Massachusetts Legal Developments Blog

In Massachusetts, firearms offenses are severely prosecuted. The Massachusetts General Laws establish the type of conduct related to firearms that constitute criminal offenses. Under Part IV, Title I, Chapter 269, Section 10(a), Massachusetts law prohibits the possession of a gun outside of a person’s residence or place of business. In a recent case, the number of violations that a defendant can be charged with under GL Chapter 269 Section 10(a) when he uses the same gun within a short time period was tested at the Supreme Judicial Court level.

In Commonwealth v. Horne, decided earlier this week on September 16, among other arguments, the defendant argued that his two convictions for unlicensed carrying of a firearm under G.L. Chapter 269, Section 10A were duplicative and in violation of the double jeopardy clause because they were based on his continuous and uninterrupted possession of the same firearm.

In 2009, the defendant’s t.v. was taken from home in Springfield, Massachusetts. Somehow the defendant learned that a man named Joseph was the thief. The next day, Joseph Darco was at a birthday party at Brittany Perez’s apartment, which was on the same street as the defendant’s home. A guest at the party heard someone shout “I want my TV” sometime after sunset. That person saw the defendant outside holding a gun. Mr. Darco was outside and a confrontation took place. During the confrontation, the defendant showed Mr. Darco the gun. Mr. Darco went back into the house, and then later emerged with a friend and two other party members. There was a commotion outside and Ms. Perez’s mother told the men to take their fight somewhere else. At that point, the defendant went back to his apartment.

By the early morning, around 1:30AM, the party had ended. Ms. Perez was standing inside of the apartment in front of a window. The window was covered with dark curtains and a set of blinds. Ms.

Perez was talking with her mother when she was shot. One of Ms. Perez’s neighbors saw the defendant flee the scene. He was later arrested and police uncovered the gun, which he had attempted to dispose of nearby.

The SJC first noted that defendant’s first charge of possession of a rifle was based on his possession of the rifle when he first confronted Mr. Darco. The second charge was based on his possession of the rifle when he shot at Ms. Perez’s window. The SJC then determined that while courts have held that unlawful possession of a firearm is a single and continuous offense, the Massachusetts statute clearly establishes that the offense is committed when a person possess a gun without a license outside of his or her residence or business, and a defendant stops violating the law when he or she goes back into his or her residence or business, thereby relinquishing possession of the gun. The court deemed that the “unit of prosecution” of the statute, therefore, is the continuous possession of a firearm outside the possessor’s residence or business.

In defendant’s case, two distinct prosecutable crimes resulted from his coming and going from the party. The SJC held that because the defendant had returned to his home after confronting Mr. Darco, and then went back to the apartment with the rifle later that evening, he had committed two separate and distinguishable crimes. Ultimately, the SJC affirmed defendant’s possession charges.

Firearms offenses in Massachusetts are complex and may lead to severe penalties and consequences. If you have been charged with a firearms offense for unlawful possession of a firearm, you should immediately seek out the assistance of an experienced attorney. Contact Edward R. Molari, Attorney at Law today for a confidential consultation. 

Criminal procedure is a cornerstone of the American criminal justice system. To prove a criminal case at trial, prosecutors must have evidence against a defendant. Prosecutors must prove, based on that evidence, that the defendant committed the crime beyond a reasonable doubt. But what happens when the evidence prosecutors have used in tens of thousands of cases to convict defendants turns out to be tainted? This is a question Massachusetts now must wrestle with after the consequences of a massive evidence tampering scandal are felt even a year after its discovery.

Slate.com reports on the story that impacts every aspect of the Massachusetts criminal justice system. Last year a former state crime lab chemist named Annie Dookhan was discovered to have systematically tampered and mishandled evidence in thousands of cases over a nine-year time period. Ms. Dookhan’s position in the lab was to analyze samples to determine whether illicit drugs were present for drug-related criminal cases. Investigators still do not know why Ms. Dookhan tampered with the evidence. Some commentators point fingers at an overburdened system, where cases are routinely expedited at the expense of precision and accuracy. Whatever the reason, ultimately hundreds of prisoners were freed following the discovery of Ms. Dookhan’s work. In addition, Massachusetts dismissed or declined to prosecute over 1,000 other criminal cases in which evidence had been handled by Ms. Dookhan. In total, Ms. Dookhan tampered with evidence related to the cases of over 40,000 people.

Now a year later, Massachusetts is seeing an interesting pattern in its criminal law cases. It appears that many of those convicts released due to the Dookhan scandal have reoffended and have landed back behind bars. The Boston Globe reports that while the initial scare of a massive crime wave sweeping across Massachusetts did not completely come to fruition, efforts to keep Massachusetts’ streets safe have been hampered by the Dookhan releases. There are several factors in the Dookhan cases that seem to contribute to the current increase in crime, and the potential for crime to spike even higher.

First, as one convict mentions in the Boston Globe report, some of the convicts who were released due to the Dookhan scandal are faced with more difficult pressures in regular life, than they would have faced behind bars. The pressures to get a job and do “the right thing” has likely become overwhelming in many cases, and the lack of money has led many convicts back to the lifestyle which led to their criminal charges in the first place. Secondly, there are still around 40,000 cases in which releases may be contemplated due to evidence tampering by Ms. Dookhan. While initially Massachusetts released around 600 defendants due to tainted evidence, the potential for tens of thousands more to be released back on the streets will likely increase crime in Massachusetts cities. On the other hand, if Massachusetts does not release the inmates that were convicted based on tainted evidence, it would perhaps be an even greater blow to the state’s criminal justice system.

Ultimately, of the 613 inmates that were released, 83 were re-arrested on criminal charges. 16 have been arrested more than once, and 3 have committed murder. Massachusetts law enforcement, lawmakers, prosecutors and criminal defense attorneys have a lot of work ahead of them due to Ms. Dookhan’s evidence tampering.

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

A case decided by the Commonwealth earlier this year in May demonstrates the breadth, and the limits, of Massachusetts firearm laws. The case specifically dealt with Massachusetts General Law chapter 269, section 10(a), which establishes that it is a crime to possess or constructively possess a firearm without having a license to carry such a firearm. It is important to note that constructive possession does not mean actually holding or touching the firearm, it means that the person being charged had knowledge of the firearm’s presence and also had the ability to exercise control over the firearm, and the intent to do so. Simply put, under the law, a person can be charged with a crime punishable by imprisonment if the facts suggest that he or she had a close enough connection to control a firearm, and the intent to do so, even if he or she did not physically have the firearm in his or her hands or on his or her body.

There are limits to the law, however, as demonstrated in Commonwealth v. Eric Romero. In that case, Eric Romero had driven his car to his girlfriend’s house in Waltham, to pick her up. As he waited outside for his girlfriend, her brother came to the vehicle with a firearm, and showed it to Mr. Romero. Mr. Romero looked and it and touched it, and then gave it back to his girlfriend’s brother. Mr. Romero’s girlfriend came out after that, and they left for their night on the town. When Mr. Romero and his girlfriend returned, his girlfriend’s brother and his other brothers were outside and wanted to take a drive in Mr. Romero’s car because it was new. The men took a drive in the car, and then returned to the house and sat in the car listening to music. At that time, Officer Dennis M. Deveney, Jr., a Waltham police officer, observed the vehicle and the occupants sitting in a dimly lit street. Officer Deveney could not see the men, or what they were doing, except for their torsos and the tops of their heads. He noticed that the interior dome light was not on, and he decided to park his vehicle behind them for further observation.

Officer Deveney left his vehicle and walked behind Mr. Romero’s vehicle. When he was about three to five feet behind the vehicle, Officer Deveney saw Mr. Romero’s head move side to side, and the passenger look at something in his hands. Officer Deveney shined his flashlight into the vehicle and asked the men what was going on. The passenger—Mr. Romero’s girlfriend’s brother—dropped the object and Officer Deveney shined the flashlight on it, and saw that it was a black handgun. Ultimately, Mr. Romero was read his Miranda warnings and was arrested. In speaking with Officer Deveney, Mr. Romero said that he knew that his girlfriend’s brother had a firearm, but did not know that he had had it in the car. He also said that he had seen it earlier that day. Tests revealed that the firearm was unloaded, but was operable. Mr. Romero was charged, and later convicted, or carrying a firearm without a licensed under GL chapter 269, section 10(a), under the constructive possession theory. He appealed his conviction.

The Commonwealth determined that Mr. Romero was entitled to a directed verdict of not guilty, based on the facts of his case. The Court first analyzed the law, stating that it required the government to prove (1) that the defendant had knowledge of the firearm’s presence in his vehicle; (2) that he had the ability to exercise control over the weapon; and (3) that he intended to do so. After determining that Mr. Romero’s statement that he had seen the gun earlier that day was admissible, the Court determined whether the evidence was sufficient to convict Mr. Romero under the law.

The Court first noted that presence of the gun in the vehicle alone was not sufficient to convict Mr. Romero. The Court stated that first there needed to be evidence that Mr. Romero knew that the gun was in vehicle. The Court affirmed the Appeals Court on this element because Mr. Romero’s girlfriend’s brother had been openly handling the gun in the front seat of the vehicle, which was directly next to him. The inference that he knew about the weapon, the Court also found, was strengthened by the fact that he admitted that he had seen the weapon earlier that day.

Next the Court turned to Mr. Romero’s ability to control the handgun. The Commonwealth found that Mr. Romero did, in fact, have the ability to control the handgun due to his close proximity to it.

Finally, however, the Court examined the requirement that the evidence sufficiently show that Mr. Romero intended to exercise control and dominion over the firearm. On this element, the Court determined that the evidence was insufficient to convict Mr. Romero because there was only evidence that the gun was in a vehicle that Mr. Romero owned. The Court declined to hold this evidence to be sufficient, noting that even if Mr. Romero was present, and had ownership of the vehicle, there were no other facts showing intent, such as if he were wearing a gun holster. The Court also noted that if it were to hold that Mr. Romero intended to control the gun, based on those facts alone, they would be creating a rule of strict liability for owners and operators or vehicles or premises.

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

In October, 2007, a Level 3 sex offender was on the loose in the MIT area of Massachusetts. Wickedlocal.com reported at the time that Joseph D. Sullivan, a 59-year-old homeless man with a 1989 conviction for indecent assault and battery on a person 14 or older, had accosted a 23-year-old MIT student.

The young woman was walking to her dorm room from the MIT campus around 9:45p.m., when she noticed that the driver of a green station wagon had pulled over onto the street in front of her. The driver, who was later identified as Mr. Sullivan, rolled down the passenger side window of the station wagon, and called out to her that she looked tired and that she should come over to the vehicle. The MIT student stated that she had ignored Mr. Sullivan’s attempt to get her attention, and, at that point, he got out of the station wagon and moved to the front of it. When the student began to walk quickly away from him, Mr. Sullivan ran to the back of the car and wedged the young woman between him and a building. Mr. Sullivan then repeatedly told the student to get into his car, and she walked by him.

Undeterred, Mr. Sullivan hopped back into the station wagon and made a U-turn, continuing to follow her. He stopped the car on another street and jumped out in front of the student, again blocking her so that she was wedged between his body and a building. He again asked her to get in his car and talk with him. The student yelled out Mr. Sullivan’s license plate number, which caused him to finally back away, and she moved away from him again. Mr. Sullivan then followed the student on foot, but finally left her alone as she repeatedly yelled out his license plate number. He then got back into the station wagon and drove away.  

Mr. Sullivan was ultimately arrested and convicted of attempted kidnapping and of accosting or annoying a person of the opposite sex . He moved to vacate the attempted kidnapping charges in 2010, which was denied, and then appealed his case to the Middlesex Appeals Court. The Appeal was decided on July 10 of this year.

On appeal, Mr. Sullivan argued that the Commonwealth had presented insufficient evidence on the attempted kidnapping charge, and that he had insufficient assistance of counsel, and that the lower court had wrongly denied his motion to vacate. More interesting, however, was Mr. Sullivan’s contention that the Commonwealth had also provided insufficient evidence for a conviction on the charge of accosting or annoying a person of the opposite sex. The Appeals Court affirmed the decisions of the lower courts on all of Mr. Sullivan’s arguments except for this last remaining issue.

The Appeals Court first noted that in order for a person to have accosted or annoyed a person of the opposite sex, the conduct must have been legally offensive and disorderly. The Appeals Court declined to define disorderly conduct, because it determined that Mr. Sullivan’s conduct did not reach the threshold required for offensive conduct. Under the law, it opined, offensive conduct is that which causes “displeasure, anger or resentment” and that is “repugnant to the prevailing sense of what is decent or moral.” That is, the conduct must be sexually explicit in some way. The Court determined that while Mr. Sullivan’s conduct was offensive in a generic sense, the evidence was insufficient to prove that it contained sexual content. Therefore, the Appeals Court reversed the indictment on the charge of accosting or annoying a person of the opposite sex, and set aside the verdict.

If you have been charged with violating criminal laws in Massachusetts, you should immediately contact an experienced attorney. Contact the Law Offices of Edward R. Molari  today at for a confidential consultation.

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