SJC decision in Commonwealth v. Hearns addresses invocation of Miranda Rights

April 16, 2014,

The Massachusetts Supreme Judicial Court recently found that a Boston police officer during a murder investigation did not honor the defendant invocation of his right to remain silent. The Court found that the defendant invoked his right to remain silent and that the officer continued to question the defendant in hopes to persuade him to talk. Consequently, the Court suppressed the statements at trial.

In Commonwealth v. Hearns, decided April 8, 2014, the defendant was indicted in a gang related shooting. He went to the police station and was told that the Boston police had put together a strong case. The defendant admitted to being a gang member but denied being involved in any feud. The defendant asked the officers can you tell me how these cases go together; the officer responded that is something we will discuss in court. The defendant stated then, I do not want to talk. I got nothing to say. The officer than implied that the shooting may have been an accident at which time the defendant responded that he did not shoot anyone. The officer continued to ask questions until the defendant said if I am under arrest take me away. The full Hearns decision can be found by following this link.

Decision of the Massachusetts Highest Court

The SJC found that the defendant

  • clearly invoked his right to remain silent when he stated that he did not want to talk and had nothing to say.

The SJC held that:

  • If the officer was confused about the defendant's intent; he would have to ask clarifying questions to determine the defendant's intent.

  • Instead, the Court found that the officer was trying to persuade the defendant to talk. The Court rejected the Commonwealth's argument that the defendant was in a negotiation ploy as the officer clearly rejected the request to outline the case against the defendant at which time the defendant invoked his right to remain silent.

    Questions of whether statements are admissible at a criminal trial often come up. One task of a criminal defense lawyer is to determine what evidence can be admitted at trial and file motions to limit the Commonwealth's case. For more information about the Hearns case, the Suffolk Law School websites has an excellent quality video of the oral arguments at the Massachusetts Supreme Judicial Court.

    What does it mean to the defense in the Aaron Hernandez case that Ortiz and Wallace have been indicted for Murder?

    April 13, 2014,

    This week featured a new development in the Aaron Hernandez case with Carlos Ortiz and Ernest Wallace being indicted on murder charges.

    Does this help the Hernandez defense team? From the start, Hernandez primary defense was likely to be that either Ortiz or Wallace committed the murder without his knowledge and that he was merely a bystander. Since no murder weapon was found and there is no evidence as to what happened in the industrial complex, Hernandez would argue that there is simply not enough evidence to prove that he committed the murder.

    Massachusetts law does allow for a conviction of murder on what is referred to as a joint venture theory. Accordingly, if all three had the shared intent to murder, it would not matter who actually pulled the trigger; all three defendants could be convicted of first-degree murder.

    A joint venture requires the Commonwealth to prove two things:

    1. That the defendant knowingly participated in the commission of a crime;
    2. Did so with the intent required to commit that crime.

    At a trial, the jury would be instructed that mere presence at the scene and not preventing the commission of the crime is not enough for a conviction under a joint venture theory. The Commonwealth must establish a shared intent to carry out the commission of the offense.

    It does not appear that any new evidence justified enhancing the charges against Ortiz or Wallace according to the Attorney for Ortiz as reported in

    It is likely that since no murder weapon was found and the Commonwealth has not received the cooperation of Ortiz or Wallace that the Commonwealth feels that the best chance for a conviction is to pursue a joint venture theory and argue that all three had the shared intent to kill Lloyd. An Article in the Boston Globe suggested that the prosecution may feel that it would have a stronger argument on a joint venture theory if all three defendants are charged with murder.

    The case seems to be the strongest against Hernandez since there is surveillance of him holding a gun shortly after the incident. However, the new charges coming at a later time suggest that the Commonwealth cannot prove how the death occurred. The defense for Hernandez may suggest it was a rush to charge Hernandez and that the Commonwealth did not properly investigate the case to explore the possibility that Ortiz or Wallace carried out the murder without Hernandez's knowledge. Part of the strategy of the defense could involve attacking the investigation as centering around gathering evidence to prosecutor Hernandez without exploring alternative theories in an effort to argue that Hernandez's celebrity status influenced the contours of the investigation, leaving the jury insufficient evidence to support a conviction on the murder charge. Overall, the indictment of Lloyd and Ortiz likely helps the defense in the Hernandez case as it indicates that the Commonwealth believes that Lloyd and Ortiz had at least equal participation with Hernandez and may make it easier for the Hernandez defense team to argue that either Lloyd or Ortiz carried out the murder and that Hernandez did not share the intent to commit murder.

    How to get a Permanent Abuse Prevention order under 209A terminated and the standard used by the courts

    April 10, 2014,

    Under Massachusetts general law c. 209A, victims of family or household abuse can seek help from the State to prevent further abuse by orders prohibiting a defendant from abusing or contacting the victim, or requiring a defendant to stay away from the victim's residence or workplace. Any party may seek to get a permanent abuse prevention order ("209A order") terminated. If the party does not challenge the entry of a permanent 209A order on direct appeal it becomes a final equitable order. While a 209A order is a civil order, a violation is a criminal offense.

    In MacDonald v. Caruso, the defendant had a permanent abuse prevention order against him. He did not challenge the permanent 209A order on direct appeal. However, as with the defendant, a party may seek termination of the order where it is no longer equitable that the judgment should have future application.

    The standard applied by the court depends on which party is bringing the motion. Where a defendant seeks to terminate a 209A order, the defendant must show by clear and convincing evidence that there was a significant change in circumstances, and under the totality of the circumstances, the protected party no longer has a reasonable fear of imminent serious physical harm from the defendant. Mere passage of time and compliance of the order by the defendant do not constitute a significant change in circumstances. However, where the significant change in circumstances is not foreseen when the last order was issued, these two factors may be considered in deciding whether the defendant no longer poses reasonable threat of imminent serious physical harm to the plaintiff.

    In Caruso, the court stated that the defendant's own attestations of moving past his history of domestic abuse and retaliation fell short of meeting the burden of proving by clear and convincing evidence that the defendant no longer poses a threat to the plaintiff. Thus, it is in the interest of the defendant to get an attestation from others demonstrating the defendant has moved on from his history of domestic abuse and retaliation.

    As explained above, any party may file a motion to terminate a 209A order. If the defendant files the motion, the defendant has the burden of proving by clear and convincing evidence that, due to a significant change in circumstance, the plaintiff no longer has a reasonable fear of imminent serious physical harm. If the defendant has not met his burden to terminate a 209A order, the order will not be terminated, regardless how burdensome the collateral consequences, because the plaintiff's safety is the only relevant issue. However, if the defendant does meet his burden, the court should terminate the order because the plaintiff does not need protection in the future through the application of the order.

    Why Hiring the Cheapest OUI Lawyer is not a good idea

    April 6, 2014,

    Finding a Massachusetts OUI Lawyer brings many choice, like hiring any professional. Looking for a Lawyer based on the lowest price is generally not a good idea. In most cases, you cannot get the things you value most by looking for the lowest price:

    Many want the most vigorous representation, the highest quality of representation and willingness to fight the case through a long and difficult court process.

    When the attorney is charging an unreasonably low price, often the lawyer assumes that you will accept a plea and admit to the charge. A low price is a sign that the lawyer is assuming the case will be resolved with a plea. Be very cautious in hiring a lawyer based on the lowest price. You may want to consider some of the following tips to select a lawyer. Most would not select a doctor based on price; the same logic should follow in your selection of a lawyer.

    In most of my cases, a client will see the officer testify and be present for an evidentiary hearing. A case is rarely resolved without challenging the evidence either through a trial or motion. In most cases there is no downside to attempting to exclude evidence through a motion hearing. If the motion is unsuccessful, typically the case can be resolved.

    My approach to any OUI case that I take is that I will begin with the assumption we are preparing the case for trial not looking for a quick resolution.

    Some clients I have met with who have been charged with a Second or Third OUI will relate hiring a lawyer only to resolve the case on one court date. This is puzzling when I hear this because it is hard to see what value the lawyer would provide as the lawyer would not have had a chance to meaningfully review and gather evidence. There are many excellent OUI Lawyers in Massachusetts. The Best Lawyers charge higher fees than those looking for you to accept a quick plea. Be mindful of this when hiring the lawyer that agrees to charge the lowest price. One good source to find a lawyer is while another good source is directory of lawyers.

    OUI Stop for Tinted License Plate Cover Ruled unlawful by the Massachusetts Appeals Court

    March 26, 2014,

    What happens when you are pulled over for a traffic infraction and then charged with OUI in Massachusetts. How does this impact the defense of your case?

    This can occur when an officer patrolling the road pulls you over for driving above the speed limit or for a burned taillight, and then after pulling you over, suspects that you have been driving while intoxicated.

    When it becomes clear to the officer that the driver is intoxicated, the officer may arrest the driver under criminal charges. However, such a driver may be acquitted or the charges dropped if he can prove that the initial stop was not lawful.

    In the matter of Commonwealth v. Michael Bernard, the driver was arrested after a state trooper pulled him over for having a tinted cover over the license plate. The trooper testified that he routinely stopped vehicles that had a cover over their license plate in order to enforce a Massachusetts law requiring license plate to be clearly visible.

    During a hearing where the trial judge was to decide whether certain evidence of criminal activity was to be admitted to the court, the Commonwealth offered a color photograph of the driver's license plate with the tinted cover. The photograph was to support the argument that the driver had violated the Massachusetts law. After reviewing the photograph, the trial judge found that the letters and numbers on the license plate were clearly visible through the cover. The state trooper also testified that he was able to see the license plate through the tinted cover.

    After considering the Commonwealth's arguments in light of the evidence, the trial judge granted the driver's motion to suppress, deciding that the trooper had no reason under the law to stop the driver. The road stop was unlawful, and therefore the subsequent arrest was unconstitutional. The Court of Appeals also affirmed this decision.

    The lesson to be learned from this case is that a criminal charge or arrest will only be lawful if the initial stop leading to the arrest was lawful. If an officer violates your rights under the Fourth Amendment and Article 14 to be free from an unreasonable search and seizure, all of the evidence that is the result of this deprivation of your rights would be suppressed, leading to the likely dismissal of the case. To learn more about defenses to an OUI charge, feel free to download my Free Book or you can contact my office to have a copy mailed to you.

    Why being a Lawyer is still a Great Career Choice

    March 23, 2014,

    Recently, there has been some depressing news about the legal job market. The number of lawyers claiming to be unhappy in their career choice is high. Law students have brought suits against law schools. Law schools are lowering tuition according to a report in the America Bar Journal, including an 18% cut by Roger Williams Law School with similar cuts by Arizona and Iowa University Law Schools.

    But as I move into my 15 year as a lawyer and approach my 9th Anniversary of the opening of my law practice, dedicating to DUI and Criminal Defense, I could not be happier with my job.

    Here are the three things that make it a joy to go to work.

    1. I typically help people charged with drunk driving who have goals and ambitions, have jobs, families and careers; this case is a threat to that, they are concerned that one mistake will ruin their hard work throughout their lives. I like the clients that I work with and am motivated to give them that second chance.
    2. It never stays the same; there is always new ways to explain field sobriety. Better ways to communicate with a jury. While the basic objectives during trial stay the same, the methods to accomplish these objectives can always be improved and changed.
    3. It never gets routine standing up for someone you have known for from anywhere from six months to a year, or longer and tell their story, to six people in the community. It is a privilege to be able to speak for another.

    While there are challenges to having a career as a lawyer that did not exist years ago, if you go to law school because you love the job, communicating with people and telling someone's story you will have a great career as a lawyer. The best attorneys are positive, enthusiastic, understand that the job is a lifetime learning process in terms of studying new court decision, developing improved methods to teach a jury and to become a better person, which leads to more authentic communication. I would encourage anyone to go get their law degree there is always room for great people to join the legal profession. If you like to discuss a career in the law, feel free to contact me I would be happy to provide any advice I can.

    Challenging evidence seized from your car during an arrest for drunk driving

    March 12, 2014,

    What happens if you are stopped for OUI in Foxboro after a Patriot's game or concert and the police find alcohol in the car. How will finding alcohol in the car impact the defense of a drunk driving charge.

    When the police find evidence in a car it is not automatically admissible at trial, it can be challenged on the basis that the evidence was illegally obtained and suppressed at a motion hearing. An example of a challenge to a car search is a recent case decided by the Massachusetts Appeals Court.

    A similar set of events occurred in the case of Commonwealth v. Juan Torres, which began as a simple traffic stop but ended with a conviction for unlawful possession of a firearm.

    Torres, the defendant, was pulled over by an officer when Torres failed to stop at a Stop sign on a narrow road. The officer pulled Torres over to the shoulder of the narrow road, thereby obstructing traffic since there was no break down lane. After running a license check, the officer discovered that the defendant's license had been suspended. And because no other driver was available to move Torres car out of the travel lanes, the officer requested a tow truck to transport the car to an impound lot.

    While waiting for the tow truck to arrive, the officer began an inventory search of Torres' car and discovered a gun under the driver's seat. Inventory searches are conducted by police whenever a vehicle is impounded. The purpose of inventory searches is not to investigate a crime or discover evidence, but only to log all of the driver's possessions in the vehicle so that the police may know if something was removed or stolen while the car was parked at the impound lot. However, if during an inventory search an officer discovers evidence of a crime, that evidence may still be used to convict the driver in court.

    In the case of Torres, the town's written police procedural manual required the officer to complete an administrative form during the inventory search. This form was never completed by the officer in Torres' case. Instead, once the gun was discovered, the officer notified his supervisor, who subsequently instructed the officer to stay away from the car until a detective arrived to the scene. In the midst of the investigation, no one made sure to complete the required form.

    Before trial, Torres conceded that he was lawfully stopped and searched, but argued that evidence of the gun should not have been admitted because the officer failed to comply with the town's written procedural manual requiring completion of the administrative form. Both the trial judge and the Appeals Court, however, rejected Torres' argument. Although the Appeals Court found that noncompliance with the town's written manual is a factor in determining the lawfulness of the search, this noncompliance standing alone did not invalidate an otherwise lawful search. And because Torres had no other defense, the Appeals Court found no reason to overturn the conviction.

    Looking at the right of Self Defense in Massachusetts after the Dunn Trial

    March 3, 2014,

    The doctrine of self-defense is one of a few powerful defenses to the most serious crimes, which could lead to a not-guilty verdict if used by an experienced defense attorney. The recent Florida trial of Michael Dunn is one example of this defense successfully raised against a first-degree murder charge, although it caused a hung jury rather than a not guilty verdict.

    The jury in "the loud music trial" of Michael Dunn recently reached a verdict of guilty on three counts of attempted murder and one count of shooting at a vehicle. The jury was unable to reach a verdict on the first degree murder charge, however, which could carry the death penalty in the state of Florida.

    Dunn argued that he acted in self-defense when he shot 10 rounds into a Dodge Durango containing four individuals, fatally shooting teenager Jordan Davis. Dunn confronted the individuals in their vehicle in a convenience store parking lot because he disapproved of their loud music. During the confrontation, Dunn alleged that he became fearful for his life when he saw what he thought was a barrel of a gun in their vehicle. According to his lawyer, Dunn grabbed and fired his own weapon to protect himself and thwart off an attack rather than wait to become the victim.

    Under the current convictions, Dunn, 47, faces a minimum of 60-75 years in prison. The prosecutor is currently considering retrying the first-degree murder charge.

    As demonstrated in this case, the claim of self-defense is one of the most powerful, and most difficult, arguments to raise in court. In Massachusetts, once the defendant raises evidence establishing that he acted in self-defense, the Commonwealth must prove beyond a reasonable doubt that the defendant was not acting in self-defense when he caused the injury leading to the victim's death.

    There are multiple ways that the Commonwealth could defeat a self-defense claim. In a case where the defendant used deadly force (as in the Dunn trial), the Commonwealth will defeat the self-defense claim if it proves beyond a reasonable doubt that:

    • the defendant did not reasonably and actually believe he was in imminent danger of serious bodily injury or death;

    • the defendant used more force than was reasonably necessary to defend himself; or

    • the defendant did not do everything reasonable under the circumstances to avoid combat and to resort to defending himself.

    It is important to note that, under Massachusetts law, every individual has a duty to attempt to retreat from combat. If an individual is confronted with a potentially life-threatening situation, he must attempt to retreat, flee, or seek cover prior to using physical force. The individual may use physical force in self-defense only If there is no other way out of the situation. That is why the Commonwealth may defeat a self-defense claim by proving that the defendant did not do everything reasonable under the circumstances to avoid combat.

    In the trial of Michael Dunn, Dunn's defense attorney was able to argue self-defense to the extent that the jury doubted whether it was really so unreasonable for Dunn to act in the way that he did. The defense needs to only raise even the smallest doubt on the jury's mind to prevent a conviction (see page on proof beyond a reasonable doubt). Although Dunn's claim may not have been completely persuasive, it was sufficiently persuasive to give the jury reason to doubt Dunn's guilt in the death of Jordan Davis.

    Supreme Court to decide 4th Amendment question on warrantless cell phone searches

    February 14, 2014,

    The United States Supreme Court is scheduled to issue landmark decisions early this summer regarding the constitutionality of a warrantless search of a suspect's cell phone under the Fourth Amendment. The nation's highest court has recently announced that it will be hearing arguments and deciding on two criminal cases - one from Boston, Massachusetts, and the other from California - that touch on the issue of warrantless searches of mobile devices. Arguments are scheduled for April, and the court is set to issue its decisions in June.

    One of the cases to be examined by the court is U.S. v. Brima Wurie, which was litigated here in the U.S. District Court in Boston, MA. In the matter of Wurie, police officers arrested Wurie after allegedly observing him sell two bags of crack cocaine out of his car. When the officers were booking Wurie, they seized more than one thousands dollars cash, keys, and two cell phones, all of which were found in Wurie's pockets. One of the cell phones - a flip phone - was repeatedly receiving calls from a number labeled "my house." The officers opened the phone and checked the call log for the phone number making the calls to Wurie, and copied the number from the phone. The officers did not access either cell phone again.

    Instead, the officers entered the phone number corresponding with the "my house" label into an online directory and discovered a street address associated with the number. Wurie denied living at that address. The officers then obtained a search warrant and went to the address on the assumption that Wurie had lied to them in order to protect a stash of cocaine at the home. When they executed the warrant, the officers discovered more crack cocaine, marijuana, cash, a firearm, and ammo inside the house. Wurie was charged with three federal offenses - possessing a firearm and ammo, possessing cocaine with intent to distribute, and distributing cocaine.

    Wurie moved to suppress the evidence seized at the residence, arguing that the seized evidence was fruit of an unconstitutional search of his cell phone's phone log. The federal prosecutors responded that the search of the cell phone log was constitutional under the doctrine of search incident to arrest established in U.S. v. Robinson. The federal prosecutors also argued the phone search was very limited in that the officers only pressed two buttons and did not access any files on the phone. The judge allowed the evidence and the jury convicted the defendant, but the First Circuit vacated the convictions, holding "the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person." The U.S. prosecutors now appeal.

    The second case, Riley v. California, involved officers searching the smartphone of Riley after he was arrested for driving an unregistered vehicle. While searching the smartphone, CA police officers discovered texts, videos, and other data connecting Riley to heavy gang activity and an attempted murder, as well as an assault with a semi-automatic. Riley was convicted on all counts by a state trial court, and is now appealing to the Supreme Court.

    With so many Americans carrying mobile devices on their persons, courts have examined the constitutionality of warrantless searches of cell phones over and over again. But because the last Supreme Court decision on this issue predated the use of mobile devices in the public, the lower courts have not had much guidance in deciding this question on Fourth Amendment grounds. And particularly with smartphones becoming increasingly popular, there is growing concern that officers searching individuals will have access to not only call logs and videos/pictures, but also emails, financial accounts, and personal files. As the law in this area develops, it becomes more important for individuals charged with criminal offenses to be represented by an experienced defense attorney who will see that their constitutional rights to privacy are protected.

    Massachusetts SJC holds that police have no right to forcefully enter a home to execute an arrest warrant without concrete evidence that the arrestee is home

    January 25, 2014,

    Police officers often obtain evidence during the execution of an arrest warrant, but a Massachusetts criminal defense attorney can ask the court to exclude this evidence if it was obtained unlawfully or in violation of the defendant's rights. That's because the manner and circumstances in which an officer could forcefully enter a home to make the arrest are heavily regulated by the courts. The state's high court in Commonwealth v. Gentile limited police power even further when it held that police officers did not have authority to forcefully enter a home to execute an arrest warrant if they had no concrete evidence that the arrestee was home at the time.

    In the matter of Commonwealth v. Gentile, police officers forcefully entered the residence of Gentile in an effort to execute two outstanding arrest warrants against him. When the officers first approached the residence, Gentile was nowhere in sight, and a lady with her daughter answered the door. When asked whether defendant was at home, the lady replied that he was not.

    The officer at the door alleged that the lady looked at the bedroom at the end of the house and appeared nervous when she was asked about Gentile. Based on these observations, the officer forcefully entered the residence and search the bedroom at the back of the house for Gentile. Gentile was found in the bedroom, near an antique musket that was left in plain view. The officers arrested Gentile and subsequently discovered several other firearms in the bedroom.

    After Gentile was transported to the station, the officers read Gentile his Miranda rights, and Gentile agreed to waive his right to remain silent. Gentile then proceeded to inform the officers about how he came to possess the weapons, which were stolen by a third party. Gentile also agreed to the officers' request to search his property for a stolen sword and BB gun. The officers subsequently returned to Gentile's house, where the sword and BB gun were discovered and confiscated.

    Gentile was charged with receiving stolen weapons. Gentile's attorney asked the court to exclude any evidence obtained through Gentile's consent to allow the officers to search his residence. He argued that the officers violated Gentile's constitutional right to privacy by entering his house. The motion was denied, however, and Gentile was convicted by a jury for receiving the stolen sword and BB gun.

    On appeal, the Supreme Judicial Court held that police officers must have more than a hunch that the arrestee is in his home before the officers could forcefully enter the home to execute an arrest warrant. According to the court, police officers need to have a "reasonable belief" based on specific articulable facts and observations that the defendant was actually present. In this particular case, the court found the officers acted on a pure hunch when they forcefully entered the premises. The home invasion was therefore unlawful.

    Gentile also successfully argued that since his arrest was a result of an unlawful privacy invasion, any consent he subsequently gave to police to search his home for more weapons was invalid. Therefore, the sword and BB gun discovered by police by Gentile's consent after his arrest were inadmissible. And since the prosecutor could not prove Gentile's guilt without evidence of the discovered weapons, the court ordered that all charges be dismissed.

    This case marks a substantial victory for defendants and the criminal defense bar across the state. The SJC's decision protected the Article 14 and Fourth Amendment rights of defendants facing arrest warrants by restricting police conduct in searches and arrests. Massachusetts police officers must now satisfy a high standard of objective belief to validate their forceful entry and search of any individual's residence.

    Sixth Amendment case involving surrogate expert testimony may be heard by the United States Supreme Court

    January 17, 2014,

    The United States Supreme Court is currently considering to hear another appeal that addresses the issue of whether surrogate expert testimony violates the Sixth Amendment Confrontation Clause. The appeal, titled Turner v. United States, was filed after a defendant was indicted and convicted in a federal drug distribution case on three counts. If the Court chooses to hear this appeal, the Justices may finally provide much needed direction and clarification following the Court's problematic 2012 opinion in Williams v. Illinois.

    Turner was indicted by a federal grand jury after he sold a mixture containing crack cocaine to an undercover police officer on three different occasions. Samples of the mixture obtained by the police officer from Turner were sent to the Wisconsin State Crime Lab, where an analyst issued a report identifying Turner and confirming the presence of crack cocaine in the mixture. The government initially notified Turner that the analyst would be called to testify to her findings on the compound, but then the government informed Turner that the analyst's supervisor would testify in her place as the analyst was on maternity leave. This second notice came after the court's deadline for expert witness discovery.

    During trial, Turner's counsel objected to admission of the supervisor's testimony on the methods and procedures of the analyst who handled the cocaine mixture. The supervisor testified that although he did not conduct the analysis, he did review the data and notes generated by the actual analyst, and agrees with the analyst's conclusion that the mixture contained crack cocaine. The supervisor also testified that it is the general practice and procedure of the Wisconsin Crime Lab for lab supervisors to review the work of their analysts and peers, and to sign off on final reports prior to release.

    The trial judge allowed the supervisor to testify, and Turner was convicted. After the Seventh Circuit affirmed the decision, the Supreme Court remanded and vacated the decision and instructed the lower court to re-examine the issue in light of Williams v. Illinois. When the case returned to the Seventh Circuit, the circuit court again affirmed the conviction.

    There is a strong semblance between this case and the 2009 decision in Melendez-Diaz v. Massachusetts. In the 2009 case, the Supreme Court held that the chemist who issued a sworn statement confirming the presence of cocaine in a lab sample must testify in order to admit that statement into evidence. Otherwise, the chemist's statement is inadmissible as testimonial.

    A key difference, however, is that the forensic report admitted into evidence in Melendez-Diaz only contained the bare-bone finding that the sample contained cocaine, without any explanation as to the procedures and analysis and data generated during the lab testing. In contrast, the supervisor in Turner in fact testify to the procedures and data generated during the testing, and explained how the analyst reached her conclusion and why her conclusion was accurate and correct based on the data generated.

    This case presents another opportunity for the Supreme Court to finally mend the large tear among both federal and state appellate courts regarding the admissibility of surrogate testimony. Defense attorneys in Massachusetts and all across the nation should be eager to find out if the Supreme Court will choose to accept this appeal. If the Court decides that the original analyst must testify as to her own conclusions, prosecutors and crime investigators all across the nation will be limited in the opinions that they could elicit from their experts on the stand. This will be a substantial victory for criminal defendants who's constitutional rights to confront their accusers have been undermined by past decisions.

    Appeals Court grants more discretion to judges to infer notice of license suspensions in OUI cases

    January 16, 2014,

    There are usually opportunities for first-time offenders in OUI cases to accept a lighter criminal punishment in exchange for some admission in court. But many people do not realize that there are always conditions and consequences of these court admissions - although they are not guilty pleas. As in the case of Commonwealth v. Oyewole, when a defendant fails to carefully comply with the conditions of the court orders pursuant to his admission, he will be considered to have committed a crime - whether or not he was actually aware and understood these conditions.

    In the matter of Oyewole, the defendant was convicted by a trial judge for operating a vehicle after his license was suspended for an OUI. The initial trial judge in Oyewole's OUI case continued the OUI conviction without a finding for one year, and ordered that Oyewole's license be temporarily suspended.

    During the suspension period, Oyewole was pulled over in the middle of the night for driving without his headlights. When the officer asked him for a license and registration, Oyewole fully complied and produced a license. The officer returned to the police cruiser to run the plate number and license number, and found that Oyewole's license was suspended by a trial judge less than sixty days earlier. The officer confiscated the license and arrested Oyewole for driving with a suspended license under chapter 90, section 23 of the General Laws. When Oyewole was booked at the police station, he informed the booking officer that he was a "caregiver" - which is one of the qualifications for a hardship license.

    The trial judge in the license suspension case found Oyewole guilty of operating with a suspended license when the Commonwealth admitted the court records on the OUI case into evidence. The records showed Oyewole to have admitted to there being enough facts to prove him guilty, and the case was concluded through a continuance without a finding. The language in the record also showed Oyewole's license was suspended for sixty days.

    Oyewole's attorney argued that the Commonwealth failed to prove that Oyewole was actually notified of the license suspension, and that even if he was notified, the Commonwealth also needed to prove that Oyewole was not issued a hardship license. This second argument arose from the fact that the arresting officer testified on cross-examination that Oyewole did in fact have a license at the time of the stop. But the Commonwealth did not provide the license in court - although the officer confiscated it.

    On appeal, the Massachusetts Appeals Court decided the Commonwealth did not need to prove the defendant did not have a hardship license. The court also refused the defendant's notice argument, holding that the Commonwealth did not need to prove that Oyewole actually knew that his license was suspended. Instead, the court inferred that Oyewole was put on notice when the OUI case was concluded while Oyewole was present in court.

    Associate Justice Peter Agnes, one of the panel members of the Appeals Court, disagreed with the decision that the trial judge correctly inferred Oyewole was put on notice. Agnes believed that while the fact Oyewole was present during the OUI trial may suggest there was notice, this inference is too circumstantial since it does not account for the fact that Oyewole actually did have a license at the time of arrest. According to Justice Agnes, no trial judge could infer from this evidence alone that Oyewole was notified beyond any reasonable doubt.

    Regardless of whether the Appeals Court's decision was correct, it is absolutely critical that a defendant fully understand the consequences of his admissions and pleas in court. Although it may not result in traditional criminal penalties such as confinement or heavy fines, an admission leading to a continuance without a finding could still have a strong bearing on how courts treat the defendant in subsequent hearings. It is important for every defendant to be accompanied by an experienced and knowledgeable defense attorney who could explain these consequences clearly and carefully to him.

    Vermont Supreme Court upholds heightened DUI penalties for refusing a breathalyzer test for repeat offenders

    January 13, 2014,

    In Massachusetts, as in many other states, a driver's prior DUI conviction could increase the severity of any subsequent DUI offenses charged by the district attorney. Many states have laws that enhance penalties for repeated DUI offenders, and even make it a crime to refuse to take a breath test in certain circumstances. As in the case of the recent Vermont Supreme Court decision, courts may even use the same prior conviction both to enhance the penalty for subsequent charges, and to criminalize a BAC test refusal.

    The high court of the state of Vermont has ruled that any prior DUI conviction could be used to criminalize a refusal to submit to a BAC test, in addition to enhancing a penalty for refusal. Refusing to submit to a BAC test ordinarily results in license restrictions or suspensions in many states if the driver has no prior DUI record. Under the amended Vermont state statute, however, a refusal by a driver with a prior DUI conviction automatically becomes a criminal violation that is punishable by fees, imprisonment, and community service.

    Many states, such as Vermont and Massachusetts, also enacted laws that increase the severity of the punishment for repeated offenders of DUI laws. As the number of past convictions increases, the penalty becomes more severe. Click here to see my webpage on the different OUI penalties in Massachusetts.

    In the recent Vermont Supreme Court decision, one defendant was being charged with his second DUI offense. Because this is a repeated offense, the prosecutor asked the court to impose the enhanced penalties under Vermont law. In Vermont, a second offense may result in up to 2-years imprisonment, a fine of up to $1500, and at least 200 hours of community service. This penalty fine is double the fine imposed on first-time offenders, and first-time offenders are not required to perform any community service.

    The Vermont Supreme Court's decision reverses the trial judges' rulings on the defendants' cases barring the same prior offense from being used both to criminalize the BAC test refusal as well as to enhance the penalties. The state prosecutors appealed the decision of the trial judges, arguing that the judges misinterpreted the DUI statute by not allowing the same prior offense to trigger both penalties. The state Supreme Court agreed, holding that the amended form of the statute explicitly allows trial courts to use the same prior offense as a basis for triggering both penalties.

    Unlike Vermont law, Massachusetts OUI law does not impose criminal penalties for refusing a breath test. A breath test refusal in Massachusetts results in administrative license suspension, which could be substantial depending on the number of prior offenses:

    • No prior offenses and over 21: 180 days
    • One prior offense or under 21: 3 years
    • Two prior offenses: 5 years
    • Three prior offenses: lifetime

    The administrative license suspension is added to any suspension as a result of a DUI conviction. For example, an individual convicted of a 3rd offense OUI who refused a breath test would face an eight year suspension for the OUI conviction and an additional 5 years for the breath test refusal, resulting a 13 year license loss.

    College and University Police Authority to Search and Arrest in Massachusetts

    January 1, 2014,

    As a Massachusetts criminal defense attorney, I defend students arrested by college or university police on criminal charges. Clients are often surprised to learn that campus police - or public safety officers - are limited by Massachusetts state law from many law enforcement duties of regular city and state police officers. This blog will discuss several important factors that an experienced criminal defense attorney would consider when litigating a campus police search and arrest.

    College or university police officers are appointed as special State officers under a Massachusetts statute (G.L. c. 22C, § 63) that grants them the same authority to make arrests as regular police officers for any criminal offense within their particular jurisdiction. But although students have more limited rights to privacy because of the college's interest in keeping the community safe, this does not necessarily translate into more police power for campus police. In fact, the courts have consistently held that campus police officers are more restricted in making arrests and searching a student's dorm room or possessions.

    A good example of the statutory limits on a campus officer's search and arrest authority is discussed in a case that involved Boston University police officers situated outside the University's property and near an interstate highway. In Commonwealth v. Hernandez, two BU officers observed Hernandez pumping gas on a public road near an interstate highway outside the university grounds, and decided to check his registration. When the officers discovered that an arrest warrant was issued for Hernandez on a misdemeanor, they stopped and arrested Hernandez and conducted an inventory search of his vehicle. The officers discovered evidence of drug possession and distribution. Hernandez moved to suppress the evidence discovered in his vehicle, and the trial judge excluded them from admission.

    The Supreme Judicial Court held that unlike regular police officers, campus police did not have authority to execute this arrest warrant for two reasons. First, the offense for which the arrest warrant was issued was a misdemeanor committed outside of campus. Second, the campus police executed the arrest warrant outside of campus and on public roads not in the officers' jurisdiction. Because the warrant was issued for crimes off campus grounds and the arrest was also made off campus grounds, the Court held that the officers were acting outside the scope of their authority. Therefore, any evidence of drug possession and distribution discovered by the officers during the inventory search of the car following the unauthorized arrest could not be used to prosecute the defendants in court.

    Campus police authority is also limited in the context of searching a student's college dorm without a warrant. The Supreme Judicial Court in Commonewalth v. Neilson heard a case involving a student at Fitchburg State College who was arrested by campus police after safety inspectors discovered drug contraband and paraphernalia in the student's college dorm. While Neilson was away from his dorm, school officials notified his roommate of a health and safety inspection to be conducted in their dorm later that day. When the safety inspectors entered the dorm, they discovered a light emanating from the closet. Believing it to be a fire, they opened the closet and found marijuana plants along with other drug paraphernalia. The school officials then notified the campus police, who entered the room without a warrant, photographed and confiscated the plants, and charged Neilson with several drug related offenses.

    After the search was challenged by Neilson, the SJC held that the campus police violated Neilson's constitutional right against unreasonable searches and seizures. The Court distinguished searches on college campuses from those at elementary and secondary schools, requiring probable cause and a warrant, when there is no express consent or exigent circumstances. Thus, college or university students, like all other individuals (except elementary and secondary school students) enjoy the full benefit of their constitutional rights to privacy and guarantees against unreasonable searches and seizures. Therefore, in the case of Neilson, any evidence obtained by campus police during their unauthorized search of the dorm room violated Neilson's constitutional rights and could not be used against him.

    As explained above, campus police officers are appointed as special officers under a particular state statute that limits the scope of their authority and jurisdiction. Criminal defense attorneys representing individuals arrested or searched by officers appointed under this statute should carefully review the basis and context of the case for any statutory violations. If the officers were acting outside their statutory authority, the courts will suppress all evidence produced from the unlawful arrest or search, and may dismiss the charges.

    Reckless endangerment statute used in Connecticut to impose criminal liability for preventing DUI fatality involving teens

    December 12, 2013,

    Two tragic DUI related accidents have resulted in charges in Connecticut for reckless endangerment as a result of failing to prevent the minor from driving drunk, causing the fatalities. As a Massachusetts DUI Lawyer, these cases raise issue of national significance and could set precedent for prosecuting failing to prevent a drunk driving accident and for the expansion of these types of statutes by legislatures.

    The first set of charges were filed as part of the investigation of the death of 17 year old Jane Modlesky, according to numerous news accounts of the investigation. The arrests of the two teenage boys came after the local district attorney charged another 17 year old teen with permitting the victim and other minors to possess alcohol during her house party earlier that evening.

    Police investigators stated that Modlesky was heavily intoxicated after leaving an party late into the night with four teenage boys in a car belonging to the host of the party. Police arrested the two boys who are alleged to have been the last people to see Modlesky after they drove themselves home with the car, leaving Madlesky to drive away while intoxicated.

    Under Connecticut law, a jury may convict an offender of a second degree charge of reckless endangerment if there is proof beyond a reasonable doubt that the offender acted recklessly, and his reckless conduct risked injury to another person. The prosecutor will need to establish that the boys were aware of Modlesky's intoxicated state, and yet consciously ignored the risk that Modlesky or the public could be seriously injured due to her impaired driving.

    Following the accident, police tested samples of Modlesky's blood for alcohol and discovered her BAC level to be at .27 percent. In Connecticut, the legal BAC limit for minors under the age of 21 is 0.02 percent, in contrast to the 0.08 percent limit for adults.

    As for the teenager who hosted the party where Modlesky is alleged to have consumed alcohol, prosecutors have charged her with violating a newer state statute regulating the distribution and possession by anyone under the age of 21. The law took effect on October 1, 2006, and imposes several prohibitions on minors as well as those providing alcohol to minors.

    One provision of the statute bans home owners or those exercising dominion over a home or private property from knowingly allowing minors to possess alcohol on the property. An exception to this ban is if the minor is under the supervision of a parent, guardian, or spouse over the age of 21. In this case, there were no parents present at the house during the party.

    As a DUI and criminal defense attorney, I am aware of several states having statutes similar to those of Connecticut. Massachusetts, for example, passed a statute in 2000 similar to the Connecticut ban on allowing minors to possess alcohol. Massachusetts also has a statute punishing the reckless endangerment of a child under the age of 18. A person could be imprisoned for up to 2 ½ years if he is found guilty of either creating a substantial risk of injury to a child, or failing to take reasonable steps when necessary to prevent the injury of the child.

    There are many defenses and challenges that an attorney could raise to any of those charges. For example, the teenage boys may argue that they themselves were intoxicated and impaired, and so were not conscious of the potential risks.

    With regard to the Massachusetts statute making it a felony to endanger a child's life, one challenge is that the defendant did not have a legal duty to protect the child from the injury. Typically, criminal liability is imposed for committing actions rather than a failure to take action; however, the reckless endangerment statute does provide prosecutors the ability to use this law to punish conduct arising from inaction.

    This case is one of several tragedies that have occurred in Connecticut relating to underage drunk driving and underage drinking parties. In fact, a father in Marlborough, Connecticut was arraigned today in Manchester Superior Court on 28 counts of reckless endangerment and 28 counts of permitting minors to possess alcohol. These charges arose as part of the investigation of another tragic death of a 17-year old teen, Paige Houston, who was killed in an accident involving a teen driving away from a party hosted by the defendant's son.

    These cases will be closely watched as prosecutors are likely to continue to aggressively use reckless endangerment statutes to impose criminal liability on those who can prevent a DUI related accident, and to motivate legislators to expand the scope of these statutes. The prosecutors will have a difficult time proving knowledge and intent in these cases to support the reckless endangerment charges, but their aggressive stance is understandable given the tragic nature of these incidents and the need to use the law to change future behavior.