Commonwealth v. Perez (Lawyers Weekly No. 10-142-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12251 COMMONWEALTH vs. FERNANDO PEREZ. Hampden. April 3, 2017. – August 25, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Constitutional Law, Sentence. Due Process of Law, Sentence. Practice, Criminal, Sentence. Indictments found and returned in the Superior Court Department on February 16 and March 2, 2001. Following review by the Appeals Court, 62 Mass. App. Ct. 912 (2004) and 67 Mass. App. Ct. 1116 (2006), a motion for resentencing, filed on March 7, 2016, was considered by Daniel A. Ford, J., and a motion for reconsideration was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Elizabeth Caddick for the defendant. Elizabeth Dunphy Farris, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, also present) for the Commonwealth. Merritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submitted a brief. HINES, J. In the early morning hours of December 23, 2000, the juvenile defendant, Fernando Perez, who was then seventeen years of age, embarked on a crime spree in downtown Springfield. Accompanied by his adult uncle and armed with a handgun, the defendant committed two robberies, all within a span of thirty minutes. While attempting a third robbery, he shot the intended victim, a plain-clothed Springfield police officer. In November, 2001, a Superior Court jury convicted the defendant of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and related firearms offenses. The judge sentenced the defendant to multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one-half years,[2] with parole eligibility after twenty-seven and one-half years. In 2015, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015), the defendant filed a motion for resentencing under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that the aggregate sentence imposed violated the prohibition on cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and the cognate provision of art. 26 of the Massachusetts Declaration of Rights, by requiring him to serve twelve and one-half years longer before parole eligibility than a juvenile defendant convicted of murder. He argued also […]
Commonwealth v. Perez (Lawyers Weekly No. 11-154-16)
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-1672 Appeals Court COMMONWEALTH vs. SANTOS PEREZ.[1] No. 15-P-1672. Bristol. September 8, 2016. – October 21, 2016. Present: Green, Wolohojian, & Massing, JJ. Controlled Substances. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Probable cause, Warrant, Affidavit. Practice, Criminal, Motion to suppress, Warrant, Affidavit. Probable Cause. Indictments found and returned in the Superior Court Department on November 29, 2012. A pretrial motion to suppress evidence was heard by Raymond P. Veary, Jr., J. An application for leave to prosecute an interlocutory appeal was heard 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. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. Alexandra H. Deal for the defendant. MASSING, J. The Commonwealth appeals from the allowance of the defendant’s motion to suppress evidence seized from an apartment in the execution of a search warrant. The motion judge determined that the affidavit supporting the search warrant application, which relied in part on information provided by a confidential informant, did not satisfy the probable cause standard under the Aguilar–Spinelli test.[2] Reviewing the affidavit in its entirety, we conclude that the application did establish probable cause to search for heroin in the subject apartment. Accordingly, we reverse the order allowing the motion to suppress. Background. The defendant was indicted on charges of trafficking in 200 grams or more of heroin, in violation of G. L. c. 94C, § 32E(c)(4), and of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense heroin, G. L. c. 94C, § 32(a). It appears[3] that New Bedford police officers discovered a substantial quantity of heroin when they executed the warrant permitting them to search “172 Hathaway Street, apartment 3 east” for controlled substances, “to include specifically [h]eroin,” as well as instrumentalities used in, records of, and proceeds from the sale of controlled substances. The affidavit in support of the search warrant application, prepared by Lorenzo Gonzalez, III, a New Bedford police officer with four years of experience, assigned as a detective in a unit specializing in narcotics investigations, states that the New Bedford police began an investigation of the defendant when they received a confidential informant’s tip that “a male by the name of Luis Reyes,[4] with a […]
Commonwealth v. Perez (Lawyers Weekly No. 11-014-16)
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 11-P-2166 Appeals Court COMMONWEALTH vs. GLORIA PEREZ. No. 11-P-2166. Essex. December 10, 2015. – February 3, 2016. Present: Kafker, C.J., Milkey, & Sullivan, JJ. Larceny. Bank. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses. Evidence, Hearsay, Verbal conduct, Business record, Authentication of document. Indictments found and returned in the Superior Court Department on April 30, 2008. The cases were tried before Leila R. Kern, J. Andrew S. Crouch for the defendant. Philip Anthony Mallard, Assistant District Attorney, for the Commonwealth. MILKEY, J. “[W]here’s Phyllis?” A bank teller posed that question to the defendant who was seeking to withdraw $ 300 from the checking account of an absent bank customer. The defendant, who worked as a customer service representative at the bank, had presented a withdrawal slip purportedly signed by Phyllis Wall, an elderly customer who relied on a walker and was well known to the employees at that particular branch. In response to the question, the defendant stated that Wall had signed the withdrawal slip earlier that day and that she planned to give the money to Wall later. The teller gave the defendant the money, but then notified the branch manager about the transaction.[1] An internal investigation ensued, and the defendant ultimately was indicted for twenty-six property offenses, all related to alleged theft from customer accounts. After trial, a Superior Court jury convicted the defendant of six of those offenses: two counts of larceny over $ 250, one of which was from a person sixty years or older (G. L. c. 266, § 30[1], [5]), two counts of forgery (G. L. c. 267, § 1), and two counts of uttering (G. L. c. 267, § 5). On appeal, she challenges the admission of various bank records, and she claims that the evidence for one of the larceny charges was insufficient in one respect. We affirm. Background. The Phyllis Wall withdrawals. Five of the six convictions involved Wall. The defendant frequently assisted Wall with her transactions, such as obtaining money orders to pay all of her bills. The five convictions related to Wall involved two cash withdrawals, including the one described above, which took place on July 21, 2006. As noted, the withdrawal slip that the defendant presented during that transaction was purportedly signed by Wall. Wall was not available to testify as to whether the signature on […]
Commonwealth v. Perez (Lawyers Weekly No. 11-038-15)
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 12-P-1378 Appeals Court COMMONWEALTH vs. CARLOS MANUEL PEREZ. No. 12-P-1378. Middlesex. December 8, 2014. – April 15, 2015. Present: Kafker, Grainger, & Agnes, JJ. Controlled Substances. Practice, Criminal, Required finding, Instructions to jury, Motion to suppress, Warrant, Affidavit, New trial. Constitutional Law, Search and seizure. Search and Seizure, Warrant, Affidavit, Probable cause. Complaint received and sworn to in the Lowell Division of the District Court Department on April 26, 2010. A pretrial motion to suppress evidence was heard by Martine Carroll, J.; the case was tried before Laurence D. Pierce, J.; and motions for a new trial and for other postconviction relief were heard by him. Jeffrey G. Harris for the defendant. Matthew Bailey for the Commonwealth. GRAINGER, J. The defendant was charged with possession of cocaine with intent to distribute. He was convicted by a jury in the District Court of the lesser included offense of possession of a class B substance, G. L. c. 94C, § 34. He appeals, asserting insufficiency of the evidence, error in the jury instructions, and error in the denial of his motion to suppress evidence and his motion for a new trial or a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). His claims of reversible error are primarily dependent on the issuance and execution of a so-called “no-knock” warrant that produced the evidence resulting in his conviction. We address ancillary claims before considering the issuance of the warrant, referring to the undisputed facts as they are pertinent to the issues. Sufficiency. The defendant argues that the Commonwealth failed to demonstrate the requisite knowledge coupled with intent to exercise control that would support a conviction for constructive possession of the cocaine found in his bedroom. We disagree. The jury received evidence that the defendant was the only person in his bedroom when the police executed the search warrant. The police found cocaine in a glassine bag in the pocket of a man’s shirt hanging in the defendant’s bedroom closet. In the defendant’s bedroom the police found a bottle of boric acid, sandwich bags, a digital scale, $ 422 in cash, a Massachusetts identification card bearing the defendant’s name and picture, a Venezuelan passport bearing the defendant’s name and a picture closely resembling the defendant, and a billing receipt addressed to the defendant at that […]