Transcript Document

2014 YEAR IN REVIEW
COURTROOM CLOSURES
Commonwealth v. Morganti & Commonwealth v. Alebord
467 Mass. 96 & 106
• Issue of closure during empanelment waived by trial counsel, who
did not object.
• Defendant himself does not need to waive right to public trial.
• Not deficient performance to fail to object (trials were pre-Cohen).
• Even structural error can be waived.
Commonwealth v. LaChance
469 Mass. 854
• Where public trial right was waived and defendant seeks to
establish that his attorney was ineffective in not objecting to
closure, he must establish prejudice –under Saferian – and does
not get presumption of prejudice that would apply if it was a
preserved structural error.
• Of course, very difficult to imagine what prejudice could be shown.
What is left?
• Cases where creative argument of prejudice can be
made
• Cases where trial counsel was not aware of
closure.
• Commonwealth v. White, 85 Mass. App. Ct. 491 –
counsel didn’t know that court officer had closed
courtroom; court affirmed order allowing motion
for new trial.
SUPPRESSION ISSUES
Commonwealth v. Gentile,
466 Mass. 817
• What’s required for reasonable belief that target of
arrest warrant is in his home, so that police can enter
to execute the warrant?
• Very little: just going in early morning would have sufficed,
• BUT cop’s disbelief of woman at door who said defendant
not home cannot be given affirmative weight.
• “A hunch is still a hunch, even if it turns out to be correct.
• Great language in opinion about cops’ overconfidence in
their ability to discern whether someone is lying.
Commonwealth v. Augustine,
467 Mass. 230
• What is required for CW to get historical cell cite location
information (CSLI) from a private cell phone provider?
• On facts of this case, probable cause and warrant
• Article 14 requires more than reasonable suspicion showing that is
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required by Federal Stored Communications Act
CSLI implicates expectation of privacy because, much like GPS, it
tracks person’s movements
3rd party doctrine does not apply here, where cell users do not directly or
voluntarily provide CSLI and where CSLI is byproduct of cellphone
service, not its purpose
Duration of period for which historical CSLI is sought is relevant
consideration in calculus of reasonable expectation of privacy. Two
weeks clearly enough; does not define what would not be enough.
New rule; does not apply retroactively to final convictions.
Commonwealth v. Stewart,
469 Mass. 257
• BPD saw defendant, known drug dealer, followed by 3
people (including one counting $) down a street known for
drug use. All four huddled up and then separated. When
stopped, defendant denied having been on that street.
• Court: reasonable suspicion but not probable cause, even
after defendant caught lying to police about where he had
been.
• Court carefully parsed officer’s testimony and rejected trial
judge’s factual finding that officer saw an exchange.
Commonwealth v. Jones-Pannell,
85 Mass. App Ct. 390
• Outrageous case, now pending on FAR
• Rejects motion judge’s finding that area was not a high-
crime area, in part by relying on reported cases (involving
long-ago crimes) which mention the area
• Criticizes motion judge’s preface to his findings (“the
following facts are the only ones found by the court on
credible testimony”)
One-Party Consent Exception to Wiretap Statute
• Commonwealth v. Hearns, 467 Mass. 707
• Commonwealth v. Mitchell, 468 Mass. 417
• Commonwealth v. Burgos, 470 Mass. 133
• Focus: was offense (which must be designated under
statute) committed in connection with organized crime
• VERY fact-specific; requires careful attention to cop’s affidavit.
• Note: FN 8 in Burgos notes that the defendant filed a
pretrial motion to suppress which was denied and did not
object when evidence came in. Although basis for MTS
was purely statutory, “he likely preserved his objection.”
Odor of Unburnt Marijuana ≠ PC to Search
Commonwealth v. Overmyer & Commonwealth v. Craan,
469 Mass. 16 & 24
• Court “not confident . . . that a human nose can discern
reliably the presence of a criminal amount of marijuana,
as distinct from an amount subject to only to a civil fine.”
• Rejects Commonwealth argument that police could
search based on probable cause to believe defendant
was violating federal law, noting that argument
circumvents clear intent of Question 2 voters.
• What about dog sniff cases?
Mistakes by Police
• Commonwealth v. Bernard, 84 Mass. App. Ct. 771
• cop mistaken that G.L. c. 90 § 6 prohibits all license plate covers
(rather than just covers that obscure plate); stops premised on
mistake of law generally unconstitutional
• Predates Heien v. North Carolina, 135 S.Ct. 530 - objectively
reasonable mistake of law did not render stop unconstitutional.
• SJC has not addressed question of cop’s mistake of law under Art. 14.
• Distinguish Heien on difficulty of interpreting statute in question there.
• Commonwealth v. Maingrette, 86 Mass. App. Ct. 691
• cops checked warrant management 4 hours before arresting
defendant on default warrant; in meantime he cleared it up.
• Failure to recheck immediately before arrest violated BPD policy
• Evidence demonstrated ample time and opportunity to recheck
Short & Sweet
• Commonwealth v. White, 469 Mass. 96. Where person is
arrested on warrant for crime committed at unknown time
in past, police cannot conduct search incident to arrest for
evidence of that crime.
• Commonwealth v. Powell, 468 Mass. 272. Reaffirms
Rosario; rejects CW argument that Rosario doesn’t apply
if defendant questioned about charges other than those
on which he’s arrested.
• Commonwealth v. Rutledge, 86 Mass. App. Ct. 904.
Arguments not raised below by Commonwealth will not be
considered as a basis to reverse an order allowing a
motion to suppress.
FAILURE TO REGISTER
Commonwealth v. Arce,
467 Mass. 329
• Need actual proof of at least 4 overnight stays a month or 14 a
year for secondary address violation
• Defendant’s statement that he’s “staying” there not enough
• Challenge secondary address component of statute; problem is
that you need not register a secondary address unless you
spent 4 days a month or 14 a year in one place, and once you
do you are in violation of the statute; so you don’t have to
register until you have violated the statute, and by then it’s too
late
• See also Commonwealth v. Pike, 467 Mass. 1008 (defendant’s
statement that he was staying with a friend insufficient to prove
defendant had moved without telling SORB)
SOARES CHALLENGE
Commonwealth v. Mason,
85 Mass. App. Ct. 114
• Prosecutor used peremptory challenges on two of three
people of color in the venire but judge found no prima facie
case of discrimination because one person of color seated
• Misstatements of law: jurors shared defendant’s discrete
group; says race must be sole reason for exclusion
• See instead Sanchez v. Roden, 753 F.3d 279 (1st Cir. 2014)
(dismissing racial challenge because some African
Americans were seated is “facile and misguided”)
RESENTENCING
Commonwealth v. Cole,
468 Mass. 294
Commonwealth v. Parillo,
468 Mass. 318
Gangi v. Parole Board,
468 Mass. 323
Commonwealth v. Scott,
86 Mass. App. Ct. 812 (2015)
• Resentencing when your client has served his entire
committed sentence
• Resentencing in cases with interdependent sentences
Highlights
• No increase to aggregate punishment, which includes opening the
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defendant up to greater sanctions down the road
Must be quantitatively fair
Cannot resentence a defendant on a completed sentence, even
where it is part of a package
Make sure any sentence imposed after a permissibly restructured
sentence does not exceed the prior one
Look out for guys charged with a VOP (or already in on a VOP) where
the probation was imposed after a previous finding of illegality of a
CPSL sentence
If sentence was partially served then amended to probation, argue
that clients get pre-trial credit toward any VOP, even if the time is
going to another sentence (issue reserved in Commonwealth v.
Cumming, 466 Mass. 467 (2013) – fn. 6 - and Scott – fn. 7)
Commonwealth v. Selavka,
469 Mass. 520
• If your client is serving an illegal sentence in his favor (e.g.
– trial court forgot to impose mandatory GPS monitoring),
the Commonwealth can file a 29(a) motion to correct it but
has to do so within the 60-day window for revise or revoke
motions or the defendant’s sentence becomes final
• 30(a) motion to correct sentence opens client up to
resentencing; unclear if you have to win
• In this case, no appeal was filed so there was only one 60day window; nothing about second 60-day window after
the conclusion of the appeal
PRE-TRIAL CREDIT
Commonwealth v. Holmes,
469 Mass. 1010
• Not allowing defendants to bank time is more important than
ensuring they did not serve dead time
• Even if they don’t know they have time banked when they
commit the later offense
• However, if defendant can demonstrate actual innocence or
other equally compelling circumstance, then it may be possible
to get time even if it was banked
• See also Commonwealth v. Velez, 86 Mass. App. Ct. 727
(2014) (if a defendant serves time that would otherwise be
dead time, he can get it toward an unrelated offense if it is
served after the commission of the unrelated offense BUT only
if he gets a committed sentence; if he gets probation, this time
can’t go to a sentence after the probation violation hearing,
because then it would be banking)
JUVENILES
Diatchenko v. D.A.,
466 Mass. 655 (2013)
• Miller, prohibiting imposition of mandatory LWOP on people
under 18 years old at time of offense, is retroactive.
• A new rule, but retroactive because it’s substantive and constitutional.
• Both discretionary and mandatory LWOP for people
under 18 years old at time of offense violates article 26.
• Uses juvenile brain science to conclude that LWOP for under-18
violates Eighth Amendment proportionality principles
• What’s next?
• Entitled to hearing that affords “a meaningful opportunity for release”
• Concurrence! Unique attributes of juvenile must be taken into
consideration at hearing, otherwise it runs afoul of “meaningful
opportunity for release.”
Commonwealth v. Brown,
466 Mass. 676 (2013)
• Companion to Diatchenko
• The murder sentencing scheme is severable.
• Juveniles convicted of first degree murder must be
sentenced under G. L. c. 265, § 2, but judges must
construe the statute as if omitting the exception for parole
eligibility for first degree murder when applying the statute
to juveniles.
• Life with parole in no less than 15 years is an appropriate
sentence under the statutory scheme and Diatchenko
Cases and issues to watch
These cases address the question of how developments in
juvenile brain science, that are increasingly recognized by
SCOTUS and SJC, can now be incorporated into the law.
• Commonwealth v. Jackson, SJC-10398
• Whether the reasonable person standard in a duress case should
account for a reasonable juvenile
• Argued January 9, 2015
• Commonwealth v. Pagan, SJC-11714
• The propriety of the judge’s reduction from a 1st to a 2nd degree
murder based in part on the defendant's youth (sixteen years old at
the time of the offense).
• Argued January 6, 2015
Clients to find
• Do you have any clients who:
• Were found delinquent of a sex offense and were committed to DYS
• Whose commitments to DYS were extended past their 18th birthday,
pursuant to, G.L. c. 120 §§17-19, sometime between 1990 and 2009
• Kenniston v. Dep't of Youth Servs., 453 Mass. 179 (2009), held that
commitment extensions pursuant to G.L. c. 120 §§17-19 were
unconstitutional.
• Ordered by Gants, J. as single justice:
• The unconstitutional commitments cannot be the basis for SORB registration.
• For individuals whose commitments were unconstitutionally extended under the
pre-Kenniston version of the statute, their SORB registration requirement is
calculated from their last lawful incarceration, not the date of their actual
release.
IDENTIFICATION
Commonwealth v. Crayton,
470 Mass 228
• “Where an eyewitness has not participated before trial in
an identification procedure, we shall treat the in-court
identification as an in-court showup, and shall admit it in
evidence only where there is ‘good reason’ for its
admission.”
• What is a “good reason”?
• Eyewitness familiar with defendant before commission of crime
• Arresting officer who is also eyewitness and id only confirms that
the defendant was arrested.
• Prospective only
• Note – court treated issue as preserved where counsel
argued motion in limine but did not renew objection.
Commonwealth v. Collins,
470 Mass. 255
• Companion to Crayton
• Crayton rule applies where eyewitness participated in pre-
trial ID procedure but failed to make an “unequivocal
positive identification.”
• What is a “good reason” here?
• Probably requires “a showing that the in-court identification is more
reliable than the witness’s earlier failure to make a positive
identification”
See also and stay tuned…
• Commonwealth v. Gomes, SJC-11537
• New jury instruction on eyewitness identification supported by
generally accepted scientific principles
• Opinion released January 12, 2015
• Watch for
• Commonwealth vs. Bastaldo, SJC-11763
• Whether the jury must be instructed to consider “that people of all races
and all ethnicities may have greater difficulty in accurately identifying
members of a different race or a different ethnicity” where identification
is at issue and the proof of identity relies on a cross racial or crossethnic identification.
• Scheduled for argument on February 5, 2015
UNIT OF PROSECUTION
Commonwealth v. Traylor,
86 Mass. App. Ct. 84
• Unit of prosecution for assault and battery upon a child
causing bodily/serious bodily injury G.L. c. 265, § 13J(b)
• The unit of prosecution is the injuries to the child, not
the “inflicting actions by a caretaker”
• Why no double jeopardy problem?
• Legislature has the power to define offenses and the legislature
clearly authorized multiple convictions for multiple discrete injuries.
• Keep watching… FAR granted on Dec. 8
Commonwealth v. Rollins,
470 Mass. 66
• Unit of prosecution for child pornography
• “[W]here the offending photographs come from a single
cache and the defendant is charged with possessing them
at the same point in time, the statutory structure
contemplates only a single unit of prosecution.”
• Imposing multiple “convictions and sentences for the
defendant's singular act of possession violated the
guaranty against double jeopardy.”
• Why?
• Conduct-based approach rather than a victim-based approach is
more in keeping with the statutory intent
• Possessing even hundreds of photos at the same time in the same
place is a singular possessory act.
Commonwealth v. Bolden,
470 Mass. 274
• Unit of prosecution for aggravated burglary, G.L. c.266, §14
• Permits one burglary conviction per dwelling, regardless of
the number of assaults occur in the dwelling.
• Why?
• “[O]nce a dwelling is ‘broken’ any subsequent breaks occurring
therein – reasonably close and time and purpose – are but a
continuation of the offense and thus insufficient to support separate
convictions under § 14.”
• Because being armed and assaulting the occupants merely
aggravates the offense and “the Commonwealth may not aggregate
such actions into multiple units of prosecution under § 14.”
DRUGS
Commonwealth v. Humberto H.,
466 Mass. 562 (2013).
• 5 baggies of marijuana does not equal probable cause of
an intent to distribute.
• Other inconsequential factors included juvenile’s “defensive
demeanor” and the absence of smoking paraphernalia
• But also no indication of weight or value
• Court called for “judicial vigilance” in marijuana cases.
Watch for overcharging using intent to distribute to bypass
decriminalization
Commonwealth v. Sepheus,
468 Mass. 160
• Together or individually, none of the following factors were
sufficient evidence of intent to distribute:
• Amount - 0.4 grams
• Packaging - “A few individually packaged rocks of crack cocaine.”
Nothing suggesting that the 3 baggies were part of a dwindling
larger inventory.
• Money - $312
• Absence of smoking paraphernalia – a weak inference,
especially in absence of other factors
• BUT, counsel elicited expert testimony that, while
inadmissible, made the evidence sufficient. M4RF
properly denied, but counsel’s ineffectiveness demands
remand for resentencing on possession or for retrial.
Other Good Stuff
• Commonwealth v. A Juvenile, 2011-P-1138
• 11 Baggies
• Post- Humberto H. Order issued dismissing complaint for lack of
probable cause affirmed by APC.
• Commonwealth v. Brown, 2012-P-1849
• What they found:
• Bag of marijuana “approximately the size of a fist”
• “More baggies” of marijuana in another pocket
• Motion to suppress properly allowed
• Unpublished
DOOKHAN
Commonwealth v. Scott,
467 Mass. 336
• Dookhan’s misconduct was government misconduct that
can render a defendant's guilty plea involuntary
• Defendants are “entitled to a conclusive presumption that
egregious government misconduct occurred in [his/her]
case” where Dookhan was primary or secondary chemist.
• BUT to vacate the plea… defendant must establish a
reasonable probability that he would not have pleaded
guilty had he known about Dookhan’s misconduct.
Commonwealth v. Gaston,
86 Mass. App. Ct. 568
• A Dookhan trial case
• Pre-Scott motion for new trial denied
• Appeals Court applies the rationale of Scott to reverse
• 1. Dookhan was confirmatory chemist
• 2. The evidence would have been a “real factor” in the jury's
deliberations
• “[P]roof of Dookhan's wrongdoing as it related to the defendant's case
provides its own shadow of reasonable doubt about the nature of the
substances tested. In sum, we have no difficulty concluding that
evidence of the “‘particularly pernicious’ government misconduct” by
Dookhan would have been a real factor in the jury's deliberation on the
narcotics charges.”
Stay tuned, the Dookhan landscape is
changing…
• Bridgeman v. D.A., SJC-11764
• Can defendant who successfully vacates Dookhan plea be subject
to harsher sentence than in his original plea?
• A few evidentiary questions arising in Scott hearings
• Comprehensive solution for all Dookhan cases?
• Commonwealth v. Torres, SJC-11771
• What happens to pre-Scott cases?
• Commonwealth v. Velazquez Ortiz, SJC-11795
• What to do with pleas containing drug and non-drug charges?
• All argued on January 8, 2015
SHORT BUT SWEET
Helpful tidbits and useful holdings
Commonwealth v. Woods, 466 Mass. 707: SJC exercised its superintendence
powers and orders the Commonwealth to advise targets, or those
reasonably likely to become targets, of their right not to incriminate
themselves in front of the grand jury
Commonwealth v. Keo, 467 Mass. 25 : in the future, the Commonwealth argues
inconsistent theories of the case at its peril
Commonwealth v. Sealy, 467 Mass. 617: leaves for another day whether Dwyer
protocol should be extended to records covered by the attorney-client
privilege (but unlikely it should)
Commonwealth v. Riley, 467 Mass. 799 : concurrence suggests need to revisit
the jurisprudence of extreme atrocity and cruelty where the malice prong is
only supported by evidence that a reasonable person would have known
the conduct created a strong likelihood of death
Commonwealth v. Richardson, 469 Mass. 248 – if two sentencing
enhancements based on specified prior convictions apply to a defendant,
only one can be imposed in the absence of clear direction otherwise from
legislature
Commonwealth v. Quinn, 469 Mass. 641: important case on implicit vouching by
experts, in this case, the child’s treating therapist
Commonwealth v. Crayton, 470 Mass. 228: other bad acts evidence is
inadmissible where its probative value is outweighed by the risk of unfair
prejudice to the defendant, even if not substantially outweighed by that risk
Commonwealth v. Reddy, 85 Mass. App. Ct. 104: failure to redact prejudicial
language from a 209A order resulted in a SRMJ and prosecutor’s use of the
language was prejudicial
Commonwealth v. Forbes, 86 Mass. App. Ct. 197: A&B serious injury is
duplicative of first theory mayhem
Commonwealth v. Shin, 86 Mass. App. Ct. 381: failure to take medications is
irrelevant to analysis as to whether defendant is criminally responsible for
conduct
L.L. v. Commonwealth, 470 Mass. 169, 184 n.27: change in the abuse of discretion
standard. Previous standard “has earned its retirement,” and now a judge
abuses his discretion when he “made ‘a clear error of judgment in weighing’ the
factors relevant to the decision, such that the decision falls outside the range of
reasonable alternatives.”
Commonwealth v. Gopaul, 86 Mass. App. Ct. 685: G.L. 94C, § 32J (sale of
drugs near “public park or playground”) applies only to public playgrounds and
public parks on public property.
Commonwealth v. Thompson, 470 Mass. 1008: school zone radius reduction is not
retroactive to cases that were tried and where a conviction entered before
August 2, 2012, the effective date of the statute’s amendment.
Commonwealth v. Paine, 86 Mass. App. Ct. 432: a chemist’s visual
identification and comparison to a recognized prescription drug database is
insufficient to prove that a prescription drug tablet is the substance charged.