Massachusetts Criminal Defense Lawyer Blog

The United States Supreme Court's decision in Michigan v. Bryant, decided today, diminishes the Sixth Amendment right of confrontation. The Court held that statements are nontestimonial and thus not covered by the Sixth Amendment confrontation clause when the primary purpose of the statement is to allow the police to respond to an ongoing emergency. The Court's opinion represents a substantial departure from the Court's recent cases of Crawford v. Washington, 541 U.S. 36 (2004) and Melendez Diaz v. Massachusetts, 557 U.S. __ (2009) both affirming that the Constitution requires face to face confrontation under the Sixth Amendment.

Four justices joined in this reasoning with Justice Thomas joining the majority based on the fact that the statement was not sufficiently formal to be testimonial. Accordingly, Justice Thomas defines the right of confrontation based on whether the statement is similar to the historical practices that the framers of the Constitution intended to curtail when drafting the confrontation clause.

The Bryant case is an unusual case as the police came upon a victim who was dying from a gun shot wound. The police asked the victim what happened and he identified the defendant as the shooter. The victim died, leaving his statements as the only evidence identifying the defendant is the shooter. The Court held that the circumstances of the emergency indicated that the primary purpose of the victim's statement was to help the police respond to an ongoing emergency of capturing the assailant. The Court held that a person in the victim's position would not have a purpose of identifying his shooter for future prosecution, but to assist the police in responding to the emergency. Further, the Court stressed that the primary purpose of the police was to respond to the medical emergency facing the victim. Additionally, the Court stated that the defendant's medical condition and the informal nature of the questioning was relevant in determining the primary purpose of the statement.

The Court's decision relied primarily on its precedent in Davis v. Washington, 547 U.S. 813 (2006) where the court admitted statements relating to domestic violence made to a 911 operator when the victim refused to testify at trial. The difference between the statements in Davis and Bryant is that the victim spoke to the 911 operator as the incident was occurring rather than at least 25 minutes after the incident as in Bryant. Accordingly, the court expanded the logic of Davis in the Bryant decision.

The Bryant decision is significant in that the Court is taking a pragmatic approach in defining the right of confrontation rather than relying on the literal interpretation of the Sixth Amendment as requiring face to face confrontation as stressed in the Courts' Crawford decision.

The decision is also significant because Justice Sotomayor wrote the opinion of the court and she was not on the Court at the time of the most recent confrontation clause case of Melendez-Diaz. Justice Kagan did not participate in the decision.

Writing in dissent, Justice Scalia argued that the Court's primary purpose test abandons the rationale of Crawford v. Washington and returns to the reliability test that the Court rejected in Crawford. Justice Scalia stressed that in court testimony is a solemn declaration that the declarant understands how the testimony may be used and the intent of the officer cannot substitute for the declarant's understanding of how his words may be used in court. Justice Scalia asserts that the balancing behind the primary purpose test allows judges to reach results based on what the judge perceives as fair. Further, Justice Scalia found that even applying the primary purpose test the victim's statement was testimonial because the statement had little value other than to ensure the arrest of the defendant.

As a Massachusetts criminal attorney, the Bryant decision is extremely significant because it shifts the Court's Sixth Amendment case law toward a balancing approach that is likely to result in more out of court statements being admitted into evidence without live testimony. Further, Massachusetts criminal lawyers will have significant pretrial hearings applying the court's balancing test to determine the admissibility of statements.

Those facing drug charges in Massachusetts have the right to cross-examine the chemist who tested the drugs, according to a U.S. Supreme Court decision involving a Boston man who was put in jail over a small baggie of cocaine.

A Massachusetts criminal defense lawyer will challenge drug charges on a number of fronts -- certainly contesting lab findings can be one of them. As can challenging the weight in cases where a weight threshold carries a stiffer penalty.

The Herald News reports the court found a defendant has a right to have the chemist present for cross examination in order to challenge the findings. The ruling is causing fits across Massachusetts as prosecutors deal with the reality of too many drug cases and too few chemists.

The result could put defendants who challenge such charges at an advantage when it comes to seeking a reduction or dismissal. The case stems from the 2001 arrest of a Boston resident during a city drug investigation. Police report finding 19 small bags of cocaine; he was convicted in 2004. The U.S. Supreme Court overturned the conviction in 2009. The court ruled his rights were violated when prosecutors presented an affidavit from the lab that swore to the presence of cocaine. Because the chemist was not present, the defendant was denied his right to challenge his accuser.

He went to trial a second time and was found innocent. Massachusetts has about 40,000 drug cases a year -- more than 4,000 of those are in Bristol County. There are only about 35 chemists in the entire state.

Only about 10 percent of drug cases go to trial. But authorities report the ruling is causing headaches for prosecutors in those cases that do because a chemist is too often unavailable.

Continue reading "Court rulings favors defendants who challenge drug charges in Massachusetts" »

The United States Supreme Court declined to hear an appeal from Louisiana in the case of Barbour v. Louisiana which raises the issue of whether the Constitution requires a unanimous jury verdict to support a criminal conviction. Click on this link to read the filings from the case on the Scotus Blog.

Only two states Louisiana and Oregon allow a criminal conviction without a unanimous jury verdict. Massachusetts requires a unanimous jury verdict of all six jurors in district court and twelve jurors in superior court. Accordingly, if a Massachusetts criminal lawyer obtains a verdict that is not unanimous a mistrial results and the case can be brought to trial again.

The defendant in Barbour asserts that the Sixth and Fourteenth Amendment require a unanimous jury verdict. The petitioner in the case is represented by Jeffrey L. Fisher. The petitioners argue that the United States Supreme Court should overrule its decision in Apodaca v. Oregon, 406 U.S. 404 (1972) where the United States Supreme Court held that the Constitution does not require a unanimous jury verdict.

In Apodaca, the court held that a unanimous verdict was not required by a vote of 4-1-4, meaning that the majority of justices did not agree on the reasoning
for its decision. This is referred to as a plurality opinion.

Four Justices concluded that a unanimous jury verdict was not Constitutionally required. Four of the Justices also concluded that the Sixth Amendment to the United States Constitution does not require proof beyond a reasonable doubt. Justice Powell joined the four justices in finding that the Constitution did not require a unanimous verdict, but did so based on different reasoning. Justice Powell wrote that the Sixth Amendment requires a unanimous jury verdict in a federal trial, but held that the Sixth Amendment as applied to the States through the Fourteenth Amendment did not require that the federal and State right to a jury trial must be identical.

Justice Powell opinion reflected the selective incorporation doctrine where only certain provisions of the Bill of Rights apply to the States. This selective incorporation doctrine of Justice Powell was never accepted by a majority of the Court and was contrary to the case law. By the time of the Apodaca decision, the United States Supreme Court had already held that the right to counsel, right to jury trial, Fourth Amendment and exclusionary rule applied to the States.

The petitions in Barbour argued that the reasoning of Apodaca based on a functional assessment of the Sixth Amendment has been repudiated by the Court's current Sixth Amendment case law. The petitioners pointed to the United States Supreme Court landmark confrontation case of Crawford v. Washington which was based on the original understanding or original intent of the framers of the Constitution. Further, the petitioner cited the case of Apprendi v. New Jersey, 530 U.S. 466 (2000) which was based on providing the defendant a right to a jury trial as guaranteed by the common law.

As a Massachusetts criminal attorney, I am surprised that the Court declined to hear the case and address the Constitutional issue raised by the appeal.

A police officer is facing a domestic assault charge in Boston after allegedly assaulting his wife at their Roxbury apartment, according to a report in the Boston Globe.

A Massachusetts domestic violence defense lawyer understands how important it is to defend yourself against charges of domestic assault and battery in Boston or elsewhere in Massachusetts. Members of the military or those in law enforcement may face additional sanctions, including job loss and the inability to own firearms. Domestic assault charges frequently involve contentious divorce or custody proceedings, which can also be negatively impacted by a conviction. In still other cases, a restraining or protection order can have a drastic impact on your life, and may even prevent you from seeing your children or returning to your own home.

Boston police report responding to the 36-year-old officer's apartment after a complaint by his wife that he had assaulted her and damaged property. Authorities say she was injured and two apartment doors were damaged. Police confiscated his department-issued firearm and report finding cigarette rolling papers and a plastic bag containing an unknown substance.

He is facing charges of assault and battery, malicious destruction of property, intimidation of a witness and failure to secure a large capacity firearm. He is due in court on Tuesday and has been placed on administrative leave pending the outcome of the investigation.

The department reports the officer had a prior domestic incident. He was suspended for five days in October 2007 after he was accused of a physical altercation with a former girlfriend. He has been on the force since 2004 and made just shy of $100,000 in 2008.

Continue reading "Boston police officer accused of domestic assault in Roxbury" »

Lawyers for Kevin Kerrigan claim that he was too drunk to waive his Miranda rights and that the police questioned him after he asserted his Miranda rights and informed police he did not wish to speak to them. Laurel Sweet from the Boston Herald wrote an article detailing what occurred during the motion hearing.

During the first day of the motion hearing according to a report in the Boston Herald, prosecutors called two Stoneham police officers to testify that on the night of the incident Kerrigan was belligerent and appeared to be intoxicated and that they had to carry Kerrigan out of the basement.

Kerrigan is alleged to have said that he could not walk and would have to be carried out of the house. Kerrigan was read his Miranda rights and responded yeah whatever according to the testimony and initially refused to speak with the police officers.

Police claim after refusing to speak, 30 seconds later, Kerrigan told them that he grabbed his father's throat and his father fell to the floor; police claim that Kerrigan said that he thought his father was faking it.

Kerrigan was brought to the hospital and brought back to the police station where he was again read his Miranda rights and refused to sign a Miranda waiver form. This form is used by police departments to verify that a defendant was read his rights and agreed to speak to the police. The form has a place for a defendant to sign acknowledging that Miranda rights were read and that the defendant still wishes to speak to the police.

Kerrigan told the State police officer that he did not want to talk to him. The police officer told Kerrigan that his father died and Kerrigan asked if he was being charged with manslaughter. The State police officer testified during the motion to suppress hearing that had he known that Kerrigan told the other officer he did not want to speak to him that he would not have gone to Kerrigan cell to question him.

On the second day of the motion to suppress hearing, Kerrigan Massachusetts criminal attorney presented expert testimony to show that Kerrigan was highly intoxicated at the time the statements were made. Kerrigan's blood alcohol content was .18 over twice the legal limit and the doctor testified that his blood alcohol could have been as high as .24. The doctor testified that based on his level of intoxication Kerrigan would not have understood his Miranda rights.

The judge took the motion under advisement. Kerrigan Massachusetts criminal lawyers are seeking to suppress two statements according to the news accounts: one that Kerrigan said he grabbed his father by the throat and the other that he was asking whether he would be charged with manslaughter.

Regarding the first statement to the Stoneham police, the main argument the judge is considering is whether Kerrigan's intoxication prevented a valid Miranda waiver.

When the court reviews whether the defendant waived his Miranda rights, the court looks to whether the Commonwealth can prove that the defendant's waiver of his Miranda rights was knowing, intelligent and voluntary.

Under Massachusetts case law, a defendant's consumption of alcohol will not necessarily make a waiver of Miranda involuntary, but the court will be required to look at the totality of the circumstances to determine if the waiver was voluntary. The court will consider any statements made to determine whether a defendant appeared coherent, whether the individual was unsteady on their feet or slurring their speech as well as the individuals history of alcohol use and tolerance for alcohol.

A case that appears helpful to Kerrigan is Commonwealth v. Silanskas, 433 Mass. 678 (2001). In Commonwealth v. Silanskas, 433 Mass. 678 (2001), the court held that the defendant waiver was voluntary when the defendant was responsive to inquires, coherent and made self-serving statements. The court noted that the defendant showed a high degree of concentration and memory. The facts as recounted in the news account appear to show that Kerrigan could not stand up and was extremely intoxicated to the point where it was necessary to take him to the hospital. Kerrigan's extreme intoxication should result in his statements being suppressed.

Regarding the second statement, the intoxication issue will still be before the judge as well as the issue of whether Kerrigan was interrogated after he waived his Miranda rights. The Miranda decision forbids any custodial interrogation after a defendant has invoked Miranda. Kerrigan clearly was in custody and invoked Miranda. The issue will be whether the State police officer's statement that his father died constitutes custodial interrogation. The leading case defining custodial interrogation is the United States Supreme Court case of Rhode Island v. Innis, 446 U.S. 291 (1980).

In Innis, the United States Supreme Court defined interrogation as expressed interrogation or the functional equivalent of interrogation where police should know that there words or actions are reasonably likely to elicit an incriminating response. Based both on Kerrigan's intoxication and the officer's statement regarding his father, the officer should have known that his statement would likely provoke an incriminating response and the court should find that Kerrigan was subject to custodial interrogation after he invoked his Miranda rights and exclude the statement from evidence.

Even if the court denied the motion, as a Massachusetts criminal lawyer, I would expect the second statement to be excluded from evidence on the grounds that its prejudicial value outweighs its probative impact. When a judge instructs a jury, the jury is told that the complaint is not evidence in the case. In others words, a jury should draw no inference from the fact that someone is charged with a crime because every defendant is presumed innocent. To allow testimony that the defendant asked if he would be charged with manslaughter is unfairly prejudice because it invites the jury to infer that because Kerrigan thought he was being charged the jury can draw a negative inference. Kerrigan's statement regarding his charges should not be allowed into evidence because it would be unfairly prejudicial and contrary to his right to a fair trial because a criminal complaint is never evidence in a case. This testimony would invite confusion as it would encourage the jury to draw an inference of guilt from the fact that Kerrigan thought he would be charged with manslaughter.

A high school teacher is facing an assault charge in Weymouth after being accused of assault and battery on a student, the Patriot Ledger reported.

A Weymouth criminal defense lawyer should always be called to handle criminal charges involving teachers, whether or not they involve allegations on school property. More than many other professions, a school teacher convicted of a crime may have trouble keeping a job or finding a new one. Meanwhile, the zero tolerance policies in many schools have replaced common sense, especially where allegations of physical contact between teachers and students are concerned.

Police and school officials released few details about the incident, which reportedly occurred at Weymouth High School last week. Police report they are seeking a criminal assault and battery charge against the 49-year-old teacher. They did not release his name and he has not been formally charged.

Unfortunately those who are not familiar with the criminal justice system are often the most easily manipulated by law enforcement. In these types of cases, a defendant may agree to make a statement to law enforcement with the hope of putting the incident behind him. Typically those statements will be used against a defendant and may conflict with a future defense strategy. Contacting an experienced Massachusetts defense attorney, even before charges are filed, is the best course of action.

A hearing in Quincy District Court will decide if the teacher in this case is actually charged with a crime. The school's superintendent said the teacher had been hired recently and had been placed on administrative leave pending the results of the investigation. School officials continue to insist details are private because a student and teacher is involved, despite the fact that police contact has been initiated and a criminal investigation is under way.

Continue reading "Teacher facing Massachusetts assault and battery charge in Weymouth" »

The focus of this blog is to assist out-of-state lawyers in representing clients in their home state by pointing out some decisions of the Massachusetts Supreme Judicial Court that favor criminal defendants and expanded Constitutional protections. It is my hope that criminal defense lawyers in other states can use these decisions to assist their clients or change the law in their state.

Assault and Battery and self defense: One of the more important cases handed down by the Massachusetts Supreme Judicial Court was Commonwealth v. Adjutant, 443 Mass. 649 (2005). Massachusetts criminal attorneys can use this decision in defending assault and battery cases. The decision allows a defendant to offer into evidence prior violent acts of the victim, even if unknown to the defendant, to prove who was the first aggressor in an assault and battery. The SJC set forth how a defendant admits this evidence at trial by requiring that a defendant provide advance notice to the Commonwealth of the intent to admit prior violent act evidence.

Confessions and Recording Confession: Another important criminal defense decision decided by the Massachusetts Supreme Judicial Court was Commonwealth v. Digiambattista, 442 Mass. 423 (2004). In this decision the SJC held that if the police do not tape record a custodial interrogation than a criminal defendant is entitled to a jury instruction that the jury can view the statement with caution given the highest court in the state has expressed a preference that custodial interrogations be recorded. There was a good article on the National Criminal Defense Lawyers website on this issue, click here to read the article.

Fourth Amendment and Exit Order: The Massachusetts Supreme Judicial Court in the case of Commonwealth v. Gonsalves, 429 Mass. 658 (1999), held that under Article 14 of the Massachusetts Declaration of Rights a police officer cannot order a motorist from the vehicle during a routine traffic stop unless the officer has a reasonable apprehension of danger from the motorist. The SJC departed from the rule of Pennsylvania v. Mimms, 434 U.S. 106 (1977), allowing for an automatic exit order under the Fourth Amendment of the United States Constitution.

Drug Cases and Search of residence: Commonwealth v. Pina, 453 Mass. 438 (2009): Court in Pina held that an affidavit did not establish probable cause to search the defendant's home. The police believed that the defendant was selling drugs from his car and conducted a control buy that confirmed the police investigation. The court held that there was no nexus between the defendant's apartment and the drug activity as the only connection between the defendant and the apartment was that he was seen leaving the apartment. This case is a good case discussing the nexus element when challenging a search warrant in a drug case.

A 33-year-old Tremont Street man is facing assault and battery charges in Fall River and other charges in connection with a stabbing, the Herald News reported.

Rosebery Rosa Pires, 33, is charged with home invasion, armed assault to murder and assault and battery with a dangerous weapon causing substantial injury, according to police. Another man is being sought as an accomplice.

A Fall River defense lawyer will review the facts and circumstances of this case. Under Massachusetts Law (Chapter 265 Section 15A), assault and battery with a dangerous weapon carries a penalty of up to 10 years in prison. If the dangerous-weapon designation is dropped, the maximum potential penalty is reduced to 2.5 years behind bars. Certainly a knife would be considered a dangerous weapon but self defense may have also played a role in the incident. Additionally, it is unlikely that the defendants will be convicted of both armed assault to murder and assault and battery with a dangerous weapon.

Police responded to a Fourth Street address shortly after 1 a.m. Tuesday and found blood in a hallway leading to a second-floor apartment. There they found a 22-year-old man stabbed several times. He was taken to Rhode Island Hospital, where he was listed in critical condition.

Police believe two suspects were looking for the victim's roommate when they kicked in the door of an apartment on the first floor. Instead, they stabbed the victim multiple times. The two defendants were identified based on a photo lineup.

Such eyewitness identifications are notoriously unreliable. And an experienced defense lawyer will also review the procedures used by police to see if the victim was unnecessary influenced by any number of factors, including a lack of alternative photos, alternate suspects that are too dissimilar in appearance to the suspects or leading questions or comments by police.

Continue reading "Fall River stabbing suspects face charges of assault and battery with a dangerous weapon" »