Commonwealth v. Torres (Lawyers Weekly No. 11-092-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-442 Appeals Court COMMONWEALTH vs. JULIO TORRES. No. 14-P-442. August 5, 2015. Sex Offender. Evidence, Sex offender, Criminal records. Practice, Civil, Instructions to jury. Following a jury trial in the Superior Court, the defendant, Julio Torres, was found to be a sexually dangerous person. See G. L. c. 123A, § 1.[1] The defendant appeals, claiming error in certain evidentiary rulings and jury instructions. We affirm. 1. Prior criminal history. In 1997, the defendant was charged with assault and battery by means of a dangerous weapon and indecent assault and battery following an incident wherein he assaulted a sixteen year old female victim. The defendant was twenty-five years old at the time. When the victim refused his advances,[2] he held a knife to her stomach, pushed her back, straddled her, and began to choke her. During this assault, the defendant touched the victim’s buttocks and legs. As part of a plea agreement, the defendant pleaded guilty to assault and battery by means of a dangerous weapon, and the Commonwealth dismissed the indecent assault and battery charge. The defendant received a suspended sentence, a two-year term of probation, and was ordered to “[p]articipate in [a] Mass. Rehab. evaluation” and related treatment. The defendant subsequently engaged in further criminal sexual behavior, leading to additional convictions. In 2000, he pleaded guilty to four counts of rape and one count of indecent assault and battery. In 2009, he was convicted of annoying and accosting a person of the opposite sex.[3] 2. Evidentiary issues. a. Admission of 1997 conviction. The defendant argues that it was error to deny his motion in limine to preclude the Commonwealth’s witnesses from referring to evidence related to the 1997 conviction of assault and battery by means of a dangerous weapon because it is not a sexual offense. We disagree. See G. L. c. 123A, § 14(c).[4] The position taken by the defendant was rejected by this court in Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 332 (2007) (police reports relating to defendant’s conviction of assault and battery admissible pursuant to G. L. c. 123A, § 14[c], where incident involved rape of a fourteen year old girl). That the defendant in Starkus pleaded guilty to assault and battery, a lesser included offense of rape of a child, and the defendant in this case pleaded guilty to a separate charge of assault and […]
Commonwealth v. Torres (Lawyers Weekly No. 10-028-15)
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 SJC-11771 COMMONWEALTH vs. RAMON TORRES. February 23, 2015. Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Presumption. Practice, Criminal, Plea, Conduct of government agents, Presumptions and burden of proof. Evidence, Guilty plea, Certificate of drug analysis, Presumptions and burden of proof. Notary Public. In January, 2008, the defendant, Ramon Torres, pleaded guilty to distribution of a class B substance, in violation of G. L. c. 94C, § 32A, and was sentenced to serve one year in a house of correction. In April, 2013, in light of problems that surfaced at the William A. Hinton State Laboratory (Hinton drug lab or lab), and with Annie Dookhan in particular, he filed a motion to withdraw his guilty plea and for a new trial.[1] After a hearing, a judge in the District Court, who was also the judge who had accepted the defendant’s guilty plea, denied the motion. The defendant appealed, and we transferred his appeal to this court on our own motion. According to the Brockton police department arrest report, the defendant was arrested after selling an off-white rock-like substance to an undercover police officer. Both a field test, conducted by the police, and a subsequent test at the Hinton drug lab indicated that the substance was cocaine. The certificate of drug analysis associated with the lab testing was signed by assistant analysts Kate Corbett and Della Saunders. Dookhan signed the certificate as a notary public. We recently considered, in several cases, the effect of Dookhan’s misconduct on a defendant’s motion to withdraw a guilty plea on the basis of that misconduct. See Commonwealth v. Scott, 467 Mass. 336, 337 (2014), and cases cited. In Scott, we adopted the two-part analysis set forth in Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006), for cases involving alleged government misconduct leading to a guilty plea. Scott, supra at 346. The first prong of the Ferrara analysis requires a defendant to show that egregious government misconduct “preceded the entry of his guilty plea and that it is the sort of conduct that implicates the defendant’s due process rights.” Id. at 347, citing Ferrara, supra at 290, 291. The second prong requires a defendant to demonstrate that “the misconduct influenced his decision to plead guilty or . . . […]
Commonwealth v. Torres (Lawyers Weekly No. 11-113-14)
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-1733 Appeals Court COMMONWEALTH vs. FELIX TORRES. No. 12-P-1733. Worcester. March 7, 2014. – September 10, 2014. Present: Katzmann, Rubin, & Carhart, JJ. Rape. Indecent Assault and Battery. Practice, Criminal, Public trial, Severance, Trial of indictments together, Mistrial. Constitutional Law, Public trial. Evidence, First complaint, Prior misconduct, Pattern of conduct, Relevancy and materiality, Redirect examination. Indictments found and returned in the Superior Court Department on September 12, 2006. The cases were tried before Bruce R. Henry, J.; a motion for a new trial, filed on January 21, 2011, was heard by him; and a motion for reconsideration was considered by him. Angela G. Lehman for the defendant. Stephen J. Carley, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from his convictions of seven counts of indecent assault and battery on a child and eight counts of rape of a child, and from the denials of his motions for a new trial and to reconsider. The defendant argues that the trial judge erred in concluding that the court room was not closed to the public, failing to sever the counts sua sponte, admitting improper first complaint testimony, and making various evidentiary rulings. We affirm. Background. The jury were presented with the following evidence. The defendant was in an intermittent relationship with Sonia Nieves. They had two children together, Kim[1] and David.[2] Nieves also had a child from a different relationship, Sara.[3] Nieves’s three sisters, Nina,[4] Ann,[5] and Beth,[6] occasionally lived with her and the defendant. The victims, Kim, Nina, and Ann, all testified at trial. Kim testified that the defendant touched her for the first time when she was seven or eight years old. He entered her bedroom while Sara was sleeping in the room and touched Kim’s breast, buttocks, and vagina with his hand. On another occasion, the defendant climbed into Kim’s bed, again while Sara was in the room, touched Kim’s vagina with his penis, and put his penis inside Kim’s mouth. He was silent during both incidents. Nina testified that the defendant touched her for the first time when she was eight years old. On that occasion, he approached Nina while she was doing laundry and put his penis inside her buttocks and vagina. Then, when Nina was eleven years old, the defendant entered her bedroom […]
Commonwealth v. Torres (Lawyers Weekly No. 10-140-14)
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-10849 COMMONWEALTH vs. JOSE TORRES. Suffolk. April 11, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.[1] Homicide. Practice, Criminal, Capital case, New trial, Assistance of counsel, Argument by counsel, Instructions to jury. Evidence, Opinion, Expert opinion. Witness, Expert. Indictment found and returned in the Superior Court Department on June 26, 2008. The case was tried before Elizabeth M. Fahey, J., and a motion for a new trial, filed on October 19, 2011, was considered by her. Emanuel Howard for the defendant. Donna Jalbert Patalano, Assistant District Attorney (David A. Deakin, Assistant District Attorney, with her) for the Commonwealth. SPINA, J. The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. He filed a motion for a new trial alleging ineffective assistance of counsel, and he requested an evidentiary hearing. The trial judge denied the motion without a hearing. Her indorsement in the margin said, “for the reasons stated in [the Commonwealth’s] opposition.” On appeal the defendant alleges error in the denial of his motion for a new trial, the judge’s failure to make findings, and the judge’s failure to hold an evidentiary hearing on the motion. We affirm the conviction and the denial of the defendant’s motion for a new trial. We decline to exercise our power under G. L. c. 278, § 33E. 1. Background. The defendant moved into his girl friend’s third-floor apartment in the Dorchester section of Boston in the middle of February, 2008. His girl friend, the victim, had four children, the oldest of whom was six years old. On March 8, 2008, Kristina Ortiz visited the victim at her apartment. The defendant and the victim’s four children were there. As Ortiz was leaving, the defendant made a disparaging remark about the victim’s children. That evening the victim sent her six year old son down to the first-floor apartment of a neighbor three times to ask the neighbor to come up to his mother’s apartment. Each time the neighbor said she would be right up, but became distracted by her own children and failed to appear. At 9 P.M. the defendant went down to the first-floor apartment and told the neighbor that his “wife was waiting” for her. The neighbor went up […]
Commonwealth v. Torres (Lawyers Weekly No. 10-096-14)
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‑11498 COMMONWEALTH vs. CARMELO TORRES. Franklin. April 7, 2014. ‑ June 10, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Abuse Prevention. Assault and Battery. Practice, Criminal, Double jeopardy, Duplicative convictions, Lesser included offense, Required finding. Constitutional Law, Double jeopardy. Complaints received and sworn to in the Greenfield Division of the District Court Department on November 3, 2011 and December 9, 2011. The cases were tried before William F. Mazanec, III., J., and a posttrial motion for a required finding of not guilty was heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Stephen P. Kelly for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. We granted the defendant’s application for further appellate review to determine whether a defendant’s conviction of violating of an abuse prevention order pursuant to G. L. c. 209A, § 7, is a lesser included offense of assault and battery on a person protected by an abuse prevention order, pursuant to G. L. c. 265, § 13A (b) (iii). Because we conclude that a violation of an abuse prevention order that contains a mandate to refrain from abuse is not a lesser included offense of assault and battery on a person protected by an abuse prevention order, and that there was sufficient evidence for the jury to determine that the defendant had committed both offenses, we affirm. Background. At a trial in 2011, the parties stipulated that an abuse prevention order had issued against the defendant, who had proper notice and knew of the order. The order contained the sole directive that the defendant refrain from abusing the victim. Two witnesses, a police officer and the defendant’s neighbor, testified for the Commonwealth as follows. Late in the evening on November 2, 2011, the defendant and the victim engaged in an altercation, and both were injured. A neighbor who was outside listened to the altercation for forty-five minutes. She heard the victim screaming, the defendant’s repeated shouts of “you hit me,” “go to bed,” and “shut your mouth,” and the recurring sound of a “fist to skin”. The neighbor saw the defendant push the victim into a rack that held digital video discs (DVDs). The defendant then left the apartment. The neighbor […]
Commonwealth v. Torres (Lawyers Weekly No. 10-038-14)
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‑11466 COMMONWEALTH vs. RENE TORRES. March 5, 2014. Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Presumption. Practice, Criminal, Plea, Conduct of government agents, Presumptions and burden of proof. Evidence, Guilty plea, Certificate of drug analysis, Presumptions and burden of proof. This case is remarkably similar to Commonwealth v. Scott, ante (2014), also decided today. The Commonwealth appeals a grant of the defendant’s motion to vacate his guilty plea under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), in a case arising out of the revelation of the wrongdoing of Annie Dookhan, a chemist at the William A. Hinton State Laboratory Institute’s forensic drug laboratory (Hinton drug lab) from 2003 to 2012. The full extent of the investigation into Dookhan’s conduct is set forth in Scott, supra at , and reveals multiple deliberate breaches of laboratory and testing protocols by Dookhan as well as her falsification of test results for forensic evidence samples in an unknown, and likely unidentifiable, number of drug cases until her June, 2011, reassignment out of the Hinton drug lab.[1] Similar to the defendant in Scott, the defendant here was charged with possession of a class B controlled substance (“crack” cocaine) under G. L. c. 94C, §§ 31, 34.[2] The defendant entered into a plea agreement with the Commonwealth before Dookhan’s misconduct came to light. Also as in Scott, Dookhan signed a certificate of drug analysis on the line labeled “Assistant Analyst” in the defendant’s case identifying the substance found in his possession as crack cocaine. Upon learning of the investigation into Dookhan’s conduct, the defendant filed a motion to withdraw his guilty plea, which was granted. The Commonwealth appealed, and we granted the Commonwealth’s application for direct appellate review. For all the reasons set forth in Scott, we vacate the grant of the defendant’s motion to withdraw his plea. We remand the case to permit the defendant to take advantage of the conclusive presumption we have set forth in Scott and to allow the trial court judge to consider whether the defendant can show a reasonable probability that had he known of the allegations against Dookhan at the time of his plea, he would have refused to plead guilty and insisted on going to trial. […]
Commonwealth v. Torres (Lawyers Weekly No. 11-021-14)
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‑919 Appeals Court COMMONWEALTH vs. JUAN TORRES. No. 12‑P‑919. Bristol. January 7, 2014. ‑ March 5, 2014. Present: Katzmann, Fecteau, & Milkey, JJ. Firearms. Motor Vehicle, Firearms. Search and Seizure, Inventory. Constitutional Law, Search and seizure. Practice, Criminal, Motion to suppress. Indictments found and returned in the Superior Court Department on July 30, 2010. A pretrial motion to suppress evidence was heard by Richard T. Moses, J., and the cases were tried before Robert J. Kane, J. Susan E. Taylor for the defendant. Owen J. Murphy, Assistant District Attorney, for the Commonwealth. MILKEY, J. Following a jury trial in Superior Court, the defendant was convicted of carrying a firearm without a license, G. L. c. 269, § 10(a), and of unlawful possession of a large capacity feeding device, G. L. c. 269, § 10(m). These convictions were based on a gun that the police discovered during an inventory search of a car that the defendant had been driving. On appeal, the defendant argues that his motion to suppress the gun should have been allowed because of the failure by police to complete an inventory search form. We affirm. Background. The facts are not in dispute. On July 2, 2010, Swansea police officer Donald Dibiasio was monitoring traffic on Route 6 in Swansea, while parked at a mall adjacent to the highway. After observing the defendant’s car drive through a stop sign, Dibiasio pulled the car over to the side of route 6. At that point, the highway has two lanes in each direction and no breakdown lane. Thus, the defendant’s stopped vehicle was obstructing traffic in one of the two travel lanes in that direction. Through a routine check of the defendant’s license and registration, Dibiasio learned that the defendant’s license had been suspended. Because the defendant was alone in the car and the car was obstructing traffic, Dibiasio determined that the car would have to be towed from the scene (a decision that was approved by Dibiasio’s superior). Dibiasio informed the defendant that he would be summonsed for driving with a suspended license and that the vehicle was going to be towed. While the defendant was outside the vehicle but still present at the scene, and while awaiting the tow truck’s arrival, Dibiasio began to inventory the car’s contents in […]