Justia Criminal Law Opinion Summaries

Defendant, a high school student, was charged with breaking and entering the home of a friend (seeking his girlfiend) with intent to commit a misdemeanor, G.L. c. 266, 16A, and assault, G.L. c. 265, 13A. A jury trial began in 2005. During a sidebar, after the Commonwealth's final witness had testified, the judge warned defense counsel that he had not "heard anything why I wouldn't, based on these circumstances ... put [the defendant] in jail." The judge added, "[T]he facts are kind of egregious and, I don't know why he wasn't charged with house invasion." Almost immediately, defendant entered a plea of guilty to both charges. The defendant unsuccessfully moved, before the same judge, to vacate his pleas and obtain a new trial. A different judge reversed. The defendant then sought dismissal on double jeopardy grounds. The Massachusetts Supreme Court held that retrial is appropriate. The record does not support the inference that the judge acted to prejudice the defendant or out of concern that the defendant would be acquitted. Even though the girlfriend refused to testify, there is no doubt that the defendant properly could have been convicted of assault and on the breaking and entering charge.

Petitioner's son was charged with assault and battery on a person over 60 years of age and with resisting arrest. The petitioner is the alleged victim. The son unsuccessfully moved to suppress a recording made by a third party, allegedly in violation of the wiretapping statute, G.L. c. 272, 99. The recording includes statements made by the defendant and the petitioner. The motion was denied. Petitioner sought relief under G.L. c. 211, 3, on the ground that the introduction of the recording into evidence in the defendant's trial would violate her privacy rights. The Massachusetts Supreme Court affirmed. Nothing in G.L. c. 211, 3, or rule 2:21 grants a nonparty to a criminal case standing to obtain review of an interlocutory order. The Legislature has expressly provided a civil remedy, including compensatory and punitive damages as well as attorney's fees, for any aggrieved person whose oral or wire communications are unlawfully intercepted, disclosed, or used, or whose privacy is violated by means of an unauthorized interception. G.L. c. 272, 99 Q. The petitioner does not address this remedy or explain why it would not be adequate to vindicate her privacy interests.

Based on a tip, surveillance, and controlled drug purchases, Brockton police obtained a warrant to search defendant's apartment. Officers found cocaine, cash, and a digital scale in the apartment. In the locked basement of the building, they found heroin, handguns, and ammunition. Defendant was convicted of trafficking in heroin, G.L. c. 94C, 32E (c); possession of cocaine with intent to distribute, G.L. c. 94C, 32A (c ); school zone violations, G.L. c. 94C, 32J; unlawful possession of a firearm, G.L. c. 269, 10 (h ); and unlawful possession of ammunition without an FID card, G.L. c. 269, 10 (h ). The Appeals Court found sufficient nexus between the suspected drug dealing and the defendant's apartment and that defendant had no objectively reasonable expectation of privacy in the basement. The court nonetheless reversed all except the ammunition conviction. Admission of certificates of drug and ballistics analysis without testimony of analysts who had performed the tests violated the defendant's Sixth Amendment confrontation right. The Massachusetts Supreme Court held that defendant is entitled to a new trial on the confrontation clause issue. The search warrant application established probable cause to believe that evidence of defendant's drug dealing would be found in his apartment, and the basement was within the curtilage of the defendant's apartment.

A fist fight broke out at a cookout. Shots hit a bystander, who later died. None of the fight participants had displayed a firearm. The only firearm that was seen was carried by defendant, described as a stocky African-American man wearing a white T-shirt and a baseball cap who ran up Arbutus Street. Numerous witnesses saw him; one had photographed him and another had been in jail with him in 1997. Defendant told a friend that he shot the victim in self-defense. The highest court affirmed conviction for murder in the first degree on a theory of deliberate premeditation, G.L. c. 265, 1. The court rejected claims of error in denial of a motion to suppress statements he made to the police, which he claimed were involuntary, and of ineffective assistance of counsel in failing to object to admission of evidence that the defendant was in the house of correction with an eyewitness. The court also rejected a claim based on counsel’s failure to request jury instructions on voluntary or involuntary manslaughter and that the judge created a substantial likelihood of a miscarriage of justice by making "gratuitous interjections" to defendant's opening statement, examination of witnesses, and closing argument.

A taxicab driver was robbed at knifepoint by a passenger wearing a hat that covered most of his face; the driver fired his pistol at the fleeing robber, wounding him in the back. Police located defendant near the scene of the robbery suffering from an apparent gunshot wound to his back, but no witness was able to identify him as the robber. Defendant claimed to have been shot in an unrelated incident by unknown assailants. Convicted of armed robbery, G.L. c. 265, 17, defendant appealed, arguing that certain statements allegedly made by the fleeing robber were hearsay and should not have been admitted; that a statement attributed to defendant contained in his medical records ("he was in a taxicab when he got shot") was inadmissible as hearsay; and that, even if not hearsay, the admission of the medical records violated his right to confrontation under the Sixth Amendment. The supreme court affirmed, finding error but no prejudice. The trial judge erred in admitting defendant's medical records under the statutory exception for business records, G.L. c. 233, 78, and the disputed portion of the records was not shown to be admissible under the hospital records statute, G.L. c. 233, 79.

After being convicted of assault and battery by means of a dangerous weapon and unlawful possession of a firearm and ammunition arising out of a shooting, defendant moved for a new trial, claiming ineffective representation by counsel. The judge granted the motion, noting that identity was the central issue and defense counsel had essentially promised in his opening statement that the jury would hear from a witness, Levesque, who had provided a description of the shooter markedly different from that of defendant. Defense counsel cited credibility concerns, stating, "I don't want to call Levesque because I don't have the burden of proof in this case,... This is about the police and what they did, and what they didn't do." Defense counsel was permitted to hypothesize about Levesque's absence in his closing argument. The Appeals Court reversed. The supreme court upheld the trial court decision. Having presided over the trial and a full hearing on the motion for a new trial, the judge was exceptionally well poised to assess the potential impact of Levesque's testimony on the case, to understand counsel's reasons for not calling Levesque, and to scrutinize whether that decision was manifestly unreasonable when made.

Defendant was found guilty of manslaughter for "inflicting fatal injuries on a viable and near full term fetus during the birthing process" in violation of her "legal duty...to refrain from wanton or reckless acts committed against her own viable fetus." At issue was whether a woman in the midst of an unassisted childbirth could be held criminally responsible for the unintentional death of her viable fetus. The court concluded that the evidence was insufficient to convict defendant on the theory that she was wanton or reckless in her acts of commission because the Commonwealth failed to prove that, once she decided to give birth unassisted, defendant had any alternative safe course of action. Additionally, the court concluded that, in light of the judge's findings that the Commonwealth had not proved that the baby was born alive, or that summoning medical assistance would have saved the baby's life, there was insufficient evidence that defendant's act of omission was the legal or proximate cause of the baby's death. The court also declined to recognize a duty of a woman, in these circumstances, to summon medical assistance, breach of which could give rise to criminal liability or involuntary manslaughter.

Plaintiffs brought suit under 42 U.S.C. 1983 alleging, inter alia, that the city council's vote to remove Charles Turner, an elected Boston city councillor convicted of attempted extortion and other Federal crimes, was void, and sought declaratory and injunctive relief as well as damages. At issue were two certified questions: (1) Did the Charter of the City of Boston, or any other provision of the laws of the Commonwealth of Massachusetts, authorize the Boston City Council to promulgate Rule 40A of the Rules of the Boston City Council and employ it to remove an incumbent Councillor from office before he was sentenced and removed automatically by operation of M.G.L.c. 279, section 30? and (2) If so, is Rule 40A a civil or a criminal provision of law? The court answered that the city council was authorized to promulgate Rule 40A but did not have the authority to employ the rule to remove Turner from office. In light of this answer, the court need not provide an answer to the second question.

Defendant appealed from his convictions of murder in the second degree and related firearms charges. Defendant was convicted on retrial; the jury at his trial was unable to agree on a unanimous verdict. On appeal, defendant contended, among other things, that State and Federal double jeopardy protections precluded the judge at the second trial from instructing the jury on accessory liability where no such instruction was provided to the first jury. The court concluded that the instruction given at the second trial was appropriate, because it would have been supported by the evidence introduced at the first trial, and, in the circumstances of this case, did not invite the jury to convict on a theory of the crime abandoned or foreclosed by the Commonwealth at the first trial. The court discerned no other error that would warrant relief and affirmed.

Defendant was indicted pursuant to the parental kidnapping statute, G.L.c. 265, section 26A, after his five-year-old nonmarital son, G.G., disappeared while in defendant's care. Relying on Commonwealth v. McCarthy, defendant filed a motion to dismiss the indictment (McCarthy motion) where defendant argued that the Commonwealth could not prove, as it must under the parental kidnapping statute, that he acted "without lawful authority" in allegedly taking G.G. To the extent the Commonwealth relied on G.L.c. 209C, section 10(b), to satisfy this element of the crime, defendant argued that the operation of that statute in these circumstances gave rise to an unconstitutional violation of his right to equal protection because it discriminated against him on the basis of gender. Because the indictment could properly rest on the application of another, gender-neutral statute, G.L.c. 209C, section 10(c), and because, in these circumstances, defendant could not raise an as-applied constitutional challenge to G.L.c. 209C, section 10(b), in a McCarthy motion, the court reversed the order allowing the motion to dismiss the indictment.