook Tragedy? 

 

Tags: 
Criminal Defense

14-Year-Old Massachusetts Student Faces Serious Criminal Charges after Allegedly Killing Math Teacher

 

It is likely shocking to many people when young teenagers commit violent criminal offenses. Drug offenses or driving offenses are one thing, but murder perpetrated by a person under 18-years-old is often unthinkable.

This week families from the town of Danvers, Massachusetts, and families across the United States, mourned the death of a beloved high school math teacher. NBCnews.com reports that the body of 24-year-old Colleen Ritzer, of Danvers, was found in the woods nearby the high school where she taught at about midnight on Wednesday. Ms. Ritzer was allegedly stabbed to death with a box-cutter by 14-year-old student Philip Chism. Mr. Chism was a freshman at the school.

Ms. Ritzer had allegedly asked Mr. Chism to meet with her after his class on the day that she was killed. Security cameras show that Mr. Chism followed Ms. Ritzer into a bathroom, and then exited with blood on his clothing. Sources say that Mr. Chism disposed of Ms. Ritzer’s body by hiding it inside of a recycling bin and wheeling it away. After disposing of her body, Mr. Chism allegedly changed his clothing and then saw Woody Allen’s film “Blue Jasmine” at a theatre. He also allegedly used Ms. Ritzer’s credit card to buy food. Mr. Chism has been charged with first degree murder as an adult and is currently being held without bail.

Under Massachusetts law, first degree murder is murder that was deliberate and premeditated or extremely atrocious and cruel. Additionally, a person is guilty of first degree murder if he or she murders another person while committing or attempting to commit another crime that is punishable by life imprisonment. Murders that are not first degree murders are second degree murders. The degree of murder is determined by the jury in each case.

The maximum sentence for first-degree murder in Massachusetts is life imprisonment. Unlike many other states, Massachusetts has abolished the death penalty, even in first degree murder cases. According to deathpenaltyinfo.org, Massachusetts officially banned the death penalty in 1984. The seminal case that led to the abolition was Commonwealth v. Cruz, in which the Massachusetts Supreme Judicial Court ruled that the law allowing penalty of death was unconstitutional because it was not applied equally to all defendants; defendants who took their case to a jury trial were eligible, while defendants who pleaded guilty were not.

Interestingly, before 1951, in Massachusetts a first degree murder conviction was met with a mandatory death sentence. While this was later amended to allow for jury discretion, the death penalty was still required in cases where the murder involved rape or attempted rape of the victim.

First degree murder charges are very seriously prosecuted in Massachusetts and throughout the United States. A first degree murder charge can bring with it severe penalties and consequences, including incarceration for the remainder of a person’s natural life.

If you have been charged with violating Massachusetts criminal laws, you should immediately seek out the assistance of an experienced criminal defense attorney. An experienced defense attorney can help understand the substantive and procedural aspects of your criminal case, and may be able to defend your case in court. Contact Edward R. Molari Attorney at Law today for a confidential consultation.


 

See Related Posts:

Former Football Star Faces First Degree Murder and Weapons Charges in Killing of Friend
Massachusetts to Strengthen Gun Control Laws in the Wake of the Sandy Hook Tragedy? 

Tags: 
Criminal Defense

Former Football Star Faces First-Degree Murder and Weapons Charges in Killing of Friend

 

Former New England Patriot football player Aaron Hernandez is facing charges for murder and firearms offenses in Massachusetts for the summer killing of his friend, 27-year-old Odin Lloyd. According to wwlp.com, new developments in the criminal case center on 24-year-old Shayanna Jenkins, Mr. Hernandez’s girlfriend. According to reports, Ms. Jenkins was indicted on one count of perjury for her actions during the murder investigation earlier this month. While it is not clear exactly what led to Ms. Jenkins’ indictment, the action by the grand jury puts this case in the spotlight once again.

 

Of the five people that face charges in connection with Mr. Lloyd’s killing, the media has frenzied around his friend, Mr. Hernandez. According to CNN.com, the former tight end player is accused of orchestrating the killing of Mr. Lloyd, who was found dead in an industrial park in mid-June. Mr. Hernandez and several other men allegedly picked Mr. Lloyd up on the morning before his death. Mr. Hernandez had pleaded not guilty to several charges, including first-degree murder and weapons charges. Prosecutors believe that Mr. Hernandez’s motivation for killing his friend was related to his anger over Mr. Lloyd talking to certain people that he had problems with at a nightclub.

 

Most people are aware that first-degree murder charges are very serious, and could lead to a very long term of imprisonment, as well as other severe penalties and consequences. However, it is important for Massachusetts residents to understand that weapons charges are also seriously prosecuted in Massachusetts, and can bring with them long terms of imprisonment, a felony record, and other collateral consequences.

 

Massachusetts weapons charges and gun laws are extremely complex. However, one provision of the Massachusetts General Laws that is demonstrative of the severity of weapons charges in Massachusetts is the law against using a firearm while committing a felony crime. Under Massachusetts General Laws Part IV Title I Chapter 265 Section 18b, a person is guilty of using a firearm during the commission a felony if he or she had a firearm in his or her possession or under his or her control during the commission or attempted commission of a felony crime. This includes the possession or control of a rifle or a shotgun. The penalty for a rifle, shotgun, or other firearm is a term of imprisonment of at least five years. However, if the firearm was a machine gun, the term of imprisonment is lengthened to a term of no less than 10 years.

 

Subsequent violations of the law bring with them even harsher penalties. A subsequent offense of the law may be punished by a prison term of no less than 20 years. If the subsequent offense was committed with a large capacity semiautomatic weapon, or a machine gun, the term may be no less than 25 years. Sentences under the law may not be reduced or suspended, and a person convicted under the law will not be eligible for probation, parole, work release, or furlough until the minimum term has been served.

 

If you have been charged with violating Massachusetts criminal laws you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari Attorney at Law today for a confidential consultation.

 

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Commonwealth Ruling Sets Limits on Constructive Possession Firearm Law

 

 

 

Supreme Judicial Court Rules on Criminal Procedure Question in Massachusetts Bank Robbery Case

In the 1990’s, the Supreme Judicial Court of Massachusetts ruled on an integral case in criminal procedure, Commonwealth v. Rosario. The SJC’s ruling in Rosario established a rule that statements that are made by an arrested suspect within six hours of his or her arrest are not subject to suppression due to a delay in his or her arraignment, but that statements made beyond six hours of arrest are inadmissible in evidence unless the arrested suspect has waived his or her right to timely arraignment. Last week, the SJC applied the Rosario ruling to a recent appeals case that it transferred on its own initiative from the Appeals Court to which the Commonwealth had appealed the lower court’s order granting the defendant’s motion to suppress evidence.

The basic facts in Commonwealth v. Fortunato were summarized in the SJC’s opinion. The defendant was indicted for armed robbery and for being a habitual offender after he allegedly robbed a Reading, Massachusetts bank. At that bank, a man, thought to be the defendant, made statements that he had a firearm, and told the teller to give him cash. The man fled the scene but was caught on the bank’s security cameras. A detective named Michael Saunders of the Reading police department was assigned to the case and went to New York where the defendant had recently been released from prison. The defendant was meeting with his New York parole officer when Saunders and a State Trooper informed him that he was a suspect in the bank robbery. Saunders and the State Trooper administered the defendant his Miranda warnings and recorded an interview. The defendant indicated to Saunders and the State Trooper that he would speak with them after he was returned to Massachusetts.

Two days later, Saunders and the State Trooper arrested the defendant in Massachusetts. The defendant was taken to the Reading police department about one hour later. The arresting officers apparently did not inform the defendant of his right to prompt arraignment during his arrest. During booking, which occurred almost two hours later, the defendant was given his Miranda warnings, and the defendant acknowledged in writing that he had received them. When Saunders attempted to interview the defendant, he refused this time, and was returned from the interview room to his holding cell.

Over six hours from his arrest, and about four hours after his booking, the defendant finally asked to speak to Saunders. Saunders went to the defendant’s cell but did not mention anything about the defendant’s right to prompt arraignment, nor did he provide an arraignment waiver form.  Saunders did not re-administer the defendant’s Miranda warnings.  Saunders and the defendant then proceeded to have a conversation regarding the events that took place at the Reading bank, in a hypothetical manner.

The lower court’s motion judge ruled that the exchange that took place between Saunders and the defendant that night in the defendant’s cell was inadmissible into evidence due to the Rosario rule. The lower court judge held that Rosario establishes a bright-line rule that gives the police a safe-harbor for questioning suspects, but that when that safe-harbor expires, statements made by the defendant are inadmissible. The judge did not address the Commonwealth’s argument that the defendant’s statements were “spontaneous and unsolicited” because she believed that the Rosario ruling applied to any statements.

The SJC did not address whether spontaneous and unsolicited statements would be admissible under Rosario, but rather determined that they were inadmissible because they were the fruit of direct police questioning, which falls squarely under Rosario. The SJC ultimately determined that although it was spread out, the over six hours in which the defendant was in police custody constituted a single episode of police questioning, which is protected under the Rosario rule. Therefore, the SJC affirmed the defendant’s motion to suppress the statements that he had made to Saunders.

If you have been charged with violating Massachusetts’ criminal laws, you should immediately seek out the assistance of an experienced criminal attorney. Contact Edward R. Molari, Attorney at Law today for a confidential consultation.

 

Tags: 
Criminal Defense

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