Massachusetts Criminal Defense Lawyer Blog

A 22-year-old man is facing shoplifting charges in Attleboro after police report he was caught stealing from a home improvement store by officers who handled a similar complaint a day earlier.

An officer was working construction on the Newport Avenue bridge shortly after 8 a.m. when he reported seeing a car similar to the one used by a shoplifting suspect at Home Depot a day earlier. His partner had investigated the shoplifting complaint and the officers returned to the store after seeing the gray Saab convertible heading in that direction, the Sun Chronicle reported.

The officers report hiding in the garden section and spotting the defendant running out of the store with a power drill. Justin J. Silva, of Cumberland, pleaded not guilty to stealing two power drills in as many days at his arraignment in Attleboro District Court.

An Attleboro criminal defense lawyer could argue there is insufficient evidence to charge Silva with the initial shoplifting charge. An experienced attorney may also challenge the actions of the officers involved. Prosecutors had asked for no bail, citing a similar charge pending against Silva. Bail was set at $1,000 after his attorney told the judge he was a laid off union employee who was set to return to work on Monday.

Under Massachusetts Shoplifting Law (Chapter 266 Section 30A) a conviction carries a penalty of up to two and a half years of imprisonment if the value of the stolen item exceeds $100.

Continue reading "Saab driver faces Attleboro shoplifting charges are police claim his vehicle led back to scene of the crime" »

Bail has been set for a man facing domestic assault charges in Framingham, months after prosecutors claimed he was too dangerous to be released but then failed to charge him, the MetroWest Daily News reported.

This case illustrates the importance of hiring a qualified Framingham criminal defense lawyer. Despite being jailed without bail in July, and being ruled too dangerous for release in August, Robert Frank Vorce had bail set at $2,000 in Framingham District Court this week after his attorney argued he should be released because months have passed without an indictment.

Vorce was arrested after staff at MetroWest Medical Center's Framingham Union campus reported an assault. Doctors were performing tests on his girlfriend to determine if her face had suffered structural damage. She said she had been drinking with Vorce and woke up to him punching her in the face.

The victim reported fleeing from the house and sleeping on a porch, before going to a friend's and being taken to the hospital the next day. Police charged him with assault and battery and intimidation of a witness.

In ordering his release, the judge said he must report to probation twice a week and undergo random drug and alcohol testing. However, he rejected a request by the state that Vorce be outfitted with a GPS monitor.

Continue reading "Bail set in Framingham assault case after prosecutor fails to indict " »

The United States Supreme Court's recent decision in Graham v. Florida, decided May 17, 2010 provides helpful analysis for Massachusetts criminal defense lawyers representing juveniles. In Graham, the United States Supreme Court held that juvenile's could not be sentenced to life in prison without the possibility of parole. The Court held that the Eighth Amendment, prohibiting cruel and unusual punishment, does not allow a juvenile to be sentenced to life without parole. As a Massachusetts criminal defense lawyer, the Graham decision is interesting because the court underscored that juvenile's should be treated differently in the court system.

In finding that life without parole violated the Eighth Amendment, the Court looked to practices throughout the country and found it rare for a sentence of life without parole to be imposed for a juvenile. The court found the fact that life without parole is not frequently imposed for nonhomicide offenses indicates a national consensus against its use. The court found that community consensus was one factor in assessing whether a punishment is cruel and unusual under the Eighth Amendment.

The court also pointed to scientific studies showing that the juvenile brain is less developed than the adult brain; further, the court noted that juveniles are less mature, more susceptible to outside pressure and are accordingly, less culpable and less deserving of the most severe punishment.

Since juveniles continue to mature, they are more capable of changing and reforming their character that caused the criminal conviction. Further, the court noted that retribution is a legitimate reason for punishment, but noted that the rationale behind retribution as a justification for punishment is the personal culpability of the criminal offender. The Court also stated that deterrence is not a sufficient rationale for sentence of life without parole because juveniles are less mature than tend to act more irrationally, without considering the consequences of their actions.

The Court held that a State cannot permanently deprive a defendant of the opportunity for rehabilitation as the judgment is inappropriate for nonhomicide offenses, given a juvenile's capacity for chance and reduced moral culpability. The Court cautioned that a State is not required to guarantee freedom, but must provide a meaningful opportunity to obtain release based on demonstrations of maturity and rehabilitation. The Court held that the Eighth Amendment precludes a State from saying at the outset of sentencing that a juvenile defendant convicted of a nonhomicide offenses must serve life in prison.

The United States Supreme Court has emphasized the difference between adults and juvenile offenders in the case of Roper v. Simmons, 543 U.S. 551 (2005), where the court held that the Eighth Amendment prohibits a state from imposing the death penalty on a juvenile defendant older than 15 but younger than 18. The Grahm Court followed similar reasoning as used in Roper, considering the national consensus against imposing the death penalty on juvenile and the reduced culpability of juvenile offenders.

Former Providence, Rhode Island police officer Robert Huffman was sentenced by Judge Vogel to 60 years in State prison with 40 years to serve as a result of his conviction of rape in April of 2010. Huffman's Rhode Island criminal defense lawyers are likely to appeal Judge Vogel's ruling denying a motion for a mistrial made by defense counsel when the State failed to disclose notes of an interview with the alleged victim.

On appeal, it is likely Huffman's Rhode Island criminal defense lawyers will argue that the State's failure to disclose the notes of the investigating officer violated his right to a fair trial, effective cross examination and due process of law. The United States Supreme Court in the case of Kyles v. Whitley, 514 U.S. 419 (1995) emphasized that a prosecutor which alone can know what is undisclosed, must be assigned the consequence and responsibility to gauge the likely net effect of all such evidence. The Whitley Court went on to state that an individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.

As a Rhode Island criminal defense lawyer, it is hard to reconcile the judge's decision that the failure to disclose statements of the complaining witness did not prejudice the defendant. While counsel did have an opportunity to review the statements prior to cross examination, that opportunity was only a few days. Additionally, the trial judge stated that there was no harm to the defendant because the defendant did not reveal his trial strategy by making an opening statement. Had counsel had complete discovery from the State, counsel may have made an opening statement. Additionally, counsel was deprived of crucial material that would have shaped the trial strategy, may have lead to other avenues of investigation and altered the method of cross examination. Further, having material to view for months as opposed to days, allows counsel to reconsider and reformulate trial strategy which would certainly chance over time. In light of these factors, I would anticipate that the Rhode Island Supreme Court will grant Huffman a new trial.

A Massachusetts drug case was recently decided by the Massachusetts Supreme Judicial Court. The case of Commonwealth v. Fernandez, decided October 4, 2010, raised the issue of whether the Commonwealth can admit field testing of narcotics to prove that a substance is an illegal narcotic, like cocaine. The Court described field testing as creating a presumption that a particular substance is what the field test reveals. Despite the fact that field testing is nonconclusive, the court allowed the testimony into evidence finding that the lack of certainty went to the weigh of the testimony rather than the admissibility.

The impact of the Fernandez case for Massachusetts criminal defense lawyers will be difficult to measure without additional guidance from the court. The Court appeared to allow the field testing evidence in because at the drug distribution trial the defense lawyer did not provide notice to the Commonwealth that he was objecting to the field testing evidence until the morning of trial. The SJC relied on the defense attorney's late notice of his objection as a basis to admit the evidence; the court found that the late notice precluded the Commonwealth from being able to call a scientist to testify. Additionally, the court noted that the evidence was not called conclusive so that the jury knew of the limited nature of the probative value of the evidence. The Court stated that the defense lawyer was able to attack the weakness of the field test evidence.

This case is a response to the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts where the court precluded the use of a drug certificate to prove that a substance was an illegal narcotic. The Melendez-Diaz Court noted that the Commonwealth could rely on other circumstantial evidence to prove the nature of a substance. Field testing is an attempt to prove the nature of a narcotic without the need for having a chemist appear to testify at a Massachusetts drug trial.

In a Massachusetts drug distribution trial with an objection to field testing, the court should exclude the results as many officers will naturally assume that the substance is illegal narcotics to confirm their own suspicion that began the investigation. Additionally, officers who participated in the criminal investigation cannot be expected to make a neutral analysis of the evidence. Further, field testing will be unable to withstand scientific scrutiny as field testing is unlikely to be able to differentiate between real and counterfeit narcotics. When the court readdresses this issue, it is anticipated that the court will preclude field testing of cocaine from being admitted at trial or narrowly limit the use of the evidence.

Continue reading "Massachusetts Supreme Judicial Court opens the door to evidence of field testing of drugs at drug distribution trial" »

A Massachusetts criminal defense lawyer is seeking to separate his client's trial from that of a co-defendant's in an effort to distance his client from witness statements and other evidence in the case, the Daily News Transcript reported.

This case illustrates the importance of hiring an experienced criminal defense attorney. Frequently, the state will seek to charge co-defendants together; it's cheaper and easier and can offer a better chance of convictions because evidence against one defendant can color the group, whereas the same testimony may not be admissible in separate trials.

The right of a defendant to a separate trial was granted by 1968 U.S. Supreme Court case Bruton v. United States. In that trial, two defendants were convicted of armed postal robbery after a postal inspector testified that one of the defendants confessed that they both committed the crime.

This case involves the murder trial of Paul Moccio and Daniel Bradley. At a court hearing last month, Moccio's brother claimed he was helping Paul Moccio return a truck to Framingham last March when Paul Moccio told him he had killed the truck's owner over a $70,000 drug debt and that Bradley was going to dispose of the body.

Bradley's attorney wants his client as far away from that testimony as possible and is seeking a separate trial. If the trials are together, the jury can hear what Paul Moccio told his brother. But if they are separate, an experienced defense attorney can likely win exclusion of what Moccio allegedly told his brother that Bradley said.

Both Bradley and Paul Moccio have pleaded not guilty to first-degree murder and conspiracy to commit murder. Their trial is scheduled to begin on Jan. 18.

Such issues do not just arise in murder cases. In fact, issues involving co-defendants are more frequent in theft, larceny, assault and other cases that commonly involve more than one person. Experienced Massachusetts criminal defense attorneys have a better understanding of the system and can take the extra steps that can have a positive outcome on a client's case. Not all defenses are created equal.

Continue reading "Motion for separate trials shows the value of an experienced Massachusetts criminal defense lawyer" »

A trio of defendants is facing theft charges in Taunton after allegedly trying to sell stolen goods to a store in Silver City, the Taunton Gazette reported.

The three defendants, two from Carver and one from Plymouth, tried to sell gold bracelets stolen from a Plymouth home to a jewelry store at Galleria mall, according to police. The jewelry store manager called police. He then got the three to allow him to hold the bracelets after telling them to come back in an hour.

The manager estimates the bracelets are worth about $700.

Police identified the three men as Thomas Carr, 20, of 94 Tremont St., Carver, Christopher Hobin, 20, of 4 Sushala Way, Plymouth, and Devin Silva, 18, of 198A Plymouth St., Carver.

When questioned, Carr allegedly said the bracelets had been given to him by his mom to sell. Police say the mom denied giving the bracelets to her son. Authorities also said two of the three had been arrested on gun charges in the past. A subsequent search of the defendants located a starter pistol. A search of their 2005 Toyota Camry found bags of jewelry and a laptop computer.

A receipt in the car led police to the owner of a home who claimed the laptop and other items had been stolen.

In such cases, a Taunton criminal defense lawyer could challenge the probable cause for the search. If a search is found to be improper, evidence collected as a result can be excluded from trial. A reduction or dismissal of the charges can result.

Continue reading "Trio faces theft charges in Taunton after allegedly trying to sell stolen goods to Silver City jeweler " »

The Massachusetts Supreme Judicial Court ruled in the case of Commonwealth v. Williams, decided May 21, 2010, that the trial judge committed error in allowing the Commonwealth to admit into evidence statements from a Myspace page of the defendant's brother. The Court held that in order for evidence to be admitted at a Massachusetts criminal trial, the item must be what the proponents of the evidence represent it to be. This is known in criminal law as the requirement that evidence be authenticated.

The SJC held that the myspace page should not have been admitted because there was no testimony as to how secure the Myspace page is, who can access the page and whether codes are needed for access. The court compared the contents of a Myspace page to a telephone call from a particular phone number and stressed that without more evidence it can be presumed that the owner of the phone made the telephone call.

Under Williams, it will be difficult for prosecutor to have contents of social networking sites, like Myspace, facebook and twitter admitted into evidence. The Government could attempt to admit contents of social networking sites in a vary of criminal cases, including Massachusetts domestic assault and battery charges, restraining order violations and other cases where potential statements and evidence can be found on this sites.

Continue reading "Massachusetts Supreme Judicial Court rules contents of "Myspace page" inadmissible without proper authentication " »

The Massachusetts Court of Appeals in the case of Commonwealth v. Ferreira, decided September 14, 2010, held that the prosecutor's mathematical argument regarding reasonable doubt was an improper closing argument. During the Massachusetts criminal defense lawyer's closing argument, counsel argued that the victim stated that the victim was 80% certain that the defendant committed the criminal offense of unarmed robbery. The prosecutor argued that the victim had a good opportunity to see the defendant and picked the defendant and a co-defendant out of a 49 person line up. The prosecutor responded that the odds of the victim picking two men out of a 49 person line up is 98%. The prosecutor argued that was proof beyond a reasonable doubt.

The Massachusetts Appeals Court emphasized that under Massachusetts criminal law it is not enough for the prosecution to establish a probability, though a strong probability as reasonable doubt requires the Commonwealth to prove its case to a reasonable and moral certitude. The court emphasized that reasonable doubt is not capable of being defined mathematically and that selecting a defendant from a photographic array is not the same as selecting cards from a deck. When a Massachusetts criminal defense lawyer makes an argument alleging an improper closing argument by the prosecutor, the violation is of the defendant right to a fair trial and due process of law under the United States Constitution and the Massachusetts Declaration of Rights.

Despite the court finding the argument to be improper, the court declined to reverse the conviction finding that the error did not cause a substantial risk of miscarriage of justice. In a dissenting opinion, Justice Milkey, argued that he would reverse the conviction finding that the prosecutor's closing argument created a substantial risk of miscarriage of justice and characterized the prosecutor's mathematical proof as a nonsensical argument that was superficially powerful but ultimately improper under long standing case law in Massachusetts. Justice Milkey emphasized that courts have cautioned against the use of mathematical proof in criminal trials as it can confuse the jury and have the aura of scientific evidence. Further, the Justice reviewed the mathematical assumptions of the prosecutor and argued that the reasoning made little sense as the odds of a victim selecting a photograph from an array are not the same as the odds of the victim being correct. Additionally, the justice stated he would reverse the conviction because the Commonwealth had a relatively weak case and the error may have created a substantial risk of miscarriage of justice. It is likely that the defendant will seek further appellate review in the Massachusetts Supreme Court. I would expect the court to grant review.

The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Goodwin, decided September 17, 2010, addressed when a judge can modify conditions of probation without the defendant having committed a violation of probation. In Goodwin, the defendant was released from state prison after pleading guilty to a Massachusetts sex crime. Probation sought to modify the condition of his probation, even though the defendant was not in violation of his probation, to include GPS monitoring.

The Massachusetts Supreme Judicial Court held that probationary conditions can be modified without a violation only if there is a material change in the probationer's circumstances and where the added condition is not so punitive as to significantly increase the severity of the original probation. The SJC held that GPS monitoring is a punitive condition that cannot be imposed even if there is a material change in circumstances.

The Court explained that once the 60 day time period for a revise and revoke sentence expires, that the 5th Amendment to the United States Constitution, prohibiting a defendant from being subject to double jeopardy, precludes the court from increasing the severity of a criminal sentence. In essence, the court held that to change the probationary conditions would subject the defendant to multiple punishment for the same offense. Additionally, the court found that changing probationary conditions without a violation would unfairly penalize a defendant who entered into a plea agreement contingent upon a sentence recommendation. In Massachusetts probation violation hearings, a violation of probation can only arise when a probationer commits a new offense or violates the terms of the probation contract signed at the time of the plea or sentencing after trial.

The Court stated that upon a violation of probationary conditions, a judge's authority to modify or change conditions is almost unlimited should a judge decide not to imprison a defendant but return the defendant to probation.

Continue reading "Massachusetts Supreme Judicial Court addresses the issue of when a judge can modify probationary conditions without a violation of probation" »