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MARCH 24, 2014

In a recent unpublished opinion, the Massachusetts Appeals Court reversed a judgment against a criminal defendant who had been sentenced by a superior court judge under the sentencing enhancement provisions of the Massachusetts Armed Career Criminal Act (ACCA). In relevant part, the ACCA applies to any person who has been previously and in separate instances been convicted of three violent crimes, or three serious drug offenses, or any combination of violent crimes or serious drug offenses that total three. Under the ACCA, if a person with such a criminal history is found to be in unlawful possession of a firearm under the applicable Massachusetts firearms laws, he may face a sentence of 15 to 20 years in prison. The statute defines a “violent crime” as, among other criteria, a crime that involved the use or possession of a “deadly weapon.”

In Commonwealth v. Boyd, the defendant’s adult criminal record included convictions for the unlicensed carrying of a firearm and unlawful possession of ammunition. However, the defendant also had juvenile convictions for assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery on a public employee. In this case, the defendant was further convicted of unlawful possession of a sawed-off shotgun, unlawful possession of ammunition without a firearms identification card, unlawful possession of a loaded sawed-off shotgun, unlawful discharge of a firearm, and two counts of reckless endangerment of a child.

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Posted In: Appeals Court , Criminal Activity , Criminal Allegations , Firearms Charges , Guns , Sentencing

MARCH 31, 2014

In Commonwealth v. Lobo, the defendant was convicted of two counts of assault and battery by means of a dangerous weapon, after he was tried for the shootings of two brothers on Hancock Street in Brockton in 2005. At trial, the Commonwealth called only one eyewitness to testify. That witness, the victims’ father, testified that he heard rapid gunshots fired while a white car was driving in front of him and his sons. He did not see a gun, a muzzle flash, or the faces of any of the people in the car. He was unable to say whether the gunshot sounds had come from the area of the white car, but assumed that they had.

The father further testified that when the white car drove away, he discovered that his sons had both been shot. He then heard the car return at a high speed and a car door open. He momentarily saw a male, who he later identified as the defendant, standing outside of the car. The father testified that he then heard two or three more shots fired, but he could not tell where those shots had come from. He never saw a gun in the defendant’s possession.

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Posted In: Appeals Court , Assault and Battery , Criminal Activity , Criminal Allegations , Evidence , Firearms Charges , Shootings

APRIL 14, 2014

Last week, the Massachusetts Supreme Judicial Court (SJC) reversed a superior court judge’s denial of a motion to suppress statements made by a defendant after he invoked his right to remain silent. The SJC found that the defendant sufficiently indicated to the interrogating officer that he was invoking that right.

In Commonwealth v. Hearns, the defendant was charged with the murder of a fourteen-year-old boy and the wounding of a fifteen-year-old boy in Jamaica Plain. The police suspected that the boys were shot in connection with a feud between two rival gangs in the area. According to their investigation, the defendant had admitted to a witness that he and others drove up to a basketball court on Heath Street, and the defendant, at the direction of older members in his gang, approached the victims, shot at them multiple times, and fled back to the vehicle and drove away. The defendant had also allegedly admitted his participation in the murder to another witness. That witness agreed to cooperate with the police, and consented to wearing a concealed recording device. During a recorded conversation between the defendant and the cooperating witness in an automobile, the defendant described how he committed the shooting.

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Posted In: Criminal Allegations , Fatal Shooting , Firearms , Gangs , Guns , Murder , Right to Remain Silent , Shootings , Wiretapping

APRIL 21, 2014

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In a recent opinion, a judge at the United States District Court, District of Massachusetts ruled that the evidence obtained by the government pursuant to the defendant’s agreement to provide it in exchange for immunity may not be offered against the defendant, despite the government’s arguments that the defendant waived his immunity under the proffer agreement and that its use of the evidence constituted a permissible “derivative use” under the agreement.

In United States v. Scott, the defendant learned that he was the target of a federal investigation into alleged mortgage lending fraud in February 2009. The defendant entered into a proffer agreement with the U.S. Attorney’s Office, drafted by the government, which provided him certain immunities. Specifically, the proffer agreement provided that “no statements made or other information” provided by the defendant would be used directly against him (with certain exceptions not relevant), but the government would be permitted to “make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information” provided by the defendant.

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Posted In: Criminal Fraud , Due Process , Immunity , Warrants

MAY 12, 2014

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On April 29, 2014, the United States Supreme Court heard oral arguments in two criminal cases that have asked the Court to determine whether searching a person’s cell phone at the time he is arrested is a proper “search incident to arrest,” or an unreasonable search that infringes on the arrestee’s rights under the Fourth Amendment to the Federal Constitution. One of those cases – U.S. v. Wurie – is on appeal from the First Circuit in Massachusetts.

In Wurie, the police arrested the defendant in connection with a drug deal. Among other items that were on the defendant at the time of the arrest, the police seize two cell phones from him. After they were seized, the police observed that one of the cell phones repeatedly received phone calls from a number identified as “my house” on the external caller ID screen. A few minutes later, one police officer opened the cell phone and looked at the defendant’s call log. In doing so, the officer observed a photograph of a woman holding a baby, which was set as the phone’s wallpaper. The officer then navigated the cell phone to determine what phone number was associated with the calls from “my house.”

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Posted In: Arrest , Drug Offense , Evidence , Searches and Seizures , Warrantless Search

MAY 19, 2014

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Last week, the Massachusetts Appeals Court reversed the defendant’s conviction in a sexual abuse case, based upon the improper expert testimony offered by the Commonwealth at trial, and the defendant’s appellate lawyer’s failure to raise that issue on the original appeal of the conviction.

In Commonwealth v. Aspen, the defendant was convicted of one count of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery, all in relation to accusations of sexual abuse made by the defendant’s stepdaughter. At trial, over the objection of the defendant’s trial attorney, the court permitted an expert witness to testify about general behavioral characteristics of sexually abused children in a manner that could have improperly suggested to the jury that the stepdaughter’s testimony was credible.

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Posted In: Assault and Battery , Criminal Appeals , Expert Testimony , Ineffective Assistance of Counsel , Sex Offense