Massachusetts Legal Developments Blog

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.

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. 

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.

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.