Posts tagged "Commonwealth"

Commonwealth v. Rivers (Lawyers Weekly No. 11-042-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1435                                       Appeals Court   COMMONWEALTH  vs.  MATTHEW W. RIVERS.     No. 16-P-1435.   Dukes County.     November 1, 2017. – April 10, 2018.   Present:  Green, C.J., Rubin, & Kinder, JJ.     Constitutional Law, Identification, Voluntariness of statement.  Due Process of Law, Identification.  Identification.  Evidence, Identification, Voluntariness of statement.  Practice, Criminal, Voluntariness of statement, Motion to suppress, Interlocutory appeal.       Complaint received and sworn to in the Edgartown Division of the District Court Department on October 30, 2014.   Pretrial motions to suppress evidence heard by J. Thomas Kirkman, J.   Applications for leave to prosecute interlocutory appeals were heard by Barbara A. Lenk, J., and Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and each appeal was reported to the Appeals Court.     Timothy M. Moriarty for the defendant. Tara L. Johnston, Assistant District Attorney, for the Commonwealth.     GREEN, C.J.  A group altercation outside a party on Martha’s Vineyard led to a complaint charging the defendant with two counts of felony assault and battery.[1]  He now appeals from two orders of a District Court judge denying his motions to suppress (1) evidence of an out-of-court identification made by an assault victim, and (2) statements the defendant made to police after suggestions by an officer that his cooperation would avoid a felony charge.[2]  We affirm the order denying suppression of the identification.  However, we agree with the defendant that the Commonwealth did not meet its burden to prove, beyond reasonable doubt, that the defendant’s statements were voluntary, and accordingly we reverse the order denying his motion to suppress them. Background.  We summarize the motion judge’s subsidiary findings of fact, which the defendant does not contest. On June 28, 2014, the victim went to a party in West Tisbury before going to a party in Oak Bluffs.  He had three or four beers that evening and it was “possible” he had some cocaine. When the victim arrived at the Oak Bluffs party he encountered Matt Brown, whose sister the victim had been dating.  Believing Brown was going to attack him, the victim struck Brown first and was then attacked by several others who cornered him in a parking lot.  The victim was between several cars when he struck Brown, and then the defendant struck the victim in the face twice.  The […]

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Posted by Massachusetts Legal Resources - April 10, 2018 at 3:04 pm

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Commonwealth v. Anitus (Lawyers Weekly No. 11-041-18)

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-1282                                       Appeals Court   COMMONWEALTH  vs.  JEFFREY ANITUS.     No. 16-P-1282.   Bristol.     December 6, 2017. – April 6, 2018.   Present:  Milkey, Henry, & Wendlandt, JJ.     Robbery.  Deoxyribonucleic Acid.  Identification.  Evidence, Identification.  Practice, Criminal, Required finding.     Indictments found and returned in the Superior Court Department on December 19, 2013.   The cases were tried before Renee P. Dupuis, J.     Michelle Menken for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.     WENDLANDT, J.  Following a jury trial, the defendant was convicted of armed robbery while masked, pursuant to G. L. c. 265, § 17, and assault by means of a dangerous weapon, pursuant to G. L. c. 265, § 15B(b).[1]  On appeal, the defendant argues that there was insufficient evidence to support the conviction under Commonwealth v. Morris, 422 Mass. 254 (1996).  Applying the Supreme Judicial Court’s jurisprudence regarding the sufficiency of fingerprint evidence found on a moveable object at a crime scene to the deoxyribonucleic acid (DNA) evidence in this case, we agree. Background.  On July 3, 2013, two men broke into a Burger King in Easton at around 11:30 P.M. and stole approximately $ 3,000.  Both men were described by the restaurant manager, who was present during the robbery, as African-American and wearing blue surgical masks.  The first assailant was approximately six feet tall, and armed with a gun; he wore a dark hooded sweatshirt.  The second assailant, who wore a tan hooded sweatshirt, was “a little bit taller” than the armed man. Surveillance recordings from the Burger King and the neighboring Dunkin’ Donuts captured images of both men as they fled the crime scene.  The recordings showed the second assailant removing his mask and, as he is fleeing the crime scene, tossing something into the Dunkin’ Donuts plaza.  His profile was captured in one of the recordings; however, the recording (and the still photographs captured from it) were grainy and of extremely poor quality.[2]  The surveillance recordings also captured a white vehicle matching the make and model of the defendant’s mother’s vehicle.[3] One of the police officers who responded to the crime scene discovered two cloth items — a white toddler-sized T-shirt and a blue knotted bandana — in the Dunkin’ Donuts plaza.  The Commonwealth’s theory was that the defendant was the second assailant.  Based on the recordings,[4] the Commonwealth argued […]

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Posted by Massachusetts Legal Resources - April 6, 2018 at 6:02 pm

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Commonwealth v. Lujan (Lawyers Weekly No. 11-038-18)

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-1428                                       Appeals Court   COMMONWEALTH  vs.  MIHAIL LUJAN.     No. 16-P-1428.   Hampden.     September 14, 2017. – April 3, 2018.   Present:  Wolohojian, Agnes, & Wendlandt, JJ.     Rape.  Practice, Criminal, Motion to suppress, Interpreter, Admissions and confessions, Voluntariness of statement.  Interpreter.  Due Process of Law, Interpreter.  Constitutional Law, Voluntariness of statement, Admissions and confessions.       Indictment found and returned in the Superior Court Department on April 30, 2013.   A pretrial motion to suppress evidence was heard by Tina S. Page, J.   An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.     David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant.     WOLOHOJIAN, J.  We are called upon in this interlocutory appeal to decide whether a Superior Court judge erred in allowing the defendant’s motion to suppress statements he made during a police interview.  The defendant’s native and primary language is Moldovan but he also has some knowledge of Russian, a language unrelated to Moldovan.  To bridge the language barrier between the officers (who spoke English) and the defendant (who did not) the officers enlisted the help of a Russian-speaking student intern (intern).  The intern had no knowledge of Moldovan, and was not a certified interpreter in Russian.  After reviewing a videotape of the interview and conducting an evidentiary hearing that included testimony from a court-certified Russian interpreter, the judge found numerous irregularities in the way the intern carried out his interpretative role.  These included instances where the intern omitted or changed words, phrases, and even questions and answers; instances where the intern suggested words to the defendant that the defendant adopted to his detriment; instances where the intern asked his own questions; and instances where the intern resorted to pantomime and gestures in an attempt to explain Russian words to the defendant and to help understand what the defendant was trying to say.  The judge concluded that the defendant was not effectively advised of his Miranda rights and that the defendant’s statement was not voluntary because much of the statement was not his. In this interlocutory appeal, the Commonwealth argues that (1) the […]

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Posted by Massachusetts Legal Resources - April 3, 2018 at 6:29 pm

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Commonwealth v. Langley (Lawyers Weekly No. 09-029-18)

1 COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT Criminal No. 17-64 COMMONWEALTH vs. COREY LANGLEY MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS Defendant Corey Langley is charged with two counts of possession of a substance, material, article, explosive, or ingredient which could be used to make a destructive or incendiary device or substance in violation of G.L. c. 266, § 102(a)(i) (Counts 001 and 002), and two counts of secreting, throwing, launching, or otherwise placing an explosive or incendiary device in violation of G.L. c. 266, § 102A (Counts 003 and 004). Defendant moves to dismiss under Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), arguing the grand jury heard insufficient evidence to support the indictments. After hearing,1 for the following reasons, the motion is ALLOWED. BACKGROUND The grand jury heard the following evidence: On January 13, 2017, Holbrook Police Department Detective Scott Glover received a call to the effect that two possible explosive devices were located at 44 Poole Circle in Holbrook (“the Property”). When Det. Glover responded to the scene, he observed in the Property’s 1 At the hearing on December 19, 2017, I allowed the Commonwealth’s request for a significant amount of time (until February 27, 2018) to file a written opposition. Despite the accommodation, the Commonwealth has not filed an opposition. 2 backyard near the gate (i) a white bleach bottle with a hole cut into the cap and a pair of underwear on or near the bottle, and (ii) a Crisco bottle filled with nails and batteries, which had a hole cut in its top and a wick coming out of the hole. Det. Glover contacted the State Police Bomb Squad. James Morgan, the owner of the Property, told Det. Glover that after midnight on the previous night, he had heard a loud noise in the woods, like something running away, but he did not see anything. Mr. Morgan reported that the next morning, he observed a bleach bottle in the backyard and a Crisco oil bottle and a burned pair of underwear in the wooded area outside the backyard gate to the Property. Mr. Morgan also said that he noticed that the gate had been sprayed with a liquid. The State Police responded to the scene, photographed the evidence, and made sure it was safe to remove the two bottles from the area. Mr. Morgan told Det. Glover that a number of teenagers were staying in a house on the other side of the wooded area behind the Property, including possibly the defendant; and they were the only people Mr. Morgan believed may have put the objects in his yard. Another Holbrook police officer, Officer Sterling, walked back behind the Property until he […]

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Posted by Massachusetts Legal Resources - March 30, 2018 at 5:53 pm

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Commonwealth v. Escobar (Lawyers Weekly No. 10-048-18)

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-12371   COMMONWEALTH  vs.  EMILIA ESCOBAR.       Suffolk.     January 10, 2018. – March 29, 2018.   Present:  Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.     False Impersonation & Identity Fraud.  Fraud.  Practice, Criminal, Plea.  Words, “Anything of value.”       Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on October 2, 2003.   A motion to withdraw a plea of guilty, filed on November 18, 2016, was heard by Kenneth J. Fiandaca, J.   The Supreme Judicial Court granted an application for direct appellate review.     Edward Crane for the defendant. Dara Z. Kesselheim, Assistant District Attorney, for the Commonwealth.          BUDD, J.  The defendant, Emilia Escobar, pleaded guilty to identity fraud pursuant to G. L. c. 266, § 37E (b), in connection with providing a false name to a police officer during a traffic stop.  Here, she appeals from the denial of a motion to withdraw the guilty plea, claiming that there were insufficient facts to establish that she attempted to receive, or received, “anything of value” within the meaning of § 37E (b).  Because we conclude that the phrase “anything of value,” as it appears in the statute, does not include avoiding criminal prosecution, we reverse. Background.  The facts are uncontested.  In October, 2002, a State police trooper stopped the defendant for driving an automobile with an excessively loud exhaust.  The defendant told the trooper falsely that her name was Ana Escobar, gave a false date of birth, and said that she did not have her license with her.  Upon conducting a check with the registry of motor vehicles, the trooper learned that Ana Escobar’s license was suspended and issued a citation in Ana Escobar’s name. Almost one year later, an investigation revealed that the defendant had been untruthful at the time of the stop.  A complaint was issued charging the defendant with multiple infractions in addition to identity fraud:  operating a motor vehicle with a suspended license;[1] improper operation of a motor vehicle; failing to possess a license while operating a motor vehicle; and providing a false name to a police officer. In March, 2004, pursuant to a plea agreement, the defendant admitted to sufficient facts on all charges except the charge of providing a false name to a police officer, which was dismissed.  Charges […]

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Posted by Massachusetts Legal Resources - March 29, 2018 at 4:50 pm

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Commonwealth v. Grundman (Lawyers Weekly No. 10-045-18)

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; SJCReportersjc.state.ma.us   SJC-12264   COMMONWEALTH  vs.  MICHAEL C. GRUNDMAN.       Barnstable.     November 9, 2017. – March 22, 2018.   Present:  Gants, C.J., Gaziano, Lowy, & Budd, JJ.     Sex Offender.  Global Positioning System Device.  Practice, Criminal, Sentence, Probation.       Indictments found and returned in the Superior Court Department on October 19, 2012.   A motion to correct a clerical error in sentence, filed on September 24, 2014, was heard by Gary A. Nickerson, J., and motions for reconsideration were considered by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Andrew S. Crouch for the defendant. Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth.     LOWY, J.  The defendant pleaded guilty to two indictments charging five counts of rape of a child and was sentenced to a term of incarceration and a term of probation.  Despite the provisions of G. L. c. 265, § 47, mandating that defendants convicted of certain sex offenses, including rape of a child, be subject to global positioning system (GPS) monitoring as a condition of any term of probation, that condition was not announced in open court when the defendant’s sentence was imposed.[1]  At issue here is whether the judge erred in resentencing the defendant to include the GPS monitoring condition approximately ten months after the defendant was originally sentenced.  We conclude that because the defendant here did not receive actual notice from the sentencing judge, at the time of sentencing, that GPS monitoring was included as a special condition of his probation, and because the resentencing occurred after the sixty-day period in which an illegal sentence may be corrected under Mass. R. Crim. P. 29 (a) (1), as appearing in 474 Mass. 1503 (2016), the belated imposition of GPS monitoring must be vacated.  See Commonwealth v. Selavka, 469 Mass. 502, 513-514 (2014). Background.  Following a plea colloquy, the defendant pleaded guilty to five counts of rape of a child, involving two victims.  The defendant’s sentencing hearing occurred approximately two months later, when a Superior Court judge sentenced him to a term of two years in a house of correction and a ten-year term of probation (with special conditions) to be served concurrently with his term of incarceration.  In open court, the clerk announced that the defendant’s sentence would […]

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Posted by Massachusetts Legal Resources - March 22, 2018 at 8:16 pm

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Commonwealth v. Moore (Lawyers Weekly No. 11-035-18)

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   15-P-944                                        Appeals Court   COMMONWEALTH  vs.  ERIC MOORE.     No. 15-P-944.   Suffolk.     December 5, 2017. – March 22, 2018.   Present:  Trainor, Meade, & Wolohojian, JJ.     Motor Vehicle, Unauthorized use.  Rules of Criminal Procedure.  Probable Cause.  Practice, Criminal, Complaint, Dismissal, Arraignment.  Constitutional Law, Separation of powers.     Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 23, 2015.   A motion to dismiss was heard by Myong Joun, J.     Helle Sachse, Assistant District Attorney, for the Commonwealth. Bruce W. Carroll for the defendant.     TRAINOR, J.  The defendant, Eric Moore, was charged with, among other things, using a motor vehicle without authority (use without authority), in violation of G. L. c. 90, § 24(2)(a).  At the arraignment hearing, the defendant orally moved to dismiss the charge of use without authority; the judge allowed the defendant’s motion prior to arraignment and proceeded to arraign the defendant on the remaining charges.  The Commonwealth filed this timely appeal, arguing that the judge erred in dismissing the use without authority charge for two reasons:  first, a complaint against an adult defendant, unlike one against a juvenile, cannot be dismissed prior to arraignment; and second, the complaint was supported by probable cause that the defendant used the motor vehicle without authority.  For the reasons set forth infra, we reverse the dismissal of the charge of use without authority. Background.  On March 23, 2015, the defendant was driving a rental car and was pulled over for failing to come to a complete stop at a stop sign.  When the police officers asked the defendant for his license and registration, the defendant responded that he did not have a license in his possession.  Upon a criminal justice information system query, the officers learned that the defendant’s out-of-State license was suspended.  The officers then contacted the rental company and obtained a copy of the rental agreement for the vehicle, which provided that Nicole Hosier of Pittsfield was the only individual authorized to operate the rental car.  The officers subsequently arrested the defendant for, among other things, use without authority, and towed the rental car. At the defendant’s arraignment hearing, defense counsel requested to be heard prior to the arraignment.  Defense counsel asked the judge to dismiss the use without authority charge because the facts do “not […]

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Posted by Massachusetts Legal Resources - March 22, 2018 at 4:41 pm

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Commonwealth v. G.F. (Lawyers Weekly No. 10-043-18)

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; SJCReportersjc.state.ma.us   SJC-12388   COMMONWEALTH  vs.  G.F.       Suffolk.     November 9, 2017. – March 20, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Sex Offender.  Constitutional Law, Sex offender.  Due Process of Law, Sex offender.  Practice, Civil, Sex offender, Civil commitment, Verdict.       Civil action commenced in the Superior Court Department on December 24, 2010.   A motion to modify the temporary order of confinement and for an order of custody conditions, filed on October 17, 2016, was heard by Douglas H. Wilkins, J., and questions of law were reported by him to the Appeals Court.   Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 24, 2016.   The case was heard by Gaziano, J., and the matter was reported by him to the Appeals Court.   After consolidation in the Appeals Court, the Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Joseph M. Kenneally (Michael F. Farrington also present) for G.F. John P. Zanini, Assistant District Attorney, for the Commonwealth.     GAZIANO, J.  This case concerns G. L. c. 123A, the statute governing civil commitment of sexually dangerous persons (SDP).  Prior to civilly committing an individual under this statute, the Commonwealth must obtain a unanimous jury verdict finding that the individual is sexually dangerous.[1]  G. L. c. 123A, § 14 (d).  Subject to certain exceptions, the trial to determine sexual dangerousness must be held within sixty days after the Commonwealth files a petition for trial.  G. L. c. 123A, § 14 (a).  During this time, the individual is to be temporarily confined.  See G. L. c. 123A, § 14 (e); Commonwealth v. Pariseau, 466 Mass. 805, 808 (2014). In this case, the Commonwealth filed a petition seeking to commit the petitioner as an SDP in December, 2010.  Following years of delay and three mistrials, the petitioner remains confined without a finding that he is sexually dangerous.  He contends that substantive due process and the SDP statute require dismissal of the Commonwealth’s petition.  A judge of the Superior Court concluded that continued confinement violated the petitioner’s substantive due process rights, ordered his release, and then stayed that order and reported a number of questions. We conclude that the SDP statute permits a fourth trial in the circumstances of this case.  While due process would impose a limit on the number of retrials […]

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Posted by Massachusetts Legal Resources - March 20, 2018 at 9:46 pm

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Commonwealth v. Harris (Lawyers Weekly No. 11-031-18)

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   17-P-123                                        Appeals Court   COMMONWEALTH  vs.  JESSE HARRIS.     No. 17-P-123.   Suffolk.     December 18, 2017. – March 19, 2018.   Present:  Green, C.J., Vuono, Wolohojian, Kinder, & Englander, JJ.     Constitutional Law, Search and seizure, Reasonable suspicion, Investigatory stop.  Search and Seizure, Threshold police inquiry, Reasonable suspicion.  Threshold Police Inquiry.  Firearms.  Evidence, Firearm, Knife, Flight.  Practice, Criminal, Stipulation, Motion to suppress.       Indictments found and returned in the Superior Court Department on November 13, 2015.   A pretrial motion to suppress evidence was heard by Robert N. Tochka, J., and the cases were heard by Robert B. Gordon, J., on a statement of agreed facts.     Rosemary Daly for the defendant. Meghan Joyce, Assistant District Attorney (L. Adrian Bispham, Assistant District Attorney, also present) for the Commonwealth.     ENGLANDER, J.  This case raises an issue as to the reasonableness of police conduct when the police engaged with, and ultimately stopped and seized, persons walking in a public area.  The defendant appeals from his convictions of illegal possession of a firearm and carrying a loaded firearm without a license, claiming that (1) the firearm was seized in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, and (2) the trial judge failed to conduct the necessary waiver colloquy before convicting the defendant based upon stipulated facts.  Because, as the Commonwealth acknowledges, the required colloquy did not occur, the judgments must be vacated and the findings set aside. That leaves the search and seizure issue, which has been fully briefed and argued and which bears on any future proceedings.  See Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 289 (2009).  The seizure of the gun resulted from what began as a “casual” encounter between the defendant, his two companions, and the Northeastern University (university) police, outdoors on a September afternoon in the middle of the university’s campus.  The defendant contends that he and his companions were stopped or seized, for constitutional purposes, without the required reasonable suspicion, and that the gun accordingly must be suppressed.  A Superior Court judge denied the defendant’s pretrial motion to suppress the gun, concluding that the initial conversations with police were consensual and that no stop occurred until after the police officers had observed a knife on the defendant’s person, at […]

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Posted by Massachusetts Legal Resources - March 20, 2018 at 3:52 am

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Commonwealth v. Sutherland (Lawyers Weekly No. 11-034-18)

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   17-P-44                                         Appeals Court   COMMONWEALTH  vs.  ADMIRAL SUTHERLAND.     No. 17-P-44.   Hampden.     January 19, 2018. – March 19, 2018.   Present:  Blake, Neyman, & Ditkoff, JJ.     Controlled Substances.  Evidence, Profile, Expert opinion, Authentication, Chain of custody.  Witness, Expert.  Practice, Criminal, Required finding, New trial, Assistance of counsel.       Indictment found and returned in the Superior Court Department on October 13, 2010.   The case was tried before John A Agostini, J., a motion for a new trial was considered by him, and a motion for reconsideration was considered by him.     Barbara J. Sweeney for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.     BLAKE, J.  Following a jury trial in the Superior Court, the defendant, Admiral Sutherland, was convicted of possession with intent to distribute heroin.  Thereafter, he pleaded guilty to a charge that it was a subsequent offense.  His motions for a new trial and for reconsideration were denied without a hearing.  On appeal, the defendant claims that the admission of improper so-called “negative profiling” evidence amounted to reversible error, that there was insufficient evidence that the substance was heroin, and that it was an abuse of discretion to deny his motion for new trial.  We affirm. Background.  The jury could have found the following facts.  On September 11, 2010, Massachusetts State police Trooper Luis Rodriguez was conducting a community walk through[1] in Springfield.  Rodriguez noticed a black Nissan being driven by the defendant, who he knew did not have a valid driver’s license.  After the defendant parked the Nissan, Rodriguez arrested him for driving with a suspended license.  While searching the defendant, Rodriguez found a package of cigarettes, which contained three bundles.  Each bundle contained ten bags of what Rodriguez believed to be heroin.  Rodriguez also found a small bag of what he believed to be marijuana in the defendant’s possession. Within earshot of the defendant, Rodriguez discussed with another trooper his intention to apply for a warrant to search the defendant’s home.  Upon their arrival at the State police barracks, the defendant asked to use the telephone to arrange transportation for his daughter.  Rodriguez dialed the telephone number provided by the defendant and handed him the telephone.  The defendant said into the receiver, “They’re coming.  They’re coming.”  Rodriguez immediately ended the telephone call and asked the […]

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Posted by Massachusetts Legal Resources - March 19, 2018 at 5:09 pm

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