Doe v. Sex Offender Registry Board (Lawyers Weekly No. 11-030-15)
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 291554 vs. SEX OFFENDER REGISTRY BOARD. No. 13-P-1703. APPEALS COURT OF MASSACHUSETTS November 13, 2014, Argued March 27, 2015, Decided PRIOR-HISTORY: Suffolk. Civil action commenced in the Superior Court Department on April 13, 2011. The case was heard by Frances A. McIntyre , J., on a motion for judgment on the pleadings. HEADNOTES-1 Sex Offender. Sex Offender Registration and Community Notification Act. Evidence, Sex offender, Expert opinion. Witness, Expert. COUNSEL: Xiomara M. Hernández for the plaintiff. Thomas M. Doyle for the defendant. JUDGES: Present: Green, Wolohojian, & Blake, JJ. WOLOHOJIAN, J., dissenting. OPINION BY: BLAKE OPINION Blake, J. The plaintiff, John Doe, challenges his final classification by the Sex Offender Registry Board (board) as a level three sex offender. He claims that the board’s decision was not supported by substantial evidence, primarily because the governing offense involved no physical contact or sexual component and, apart from that offense, Doe had no prior criminal record. We affirm. Background. We summarize the facts found by the hearing examiner,1 supplemented by additional undisputed facts from the record. In October of 2009, Doe responded to a post on a social networking Web site from the twelve year old female victim seeking assistance running away from home. He initiated a series of online communications with her over a period of thirty or so days. In his electronic mail messages (e-mails) to the victim, Doe misrepresented his age as being twenty-five, rather than his actual age of thirty-two. Eventually, Doe arranged to travel from his home State of Virginia to Massachusetts, on a date certain, to pick up the victim, intending to return to Virginia with her by train, subway, and bus. To that end, he purchased one bus ticket in his name and one in that of the victim. He also instructed the victim to bring some money and her Social Security card. FOOTNOTES 1 An evidentiary hearing was held on February 7, 2011. On the morning of the planned meeting, the victim’s mother noticed that the victim was acting suspiciously. The mother’s boyfriend then searched the victim’s computer and discovered her communications with Doe. The police were notified, and after interviewing the victim, they arrested Doe at the train station, shortly before the prearranged meeting. Upon questioning, Doe told the police that he knew the victim was twelve years old; that he planned “to kiss her, lick her, and suck on” her when they returned to Virginia; that he would take photographs of her and post them on a Web site; that he intended to get her to love him; and that he would marry her and have babies with her. Doe was charged and found guilty of enticement of a child under the age of sixteen (enticement) and attempted kidnapping of a child. He was sentenced to two […]
Commonwealth v. Almele (Lawyers Weekly No. 11-031-15)
COMMONWEALTH vs. MARWAN M. ALMELE. No. 13-P-1351. APPEALS COURT OF MASSACHUSETTS December 9, 2014, Argued March 27, 2015, Decided PRIOR-HISTORY: Bristol. Complaint received and sworn to in the New Bedford Division of the District Court Department on October 22, 2010. The case was tried before Christopher D. Welch, J. HEADNOTES-1 Controlled Substances. Joint Enterprise. Evidence, Joint enterprise, Expert opinion. Practice, Criminal, Objection, Motion in limine. Witness, Expert. COUNSEL: Patrick A. Michaud for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. JUDGES: Present: Cohen, Fecteau, & Massing, JJ. OPINION BY: FECTEAU OPINION Fecteau, J. The defendant appeals from his convictions, following a jury trial in the District Court, of unlawful possession of class B and C controlled substances with intent to distribute, in violation of G. L. c. 94C, §§ 32A(a) and 32B(a), respectively, and possession of a class B controlled substance, in violation of G. L. c. 94C, § 34.1 He contends that the judge erred in permitting statements of a purported coventurer to be admitted against him without sufficient evidence, independent of those statements, of the existence of such a joint venture or conspiracy of which he was a part. He further contends that his motion for a required finding of not guilty was denied in error as evidence of his involvement as a joint venturer was insufficient. He also complains that opinion testimony from a police officer was erroneously admitted in evidence and that the officer impermissibly offered an opinion on the defendant’s guilt. As we are unpersuaded by these contentions, we affirm the convictions. FOOTNOTES 1 The defendant was also acquitted of a charge of conspiracy to violate drug laws, G. L. c. 94C, § 40, after waiving his right to a separate trial. Background. From the evidence admitted during the Commonwealth’s case in chief, including statements of the defendant’s nephew, alleged by the Commonwealth as a coventurer of the defendant, the jury could have found the following facts.2 On October 21, 2010, Captain Paul Oliveira of the New Bedford police department drug unit began a drug investigation as a result of a call to the department’s anonymous tip line. He called the phone number that was provided through the tip, and spoke a number of times with one Ahmad, a person whose voice he recognized as someone who had provided information to him in an investigation a few years earlier. In speaking with Ahmad, Oliveira testified that he had heard that Ahmad was “trying to get rid of some Percocets,” and Oliveira indicated that he was interested in purchasing the pills. Ahmad agreed, but explained that the pills were not his but his uncle’s, who got thirty-milligram and ten-milligram pills by prescription, 180 of each per month, but had just twenty thirty-milligram pills remaining for sale, for “500 […]
Commonwealth v. Hernandez (Lawyers Weekly No. 10-048-15)
COMMONWEALTH vs. AARON HERNANDEZ. SJC-11840 SUPREME JUDICIAL COURT OF MASSACHUSETTS March 26, 2015, Decided NOTICE: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE MASSACHUSETTS REPORTER USERS ARE REQUESTED TO NOTIFY THE CLERK OF THE COURT OF ANY FORMAL ERRORS SO THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS. HEADNOTES-1 COUNSEL: The case was submitted on the papers filed, accompanied by a memorandum of law. Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth. Michael K. Fee & James L. Sultan for the defendant. OPINION The defendant is presently on trial in the Superior Court on indictments charging murder in the first degree and various firearms offenses. The Commonwealth filed a motion in limine before trial seeking to establish the admissibility of testimony from a particular witness, Robert Paradis, as to certain conversations that he had with the defendant. After the trial began, and after conducting a hearing on the motion that included a voir dire of Paradis, the trial judge denied the motion on February 18, 2015. Nineteen days later, on March 9, 2015, the Commonwealth sought relief from a single justice of this court pursuant to G. L. c. 211, § 3.1 The single justice denied the petition on March 11, 2015. Six days after that, on March 17, the Commonwealth filed a notice of appeal from the single justice’s ruling, and on the following day, March 18, 2015, filed a memorandum in this court pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).2 Pursuant to an order of this court issued the same day, the defendant then filed, on March 23, 2015, his response to the Commonwealth’s memorandum.3 We have considered the papers, and, for the reasons that follow, affirm the decision of the single justice. FOOTNOTES 1 The Commonwealth did not include with its G. L. c. 211, § 3, petition copies of its motion in limine or the defendant’s opposition to the motion. Those papers were thus not a part of the record before the single justice. In seeking relief pursuant to G. L. c. 211, § 3, it was the Commonwealth’s burden, as a petitioner, to create a record that included all of the relevant pleadings, motions, and other parts of the trial court record pertaining to the disputed issue. Gorod v.Tabachnick, 428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003 (1998). Nor did the Commonwealth provide a written transcript of the hearing on its motion. It did provide a video recording, which we have viewed, of a portion of the hearing, which we are informed (by the defendant) was downloaded fromwww.youtube.com. 2 The Commonwealth also purported to refile its petition under G. L. c. 211, § 3, directly to the full court. “The standard of review is the same […]
Commonwealth v. DaSilva (Lawyers Weekly No. 10-149-15)
COMMONWEALTH vs. EMMANUEL DaSILVA. SJC-11458 SUPREME JUDICIAL COURT OF MASSACHUSETTS 2015 Mass. LEXIS 151 December 5, 2014, Argued March 26, 2015, Decided NOTICE: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE MASSACHUSETTS REPORTER USERS ARE REQUESTED TO NOTIFY THE CLERK OF THE COURT OF ANY FORMAL ERRORS SO THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS. PRIOR-HISTORY: Suffolk. Indictments found and returned in the Superior Court Department on May 2, 2007. The cases were tried before Frank M. Gaziano , J. HEADNOTES-1 Homicide. Grand Jury. Evidence, Grand jury proceedings, Testimony before grand jury, Prior misconduct, Hearsay, Relevancy and materiality, Impeachment of credibility, Exculpatory. Witness, Impeachment. Practice. Criminal, Capital case, Grand jury proceedings, Transcript of testimony before grand jury, Recording of proceedings, Argument by prosecutor, Instructions to jury. COUNSEL: John F. Palmer for the defendant. Dara Z. Kesselheim, Assistant District Attorney (Mark D. Zanini & Julie Sunkle Higgins, Assistant District Attorneys, with her) for the Commonwealth. JUDGES: Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ. OPINION BY: SPINA OPINION Spina, J. The defendant was a participant in a drive-by shooting on February 13, 2007, in the Roxbury section of Boston. The motive was revenge against David Evans for the shooting of a family friend, “A.J.,” and an assault on a family member. However, the targeted group of young men standing across the street from Evans’s apartment at the time of the shooting had nothing to do with Evans. One member of the group was killed, and two were wounded. The defendant was convicted of murder in the first degree and various related offenses. On appeal the defendant asserts error in (1) the admission of the grand jury testimony of a Commonwealth witness; (2) the admission of evidence of prior bad acts; (3) the admission of evidence that the defendant refused to have his custodial interrogation recorded; (4) the admission of evidence of 911 calls received by a police dispatcher; (5) the admission of evidence concerning the course of the investigation and the role of the grand jury; (6) the prosecutor’s impeachment of a defense witness with her failure to report exculpatory evidence to police; (7) the prosecutor’s closing argument; and (8) the judge’s decision declining to give a so-called Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We affirm the convictions and decline the defendant’s request that we grant relief under G. L. c. 278, § 33E. 1. Background. The jury could have found the following facts. We reserve other details for discussion of the particular issues. A brief description of family relations is in order before we describe the events of February 13, 2007, that led up to the shooting later the same day. A critical witness for the Commonwealth was Clarimundo DaSilva,1 who is an uncle of the […]
Commonwealth v. Cuevas (Lawyers Weekly No. 11-029-15)
Commonwealth vs. Eagle Eyes Cuevas.1 1 Also known as Leonides Cuevas. No. 13-P-1792. APPEALS COURT OF MASSACHUSETTS December 9, 2014, Argued March 24, 2015, Decided PRIOR-HISTORY: Hampden. Civil action commenced in the Superior Court Department on July 12, 2010. The case was tried before Constance M. Sweeney , J. COUNSEL: Edward B. Fogarty for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. JUDGES: Present: Cypher, Wolohojian, & Blake, JJ. Blake, J. After a jury trial in the Superior Court, the defendant, Eagle Eyes Cuevas, was found to be a sexually dangerous person and committed to the Massachusetts Treatment Center at Bridgewater for between one day and life. On appeal, Cuevas argues that it was reversible error to admit prior out-of-State convictions, claiming that the records were not properly authenticated and did not demonstrate that he was represented by counsel. He also claims that it was error to deny his request for fourteen peremptory jury challenges. We affirm. Background. At trial, the Commonwealth presented the reports and testimony of two qualified examiners, Dr. Katrin Rouse-Weir and Dr. Michael Murphy. Both examiners interviewed Cuevas and reviewed his treatment records, his Department of Correction records, and his criminal history, which included both sexual and drug offenses. As a result of their work, both opined that Cuevas was a pedophile who was likely to reoffend and therefore met the statutory definition of a sexually dangerous person as set forth in G. L. c. 123A.2 Cuevas presented no expert evidence of his own. FOOTNOTES 2 Rouse-Weir opined that Cuevas suffered from a mental disorder, pedophilia, based on his interest in prepubescent children and that Cuevas demonstrated characteristics of antisocial personality disorder. Rouse-Weir concluded that probationary requirements and treatment were insufficient to prevent Cuevas from reoffending. Murphy also concluded that Cuevas met the standard to be adjudicated sexually dangerous. Notably, Cuevas told Murphy that he fantasized about having sex with his girlfriend’s son and detailed how he groomed the child to accept his sexual advances. See note 4, infra. Cuevas admitted to Murphy that he was a pedophile. Murphy also concluded that any protective factors were insufficient to protect the public if Cuevas were to be released. The jury could have found the following regarding Cuevas’s history of offenses. In 1995, in New York, he pleaded guilty to attempted sexual abuse in the first degree for touching a girl’s breast.3 Cuevas received a committed sentence of eighteen months to three years in prison. In 2004, in Massachusetts, Cuevas was convicted of rape of a child and indecent assault and battery on a child under the age of fourteen for sexual assaults that occurred on diverse dates between 1999 and 2003.4 Cuevas received a sentence of not less than five but no more than seven years in prison with lifetime community parole. FOOTNOTES 3 The victim was thirteen years old. 4 Cuevas pleaded guilty to these offenses. The victim, the son of the defendant’s girlfriend, was six years old when the defendant began to sexually […]
Commonwealth v. Cuevas (Lawyers Weekly No. 11-028-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1792 Appeals Court COMMONWEALTH vs. EAGLE EYES CUEVAS.[1] No. 13-P-1792. Hampden. December 9, 2014. – March 24, 2015. Present: Cypher, Wolohojian, & Blake, JJ. Sex Offender. Evidence, Sex offender, Prior conviction, Authentication. Due Process of Law, Sex offender, Assistance of counsel. Constitutional Law, Assistance of counsel. Practice, Civil, Challenge of jurors. Practice, Criminal, Challenge to jurors, Assistance of counsel, Waiver. Civil action commenced in the Superior Court Department on July 12, 2010. The case was tried before Constance M. Sweeney, J. Edward B. Fogarty for the defendant. Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth. BLAKE, J. After a jury trial in the Superior Court, the defendant, Eagle Eyes Cuevas, was found to be a sexually dangerous person and committed to the Massachusetts Treatment Center at Bridgewater for between one day and life. On appeal, Cuevas argues that it was reversible error to admit prior out-of-State convictions, claiming that the records were not properly authenticated and did not demonstrate that he was represented by counsel. He also claims that it was error to deny his request for fourteen peremptory jury challenges. We affirm. Background. At trial, the Commonwealth presented the reports and testimony of two qualified examiners, Dr. Katrin Rouse-Weir and Dr. Michael Murphy. Both examiners interviewed Cuevas and reviewed his treatment records, his Department of Correction records, and his criminal history, which included both sexual and drug offenses. As a result of their work, both opined that Cuevas was a pedophile who was likely to reoffend and therefore met the statutory definition of a sexually dangerous person as set forth in G. L. c. 123A.[2] Cuevas presented no expert evidence of his own. The jury could have found the following regarding Cuevas’s history of offenses. In 1995, in New York, he pleaded guilty to attempted sexual abuse in the first degree for touching a girl’s breast.[3] Cuevas received a committed sentence of eighteen months to three years in prison. In 2004, in Massachusetts, Cuevas was convicted of rape of a child and indecent assault and battery on a child under the age of fourteen for sexual assaults that occurred on diverse dates between 1999 and 2003.[4] Cuevas received a sentence of not less than five but no more than seven years in prison with lifetime community parole. Discussion. 1. Admission of the […]
Commonwealth v. DeJesus (Lawyers Weekly No. 11-027-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-903 Appeals Court COMMONWEALTH vs. EMMANUEL DeJESUS. No. 13-P-903. Middlesex. October 1, 2014. – March 23, 2015. Present: Rapoza, C.J., Katzmann, & Wolohojian, JJ. Evidence, Best and secondary, Hypothetical question. Witness, Police officer. Entrapment. Complaint received and sworn to in the Malden Division of the District Court Department on March 10, 2010. The case was tried before Dominic J. Paratore, J. Merritt Schnipper for the defendant. Erin J. Anderson, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. Police officers working undercover arranged to purchase “crack” cocaine from a man known as “Paulie,” whom they suspected of operating in tandem with the defendant. A photocopy of the currency to be used for the purchase was made beforehand. The primary issue on appeal is whether the best evidence rule required that the currency, rather than the photocopy, be admitted at trial. Concluding that it does not, we affirm the defendant’s convictions.[1] Background.[2] Officers of the Everett police department were conducting an undercover operation to purchase crack cocaine. The operation was focused on a man known as “Paulie,” whom they suspected of working with the defendant. On March 9, 2010, Sergeant Paul Strong photocopied six twenty-dollar bills and then gave five of them to Detective Robert Hall, who was to arrange the undercover purchase from Paulie. Strong, who was part of the team assigned to surveil the defendant, kept a photocopy of the bills in his pocket.[3] Hall and Paulie arranged to meet near the corner of Broadway and Gladstone Street in Everett. Hall arrived by car at the arranged time and place; Paulie arrived on foot and got into Hall’s car. A purchase was arranged, and Hall gave Paulie five of the bills that had been photocopied. Paulie proceeded to make two telephone calls. After the second call, Paulie left the car and walked up Gladstone Street. Five minutes later, Paulie returned and removed five plastic baggies of crack cocaine from his mouth; he gave four of them to Hall. Paulie was then arrested. Meanwhile, Strong had been watching the defendant’s residence. He observed the defendant drive away from his home, pick up a passenger, meet briefly with a woman who approached his (the defendant’s) car, and then drive to the corner of Gladstone and School Street, where he stopped. This […]
Diatchenko, et al. District Attorney for the Suffolk District, et al.; Commonwealth v. Roberio (Lawyers Weekly No. 10-046-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11688 SJC-11689 GREGORY DIATCHENKO & another[1] vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[2] COMMONWEALTH vs. JEFFREY S. ROBERIO. Suffolk. November 6, 2014. – March 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Sentence, Parole, Assistance of counsel, Judicial review. Due Process of Law, Sentence, Parole, Assistance of counsel. Parole. Practice, Criminal, Sentence, Parole, Assistance of counsel. Witness, Expert. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 10, 2014. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for Gregory Diatchenko & another. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. Amy L. Karangekis, Assistant Attorney General, for Massachusetts Parole Board. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. The following submitted briefs for amici curiae: Kenneth J. Parsigian for Citizens for Juvenile Justice & others. David J. Apfel, Kristen A. Kearney, Kunal Pasricha, & Katherine Connolly Sadeck for Campaign for the Fair Sentencing of Youth & others. Afton M. Templin for Massachusetts Association of Criminal Defense Lawyers. BOTSFORD, J. In Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), this court considered the constitutionality of a life sentence without parole when applied to a juvenile homicide offender,[3] and, following Miller v. Alabama, 132 S. Ct. 2455 (2012), determined that the mandatory imposition of such a sentence violates the prohibition against cruel and unusual punishments in the Eighth Amendment to the United States Constitution as well as art. 26 of the Massachusetts Declaration of Rights.[4] Diatchenko I, supra at 668. The court held that a juvenile homicide offender who is convicted of murder in the first degree and receives a mandatory sentence of life in prison must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” and this opportunity must come through consideration for release on parole. Id. at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010). The court’s opinion in Diatchenko I has given rise to questions concerning how the opportunity for release […]
Categories: News Tags: 1004615, attorney, Commonwealth, Diatchenko, District, Lawyers, Roberio, Suffolk, Weekly
Commonwealth v. Okoro (Lawyers Weekly No. 10-047-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11659 COMMONWEALTH vs. EMMANUEL OKORO. Plymouth. September 3, 2014. – March 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Separation of powers. Due Process of Law, Sentence, Parole. Parole. Witness, Expert. Evidence, Expert opinion. Defense of Others. Practice, Criminal, Sentence, Parole, Instructions to jury. Indictment found and returned in the Superior Court Department on February 29, 2008. The case was tried before Paul E. Troy, J.; a motion for a new trial, filed on January 7, 2011, was considered by him; a motion for a new trial, a reduction in verdict, and resentencing, filed on September 13, 2012, was heard by him; and a motion for reconsideration was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Ruth Greenberg for the defendant. Matthew Libby, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Jeanne M. Kepthorne for Markeese Mitchell. Barbara Kaban, Committee for Public Counsel Services, for Youth Advocacy Division, Committee for Public Counsel Services, & others. Laura M. Banwarth for Massachusetts Association of Criminal Defense Lawyers. Richard L. Goldman for Terrance Pabon. BOTSFORD, J. The defendant, Emmanuel Okoro, appeals from his conviction of murder in the second degree. He was fifteen years old at the time of the offense, January 1, 2008. Pursuant to the sentencing statutes then in effect, the defendant received a mandatory sentence of life imprisonment with eligibility for parole after fifteen years. The defendant argues that in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2460, 2469 (2012), and this court’s decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 658 (2013) (Diatchenko I), the defendant’s mandatory life sentence constitutes a cruel and unusual punishment in violation of both the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights, and also violates constitutional guarantees of due process and separation of powers. The defendant further argues that his conviction should be overturned because (1) the trial judge erroneously prevented him from introducing expert testimony and arguing that the way the brain develops in children and adolescents makes the condition of being a […]
Commonwealth v. Butler (Lawyers Weekly No. 11-025-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1828 Appeals Court COMMONWEALTH vs. LAURA BUTLER. No. 13-P-1828. Suffolk. November 10, 2014. – March 19, 2015. Present: Kantrowitz, Graham, & Katzmann, JJ.[1] Practice, Criminal, Dismissal, Discovery, Disclosure of evidence. Evidence, Certificate of drug analysis, Disclosure of evidence. Controlled Substances. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on November 15, 2012. Entry of judgment dismissing the complaint was ordered by Raymond G. Dougan, Jr., J. Ryan A. Pavao (Donna Jalbert Patalano, Assistant District Attorney, with him) for the Commonwealth. Kathleen M. Kelly for the defendant. KATZMANN, J. This case is before us on an appeal by the Commonwealth from an order by a Boston Municipal Court judge sua sponte dismissing the drug distribution complaint without prejudice against the defendant, Laura Butler, on all counts and over the objection of the Commonwealth where the Commonwealth had not provided a certificate of drug analysis of the defendant’s prescription medication because no certificate had yet been created. We vacate the order of dismissal. Facts. On November 14, 2012, in the course of a police investigation of drug activity in the area of Haymarket and Government Center in Boston, the defendant was arrested after two police officers observed her providing nineteen prescription pills in exchange for twenty dollars; a prescription bottle obtained from the defendant’s purse had the defendant’s name on it and contained nine white oval tablets with the letters “G 13″ imprinted on them. On November 15, 2012, the Boston Municipal Court issued a criminal complaint against the defendant alleging two counts of distributing a class E controlled substance (gabapentin), and two counts of distributing a controlled substance near a school or park. The matter was originally scheduled for pretrial hearing on January 24, 2013, continued for pretrial hearing to April 12, 2013, and continued a second time for pretrial hearing to July 17, 2013. The reasons for the continuances do not appear on the record. The entirety of the July 17, 2013, pretrial hearing progressed as follows: The clerk: ”Matter of Laura Butler.” The court: ”What are you requesting today, [defense counsel]?” Defense counsel: ”Judge, I used the time to reach out to the D.A.’s office and they indicated they’re going to have to speak to [one of the other prosecutors], […]