Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Supreme Judicial Court Rules on Criminal Procedure Question in Massachusetts Bank Robbery Case

In the 1990’s, the Supreme Judicial Court of Massachusetts ruled on an integral case in criminal procedure, Commonwealth v. Rosario. The SJC’s ruling in Rosario established a rule that statements that are made by an arrested suspect within six hours of his or her arrest are not subject to suppression due to a delay in his or her arraignment, but that statements made beyond six hours of arrest are inadmissible in evidence unless the arrested suspect has waived his or her right to timely arraignment. Last week, the SJC applied the Rosario ruling to a recent appeals case that it transferred on its own initiative from the Appeals Court to which the Commonwealth had appealed the lower court’s order granting the defendant’s motion to suppress evidence.

The basic facts in Commonwealth v. Fortunato were summarized in the SJC’s opinion. The defendant was indicted for armed robbery and for being a habitual offender after he allegedly robbed a Reading, Massachusetts bank. At that bank, a man, thought to be the defendant, made statements that he had a firearm, and told the teller to give him cash. The man fled the scene but was caught on the bank’s security cameras. A detective named Michael Saunders of the Reading police department was assigned to the case and went to New York where the defendant had recently been released from prison. The defendant was meeting with his New York parole officer when Saunders and a State Trooper informed him that he was a suspect in the bank robbery. Saunders and the State Trooper administered the defendant his Miranda warnings and recorded an interview. The defendant indicated to Saunders and the State Trooper that he would speak with them after he was returned to Massachusetts.

Two days later, Saunders and the State Trooper arrested the defendant in Massachusetts. The defendant was taken to the Reading police department about one hour later. The arresting officers apparently did not inform the defendant of his right to prompt arraignment during his arrest. During booking, which occurred almost two hours later, the defendant was given his Miranda warnings, and the defendant acknowledged in writing that he had received them. When Saunders attempted to interview the defendant, he refused this time, and was returned from the interview room to his holding cell.

Over six hours from his arrest, and about four hours after his booking, the defendant finally asked to speak to Saunders. Saunders went to the defendant’s cell but did not mention anything about the defendant’s right to prompt arraignment, nor did he provide an arraignment waiver form.  Saunders did not re-administer the defendant’s Miranda warnings.  Saunders and the defendant then proceeded to have a conversation regarding the events that took place at the Reading bank, in a hypothetical manner.

The lower court’s motion judge ruled that the exchange that took place between Saunders and the defendant that night in the defendant’s cell was inadmissible into evidence due to the Rosario rule. The lower court judge held that Rosario establishes a bright-line rule that gives the police a safe-harbor for questioning suspects, but that when that safe-harbor expires, statements made by the defendant are inadmissible. The judge did not address the Commonwealth’s argument that the defendant’s statements were “spontaneous and unsolicited” because she believed that the Rosario ruling applied to any statements.

The SJC did not address whether spontaneous and unsolicited statements would be admissible under Rosario, but rather determined that they were inadmissible because they were the fruit of direct police questioning, which falls squarely under Rosario. The SJC ultimately determined that although it was spread out, the over six hours in which the defendant was in police custody constituted a single episode of police questioning, which is protected under the Rosario rule. Therefore, the SJC affirmed the defendant’s motion to suppress the statements that he had made to Saunders.

If you have been charged with violating Massachusetts’ criminal laws, you should immediately seek out the assistance of an experienced criminal attorney. Contact Edward R. Molari, Attorney at Law today for a confidential consultation.

 

Massachusetts Criminal Laws Get Major Update for 17-year-old Defendants

Facing criminal charges is never an easy time in a person’s life, even for those who have experience in the criminal justice system due to a long rap sheet. The confusion, uncertainty, and fear are likely even more pronounced, however, for juveniles who face serious felony charges that could land them in jail for the rest of their lives. While a 17-year-old must wait to vote and buy cigarettes, until recently in Massachusetts, he or she could be charged and sentenced for crimes as an adult. Recent changes to Massachusetts law update criminal procedure in regards to the gray-area that 17-year-old offenders used to face, providing clarity to young offenders and their juvenile delinquency defense attorneys.

 

According to masslive.com, until just this month, 17-year-olds in Massachusetts could be considered adults when facing criminal charges in criminal court. The adult status placed onto a young person extended to all aspects of criminal procedure, including arraignment and sentencing. This meant that 17-year-olds could face the same sentences as adults, and could be placed in adult prisons and jails. It also meant that the chances for rehabilitative and other services provided through the juvenile justice system, were not available for these young but serious criminals.

States throughout the nation have been reviewing criminal procedural laws in regards to 17-year-olds, and many have already passed legislation ending the severe practice of considering them as adults. With 38 states already extending exclusive juvenile jurisdiction to 17-year-olds, Massachusetts became the 39th state to do so on September 18. The legislation, introduced by several legislative members, as well as Massachusetts Governor Deval Patrick, gained bipartisan support and passed this legislative session. Governor Patrick signed the bill into law on Wednesday, noting that he believed it was a great thing that 17-year-olds will no longer be treated as adults when it comes to criminal classification.

Under the new law, if 17-year-olds are convicted of certain violent crimes, a juvenile court judge can still impose an adult sentence. The Milford Massachusetts Patch website notes that juvenile cases—which now include those cases involving 17-year-old defendants—will be heard before a juvenile court judge, and juveniles will be in the custody of the Massachusetts Department of Youth Services. This is a major change to the criminal procedure laws that used to allow 17-year-olds to be heard by criminal court judges, and be sentenced to serve jail time in adult facilities. 17-year-olds, however, don’t get a free pass out of jail, or lighter sentence in some cases. In the case of certain serious and violent crimes, a juvenile can still be sentenced as an adult if the judge imposes an adult sentence.

Although it is clear that 17-year-olds will be treated as 17-year-olds under Massachusetts criminal laws, it is important to note that juvenile charges are seriously prosecuted. A juvenile conviction may result in severe penalties and consequences, and can change a young person’s life forever. If you have been charged with violating Massachusetts criminal laws, you should immediately seek out an experienced criminal defense attorney. Contact the offices of Edward R. Molari today for a confidential consultation.

 

SJC Affirms Firearms Possession Convictions Despite Defendant’s Double Jeopardy Argument

In Massachusetts, firearms offenses are severely prosecuted. The Massachusetts General Laws establish the type of conduct related to firearms that constitute criminal offenses. Under Part IV, Title I, Chapter 269, Section 10(a), Massachusetts law prohibits the possession of a gun outside of a person’s residence or place of business. In a recent case, the number of violations that a defendant can be charged with under GL Chapter 269 Section 10(a) when he uses the same gun within a short time period was tested at the Supreme Judicial Court level.

In Commonwealth v. Horne, decided earlier this week on September 16, among other arguments, the defendant argued that his two convictions for unlicensed carrying of a firearm under G.L. Chapter 269, Section 10A were duplicative and in violation of the double jeopardy clause because they were based on his continuous and uninterrupted possession of the same firearm.

In 2009, the defendant’s t.v. was taken from home in Springfield, Massachusetts. Somehow the defendant learned that a man named Joseph was the thief. The next day, Joseph Darco was at a birthday party at Brittany Perez’s apartment, which was on the same street as the defendant’s home. A guest at the party heard someone shout “I want my TV” sometime after sunset. That person saw the defendant outside holding a gun. Mr. Darco was outside and a confrontation took place. During the confrontation, the defendant showed Mr. Darco the gun. Mr. Darco went back into the house, and then later emerged with a friend and two other party members. There was a commotion outside and Ms. Perez’s mother told the men to take their fight somewhere else. At that point, the defendant went back to his apartment.

By the early morning, around 1:30AM, the party had ended. Ms. Perez was standing inside of the apartment in front of a window. The window was covered with dark curtains and a set of blinds. Ms.

Perez was talking with her mother when she was shot. One of Ms. Perez’s neighbors saw the defendant flee the scene. He was later arrested and police uncovered the gun, which he had attempted to dispose of nearby.

The SJC first noted that defendant’s first charge of possession of a rifle was based on his possession of the rifle when he first confronted Mr. Darco. The second charge was based on his possession of the rifle when he shot at Ms. Perez’s window. The SJC then determined that while courts have held that unlawful possession of a firearm is a single and continuous offense, the Massachusetts statute clearly establishes that the offense is committed when a person possess a gun without a license outside of his or her residence or business, and a defendant stops violating the law when he or she goes back into his or her residence or business, thereby relinquishing possession of the gun. The court deemed that the “unit of prosecution” of the statute, therefore, is the continuous possession of a firearm outside the possessor’s residence or business.

In defendant’s case, two distinct prosecutable crimes resulted from his coming and going from the party. The SJC held that because the defendant had returned to his home after confronting Mr. Darco, and then went back to the apartment with the rifle later that evening, he had committed two separate and distinguishable crimes. Ultimately, the SJC affirmed defendant’s possession charges.

Firearms offenses in Massachusetts are complex and may lead to severe penalties and consequences. If you have been charged with a firearms offense for unlawful possession of a firearm, you should immediately seek out the assistance of an experienced attorney. Contact Edward R. Molari, Attorney at Law today for a confidential consultation. 

 

Supreme Judicial Court Reinstates Co-Defendant’s Charges; Co-Defendant Faces Potential Robbery and Murder Conviction

Criminal charges can lead to severe penalties and consequences, especially when certain aggravating factors were part of the alleged crime. In the heat of the moment, a person might make decisions that ultimately seal his or her fate, especially when it comes to his or her day in court. Aggravating factors that may increase jail time, fines and other penalties include such things as the identity and the age of the victim. For one Massachusetts man, the decision to allegedly assist a robbery, which resulted in the death of a police officer, may seal his fate as an inmate in prison for a long time.

On August 28 of this year, the Massachusetts Supreme Judicial Court ruled on the case of Scott Hanright, a 22-year-old man who allegedly assisted his grandmother’s boyfriend in the jewelry store robbery that resulted in the death of Woburn Police Officer Jack Maguire. According to the Supreme Judicial Court’s opinion, the alleged robbery and murder took place in December of 2010, when Mr. Hanright was only 19-years-old. Mr. Hanright had been living with his grandmother, who was romantically involved with Domenic Cinelli. Mr. Hanright knew that Mr. Cinelli had been imprisoned for over 30 years for robbing jewelry stores. One day, when Mr. Cinelli was giving Mr. Hanright a ride to work, he mentioned the idea of robbing a jewelry counter by using a gun and a mask. Mr. Cinelli told Mr. Hanright that he wanted to commit the robbery during a snowstorm. Prior to the robbery, Mr. Cinelli and Mr. Hanright had driven escape routes for the robbery, and only a few days before the robbery, Mr. Cinelli told Mr. Hanright that he had gone to the store to rob it himself, but then decided against it due to the presence of police officers. Mr. Hanright was aware that Mr. Cinelli did, indeed, own a gun.

After a blizzard had covered the ground in a foot of snow, Mr. Cinelli called Mr. Hanright and asked if he wanted to go for a ride. Mr. Hanright noticed that Mr. Cinelli was wearing a fake beard and a mask, and he became afraid that Mr. Cinelli had a gun. He knew that Mr. Cinelli was going to commit the robbery that evening. Mr. Cinelli instructed Mr. Hanright to wear a ski mask and stand outside and wait for him while he robbed the store, and then the two would escape in the car. Mr. Cinelli collected jewelry from the store’s employees and then exited the store. An officer was responding the call that a robbery was taking place and chased Mr. Cinelli. Officer Maguire also responded to the scene and a gunfight ensued, in which both Mr. Cinelli and Officer Maguire were killed. Mr. Hanright attempted to flee the scene in a casual manner, but was later arrested.

The bostonherald.com reports that the state had appealed Mr. Hanright’s case to the SJC after a lower court judge dismissed four assault charges against Mr. Hanright, as well as a firearms charge. On the appeal, the SJC reinstated the charges, ultimately holding that Mr. Hanright may be held liable as a co-defendant in the killing of Officer Maguire, and other crimes that Mr. Cinelli committed during his attempted escape from the jewelry store. The state will have to prove that Mr. Hanright both participated in the crimes of Mr. Cinelli, and that he intended those crimes. For prosecutors, the SJC’s ruling is a victory. The Boston Globe reports that Mr. Hanright currently faces 22 charges in relation to the robbery and death of Officer Maguire. He is currently being held without bail.

Criminal charges can be very complex, especially when aggravating factors are present. If you have been charged with violating criminal laws, you should immediately seek out the assistance of an experienced attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.

 

Evidence Tampering Releases Spike Crime in Massachusetts

Criminal procedure is a cornerstone of the American criminal justice system. To prove a criminal case at trial, prosecutors must have evidence against a defendant. Prosecutors must prove, based on that evidence, that the defendant committed the crime beyond a reasonable doubt. But what happens when the evidence prosecutors have used in tens of thousands of cases to convict defendants turns out to be tainted? This is a question Massachusetts now must wrestle with after the consequences of a massive evidence tampering scandal are felt even a year after its discovery.

Slate.com reports on the story that impacts every aspect of the Massachusetts criminal justice system. Last year a former state crime lab chemist named Annie Dookhan was discovered to have systematically tampered and mishandled evidence in thousands of cases over a nine-year time period. Ms. Dookhan’s position in the lab was to analyze samples to determine whether illicit drugs were present for drug-related criminal cases. Investigators still do not know why Ms. Dookhan tampered with the evidence. Some commentators point fingers at an overburdened system, where cases are routinely expedited at the expense of precision and accuracy. Whatever the reason, ultimately hundreds of prisoners were freed following the discovery of Ms. Dookhan’s work. In addition, Massachusetts dismissed or declined to prosecute over 1,000 other criminal cases in which evidence had been handled by Ms. Dookhan. In total, Ms. Dookhan tampered with evidence related to the cases of over 40,000 people.

Now a year later, Massachusetts is seeing an interesting pattern in its criminal law cases. It appears that many of those convicts released due to the Dookhan scandal have reoffended and have landed back behind bars. The Boston Globe reports that while the initial scare of a massive crime wave sweeping across Massachusetts did not completely come to fruition, efforts to keep Massachusetts’ streets safe have been hampered by the Dookhan releases. There are several factors in the Dookhan cases that seem to contribute to the current increase in crime, and the potential for crime to spike even higher.

First, as one convict mentions in the Boston Globe report, some of the convicts who were released due to the Dookhan scandal are faced with more difficult pressures in regular life, than they would have faced behind bars. The pressures to get a job and do “the right thing” has likely become overwhelming in many cases, and the lack of money has led many convicts back to the lifestyle which led to their criminal charges in the first place. Secondly, there are still around 40,000 cases in which releases may be contemplated due to evidence tampering by Ms. Dookhan. While initially Massachusetts released around 600 defendants due to tainted evidence, the potential for tens of thousands more to be released back on the streets will likely increase crime in Massachusetts cities. On the other hand, if Massachusetts does not release the inmates that were convicted based on tainted evidence, it would perhaps be an even greater blow to the state’s criminal justice system.

Ultimately, of the 613 inmates that were released, 83 were re-arrested on criminal charges. 16 have been arrested more than once, and 3 have committed murder. Massachusetts law enforcement, lawmakers, prosecutors and criminal defense attorneys have a lot of work ahead of them due to Ms. Dookhan’s evidence tampering.

If you have been charged with violating criminal laws, you should immediately seek out the assistance of an experienced criminal law attorney. Contact Edward R. Molari, Attorney at Law today for a confidential consultation.

Former Waltham Police Chief's Criminal Conviction Demonstrates Collateral Consequences of Criminal Convictions

In the 2009 case Padilla v. Kentucky, the United States Supreme Court ruled on an interesting aspect of criminal law. The petitioner had been a lawful permanent resident in the United States for over 40 years, but faced deportation after he pled guilty to drug-related charges under the advice of his attorney. Mr. Padilla argued that his Sixth Amendment right to effective assistance of counsel was violated, and that he would never had pleaded guilty to the drug charges had he known that he would have faced deportation from the country. The Kentucky Supreme Court disagreed with Mr. Padilla, stating that deportation was a “collateral consequence” of conviction, and therefore not protected under the Sixth Amendment.

The United States Supreme Court reversed the Kentucky Supreme Court’s decision. In short, the Court found that Mr. Padilla had been represented by deficient counsel because counsel did not inform him that pleading guilty to the charges would put him at risk for deportation, which was an issue intimately linked to the penalty of the criminal conviction.

Collateral consequences are just as relevant in criminal cases today as they were in 2009, and are especially critical for those charged with violating criminal laws, and their criminal defense attorneys, to consider when determining criminal defense strategy. A case out of Waltham this month demonstrates how collateral consequences can creep up in any case, and how they can sometimes be worse than the criminal penalties mandated by statute or a judge.

This summer, in July, Thomas LaCroix, former police chief of Waltham, Massachusetts, resigned from his post following his conviction on domestic violence charges. Wickedlocal.com reports that Mayor Jeannette McCarthy removed him from his position following his sentencing on the charges. The incident that gave rise to Mr. LaCroix’s charges, and the collateral consequence of losing his job, occurred last June. Mr. LaCroix was charged with three counts of assault and battery, as well as assault with a dangerous weapon and two counts of threatening to commit a crime in relation to a domestic dispute that he had with his wife, Andrea LaCroix. The Jury found Mr. LaCroix guilty on two of the charges, lowering assault and battery with a dangerous weapon to plain assault and battery, and one other account of assault and battery. Mr. LaCroix was sentenced to 18 months of probation.

The collateral consequences—that is, the indirect and often unforeseen impacts of the conviction—for Mr. LaCroix may be even worse than the 18 months probation, however. The report noted that in addition to being fired from his position as police chief of Waltham, Mr. LaCroix will not be permitted to carry any firearm and cannot have any contact with any of the witnesses who testified against him. The consequences come after Mr. LaCroix was put on administrative leave without pay after the conviction, and with pay after arrest but before conviction.

Waltham is now seeking a new police chief, who will be selected by the mayor, and then confirmed by the City Council by a majority vote. The LaCroix case stands for the proposition that even misdemeanor crimes can have a devastating impact on a convict’s life, because the collateral consequences may be loss of job, dignity, respect, and the constitutional right to carry a firearm.

If you have been charged with violating criminal laws, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari Attorney at Law today for a confidential consultation.

Commonwealth Ruling Sets Limits on Constructive Possession Firearm Law

 

A case decided by the Commonwealth earlier this year in May demonstrates the breadth, and the limits, of Massachusetts firearm laws. The case specifically dealt with Massachusetts General Law chapter 269, section 10(a), which establishes that it is a crime to possess or constructively possess a firearm without having a license to carry such a firearm. It is important to note that constructive possession does not mean actually holding or touching the firearm, it means that the person being charged had knowledge of the firearm’s presence and also had the ability to exercise control over the firearm, and the intent to do so. Simply put, under the law, a person can be charged with a crime punishable by imprisonment if the facts suggest that he or she had a close enough connection to control a firearm, and the intent to do so, even if he or she did not physically have the firearm in his or her hands or on his or her body.

There are limits to the law, however, as demonstrated in Commonwealth v. Eric Romero. In that case, Eric Romero had driven his car to his girlfriend’s house in Waltham, to pick her up. As he waited outside for his girlfriend, her brother came to the vehicle with a firearm, and showed it to Mr. Romero. Mr. Romero looked and it and touched it, and then gave it back to his girlfriend’s brother. Mr. Romero’s girlfriend came out after that, and they left for their night on the town. When Mr. Romero and his girlfriend returned, his girlfriend’s brother and his other brothers were outside and wanted to take a drive in Mr. Romero’s car because it was new. The men took a drive in the car, and then returned to the house and sat in the car listening to music. At that time, Officer Dennis M. Deveney, Jr., a Waltham police officer, observed the vehicle and the occupants sitting in a dimly lit street. Officer Deveney could not see the men, or what they were doing, except for their torsos and the tops of their heads. He noticed that the interior dome light was not on, and he decided to park his vehicle behind them for further observation.

Officer Deveney left his vehicle and walked behind Mr. Romero’s vehicle. When he was about three to five feet behind the vehicle, Officer Deveney saw Mr. Romero’s head move side to side, and the passenger look at something in his hands. Officer Deveney shined his flashlight into the vehicle and asked the men what was going on. The passenger—Mr. Romero’s girlfriend’s brother—dropped the object and Officer Deveney shined the flashlight on it, and saw that it was a black handgun. Ultimately, Mr. Romero was read his Miranda warnings and was arrested. In speaking with Officer Deveney, Mr. Romero said that he knew that his girlfriend’s brother had a firearm, but did not know that he had had it in the car. He also said that he had seen it earlier that day. Tests revealed that the firearm was unloaded, but was operable. Mr. Romero was charged, and later convicted, or carrying a firearm without a licensed under GL chapter 269, section 10(a), under the constructive possession theory. He appealed his conviction.

The Commonwealth determined that Mr. Romero was entitled to a directed verdict of not guilty, based on the facts of his case. The Court first analyzed the law, stating that it required the government to prove (1) that the defendant had knowledge of the firearm’s presence in his vehicle; (2) that he had the ability to exercise control over the weapon; and (3) that he intended to do so. After determining that Mr. Romero’s statement that he had seen the gun earlier that day was admissible, the Court determined whether the evidence was sufficient to convict Mr. Romero under the law.

The Court first noted that presence of the gun in the vehicle alone was not sufficient to convict Mr. Romero. The Court stated that first there needed to be evidence that Mr. Romero knew that the gun was in vehicle. The Court affirmed the Appeals Court on this element because Mr. Romero’s girlfriend’s brother had been openly handling the gun in the front seat of the vehicle, which was directly next to him. The inference that he knew about the weapon, the Court also found, was strengthened by the fact that he admitted that he had seen the weapon earlier that day.

Next the Court turned to Mr. Romero’s ability to control the handgun. The Commonwealth found that Mr. Romero did, in fact, have the ability to control the handgun due to his close proximity to it.

Finally, however, the Court examined the requirement that the evidence sufficiently show that Mr. Romero intended to exercise control and dominion over the firearm. On this element, the Court determined that the evidence was insufficient to convict Mr. Romero because there was only evidence that the gun was in a vehicle that Mr. Romero owned. The Court declined to hold this evidence to be sufficient, noting that even if Mr. Romero was present, and had ownership of the vehicle, there were no other facts showing intent, such as if he were wearing a gun holster. The Court also noted that if it were to hold that Mr. Romero intended to control the gun, based on those facts alone, they would be creating a rule of strict liability for owners and operators or vehicles or premises.

If you have been charged with violating firearms laws, you should immediately seek out the assistance of an experienced attorney. Contact the Edward R. Molari Attorney at Law today for a confidential consultation.

 

Trial of Alleged Mobster Heats Up Gun Law Debate

A Boston federal court case has come under the spotlight for its glimpse into the world of alleged organized crime activity, murder, money laundering and guns. USA Today reports that the trial of alleged mobster James “Whitey” Bulger is coming closer to a resolution after prosecutors called their final witnesses and rested their case on Friday.

 

The criminal charges against Mr. Bulger are extensive—they include murder charges related to 19 killings, extortion and money laundering. Mr. Bulger, whose alleged reign of murder and organized crime spread through Boston for over a quarter-century, will likely see a verdict on those charges in early August.

Despite the intrigue Mr. Bulger’s alleged shootings, stranglings, and slayings bring to the courtroom, his firearms offenses are nothing to be ignored. How Mr. Bulger came into possession of an enormous cache of firearms while bearing the status of one of America’s most wanted, is also worth a close examination.

According to Boston.com, while Mr. Bulger was evading arrest, he was able to purchase and possess at least 15 handguns and a 12-gauge shotgun. He purchased them in a spree-like fashion, in numerous states, and possibly from licensed dealers, gun shows, and private owners alike. Ultimately, the FBI found Mr. Bulger’s large collection of 29 weapons in the walls and bookshelves of an apartment that he and his girlfriend, Catherine Greig, had occupied. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) attempted to track down the origins of the weapons in a comprehensive report.

According to the ATF’s report, Mr. Bulger may have bought firearms from private individuals in Nevada and Utah at gun shows, where loopholes in the laws allow such sellers to sell firearms without conducting background checks or checking for identification. Similarly, Mr. Bulger may have bought his 45-caliber pistol from a private owner who placed an advertisement in a local magazine or newspaper. At least one firearm was purchased from a licensed dealer in Nevada. The owner of that shop maintained that she sold that particular gun to a friend, and not to Mr. Bulger.

Unfortunately, the ATF was largely unable to determine where many of Mr. Bulger’s firearms came from. However, the notion that a federal fugitive was able to purchase and possess so many firearms has brought the gun control debate back to the forefront of the American discussion. Many of the weapons may have been purchased after 1994, which is when the Brady Handgun Violence Protection Act became effective. That Act requires licensed firearms dealers to conduct background checks on prospective gun buyers. However, the Act does not require private sellers to conduct background checks before selling their firearms.

Some commentators believe that even stricter gun control legislation, such as universal background checks, may not have prevented Mr. Bulger from purchasing firearms because he had multiple pieces of identification. In any case, the James “Whitey” Bulger case is bringing attention to the possibility of strengthening gun control laws, especially in the aftermath of the Sandy Hook elementary school tragedy.

Mr. Bulger’s fate is still in the hands of the legal system. If you have been charged with violating criminal laws, you should immediately seek out the assistance of an experienced criminal law attorney. Contact the law offices of Edward R. Molari today for a confidential consultation.

 

Middlesex Appeals Court Sets Aside Verdict of Sex Offender on Accosting or Annoying Charges, Affirms Attempted Kidnapping Charges

 

In October, 2007, a Level 3 sex offender was on the loose in the MIT area of Massachusetts. Wickedlocal.com reported at the time that Joseph D. Sullivan, a 59-year-old homeless man with a 1989 conviction for indecent assault and battery on a person 14 or older, had accosted a 23-year-old MIT student.

The young woman was walking to her dorm room from the MIT campus around 9:45p.m., when she noticed that the driver of a green station wagon had pulled over onto the street in front of her. The driver, who was later identified as Mr. Sullivan, rolled down the passenger side window of the station wagon, and called out to her that she looked tired and that she should come over to the vehicle. The MIT student stated that she had ignored Mr. Sullivan’s attempt to get her attention, and, at that point, he got out of the station wagon and moved to the front of it. When the student began to walk quickly away from him, Mr. Sullivan ran to the back of the car and wedged the young woman between him and a building. Mr. Sullivan then repeatedly told the student to get into his car, and she walked by him.

Undeterred, Mr. Sullivan hopped back into the station wagon and made a U-turn, continuing to follow her. He stopped the car on another street and jumped out in front of the student, again blocking her so that she was wedged between his body and a building. He again asked her to get in his car and talk with him. The student yelled out Mr. Sullivan’s license plate number, which caused him to finally back away, and she moved away from him again. Mr. Sullivan then followed the student on foot, but finally left her alone as she repeatedly yelled out his license plate number. He then got back into the station wagon and drove away.  

Mr. Sullivan was ultimately arrested and convicted of attempted kidnapping and of accosting or annoying a person of the opposite sex . He moved to vacate the attempted kidnapping charges in 2010, which was denied, and then appealed his case to the Middlesex Appeals Court. The Appeal was decided on July 10 of this year.

On appeal, Mr. Sullivan argued that the Commonwealth had presented insufficient evidence on the attempted kidnapping charge, and that he had insufficient assistance of counsel, and that the lower court had wrongly denied his motion to vacate. More interesting, however, was Mr. Sullivan’s contention that the Commonwealth had also provided insufficient evidence for a conviction on the charge of accosting or annoying a person of the opposite sex. The Appeals Court affirmed the decisions of the lower courts on all of Mr. Sullivan’s arguments except for this last remaining issue.

The Appeals Court first noted that in order for a person to have accosted or annoyed a person of the opposite sex, the conduct must have been legally offensive and disorderly. The Appeals Court declined to define disorderly conduct, because it determined that Mr. Sullivan’s conduct did not reach the threshold required for offensive conduct. Under the law, it opined, offensive conduct is that which causes “displeasure, anger or resentment” and that is “repugnant to the prevailing sense of what is decent or moral.” That is, the conduct must be sexually explicit in some way. The Court determined that while Mr. Sullivan’s conduct was offensive in a generic sense, the evidence was insufficient to prove that it contained sexual content. Therefore, the Appeals Court reversed the indictment on the charge of accosting or annoying a person of the opposite sex, and set aside the verdict.

If you have been charged with violating criminal laws in Massachusetts, you should immediately contact an experienced attorney. Contact the Law Offices of Edward R. Molari  today at for a confidential consultation.

 

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Supreme Judicial Court Rules on Defense of License in Joint Venture Firearms Offense Cases

 

In October of 2007, Delanie Humphries carried out an ambush attack on a man in Worcester, Massachusetts. Yesterday, Massachusetts’ highest court, the Supreme Judicial Court, ruled on Mr. Humphries’ appeal of his 2010 conviction of charges in connection with the attack. The Supreme Judicial Court’s rulings are a notable development in Massachusetts’ law on firearms offenses, as well as criminal law in general.

The facts that led to Mr. Humphries’ arrest occurred on October 26, 2007. According to the telegram.com, victims Luis Acevedo and Andrew P. Robinson, had attended a birthday party for Shaonte Bottom and Mr. Robinson’s 4-year-old daughter. At the party, a guest named Monique Kumah, who is also the girlfriend of Mr. Humphries, was asked to leave. Sometime later, Mr. Humphries arrived near the house, and an altercation began between he and Mr. Acevedo. At some point during the altercation, Mr. Humphries’s called out the words “Bobo,” and Mr. Humphries’ cousin came from behind a tree with a handgun, opening fire.

Mr. Humphries, Mr. Acevedo, and the shooter scattered, and Mr. Acevedo, now joined by Mr. Robinson, got into a vehicle parked nearby. Shots were fired at the vehicle, but no one was injured.

According to the recent Supreme Judicial Court Opinion in Commonwealth v. Delanie Humphries, Mr. Humphries was ultimately found guilty by a jury on the counts of carrying a firearm without a license, carrying a loaded firearm without a license, and possession of ammunition without a firearm identification card. The charges against him were related to the theory of joint venture liability, under which a joint venturer is deemed liable for the underlying offense, if his coventurer actually commits the crime. Thus, in this case, Mr. Humphries did not actually possess the firearm that was used in the shooting, but he was found guilty under the joint venture theory.

Mr. Humphries argued several issues on appeal, including that his counsel had failed to introduce evidence of the car’s condition before the shooting, and that the judge’s instruction to the jury was flawed. However, the primary issue Mr. Humphries raised related to the firearms offense. In cases involving one defendant who is charged with a firearm offense, the defendant can raise the fact that he or she was properly licensed as a defense. Under the joint venture theory of liability, Mr. Humphries was convicted of the firearms offenses because no evidence was introduced that Mr. Holley was licensed to carry a firearm and possess ammunition. Mr. Humphries argued on appeal that the Commonwealth still should have had the burden to prove that Mr. Holley was not properly licensed beyond a reasonable doubt in order to establish Mr. Humphries’ liability as a coventurer.

The SJC opined that the issue raised by Mr. Humphries was a novel one, and first looked at precedent regarding the defense of license in firearms cases. The SJC determined that in one-defendant cases, the defendant must produce some evidence that he was actually licensed to carry a firearm, or possess ammunition, and, after that, the burden shifts to the prosecution to prove beyond a reasonable doubt that he is not licensed. The reason that the defendant must first provide that evidence is because whether he has a license is within his own knowledge, and not easily ascertainable by the prosecution.

The situation is different in the case of a firearms offense in the joint venture context because neither the coventurer defendant, nor the prosecution, is in a position to know whether the person who actually committed the offense was licensed or not. Thus, the SJC ultimately ruled that in such a case, the coventurer defendant need only raise the defense before the burden shifts to the prosecution. However, in the case of Mr. Humphries, defense of license was not raised in a timely manner, and the SJC ultimately affirmed the lower court’s ruling on his firearms offenses.

The case of Mr. Humphries illustrates the complex and constantly evolving gun laws of Massachusetts. If you have been charged with a firearms offense in Massachusetts, you should immediately seek out the assistance of an experienced defense attorney. Call the law offices of Edward R. Molari today at for a confidential consultation.

 

 

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