Commonwealth v. Brown (Lawyers Weekly No. 10-175-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11437 COMMONWEALTH vs. MICHAEL R. BROWN. September 25, 2013. Controlled Substances. Doctor, Controlled substances. Constitutional Law, Double jeopardy, Appeal, Ex post facto law, Equal protection of laws. Due Process of Law, Appeal. Practice, Criminal, Double jeopardy, Appeal, Assistance of counsel. Words, “Dispense,” “Distribute.” The defendant, Michael R. Brown, was convicted on indictments charging illegally prescribing controlled substances, in violation of G. L. c. 94C, §§ 32A (a) and 32B (a); submitting false medical claims, in violation of G. L. c. 118E, § 40 (2); and larceny of an amount in excess of $ 250, in violation of G. L. c. 266, § 30 (1). We affirmed the convictions. See Commonwealth v. Brown, 456 Mass. 708 (2010) (Brown I). After we denied his subsequent petition for rehearing, Brown filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 2254 (2006). The petition was denied without prejudice on the basis that Brown had failed to exhaust his State court remedies as required by 28 U.S.C. § 2254(b)(1)(A). See Brown vs. Ricci, U.S. Dist. Ct., No. 11-11154 (D. Mass. Jan. 10, 2012). Brown thereafter filed a motion for release from unlawful restraint pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), in the Superior Court, which was denied without a hearing. Brown appealed, and we transferred his appeal to this court on our own motion. Brown raises several issues in this appeal, all of a constitutional nature and all stemming from the manner in which we decided the defendant’s appeal in Brown I. That appeal involved two principal issues: (1) whether an audio-video recording “of the defendant’s conversation in the home of a cooperating witness was properly admitted in evidence . . . where it was the product of a Federal investigation in which Massachusetts law enforcement personnel participated”; and (2) whether a physician “dispenses” rather than “distributes” a controlled substance pursuant to G. L. c. 94C, §§ 32A (a) and 32B (a), when the substance “is delivered pursuant to what purports to be a prescription to a person who does not ‘lawfully’ possess it.” Brown I, supra at 709-710. Brown’s current appeal involves only the “dispense-distribute” issue. In Brown I, we engaged in a detailed analysis of G. L. c. 94C, the Controlled Substances Act (Act), […]
Commonwealth v. Brown (Lawyers Weekly No. 11-079-13)
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 12‑P‑614 Appeals Court COMMONWEALTH vs. RICHARD G. BROWN. No. 12‑P‑614. Middlesex. April 18, 2013. ‑ June 20, 2013. Present: Green, Carhart, & Agnes, JJ. Motor Vehicle, Operating under the influence. Evidence, Field sobriety test, Voluntariness of statement, Testimonial statement. Constitutional Law, Voluntariness of statement. Practice, Criminal, Voluntariness of statement. Complaint received and sworn to in the Malden Division of the District Court Department on May 24, 2010. The case was heard by J. Elizabeth Cremens, J. Dana Alan Curhan (MarySita Miles with him) for the defendant. Alexandra G. Watson, Assistant District Attorney, for the Commonwealth. AGNES, J. When a person who is suspected by the police of operating a motor vehicle on a public way while under the influence of alcohol refuses to submit to roadside tests commonly referred to as field sobriety tests, evidence of his refusal is not admissible at trial because it is regarded as compelled testimony in violation of art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Blais, 428 Mass. 294, 298-299 (1998). In this case, we must decide whether compulsion, in a constitutional sense, is involved when such a person agrees to perform field sobriety tests, and then in attempting to perform a test makes statements about the difficulty of completing it or the inability to perform it. For the reasons which follow, we conclude that statements of a person’s difficulty or inability to perform a field sobriety test like those involved in this case are not the product of compulsion within the meaning of art. 12 and thus are available for use against the individual at trial. The defendant was convicted of operating a motor vehicle while under the influence of alcohol, second or subsequent offense, and found responsible for a marked lanes violation as a result of an incident which occurred on May 23, 2010, in Wakefield. See G. L. c. 90, § 24(1)(a)(1); G. L. c. 89, § 4B. The sole issue raised on appeal is the judge’s denial of the defendant’s pretrial motion in limine to exclude certain testimony by the investigating police officer about statements made by the defendant while he was attempting to perform the tests. Factual background. The motion in limine is not included in the record. The motion was heard prior to […]
Should Scott Brown Run for Senate in NH?
Former U.S. Sen. Scott Brown (R-MA) dropped a bombshell on Thursday night when he told reporters following a speech in Nashua that he wouldn’t rule out a run for Senate in New Hampshire. “I’m not going to rule out anything right now,” he said. Brown, who represented Massachusetts in the Senate from 2009 to 2012, owns a vacation home in Rye, N.H., so it’s not that far fetched. His announcement drew an immediate response from Democrats, who flooded the Twitterverse with comments and jokes about the former Massachusetts Senator’s prospects should he choose to take on incumbent Jeanne Shaheen in 2014. What do you think? Should Scott Brown run for Senate in New Hampshire in 2014? Or should he stay in Massachusetts? Tell us in our comments section below. South End Patch
Should Scott Brown Run for Governor?
Results of a UMass Lowell/Boston Herald poll this week show former Senator Scott Brown is more popular than he was when he lost his re-election bid last fall and is in a strong position to run for governor in 2014. The independent, nonpartisan poll surveyed 600 Massachusetts registered voters between Saturday, March 2 and Tuesday, March 5. With regard to Brown, the poll – which asked voters for their opinions on whether they would vote for Brown if he runs for governor – showed he has considerable bipartisan support, with 32.7 percent saying they are very likely to vote for him and 26 percent somewhat likely. Results showed that Brown, who garnered support of 92.2 percent of Republicans polled and 36.7 percent of Democrats, had more name recognition than other possible candidates, including Charlie Baker (67.2 percent combined said they had no opinion/never heard of Baker), former Lt. Gov. Kerry Healey (58.4 percent combined no opinion/never heard of) and state Treasurer Steve Grossman (79.5 percent no opinion/never heard of). So tell us, what do you think? Would you vote for Scott Brown for governor? Or is there another potential candidate out there who you think would be a better fit for the seat? Tell us in the comments below. South End Patch
Former Brown Aide Chosen to Head State GOP
Kristen Hughes, the former deputy finance chairman for the Sen. Scott Brown campaign, won a narrow vote Thursday night to become the new chairwoman of the Massachusetts Republican Party, according to Boston.com. Hughes, 35, will replace outgoing chairman Robert A. Maginn, Jr. Before joining Brown’s campaign – and becoming his choice to lead the GOP through the upcoming election cycle – Hughes worked as a Quincy city councilor. As Brown’s aide, she helped raise $ 42 million. Her win Thursday was seen by some as a important to avoid Brown from looking weak in the face of another possible run for the U.S. Senate, the Globe reported. “I am ready to head to [the GOP headquarters] tomorrow morning to get to work without delay,” Hughes said, according to Boston.com. “How we do in these special elections will have a direct impact on our ability to motivate the grassroots and raise funds for the 2014 cycle and beyond.” SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Scott Brown Will Not Run for U.S. Senate
Scott Brown ended speculation Friday afternoon as to whether he would run for U.S. Senate, announcing that he is not entering the race for the seat left vacant by John Kerry’s confirmation to the post of Secretary of State. Two Democratic political opponents – Congressman Stephen Lynch (D-South Boston) and Congressman Edward Markey (D-Malden) – will face off in the April 30 primary with the special election set for June 25. There are currently no Republican candidates in the race. Markey, who represents the 5th Congressional District, kicked off his campaign in December. Lynch launched his bid with a formal announcement Thursday afternoon. Lynch represents the 8th Congressional District. With Brown out of the running, what Republican would you like to see run for the seat? Leave your thoughts in the comment field below. South End Patch