Posts tagged "1104313"

Commonwealth v. Robinson (Lawyers Weekly No. 11-043-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       11‑P‑1817                                       Appeals Court   COMMONWEALTH  vs.  JAMES E. ROBINSON.     No. 11‑P‑1817. Plymouth.     December 5, 2012.  ‑  March 13, 2013. Present:  Kafker, Milkey, & Agnes, JJ.   Resisting Arrest.  Controlled Substances.  Practice, Criminal, Costs, Waiver, Instructions to jury, Motion to suppress.  Search and Seizure, Container.       Complaint received and sworn to in the Brockton Division of the District Court Department on September 17, 2007.   A pretrial motion for funds was considered by James F.X. Dinneen, J.; a pretrial motion to suppress evidence was heard by David G. Nagle, J.; and the case was tried before Julie J. Bernard, J.     Merritt Schnipper for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.     MILKEY, J.  Following a jury trial in District Court, the defendant was convicted of resisting arrest, G. L. c. 268, § 32B, and possession of a class D substance (marijuana) with intent to distribute, G. L. c. 94C, § 32C.[1]  On appeal, he challenges the resisting arrest conviction based on the denial of his motion for funds to try to identify eyewitnesses to his arrest.  Although the defendant was eventually granted such funds prior to trial, he argues that this did not cure the initial error.  We conclude that the defendant did not preserve the issue and that he cannot demonstrate a substantial risk of a miscarriage of justice on the current record.  Because we find no merit in an alternative argument that the defendant makes, we affirm his conviction of resisting arrest.  With regard to the defendant’s contention that the judge erred in denying his motion to suppress (the only claim he raises as to his drug conviction), the defendant waived the specific argument he now presses on appeal, and we, in any event, are unpersuaded by it.  We therefore affirm that conviction as well.   1.  The defendant’s request for funds.  a.  Background.  Following a traffic stop in Brockton, the State police arrested the driver of a minivan for driving with a suspended license.  The defendant was seated in the rear seat of the vehicle, and there were at least two other passengers in the vehicle as well.  For reasons discussed in further detail below, Trooper Brian Galvin ordered the defendant from the vehicle.  In conducting a patfrisk of him, the troopers discovered a “fanny pack” stuffed down the front of the […]

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Posted by Massachusetts Legal Resources - March 13, 2013 at 9:26 pm

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