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NEW ENGLAND LAW REVIEW

MASSACHUSETTS CRIMINAL DIGEST


VOLUME 47 May 2013

NEW ENGLAND LAW | BOSTON 2013 Copyright New England School of Law, Boston, MA

NEW ENGLAND LAW REVIEW


VOLUME 47 2012-2013 NUMBERS 1-4

EDITORIAL BOARD
Editor-in-Chief WILLIAM H. WYNNE Managing Editor LEIGH ANN JOHNSON Executive Article Editors MATTHEW GALLAGHER JUSTIN KESSELMAN Executive Online Editor ALEX AFERIAT Business Managing Editor JEFFREY D. KNIGHT Executive Literary Editors ELIZABETH C. LAZAR SARAH HAWKINS

Symposium Editor JULIANA CATANZARITI

Online Editors KIMBERLY KROHA JEANNA MORRIS Executive Comment & Note Editors ALAINA ANDERSON ERIN FITZGERALD DANIELLE FLYNN ERIN HYSELL DAVID SHEPPARD-BRICK

Alumni Relations Editor KIMBERLY BUTLER RAINEN

Comment & Note Editors ELIZABETH ANDERSON THOMAS FLANAGAN ERIN GORMLEY MATTHEW GRAZIO SHANA HEISEY JACLYN LATESSA ALLISON MCNULTY BRITTANY PIERCE BROCK SHRIVER

Technical Editors BRETT BAUMAN MATTHEW CAMPBELL MEAGHAN HATCH SARRAH KMIECIAK CHRISTOPHER MONSON ELIZABETH NICOLL AMY PARKER KEELEY RICE

ASSOCIATE MEMBERS
LINDSAY BOHAN WILLIAM BREKKA KAREN CASETTA SARAH FAUST ADAM FIEDLER FELICIA FLAHIVE CONOR GERAGHTY LOUISA GIBBS DEVIN GUIMONT ERIK HAGEN MELISSA HAMBELTON CRYSTAL HEADRICK ZACHARY HELLER ANDREW HIGLEY CAROLINE KELLY ROBB LEVINE MICHAEL LOMBARDI SARAH LOWDON ROBERT MARTIN MICHAEL MARTUCCI BRIAN MCNIFF KRISTEN MULLEN GREGORY PAONESSA JANIE REILLY Faculty Advisor LAWRENCE M. FRIEDMAN ALLISON REUTER LINDSAY REYNOLDS KEITH RICHARD ANNALISE SCOBEY STEPHEN SHOREY RACHEL SZOSTAK KENNETH THOMPSON KATE TIMBERLAKE ELIZABETH VAN BLARCOM JARED VARO ROBERT WILLIAMS VANESSA WOODMAN

NEW ENGLAND LAW REVIEW


MASSACHUSETTS CRIMINAL DIGEST
VOLUME 47 MAY 2013 ISSUE 2

TABLE OF CONTENTS
COMMONWEALTH V. CLARKE, 461 Mass. 336 (2012) Contributing Editor: Alaina Anderson................................................................... 43 COMMONWEALTH V. IRENE, 462 Mass. 600 (2012) Contributing Editor: Justin A. Kesselman.............................................................. 47 COMMONWEALTH V. ESCALERA, 462 Mass. 636 (2012) Contributing Editor: Liz Anderson ........................................................................ 51 COMMONWEALTH V. PORTER, 462 MASS. 724 (2012) Contributing Editor: Erin Gormley ........................................................................ 55 COMMONWEALTH V. FICO, 462 Mass. 737 (2012) Contributing Editor: Jaclyn Latessa ....................................................................... 59 COMMONWEALTH V. BRESNAHAN, 462 Mass. 761 (2012) Contributing Editor: Erin Hysell ........................................................................... 63 COMMONWEALTH V. HUNT, 462 Mass. 807 (2012) Contributing Editor: Danielle Flynn ...................................................................... 67 IN RE ENFORCEMENT OF SUPBOENA, 463 Mass. 162 (2012) Contributing Editor: David Sheppard-Brick .......................................................... 71 COMMONWEALTH V. PRESCOTT, 463 Mass. 258 (2012) Contributing Editor: Brett Bauman ....................................................................... 75 COMMONWEALTH V. LENNON, 463 Mass. 520 (2012) Contributing Editor: Matthew Campbell ............................................................... 81 COMMONWEALTH V. SCOTT, 463 Mass. 561 (2012) Contributing Editor: Meaghan E. Hatch ................................................................ 85 COMMONWEALTH V. DALEY, 463 Mass. 620 (2012) Contributing Editor: Sarah J. Kmieciak .................................................................. 89

COMMONWEALTH V. BERRY, 463 Mass. 800 (2012) Contributing Editor: Christopher A. Monson ........................................................ 93 COMMONWEALTH V. WALCZAK, 463 Mass. 808 (2012) Contributing Editor: Beth Nicoll ............................................................................ 95 COMMONWEALTH V. LAVOIE, 464 Mass. 83 (2013) Contributing Editor: Keeley Rice ............................................................................ 97
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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Clarke, 461 Mass. 336 (2012)

CONTRIBUTING EDITOR: ALAINA ANDERSON I. Procedural History

The defendant brought a motion to suppress statements, and a judge in the Dorchester Division of the Boston Municipal Court Department allowed the motion. Judge Gants of the Supreme Judicial Court (SJC) then allowed the Commonwealths application for leave to appeal (interlocutory appeal) under Mass. R. Crim. P. 15(a)(2) and reported the case to the full court. II. Facts Massachusetts Bay Transportation Authority (MBTA) transit police arrested the defendant for an indecent assault and battery at a subway station that had occurred about a month prior to his arrest. After arresting him, two detectives took him to the interrogation room at the MBTA headquarters and informed him the conversation would be videotaped. A detective handed the defendant a Miranda waiver form, which the defendant immediately began to sign. The detective, however, stopped the defendant from signing the form and informed him that he wanted to review his Miranda rights with him verbally before obtaining the defendants written waiver.1 During this exchange, the detective told the defendant, Nope, you dont have to speak with me at all if you dont want to. Its completely up to you.2 The defendant then responded by stating: What happens if I dont speak with you? to which the detective responded, Nothing.3 The defendant then stated that he just wanted to go home, to which the detective responded: You just want to go home? So you dont want to speak?4 The defendant
1 2 3 4

Commonwealth v. Clarke, 461 Mass. 336, 337-338 (2012). Id. at 338. Id. Id.

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in response to this question then shook his head back and forth in a negative fashion and the detective responded okay.5 During the motion testimony the detective stated that he interpreted the defendants head motion to mean that he did not want to speak. The detectives continued to ask the defendant whether or not he wished to speak with them, informing him that was not able to just go home, and that he would have to answer to the charges in the morning if he was bailed, among other things. During this further questioning, the defendant expressed his confusion with the situation and also cried at various points of the interrogation. Finally, the defendant agreed to sign the form and talked to the detectives, admitting to the indecent assault and battery. The defendant brought a motion to suppress the statements, and a judge in the Dorchester District Court allowed the motion. Judge Gants of the Supreme Judicial Court (SJC) then allowed the Commonwealths application for leave to appeal (interlocutory appeal) under Mass. R. Crim. P. 15(a)(2) and reported the case to the full court. III. Issues Presented 1. Whether the defendant, by his conduct of shaking his head in a negative fashion, had invoked his right to remain silent under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights? 2. Whether the police sufficiently honored that right?6 IV. Holdings and Reasoning 1. Under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, the defendant invoked his right to remain silent and the police did not scrupulously honor this right, therefore suppression of the statements was warranted.7 In the pre-waiver context under Article 12 of the Massachusetts Declaration of Rights, a suspect does not have to invoke his right to remain silent with utmost clarity, as is required under Federal law.8 2. Under the Massachusetts Constitution, a suspects nonverbal expressive conducthere an explicit headshake in response to a direct questioncan suffice to invoke the right to remain silent.9 In holding that nonverbal expressive conduct was sufficient, the court looked to the wording required by Miranda which stated that the individual may invoke his right to remain silent [i]f the individual [so]

5 6 7 8 9

Id. Id. at 337. Commonwealth v. Clarke, supra at 337. Id., citing Berghuis v. Thompkins, 130 S. Ct. 2250, 2263 (2010). Id. at 344.

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indicates in any manner . . . .10 In addition the court looked to traditional hearsay rules and the long recognized communicative value of conduct.11 The test is whether a reasonable police officer in the circumstances would understand that the gesture was an invocation of the suspects Miranda rights.12 In holding that the detective did not scrupulously honor his invocation, the court pointed to the continued questioning by the detective after the defendant had already unambiguously shook his head in the negative. The failure to stop questioning required that the defendants statements be surpressed.13 Finally, in holding that the Massachusetts standard is higher than the federal standard, the court pointed to several factors that support this holding. First, that the very right itselfthe right against selfincriminationshould not require someone to speak, therefore a heightened standard of clarity for pre-waiver invocation under Federal law strike[s] at the core of the privilege against self-incrimination.14 In addition, in rejecting the Thomas standard of utmost clarity, Massachusetts law protects the Miranda rights of defendants that speak imprecisely or with hesitance, such as those who do not understand the English language as well, or those that are overwhelmed at the uncertainty of their predicament.15 As to ambiguity, the court stated that where ambiguity exists as to whether the suspect has invoked his right to remain silent or not, the police must cease questioning on any other subject and ask the defendant to make his clear choice.16 However, the court explicitly noted that where the invocation is clear to a reasonable police officer the police may not create ambiguity in a defendants desire by continuing to question him or her about it.17

Id. at 343, quoting Miranda v. Arizona, 384 U.S. 436, 473-474 (1966) (emphasis added). Id., citing Commonwealth v. Gonzalez, 443 Mass. 799, 803 (2005). 12 See id. at 344. 13 Commonwealth v. Clarke, supra at 345. 14 Id. at 349. 15 Id. at 350, quoting Davis v. United States, 512 U.S. 452, 469 (1994) (Souter, J., concurring in judgment). 16 Id at 351-352. 17 Id. at 352, quoting Connecticut v. Barrett, 479 U.S. 523, 534-535 n. 5. (1987) (Brennan, J., concurring in judgment).
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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Irene, 462 Mass. 600 (2012)

CONTRIBUTING EDITOR: JUSTIN A. KESSELMAN I. Procedural History

Following a jury trial in Essex County Superior Court, Herman Irene (the Defendant), was convicted of armed robbery in violation of G. L. c. 265, 17. The Defendant appealed on grounds that the trial court improperly admitted hearsay statements into evidence and that such statements violated his right of confrontation under the Sixth Amendment to the United States Constitution. The Supreme Judicial Court transferred the case on its own motion.1 II. Facts A passenger in a Lawrence taxicab robbed the driver at knifepoint and fled. The driver exited the taxicab, aimed his .40 caliber pistol at the fleeing robbers back, and fired.2 The robber fell to the ground, dropped his hat, and then continued to flee. Witnesses heard the robber exclaim that he had been hit. Soon thereafter, the police apprehended the Defendantwho matched the witnesses description and was suffering from an apparent gunshot wound to the back.3 The Defendant was taken to the hospital where he signed an acknowledgment of his Miranda rights and was questioned by the police. The Defendant denied robbing the driver, as well as even being in the cab or dropping the hat found near the scene. Rather, he claimed that he had been shot after fleeing from a car full of punks that had attempted to mug him several blocks away from the taxicab robbery.4 At trial, the Commonwealth secured a conviction by producing the following evidence to the contrary: (1) testimony of a lab analyst that DNA
1 2 3 4

Commonwealth v. Irene, 462 Mass. 600, 601 (2012). Id. at 602. Id. at 603. Id. at 604-605.

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collected from the hat at the scene matched the Defendants DNA;5 (2) the Defendants hospital medical record, which was admitted through a hospital information specialist as a business record under G. L. c. 233, 78 and read: The patient states that he was minding his own business while he was in a taxicab when he got shot;6 and (3) testimony from three witnesses as to what the robber said after the shot was fired, including a statement that I heard that he said, Oh, my mother, my mother.7 III. Issues Presented 1. Whether the witnesses trial testimony concerning the fleeing robbers statements constituted inadmissible hearsay. 2. Whether the hospital medical record was improperly admitted as a business record under G. L. c. 233, 78, and if so, whether that admission violated the Defendants Sixth Amendment right to confront the doctor who authored the report. IV. Holdings and Reasoning 1. The SJC held that the witnesses testimony was properly admitted into evidence.8 The court determined that the robbers fleeing statements constituted spontaneous utterances, which arise where (1) there is an occurrence of an event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (2) if the declarants statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.9 Being shot is sufficiently startling to disrupt ones normal thought processes. Here, the witnesses testified that after the shot was fired, the robber fell and made statements indicating he was shot. Accordingly, the court held that the evidence was sufficient to conclude the robbers statements were in reaction to the startling event and, therefore, was admissible as a spontaneous utterance.10 Alternatively, the court observed that the evidence supported a finding that the declarants statements were expressions of present pain, which are excepted from the rule against hearsay.11 The court also disagreed that the testimony, I heard that he said, suggested the witness heard the robbers statement third-hand. Rather, the court noted that this testimony was made through an interpreter in response to a question regarding the witnesss personal observation and, in any event, was clarified through the
5 6

Id. at 604. Id. at 608. 7 Commonwealth v. Irene, supra at 605. 8 Id. at 607-608. 9 Id. at 606-607, quoting Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). 10 Id. at 607. 11 Id. at 607, quoting Murray v. Foster, 343 Mass. 655, 658 (1962).

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Defendants cross-examination.12 2. The SJC held that the admission of the Defendants hospital record was error and that his statement therein was inadmissible hearsay.13 The court first examined, as a matter of first impression, the admissibility of a hospital record through the business records exception to the rule against hearsay.14 The court focused on the fact that an exception for hospital records already existed in G. L. c. 233, 79a provision that imposes specific limitations on the admissibility of medical records, such as a relationship between the recorded statement and the defendants treatment or medical history. In this case, 79 was not applicable because this relationship was plainly absent.15 The court also took particular note of the fact that the two sections were enacted to address different concerns: 78 was enacted in recognition of the reliance that the modern commercial world placed on the accuracy of routine records, while 79 was enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to fact which ordinarily would be found recorded in the hospital books.16 The prosecution was not permitted to perform an end-run around the 79s limitations by characterizing it as a business record under 78, an exercise that would expand the scope of 78, while rendering 79 superfluous.17 Because it found that the medical records were inadmissibleand because the Defendant did not preserve his constitutional claim through an objection at trialthe court did not address whether the admission of the statements therein violated the Confrontation Clause.18 However, the court did proceed to opine on the relationship between the Confrontation Clause and the hospital records exception. Significantly, the court determined that records admissible under 79 were of the same kind as the medical reports created for treatment purposes deemed not testimonial by the Supreme Court19 in Melendez-Diaz v. Massachusetts.20 Therefore, statements related to treatment admissible under 79 do not run afoul of the Confrontation Clause.21 The SJC held that the medical record statement was erroneously admitted into evidence; however, the error did not prejudice the

12 13 14 15 16 17 18 19 20 21

Commonwealth v. Irene, supra at 606 & n.12. Id. at 616. Id. at 609. Id. at 614-616. Id. at 613-614, quoting Commonwealth v. Gogan, 389 Mass. 255, 263 (1983). See Commonwealth v. Irene, supra at 612, 616. Id. at 616-617 & n.24. Id. at 617. 557 U.S. 305, 312 n.2 (2009). Commonwealth v. Irene, supra at 618.

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Defendant: An error is not prejudicial if it did not influence the jury, or had but very slight effect.22 The Court concluded that the following evidence was sufficient to support the judgment: (1) the testimony of eyewitnesses; (2) the location of the Defendant when apprehended; (3) the DNA evidence linking the Defendant to the hat dropped by the robber; (4) the Defendants own admission that he had been wearing a similar hat that evening; and (5) the Defendants repeated inconsistent statements to police. As a result, the judgment against the Defendant was affirmed.23

22 23

Id. at 618-619, quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Commonwealth v. Irene, supra at 619.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Escalera, 462 Mass. 636 (2012)

CONTRIBUTING EDITOR: LIZ ANDERSON I. Procedural History

Following a search of his apartment, the defendant moved to suppress contraband obtained by officers.1 The judge denied the defendants motion, and a Superior Court jury subsequently convicted defendant for: (1) trafficking in heroin; (2) possession of cocaine with intent to distribute; (3) corresponding school zone violations; (4) unlawful possession of a firearm without a firearm identification card; and (5) unlawful possession of ammunition without a firearm identification card.2 The defendant appealed his convictions and the denial of his motion to suppress; the Appeals Court determined that the lower court properly denied the defendants motion to suppress.3 However, the Appeals Court reversed all the convictions (except for the ammunitions charge), finding that the defendants Sixth Amendment right to confrontation was violated because the drug and ballistic certificates admitted as evidence during trial were not accompanied by testimony of the analysts who produced the certificates.4 The defendant applied to the Supreme Judicial Court for further appellate review, and the application was granted.5 II. Facts In March 2005, a confidential informant provided information to Brockton police about the defendant, whom he identified as a dark skinned Hispanic male who was selling heroin in the city of Brockton.6 He also agreed to participate in controlled purchases of heroin from the
1 2 3 4 5 6

Commonwealth v. Escalera, 462 Mass. 636, 637 (2012). Id. Id. Id. at 637-638. Id. at 638. Id. at 638-639.

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defendant.7 Over the course of the next two weeks, Brockton police conducted surveillance of the defendant.8 Police found that the defendant typically left his apartment building soon after receiving a call to purchase drugs, drove directly to the specified meeting location, and then immediately returned to the apartment building.9 Based on this and other detailed information, the police obtained a warrant to search the defendants apartment in Brockton on April 11, 2005.10 The warrant authorized the search of the apartment, and any person present, for drugs and materials, products, equipment, books, records, and proceeds related to drug distribution.11 Upon execution of the warrant, police found cocaine, cash, a shoulder holster, two cellular telephones, a digital scale, and paperwork that bore the name of the defendant in the apartment itself.12 A search of the locked basement of the apartment building, which was allegedly only accessible to the building owner and the tenants of defendants apartment, produced two guns, ammunition, and thirty-four grams of heroin.13 III. Issues Presented 1. Did the police affidavit supporting the search warrant establish a sufficient nexus between the defendants drug dealing activities and his apartment so that probable cause existed to search the apartment?14 2. Was the locked basement, which was not specifically identified in the search warrant, within the curtilage of the apartment and thus within the scope of the warrant to search the apartment?15 3. Did the Commonwealth meet its burden at trial in providing evidence that would allow a jury to find beyond a reasonable doubt that the defendant constructively possessed the items discovered in the locked basement?16 4. Is the defendant entitled to a new trial on all charges, with the exception of the ammunition charge, because of the violation of his right to confrontation under the Sixth Amendment?17

7 8

Commonwealth v. Escalera, supra at 639 (2012). Id. 9 Id. at 639-640. 10 Id. at 638, 640-641. 11 Id. at 641. 12 Id. 13 Commonwealth v. Escalera, supra at 641. 14 See id. at 641-642. 15 See id. at 647. 16 See id. at 649. 17 See id. at 650.

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IV. Holdings and Reasoning 1. Pursuant to Commonwealth v. Pina, a search warrant of a suspected drug dealers home requires the police to provide particularized information, based on surveillance and other sources, which would allow for a reasonable inference that a supply of drugs was likely kept in the home.18 That burden was met in this case, as the police affidavit described at least three occasions where police observed the defendant leave his apartment to drive to a location for an apparent drug deal and then immediately return to his apartment at the deals conclusion.19 2. The locked basement was within the curtilage of the apartment, and thus the search of the basement was within the scope of the warrant.20 Although curtilage in an apartment building is typically very limited,21 it may extend beyond the tenants unit to separate areas subject to [the tenants] exclusive control.22 As the evidence provided to the motion judge established that the tenants of the defendants apartment likely had exclusive use of and access to the locked basement during their tenancy, the judge was not in error when he concluded that the locked basement was curtilage to the apartment itself.23 3. The Commonwealth met its burden of proof in showing the defendants constructive possession of the items found in the locked basement.24 The Commonwealth was able to show constructive possessionor knowledge coupled with the ability and intention to exercise dominion and control25in several ways, including evidence that the defendants brother and co-tenant had a key to the basement, that a holster that fit one of the guns recovered from the basement was found in the defendants bedroom closet, and that the defendant made a spontaneous statement at the time of the search implying knowledge of the contents in the basement before he was informed of what was recovered by police.26 4. The defendant is entitled to a new trial on all charges, with the exception of the ammunitions charge, due to the violation of his Sixth Amendment right to confrontation under Melendez-Diaz v.
Id. at 643, quoting Commonwealth v. Pina, 453 Mass. 438, 442 (2009). Commonwealth v. Escalera, supra at 645-646. 20 Id. at 648. 21 Id., quoting Commonwealth v. McCarthy, 428 Mass. 871, 875 (1999). 22 Id., quoting Commonwealth v. Thomas, 358 Mass. 771, 775 (1971). 23 Id. 24 Id. at 649. 25 Commonwealth v. Escalera, supra 649, quoting Commonwealth v. Boria, 440 Mass. 416, 418 (2003).
19 26 18

Id.

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Massachusetts.27 The admission of the certificates without the testimony of the analysts was not harmless beyond a reasonable doubt.28

Id. at 650, citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009). Id., citing Commonwealth v. Vasquez, 456 Mass. 350, 368 (2010); Commonwealth v. Tyree, 455 Mass. 676 (2010).
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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Porter, 462 Mass. 724 (2012)

CONTRIBUTING EDITOR: ERIN GORMLEY I. Procedural History

A grand jury indicted the defendant on ninety-three counts of failing to timely pay her employees.1 A Superior Court judge presided over three hearings on the issue of whether the defendant was indigent.2 The judge found the defendant not indigent and certified the correctness of her decision to the Appeals Court.3 The Supreme Judicial Court granted the defendants application for direct appellate review.4 II. Facts The defendant was indicted on ninety-three counts of failure to pay wages timely.5 At the time the defendant was arraigned, she filed an affidavit of indigency and sought appointment of counsel at public expense.6 Three hearings were held regarding whether the defendant satisfied indigency status.7 The defendant appeared at the hearings without counsel, where she argued that: (1) she had little to no discretionary income, and (2) two of the three properties she owned were subject to mortgages and tax liens, hindering their conversion to cash.8 At the hearings, the judge inquired about the nature of the properties owned by the defendant and her husband and encouraged the defendant to introduce any evidence to show the illiquidity of her properties.9 The
1 2 3 4 5 6 7 8 9

Commonwealth v. Porter, 462 Mass. 724, 725-726 (2012). Id. Id. at 725. Id. Id. at 725. Id. Commonwealth v. Porter, supra at 726. Id. at 725. Id. at 726-727.

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defendant and her husband owned the first property jointly.10 The defendant stated that the property was subject to a mortgage and to State and Federal tax liens; however, the defendant did not provide any evidence of the liens despite the judges warning that she had the burden to do so.11 The defendant stated that the second property, which was owned by the defendants husband, was also subject to a mortgage and tax liens.12 The defendant did not provide any record of such liens.13 The defendant stated that the third property, a single-family home inherited by the defendants husband, was not subject to any mortgage or encumbrances and that it was rented for $1,500 per month.14 Holding that the burden of proving indigency rests with the defendant, the judge found the defendant not indigent and thus ineligible for courtappointed counsel.15 III. Issues Presented 1. Was the Superior Court judge correct in holding that a criminal defendant who seeks the appointment of counsel at public expense bears the burden of proving indigency by a preponderance of the evidence?16 2. Were the defendants rights under the U.S. Constitution and the Massachusetts Constitution violated by the Superior Courts application of S.J.C. Rule 3:10, which allows for the income of a defendants spouse to be attributed to the defendant when determining indigency status for purposes of appointing counsel?17 IV. Holdings and Reasoning The Superior Court correctly held that a criminal defendant who seeks the appointment of counsel at public expense bears the burden of proving indigency by a preponderance of the evidence.18 When allocating the burden of proof, an appellate court must determine which party should hold the risk of failure of proof.19 In the present case, neither party offered proof regarding whether the three properties were liquid assets.20
10 11

Id. at 727. Id. 12 Id. 13 Commonwealth v. Porter, supra at 727. 14 Id. 15 Id. at 725, 729. 16 Id. at 730. 17 Id. at 734. 18 Id. at 730. 19 Commonwealth v. Porter, supra at 731, citing 2 McCormick on Evidence 337, at 564 (K.S. Brown ed., 6th ed. 2006).
20

Id.

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A majority of Federal and State courts have ruled that the burden of proof lies with the defendant who is claiming indigency.21 Further, because a criminal defendant is the party with all the material proof concerning her own wealth and is asserting a negative (i.e., lack of funds), it is logical that she should be required to bear the risk of failure of proof.22 The defendants State and Federal constitutional rights were not violated by the Superior Courts application of S.J.C. Rule 3:10.23 Although there is no Federal constitutional standard by which to determine indigency, the applicable state standard is the rational connection test for rebuttable presumptions.24 The test requires that there be some rational connection between the fact proved and the ultimate fact presumed and that it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.25 Here, the test is easily satisfied because: (1) the defendant can rebut the Rule 3:10 presumption that a spouse who resides with the defendant and contributes to living expenses will contribute to the cost of counsel by proving, by a preponderance of the evidence, that the spouse is unwilling to contribute; (2) there is a plainly rational connection between ones status as a spouse and ones willingness to pay for [the] defendants counsel, as a spouse has a duty to contribute to the costs and necessities of his or her fellow spouse; and (3) nothing in the record suggest that the presumption was under guise of denying the defendant her right to appointed counsel.26

Id. Id. at 732-733. 23 Id. at 736. 24 Id. at 734-735. 25 Commonwealth v. Porter, supra at 734, quoting Mobile, Jackson & Kan. City R.R. v. Turnispeed, 219 U.S. 35, 43 (1910).
22 26

21

Id. at 734-735.

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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Fico, 462 Mass. 737 (2012)

CONTRIBUTING EDITOR: JACLYN LATESSA I. Procedural History

In December 2009, a grand jury indicted defendant Joseph Fico on two charges related to his alleged involvement in trafficking cocaine.1 At his arraignment on January 29, 2010, the court appointed counsel after Fico filed an affidavit of indigency.2 During a subsequent motion to suppress, a Superior Court judge questioned and took evidence on Ficos indigency status.3 On October 1, 2010, the judge concluded Fico was not indigent, reasoning Fico had available funds . . . from his girl friend and mother.4 The judge then struck the appearance of Ficos counsel before reporting her decision to the Appeals Court per Rule 34 of the Massachusetts Rules of Criminal Procedure.5 The Supreme Judicial Court (SJC) granted Ficos application for direct review.6 II. Facts In April 2009, Fico moved in with his codefendant and girlfriend, Pamela Barberio.7 After their arrest and release on bail, Fico and Barberio moved in with Barberios mother.8 Barberios mother was not indigent and

Commonwealth v. Fico, 462 Mass. 737, 738 (2012). Id. 3 Id. 4 Id. 5 Id.; see Mass. R. Crim. P. 34 (If . . . with the consent of the defendant, after conviction of the defendant, a question of law arises which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein.).
2 6 7 8

Commonwealth v. Fico, supra at 738. Id. at 739. Id.

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was able to pay for Barberios private counsel.9 Fico was wholly supported by Barberios mother and Barberio, who was a part-time student earning about $350 per week.10 After expressing a desire to move in with his own mother, the Superior Court Judge provided Fico with time to present evidence to support his indigency if he proceeded to move in with her.11 Ficos evidence showed that in 2010, his mothers income was $85,000 annually.12 In addition to a mortgage, her other liabilities included $1,200 to a gas utility and a $500 monthly automobile insurance payment.13 Ficos mother testified that every bit of salary she earned went towards commuting to and from work, her mortgage, and automobile insurance, although the materials she offered as proof did not make it into the record.14 At the time of the Superior Courts October 1, 2010 decision, Fico was twenty-four years and earned less than the current poverty threshold.15 Regardless, the Superior Court concluded Fico was not indigent because of the funds available to him through Barberio.16 Moving in with his mother would not alter this status because Ficos mother is not indigent and available funds from her would be attributable to him.17 III. Issues Presented 1. Whether the case is moot because Fico obtained private counsel and resolved both of his criminal cases after the SJC granted review. 2. Whether, after a defendant makes a prima facie showing of indigency, the Commonwealth can only rebut that presumption with proof beyond a reasonable doubt. 3. Whether, to determine indigency status, the court may attribute household income from a girlfriend. 4. Whether, to determine indigency status, the court may attribute household income from a parent to a defendant. IV. Holdings and Reasoning Although this case is moot as to Fico, the SJC exercised its discretion to review the case because the issues raised are of significant public

Id. Id. 11 Id. 12 Commonwealth v. Fico, supra at 739. 13 Id. at 739-740. 14 Id. at 740 n. 5-6. 15 Id. at 739-740. 16 Id. at 740 17 Id.
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importance, over which there appears to be uncertainty.18 Additionally, the issues presented in this case are likely to arise again and escape review.19 Where a defendant seeks to have counsel appointed at the publics expense, the defendant is responsible for proving his indigence by a preponderance of the evidence.20 The SJC addressed this issue in greater detail in Commonwealth v. Porter,21 which was decided the same day as Fico.22 SJC Rule 3:10, 1(b)(ii) allows certain household assets to be attributed to a defendant to determine indigency.23 Commonwealth v. Porter concluded a spouses income may rightfully be attributed to a defendant.24 Although Barberio is Ficos girlfriend and not his spouse, the Superior Court judge determined Fico and Barberio were in substantially the same relationship as a married couple.25 Fico did not contest this issue in the Superior Court and therefore waived his claim to raise it before the SJC.26 Where a defendant is over sixteen years of age and substantially supported by a parent, SJC Rule 3:10, 1(b)(ii) allows the income and assets of that parent to be attributed to the defendant.27 To determine the constitutionality of this rule, the SJC examined it under the rational connection test, which requires a . . . rational connection between the fact proved and the ultimate fact presumed. . . .28 The Court found a rational connection between a parent supporting a dependant adult child and the parent extending support to pay for legal counsel for that child should the need arise.29 However, defendants may rebut this presumption if they can show by a preponderance of the evidence that they do not receive support from their parents, that the parents are unwilling to support them, or that their
18 Commonwealth v. Fico, supra at 743. The Court noted this decision was in accordance with Commonwealth v. McCullough, 450 Mass. 483, 486 (2008). Id. 19 Id. 20 Id. at 744. 21 Commonwealth v. Porter, 462 Mass. 724 (2012). 22 Commonwealth v. Fico, supra at 744. 23 Id. SJC Rule 3:10, 1(b)(ii) states, A party's available funds shall include the liquid assets and disposable net monthly income of the party's spouse (or person in substantially the same relationship) and each of the party's parents, provided, in each instance, any such person lives in the same residence as the party and contributes substantially toward the household's basic living expenses . . . . 24 25 26 27 28 29

Commonwealth v. Fico, supra at 744. Id. at 745. Id. Id. at 746. Id. at 744, quoting Commonwealth v. Porter, supra at 735. Id. at 746.

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parents are unable to provide support.30 This requires the court to evaluate what funds are available to both the parent and the adult child with respect to basic living costs, disposable net monthly income, income, and liquid assets in accordance with SJC Rule 3:10 1.31 The court must examine whether attributing a parents financial resources to a defendant will result in hardship for the parent or impair the parents ability to provide for themselves and any additional dependents.32

30 31 32

Commonwealth v. Fico, supra at 746. Id. at 747. Id.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Bresnahan, 462 Mass. 761 (2012)

CONTRIBUTING EDITOR: ERIN HYSELL I. Procedural History

A jury convicted the defendant for operating a motor vehicle while under the influence of alcohol (OUI).1 A year later, he moved for a postverdict inquiry of the jurors, claiming that the trial judge influenced the jurys decision by speaking with the jurors ex parte during jury deliberations.2 Following evidentiary hearings, the district court ordered a new trial, which the Commonwealth appealed.3 The Appeals Court vacated and remanded the case.4 The Supreme Judicial Court granted the defendants application for further appellate review.5 II. Facts One year after the defendants conviction for OUI, a friend of the defendant repeatedly spoke to a juror who served on the defendants trial.6 The defendants friend then reported these conversations to the defendants appellate counsel. The defendants friend informed counsel that the juror reported that, during deliberations, the trial judge entered the deliberation room and stated that the jury needed to stay until they reached a decision.7 Appellate counsel thereafter moved to withdraw from the case and successor counsel submitted the former counsels affidavit with a motion for post-verdict juror inquiry.8 Counsel did not include

1 2 3 4 5 6 7 8

Commonwealth v. Bresnahan, 462 Mass. 761, 761 (2012). Id. at 761-762. Id. at 762. Id. Id. Id. at 763-764. Commonwealth v. Bresnahan, supra at 764. Id.

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affidavits of the defendants friend or the juror with whom she spoke.9 Ultimately, the trial court held multiple evidentiary hearings on the issue. Four jurors from the defendants case, as well as the trial judge, the defendant, the prosecutor, and three court officers testified at the hearings.10 The motion judge granted the defendant a new trial, finding that the trial judge did enter the jury room during deliberations without the knowledge of the prosecution or defense counsel and made statements that may have led the jury to believe they had to reach a consensus.11 III. Issues Presented 1. Is a judge precluded from hearing or considering evidence of an alleged extraneous influence on a jury if the evidence was procured through improper jury contact?12 2. How must the court balance a Fidler violation with a colorable showing of extraneous influence on a jury?13 IV. Holdings and Reasoning A strict exclusionary rule that would prevent a judge from considering evidence of an alleged extraneous influence on a jury if the information is gained improperly is not necessary under Fidler.14 When a defendants right to a fair trial has been jeopardized, the court must consider evidence that the jurys deliberations were impacted by outside influence.15 Even though a strict exclusionary rule is not appropriate, the judge must still investigate claims that jurors were contacted improperly and balance this Fidler violation against the evidence presented regarding the extraneous influence on jurors.16 The judge must conduct an inquiry into the alleged Fidler violation and weigh both claims to determine if the defendants motion for jury inquiry.17 This inquiry may require a full evidentiary hearing.18 If the inquiry leads the judge to determine that the Fidler principles were violated by someone on behalf of the defendant (or by the defendant himself) then the judge must balance this violation

Id. Id. at 764, 768. 11 Id. at 762, 768. 12 See id. at 769. 13 Commonwealth v. Bresnahan, supra at 769. 14 Id. at 771 (citing Commonwealth v. Fidler, 377 Mass. 192, 196-197 (1979)). 15 Id. at 771. 16 Id. at 772-773. 17 Id. 18 Id. at 773.
10

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against the information that suggests extraneous jury influence.19 The balance is highly dependent on the facts of the each case.20 Because the motion judge in this case did not conduct the proper inquiry, the case was remanded for further inquiry under the balancing test and a new determination as to whether the defendant is entitled to a new trial.21

19 20 21

Commonwealth v. Bresnahan, supra at 773. Id. Id. at 773-775.

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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Hunt, 462 Mass. 807 (2012)

CONTRIBUTING EDITOR: DANIELLE FLYNN I. Procedural History

A jury civilly committed the defendant as a sexually dangerous person following a trial in the Superior Court.1 The Appeals Court affirmed his commitment.2 The Supreme Judicial Court granted the defendants application for further review.3 II. Facts On December 3, 1990, the defendant pleaded guilty to three indictments charging rape of a child and he was sentenced concurrently to State prison for eight to fifteen years on each of the indictments.4 In 2004, the Commonwealth filed a petition seeking civil commitment of the defendant as a Sexually Dangerous Person.5 At trial, the Commonwealth offered the testimony of two examiners and a forensic psychologist, each of whom opined that the defendant suffered from pedophilia, has a mental abnormality as defined by statute, and is likely to commit further sexual offenses if not confined.6 Evidence that the defendant refused to participate in sex offender treatment programs while incarcerated was introduced and used by the experts over the defendants objections.7 The defense put on three experts, two of which opined that the defendant did not have a mental abnormality as defined by statute.8 The judge gave several jury instructions on the issues of mental abnormality and sexual dangerousness,

1 2 3 4 5 6 7 8

Commonwealth v. Hunt, 462 Mass. 807, 808 (2012). Id. at 809. Id. Id. at 808. Id. at 809. Id. Commonwealth v. Hunt, supra at 810. Id. at 809.

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which the defendant now claims were erroneous.9 On June 3, 2008, following the trial, a jury found the defendant to be a sexually dangerous person.10 III. Issues Presented 1. Did the possibility that evidentiary use would be made of defendants refusal to participate in sex offender treatment programs constitute compulsion and violate the defendants privilege against selfincrimination because the admission of such evidence constitutes a penalty to compel testimony?11 2. Are unsubstantiated rumors of rape admissible in sexually dangerous person civil commitment proceedings?12 3. Did the judges instruction that, [i]n this case, all the experts agreed that the mental abnormality at issue is pedophilia, although the experts disagree about whether [the defendant] meets the clinical diagnostic criteria for pedophilia give the jury the false impression that all the experts agreed that pedophilia is a mental abnormality?13 4. Did the judges instruction, [y]ou may conclude that [the defendant] is likely to commit a future act of sexual misconduct if you find that [the defendant] has not committed any act of sexual misconduct during his incarceration, give improper legal validation to the prosecutors argument?14 IV. Holdings and Reasoning A prisoners participation in sex offender treatment is not compelled by the possible evidentiary use of his refusal at a civil commitment proceeding, and therefore, reference at trial to the defendants refusal to participate in sex offender treatment did not violate the defendants rights under either the United States Constitution or the Massachusetts Declaration of Rights.15 A statement is compelled where the penalties for the prisoner refusing to incriminate herself are so severe that they are capable of coercing incriminating testimony.16 In cases where the Supreme Court of the United States has found compulsion, the severe

Id. at 824-825. Id. at 809. 11 Id. at 811. 12 Id. at 821-822. 13 Commonwealth v. Hunt, supra at 824. 14 Id. at 824-825. 15 Id. at 815-816. 16 Id. at 812, quoting McKune v. Lile, 536 U.S. 24, 49 (2002) (O'Connor, J., concurring in the judgment).
10

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penalty that compelled the self-incrimination was automatically imposed following the defendants refusal to self-incriminate.17 In this case, there is no mandatory penalty arising from the refusal to participatethe prisoner only faces a possibility that the Commonwealth will attempt to use the refusal as evidence if it seeks to civilly commit him as a sexually dangerous person.18 In addition, the defendants refusal to participate in sex offender treatment is not being used against him in a criminal proceeding; his refusal is insufficient alone to support a finding of sexual dangerousness, and the Commonwealth is merely giving evidentiary value to his refusal.19 Although there was no constitutional violation and evidence that a defendant in an SDP civil commitment proceeding did not receive sex offender treatment is admissible, it is error to admit evidence that a defendant refused sex offender treatment where he could receive such treatment only by waiving confidentiality.20 The jury may be inclined to believe that the defendant refused treatment because he did not want to be treated rather than the waiver of confidentiality.21 Thus, the probative value of the refusal is substantially outweighed by the risk of unfair prejudice.22 Therefore, the judge erred in admitting evidence that the defendant refused sex offender treatment and should have admitted only evidence that he did not receive such treatment.23 Unsubstantiated rumors of rape that would be relevant only if offered for their truth are plainly not admissible in sexually dangerous person civil commitment proceedings.24 The evidence was not contained in an admissible incident report and there is no applicable common-law rule of evidence.25 The instruction incorrectly gave the jury the impression that all experts agreed that pedophilia is a mental abnormality.26 Two experts testified that the defendant may have met the criteria for pedophilia but did not meet the legal definition of mental abnormality.27 The judges instruction

17 18 19 20 21 22 23 24 25 26 27

See Lefkowitz v. Cunningham, 431 U.S. 801, 806-808 & n. 5 (1977). Commonwealth v. Hunt, supra at 815. Id. Id. at 816-818. Id. at 819. Id. Id. at 820. Commonwealth v. Hunt, supra at 823. Id. Id. at 824. Id.

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mischaracterized their opinions.28 The erroneous jury instruction may have given inappropriate legal validation to the prosecutors argument.29 If the word even had been included in the instruction, it would have informed the jury they need not find that the defendant committed any act of sexual misconduct while in prison to find the prisoner sexually dangerous.30 Thus, the instruction was erroneous and not harmless.31

28 29 30 31

Id. Id. at 825. Commonwealth v. Hunt, supra at 825. Id.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

In re Enforcement of Subpoena, 463 Mass. 162 (2012)

CONTRIBUTING EDITOR: DAVID SHEPPARD-BRICK I. Procedural History

The special prosecutor filed a complaint against a judge and sought and obtained a subpoena to depose the judge from the Commission on Judicial Conduct (Commission).1 The petitioner, a Justice of the Commonwealth, applied for relief from a single justice in the county court.2 A single justice of the Supreme Judicial Court reserved and reported the matter to the full court without a decision.3 II. Facts In December 2010, a District Attorney filed a complaint with the Commission on Judicial Conduct alleging that a judge, petitioner in this case (Judge), had, inter alia, violated the judicial code of conduct by exhibiting disregard for the law, lack of impartiality, and bias against the Commonwealth.4 The Commission appointed a special prosecutor who sought and obtained a subpoena duces tecum to depose the Judge and for the Judges materials relating to a number of cases decided by the Judge.5 The Judge sought to have the subpoena quashed on the basis that it violated the judicial privilege.6 III. Issues Presented 1. As a matter of first impression, whether there exists a judicial privilege recognized in the Commonwealth.

1 2 3 4 5 6

In re Enforcement of Subpoena, 463 Mass. 162, 164 (2012). Id. at 165. Id. Id. at 164. Id. Id. at 165.

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2. If there is such a privilege, to what materials does it extend to protect? 3. Whether the notice given in the subpoena was sufficient to allow the Judge to prepare for the deposition. IV. Holdings and Reasoning There is a judicial privilege recognized in the Commonwealth.7 The protection afforded to the thought process of a judge and any materials related thereto is absolute.8 The need for such a privilege is deeply rooted in our system of justice.9 The privilege must be narrowly tailored because holding judges accountable for acts of bias in contravention of the Code of Judicial Conduct is essential.10 [The] judicial deliberative privilege . . . guards against intrusions into the very essence of the judicial decision-making process.11 It is paramount that judges have such a protection in order to ensure the finality, integrity, and quality of judicial decisions.12 A judgment is a solemn record. Parties have a right to rely upon it. It should not lightly be disturbed, and ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision.13 In order to protect the finality of a judges decision, matters related to the rendering of such verdicts should be protected.14 The quality and integrity of decisions must also be protected.15 In order to protect the effectiveness of the judicial decision-making process, judges cannot be burdened with a suspicion that their deliberations and communications might be made public at a later date.16 Finally, the system of justice relies heavily on a judges independence and impartiality.17 A judge should not be distracted by the fear that an unpopular decision would cost the judge his or her job, which is why judges serve in times of good behavior and their compensation cannot be

In re Enforcement of Subpoena, supra at 174. Id. 9 Id. at 163-164. 10 Id. at 163. 11 Id. 12 Id. 13 In re Enforcement of Subpoena, supra at 167, quoting Fayerweather v. Ritch, 195 U.S. 276, 307 (1904).
8 14 15 16 17

Id. at 167. Id. at 168. Id. at 169, quoting Thomas v. Page, 837 N.E.2d 483 (Ill. App. 2005). Id.

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diminished.18 For the forgoing reasons a judicial privilege must be recognized in the Commonwealth.19 The judicial privilege is narrow but absolute.20 This absolute privilege covers a judges mental impressions and thought processes in reaching a judicial decision, whether harbored internally or memorialized in other nonpublic materials.21 The privilege also extends to confidential communications among judges and between judges and court staff made in the course of and related to their deliberative processes in particular cases.22 The privilege does not extend to nondeliberative events in connection with cases in which the judge participated.23 The privilege does not protect information that may relate to external influence or exparte communications that may have improperly effected the decision.24 This decision will not affect the Commissions ability to regulate the conduct of judges.25 In the past the Commission has been able to conduct investigations by looking at the outward behavior of judges and reach proper conclusions with regard to misconduct.26 There are multiple sources of primary information, available to the public and the Commission, on the basis of which judicial conduct and outward expressions of potential partiality can be assessed.27 Insomuch as the requested material relates to material protected by the judicial privilege it must be quashed.28 In general a subpoena must provide the Judge with enough information to satisfy the notice requirements listing with enough specificity; the cases that are of interest to the Commission, and the subject area of inquiry.29

18 19 20 21 22 23 24 25 26 27 28 29

Id. at 170-171. In re Enforcement of Subpoena, supra at 172-173. Id. at 174. Id. Id. Id. Id. at 174-175. In re Enforcement of Subpoena, supra at 176. Id. Id. at 177. Id. at 178. Id. at 179.

74

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Prescott, 463 Mass. 258 (2012)

CONTRIBUTING EDITOR: BRETT BAUMAN I. Procedural History

Seeking relief from a Suffolk County District Court judge, William OConnell and the Commonwealth (collectively, petitioners) filed a petition pursuant to G.L. c. 211, 3 to reverse the judges order to release from impoundment a redacted version of a search warrant affidavit containing allegations of statutory rape against OConnell.1 The affidavit was impounded following the Commonwealths motion soon after police executed the warrant.2 George W. Prescott Publishing Company, LLC (Prescott), which was permitted to intervene in the district court criminal proceedings, sought review of the affidavit.3 Prescott argued that no good cause existed for impoundment of the affidavit and that it was presumptively public.4 Following several hearings, the District Court vacated its impoundment order but ordered that the complainants name and other identifying information remain redacted before the affidavit was made public.5 The petitioners filed the G.L. c. 211, 3 motion, arguing that the district court erred in vacating the impoundment, since the affidavit contained allegations and reports of rape, which are barred from disclosure pursuant to G.L. c. 41, 97D.6 They also argued that disclosure would unduly prejudice OConnell and violate his right to a fair trial under the Sixth Amendment to the United States Constitution.7 A single justice of the Supreme Judicial Court for Suffolk County reserved and reported the
1 2 3 4 5 6 7

Commonwealth v. George W. Prescott Pub. Co., LLC, 463 Mass. 258, 259 (2012). Id. Id. Id. Id. Id. Commonwealth v. Prescott, supra at 259.

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matter to the Supreme Judicial Court (SJC).8 II. Facts In March of 2011, following an investigation of OConnell involving allegations that OConnell had engaged in sexual intercourse with a minor, State Trooper Kathleen Prince obtained a warrant to search OConnells condominium in Quincy.9 Trooper Princes affidavit, in support of the warrant application, contained identifying information about the minor, including the minors name, and other statements regarding OConnells alleged conduct.10 On April 5, 2011, following the execution of the warrant and the return of service filed in the District Court, the Commonwealth moved to impound all the materials in connection with the warrant, such as the affidavit, application, and return of service.11 The Commonwealth argued that it was an ongoing investigation, it was public policy to protect the identity of child sexual assault victims, and the warrant materials should be impounded pursuant to G.L. c. 41, 97D.12 The motion was granted by the Clerk Magistrate of the Quincy District Court for six months until October 5, 2011.13 On April 27, 2011, Prescott, publisher of the Patriot Ledger newspaper, filed a civil complaint in the District Court against the Clerk Magistrate, the Norfolk County District Attorney, and OConnell.14 Prescott sought to terminate the impoundment of the materials.15 At the same time, Prescott filed an emergency motion to terminate the impoundment, relying on G.L. c. 276, 2B.16 Following a hearing, the District Court denied Prescotts motion and found that good cause existed to continue the impoundment of the materials.17 However, the judge stated that he would review the impoundment order on June 1, sua sponte, and the Commonwealth would bear the burden of re-applying for the impoundment.18 Two days later, a criminal complaint was filed against OConnell, charging him with aggravated statutory rape, engaging in sexual conduct

8 9

Id. Id. at 260. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Prescott, supra at 260. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id.

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for a fee, and trafficking in cocaine.19 The Commonwealth also filed a motion to impound the complaint, related documents, discovery materials, police reports, evidence, and any exhibits submitted to the court by the police or the Commonwealth.20 Prescott moved to intervene in the case, seeking the same relief as in the civil caseto terminate or modify the impoundment order.21 A hearing was held regarding Prescotts motion to intervene.22 The judge allowed the motion by agreement of the Commonwealth and Prescott, and proceeded to terminate Prescotts civil case.23 The judge indicated that he intended to terminate the impoundment of the narrative portion of the criminal complaint and the warrant affidavit with the complainants name and identifying information redacted.24 At two further hearings, the Commonwealth continued to argue that impoundment was warranted regarding the remaining materials, since the affidavit and search warrant materials contained a report of rape and sexual assaultinformation that is barred from public disclosure pursuant to G.L. c. 41, 97D.25 OConnell argued that there was good cause for continued impoundment and that disclosure would unfairly prejudice him in violation of his right to a fair trial under the Sixth Amendment to the United States Constitution.26 Prescott argued for lifting the order of impoundment but agreed that the complainants name and other identifying information should remain redacted from the affidavit.27 Following the hearing, the judge ordered the affidavit to be released from impoundment, stating that the Commonwealth failed to show good cause for continued impoundment and that G.L. c. 41, 97D did not bar disclosure of the affidavit.28 The judge stayed his order for one week to give the parties an opportunity to appeal to the county court.29 The petitioners filed a G.L. c. 211, 3 petition in the county court.30 The single justice extended the stay of the District Court judges order until further order of the county court.31 Following the hearing, the single justice

19 20 21 22 23 24 25 26 27 28 29 30 31

Commonwealth v. Prescott, supra at 260-261. Id. at 261 & n.4. Id. at 261. Id. Id. Id. Commonwealth v. Prescott, supra at 261-262. Id. at 262. Id. Id. Id. Id. Commonwealth v. Prescott, supra at 262.

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reported the case to the SJC.32 III. Issues Presented 1. Whether the enactment of G.L. c. 41, 97D, which requires police departments to maintain the confidentiality of police reports they receive involving rape or sexual assault, modifies the publics right of access to certain search warrant materials.33 2. Whether the judge erred in ordering the release of the impoundment of the redacted affidavit, since good cause existed for the continued impoundment of the entire affidavit.34 IV. Holdings and Reasoning 1. The SJC restated the principle that, under common law, there is a presumption that a search warrant affidavit should be made available to the public once the warrant has been returned.35 The SJC was not persuaded by the petitioners argument that reports or conversations regarding sexual assault or rape are prohibited from public disclosure pursuant to 97D, regardless of whether such information is later incorporated in a search warrant affidavit or other document filed in court.36 Despite the fact that the statute precludes these reports and conversations from becoming public record, the SJC held that the statute, by its terms, does not preclude publication of these reports or the content of a victims conversations once they are disclosed in court.37 Without a clear intent to abrogate an area traditionally guided by the common law, the SJC declined to construe a statute as modifying common law.38 Also, the SJC refused to adopt a construction of 97D that would be at odds with the principle that blanket prohibitions on public access to court records are to be avoided.39 The SJC foundlooking at legislative historythat the legislature made no mention of court documents but only of records of police departments.40 As such, there can be no inference that the legislature intended 97D to reach beyond reports in the possession of police departments.41
32 33 34 35 36 37 38 39 40 41

Id. Id. at 264. Id. Id. Id. at 265. Commonwealth v. Prescott, supra at 265. Id. at 266. Id. Id. at 267. Id.

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2. Reviewing the judges order for abuse of discretion, the SJC looked to whether good cause existed for the continued impoundment and restriction of the publics access to these judicial records.42 The SJC rejected the petitioners argument that the judge erred in balancing the defendants interests against the publics interest in favor of public disclosure since a defendants interests in impoundment trumps the interest of the public.43 Rather, the SJC stated that the judge applied the correct legal standard while weighing the publics interest against the complainants right to privacy and OConnells right to a fair trial.44

42 43 44

Id. at 268. Commonwealth v. Prescott, supra at 269-270. Id. at 271.

80

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Lennon, 463 Mass. 520 (2012)

CONTRIBUTING EDITOR: MATTHEW CAMPBELL I. Procedural History

A jury convicted the defendant, Joseph Lennon, of premeditated murder in the Massachusetts Superior Court.1 Mr. Lennon filed a direct appeal on March 24, 2009, but that appeal was stayed to allow Mr. Lennon to file a motion for new trial.2 The motion for a new trial alleged that a closure of the courtroom during jury selection violated Mr. Lennons right to a public trial under the Sixth Amendment.3 This motion was denied without a hearingbased on the conclusion that Mr. Lennon failed to meet his burden of showing that there was a general or even a partial closure of the courtroom.4 Mr. Lennons appeal of his conviction was consolidated with an appeal of the denial of his new trial motion.5 On December 22, 2011, the Supreme Judicial Court (SJC) heard oral arguments and then remanded the case to obtain specific findings regarding Mr. Lennons Sixth Amendment claims.6 The trial judges findings of fact were filed with the SJC on June 22, 2012.7 II. Facts At about 4 p.m. on June 19, 2006, Mr. Lennon was in a park near Faneuil Hall with approximately five other people.8 The victim was seated on a bench in close proximity to Mr. Lennon.9 Suddenly, witnesses heard

1 2 3 4 5 6 7 8 9

Commonwealth v. Lennon, 463 Mass. 520, 520 (2012). Id. at 521 n.1. Id. at 525. Id. at 521 n.1, 527-528. Id. at 521 n.1. Id. at 521 n.1, 525-526. Commonwealth v. Lennon, supra at 521 n.1. Id. at 521. Id.

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yelling and observed people fleeing the areaexcept the defendant [Mr. Lennon] and the victim.10 Mr. Lennon pulled the victim over the back of the bench, threw the victim to the ground, and yelled at the victim; Mr. Lennon then fatally stabbed the victim in the back and fled the scene.11 The victim was unarmed and had neither struck nor threatened Mr. Lennon.12 Mr. Lennon proceeded to a homeless shelter where he was staying and changed his clothes.13 He then returned to the park, where he was identified by witnesses and arrested by police.14 Police officers collected samples of reddish-brown stains from Mr. Lennons hands and from his shirt, which was retrieved from the shelter.15 These items were later tested and matched to the victims DNA.16 At approximately 8 p.m., Mr. Lennon was taken to an interview room where he claimed that he had purchased a pint of vodka and a bottle of Ruby Red, which he drank with his girlfriend.17 Mr. Lennon stated that he later went to purchase more vodka and then went to the park to look for his girlfriend.18 Mr. Lennon claimed that he was arrested shortly after he arrived at the park.19 III. Issues Presented 1. Whether the judge erred in refusing to instruct the jury that evidence of voluntary intoxication could be considered regarding the question of his capacity to premeditate deliberately. 2. Whether the judge erred in refusing to instruct the jury that a verdict of voluntary manslaughter could be returned based on evidence of reasonable provocation or mutual combat. 3. Whether the judge erred in denying Mr. Lennons motion for a new trial based on his claim that his Sixth Amendment right to a public trial was violated by the closure of the courtroom during jury selection. IV. Holdings and Reasoning 1. The SJC held that the trial judge properly denied Mr. Lennons request to instruct the jury on voluntary intoxication.20 A jury instruction

10 11 12 13 14 15 16 17 18 19 20

Id. Id. Id. Commonwealth v. Lennon, supra at 521. Id. at 521-522. Id. at 522. Id. Id. Id. Commonwealth v. Lennon, supra at 522. Id. at 523.

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on voluntary intoxication is required only if there is evidence of debilitating intoxication that could support a reasonable doubt as to the defendants ability to form the requisite criminal intent.21 The Court found that there was no evidence that Mr. Lennons condition approached the level of debilitating intoxication.22 On the contrary, witnesses who observed Mr. Lennon at the time of the stabbing testified that he had no difficulty walking, running, speaking, or understanding.23 2. The SJC found that the trial judge correctly denied Mr. Lennons request to instruct the jury on voluntary manslaughter based on reasonable provocation or mutual combat.24 A defendant is entitled to an instruction on voluntary manslaughter based on reasonable provocation if, viewing the evidence in the light most favorable to him, there is evidence of provocation deemed adequate in law to cause the accused to lose his selfcontrol in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accuseds temper to cool.25 To warrant an instruction on sudden combat, there must be evidence that creates a reasonable doubt that the victim presented a threat of serious harm to the defendant.26 The Court found that the attack was completely unprovoked, and therefore there was nothing that would have caused a reasonable person to lose self-control.27 In addition, there was no evidence that the victim either struck or attacked Mr. Lennon, and in no way did the victim present any serious harm to Mr. Lennon.28 3. The SJC held that the trial judge properly denied Mr. Lennons motion for a new trial because the evidence did not support the claim that the courtroom was closed either to the public generally or to his sisters specifically.29 The Court found that the trial judge did not deny entry or direct anyone to leave the courtroom during the jury selection process.30 The courtroom door was not locked and there was no sign prohibiting entry.31 Thus, [n]o courtroom closure occurred at any time during jury selection.32 The Court also found that neither of Mr. Lennons two sisters
Id., quoting Commonwealth v. Brown, 449 Mass. 747, 768 (2007). Id. at 523. 23 Id. 24 Id. at 524-525. 25 Commonwealth v. Lennon, supra at 524, quoting Commonwealth v. Andrade, 422 Mass. 236, 237 (1996).
22 26 27 28 29 30 31 32 21

Id. at 525. Id. at 524-525. Id. at 525. Id. at 527-528. Id. at 526. Commonwealth v. Lennon, supra at 526. Id.

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could have been excluded because neither one was physically present during jury selection.33 Finally, the Court held that the trial judges finding that jury selection concluded before the luncheon recess was not erroneous.34 More specifically, the Court found that a court reporters notation indicating that court recessed at 4:04 p.m. on one of the jury selection days was mistaken.35 This inaccuracy could be explained in one of two ways: (1) the recording machine was not turned off until later in the day or (2) the time stamp device was malfunctioning.36

33 34 35 36

Id. Id. at 527. Id. Id. at 528.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Scott, 463 Mass. 561 (2012)

CONTRIBUTING EDITOR: MEAGHAN E. HATCH I. Procedural History

A Superior Court jury convicted the defendant of murder in the first degree, armed assault with intent to kill, assaulting a police officer with a dangerous weapon, and various gun charges.1 The defendant appealed the convictions on several grounds.2 II. Facts The defendant, Darryl Scott, left a movie theatre with Victoria Fernandes, his pregnant girlfriend, and passed three individuals with whom the defendant had an altercation with two weeks prior.3 The defendant instructed Fernandes to keep walking, which she did.4 The defendant testified that he saw one of the men reach for what he thought was a weapon, and he therefore reached for and fired his gun, killing one of the men.5 The defendant was not arrested until three months later when the police observed a drug transaction the defendant was involved in.6 When the officers approached, the defendant ran.7 After being cornered, the defendant made several comments about his life being over and not being able to go to prison for a long time while holding a gun to his head.8 The police told him that he would only be charged with a firearms offense with

1 2 3 4 5 6 7 8

Commonwealth v. Scott, 463 Mass. 561, 562 (2012). Id. Id. at 563. Id. Id. at 567. Id. at 564. Commonwealth v. Scott, supra at 564. Id. at 564-565.

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jail time of no more than a year.9 The defendant eventually surrendered.10The police recovered the gun and matched it to the gun used in the murder three months before the second incident. III. Issues Presented 1. Whether the trial judge abused his discretion by allowing the prosecutions peremptory challenge of a Black woman?11 2. Whether the judge erred in denying the defendant a new trial after the prosecution questioned him regarding his juvenile record?12 3. Whether statements made during the prosecutions closing argument amounted to prejudicial error that would require a new trial?13 4. Whether the trial judge erred in denying defendants request for a jury instruction on defense of another person?14 5. Whether the trial court erred in denying the defendants motion for a new trial for ineffective assistance of counsel without conducting an evidentiary hearing?15 6. Whether defendant was entitled to a new trial or a reduction of the murder verdict?16 IV. Holdings and Reasoning 1. Peremptory Challenge: During the jury empanelment process, the prosecution challenged the empanelment of a Black male, a Black female, and a Hispanic female; the judge only allowed the challenge of the Black female, after noting that there was no racial motivation behind the challenge.17 The Court held that the judge did not abuse his discretion by allowing the peremptory challenge of a Black woman or that there was error because the jury did not represent a cross section of the community.18 Although a defendant may rebut the presumption that a peremptory challenge is proper, the defendant here did not meet his burden of establishing prima facie discrimination because there was no pattern of discrimination in the prosecutors use of peremptory

Id. at 565. Id. at 566. 11 Id. at 568-569. 12 Id. 571-572. 13 Commonwealth v. Scott, supra at 573. 14 Id. at 575. 15 Id. at 577. 16 Id. at 579. 17 Id. at 569-570. 18 Id. at 571.
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challenges.19 2. Juvenile Record: The Court held that, while testimony about defendants juvenile record solicited by the prosecutor was improper, there was no prejudicial error warranting a new trial because the trial judge immediately struck the testimony after it was given and instructed the jury not to consider it as evidence.20 Evidence of prior convictions . . . may be admitted to rebut specific portions of the defendants testimony.21 However, the Court noted that the prosecutor should not have continued to ask the defendant about the record without having or attempting to obtain certified copies of the records.22 The Court held that there was no prejudice to the defendant warranting a new trial.23 3. Prosecutors Closing Argument: The Court held that portions of the prosecutors closing argument may have exceeded the bounds of permissible argument; however, those statements were unlikely to affect the jurys verdict.24 Specifically, the Court held that the prosecutors reference to the statements about his life being over when he was cornered by the police was a permissible statement as the jury could reasonably make the inference that the defendant made the statement because he was aware of his culpability for the homicide.25 The defendant also argued that the prosecutor made personal attacks on defense counsel. The Court held that some of the prosecutors personal comments about defense counsel went beyond the bounds of proper argument; but because the statements were about defense counsel and not defendants character, there was little to no impact on the jury.26 Lastly, the defendant argued that the prosecutor made statements that were improper because the comments shifted the burden of proof to the defendant; the Court concluded that these statements were proper since the prosecutor discussed the heavy burden placed on the prosecution and then restated the evidence presented in the case.27 4. Jury Instruction: The defendant argued that the trial judge erred by denying defendants motion for instruction on defense of another.28 After an inquiry into the rule governing the defense of another, the Court held

19 20 21 22 23 24 25 26 27 28

Commonwealth v. Scott, supra at 570-571. Id. at 572-573. Id. at 573, quoting Commonwealth v. Roderick, 429 Mass. 271, 274 (1999). Id. at 573, citing Commonwealth v. Saunders, 50 Mass. App. Ct. 865, 868-869 (2001). Id. Id. at 575. Commonwealth v. Scott, supra at 573-574. Id. at 574, citing Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999). Id. at 574-575. Id. at 575.

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that it is not reasonable for the defendant to have believed that Fernandes was under attack. The defendant stated that his girlfriend had walked ahead and that he could no longer see her when he began shooting. 29 5. Denial of Motion for New Trial: The Court held that the judge did not err in denying the defendants request for a new trial, as there was not an error during the trial that likely influenced the jurys decision.30 The Court noted that the trial judge should not be reversed unless the trial was manifestly unjust or if the trial was infected with prejudicial constitutional error.31 The defendant argued that he was entitled to another trial on the ground of ineffective assistance of counsel because his attorney failed to file a motion to suppress defendants statements to the police and to adequately present a defense.32 The Court did not find that defense counsel was ineffective: counsel moved to suppress the identification and firearm evidence; he conducted lengthy investigations; he argued rigorously during closing arguments that the police investigation was inadequate; and there was no indication that the motion to suppress the defendants statements would have been successful had counsel filed the motion.33 6. Review per G. L. c. 278, 33E: The Court stated that the jury could have found the defendants evidence that he acted in self-defense compelling; however, they were not required to believe the evidence.34 Weighing the evidence as the jury did is consistent with a verdict of murder in the first degree on a theory of deliberate premeditation.35 Thus, there was no reason to order a new trial or reduce the defendants murder conviction.36

Id. at 576-577. Id. at 577, citing Commonwealth v. Mercado, 452 Mass. 662, 666 (2008). 31 Commonwealth v. Scott, supra at 577, quoting Commonwealth v. Espada, 450 Mass. 687, 697 (2008).
30 32 33 34 35 36

29

Id. at 577. Id. at 578-579. Id. at 578-579. Id. at 579-580. See also G. L. c. 278, 33E. Id. at 579.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Daley, 463 Mass. 620 (2012)

CONTRIBUTING EDITOR: SARAH J. KMIECIAK I. Procedural History

A grand jury indicted the defendant on three counts including: (1) motor vehicle homicide; (2) negligent operation of a motor vehicle; and (3) leaving the scene of an accident where death resulted and was tried in a bench trial in Superior Court.1 The judge denied both the defendants motion for required findings of not guilty at the close of the prosecutions case and his renewed motion at the conclusion of the trial.2 The trial court judge found the defendant not guilty of the indictments for motor vehicle homicide and negligent operation of a motor vehicle.3 At issue with the final indictment for leaving the scene of an accident where death resulted was whether the Commonwealth was required to prove that the defendant knew he collided with a person.4 The judge initially held the defendant guilty stating that the statute only required the Commonwealth to prove that the defendant knowingly collided with an object, there was no requirement to show that the defendant knowingly collided with a person.5 Prior to sentencing the defendant filed a motion pursuant to Mass. R. Crim. P. 25(a) to set aside the conviction.6 At sentencing, the judge stated that after reconsideration he had misinterpreted the statute.7 He found that the statute did require that a defendant have knowledge that he had collided with a person.8 As such, the judge stated that he should have held that the Commonwealth did not

1 2 3 4 5 6 7 8

Commonwealth v. Daley, 463 Mass. 620, 622 (2012). Id. Id. Id. Id. Id. at 622-623. Commonwealth v. Daley, supra at 623. Id.

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meet its burden.9 The judge advised the defendant to file a motion pursuant to Mass. R. Crim. P. 30(b).10 The judge stated in his memorandum of decision and order on the motion that the defendant was not guilty of leaving the scene of an accident where death resulted as the Commonwealth did not meet is burden by proving that the defendant knowingly collided with a person.11 The judge found that he had erred by entering a judgment of guilty and resolved this error of law by entering a judgment of acquittal.12 The Supreme Judicial Court of Massachusetts granted the Commonwealths application for direct appellate review.13 II. Facts On December 23, 2009, the defendant was driving on Robertson Street in Quincy.14 On that night the street was lined with snow banks from one to two feet high.15 As the defendant was driving he struck a pedestrian with the passenger side of his Toyota truck.16 The victim was discovered the next morning on the sidewalk between the snow banks.17 The victim had died of blunt force trauma to his chest, and at the time of death had a blood alcohol level of .25 percent.18 The police held a press conference identifying the car that struck the victim as a Toyota and asking for the publics assistance in finding the driver.19 The defendant, hearing the announcement, turned himself in via his attorney.20 The defendant stated that on that night he had attended a party in Quincy and over the course of the evening he drank two glasses of wine.21 At approximately 11 P.M., the defendant was driving home and glanced away from the road to reach for a cup of coffee in his cup holder, and he felt his car strike something.22 He stopped a short distance down the road approximately 100 feetgot out of the truck, and walked a distance of

Id. Id. 11 Id. 12 Id. 13 Commonwealth v. Daley, supra at 620. 14 Id. at 621. 15 Id. 16 Id. 17 Id. 18 Id. 19 Commonwealth v. Daley, supra at 621. 20 Id. 21 Id. 22 Id. at 621-622.
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about ten to twenty feet down the street to determine what he hit.23 The defendant did not see anything in the street and got in the car and drove away.24 The defendant noticed damage to his side view mirror but assumed he had hit a signpost, fire hydrant, or something else solid.25 The defendant maintains that he is unaware that he hit a person until he heard the announcement of the police press conference at which point he turned himself in.26 III. Issues Presented Whether under G. L. c. 90, 24(2)(a1/2)(2) the Commonwealth has the burden to prove that a defendant knowingly collided with a person rather than an object to receive a conviction for leaving the scene of an accident where death resulted.27 IV. Holdings and Reasoning The Court relied on the ordinary language of the sentence to interpret the statute.28 The court found that the adverb knowingly modifies both verbs within the clause.29 Here, the statute states Whoever operates a motor vehicle . . . [who] goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished . . . .30 The Commonwealth argued: (1) that Commonwealth v. McMenimon31 and Commonwealth v. Horsfall32 apply; and (2) that the legislative history of the statute supports their argument that the defendant does not have to have knowledge that the object he struck was, in fact, a person.33 For the first argument, the Court found that these cases could be distinguished from the case at issue on the factsneither of those cases dealt with the issue of whether a defendant had knowledge that he collided

Id. at 622. Id. 25 Commonwealth v. Daley, supra at 622. 26 Id. at 621-622. 27 Id. at 620. 28 Id. at 623, citing Foss v. Commonwealth, 437 Mass. 584, 586 (2002). 29 Id., citing Flores Figueroa v. United States, 556 U.S. 646, 647 (2000); Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 229 (2010); Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 802 (2003).
24 30 31 32 33

23

G. L. c. 90, 24(2) (a ) (2). Commonwealth v. McMenimon, 295 Mass. 467 (1936). Commonwealth v. Horsfall, 213 Mass. 232 (1913). Commonwealth v. Daley, supra at 624-625.

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with a person.34 As for the second issue, the Court reiterated that when the words and meaning of a statute are clear there is no reason to resort to extrinsic aids, such as legislative history.35 Ultimately, the Court held that the plain language of the statute requires that a person must knowingly cause harm to a person to be liable for leaving the scene of an accident.36 Here, the Commonwealth failed to show that the defendant knowingly hit a person; therefore they did not meet the required burden of proof. The judgment of the Superior Court was affirmed.37

34 35 36 37

Id. at 625. Id., quoting Foss v. Commonwealth, 437 Mass. 584, 586 (2002). Id. at 626. Id.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Berry, 463 Mass. 800 (2012)

CONTRIBUTING EDITOR: CHRISTOPHER A. MONSON I. Procedural History

A Boston Municipal Court granted defendants motion to suppress evidence regarding his cell phone.1 After the Muncipal Court denied the Commonwealths motion to reconsider, the Commonwealth filed an interlocutory appeal and the Supreme Judicial Court transferred the case to itself on its own motion.2 II. Facts Police officers witnessed a drug deal between Kevin Darosa and an unnamed defendant (hereafter defendants) in the Dorchester area of Boston.3 Upon arresting the defendants, the officers searched them and confiscated each of their cell phones.4 The police officers then delivered the defendants to the police station.5 At the station, an officer took one of the defendants cell phone, accessed the recently called numbers on the phone, and placed a call to the last number on the call log.6 At this time, the second confiscated phone began to ring indicating that the defendants had spoken recently via cell phone prior to the arrest.7 The police officer could not recall which defendants phone was searched and which defendants phone received the call.8

1 2 3 4 5 6 7 8

Commonwealth v. Berry, 463 Mass. 800, 801 (2012). Id. at 800-802. Id. at 802. Id. Id. at 803. Commonwealth v. Berry, supra at 803. Id. Id.

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III. Issues Presented 1. Who has the burden to prove or disprove standing for a Fourth Amendment claim when an agent of the government knows he searched one of two defendants property, but the agent cannot remember which defendant he searched? 2. Under the search incident to arrest exception to the Fourth Amendment, whether, and to what extent, may a government agent search a defendants mobile phone at a different location than the arrest scene? IV. Holdings and Reasoning 1. When the government admits to searching one of two persons properties, but cannot recall whose specific property was searched, then it is assumed that the property searched belongs to either party and the government bears the burden to disprove standing.9 The Court affirmed the Municipal Courts decision on this issue.10 2. The search incident to arrest doctrine does not require a search to occur contemporaneously with the arrest and a simple search of a cell phone at a police station subsequent to an arrest does not require a warrant.11 However, the court cautioned that the assessment would not be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.12 The court reversed the Municipal Courts decision on this issue and the case was remanded.13

Id. at 804-805. Id. 11 Commonwealth v. Berry, supra at 806-807. 12 Id. at 807 (quoting Commonwealth v. Phifer, 463 Mass. 790, 797 (2012)). 13 Id.
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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Walczak, 463 Mass. 808 (2012)

CONTRIBUTING EDITOR: BETH NICOLL I. Procedural History

A grand jury indicted the defendant, a juvenile at the time of the offense, for second-degree murder on two separate occasions.1 The Superior Court judge dismissed the indictment on both occasions: first, because the prosecutors failure to disclose exculpatory evidence impaired the grand jury proceeding,2 and second, for lack of sufficient evidence. The Supreme Judicial Court (SJC) granted the Commonwealths application for direct appellate review of the second dismissal. The SJC held that the evidence was sufficient to support the indictment, but a four-justice majority upheld the dismissal on the alternative ground that the grand jury should have been instructed on the elements of murder and the significance of mitigating circumstances in juvenile cases. II. Facts The grand jury heard evidence that the defendant, who was sixteen at the time of the offense, stabbed the victim in the midst of a scuffle that began when the victim tried to rob the defendant. At the indictment stage, the grand jury was not given instructions on the elements of murder and the significance of mitigating circumstances and defenses. III. Issue Presented Whether prosecutors should instruct grand juries on the elements of murder and the significance of mitigating circumstances and defenses when the prospective defendant is a juvenile.

1 2

Commonwealth v. Walczak, 463 Mass. 808, 810 (2012) (Lenk, J., concurring). Id. at 810-811.

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IV. Holdings and Reasoning When the potential defendant in a murder case is a juvenile, the grand jury should be instructed on the significance of mitigating circumstances and defenses raised by the evidence.3 In such cases, voluntary manslaughter proceedings would be held in the Juvenile Court, where the Juvenile would be given protections beyond those afforded him in the Superior Court. In contrast, murder trials are held in the Superior Court, so the Juvenile would be treated as an adult.4 In the unique instance of juvenile defendants whom the prosecutor seeks to charge with murder, the grand jury not only serve[s] as [a] shield against unfounded accusation, but in recent years [has] become the sole gatekeeper between the adult and juvenile justice systems.5 There are significant differences between the two systems: the juvenile system is designed to be rehabilitative, rather than punitive; proceedings in the juvenile court are not even classified as criminal, but rather ask questions of delinquency.6 Additionally, the maximum penalty for a juvenile tried for voluntary manslaughter as a youthful offender in the Juvenile Court is a maximum penalty of twenty years. A juvenile tried as an adult for second-degree murder in the Superior Court faces a mandatory life sentence.7 In these cases, grand juries should be given an instruction informing them that murder indictments will cause the juvenile to be tried in Superior Court.8 The recent line of United States Supreme Court cases finding mandatory application of the most severe penalties to juveniles unconstitutional demonstrates the importance of taking a juveniles youth into account before subjecting him to adult proceedings or punishments and supports this reasoning.9

3 4 5 6 7 8 9

Id. at 822-824. Id. at 822. Id. at 824. Id. at 827. Commonwealth v. Walczak, supra at 829, citing G. L. c. 119, 72B; G. L. c. 265, 2, 13. Id. at 830. Id. at 830-831.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Lavoie, 464 Mass. 83 (2013)

CONTRIBUTING EDITOR: KEELEY RICE I. Procedural History

A jury convicted the defendant, Lavoie, of murder in the second degree. Lavoie moved for a new trial, alleging that his right to a public trial under the Sixth and Fourteenth Amendments was violated when his counsel failed to object to the exclusion of Lavoies family from the courtroom during jury selection. Following an evidentiary hearing, the trial judge denied the motion for a retrial. A divided Appeals Court determined that the defendants right to a public trial had been violated, and reversed. The Supreme Judicial Court reversed the Appeals Court, concluding that Lavoies right to a public trial during jury selection was not violated and that defense counsels waiver did not amount to ineffective assistance of counsel. II. Facts The Appeals Court affirmed Lavoies conviction of murder in the second degree.1 During jury selection, court officers regularly removed the public from the courtroom when it appeared there would be insufficient room for both the venire and the public. Court officers escorted Lavoies family outside the courtroom during his jury selection; this upset Lavoie, but he did not mention it to his attorney. Defense counsel did not object to the familys removal. Jury selection took place over a two-day period in a closed courtroom.2 Following the 2007 federal decision of Owens v. United States,3 Lavoie filed a motion for a new trial. He alleged that his right to a public trial had been violated when his defense counsel did not object when his family

1 2 3

Commonwealth v. Lavoie, 464 Mass. 83, 84 (2013). Id. at 85. Owens v. United States, 483 F.3d 48 (1st Cir. 2007).

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members were excluded from the courtroom during jury selection.4 At the evidentiary hearing, Lavoies counsel testified to reasons for not objecting: it was his regular practice not to interfere with court officers work; his belief that family members, especially the defendants mother, could present distraction during jury selection; and in particular, that he made a decision prior to trial not to object.5 The trial judge concluded that the exclusion of Lavoies family was a structural error and that the closure of the courtroom during jury selection violated Lavoies Sixth Amendment rightswhich Lavoie had not waived.6 However, during the evidentiary hearing, the judge was limited to deciding whether a miscarriage of justice occurred, since no objection had originally been raised during jury selection.7 The judge determined that closing the courtroom during jury selection did not substantially impact Lavoies trial. Lastly, the trial judge notedin effect, giving credence to defense counsels explanationthat the decision not to object to the family members removal was a reasonable tactical decision.8 III. Issues Presented 1. Whether defense counsel may waive, regardless of the defendants express consent, the right to a public trial during jury selection when the waiver is part of counsels trial strategy? 2. Whether defense counsels decision to waive the defendants right to a public trial during jury selection was unreasonable, and therefore deprived defendant of effective assistance of counsel? IV. Holdings and Reasoning 1. Defense counsel may waive the defendants right to a public trial during jury selection, even without his express consent, where that waiver is a tactical decision. A defendant has a constitutional right to a public trial, which includes the jury selection process.9 The parties disputed whether defense counsel effectively waived Lavoies right to a public trial during jury selection. The Supreme Court has recognized that [f]or certain fundamental rights, the defendant must personally make an informed waiver. . . For other rights, however, waiver may be effected by action of counsel.10 Requiring a defendants express waiver protects the defendants

4 5

Commonwealth v. Lavoie, 464 Mass. 83, 84 (2013). Id. at 85. 6 Id. at 85-86. 7 Id. at 86, citing Mass. R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). 8 Id. 9 Id., citing Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010). 10 Gonzalez v. United States, 553 U.S. 242, 248 (2008).

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basic constitutional rights, though counsel has the authority to make decisions regarding trial strategy.11 Lavoie argued that he never waived his right to a public trial during jury selection because he never discussed it with his attorney.12 The Commonwealth argued that Lavoies express consent was unnecessary and defense counsel could waive the right to a public trial as a strategic move.13 In judging this issue of first impression, the Court concluded that counsel may waive, with or without the defendants express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsels trial strategy.14 Through his counsel, Lavoie waived his right to a public trial. This waiver was within counsels ability to determine his own trial tactics.15 2. The Court concluded that defense counsels waiver did not amount to ineffective assistance of counsel. When the ineffective counsel claim deals with a failure to object, the Court employs the standard used in Commonwealth v. Saferian.16 Under this approach, [c]ounsel is ineffective where his conduct falls below that which might be expected from an ordinary fallible lawyer and prejudices the defendant by depriving him of an otherwise available, substantial ground of defence.17 Also, the Court must consider the reasonableness of a counselors decision at the time that it was made.18 Lavoie agreed that the Saferian standard applies, but argued that in light of Owens v. United States, he should receive a new trial.19 In Owenswhich involved an ineffective assistance claim because of counsels failure to object to a closed courtroomthe Court stated that a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice.20 In Owens, the trial judge refused to grant an evidentiary hearing on the ineffective assistance claim because the defendant could not meet the procedural default test showing both cause and actual prejudice.21 The Appeals court remanded for an evidentiary hearing after noting that because the closed courtroom

11 Commonwealth v. Lavoie, supra at 87-88, citing Taylor v. Illinois, 484 U.S. 400, 418 (1988). 12 13 14 15

Id. at 88. Id. Id. at 88-89. Id. at 89, citing Gonzalez v. United States, supra at 249-250; Taylor v. Illinois, supra at

418. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Commonwealth v. Lavoie, supra at 89, quoting Commonwealth v. Saferian, supra at 96 (internal quotation marks omitted).
17 18 19 20 21 16

Id. at 89-90, citing Commonwealth v. Burgos, 462 Mass. 53, 70 (2012). Id. at 90. Owens v. United States, supra at 64. Commonwealth v. Lavoie, supra at 90, citing Owens, supra at 61.

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involved a structural error, prejudice could be presumed.22 In his case, Lavoie already had his evidentiary hearing and the record supports the denial of the motion for a new trial. Defense counsel amply testified to his reasons for not objecting to the closed courtroom.23 The decision not to object was reasonable when made, and therefore did not qualify as ineffective assistance of counsel.24

22 23 24

Id., citing Owens, supra at 64. Id. Id. at 91.