Massachusetts Legal Developments Blog

Massachusetts Legal Developments Blog

Massachusetts High Court Narrows Scope of Felony-Murder

Under Massachusetts law, a person can be charged with “felony murder” if someone is killed during the commission of a felony. Felony murder is a first-degree murder in the Commonwealth, and all coconspirators who helped with the commission of the felony can be charged with felony-murder. That means that if four people agree to rob a bank in Boston and then, while robbing the bank, one of the robbers fatally shoots a bank teller, then all four of the robbers will be charged with felony murder.

A new ruling by the Supreme Judicial Court of Massachusetts, the highest court in the Commonwealth, however, appears to narrow that long-held rule on imputed liability. In Commonwealth vs. Brown, the defendant Brown helped plan a 2009 home invasion by providing guns and sweatshirts for his co-conspirators to conceal their identities. While Brown knew the home invasion was going to happen and even assisted in perpetuating the crime, he was not actually present at the home invasion where one of his co-conspirators killed someone in the house during the commission of the crime.

The Massachusetts criminal defense lawyers representing Brown argued that second-degree murder would be more appropriate for a participant “on the ‘remote outer fringes’ of an armed home invasion.” Under Massachusetts criminal law, a conviction for first-degree murder carries the maximum penalty of life imprisonment without the possibility of parole. Second-degree murder, on the other hand, carries the possibility of parole after only 15 years of incarceration. The Supreme Judicial Court of Massachusetts agreed with the criminal defense lawyers representing Brown and reduced his charges from first-degree murder to second-degree murder in the interest of justice.

As noted by the Boston Globe, this is the first time Massachusetts has changed its felony murder law since the Civil War. Going forward, prosecutors seeking a first-degree murder conviction for felony murder will need to prove beyond a reasonable doubt that the co-conspirator intended to kill someone or knew his or her actions would likely result in the death of another person. The majority of the Court held that its holding in the felony-murder case will not be retroactive and will only apply “in trials that commence after the date of the opinion in this case.”

The ruling by the highest court in the Commonwealth will have implications for criminal law and anyone accused of felony-murder – especially when the co-conspirator was not the shooter, or the death was an unforeseeable and unintended consequence of the felony. As noted by the Supreme Judicial Court, in reforming the felony murder law, Massachusetts joins Michigan, Hawaii, and Kentucky in reforming the common law crime.

The decision marks a landmark ruling that changes a law that has not been altered in centuries and highlights the importance of a Massachusetts criminal defense attorney who stays up-to-date with recent developments in criminal law. If you have been charged with a crime, then you should contact a criminal law attorney in Massachusetts who is knowledgeable and up-to-date on Massachusetts criminal law to ensure you receive the best defense possible.

Massachusetts Supreme Judicial Court: Breathalyzer Admissible Evidence in OUI Cases

Last month, the Massachusetts Supreme Judicial Court (SJC) affirmed the admissibility of breathalyzer tests in driving while impaired cases. Breathalyzers are used to measure the Blood Alcohol Content (BAC) of a person and are routinely administered in roadside tests across the country where the police suspect a driver may be impaired by alcohol.

Like all other states, Massachusetts does not allow impaired drivers on the Commonwealth’s roads and sets the BAC cutoff at 0.08%. While it is ultimately up to a court to convict a person of Operating Under the Influence (OUI) in the Commonwealth, breathalyzers are typically treated as conclusive evidence of intoxication by most juries. The observations of the arresting officers and the results of a field sobriety test are other forms of evidence generally used in OUI cases.

In this particular case, Commonwealth v. Camblin, the issue before the Court dealt with a new type of breathalyzer, the Alcotest. The defendant in this case had been convicted by a jury of Operating Under the Influence, and part of the evidence used against him in court included the results of the Alcotest breathalyzer. Because the Alcotest utilizes new technology, the defendant and his Massachusetts criminal defense attorney appealed the lower court’s decision, arguing that the technology had not been rigorously tested enough to be deemed reliable in a Massachusetts court.  

Different from other breathalyzers, the Alcotest has a “dual sensor” used to measure a driver’s BAC. The two sensors utilize “infrared spectroscopy and electrochemical fuel cell sampling to analyze alcohol content in a breath sample,” according to the SJC. Both sensors independently test the driver’s BAC and if there is a significant deviation between the two readings, the breathalyzer will abort the test and not provide any BAC result. The technology used in this dual-sensor breathalyzer is new, and the defendant in the case argued that because the technology was new, it was untested, and therefore should not have been admissible against him in his OUI case.

The SJC disagreed with the arguments advanced by the Massachusetts criminal defense attorney representing Camblin. The SJC held that the Alcotest met the “specific performance criteria” for evidence to be admissible in court. First, the Alcotest is approved by the National Highway Traffic Safety Administration which is responsible for certifying breathalyzers in Massachusetts. Further, the SJC noted, the Alcotest is certified by European regulators which have even more exacting requirements for breathalyzers than their American counterpart.

Contact a Massachusetts Lawyer Specializing in Operating Under the Influence Laws

Operating Under the Influence is a serious crime in Massachusetts. A driver convicted of an OUI can lose his or her license, pay a hefty fine, and even serve time in jail, depending on the severity of the crime. If you have been charged with Operating Under the Influence in the Commonwealth, then you should reach out to a criminal defense attorney in Massachusetts with knowledge of OUI laws and experience in litigating impaired driving cases can help you understand your legal options.



Massachusetts Police Cannot Detain Immigrants Without Charges

The Massachusetts Supreme Judicial Court (SJC) recently ruled that police officers in the Commonwealth cannot detain a person in the state solely because of immigration status. In a unanimous ruling by the SJC, police officers in the Bay State are no longer able to legally comply with Immigration and Customs Enforcement (ICE) detainers. An ICE detainer is a request by federal authorities that asks local law enforcement officials to “hold” a person if the charges against him or her are dropped because the federal government believes the person may be violating the country’s immigration laws.  

In this Lunn v. Commonwealth, Sreynoun Lunn, a Cambodian without a legal right to be in the United States, was arrested for robbery in Massachusetts. At trial, the judge dismissed the robbery charges against Lunn because the prosecution was not sufficiently prepared to argue the case. However, once the charges were dismissed against him, Lunn was not released by the police. Instead, the police held Lunn for several hours at the request of ICE, who wanted to take him into custody for violating federal immigration laws. The SJC held that this was illegal under Massachusetts law. In the simplest explanation, Massachusetts does not provide its police officers the authority to hold someone who does not have any charges pending for the sole purpose of complying with an ICE detainer. Further, the SJC noted, the ICE detainer is merely a request, not a legal obligation.

Moreover, because immigration is a civil law, then violating the law is not even a crime. “Unlawful presence” is a civil infraction, so in the case of ICE detainers, the police are essentially being asked by the federal government to detain someone without an arrest warrant for a violation of the law that is not even a crime. Therefore, voluntary compliance with these ICE detainer requests is not permissible under Massachusetts law, the SJC ruled. Or, in the words of the highest court in the Bay State, “Massachusetts law provides no authority for Massachusetts court officers to arrest and hold an individual solely on the basis of a Federal civil immigration detainer, beyond the time that the individual would otherwise be entitled to be released from State custody.”

Going forward, the police in Massachusetts will not be able to detain someone for violating federal immigration laws if there are no Massachusetts criminal charges pending against them. Critics and advocates alike have claimed the SJC’s new ruling has the effect of making the entire Commonwealth a “sanctuary state,” meaning that the local authorities will not be amenable to enforcing federal immigration laws.

Reach Out to a Local Attorney Today

The recent case by the SJC demonstrates that having an attorney who fights for the rights of his or her clients, even if that means taking a case to the highest Court in the Commonwealth, is invaluable. This case also demonstrates the necessity of a criminal defense attorney in Massachusetts staying up-to-date on all recent developments in the law. If you believe that you have been wrongly arrested or wrongly detained by the police in Massachusetts, then you should speak with a Massachusetts criminal law attorney today.

South Boston Gun and Drug Arrest Based on Ski Mask in Winter

(South) Boston, You're My Home!

I spent several years living just blocks away from where BPD found two people driving in a car around the D-Street projects in Southie with a gun, some marijuana and evidence of drug sales, and $2,200 in cash.

From the BPD Twitter Page:

  • Over the course of two and half hours, the officers’ attention was drawn to a red motor vehicle that appeared to be circling the streets in the vicinity of D Street. After observing the vehicle for a third time and a pedestrian’s suspicious reaction to the vehicle as it passed, officers decided to conduct a stop. When the officers made contact with the two occupants, they observed a rolled-up ski mask in the operator’s pocket and vodka nips in the passenger compartment of the vehicle. When both the operator and passenger continued to nervously glance at a backpack in the backseat of the car, officers feared they may be armed and conducted a frisk of both occupants and the passenger compartment. When the officers patted the backpack, they felt the shape of what they believed to be a firearm inside.

So, according to BPD, what's going on here is that Drug Control Unit officers pull this car over because it passed the same block three times, in a housing project.  Back in the day, when I lived in South Boston, if I left my house to pick up take-out or a six pack, I could easily have driven past the same spot twice in 20 minutes. These police saw this car pass the same spot over the course of two and a half hours!  Seriously.  Okay, so according to the article, based on that they pull the car over and talk to the occupants.  They see a ski mask in the guy's pocket and nip bottles on the floor. 


Please let the record reflect that we are currently in a record cold snap with temperatures below zero. I wore two down jackets this morning just to take the dog out. And nip bottles on the floor? Is the drug control unit really worried about someone having open containers of alcohol in their car?

Well, apparently they are worried enough about it to conclude that these circumstances must mean the people in the car are armed, because the next thing they do is 'pat down' the backpack.  The police have the right to pat down the bag if they have reason to believe that, during the course of a lawful stop (which this was not) that the people they are interacting with are (a) armed, and (b) dangerous. In this case they had neither, and certainly not both.  There is nothing at all about a ski mask and some nip bottles in the middle of winter that would make a reasonable person think they would find a weapon. 

It's entirely possible the police are covering up a confidential informant that told them they would find a gun in the bag, so they strain to come up with legal justification for the stop and search. It is also possible they pulled the same routine with a dozen other unfortunate residents of the D-Street projects until they finally got something, and only wrote up an article on the one that payed off. We will never know.

Massachusetts OUI Enforcement Being Stepped Up with Roadblocks During the Holidays

The Massachusetts State Police have announced a series of OUI checkpoint roadblocks for the latter part of December. 

Generally, during a roadblock OUI checkpoint, police will stop every car according to a set pattern, and interview the driver.  If, during that interview, officers observe signs that the person has consumed alcohol, the driver is referred to secondary screening, where officers conduct field sobriety testing to determine if the operator is under the influence. 

The police are required to publicize the existence of the roadblock ahead of time, and must comply with a series of regulations which apply in addition to the ordinary rules governing OUI enforcement.  The compliance with the rules generally covering OUI cases, as well as the additional rules for OUI roadblocks can be challenged in court.

OUI checkpoints are designed to target places and times where there are a high frequency of OUI arrests.  For that reason, presumably, several of the checkpoints being announced are on Friday nights and Saturday mornings, including Friday the 22nd through 23rd in Norfolk County (probably in Foxboro).

As you can imagine, police are not inclined to be charitable when conducting an OUI checkpoint.  Don't let an OUI arrest ruin the weekend. Stay safe, use a designated driver, or Uber.

See more about Massachusetts Drunk Driving (OUI) Defense

If you, or someone you know, has been charged with an OUI, contact us for a free consultation.

Decades-Old Felony Murder Law Changed in the Commonwealth

The Massachusetts Supreme Judicial Court (SJC) has changed the longstanding felony murder law in the Commonwealth. The Felony Murder Law is a rule that allows a person to be charged with first-degree murder when he or she kills someone, even accidentally. Furthermore, any person involved in the death, even if not the actual killer, can be charged with first-degree murder. The felony murder rule can be applied to certain violent felonies, such as:

  • Robbery: The crime of theft/larceny of money or property accompanied by physical force or threat against the victim. Often robbery attempts are committed with a deadly weapon.

  • Rape: The crime of rape is nonconsensual sexual intercourse with an individual using physical force, a threat of injury, or fear to the victim.

  • Kidnapping: The crime of kidnapping involves taking another person from one location to another location against his or her will or holding a person in a controlled environment.

  • Arson: The crime of arson involves the intentional and malicious act of burning any type of property including forest land.

Until now, the intent to commit a felony was all that was needed to establish malice. Under Massachusetts law, anyone convicted of first-degree murder is automatically sentenced to life in prison without the possibility of parole.

The new SJC ruling on the felony murder law creates changes to the decades-old rule. With the changes in the law, defendants involved in fatal crimes can no longer be convicted of first-degree murder unless the prosecution can prove:

  • The defendant intended to kill

  • The defendant intended to cause grievous bodily harm

  • The defendant knew the actions would result in death

The rule impacts accomplices of fatal crimes, such as the getaway driver in a bank robbery, who may have been a part of the crime but not the person who committed the actual murder with a firearm.

The SJC established the new ruling in the case of Timothy Brown of Lowell, who was convicted in 2013 of first-degree murder. He supplied a pistol and hooded sweatshirts to the killers involved in a home invasion that resulted in the death of two brothers during a robbery attempt in 2009. Brown was not present during the fatal encounter. The SJC changed his first-degree murder conviction to a verdict of second-degree murder. Brown is now eligible for parole.

If you have been charged with a violent crime that could result in a felony conviction or want to know how the changes in the felony murder law affect your case, speak with a criminal defense attorney. Boston Criminal Defense Attorney, Edward Molari can provide you with legal advice that may help reduce the punishment or lessen the charge. He cares about your situation and provides personalized legal services in every case. Contact Attorney, Edward Molari at 617-942-1532 for a free consultation.


Changes for Marijuana Impairment Cases

The highest court in Massachusetts ruled that field sobriety tests are not a reliable measure for indicating marijuana-induced impairment of Commonwealth citizens. In the past, there has been an ongoing debate among concerned citizens and scientific professionals whether field sobriety tests can prove marijuana impairment. The Massachusetts Supreme Judicial Court (SJC) has settled the debate in the Commonwealth.

Field sobriety tests (FSTs) are generally administered by law enforcement when they suspect a driver has been operating a motor vehicle under the influence of alcohol or other drugs. FSTs typically include:

  • Horizontal Gaze Nystagmus Test: The driver is asked to step outside of the vehicle. The police officer takes a penlight and shines the light in front of the driver's eyes. The driver is asked to look at the light as it moves. An involuntary twitch, called a nystagmus, occurs when the person looks sideways at an angle more than 45 degrees that triggers peripheral vision. Persons with a high alcohol content will twitch when the light is held at less than 45 degrees.

  • Walk and Turn Test: In a walk-and-turn test, an officer will instruct a person to take nine steps in a straight line while making the nine steps in a heel-to-toe fashion. After the ninth step, the individual is asked to turn on one foot and walk in the opposite direction in a heel-to-toe fashion. During this exercise, the officer is determining if the individual exemplifies the characteristics of driving under the influence of alcohol.

  • One Leg Stand Test: The officer will make a driver stand on one foot about six inches off the ground with one's toes pointed. With a perfect balance, a person must count for 30 seconds with arms by his or her side. Later, the driver will be asked to look down at his or her feet. During this test, the officer is looking for signs of drugs or alcohol impairment. A failure of this test may result in an arrest for OUI/DUI. If the driver is arrested, he or she should contact a criminal defense attorney for legal advice.

While these tests may work in determining the alcohol content of an impaired person, there is no concrete scientific agreement on whether these types of measures can accurately determine marijuana intoxication.

The research on the efficacy of FSTs to measure marijuana impairment has mixed reviews and outcomes. Some tests reveal FSTs can accurately measure marijuana consumption and impairment, while others are inconclusive. In the end, it is determined in Massachusetts by the SJC that FSTs are better suited for judging alcohol impairment and not marijuana intoxication.

Get Legal Help Today

If you have been charged with an OUI/DUI or drug offense, speak with a criminal defense attorney who can explain how these changes in determining drug impairment will impact your case. Contact a criminal defense attorney, who understands all aspects of the new ruling and can develop a strong defense strategy that will help your case. Boston Criminal Defense Attorney, Edward Molari can provide you with legal advice that may help reduce the punishment or lessen the charge. He cares about your situation and provides personalized legal services in every case.  Contact Attorney, Edward Molari at 617-942-1532 for a free consultation.

Unlawful Stop, Two-For-One Edition

According to an article posted by the Boston Police Youth Violence Strike Force:

On September 29, 2017, members of the Youth Violence Strike Force were on directed patrol in the area of Mercer Street in South Boston due to recent past shots fired and firearm related calls for service there. In particular, officers were given the description of a male and female on a scooter that had been seen fleeing the scene of one of the past incidents. As the officers conducted surveillance, they observed a male and a female riding together on a scooter fitting the suspects’ descriptions. Officers followed the scooter out of Southie toward Dorchester and, after observing several red light violations, attempted to conduct a stop of the vehicle and its occupants. The operator of the scooter refused to stop and ultimately made good his escape.

The officers returned to the area of Mercer Street and at about 10:35 PM again observed the same suspects on the scooter. The officers again attempted to make a stop of the vehicle to no avail, until the vehicle traveled down Hillsboro Street, a dead end. The male dropped the scooter and fled on foot. During the foot pursuit, the officer observed the suspect reach into his waistband, pull out a firearm, and discard it near a fence on Hillsboro Street. The officers were eventually able to catch up to the suspect, and after a brief physical struggle, placed him into custody. Officers retraced their steps to the location where they observed the suspect discard the firearm and located a loaded .40 caliber Glock 22. Further investigation also revealed that the scooter the suspects had been riding was reported stolen earlier that day.

The driver of the scooter was charged with Failure to Stop for a Police Officer, Receiving Stolen Motor Vehicle, Unlawful Possession of a Firearm, Unlawful Possession of Ammunition, and Unlawfully Carrying a Loaded Firearm. 

Sometimes it seems like the Youth Violence Strike Force in Boston goes out of their way to make illegal stops.  In this case, they stopped two people for no reason other than the fact that they were riding a scooter in the wrong part of town. Twice. They don't say the two people looked like the past shooters, or that the scooter itself was involved in the past shooting, and they even go out of their way to point out that they didn't know the scooter was stolen until after they stopped its driver and passenger ("Further investigation also revealed that the scooter the suspects had been riding was reported stolen"). Yes, the article says they saw the same two people leave the scene and then return, but there's no evidence it was the same people in both cases except the officer's testimony.

People of South Boston, you all just lost your right to ride a scooter. Direct your complaints to BPD.


The First Complaint Doctrine

Witness testimonies play a significant role in many court cases. They play an even bigger role in cases involving rape and other sexual assault crimes in the Commonwealth of Massachusetts. Massachusetts practices the first complaint doctrine.

The first complaint doctrine allows a judge to admit testimony from the first person (complaint witness) to whom a victim told or reported the incident. The testimony of the first person the victim told about the crime can help the jury learn the real facts relating to the sexual assault.

The testimony of the first complaint witness can shed light on the behavior of the victim following the alleged incident, the place or occurrence of the sexual assault, key circumstances surrounding the case, and other observations that are pertinent to the case. The recipient of the victim’s first report of a sexual assault or rape can have a great influence on the jury and the outcome of the trial. A criminal defense attorney can explain the first complaint doctrine and how it can impact your case.

The purpose of the first complaint doctrine is to determine the accuracy, credibility, and reliability of an alleged rape victim' s testimony in a court. Information gathered from a first complaint witness provides evidence for specific and limited purposes, which include:

  • Establishing the circumstances by which the alleged victim first revealed or reported the incident

  • Determining whether the testimony of the first person told about the sexual assault aligns with the alleged victim’s account of the crime.  

In 2005, the first complaint doctrine replaced the fresh complaint rule that allowed multiple persons to testify at a trial regarding what the victim had told them about the crime. However, if there had been a long time between the incident and the revelation of the sexual assault to the witness, the court would limit or exclude the witness testimony because the statements were not fresh or recent enough to be reliable.

The Massachusetts Supreme Judicial Court verdict in the case of the Commonwealth vs. King  ended the fresh complaint rule and ushered in the first complaint doctrine, which only allows the prosecution to call the first witness or person to whom the victim confided the sexual assault or rape. Under the first complaint doctrine, the length of time between the incident and its disclosure to another person does not matter. The first witness only can testify to support the victim's credibility and no other factors relating to the case. The prosecution is prohibited from calling other witnesses who were made aware of the incident at a subsequent time.

In recent appeals concerning a sexual assault, the Massachusetts Appeals Court has heard from defendants questioning whether the first complaint testimonies were admissible in court or flawed in some manner. An appellate court will determine whether the first complaint testimony created a miscarriage of justice that violates the rights of the defendant.

One case, is the Commonwealth vs. Gaudy Asenjo. The Supreme Judicial Court granted an application for direct appellate review of this case and cited errors. In 2015, the defendant, Gaudy Asenjo was convicted by a Superior Court jury of three counts of aggravated rape of a child. According to the appeal's report, the defendants appeal was based on:

claiming that the judge erred in (1) interpreting the first complaint rule to require the disclosure of the perpetrator's identity to the first complaint witness and allowing a police officer to testify as the first complaint witness; (2) allowing the complainant to testify to multiple disclosures of the sexual assault in violation of Commonwealth v. King, 445 Mass. 217(2005), cert. denied, 546 U.S. 1216 (2006), and its progeny; and (3) precluding expert testimony in support of her defense based on battered woman syndrome. We conclude that the essential feature of first complaint evidence is the report of a sexual assault, not the identity of the perpetrator. Consequently, the admission of the police officer's testimony as first complaint evidence was error, which, after viewing the evidence as a whole was prejudicial. We conclude also that the judge erred.

This judgment of the Supreme Judicial Court reversed the defendant’s convictions for three counts of aggravated rape of a child.

If you are facing a rape or sexual assault charge, it is important to consult with a criminal defense attorney who can catch errors made by the prosecution or presiding judge so your rights are protected under the Massachusetts Law. Contact a criminal defense attorney, who understands all aspects of the first complaint doctrine and can develop a strong defense strategy that will help your case. Boston Criminal Defense Attorney, Edward Molari can provide you with legal advice that may help reduce the punishment or lessen the charge. He cares about your situation and provides personalized legal services in every case. Contact Attorney, Edward Molari at 617-942-1532 for a free consultation.


Words can Kill

Words are quite powerful and they can have detrimental consequences in a courtroom, at least in the Commonwealth of Massachusetts. A Bristol County Juvenile Court Judge has found a Massachusetts woman guilty of involuntary manslaughter for encouraging her boyfriend via text messaging to commit suicide. The woman, Michelle Carter, was sentenced to 15 months in jail for coercing her boyfriend, Conrad Ray, to kill himself. She could have received up to 20 years in prison, but the judge showed leniency. She will be on probation for five years.

Carter does not have to be on probation until all of her appeals have been exhausted. Moreover, she will continue on her pretrial release until a decision at the appellate level is made. However, if her appeals fail, she will be ordered to serve her jail sentence and probation. Is this too easy and lenient for the crime or did she, in fact, commit a crime at all? These are the questions that are swirling around legal conversations of criminal defense attorneys and legal experts about the verdict and sentence.

The prosecution in this case based their theory on the fact that words can kill. Carter literally killed her boyfriend with her own words. Some legal experts say the notion that words can kill is quite debatable and controversial since criminal law usually punishes actions, not words. Others feel the conviction goes beyond the boundaries of criminal law and violates an individual's freedom of speech that is not only protected by the Massachusetts Constitution but also the U.S. Constitution.

This verdict can set a new legal precedent by which one's words, and just not their actions can cause death or murder. Does Massachusetts need to create a specific law that criminalizes those who urge or coerce others to commit suicide?

At present, there are no laws in the Commonwealth that make it a crime to encourage or persuade another person to commit suicide. This is why some legal experts say there should not have been a sentencing or charge against Carter in this particular case.

The defense had claimed the defendant was not in a healthy mental state at the time she persuaded her boyfriend to commit suicide. They said she was a troubled teen with a history of depression and was being treated with Celexa that may have side effects that include irrational thinking and behavior. Perhaps their defenses made the judge more lenient in his final decision regarding the fate of Michelle Carter.

Whenever you are facing a criminal offense, you need to find a criminal defense lawyer to protect your rights and create defenses to lessen the charges against you. Contact a criminal defense attorney who can develop a strategy that will help your case. Boston Criminal Defense Attorney,Edward Molari can provide you with legal advice that may help reduce the punishment or lessen the charge. He cares about your situation and provides personalized legal services in every case.  Contact Attorney Edward Molari at 617-942-1532 for a free consultation.