Massachusetts Criminal Defense Lawyer Blog

Massachusetts criminal defense lawyers defending gun charges must prove that the defendant did not exercise dominion and control over the firearm. If a firearm is not found on a defendant, the Commonwealth will argue that the defendant constructively possessed the firearm, either by arguing that the defendant had access to the firearm or that it was discarded prior to the police arriving. Massachusetts gun charges, of ="_blank">possession of a firearm without an FID card or unlawful discharge of a firearm, carry mandatory jail sentence, typically involve the prosecutor asking for a high bail and are cases that are a priority on the court docket.

In Commonwealth v. Mendes, the Massachusetts Appeals Court affirmed a conviction for possession of a firearm without an FID card and unlawful discharge of a firearm within 500 feet of a building after a trial in the New Bedford District Court.

Mendes involved a situation where an officer was on patrol, heard gun shots and saw the defendant running toward her; when the defendant saw the officer, he tried to hide and avoid the officer. The defendant ran around a car and was stopped by the officer and the officer testified that she noticed the smell of gunpowder. The gun was found underneath a minivan and police testify established that the defendant was scene in the area of the minivan.

The gun smelled as if it had been recently fired. The defendant was given a gunpowder residue test that came back negative and no fingerprints were found on the gun.

The Appeals Court found sufficient evidence to prove constructive possession based on the defendant's close proximity to the gun shots, his flight from the area, the officer's detection of the smell of gunpowder as she confronted the defendant, the defendant's presence in the area where the gun was found. This case seemed to present very little evidence that the defendant shot the firearm, and was not in the wrong place at the wrong time. A jury's verdict cannot be based on speculation or conjecture and it seems as though the jury assumed that the defendant fired the shots, despite the most compelling evidence, fingerprint evidence and gunpowder residue failing to connect the defendant to the gun. The defendant will likely seek further review of his conviction by the Massachusetts Supreme Judicial Court.

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A Massachusetts drug possession charge was brought against a Weymouth man, Gregory M. Orlowski. The Braintree police brought charges of possession of heroin. Based on the news account, the police made the arrest of Orlowski based on their belief that he was involved in a drug transaction.

In these types of cases, where police allege that they observed a drug transaction, an experienced Massachusetts criminal defense attorney will often file a motion to suppress, arguing that there was not probable cause or reasonable suspicion to seize the defendant. The police cannot merely act on a mere hunch that they observe a drug transaction, but must have detailed observations that set forth probable cause, such as prior dealings with the individuals being seized, presence in a high crime area, whether or not they see money or drug exchanged. These cases are very fact specific and if successful a motion to suppress would result in the evidence being excluded and the case likely being dismissed.

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A Massachusetts defendant convicted of possession of a firearm without an FID card was overturned by the Massachusetts Appeals Court as the Commonwealth failed to prove that the gun was a firearm under the statute. The case decided by the Massachusetts Appeals Court, Commonwealth v. Hollister, involved a case where the defendant raised on appeal that the Commonwealth did not prove that the firearm fell within the definition of a firearm under Massachusetts gun law. Under Massachusetts General Laws, Chapter 140 Section 121 a firearm is defined as follows: a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.

The Commonwealth must prove that the firearm is capable of discharging a bullet. In the Hollister case, the Commonwealth relied exclusively on the ballistic certificate which was an affidavit from a ballistics expert stating that the gun met the definition under the statute and was test fired and found to be in working order. Prior to the United States Supreme Court decision in Melendez-Diaz v. Massachustts, 557 U.S. ___, (June 25, 2009), prosecutors were allowed to prove elements of cases, including drug cases and guns cases by way of affidavit. The Commonwealth relied on the statute that allowed the affidavit of the ballistics expert to be substituted for live testimony under Massachusetts General Laws.

The Commonwealth did not present any live testimony from any witnesses that verified that the gun was working. Hollister's criminal lawyer objected to the introduction of the ballistics certificate under Sixth Amendment Confrontation grounds and the case of Crawford v. Washington, 541 U.S. 36 (2004). The Appeals Court held that under and the recently decided Melendez-Diaz decision from the United States Supreme Court that the defendant was denied his right of confrontation under the Sixth Amendment.

The court found that the denial of the defendant's right of confrontation was not harmless error and reversed the defendant's gun possession conviction. This case demonstrates the importance of hiring an experienced Massachusetts criminal defense lawyer as the defendant was able to prevail on appeal because his lawyer preserved at trial his objection to the improperly admitted evidence.

The Melendez-Diaz confrontation defense in Massachusetts drug cases is being narrowed by the Massachusetts courts as the Appeals Court has ruled that a police officer can testify that a substance is an illegal narcotic. This avoids the requirement of having a chemist appear in court to testify that a particular substance is an illegal drug, such as cocaine, marijuana or heroin. In light of recent cases, Massachusetts criminal defense attorney will have to be particularly vigorous in objecting to unqualified expert opinion by officers testifying that a substance is an illegal narcotic based on unscientific field testing.

In the case of Commonwealth v. Harris, decided by the Massachusetts Appeals Court, the court held a police officer's unchallenged identification of a substance as cocaine is sufficient to prove it is an illegal narcotic. Further, the court found that the admission of the defendant provided additional evidence proving that the substance was cocaine. Additionally, the case of Commonwealth v. Connelly, 454 Mass. 808 (2009) from the Massachusetts Supreme Judicial Court held that police officers can field test narcotics and testify that they are illegal narcotics without the need for the chemist to appear. In Connelly, the court relied on this field testing of the officers to find that the admission of the drug certificate was harmless error.

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The Dartmouth police seized 200 pounds of marijuana resulting in two individuals, Ricardo Zamora, and Joseph Zamora being charged with trafficking in marijuana and conspiracy to violate the drug laws. Trafficking in marijuana is an offense that carries with it a mandatory minimum jail sentence of three years with a maximum sentence of 15 years. Trafficking charges are heard in the superior court. While the details of this incident are unclear, in a drug trafficking charge a Massachusetts drug crimes lawyer will attempt to explore motions to suppress to exclude evidence, determine what evidence that the Commonwealth has to prove that the defendant possessed over the governing amount of illegal narcotics.

In this case, the Commonwealth would have to prove that the defendants possessed over a 100 pounds of marijuana to trigger the mandatory three year sentence. According to the news account, the defendants possessed over 200 pounds. In addition to trying to exclude evidence based on constitutional issues, a Massachusetts criminal defense attorney would also attempt to see if the charge can be reduced to require a lesser sentence in the event of a disposition.

The Massachusetts legislature is considering amending Section 58A of Massachusetts criminal laws, allowing the Commonwealth to hold a defendant without bail for up to 90 days under the dangerousness statute. The amendment is in response to Commonwealth v. Thomas, where the Massachusetts Supreme Judicial Court held that possession of a firearm without an FID card is not an enumerated felony or one that involves a substantial risk of physical force against another person.

The legislation is being pushed by Bristol County District Attorney Samuel Sutter. Bristol County District Attorneys have been aggressive in using the dangerousness statute to attempt to hold defendant's without bail prior to trial. Types of cases where dangerousness hearings have been requested include, assault and battery with a dangerous weapon, 4th offense OUI charges and weapon offenses. As an experienced Massachusetts criminal defense attorney, any case involving a serious injury, weapon or multiple offense OUI may require preparation for a dangerousness hearing. Often these hearings provide a benefit to a defendant as the defendant is given an opportunity to cross examine the Commonwealth's witnesses.

Prior to Thomas, in any case involving a firearm, the district attorney's office would seek a dangerousness hearing under Massachusetts law. The Thomas case held that possession of an unregistered firearm is not a criminal offense that in itself involves the risk of danger as the crime is essentially a regulatory crime.

While the statute may be amended in early January when the legislature reconvenes, a Massachusetts criminal lawyer may seek to challenge the statute on due process grounds as a detention without bail prior to trial is a serious deprivation of liberty that implicates constitutional limitations by the court.

A Framingham, Massachusetts man, Welerson D. Dos Santos, was charged with domestic assault and battery and threats to commit a crime. According to the news account, the dispute arose as Dos Santos and his wife were arguing about whether he is the biological father of one of his wife's children. The news report indicates that Dos Santos then threatened his wife's family if she tried to put him back into the court system and pushed his wife.

Dos Santos was released on his promise to appear in the Framingham District Court but held on a federal immigration detainer. A charge of domestic assault and battery is a serious offense that could result in denial of citizenship, deportation or denial of naturalization. A domestic assault and battery is a serious offense that requires careful investigation, speaking to witnesses and discovery into any motivation of the victim to fabricate or exaggerate the charges against the defendant.

Two individual charged with possession of drugs and guns after police execute a search warrant of their residence. According to the news report, Ashland, Massachusetts police charged Daniel LaRouche and Adam Voyer with illegal possession of a gun, illegal possession of ammunition and distribution of marijuana.

In any Massachusetts drug charge involving a search warrant, it is important to hire an experienced Massachusetts criminal lawyer to review the warrant to determine if there was probable cause for the police to obtain the warrant under the Constitution. A police search warrant can be challenged on a number of grounds. In some cases, an informant will provide the police with information that forms the basis of the warrant. Information obtained from an informant must have a basis of knowledge and the informant must be reliable. Additionally, the facts contained in the search warrant affidavit must be current; in other words, the affidavit cannot have stale or old information. Finally, in search warrant cases, there must be a link between the alleged illegal activity and the place to be searched.

The lawyer defending these charges from Framingham will likely pursue these 4th Amendment defenses.

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Dedham, Massachusetts police made arrests on larceny and unlawful use of a credit card charges on Monday, October 26, 2009. According to a news report, a three individuals found a student's wallet on the commuter rail and decided charge $888 to the Visa credit card. Police said the purchases were made at City Sports, the Gap and Levi Strauss & Co. at Legacy Place.
Officers Joshua Blaney and Keith Strong went to City Sports at about 5:55 p.m. on Monday, Oct. 26 after getting a report of a stolen credit card being used at the stores. Giovanni Brown, Lamarkus Vick, Rhonda Rascoe were arrested and matched the description given to the police.

A charge of larceny under $ 250.00 is a misdemeanor offense; a charge of larceny over $ 250.00 is considered a felony offense and would carry with it the potential for greater jail time and would require a defendant upon conviction to provide a DNA sample as any individual convicted of a felony offense is required to provide a DNA sample.

In some cases, larceny and shoplifting cases can be resolved short of trial through negotiations with the district attorney. In any charge of larceny or improper use of credit cards, it is important to contact an experienced Massachusetts criminal defense lawyer to handle your case and prepare your defense.

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In Commonwealth v. Young, the Massachusetts Supreme Judicial Court held that the Commonwealth could not hold a defendant charged with unlicensed possession of a firearm without an FID card without bail under the dangerousness statute of Massachusetts law. A Massachusetts criminal defense lawyer should object to any attempt by the Commonwealth to hold a defendant without bail under the dangerousness statute in light of this decision.

The dangerousness statute, Massachusetts General Laws, Chapter 276 Section 58A allows the Commonwealth to hold a defendant without bail for up to ninety days. The statute sets forth a list of predicate offense that allows the Commonwealth to seek a detention under the dangerousness statute, but also had language that was construed by the Commonwealth as a catch all that would support an expansive use of pretrial detention without bail. This portion of the statute included any felon that by its nature involves a substantial risk that physical force against the person of another may result. The Commonwealth used this language to argue that possession of an unlicensed firearm fell within this language of the statute and allowed for a defendant to be held without bail for up to ninety days.

The Massachusetts Supreme Court rejected this argument, holding that possession of an unlicensed firearm does not necessarily fall within the definition of the statute because the crime of possession of an unlicensed firearm does not require the Commonwealth to prove that an individual used the gun for an illicit purpose, just that it was not licensed. Accordingly, the Court held it was a regulatory offense that did not necessarily mean that the individual used the gun for any illicit purpose.

The Young decision means that the Commonwealth should not be successful in detaining a defendant charged with possession of a firearm without an FID card without bail under the dangerousness statute. Gun charges will likely result in the Commonwealth seeks a high bail as a Massachusetts gun offense carries with it a mandatory minimum eighteen month jail sentence.

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A Rhode Island man was charged with drug trafficking in cocaine out of the Fall River District Court. A Massachusetts drug trafficking charge is based on the amount of illegal narcotics, in the case of the Rhode Island man, cocaine, found on the individual. Massachusetts drug laws Chapter 94C Section 32E defines drug trafficking offenses. A drug trafficking offense in cocaine is based on the amount of the cocaine seized. Any amount less than 14 grams will be considered a distribution charge and remain in district court. A trafficking charge of over 14 grams of cocaine but less than 28 grams will have a mandatory minimum jail sentence of three years and a maximum state prison sentence of 15 years. A trafficking charge of over 28 grams but less than 100 grams will have a mandatory minimum sentence of five years with a potential maximum sentence of 20 years.

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In a Massachusetts assault and battery case, self defense is likely to be at issue. When an individual charged with assault and battery asserts a self defense, a Massachusetts criminal defense lawyer needs to learn as much about the victim and alleged aggressor as possible. A case decided by the Massachusetts Supreme Court, Commonwealth v. Adjutant, allows a defendant to offer into evidence prior violent acts of the alleged victim to prove who was the aggressor even if the defendant did not know about these prior acts.

These prior violent acts can be discovered through searching criminal records or through witnesses who know the alleged victim. These acts if a judge admits them into evidence can support a claim of self defense at trial.

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Many Massachusetts drug offenses arise from a car stop where police officers allege some traffic violation, that the driver was unlicensed or the car unregistered as a justification to stop the car. Two issues frequently arise in car search cases. In Massachusetts a police officer is not permitted to order a motorist from their car for a traffic violation unless the officer has a reasonable fear for the officer's own safety. The Massachusetts Supreme Court has declined to follow case law from the United States Supreme Court that allows for an automatic exit order when a police officer has reasonable suspicion to stop a motor vehicle.

A second issue that arises is when police do make an arrest and search the vehicle, was the search legally justified under the Fourth Amendment and Article 14 of the Massachusetts Constitution.

In Arizona v. Gant, the United States Supreme Court placed a major limitation on the ability of police to search a car following a traffic stop. Massachusetts search and seizure law under Gant requires that a police officer can only search the passenger's compartment of a car incident to an arrest if it is reasonable to believe that the motorist may gain access to the car or that the vehicle may contain evidence of the offense. Accordingly, following Gant, a police officer cannot search a vehicle following a stop or even arrest for a motor vehicle offense to search for drugs or other illegal narcotics.

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