Posts tagged "Commonwealth"

Commonwealth v. Tahlil (Lawyers Weekly No. 10-062-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12338   COMMONWEALTH  vs.  ADNAN TAHLIL.     April 18, 2018.     Practice, Criminal, Discovery, Interlocutory appeal.  Evidence, Videotape.  Constitutional Law, Self-incrimination.  Attorney at Law, Use of confidence or secret.     The Commonwealth appeals from a judgment of a single justice of the county court denying its petition for relief pursuant to G. L. c. 211, § 3, from an interlocutory ruling of the Boston Municipal Court Department.  We reverse.   The defendant, Adnan Tahlil, has been charged in the Boston Municipal Court Department with larceny from a person, in violation of G. L. c. 266, § 30; assault and battery, in violation of G. L. c. 265, § 13A; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b); and receiving stolen property, in violation of G. L. c. 266, § 60.  The charges stem from an incident that occurred on May 18, 2013, during which several individuals assaulted and robbed the victim.  Shortly thereafter, someone used the victim’s Citizens’ Bank card at a Tedeschi market.  The police obtained a digital video disc (DVD) containing surveillance video from the market.  The victim viewed the DVD at the police station and identified the defendant and two other individuals as three of the four assailants.   During the course of discovery, the Commonwealth provided the defendant with a copy of the DVD.  It appears that defense counsel was unable to open and view the DVD and ultimately viewed the video footage at the district attorney’s office.  As the trial date approached, the Commonwealth was unable to locate its own copy of the DVD.  On the day before the scheduled trial, the Commonwealth moved for an order requiring the defendant to return to the Commonwealth a copy of the DVD for the Commonwealth’s use at trial.[1]  The trial judge denied the motion.  The Commonwealth then filed its G. L. c. 211, § 3, petition, which a single justice denied without a hearing.   In its appeal to this court, the Commonwealth argues that the trial judge’s decision to deny its motion was clearly erroneous.  We agree.  No reasonable basis exists for the defendant’s refusal to return to the Commonwealth a copy of the very thing that the Commonwealth gave to him.  The defendant does not deny that he has the item.  His main argument is that requiring him to provide the Commonwealth with a copy of the DVD would violate […]

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Posted by Massachusetts Legal Resources - April 19, 2018 at 6:34 am

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Commonwealth v. Escobar (Lawyers Weekly No. 10-063-18)

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-12430   COMMONWEALTH  vs.  JUSTINO ESCOBAR.     April 18, 2018.     Controlled Substances.  Constitutional Law, Plea, Conduct of government agents.  Due Process of Law, Plea, Disclosure of evidence.  Supreme Judicial Court, Superintendence of inferior courts.  Practice, Criminal, Plea, Conduct of government agents, Disclosure of evidence, New trial.  Evidence, Certificate of drug analysis, Disclosure of evidence.     The defendant, Justino Escobar, pleaded guilty to cocaine trafficking in 2009 and was sentenced to a term of from eight to twelve years in State prison.  In July, 2015, he filed a motion for a new trial and a related motion to conduct postconviction discovery, seeking to have his conviction vacated pursuant to Commonwealth v. Ware, 471 Mass. 85 (2015), and Commonwealth v. Scott, 467 Mass. 336 (2014).  In his motions, Escobar argued that the Commonwealth had not fully investigated misconduct at the William A. Hinton State Laboratory Institute (Hinton drug lab).[1]  In his view, the Inspector General’s investigation of the Hinton lab was incomplete because it did not inquire into whether any chemist other than Annie Dookhan had acted improperly.[2]   Escobar subsequently filed a motion to vacate his conviction and for the dismissal of the underlying charge as well as a motion for a so-called “Cotto order” pursuant to this court’s decision in Commonwealth v. Cotto, 471 Mass. 97 (2015).  After a hearing, in July, 2017, a judge in the Superior Court denied without prejudice the motions to vacate and for a Cotto order; allowed in part the motion for postconviction discovery, ordering limited discovery; and declined to rule on the motion for a new trial pending completion of that limited discovery.[3]  Escobar appealed.  We allowed his application for direct appellate review, and affirm.   On the basis of the record that was before her, the judge’s rulings were correct.  As she noted, Escobar’s core argument is that the chemist who analyzed the samples in his case, Della Saunders, had “testing productivity numbers” comparable to those of Dookhan.  In Escobar’s view, this raises the question whether Saunders, like Dookhan, also engaged in misconduct.  In light of his arguments, the judge determined that some limited postconviction discovery was warranted, and she thus allowed, in part, Escobar’s motion on this point.[4]  She also concluded, reasonably, that she could not fairly rule on Escobar’s motion for a new trial until that limited discovery […]

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Posted by Massachusetts Legal Resources - April 19, 2018 at 3:00 am

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Ramirez v. Commonwealth (Lawyers Weekly No. 10-060-18)

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-12340   JORGE RAMIREZ  vs.  COMMONWEALTH.       Suffolk.     December 5, 2017. – April 17, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Firearms.  Constitutional Law, Right to bear arms, Severability.  Statute, Validity, Severability.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 21, 2017.   The case was reported by Hines, J.     Benjamin H. Keehn, Committee for Public Counsel Services, for Jorge Ramirez. Kathryn Leary, Assistant District Attorney, for the Commonwealth.     GANTS, C.J.  We once again confront the question whether the absolute criminal prohibition of civilian possession of a stun gun, in violation of G. L. c. 140, § 131J, violates the Second Amendment to the United States Constitution, which is applied to the States by its incorporation into the Fourteenth Amendment.  In Commonwealth v. Caetano, 470 Mass. 774 (2015) (Caetano I), we held that § 131J did not violate the Second Amendment right to bear arms, as interpreted by District of Columbia v. Heller, 554 U.S. 570 (2008).  However, the United States Supreme Court, in a brief per curiam opinion, concluded that each of the three explanations we offered to support this holding were inconsistent with propositions stated in Heller, and therefore vacated the judgment and remanded the case for further proceedings.  See Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (Caetano II).  That case was later dismissed as moot after it was “resolved . . . to [the parties’] mutual satisfaction,” so we did not there revisit the question of § 131J’s constitutionality.  But we must revisit it in this case, where the defendant was charged in a criminal complaint with possession of a stun gun, in violation of § 131J, among other crimes, and moved unsuccessfully to dismiss that count of the complaint, arguing that § 131J unconstitutionally infringes on his Second Amendment rights. We conclude that the absolute prohibition against civilian possession of stun guns under § 131J is in violation of the Second Amendment, and we order that the count of the complaint charging the defendant with such possession be dismissed with prejudice. Background.  We summarize the agreed-upon facts relevant to this appeal.  On November 5, 2015, at approximately 2:15 A.M., Officer Sean Matthews of the Revere police department was on patrol when he observed a vehicle with a broken taillight that was […]

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Posted by Massachusetts Legal Resources - April 17, 2018 at 10:23 pm

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Commonwealth v. Richardson (Lawyers Weekly No. 10-061-18)

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-12375   COMMONWEALTH  vs.  JOSHUA A. RICHARDSON.       Middlesex.     December 7, 2017. – April 17, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Marijuana.  Medicine.  Controlled Substances.  Search and Seizure, Affidavit, Probable cause, Warrant.  Probable Cause.  License. Jury and Jurors.  Evidence, Expert opinion, Intent.  Intent.  Practice, Criminal, Affidavit, Motion to suppress, Warrant, Instructions to jury.       Complaint received and sworn to in the Framingham Division of the District Court Department on September 9, 2013.   A motion to dismiss was heard by Douglas W. Stoddart, J.; a pretrial motion to suppress evidence was heard by Martine Carroll, J.; and the case was tried before David W. Cunis, J.   The Supreme Judicial Court granted an application for direct appellate review.     Allison Callahan for the defendant. Elizabeth J. May, Assistant District Attorney, for the Commonwealth.     KAFKER, J.  The defendant, a medical marijuana patient, was arrested when police discovered twenty-two marijuana plants growing in his basement.  After a jury trial, he was convicted of unlawful cultivation of marijuana and possession with intent to distribute marijuana.  On appeal, he argues that (1) the criminal complaint and the search warrant lacked probable cause; (2) the jury instructions were in error; (3) the evidence was insufficient to find the defendant guilty beyond a reasonable doubt; and (4) the medical marijuana law’s sixty-day supply limit is unconstitutionally vague as applied.  For the reasons stated below, we reverse in part and affirm in part. Background.  The defendant, Joshua A. Richardson, was an unemployed tattoo artist living in Framingham at the time of his arrest.  On July 2, 2013, he obtained a written certification from a qualifying physician that approved his use of medical marijuana to treat a number of medical conditions.  The certification constituted a valid hardship cultivation registration permitting the defendant to grow up to ten ounces of marijuana every sixty days for his personal, medical use.[1]  Approximately two months later, on September 7, 2013, the defendant telephoned 911 to report a home invasion at his residence.  The defendant told the 911 operator that three men had entered his home and “started beating the hell out of [him].” Officer Wayne Jordan reported to the defendant’s residence within a few minutes of receiving the dispatch.  The defendant told Wayne that three men had broken into […]

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Posted by Massachusetts Legal Resources - April 17, 2018 at 6:48 pm

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O’Donoghue, et al. v. Commonwealth, et al. (Lawyers Weekly No. 11-046-18)

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   16-P-72                                         Appeals Court   KEN O’DONOGHUE, trustee,[1] & others[2]  vs.  COMMONWEALTH & others.[3]     No. 16-P-72.   Suffolk.     December 5, 2017. – April 17, 2018.   Present:  Vuono, Sullivan, & Massing, JJ.     Res Judicata.  Judgment, Preclusive effect.  Seashore.  Real Property, Littoral property.  Words, “Beach.”     Civil action commenced in the Land Court Department on July 22, 1998.   The case was heard by Harry M. Grossman, J.   Brian Jay Rogal for the plaintiffs. Robert W. Galvin for town of Marshfield. Kendra Kinscherf, Assistant Attorney General, for the Commonwealth.     SULLIVAN, J.  The plaintiffs commenced this action against the Commonwealth in the Land Court to quiet title to certain “beach lots” in the Rexhame Terrace section of the town of Marshfield (town) and to remove a cloud on title that resulted from the decisions in Thomas v. Marshfield, 10 Pick. 364 (1830) (Thomas I), and Thomas v. Marshfield, 13 Pick. 240 (1832) (Thomas II).  The plaintiffs also sought damages for trespass against the individual defendants.  The town was allowed to intervene as a defendant.  In its answer the town asserted, as an affirmative defense, title to the beach lots set aside for use by all of the town’s inhabitants as a common area, and further stated that the plaintiffs have only a right of “commonage” along with other inhabitants of the town.  The trial judge bifurcated the “public” portions of the case — the claims among the plaintiffs, the Commonwealth, and the town — and, following a trial, concluded that the plaintiffs had not met their burden of demonstrating title sufficient to quiet title or remove the cloud of title due to the decisions in Thomas I and Thomas II.  The judge further concluded that the town has superior title in most if not all portions of the beach lots.[4]  The parties have filed cross appeals.  Substantially for the reasons stated by the judge in his careful, detailed, and well-reasoned decision, we affirm. Background.  The judge made detailed factual findings, which for the most part are undisputed.  We repeat only those necessary to give context to our discussion, noting where material disputes arise.  The judge’s factual findings will not be overturned unless clearly erroneous.  See Whiteveld v. Haverhill, 12 Mass. App. Ct. 876, 876 (1981); Feldman v. Souza, 27 Mass. App. 1142, 1143 (1989). Marshfield Neck […]

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Posted by Massachusetts Legal Resources - April 17, 2018 at 3:13 pm

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Commonwealth v. Pereira (Lawyers Weekly No. 11-045-18)

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   16-P-975                                        Appeals Court   COMMONWEALTH  vs.  MARIA C. PEREIRA.     No. 16-P-975.   Plymouth.     December 4, 2017. – April 13, 2018.   Present:  Sacks, Ditkoff, & Singh, JJ.     Practice, Criminal, Revocation of probation, Restitution, Newspaper article.  Constitutional Law, Freedom of speech and press.  Newspaper.  Threatening.       Indictments found and returned in the Superior Court Department on April 18, 2014.   A proceeding for revocation of probation was had before Cornelius J. Moriarty, II, J.     Robert A. O’Meara for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.     SACKS, J.  The defendant appeals from a Superior Court order, entered after hearing, that revoked her probation.  The judge found that the defendant had violated her probation conditions by failing to make required weekly restitution payments and violating a no-contact condition by contacting a newspaper to make a threat against the victim, who then saw it published in an article in the newspaper.  The judge sentenced her to from three and one-half to five years in State prison.  We affirm.[1] Background.  On July 17, 2015, the defendant pleaded guilty to one count of larceny over $ 250, involving embezzlement from her brother’s (victim) construction business in Brockton, where she had worked as a bookkeeper.  The defendant had been indicted on sixteen charges; at the time of her guilty plea, the remaining fifteen charges were dismissed.  The judge sentenced her to five years of probation, with conditions, among others, that she:  (1) make restitution to the victim of $ 103,753.64, which the judge stated was “a substantial break off of what was . . . allegedly stolen,” to be paid at the rate of $ 1000 per week; (2) stay away from the victim’s residence and place of employment, and have no “direct or indirect contact” with him, his wife, or their children; and (3) execute a financial affidavit “stating that there are no available funds remaining from [her 2012] lottery winnings and no other funds or monies available.”[2]  After having been given a weekend to consider this disposition, the defendant had represented to the judge that she was able to pay the $ 1000 weekly amount.  The defendant signed, thereby agreeing to obey, the order of probation conditions. Four days later, on July 21, the defendant filed her financial affidavit, in which she […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 9:47 pm

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Commonwealth v. Cruz (Lawyers Weekly No. 11-044-18)

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   16-P-1299                                       Appeals Court   COMMONWEALTH  vs.  ROBERTO CRUZ.     No. 16-P-1299.   Essex.     November 8, 2017. – April 13, 2018.   Present:  Milkey, Blake, & Singh, JJ.     Indecent Assault and Battery.  Practice, Criminal, Required finding.       Indictments found and returned in the Superior Court Department on June 15, 2015.   The cases were tried before Richard E. Welch, III, J.     Daniel P. Tarlow for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.     SINGH, J.  Following a jury trial in the Superior Court, the defendant was convicted of two counts of indecent assault and battery on a child,[1] subsequent offense,[2] and sentenced to fifteen years to fifteen years and one day in State prison.[3]  On appeal, the defendant argues that there was insufficient evidence to support his convictions.  We agree and therefore reverse the judgments and set aside the verdicts. Facts.  In the light most favorable to the Commonwealth, the jury could have found the following facts.  Jane (a pseudonym), a thirteen year old girl, was an intern at an aviation company in the summer of 2014.  While she was working one day, the defendant, an almost sixty year old man who she had met before at the airport, waved her over to him.  After a brief conversation, the defendant told her he would like to get her a gift for her upcoming birthday.  He said that he would like to give her a hug, but that they should do it in another room.  Jane went into a nearby hallway for a while, and waited, then returned to work after a couple of minutes.  When she later saw him again in the airplane hangar, she asked if the defendant still wanted the hug,[4] and he hugged her briefly around the shoulders. The defendant then asked if Jane wanted another hug, and said that they should go into another room.  He led her to a separate room, with no one else present.  He gave her a second hug, a little tighter, with a kiss on the neck.  This was not “anything that necessarily alarmed [her]” because she believed it was consistent with the way people of “European descent” greeted each other.[5] The defendant then gave Jane a third hug without her permission, which was lower down, on her waist and hips.  […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 6:12 pm

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J.H. v. Commonwealth (Lawyers Weekly No. 10-055-18)

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-12395   J.H.  vs.  COMMONWEALTH.       Suffolk.     December 7, 2017. – April 12, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Juvenile Court, Delinquent child.  Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing, Lesser included offense, Delay in commencement of prosecution.  Due Process of Law, Notice.  Notice.  Rape.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 3, 2017.   The case was reported by Lenk, J.     Thomas A. Dougherty, III, for the juvenile. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth. Afton M. Templin, for Youth Advocacy Division of the Committee for Public Counsel Service, amicus curiae, submitted a brief.     KAFKER, J.  A single justice of the county court reserved and reported this case involving the transfer of certain charges from the Juvenile Court to adult court pursuant to G. L. c. 119, § 72A.  In September, 2014, juvenile delinquency complaints were issued against the defendant for the crime of rape of a child with force (three counts) arising out of incidents that occurred seven years earlier when the defendant was sixteen years old and the complainant was thirteen years old.  Because the defendant was not “apprehended” according to the statute until after his nineteenth birthday, he could not be tried in the Juvenile Court.  The judge was faced with discharging the defendant or transferring the charges to adult court.  After a hearing she dismissed the offenses charged for lack of probable cause but transferred the lesser included offenses, statutory rape.  The defendant filed a petition for relief in the county court pursuant to G. L. c. 211, § 3. In her reservation and report, the single justice posed two questions to the full court: “1.  Whether G. L. c. 119, § 72A, permits a Juvenile Court judge, who has dismissed an offense charged for lack of probable cause, to order a defendant to be tried in an adult court for lesser included offenses, where the lesser included offenses are supported by probable cause.   “2.  Whether, if the statute so permits, its application against this defendant would be unconstitutional for failure to have provided him with proper notice of the charges pending against him or the possibility of such a transfer.”   We conclude that G. L. c. 119, § 72A, permits a Juvenile Court judge to transfer lesser included offenses […]

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Posted by Massachusetts Legal Resources - April 13, 2018 at 12:19 am

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Commonwealth v. Walters (Lawyers Weekly No. 10-057-18)

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; SJCReportersjc.state.ma.us   SJC-12364   COMMONWEALTH  vs.  MICHAEL WALTERS.       Bristol.     December 4, 2017. – April 12, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.     Practice, Criminal, Sentence.  Moot Question.       Indictments found and returned in the Superior Court Department on March 28, 2011.   Following review by this court, 472 Mass. 680 (2015), a resentencing hearing was had before E. Susan Garsh, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Ethan C. Stiles for the defendant. Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.          CYPHER, J.  The defendant, Michael J. Walters, was convicted by a jury in the Superior Court of stalking, harassment, two counts of restraining order violations, and two counts of perjury.  While he was serving his State prison sentence for stalking, that conviction was vacated by this court because the evidence was insufficient.  Commonwealth v. Walters, 472 Mass. 680 (2015) (Walters I).  As a result, the defendant was resentenced on the remaining convictions.  At resentencing, the defendant requested that his perjury sentence be deemed “time served” because it was the only other sentence that could have been considered a State prison sentence.  Rather than granting the defendant’s request, however, the trial judge vacated the stalking sentence, consistent with our opinion in Walters I, and imposed the remaining sentences nunc pro tunc to the date of his original sentence.  Consequently, the defendant served his sentences for criminal harassment and a restraining order violation — crimes that normally carry a sentence to a house of correction — in State prison.  The defendant appealed from his resentencing on the ground that the structure of his resentencing scheme was illegal.  Following the Appeals Court’s dismissal of the defendant’s case as moot, we granted further appellate review.  We affirm the decision of the resentencing judge. Background.  1.  First trial and sentences.  On June 12, 2012, the defendant was convicted of stalking, G. L. c. 265, § 43 (a); criminal harassment, G. L. c. 265, § 43A (a); two counts of restraining order violations, G. L. c. 209A, § 7; and two counts of perjury, G. L. c. 268, § 1.  The trial judge sentenced the defendant to the following:  on the charge of stalking, from three to four years in a State prison; on the charge of criminal […]

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Posted by Massachusetts Legal Resources - April 12, 2018 at 5:09 pm

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Commonwealth v. Faherty (Lawyers Weekly No. 11-043-18)

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   16-P-1486                                       Appeals Court   COMMONWEALTH  vs.  KEVIN J. FAHERTY.     No. 16-P-1486.   Middlesex.     December 8, 2017. – April 11, 2018.   Present:  Sacks, Ditkoff, & Singh, JJ.     Motor Vehicle, Operating under the influence.  Evidence, Prior conviction, Intoxication, Blood alcohol test.  Practice, Criminal, Prior conviction, Assistance of counsel, Sentence, Required finding.  Constitutional Law, Assistance of counsel.  Due Process of Law, Assistance of counsel, Blood alcohol test.  Intoxication.       Complaint received and sworn to in the Woburn Division of the District Court Department on December 14, 2015.   The case was tried before David E. Frank, J.     Tasha Kates for the defendant. Gabriel Pell, Assistant District Attorney, for the Commonwealth.     DITKOFF, J.  A District Court jury convicted the defendant, Kevin J. Faherty, of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1).  At a subsequent jury-waived trial, a District Court judge convicted the defendant as a fourth offender.  We are faced with the question whether a subsequent offense may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration.  Concluding that it may be, and rejecting the defendant’s challenge to the sufficiency of the evidence, we affirm. Background.  At approximately 2:30 P.M. on July 4, 2015, the defendant was injured while riding his motorcycle on Pond Street in Stoneham.  A Massachusetts State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of Jim Beam bourbon in the defendant’s saddle bag. The defendant was transported to a hospital.  Hospital records recorded that the defendant’s serum alcohol level was 359 milligrams per deciliter.  An expert from the Office of Alcohol Testing at the Massachusetts State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent. The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted.  He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance.  The jury convicted the defendant on both a theory of impairment and a theory of having a […]

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Posted by Massachusetts Legal Resources - April 11, 2018 at 4:07 pm

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