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• Welcome
• Upcoming Criminal Justice section council meeting
• Interested in learning more about another MBA section?
• Case summaries
• The MBA is on Facebook, Twitter and LinkedIn
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• MBA May 18-19 Centennial conference to feature two-days of concurrent educational tracks; the Access to Justice Awards Luncheon and "Hail to the Chiefs" Bench-Bar Panel on May 18; Centennial Ball on May 19

Criminal Justice Newsletter

Case summaries

The Criminal Justice Section Council would also like to call to your attention the following recent court cases that may be of interest to the section council membership as well as other criminal practitioners:

Commonwealth v. Walorz, 2011 Mass. App. LEXIS 416 (March 25, 2011)
The defendant in the case was convicted after a jury-waived trial of trafficking in oxycodone over 28 grams. The Appeals Court found that the defendant's stipulation of facts, including the fact that he signed for and took possession of a delivery box that contained pills of oxycodone, rendered harmless beyond a reasonable doubt any error in the admission of the drug certificate without a live witness.

Commonwealth v. Griffin, 2011 Mass. App. LEXIS 400 (March 22, 2011)
In this interlocutory appeal by the commonwealth, the Appeals Court affirmed the allowance of the defendant's motion to suppress. The majority agreed with the lower court's findings of facts and rulings of law that probable cause did not exist to strip search the defendant where:

1. The defendant was a passenger in a car;
2. There was probable cause to search the car and the driver of the car based on statements by a confidential informant that the driver was traveling to New York to obtain a kilogram of cocaine;
3. The confidential informant provided no information about the defendant; and
4. The defendant did nothing suspicious or furtive when the officers stopped the car he was in.

Commonwealth v. MacDonald, 2011 Mass. LEXIS 150 (March 18, 2011)
The Supreme Judicial Court affirmed the defendant's conviction for possession with intent to distribute marijuana and violation of the drug laws in a school zone. The court found that it was proper for the officer to opine that the substance was marijuana where he was properly qualified as an expert to make that opinion and where marijuana is not easily mistaken upon visual examination as might a compound like cocaine. The court further held that an expert may offer an opinion based on a hypothetical that tracks the facts of the case where the proper foundation is laid, the witness is not a percipient witness, the witness does not comment directly on the defendant's guilt, and there is an appropriate limiting instruction that the jury are the only finders of fact.

Commonwealth v. Sosa, 2011 Mass. App. LEXIS 378 (March 18, 2011)
The Appeals Court affirmed the defendant's conviction for murder in the second degree. In this case, the defendant testified that he stabbed the decedent in self-defense. At trial, the prosecutor asked the defendant whether he had told anyone previously the story he was telling on the stand. The defendant argued at trial and on appeal that this was an improper reference to the defendant's invocation of his right to remain silent. The prosecutor argued that the question was referring only to omissions made when speaking to civilian witnesses, before the police ever arrived on scene. The court found that reference to omissions made to non-police witnesses pre-Miranda did not violate the prohibition against introducing evidence that the defendant exercised his right to remain silent. Additionally, the court found that the defendant did not actually exercise his right to remain silent with the police.

Commonwealth v. Beaulieu, 2011 Mass. App. LEXIS 377 (March 18, 2011)
The Appeals Court affirmed the defendant's conviction for operating under the influence of alcohol after his license to operate had been suspended or revoked for a prior similar crime. The court found that this charge under Chapter 90, Section 23, did not require a bifurcated trial because the evidence of prior license suspension or revocation was an element of the offense and not a sentencing enhancement. The court also found that, while evidence of a defendant's refusal to perform field sobriety tests cannot be admitted against him in court, the defendant opened the door by predicating his defense on the failure of the police to investigate by, in part, failing to conduct field sobriety tests.

Commonwealth v. Luciano, 2011 Mass. App. LEXIS 364 (March 16, 2011)
The court affirmed defendant Luciano's convictions for two counts of assault and battery by means of a dangerous weapon and reversed the convictions of defendant White on the same charges. The court found that it was constitutional error for the lower court to deny the indigent defendants funds to obtain transcripts from a first trial for use in their second trial. The court held that it was improper for the lower court to deny funds without holding a hearing (as required by Chapter 261, Section 27C) and held that it was a violation of equal protection to require the defendants to make a particularized showing of need for the transcript. However, the court found that the violation was harmless beyond a reasonable doubt. Additionally, the court held that the lower court erred in its instruction to the jury on joint venture. Specifically, the lower court failed to inform the jury that, in order to be convicted under a joint venture theory, the defendants had to be aware that the principal was armed with a dangerous weapon. Because of this error, defendant White's convictions were reversed. However, the error was not deemed to have caused a substantial risk of a miscarriage of justice in defendant Luciano's case and his convictions were affirmed.

Commonwealth v. Eddington, 2011 Mass. LEXIS 40 (March 10, 2011)
On further appellate review, the Supreme Judicial Court affirmed the Appeals Court's reversal of the Superior Court's decision to allow the defendant's motion to suppress. The court found that the police officers had a lawful basis to impound the car the defendant was driving and conduct an inventory search where:

1. The defendant could not drive the vehicle because he had a suspended license;
2. The officers did not call the registered owner of the car because it was 4:30 a.m.;
3. The car, while lawfully parked on the side of the road, was in a "high crime area" that put the car at risk of theft or vandalism; and
4. The search was pursuant to a written inventory policy.

Commonwealth v. Filoma, 79 Mass. App. Ct. 16 (March 9, 2011)

The Appeals Court reversed only the defendant's convictions for operating under the influence of liquor causing serious bodily injury. The commonwealth had two methods of establishing operation under the influence of liquor:

1. (1) Per Se Method: Admitting a breathalyzer reading of .08 or higher and having the court instruct the jury that, if they believed its accuracy, it could conclusively establish operation under the influence; or
2. (2) Proof by Impaired Operation: Admitting testimony by percipient witnesses of defendant's appearance and conduct and a breathalyzer reading of .08 or higher supported by an expert explaining the connection between the measure and impaired operation.

In this case, the commonwealth failed to seek an instruction under the "per se" method and admitted percipient witness testimony and the breathalyzer reading without expert testimony. Therefore, the commonwealth failed to prove that the defendant was operating under the influence and those convictions had to be reversed.

Commonwealth v. Maker, 459 Mass. 46 (March 3, 2011)
The Supreme Judicial Court ordered that the Boston Municipal Court vacate the defendant's conviction and sentence for failing to register as a sex offender within two days of his release from incarceration. The court found that the Sex Offender Registry Board does not have the authority to create new registry requirements, and because only SORB's regulation, and not the statute, required a sex offender to register within two days of his release from incarceration, such requirement was invalid.

Commonwealth v. Washington, 459 Mass. 32 (March 3, 2011)
The court affirmed all the defendant's convictions, including one for first degree murder. The court held that, while an officer must have probable cause, not reasonable suspicion, to support a stop or seizure based on a seat belt violation, a civil motor vehicle infraction, the officer did have probable cause in this case that the defendant, a passenger, had violated the seat belt law. Furthermore, the court clarified that in order to impeach a defense alibi witness on his or her failure to come forward earlier with the exculpatory information, the commonwealth must establish three things:

1. The witness knew the defendant's charge in enough detail to know that he or she had exculpatory information;
2. The witness had a reason to provide the information; and
3. The witness knew how to provide the information to law enforcement.

In this case, the court held that the prosecutor met these requirements, albeit barely.

Commonwealth v. Miller, 78 Mass. App. Ct. 860 (March 2, 2011)
In this case, the court affirmed the district court's order allowing the defendant's motion to suppress but on a different legal basis. The officer in this case stopped the defendant's car because its license plate had a black stripe covering the words "Spirit of America." The officer believed that the stripe violated a regulation that prohibits license plate frames from obscuring any word or number on the license plate. The district court allowed the motion to suppress on the basis that the regulation was broader than the governing statute, which only addressed obscuring the numbers on the plate, and the Registry of Motor Vehicles had no authority to expand the scope of the statute to prohibit more conduct. The Appeals Court found that it did not need to rule on the legitimacy of the regulation because the regulation itself only prohibited license frames that obscured contents, not black stripes. Therefore, the officer was mistaken that the black stripe was a violation of the regulation, and because it was a mistake of law that predicated the stop, the fruits of the stop must be suppressed.

Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827 (February 28, 2011)
The Appeals Court answered reported questions from the district court as follows:

1. Returns of service on Chapter 209 orders meets the requirements of the official or public records exception to the hearsay rule; and
2. Returns of service on Chapter 209 orders are not testimonial and can be admitted into evidence without a live witness.

Commonwealth v. Heang, 458 Mass. 827 (February 15, 2011)
While affirming the defendant's convictions, the court set forth guidelines on the admission of testimony by a ballistics expert:

1. Before trial, the examiner must adequately document the findings or observations that support the examiner's ultimate opinion, and this documentary evidence, whether in the form of measurements, notes, sketches, or photographs, shall be provided in discovery, so that defense counsel will have an adequate and informed basis to cross-examine the forensic ballistics expert at trial;
2. Before an opinion is offered at trial, a forensic ballistics expert should explain to the jury the theories and methodologies underlying the field of forensic ballistics. This testimony should include, but is not limited to, explanation of how toolmarks are imparted onto projectiles and cartridge casings; the differences between class, subclass, and individual characteristics of firearms; and the different types of resulting toolmarks that examiners look for and compare. Such testimony should also clearly articulate the differences between class and subclass characteristic toolmarks, which can narrow down the group of weapons that may have fired a particular projectile, and individual characteristic toolmarks, which potentially may permit an opinion that a particular firearm fired a projectile; and
3. In the absence of special circumstances casting doubt on the reliability of an opinion, and once these two things have been done, a forensic ballistics expert may present an expert's opinion of the toolmarks found on projectiles and cartridge casings. Where a qualified expert has identified sufficient individual characteristic toolmarks reasonably to offer an opinion that a particular firearm fired a projectile or cartridge casing recovered as evidence, the expert may offer that opinion to a "reasonable degree of ballistic certainty."