Posts tagged "1012313"

Commonwealth v. Santos (Lawyers Weekly No. 10-123-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11235   COMMONWEALTH  vs.  FERNANDO SANTOS.     Hampden.     March 4, 2013.  ‑  July 10, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Rape.  Indecent Assault and Battery.  Constitutional Law, Search and seizure.  Search and Seizure, Consent, Buccal swab.  Practice, Criminal, Motion to suppress.  Evidence, Buccal swab, Intoxication, First complaint.  Deoxyribonucleic Acid.  Intoxication.       Indictments found and returned in the Superior Court Department on September 2, 2009.   A pretrial motion to suppress evidence was heard by Constance M. Sweeney, J., and the cases were tried before her.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Emily A. Cardy, Committee for Public Counsel Services (Nikolas Andreopoulos, Committee for Public Counsel Services, with her) for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. Allison Callahan, Assistant District Attorney, for District Attorney for the Suffolk District, amicus curiae, submitted a brief.     IRELAND, C.J.  A Hampden County jury found the defendant guilty of rape of a child with force, in violation of G. L. c. 265, § 22 (a), and indecent assault and battery of a child under fourteen (three indictments), in violation of G. L. c. 265, § 13 (b).[1]  The defendant timely appealed, and we transferred the case here on our own motion.  He argues that a Superior Court judge erred when she denied his motion to suppress evidence obtained from a warrantless search of his apartment, and when she determined that he understood English and was not too incapacitated by alcohol to voluntarily provide a sample of his deoxyribonucleic acid (DNA).  He also argues that first complaint testimony admitted at trial impermissibly influenced the jury.  Because we conclude that, in the circumstances here, the police possessed sufficient factual information when they determined that a person who appeared to have authority had given consent to enter the defendant’s apartment, and because there is no merit to his other claims of error, we affirm the defendant’s convictions.   1.  Motion to suppress.  We recite the facts found by the judge at the hearing on the motion to suppress, supplemented by undisputed facts in the record consistent with the judge’s findings.[2]  See Commonwealth v. Butler, 423 Mass. 517, 526 n.10 (1996) (we use uncontroverted facts that do not contradict judge’s findings). The victim lived in a second-floor […]

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Posted by Massachusetts Legal Resources - July 11, 2013 at 12:03 am

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