Massachusetts Criminal Defense Lawyer Blog

The Massachusetts Supreme Judicial Court, in the case of Commonwealth v. Kevin Grannum, ruled that a defendant could not have his plea vacated as a result of the failure of the judge to provide the defendant with the immigration warning required by the Massachusetts law, Chapter 278 Section 29D, because the defendant could not show that his plea was going to have the consequence of deportation, exclusion of admission into the United States or denial of naturalization.

The court held that a defendant attempting to withdraw a plea based on the failure of the judge to provide the immigration warning must show more than a hypothetical consequence that could result from his plea. The court found that the defendant must prove a nexus between the defective warning and the immigration consequence that the defendant is going to suffer.

In Grannum, the defendant argued that his admission to a continuance without a finding formed a statutory basis for deportation. The SJC held that a defendant must go beyond this showing and demonstrate that he was taken into custody by federal authorities, that he is currently in deportation proceedings, that he has been notified by immigration authorities of pending immigration proceedings or that federal immigration policy calls for the deportation proceeding to be initiated.

As a Massachusetts criminal defense lawyer, the court's decision underscores the importance of avoiding criminal convictions for noncitizens. Additionally, the court's decision creates a practical problem in challenging defective pleas as a defendant would already be involved in immigration proceedings before being able to obtain relief in the Massachusetts courts by way having a criminal defense lawyer file a motion to vacate a plea.

In two cases decided on June 15, 2010, the Massachusetts Supreme Judicial Court interpreted the resisting arrest statute of Massachusetts General Laws Chapter 268 Section 32B. The two cases were Commonwealth v. Quintos Q, involving a juvenile and Commonwealth v. Montoya.

In Montoya, police officers testified at trial that they saw the defendant fire three gunshots. The officers intended to take the defendant into custody, but the defendant fled on a bicycle. The defendant stopped and ran behind some stairs, was ordered to stop by the police, but continued to flee.

The defendant ran and jumped over a fence only to land in a canal. The officers did not follow the defendant over the fence but told him he was under arrest and the defendant made no further attempts to flee the police.

Under Massachusetts law, the Commonwealth must prove the following to obtain a conviction of resisting arrest. A person commits the crime of resisting arrest by knowingly preventing an officer from making an arrest or by using any other means that create a risk of substantial bodily injury to the police officer or another.

Monotoya's Massachusetts criminal defense lawyer argued that since the police officer did not follow the defendant over the fence, that the defendant cannot be convicted of resisting arrest because his actions did not create a risk of substantial bodily injury to the officer.

The Massachusetts Supreme Judicial Court rejected this argument holding that the officers did not have to be exposed to the risk as long as the defendant created the risk of bodily injury to the officers. The court held that the trial judge properly denied the defense lawyer's motions for required finding of not guilty as there was enough evidence for the defendant to be convicted of resisting arrest.

The second resisting arrest case, Quintos Q, involved a similar set of circumstances as Montoya. The defendant in Quintos Q, was a passenger in a car that was being followed by the police. The driver attempted to get away from the police, but crashed the car, at which time the defendant and the driver ran. The officer never had time to say anything to the defendant. Finally, another officer saw the defendant trying to climb a wall and yelled stop police. The defendant did not attempt to flee further as he was cornered.

The Massachusetts Supreme Court held that the defendant was not under arrest until he was cornered, trying to climb the wall. The court found that the officers never communicated to the defendant an intent to make an arrest. Accordingly, the SJC reversed the juvenile delinquency conviction.

Continue reading "Massachusetts Supreme Judicial Court interprets the resisting arrest statute in two recent cases" »

The Fall River District Court is relocating beginning this Monday, June 28th, with all criminal cases now being heard at 186 South Main Street, Fall River. The new courthouse will hear all criminal charges brought in the Fall River District Court. Prior to the opening of the new courthouse, district court matters were heard in two separate courthouse.

The new Fall River court will also hear all superior court matters for Bristol Country. It is expected that the new courthouse will make scheduling matters and parking more convenient for all using the courthouse.

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The Taunton Daily Gazette reports that a Massachusetts Cub Scout volunteer is facing child pornography charges.

Christopher Roy, 37, a Cub Scout volunteer who was seeking to become a Cub Scout leader, was arrested at his home on June 16. The United States District Attorney for Northern Texas reports that federal Immigration and Customs Enforcement officials have placed Roy on a watch list of people suspected of purchasing memberships to child pornography websites. On June 12, agents screened his bag at Dallas-Fort Worth International Airport and found what they believed were several child-pornography videos downloaded from the Internet. He had been returning from a trip to Aguascalientes, Mexico.

Roy is in custody pending a detention hearing next week in U.S. District Court in Massachusetts. Possession of child pornography carries a sentence of 10 years in prison and a $250,000 fine as well as lifetime supervision upon release.

Child pornography charges are very serious and should always be handled by a Massachusetts criminal defense attorney. In this case, the Scouts are busy distancing themselves from Roy. A local director said Roy is now forbidden from having any contact with scouting. He also said that Roy had never submitted paperwork to be a scout leader. However, Roy was a volunteer and is listed as "committee chairman" on a website for Middleboro Cub Scout Pack 96. The spokesperson said the website is not official and that Roy was not a committee chairman but had been working toward that goal.

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A flag football match that ended in a double stabbing has led to attempted murder charges in Fall River, according to the Taunton Gazette.

Justin S. Farland, 20, was arrested Wednesday night and charged with two counts of assault with a dangerous weapon and two counts of attempted murder. Farland is being held in the Bristol County House of Correction on $50,000 bail. Erika DeSousa, 20, was released on $5,000 bail and is charged with four counts of being an accessory after the fact. Farland is accused of stabbing two victims at Teamworks, an indoor sports facility on Lees River Avenue, and handing the knife to DeSousa.

The charges against DeSousa illustrate how friends of someone accused of a crime can also face criminal charges. Such charges result when authorities allege a friend was involved in a crime in any way. It is likely that authorities hope charging her will induce her to cooperate and testify against Farland. The pair should consult an experienced Fall River criminal defense attorney right away.

The fight broke out between the Fall River Beavers and the Taunton Terrors and sent two men to the hospital with stab wounds. Both men were transported to Rhode Island Hospital, where one was treated for wounds to the lungs and liver and the other suffered a punctured lung.

Police report that Farland fled in a white van and was picked up shortly after the incident. He was released a few hours later because of a lack of evidence. Police report they interviewed more than 30 people and watched videotape taken by Teamworks management. They contend that the tapes show Farland coming off the bench to join a 20-man brawl that erupted with about eight minutes left in the game.

Investigators say videotape shows him fleeing the building and putting the knife in a car driven by DeSousa. The knife has not been found.

Continue reading "Fall River attempted murder charges filed after stabbing at flag-football game" »

A pair of Framingham men were arrested this week after police allege that they attacked an acquaintance with a golf club at a downtown convenience store, the MetroWest Daily News reported.

Darryl M. Ford, 45, and Darison Pujols, 18, were charged with assault and battery with a dangerous weapon and assault with a dangerous weapon. The two were arraigned in Framingham District Court and released on $500 bail. They are due back in court July 28.

A Framingham defense attorney will fight the dangerous weapon allegation in this case and may argue the men were acting in self defense. Under Massachusetts Law (Chapter 265 Section 15A), the allegation that a dangerous weapons was used changes the offense from a misdemeanor to a felony offense.

Police say the man and his nephew admitted to beating a 25-year-old man outside Tedeschi Food Shop, 430 Waverley St. However, the defendants claim the man grabbed a golf club out of an SUV and began swinging first. Ford told police he was upset that the alleged victim had tried to speak to a friend's 13-year-old daughter at the beach and had followed the girl home.

The altercation began about 7 p.m. and was over by the time police arrived to find the victim injured and bleeding. The man was taken to UMass Memorial Medical Center in Worcester.

Police were able to review the fight on the store's surveillance cameras. The defendants were arrested at their home after police tracked them using their license plate number, which was written down by a witness.

Continue reading "Framingham assault with a dangerous weapon charges filed after golf club attack" »

A former state representative is scheduled to be back in court next month after his second arrest for domestic assault and battery in less than a year, the Dedham Transcript reported.

Massachusetts domestic assault and battery is a serious charge that can impact a defendant's life for years to come. Being subjected to restraining orders that can prevent you from returning home, job loss and the inability to own firearms are just a few of the common consequences associated with a domestic violence charge in Massachusetts. Charges are frequently brought amid a contentious separation or court case and can negatively influence the results of divorce or child custody proceedings. Hiring a Massachusetts criminal defense lawyer experienced in handling domestic assault is critical to protecting your rights.

In this case, Patrick Natale faces charges of assault and battery in two separate cases and could face up to two-and-a-half years in custody on each count, according to the Middlesex County District Attorney's office. The former two-term Democrat from Woburn was arrested after his wife called police to their home on Feb. 22. It was at least the third time police had been called to the home in less than a year. He is scheduled for trial on July 8 -- the same day a pretrial conference is slated to be held in the second case.

Police report that they found Natale's wife crying in her home on May 2, 2009 after an argument in which Natale became upset that his bank accounts were frozen. He reportedly flipped over a chair in which she was sitting -- three of their sons were in the backyard with her at the time. In October, the couple began arguing when Natale arrived under visitation rights granted through a probate order, police reported. She attempted to flee in that case but he allegedly grabbed her around the neck and pushed her into a wall. He told police that she attacked him by slapping him and kicking him in the groin area.

Natale lost a race in 2007 for an open state senate seat that was won by James Marzilli. Marzilli resigned a year later after being arrested on indecent assault and battery charges.

Continue reading "Former lawmaker faces Massachusetts domestic assault and battery charges" »

A 25-year-old Braintree man is in jail on a $100,000 cash bond after authorities say he stabbed a man outside a Shaw Street residence early Sunday morning, the Patriot Ledger reported.

Si. D. Tran was slated for arraignment on Monday in Quincy District Court, where he faces charges of assault with intent to murder, assault with a dangerous weapon, assault and battery with a dangerous weapon and resisting arrest.

The 24-year-old victim was taken to South Shore Hospital in Weymouth. The defendant was treated for injuries at the same hospital.

Under Massachusetts Law (Chapter 265 Section 18), assault with intent to murder carries a penalty of up to 20 years in prison. An experienced Quincy criminal defense lawyer will need to carefully review the case and determine the best course of action, which could include establishing a case for self-defense, challenging evidence, and/or seeking a reduction in charges.

Police were waved down by a friend of the alleged victim, who reported the man had been stabbed by a suspect who was chased into a Somerville Avenue home. Police used a K-9 dog to locate Tran in the basement of the residence, where he reportedly refused to comply with orders to surrender.

Two of the victim's friends told police that the three were heading to a Shaw Street residence when they saw Tran walking his bicycle. The victim reportedly said something that caused Tran to make a gesture. The victim then got out of the car and exchanged words with Tran, who left the area.

Police report that Tran later returned to the man's home with a knife and long screwdriver. The victim was stabbed during an ensuing altercation.

Continue reading "Braintree man facing assault charges in Quincy District Court after stabbing incident" »

A Los Angeles judge has found Robert O'Ryan guilty on felony stalking charges against former Olympic Gold Medal Winner and former Dancing with the Stars winner Shawn Johnson.

Anyone facing stalking charges should contact an experienced Massachusetts criminal defense lawyer to protect their rights. Under Massachusetts law (Chapter 265 Section 43), stalking is punishable by up to five years in prison. But, more than many other types of crimes, what constitutes stalking is debatable and defendants facing unfair allegations will need to mount a vigorous defense.

In the Los Angeles case, the judge heard three days of testimony concerning the actions of a Florida man who drove to California last March with the hopes of meeting the Olympic champion after she competed on the TV show "Dancing with the Stars." He had a shotgun and a handgun in his car, along with duct tape, a bulletproof vest, a knife, zip ties and writings addressed to Johnson. The judge found the defendant guilty of all counts and order him sent for a mental evaluation.

In Massachusetts, the law requires a defendant to "willfully and maliciously engage in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously harms or annoys that person and would cause a reasonable person to suffer substantial emotional distress."

While this case is obviously an extreme example, stalking charges often involve a souring relationship between two individuals or are made vindictively with little evidence. A Massachusetts defense attorney can defend the legal rights and reputation of a client facing a stalking charge. As the law states, prosecutors must proof you knowingly and willfully engaged in a series of acts that were intended to be deliberately harmful (malicious) and that the victim must have suffered substantial emotional distress.

If the state fails to prove any of these elements, you cannot be convicted of stalking in Massachusetts.

Continue reading "Massachusetts stalking charges require thorough defense" »

A Dedham man was charged with assaulting a police officer after the police went to a house where the defendant was allegedly told he could not be at, according to a news account. Daniel Kelly was charged with assault and battery on a police officer, resisting arrest, attempt to commit a crime and disorderly conduct. The news account does not indicate why the police allege that Kelly was not suppose to be on the property; the dispute began when the police tried to remove him from the property and Kelly replied that he had a right to be there.

As a Massachusetts criminal defense lawyer, I have defended numerous individuals charged with assaulting police officers and resisting arrest. In two recent trials, clients of mine were found not guilty of assault and battery on a police officer as I presented a defense that the contact with the officer was unintentional. To prove a Massachusetts assault and battery charge, on a police officer or other individual, the Commonwealth must prove beyond a reasonable doubt that the contact with the officer was intentional and not accidental.

A tall man is charged with a Massachusetts shoplifting offense from Lucky Brand Jeans. According to a news account, Maurice Thomas was wearing a baseball hat and is alleged to have left the store with a shirt and a pair of jeans. A police officer is alleged to have seen the defendant with two other individuals and the defendant walk away from the officer. The police searched the defendant and did not find any merchandise.

The police then stopped the vehicle believed to have been occupied by Thomas, a Gray Dodge Avenger where the jeans were found. Thomas' Massachusetts criminal defense lawyer may want to file a motion to suppress as it appears there was not a Constitutional basis for the stop. The general rule in Massachusetts and throughout the United States is that warrantless searches are presumptively unreasonable unless falling within one of the narrow exceptions to the warrant requirement. One exception is the automobile exception where a police can make a warrantless stop if there is probable cause to believe that the vehicle contains evidence of criminal activity. In this case, Thomas was searched without the police finding anything on him there would be a strong argument that there was not probable cause to search the car. It will be critical as to how the testimony at a motion hearing establishes what information the police had prior to searching the vehicle.

While this case raises an interesting legal issue, if the defendant has no record or a relatively minor record the case can likely be resolved without the defendant incurring the risk of a criminal conviction.

Continue reading "Dedham Shoplifting case of extremely tall man raises Constitutional defenses " »

Actor Charlie Sheen will serve 30 days in jail as a result of a plea agreement reached in his domestic assault case. It was alleged that Sheen pinned his wife Brooke Mueller to the bed and held a knife to her throat. Sheen was charged with felony menacing, third degree assault and criminal mischief. With good behavior, Sheen may only have to serve 15 days of his sentence.

In Massachusetts, a defendant is not eligible for parole unless the jail sentence is 60 days or greater. Under the plea agreement, Sheen will not be on probation as is typically the case in domestic assault case. In Massachusetts, often as a condition of probation on a domestic assault a defendant would have to complete either the batters program or the anger management program. If a defendant does not successfully complete the terms of probation, in a Massachusetts criminal case the judge can bring the case back to court for a probation violation hearing, also known as a probation surrender. At that time, the court readdresses the defendant's sentence and can sentence a defendant up to the statutory maximum upon finding of a probation violation.

For some individuals, straight jail time is preferred over restrictive probationary conditions. In Sheen's case, it appears that he elected for a straight jail sentence to avoid having the matter linger and potentially interfere with his role on the CBS comedy Two and Half Men.

Continue reading "ACTOR CHARLIE SHEEN TO SERVE JAIL TIME IN DOMESTIC ASSAULT CASE" »

The United States Supreme Court further limited the holding of its landmark case of Miranda v. Arizona in the case of Berghuis v. Thompkins decided on June 2nd.

In Miranda v. Arizona, the United States Supreme Court held that police must advise a defendant of the defendant's right to remain silent, right to attorney and the fact that statements could be used against the defendant prior to any custodial interrogation. In Thompkins' case, the police began to interrogate the defendant about a shooting. The Michigan police read the defendant his Miranda rights from a preprinted form. Most police departments in Massachusetts also use preprinted forms to advise a defendant of their rights. The defendant refused to sign the form and was asked to read one of the rights by the police officer. During the interrogation, the defendant was silent throughout most of the 2 hour and 45 minute interrogation. The defendant was asked by the officer if he prayed for the victim and asked for God's forgiveness for shooting that boy down. The defendant replied that he did. His confession was used against him at his trial, resulting in his conviction on the charges.

The defendant argued that his silence during most of the interrogation acted as an invocation of his right to remain silent and that the police should have stopped questioning him when he did not respond. The Supreme Court rejected this reasoning holding that a defendant must unequivocally invoke his right to remain silent.

The defendant next attacked the waiver of his right to remain silent by arguing that waiver of his rights under Miranda was not knowing, intelligent and voluntary. The majority opinion written by Justice Kennedy indicating that Miranda should not be interpreted to hold that a waiver of Miranda is difficult to establish absent a written or formal waiver. The Court held that there is no formalistic process that the State has to demonstrate to prove that a defendant waived Miranda rights other than that the accused made an uncoerced statement and understood his rights.

The Court found that Thompkins waived his rights under Miranda and understood those rights. Significantly, the court held that the fact that almost three hours passed from the time of the Miranda warnings to the incriminating statement did not mean that the statement should be suppressed. Further, the court held that the fact that the police appealed to religion did not make the confession coerced as the court held that the Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.
In a dissenting opinion, written by new Supreme Court Justice Sotomayor and joined by Justices Stevens, Ginsburg and Breyer, the dissent argues that the court's decision represents a substantial retreat from the Constitutional protections recognized in Miranda.

The dissent argued that the State did not satisfy the heavy burden of showing that the defendant waived his right to remain silent. Additionally, the dissent would hold that a defendant that continuously remains silent invokes their Fifth Amendment rights and their actions cannot be interpreted in any way other than indicating a refusal to speak to the police.

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