Mass. Crim. Digest Fall Edition

NEW ENGLAND LAW REVIEW
MASSACHUSETTS CRIMINAL DIGEST
VOLUME 48 Issue 1

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

NEW ENGLAND LAW REVIEW
VOLUME 48 2013-2014 NUMBERS 1-4

EDITORIAL BOARD
Editor-in-Chief MICHAEL J. MARTUCCI Managing Editor JANIE REILLY Executive Article Editors DEVIN GUIMONT ROBB LEVINE Executive Online Editor LOUISA GIBBS Business Managing Editor SARAH LOWDON Executive Literary Editors LINDSAY BOHAN ZACHARY HELLER

Symposium Editor KRISTEN MULLEN

Online Editors CRYSTAL KENNEDY ROBERT WILLIAMS Executive Comment & Note Editors WILLIAM BREKKA ANDREW HIGLEY CAROLINE KELLY GREGORY PAONESSA KEITH RICHARD

Alumni Editor CONOR GERAGHTY

Comment & Note Editors SARAH FAUST ADAM FIEDLER FELICIA FLAHIVE ROBERT MARTIN BRIAN MCNIFF ANNALISE SCOBEY ELIZABETH VAN BLARCOM JARED VARO VANESSA WOODMAN DE LAZO

Technical Editors KAREN CASETTA MELISSA HAMBELTON MICHAEL LOMBARDI ALLISON REUTER LINDSAY REYNOLDS STEPHEN SHOREY RACHEL SZOSTAK KENNETH THOMPSON KATE TIMBERLAKE

ASSOCIATE MEMBERS
TIMOTHY ARNOLD CHARLES BASLER GREGORY BRINEY HEATHER BRUHA KEVIN BUONO LOUIS DILELLO SUZANNE DONNELLY CHELSEA EDWARDS EMILY CHADBOURNE MATTHEW EZEPEK ALISON FIELD SARAH GAGE ERIC GILLESPIE WENDY HANSEN NICOLE HAZLETT COURTNEY HERNDON SHANNON HYLE TAYLORE KARPA TIFFANY KNAPP KATARINA KOZAKOVA JOHN MARA CATHERINE MARTIN RACHAEL MICHAUD KEVIN C. MORTIMER GREGORY MOSS SEAN P. MURPHY Faculty Advisor LAWRENCE M. FRIEDMAN RAE MURRAY REBECCA MUSHLIN SAMEERA NAVIDI ERIC PACY ALESSANDRA G. PERNA NADINE PETSUCK HEATHER G. REID ANTHONY SERDYNSKI, JR. CATHERINE S. FLAHERTY KEVIN THAYER KRISTY WILSON JULIANNA ZITZ

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Table of Contents
PREVENTIVE MED. ASSOCS., INC. V. COMMONWEALTH, 465 MASS. 810 (2013) Contributing Editor: Crystal Kennedy ..................................................................... 1 COMMONWEALTH V. FRANKLIN, 465 MASS. 895 (2013) Contributing Editor: Louisa Gibbs ........................................................................... 9 COMMONWEALTH V. TATUM, 466 MASS. 45 (2013) Contributing Editor: Robert Williams .................................................................... 15 COMMONWEALTH V. MOODY, 466 MASS. 196 (2013) Contributing Editor: Bill Brekka ............................................................................ 21 COMMONWEALTH V. RIVAS, 466 MASS. 184 (2013) Contributing Editor: Karen Casseta ....................................................................... 27 COMMONWEALTH V. HORNE, 466 MASS. 440 (2013) Contributing Editor: Felicia Flahive ....................................................................... 35 COMMONWEALTH V. CHATMAN, 466 MASS. 327 (2013) Contributing Editor: Sarah Faust ........................................................................... 39 COMMONWEALTH V. SYLVAIN, 466 MASS. 422 (2013) Contributing Editor: Adam Fiedler ........................................................................ 47 COMMONWEALTH V. ORTIZ, 466 MASS. 475 (2013) Contributing Editor: Conor Geraghty .................................................................... 53 COMMONWEALTH V. FORTUNATO, 466 MASS. 500 (2013) Contributing Editor: Melissa Hamilton ................................................................. 57 COMMONWEALTH V. CUMMINGS, 466 MASS. 467 (2013) Contributing Editor: Erik Hagan ........................................................................... 61 COMMONWEALTH V. GRAY, 466 MASS. 1012 (2013) Contributing Editor: Andrew Higley ..................................................................... 65

IN THE MATTER OF THOMAS F. PATCH, 466 MASS. 1016 (2013) Contributing Editor: Caroline M. P. Kelly ............................................................. 69

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Preventive Medicine Associates, Inc. v. Commonwealth 465 Mass. 810 (2013)

CONTRIBUTING EDITOR: CRYSTAL KENNEDY

I.

Procedural History

The Commonwealth, through the Attorney General, sought a grand jury indictment to charge Preventive Medicine Associates, Inc. (“PMA”) and Punyamurtula Kishore (“Kishore”) with Medicaid fraud. 1 The grand jury returned the indictment charges on September 29, 2011.2 The Commonwealth later sought, on two separate occasions, search warrants ex parte to search the e-mail accounts of Kishore and PMA’s former billing director, Cheryl Church (“Church”).3 After the Commonwealth received and reviewed a number of the emails from Google, Inc., the Defendants sought two separate protective orders from the court for the two e-mail accounts based on attorney-client privilege.4 After two hearings, the motion judge required the Commonwealth to create a “‘taint team’ comprised of assistant attorneys general not involved in the investigation or prosecution of the defendants” to review the e-mails.5 The Defendants immediately sought relief from the order before a single justice in the county court,6 who stayed the order and reserved two questions for the full Supreme Judicial Court (“SJC”) to review.7

1 2 3 4 5 6 7

Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810, 811 (Mass. 2013). Id. at 812. Id. at 813 & 815. Id. at 815–816. Id. at 811. Id. at 816. Preventive Med. Assocs., Inc. v. Commonwealth, supra at 812.

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II. Facts

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Kishore owned and operated PMA, which is a Massachusetts network of medical practices.8 The Commonwealth believed that PMA created a kickback scheme by paying certain “sober homes” to refer their residents to PMA for drug testing.9 MassHealth, the Massachusetts Medicaid program, would then pay PMA—it received approximately $18.9 million from this program.10 The Commonwealth believed this kickback scheme existed from July, 2006 to April, 2011.11 “[O]n September 29, 2011, the grand jury returned indictments charging Kishore and PMA each with eight counts of violating the Medicaid false claims statutes (based on the alleged kickback scheme) . . . and eight counts of violating the Medicaid antikickback statute.”12 On September 7, 2011, during the grand jury investigation, the Commonwealth contacted Google, Inc. and requested them to preserve Kishore and Church’s e-mail accounts.13 On December 21, 2011 the Commonwealth applied for a search warrant in Superior Court to search these email accounts.14 The Commonwealth sought three categories of documents in their affidavit, documents relating to the following: (1) PMA’s billing history with MassHealth to demonstrate that the services rendered were not medically necessary or approved; (2) bills that PMA submitted to MassHealth; or (3) financial arrangements between Kishore or PMA and sober houses to refer residents to PMA for drug testing. 15 The Commonwealth did not mention the indictment in the affidavit for the initial search warrant.16 The Superior Court issued the search warrant for emails from March 21, 2008 to the estimated date PMA stopped doing business.17 In response to the search warrant, Google, Inc. sent the Commonwealth copies of all of Kishore and Church’s e-mails dated between March 21, 2008 and December 22, 2011.18 Once the Commonwealth received the e-mails, the deputy chief of investigations searched them to segregate e-mails potentially covered by

8 9

Id. at 812. Id. 10 Id. 11 Id. 12 Id. 13 Preventive Med. Assocs., Inc. v. Commonwealth, supra at 813. 14 Id. 15 Id. 16 Id. 17 Id. at 814. 18 Id.

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the attorney-client privilege.19 The deputy chief of investigations turned over 51,309 e-mails to the investigative team that were determined to not violate the attorney-client privilege.20 While reviewing the e-mails the investigator discovered some of the e-mails were dated after September 2011 and immediately stopped his review; the Commonwealth had reason to believe that PMA has ceased its operations at this point and, therefore, could not search e-mailed not believed to be part of the kick-back scheme.21 On February 28, 2012, the Commonwealth applied for a second search warrant ex parte; requesting the ability to review Kishore and Church ’s emails from September 29, 2011, to December 22, 2011.22 The Commonwealth mentioned in its accompanying affidavit for the second warrant that a grand jury issues an indictment charging the defendants with operating a kick-back scheme.23 The Superior Court issued the search warrant, and the Commonwealth continued reviewing the e-mails.24 “[A]s part of pretrial discovery, the Commonwealth provided defense counsel with one of the e-mails it had received from Google pursuant to the first search warrant that related to the alleged kickback scheme. ”25 This was the first time defense counsel became aware that the Commonwealth seized these e-mails, and they immediately filed an emergency motion for a protective order for Kishore’s e-mails.26 The motion judge ruled on March 2, 2012 that the Commonwealth “to cease review of the e-mails in its possession until further court order and to provide a copy of all those emails to the defendants.”27 Based on the copy of e-mails provided, defense counsel sought another protective order for Church’s e-mails.28 On May 23, 2012, the motion judge required a “taint team” to review Church e-mails, which was then extended to review Kishore ’s e-mails.29 The Defendants sought relief of the order from a single justice in the county court; this justice stayed the amended order and reported the two issues to the full court.30

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

Preventive Med. Assocs., Inc. v. Commonwealth, supra at 814. Id. Id. at 814–815. See id. at 815. Id. See id. at 811. Preventive Med. Assocs., Inc. v. Commonwealth, supra at 815. Id. Id. Id. at 816. Id. Id.

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III. Issues Presented 1. “Whether the Commonwealth may, by means of an ex parte search warrant, search the post-indictment emails of a criminal defendant.”31

2. “If question (1) is answered in the affirmative, whether the ‘taint team’ procedure authorized in the Amended Order dated June 4, 2012, is permissible under the Massachusetts Constitution.”32 IV. Holdings and Reasoning The SJC answered both issues in the affirmative “[w]ith some important limitations.”33 The Commonwealth may, by means of an ex parte search warrant, search the post-indictment emails of a criminal defendant. The Court addressed the initial issue in two parts: (a) “whether the Commonwealth may seize e-mails of a defendant under indictment by means of an ex parte search warrant,”34 and (b) “whether, if the Commonwealth may seize such e-mails, there are special conditions or procedures that the Commonwealth must follow in conducting any search of them.”35 While considering whether the Commonwealth could seize Kishore and Church’s e-mails, the Court analyzed Massachusetts General Law chapter 276, section 1 and 1B, and Massachusetts Rule of Criminal Procedure 17 (“Rule 17”).36 Section 1B authorizes a judge to issue warrants to search e-mails, and has no restricting language that prohibits a search warrant seeking to search records or other property of an indicted criminal defendant.37 The statute references The Stored Communications Act (“SCA”), which provides a procedure for government officials to obtain e-mails or electronic communications from third-party providers.38 The SCA also does not distinguish between before and after indictment. 39 In contrast to both the statute and act, Rule 17, as analyzed by the defendants, “precludes the postindictment issuance of a warrant to obtain a defendant’s e-mails (and thereby precludes the Commonwealth from obtaining those e-mails for

31 32 33 34 35 36 37 38 39

Preventive Med. Assocs., Inc. v. Commonwealth, supra at 812. Id. Id. Id. at 817. Id. Id. at 818–821, citing G.L. c. §§ 1–1B, and Mass. R. Crim. P. 17, 378 Mass. 885 (1979). Preventive Med. Assocs., Inc. v. Commonwealth, supra at 819; citing G. L. c. 276, § 1B. Id. at 819, citing 18 U.S.C. § 2703 (2006). Id.

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which the SCA requires a warrant).”40 The Court concluded that an ex parte search warrant for e-mails issued postindictment is not contrary to Rule 17.41 Such a search warrant is an acceptable way to seize e-mails for a defendant under indictment, so long as the Commonwealth complies with particular conditions such as the following: (1) only a Superior Court judge may issue a search warrant seeking an indicted criminal defendant’s emails; (2) “the affidavit submitted in support of the warrant application must inform the judge at the outset that the individual whose e-mails are being sought is presently under indictment, and must explain the nature and scope of the pending indictment (or indictments), as well as the relationship, if any, between the pending indictment and the search warrant being sought;” and (3) said affidavit must explain the need for using a search warrant instead of Rule 17.42 Additionally, the Court determined that in the future the Commonwealth must propose a search protocol for the Superior Court’s approval, to ensure that a defendant’s privileged communications are protected. 43 Failing to comply with this procedure, including merely failing to justify the need for a search warrant, can give the Superior Court cause to deny the application. 44 The Court stated that these procedures were to protect against a breach of attorneyclient privilege between the defendant and his or her attorney as interpreted through art. 14 of the Declaration of Rights of the Massachusetts Constitution (“DRMC”).45 The “taint team” procedure authorized in the June 4, 2012 amended order is permissible under the Massachusetts Constitution. First, the Court determined that the taint team does not violate art. 12 of the DRMC or the Sixth Amendment right to counsel so long as the Commonwealth can demonstrate that “the taint team will prevent the disclosure of privileged information to the prosecution team.”46 The court finds that a Superior Court order for a taint team must have the following requirements:
(1) [T]he members of the taint team must not have been and may not be involved in any way in the investigation or prosecution of the defendants subject to indictment—presently or in the future; (2) the taint team members are prohibited from (a) disclosing at any time to the investigation or prosecution team the search terms submitted by the defendants, and (b) disclosing to the investigation or prosecution team any e-mails or the information
40 41 42 43 44 45 46

Id. Id. at 821. Id. at 821–822. Preventive Med. Assocs., Inc. v. Commonwealth, supra at 823. Id. at 822. See id. at 822–823. Id. at 827.

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contained in any e-mails, subject to review until the taint team process is complete and in compliance with its terms; (3) the defendants must have an opportunity to review the results of the taint team’s work and to contest any privilege determinations made by the taint team before a Superior Court judge, if necessary, prior to any e-mails being disclosed to the investigation or prosecution team; and (4) the members of the taint team must agree to the terms of the order in writing.47

The Court showed concern over courts granting prosecutors the use of taint-teams because using members from within that office could cause strain based on the size of a prosecutor’s collective office; responsively, the Court outlined considerations for courts to utilize when faced with such a request from prosecutor offices.48 Furthermore, the court found that the taint team process of separating privileged e-mails complies with Article 14’s particularity requirement.49 Ultimately, the motion judge remanded to the single justice for further proceedings in light of the opinion.50 V. Impact on the Law This opinion adds to numerous state and federal decisions on using taint teams to protect the attorney-client privilege.51 The SJC recognized the federal courts’ disapproval of taint teams, and mandated judicial oversight over the teams.52 The Court also mandated specific protocols for the taint team to follow to further protect this privilege.53 This case balances the importance of a defendant’s state and federal constitutional rights, and the Commonwealth’s need for information to prove its case. 54 The ACLU has already utilized the logic in this case regarding necessary judicial oversight and prior approval in an amicus brief to the Massachusetts Superior Court in Commonwealth v. Forlizzi.55 Preventive Medicine Associates, Inc. v.

Id. at 828. Id. at 829–30. 49 Preventive Med. Assocs., Inc. v. Commonwealth, supra at 831–832. 50 Id. at 832–833. 51 See id. at 825, citing United States v. SID Future Health, Inc., 464 F. Supp. 2d. 1027, 1037 (D. Nev. 2006); United States v. Taylor, 764 F. Supp. 2d. 230, 234 (D. Me. 2011).
48 52 Id. at 821 (“[J]udicial supervision is essential where the Commonwealth seeks to search the emails of an indicted defendant”). 53 See Jessie Rossman, Protecting the Attorney-Client Privilege in the Digital Age, at http://www.privacysos.org/node/1123 (last viewed August 29, 2013).

47

See id. See id. citing Brief of American Civil Liberties Union of Massachuestts as Amicus Curiae in Support of Defendant, David Forlizzi, at http://www.privacysos.org/sites/all/files/2013_7_15_%20ACLUM%20Forlizzi%20Amicus%20B rief.pdf (last viewed September 4, 2013).
55

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Commonwealth, may become a cornerstone decision in the approval of taint team procedures for electronic communications.56

56

See id.

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Commonwealth v. Franklin 465 Mass. 895 (2013)

CONTRIBUTING EDITOR: LOUISA GIBBS I. Procedural History

A Superior Court jury convicted the defendant, Lewis Franklin, of firstdegree murder based on deliberate premeditation for killing the victim, John Falcone; the defendant appealed.1 The Supreme Judicial Court (“SJC”) affirmed and declined to order a new trial or reduce the murder conviction.2 II. Facts On August 23, 2004, three people, including the victim, wanted to buy a “twenty rock” of crack cocaine.3 The three people pooled together fourteen dollars, called the defendant (known as “G”), and asked to purchase crack cocaine despite being short the full price, which was usually twenty dollars.4 The defendant met them in a pizza restaurant’s parking lot, conducted the transaction, and left.5 The three purchasers went to a nearby park to smoke it, but soon learned that it was not real crack cocaine.6 The purchasers became upset and called the defendant until he answered; the victim took the phone, cursed at the defendant, and the defendant agreed to meet them at the pizza restaurant parking lot to “make it right” but he never showed up.7 A friend of the victim’s, Edmondson, saw that the victim appeared

1 2 3 4 5 6 7

Commonwealth v. Franklin, 465 Mass. 895, 896 (2013). Id. Id. at 896. Id. at 896-897. Id. at 897. Id. Commonwealth v. Franklin, supra at 897.

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“pretty mad” about getting ripped off by a guy named “G.”8 Edmondson pointed the victim towards Prospect Street, where he believed the defendant lived.9 The victim approached 28 Propsect Street, where Kirsha Hilliard lived on the third floor, her parents lived on the second floor, and the defendant’s mother—Wanda Franklin—lived on the first floor.10 At trial Kirsha testified that she saw the victim pacing outside of the property, who told her that he was looking for “G” because “G” “had beat [the victim] for some drugs.”11 Kirsha further testified that the victim threatened to destroy Wanda’s property by throwing rocks at it, but Kirsha directed the victim next door where the defendant resided.12 She then went inside and told Wanda about her interaction with the victim.13 Wanda testified that she found her son in the kitchen and asked him what he was doing outside. 14 When he answered equivocally, she gave him “a look” indicating dissatisfaction and then got ready for work.15 Wanda further testified that she did not divulge any specific information to the defendant that Krisha told her.16 Soon after, the defendant left the house and called one of the three purchasers asking for the “white boy [they] were with” in reference to the victim; the purchasers directed the defendant to the victim. 17 The defendant and the victim met and, exchanging words, the defendant walked in one direction while the victim followed a few minutes later and then gun shots were heard.18 Officer Noone reported to the scene of the crime upon receiving a dispatch that shots were fired, and there found the victim with a gun wound that he died from soon after. 19 There were a myriad of civilian witnesses describing the events immediately before, during, and after the shooting.20 For instance resident Nina Hall, who heard but did not see the shooting, overheard two men arguing about one going to the other’s house and being disrespectful as

8 9

Id. at 898. Id. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Franklin, supra at 898-899. 14 Id. at 899. 15 Id. at 899. 16 Id. 17 See id. 18 Id. at 900-901. 19 Commonwealth v. Franklin, supra at 900-901. 20 See id. at 898-905.

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well as something about fifteen dollars.21 Fourteen-year-old Robert Fuqua, whose room overlooked the scene of the crime, testified that he overheard a brawl between two men about money; he heard a shot; and, upon looking out of his window, saw a man in a black hat, black coat, and blue jean shorts with light brown skin run away.22 Robert’s sixteen-year-old brother, Willie, testified to the same description as Robert for one of the men, and he recalled the man demanding $1,000, something about five more dollars, and then four to five gun shots occurring. 23 Eyewitness Erika Luyo saw a young black man walking towards the crime scene and, upon hearing the gunshots, saw the same man with a gun in his hands running towards Prospect Street.24 Later that day, Erika Luyo identified the shooter in a photo array , saying that the shooter “looked like No. 2 but he had hair like No. 4”—No. 2 was the defendant.25 Prior to the photo array, Luyo was informed that the shooter may or may not be in the photos and she expressed at trial that she “was not sure” about her identification.26 Moreover, Kirsha’s thirteen-to-fourteen-year-old son, Josiah, and ten-toeleven-year-old daughter, Imani, testified to the following: (1) knowing the defendant as “G;” (2) seeing his exit the crime scene by jumping over a fence after the shots were fired; and (3) asking the defendant where he was going, to which he did not respond.27 Before the second grand jury in October 2007, the defendant ’s cousin, Carlos Hill, testified that the defendant informed him that he went to Florida “because of the shooting”: “the defendant told him that ‘he had played the dude . . . , the dude realized it, and . . . the dude told him he was going to throw rocks at [his] aunt’s house,’” and they met again at the eventual crime scene where the defendant shot the victim four times.28 But at trial, Hill testified that his 2007 testimony was incorrect; the defendant told Hill that he left for Florida on the run from probation. 29 III. Issues Presented 1. Whether the Judge erred in allowing the Commonwealth ’s motion in limine admitting Kirsha Hilliard and Troy Edmondson’s testimony regarding the victim’s threat to damage what he believed to be the

21 22 23 24 25 26 27 28 29

Id. at 901-902. Id. at 902. Id. at 902-903. Id. at 903. Commonwealth v. Franklin, supra. Id. at 903. Id. at 904. Id. at 905-906. Id. at 906.

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defendant’s house.30 2. Whether the defense counsel’s failure to request a specific instruction on eye witness identification, when given the chance to submit such an instruction, and the defense counsel’s failure to object to the absence of such an instruction, constituted ineffective assistance of counsel. 31 Whether the prosecutor made three improper and prejudicial statements during the closing arguments.32 Whether the Court should exercise its authority under G.L. c. 278, s. 33E to grant the defendant a new trial because inconsistencies within the testimony rendered the verdict against the weight of the evidence. 33

3. 4.

IV. Holdings and Reasoning 1. The judge did not err in admitting the testimony of Kirsha or Edmonson describing the victim’s threats because, based on the totality of the evidence, the jury could reasonably infer that the defendant knew of the victim’s threat against his mother’s house when the shooting took place and that the defendant was motivated, at least in part, by these threats. 34 The SJC reviewed this issue under the prejudicial error standard: the testimony was only admissible if there was evidence that the defendant learned of the victim’s remarks before the shooting occurred and the remarks provided the defendant with a motive to kill the victim. 35 The SJC found that the record contained “abundant evidence” for the jury to infer that the defendant learned of the victim’s threats that, in turn, provided a motive for the defendant to kill the victim.36 The jury could infer this knowledge based on the following: (1) Hill ’s 2007 grand jury testimony telling the court that the defendant told him that he knew the victim had threatened his mother’s home with violence; (2) the defendant calling one of the three purchasers asking about the “white boy”—in reference to the victim—once the victim had just left his mother ’s premises; and (3) just before the shooting, witness Nina Hall heard the defendant confront the victim about going to his house “being disrespectful.”37 2. The absence of a specific identification instruction suggested by the
30 31 32 33 34 35 36 37

See id. at 906-907. Commonwealth v. Franklin, supra at 908-909. Id. at 914-915. Id. at 916. See id. at 908. Id. at 907. Id. Commonwealth v. Franklin, supra at 908.

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defendant was not likely to have influenced the jury ’s verdicts, particularly concerning Erika Luyo’s and Troy Edmonson’s testimony on the events before the shooting, which means that the error did not result in the substantial likelihood of a miscarriage of justice. 38 The Court came to this conclusion because the judge provided a jury instruction on evaluating a witness’s credibility: the jurors were informed to “consider the ability, the opportunity, and the reliability of a witness to see or hear something in the past and then remember and later testify.”39 Erika Luyo’s testimony from the photo array clearly asserted on direct and cross-examination that she “was not sure” of her identification—the prosecutor even conceded this fact during closing arguments.40 Further, defense counsel elicited reasons for the jury to discredit Troy Edmonson’s testimony that he saw the defendant and the victim running towards the eventual crime scene, one such reason being that Edmonson was an alcoholic under the influence the evening before and the morning of the shooting. 41 Besides, Nina Hall’s testimony about the conversation between the defendant and the victim stands as the strongest evidence that the defendant instigated the crime, and an identification instruction from defense counsel would not have influenced the jury’s interpretation of this evidence.42 3. The prosecutor made an improper statement during closing arguments that did not create a substantial likelihood of a miscarriage of justice.43 During closing arguments, defense counsel (1) did not object to the prosecutor misquoting the defendant’s testimony, (2) made a factual assertion as to the color of the defendant’s hat, and (3) inferred that it was more plausible for the defendant to leave the state for shooting the victim as opposed to avoiding probation. 44 First, the Court found the misquoting error inconsequential because the testimony clearly described a confrontation between the defendant and the victim. 45 Second, with regard to the assertion about the hat, the testimony corroborated the eyewitness ’s statement that the defendant wore a white hat.46 Finally, concerning the plausibility of the defendant leaving the state, the jury had the option to weigh Hill’s 2007 grand jury testimony against his present testimony

38 39 40 41 42 43 44 45 46

Id. at 914. Id. at 908-909. Id. at 913. Id. at 913-914. Id. at 914. Commonwealth v. Franklin, supra at 914-915. Id. at 914-917. Id. at 915. Id.

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unaffected by the prosecutor’s assertion.47 4. The Court found that the weight of the evidence supported the jury’s verdict of murder in the first degree, and therefore declined to use their authority under G.L. c. 278, s. 33E for a new trial order or to reduce the severity of the defendant’s verdict.48 This law enables the SJC to overturn a verdict when there is a strong belief that the verdict was a product of “bias, misapprehension or prejudice” all the while not turning the SJC into a second jury.49 While the possibility existed that a third person could have shot the victim, the evidence provides a strong basis that the defendant was the shooter despite the inconsistent testimony regarding the defendant’s clothing.50 V. Impact on the Law Commonwealth v. Franklin impacts the standard Massachusetts courts consider when evaluating evidence pertaining to the state-of-mind exception to the hearsay rule: the SJC considered the “totality of the evidence” when determining the defendant’s state-of-mind, which was a standard not applied in more recent cases that faced the same, or a similar issue, since prior cases just considered the existence of evidence.51 Therefore, this suggests that the SJC will continue to apply the totality of the circumstances standard.52

Id. Id. at 916. 49 Commonwealth v. Franklin, supra. 50 Id. at 917. 51 Compare id. at 907-908, with Commonwealth v. Bins, 465 Mass. 348, 365-367; Commonwealth v. Irene, 462 Mass. 600, 605-606.
48 52

47

See Commonwealth v. Franklin, supra at 907-908.

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Commonwealth v. Tatum 466 Mass. 45 (2013)

CONTRIBUTING EDITOR: ROBERT WILLIAMS I. Procedural History

Pursuant to a search warrant, the defendant was indicted and tried in the Superior Court on charges of (1) trafficking in cocaine in an amount of 200 Grams or more and (2) possession with intent to distribute marijuana. 1 A jury found the defendant guilty of both offenses, and he appealed to the Appeals Court alleging the police violated his Fourth Amendment rights under the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.2 The Appeals Court affirmed his convictions.3 The Supreme Judicial Court (“SJC”) then granted the defendant’s application for further appellate review and ultimately affirmed the convictions.4 II. Facts The police obtained a “no-knock” search warrant to search a third party’s residence for the defendant, who was the subject of active arrest warrants for firearm and drug trafficking offenses. 5 Upon executing the warrant, the special tactical operations (“STOP”) unit found and arrested Michael Goler-Branch, a codefendant at one point in the case, after the officer’s found a gun near his foot.6 Officers then located the defendant in a basement bedroom that contained two large rolls of cash, an electronic scale, a “sizeable” bag of what appeared to be marijuana, and a cardboard
1 2 3 4 5 6

Commonwealth v. Tatum, 466 Mass. 45, 45-46 (2013). Id. at 46, S.C. 81 Mass. App. Ct. 1101, 1101 (2011). Id. Id. at 46, 55. Id. at 46-47. Id.

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box containing what appeared to be several clear plastic bags of cocaine.7 The defendant was then arrested too.8 Based on these observations, the police applied for and obtained a second search warrant to search the third party’s residence for “narcotics, firearms, and evidence of drug distribution.”9 The subsequent search yielded cash, large quantities of marijuana and cocaine packaged in a manner consistent with distribution, and other items.10 The defendant was indicted for trafficking in 200 or more grams of cocaine and possession with intent to distribute a class D substance: marijuana.11 To obtain the first search warrant, and the grounds on which the defendant challenged, the police conducted undercover surveillance of the third party’s residence to confirm the defendant’s presence and requisite probable cause necessary to obtain the warrant. 12 To get within close proximity of the third party residence without being noticed, one police officer wore a Verizon telephone utility helmet and blue jeans, and carried a clipboard.13 He walked down the driveway, entered the back porch that provided access to the first floor of the third party ’s residence, and observed the defendant one to two feet away. 14 The officer then briefly talked to the defendant and handed him a disengaged window screen before leaving.15 The police applied for and obtained the first search warrant using this information.16 Thereafter, the STOP unit proceeded to execute the search warrant issued, which triggered the events described above.17 The defendant contended that the search conducted pursuant to the first search warrant was illegal and tainted the second warrant that yielded the evidence connected to the charges. 18 III. Issue Presented 1. Whether a defendant, who is the subject of an arrest warrant, may challenge the admittance of evidence seized from a third party ’s home, which is then used against the defendant, on the grounds that the police

7 8

Commonwealth v. Tatum, supra at 47. Id. 9 Id. 10 Id. 11 Id. 12 Id. at 47-49. 13 Commonwealth v. Tatum, supra at 49. 14 Id. at 49-50. 15 Id. at 50. 16 Id. 17 Id. at 50. 18 Id. at 48.

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did not obtain a valid search warrant and therefore seized the evidence in violation of the defendant’s Fourth Amendment and art. 14 rights.19 IV. Holding and Reasoning Following the majority view, the subject of an arrest warrant does not have a right to insist that the search warrant be obtained before entry can be made into a third party’s home.20 Prior precedent made plain the following:
[T]hat the subject of a valid arrest warrant whom the police arrest in his own home has no right to insist on a search warrant as a condition of police entry;21 the arrest warrant is sufficient to satisfy the arrestee’s Fourth Amendment and art. 14 rights, so long as the police have reasonable belief that he will be present in his home.22

Logically following, “when an arrestee is present in a third party’s home rather than his own, the arrestee has the same rights under the Fourth Amendment and art. 14 to require that the police have reasonable basis” to believe that he or she will be present when the police enter the home in search of that person, but nothing more.23 To hold otherwise would create an “unacceptable paradox,” because the subject of an arrest warrant would own greater rights “in the home of another than in his or her own home.”24 Therefore, the proper focus at issue is whether the police had reasonable belief that the defendant would be present on the date of the original search warrant. 25 The police clearly met this burden through a tip from a confidential informant that the defendant was living at the third party residence, the police had seen the defendant’s half-brother at the location several times during the defendant’s believed residency, and based on the undercover officer’s conversation with the defendant while he was inside the residence.26 Moreover, because the defendant was subject to an arrest warrant, he did not have the right to challenge the lawfulness of the police entering the curtilage of the third party’s residence to establish probable cause for the search warrant. 27 Because the defendant could not

Id. at 51. Commonwealth v. Tatum, supra 51-53. 21 Id. at 52, citing Payton v. New York, 455 U.S. 573, 603 (1980); Commonwealth v. Silva, 440 Mass. 772, 778 (2004).
20 22 23 24 25 26 27

19

Id. at 52. Id. Id. at 53, citing Commonwealth v. Allen, 28 Mass. App. Ct. 589, 593 (1990). See id. Id. Commonwealth v. Tatum, supra at 54.

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assert that the warrant violated the Fourth Amendment and art. 14, requiring suppression of all items seized pursuant to the ensuing searches, the judgments were affirmed.28 V. Dissent Justice Lenk dissented and Justices Ireland, C.J. and Duffly, joined in the dissent.29 Justice Lenk opines that this decision, which allows for the police to use evidence that may have been obtained improperly, fails to deter improper police conduct. 30 The dissent believes that because the decision requires the third-party householder be arrested to challenge the validity of a search warrant, the police “will have little if any incentive to obtain a search warrant before entering the third party ’s home” when there is no reason to arrest that party. 31 The dissent further states that this decision will allow police, in order to form the reasonable belief of the suspect’s presence in the third party’s house, to “physically intrude upon the third party’s house.”32 Moreover, the dissent analogizes the defendant ’s status at the third party home to that of an overnight guest.33 Because the Supreme Court has held that the warrantless arrest of an overnight guest in a third party’s home violated the Fourth Amendment, Justice Lenk believes that the “defendant’s status as an overnight guest provided him a legitimate expectation of privacy” and therefore a recognized reason for challenging the validity of the original search warrant. 34 VI. Impact on This Area of the Law In Commonwealth v. Tatum, the SJC adopted the majority rule in holding that a defendant subject to a valid arrest warrant who police arrest in a third party’s home may not challenge evidence seized from that home on the ground that the police did not obtain a valid search warrant before entering.35 No Massachusetts or Supreme Court decision prior to Tatum

28 Id. at 54-55. The defendant argued additionally that the police unlawfully entered the curtilage of the third party’s residence, that the police failed to establish probable cause to justify a “no-knock” warrant, and several other arguments. Id. However, the court sided with the Appeals Court, stating that the defendant could not challenge the validity of the first search warrant and that there was sufficient evidence supporting the warrant application to justify issuing a “no-knock” warrant. Id. 29 30 31 32 33 34 35

Id. at 56. Id. at 58. Commonwealth v. Tatum, supra at 58. Id. Id. at 61. Id. Id. at 52-55.

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addressed the question of whether the subject of an arrest warrant present in a third party’s home may challenge the validity of the search warrant. 36 Reasoning that the SJC had previously held that a resident subject to a valid arrest warrant has no right to demand a valid search warrant as a condition of the police entry, so long as the police have reasonable belief that the he will be present in his home, the court determined that to afford a nonresident superior rights inside a third party ’s residence would be inconsistent.37

36 37

Id. at 51. Commonwealth v. Tatum, supra at 52-53.

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Commonwealth v. Moody, 466 Mass. 196 (2013)

CONTRIBUTING EDITOR: BILL BREKKA I. Procedural History

The defendants, Cory A. Moody and Devin Newman, were indicted in Superior Court for various violations of the Controlled Substances Act found under General Laws, Chapter 94C.1 Prior to trial, the defendants filed motions to suppress the evidence obtained as a result of several search warrants issued under the Massachusetts wiretap statute, General Laws, Chapter 272, Section 99.2 The warrants authorized the interception of calls and text messages sent over the defendants’ cell phones.3 The motion judge denied the defendants’ motions regarding cell phone calls, but granted their motions as to their text messages.4 The motion judge then reported the following question to the Appeals Court: “Does G.L. c. 272, § 99 authorize a Superior Court Judge to issue a warrant permitting state law enforcement officers to intercept cellular telephone calls and text messages?”5 The Supreme Judicial Court of Massachusetts (“SJC”) then took the case on its own motion.6 II. Facts In October 2010, the Commonwealth applied for and received warrants authorizing the interception of the defendants’ cell phone calls and text messages.7 “The warrants were sought in connection with an investigation

Commonwealth v. Moody, 466 Mass. 196, 197 (2013). Id. 3 Id. at 198. 4 Id. 5 Id. The question was pursuant to Massachusetts Rule of Criminal Procedure 34, as amended by 442 Mass. 1501 (2004). Id.
2 6 7

1

Id. Commonwealth v. Moody, supra at 198.

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into the defendants’ participation in an ongoing conspiracy” in drug distribution and trafficking.8 After the warrants were issued, the police monitored the defendants’ cell phone calls and text messages for about one week.9 The contents of the week-long interception were the subject of the defendants’ motions to suppress.10 III. Issue 1. Whether a Superior Court judge is permitted to issue warrants authorizing the interception of cell phone calls and text messages under the Massachusetts wiretap statute.11

IV. Holding and Reasoning The SJC ultimately held that the Massachusetts wiretap statute permits a Superior Court judge to issue warrants authorizing the interception of both cellular telephone calls and text messages. 12 To resolve this issue, the SJC had to determine whether the federal wiretap statute preempted the Massachusetts wiretap statute.13 The current federal wiretap statute covers cell phone calls and text messages14; to not be preempted, the SJC had to find that the Massachusetts statute also covered cell phone calls and text messages.15 In 1968, Congress first enacted the federal wiretap statute to protect wire and oral communications from unauthorized interception.16 The Act “prohibited the willful ‘intercept[ion]’ of any ‘wire or oral communication . . .’ unless a Federal or State judge of ‘competent jurisdiction’ authorized such interception through the issuance of a warrant. ”17 It defined “wire communication” as “any communication made in whole or in part through the use of facilities for the transmission of communications by the aide of wire, cable, or like connection between the point of origin and the point of

Id. at 198-199 (internal quotation marks omitted). Id. at 199. 10 Id. 11 Id. at 198; see G.L. c. 272, § 99. 12 See id. at 209. 13 See Commonwealth v. Moody, supra at 199, 204-205. 14 See id. at 202-203. 15 See id. at 207, 209. The federal wiretap statute permits concurrent state regulation so long as it provides at least as much protection for communications as the federal law. See id. at 201, 203. 16 Id. at 199. 17 Id. at 199-200 (quoting Omnibus Crime Control and Safe Streets Acts of 1968, Pub. L. No. 90-351, § 802, Title III, 82 Stat. 211, 213, 216, 218-219 (1968)).
9

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reception.”18 The act went on to define “intercept” as “the aural acquisition of the contents of any wire . . . communication through the use of any electronic, mechanical, or other device.”19 With respect to preemption, concurrent state regulation was permitted so long as, at a minimum, it met the requirements of the Federal regulation( i.e. provided at least as much protection for communications as the Federal regulation).20 Shortly after the Federal wiretap statute’s enactment, the Massachusetts Legislature rewrote its own wiretap statute to conform with the Federal statute.21 The only slight difference from the Federal law was that it defined “interception” to mean “to secretly hear [or] secretly record . . . the contents of any wire communication through the use of any intercepting device.”22 In 1986, Congress amended the Federal wiretap statute.23 For purposes of this case, the amendment was important in a few respects. First, it made clear that the wiretap statute covered “electronic communications” (which would include text messages) by creating a new category of protected communication, in addition to “wire communication.”24 Second, Congress made clear that the definition of “wire communication” included calls from one cell phone to another by adding that the language “wire, cable, or other like connection” in the original definition includes “the use of such connection in a switching station.”25 Third, Congress amended the definition of “intercept” to ensure that it included not only interception of the human voice, but also “other forms of communication.”26 Despite these amendments to the federal wiretap statute, the Massachusetts Legislature never amended the Massachusetts wiretap statute.27 The Massachusetts law is still nearly identical to the original 1968
18 Id. at 200 (quoting Pub. L. No. 90-351, § 802, 82 Stat. at 212) (emphasis added) (internal quotation marks omitted).

Commonwealth v. Moody, supra at 200 (quoting Pub. L. No. 90-351, § 802, 82 Stat. at 212) (internal quotation marks omitted). See id. at 201 (citing to Pub. L. No. 90-351, § 801(b), 82 Stat. at 217-218). Id. at 201. 22 Id. at 201-202 (quoting G.L. c. 272, § 99 B 4) (internal quotation marks omitted). 23 Id. at 202. 24 Id. at 202 (citing Pub. L. No. 99-508, § 101(c)(1)(A), 100 Stat. 1848, 1851-1852, codified, as amended, at 18 U.S.C. § 2511(1)(a) (2006)). 25 Commonwealth v. Moody, supra at 202-203 (citing § 101(a)(1)(B), 100 Stat. at 1848, codified, as amended, at 18 U.S.C. § 2510(1) (2006)). Calls between cell phones pass briefly through a mobile telephone switching office, hence the brief wire connection in the switching station. Id. at 203 n.9. 26 Id. at 203 (citing § 101(a)(3)(A), 100 Stat. at 1848, codified, as amended, at 18 U.S.C. § 2510(4) (2006)).
21 27 20

19

Id. at 203.

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federal law.28 As a result, the Massachusetts wiretap statute would be preempted unless it could be interpreted to cover cell phone calls and text messages, thus providing the same level of protection for such communications as the federal statute.29 Concerning cell phone calls, the court concluded that cell phone calls were included within the Massachusetts wiretap statute’s definition of “wire communication”.30 Because the definition of “wire communication” is the same in the Massachusetts statute as it is in the original federal statute, the SJC relied upon House and Senate reports accompanying the 1986 amendment to the federal law in reaching its conclusion.31 These reports suggested that the 1986 amendment did not mark the first time that cell phone calls were covered by the law, but rather clarified some confusion as to whether all cell phone calls were in fact covered under the original 1968 law.32 Therefore, the SJC concluded that the Massachusetts statute does cover all cell phone calls despite the fact that it was never amended to make this clear.33 With respect to text messages, the court concluded that they were also covered under the Massachusetts statute. 34 For one, the SJC reasoned that the statute’s definition of “wire communication” —”any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection”—was certainly broad enough to cover text messages.35 Text messages, like cell phone calls, travel by “wire, cable, or other like connection” when they pass through a switching station.36 Further, the SJC reasoned that the Massachusetts statute’s definition of “intercept”—”to secretly hear [or] secretly record . . . the contents of any wire communication through the use of any intercepting device”—included the interception of text messages.37 The SJC referred to Webster’s dictionary definition of “record” to reason that “secretly record” includes the interception of text messages because the text messages are viewed and transcribed for use at a later date (i.e. recorded).38 As a result, despite the fact that the Massachusetts statute was

28 29 30 31 32 33 34 35 36 37 38

See id. at 201-203. See id. at 205, 207-208. Id. at 207. Commonwealth v. Moody, supra at 205-206 (emphasis added). Id. at 206-207. Id. at 207. Id. at 209. Id. at 208 (quoting G.L. c. 272, § 99). Id. Commonwealth v. Moody, supra at 208 (quoting G.L. c. 272, § 99) (emphasis added). Id. at 209.

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never amended, it nonetheless covers text messages. 39 In sum, the SJC reasoned that the Massachusetts wiretap statute provides as much protection for cell phone calls and text messages as the current federal wiretap statute and is therefore not preempted because it could be interpreted to cover the interception of both cell phone calls and text messages.40 As a result, a Superior Court judge could properly issue warrants authorizing the interception of cell phone calls and text messages under the Massachusetts wiretap statute, and not just the federal wiretap statute.41 V. Impact on the Law This case is significant because it clarifies that Superior Court judges can issue warrants authorizing the interception of cell phone calls and text messages under the Massachusetts wiretap statute.42 Due to the fact that Congress amended the federal wiretap statute in 1986 to clarify that cell phone calls and electronic communications were covered but the Massachusetts Legislature had made no similar amendments to its own wiretap statute, judges and lawyers were confused as to whether the Massachusetts wiretap statute covers cell phone calls and text messages or if it was preempted.43 This case provides clear guidance to judges and practitioners with respect to these areas of confusion: yes, the Massachusetts wiretap statute covers cell phone calls and text messages; no, the statute is not preempted by the federal statute; and yes, Superior Court judges may issue warrants authorizing the interception of cell phone calls and text messages under the statute. 44

39 40 41 42 43 44

Id. See id. at 207, 209. See id. See id. at 198, 209. See Commonwealth v. Moody, supra at 198-199. Id. at 209.

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Commonwealth v. Rivas, 466 Mass. 184 (2013)

CONTRIBUTING EDITOR: KAREN CASSETTA

I.

Procedural History

The defendant was indicted for (1) unlawful possession of a firearm, as a repeat offender; (2) possession of ammunition without a firearm identification card, as a repeat offender; (3) unlawful possession of a loaded firearm; and (4) unlawful possession of a large capacity weapon.1 The jury found the defendant guilty on all four charges.2 The judge imposed concurrent, “enhanced sentences False . . . of not less than twelve and not more than fifteen years in State prison on each of the two convictions of unlawful possession of a firearm and of ammunition.”3 The judge additionally imposed
[A] concurrent sentence of not less than eight and not more than ten years on the conviction of unlawful possession of a large capacity weapon, and a sentence of one day in a State prison on the defendant’s conviction of unlawful possession of a loaded firearm, to run from and after the sentence on his firearm possession conviction.4

The SJC transferred the defendant’s appeal from the Appeals Court to its own court by its own motion.5 II. Facts On the night of December 15, 2009, Springfield Police Officer Neil Maloney was running a surveillance operation from an unmarked vehicle

1 2 3 4 5

Commonwealth v. Rivas 466 Mass. 184, 186 (2013). Id. Id. at 187. Id. Id.

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using binoculars.6 He saw the defendant approach a Honda station wagon parked on the street.7 A man approached the defendant and as the two talked, the defendant removed a silver firearm from his jacket and the barrel was visible.8 The defendant then got into the Honda with a third man, and they drove away.9 Maloney ordered other officers to stop the Honda.10 The officers stopped the vehicle and searched the defendant and the passenger.11 When searching the defendant and the passenger resulted in nothing, an officer then searched the passenger compartment of the vehicle and uncovered a loaded .22 caliber handgun under the passenger seat; the handgun was operative.12 The magazine inside the handgun contained nine bullets, but could store twelve.13 Therefore, the weapon “met the statutory definition of a large capacity firearm.”14 At trial, Maloney referred to his assignment with the “narcotics bureau” and said he was conducting “street-level narcotics surveillance.”15 The judge admonished the prosecutor because Maloney was not to discuss his surveillance or role in the Narcotics Police Department.16 Nevertheless, in response to the prosecutor’s questioning about the nature of his assignment on the night of the arrest, the next officer to testify also said that he was conducting narcotics surveillance.17

6 7

Id. at 185. Commonwealth v. Rivas, supra. 8 Id. 9 Id. 10 Id. at 185-186. 11 Id. at 186. 12 Id. 13 Commonwealth v. Rivas, supra. 14 Id. 15 Id. at 194. 16 Id. 17 Id.

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III. Issues Presented 1.

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When a defendant is convicted of duplicative offenses, whether the lesser included offense must be vacated, even when that offense carries a higher penalty than the greater offense.18 Whether the stop and search of the car was lawful. 19 Whether a mistrial should have been granted because the defendant’s prior bad acts were brought up by the prosecutor during trial, despite being told that the prior bad acts could not be raised.20

2. 3.

IV. Holdings and Reasoning The SJC held that where a defendant has duplicative convictions, to fashion the most appropriate sentence, a trial judge has the discretion to vacate either conviction and to enter sentences on the remaining two convictions in a manner that does not exceed the punishment imposed by the trial judge’s original sentencing scheme.21 A defendant may not be sentenced twice on duplicative convictions because the “double jeopardy clause of the Fifth Amendment [of the] United States Constitution and Massachusetts common law protect defendants against the imposition of multiple punishments for the same offense.”22 Furthermore, the Fifth Amendment prohibits the courts from “prescribing greater punishment than the legislature intended. ”23 If the Legislature has not stated its intent to impose multiple punishments for the same criminal conduct, or if such legislative intent cannot be discerned, the convictions are duplicative, and where a defendant has been sentenced on duplicative convictions, one of them must be vacated. 24 In this case, the Court determined that the defendant’s convictions were duplicative.25 Determining which conviction to vacate affects the sentencing duration because the lesser included offenses actually had a greater punishment from applying the repeat offender sentencing
Id. at 184-185. Commonwealth v. Rivas, supra at 185. 20 Id. at 185, 194. 21 See id. at 185, 190-192. 22 Id. at 187. 23 Id. at 188 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)) (internal qu tations omitted). 24 Id. 25 Commonwealth v. Rivas, supra .
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enhancement.26 The SJC notes that although the Commonwealth has significant discretion over what charges to bring and to prosecute, “that discretion ends at sentencing.”27 Therefore, on a duplicative conviction issue, “the decision is, at its essence, a sentencing decision, and the determination as to which conviction to vacate lies with the sentencing judge, who must exercise discretion to craft the most ‘appropriate individualized sentence’ within the bounds of the applicable criminal statutes.”28 The judge may vacate either the lesser included offense or the offense with the less sever sentence. 29 The SJC also held that the defendant’s motion to suppress was properly denied.30 The trial judge could draw the reasonable inference that, at the time of the arrest, Officer Maloney was aware that the defendant had prior drug convictions and knew the defendant was ineligible to obtain a license to carry as a result of such convictions.31 Therefore, the judge’s finding that police had probable cause to stop and search the defendant was not clearly erroneous.32 Furthermore, the SJC reasoned that the defendant ’s motion for a mistrial was properly denied because the officers’ testimony was not likely to have affected the jury’s verdict.33 The prosecutor made no mention of drug activity or other prior conduct in her closing argument. 34 “Although the implication that the defendant was involved with drugs was potentially prejudicial, testimony that the officers were conducting narcotics surveillance when they observed the defendant holding a firearm, without more to suggest that the defendant was the primary target of the surveillance operation, would have had little effect on the jury ’s verdict.”35 V. Impact on the Law The SJC ruling that the judge has the discretion on which convictions to vacate in duplicative situations impacts the law in Massachusetts because this discretion gives significant power to the judges.36 Despite
26 27

Id. at 189-190. Id. at 190. 28 Id. at 190-191. 29 Id. at 190. 30 Id. at 185. 31 Id. at 193-194. 32 Id. at 194. 33 Commonwealth v. Rivas, supra at 95. 34 Id. 35 Id. at 195. 36 See id. at 190-191.

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Massachusetts having sentencing guidelines,37 there is still room for judges to notably impact the sentencing of the defendant. 38 This ruling might lead to inconsistent sentencing, where some judges vacate the lesser offenses, while other judges vacate the greater offenses, leaving the defendant unsure whether they will be sentenced for the lesser duration or given the greater punishment.39 There are lawyers in Massachusetts that are concerned that the SJC has opened the door to vindictive sentencing and abuse of power if not discretion.40 Some lawyers argue that the proper decision should have been to dismiss the lesser included offenses and remand for sentencing.41 Furthermore, there are lawyers who argue that this is a legislative issue, and that it is up to the Massachusetts legislature to address and fix this issue. 42

37 Massachusetts Sentencing Guidelines, at http://www.mass.gov/courts/formsandguidelines/sentencing/intro.html (last updated Jan. 4, 2010). 38 39 40

See Commonwealth v. Rivas, supraat 190-191.

See id. Nadel, Massachusetts, The Bough Breaks, at http://www.vlnesquire.com/boughbreaks.html (last viewed Sept. 4, 2013).
41 42

Id. Id.

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Commonwealth v. Horne 466 Mass. 440 (2013)

CONTRIBUTING EDITOR: FELICIA FLAHIVE I. Procedural History

The defendant, Daniel Horne, was convicted by a Superior Court jury of second-degree murder, possession of ammunition without proper firearm identification (“FID”), and two separate counts of unlicensed carrying of a rifle in an unpermitted area. 1 The defendant appealed, arguing for reversal of his convictions due to the numerous errors that occurred at trial.2 The Supreme Judicial Court of Massachusetts (“SJC”) vacated and set aside the conviction of second-degree murder, but affirmed the other convictions.3 II. Facts On October 16, 2009, the defendant ’s television was removed from his apartment in Springfield Massachusetts. 4 The defendant suspected that the individual who took his television was Joseph Darco. 5 On October 17, 2009, Darco attended a birthday party at the apartment where the victim, nineteen-year-old Brittany Perez, resided.6 This apartment was on the first floor of a building and a few houses away from the defendant ’s apartment.7 Shortly after sunset, a party guest observed the defendant holding a gun after hearing someone shout, “I want my TV.”8 The defendant approached Darco, who was standing in front of the victim ’s

1 2 3 4 5 6 7 8

Commonwealth v. Horne, 466 Mass. 440, 441 (Mass. 2013). Id. Id. Id. at 441-442. See id. at 442. Id. Commonwealth v. Horne, supra. Id.

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apartment, and asked for “Joe.”9 While speaking with Darco, the defendant pulled out a large gun from his pants, which was identified as a .22 caliber rifle.10 The two spoke briefly and the defendant placed the rifle back in his pants and returned to his apartment. Darco returned inside to the birthday party.11 After a few hours had passed, the defendant was seen in front of the victim’s house with Ernest Haley and two other men. 12 Due to the disruptive commotion the four men were causing, the victim’s mother told them to “take that down the street.”13 They complied and headed towards the defendant’s apartment.14 At approximately 1:30 A.M. after the party ended, the victim and her mother stood inside the first-floor apartment in front of a window with a street view.15 The window was covered by “venetian blinds and dark curtains.”16 After hearing noises, the victim’s mother turned around and saw her daughter collapse onto the floor.17 The victim’s mother ran outside and saw the defendant running towards his apartment. 18 At the same time, one of the neighbors woke up to “pop” sounds and saw the defendant and Haley coming from the direction of the victim’s apartment.19 The neighbor also noticed an exchange between the two men, as though one had handed something to the other.20 The neighbor witnessed this from his bedroom window, facing a driveway that ran between his building and the defendant’s building.21 The last thing the neighbor saw was the two men place something next to the garage at the end of the driveway.22 Shortly after 1:30 A.M., Springfield police officers arrived at the scene of the crime.23 The victim’s mother provided the police officers with information for them to locate the defendant and Haley inside the

9

Id. Id. 11 Id. 12 Id. 13 Commonwealth v. Horne, supra. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Commonwealth v. Horne, supra. 20 Id. 21 Id. 22 Id. 23 Id.
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defendant’s apartment.24 After examining the cartridge casings found outside the victim’s apartment building, the police determined that the bullets fired were from the .22 caliber rifle recovered from the area near the defendant’s building.25 The police determined that eight bullets were fired at the window of the victim’s apartment, four of which struck and killed the victim.26 III. Issues Presented 1. Whether the defendant’s first-degree murder should be reversed because the judge erred in declining to instruct the jury on involuntary manslaughter.27 2. Whether the judge erred by instructing the jury on joint venture liability.28 3. Whether the judge abused his discretion in allowing the prosecutor to impeach a defense witness’s credibility by eliciting testimony from that witness concerning her failure to bring exculpatory information to the attention of the police.29 4. Whether the two separate convictions of the unlicensed carrying of a rifle are duplicative.30 IV. Holdings and Reasoning 1. The judge erred in declining to instruct the jury on involuntary manslaughter,
“[W]here the jury reasonably could have found that the defendant did not know the room was occupied when he fired the rifle at the window and, therefore, that the defendant’s conduct was wanton or reckless but not necessarily conduct that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would follow.”31

An involuntary manslaughter instruction must be given when the
24 25 26 27 28 29 30 31

Id. at 442-443. Commonwealth v. Horne, supra at 443. Id. at 441. Id. Id. Id. at 441, 447. Id. at 441. Commonwealth v. Horne, supra.

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evidence, in light most favorable to the defendant, permits a reasonable jury to find “wanton and reckless” conduct rather than conduct with a “plain and strong likelihood” of death resulting.32 In viewing the evidence in a light most favorable to the defendant, the SJC found that when the defendant fired his rifle at the window, “it was 1:30 A.M., the party had ended, and the window was covered by venetian blinds and dark curtains.”33 The jury could have found that a reasonable person under these circumstances would have known and appreciated that firing at the window created a “high degree of likelihood that substantial harm would result to another,” but not a plain and strong likelihood of death.34 As a result, the judge’s failure to instruct the jury on involuntary manslaughter entitles the defendant to a new trial on the indictment charging seconddegree murder.35 2. The judge did not err by instructing the jury on joint venture liability because there was sufficient evidence, including evidence used by the defendant as part of his defense, that another person was involved in the shooting.36 Further evidence supporting joint venture included the following: (1) the jury heard evidence that Haley and the defendant were together prior to the shootings; (2) the defendant and Haley discussed the theft of the defendant’s television; (3) Haley accompanied the defendant during the second visit to the victim’s apartment; (4) after the shooting, the defendant and Haley were seen coming from the direction of the victim ’s apartment and working together to hide what the jury could have inferred was the rifle; and (5) the defendant and Haley were also located at the defendant’s apartment by the police.37 The SJC articulated that since joint venture is not a crime or an element of a crime, “the participation of another person does not become an element of the offense or a defense. ”38 Therefore, the judge appropriately instructed the jury on joint venture because the defendant met the participation and intent requirements of the offense and there was some evidence that the defendant acted with Haley during the incident.39 3. The judge did not abuse his discretion by allowing the prosecutor to

32 Id. at 444 (citing Commonwealth v. Braley, 449 Mass. 316, 331 (2007), quoting Commonwealth v. Jenks, 426 Mass. 582, 585 (1998)). 33 34 35 36 37 38 39

Id. Id. Id. at 445-446. Id. at 446 & n.4 (citing Commonwealth v. Smith, 460 Mass. 385, 389 (2011)). Commonwealth v. Horne, supra at 446. Id. (quoting Commonwealth v. Fluellen, 454 Mass. 449, 468 (2010)). Id. at 446-447.

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impeach a defense witness’s credibility.40 To properly impeach a witness’s credibility by eliciting testimony regarding the witness ’s prior silence, counsel must determine that: (1) the witness knew of the charges against the defendant in sufficient detail enough to realize that she had exculpatory evidence; (2) the witness had a reason to make this information available; and (3) the witness was familiar with the manner of reporting such information to the authorities.41 Once this proper foundation is established, a witness’s silence is treated as a prior inconsistent statement.42 The SJC found that the prosecution laid the foundation by showing: (1) the witness Houle understood that Haley ’s statement was important and potentially exculpatory because he told her the defendant was a “dirty dog” who should “take the rap for” the crime; (2) the witness was motivated to help the defendant since her elicited testimony indicated that she was friendly with the defendant, having worked with him for years, and she lent him a television to replace the stolen one; and (3) the witness had the chance to convey the information to authorities.43 In addition, the SJC rejected the defendant’s argument that Houle did not tell the police about the statement due to her position as a night-shift worker making her vulnerable to violent retaliation because this was never presented to the jury, mentioned to the judge at sidebar, or brought up by defense counsel during redirect. 44 As a result, the prosecution laid the proper foundation and the SJC held that the judge did not err in allowing the prosecutor to impeach Houle’s credibility.45 4. The SJC found that the two firearm convictions were not duplicative.46 The Court concluded that an individual commits a single violation of Massachusetts General Laws, chapter 269, section 10(a), for the duration of the uninterrupted period that the individual carried a rifle outside his or her residence or place of business. 47 A second violation is committed if this period is interrupted by the individual returning to his residence with the rifle and then goes back outside with the rifle. 48 The jury found that on October 17, 2009, the defendant was in possession of a .22 caliber rifle while interacting with Darco outside of the victim ’s

40 41 42 43 44 45 46 47 48

Id. at 449. Id. at 448 (quoting Commonwealth v. Cintron, 435 Mass. 509, 522 (2001)). Id. (quoting Commonwealth v. Brown, 11 Mass. App. Ct. 288, 296 (1981)). Commonwealth v. Horne, supra at 447. Id. at 448-449. Id. at 449. Id. at 441. Id. at 452. Commonwealth v. Horne, supra.

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apartment.49 Trial evidence suggested that the defendant returned home shortly after the two men interacted, and the jury reasonably inferred that upon returning home, the defendant brought the rifle with him. 50 The jury also found that on October 18, 2009, the defendant again carried the rifle outside of his residence.51 Consequently, the evidence sufficed to support the two separate convictions.52 V. Impact on the Law Commonwealth v. Horne depicts the importance of the jury’s “reasonable person” mentality when considering a case. 53 The SJC focused on how the jury must receive the appropriate jury instructions.54 The Court clarified that when a judge fails to instruct the jury on a conviction, even if there is only a small amount of evidentiary support, a defendant is entitled to a new trial.55 This judgment maintains efficiency in the Massachusetts criminal justice system because it guarantees that a defendant will receive a fair trial by striving to ensure that jurors will always receive proper instructions of a conviction.56

49 50 51 52 53 54 55 56

Id. Id. Id. Id. (citing G.L. c. 269, § 10(a)). See id. at 444. See id. See Commonwealth v. Horne, supra. See id. at 452.

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Commonwealth v. Chatman 466 Mass. 327 (2013)

CONTRIBUTING EDITOR: SARAH E. FAUST I. Procedural History

The defendant was convicted of deliberate and premeditated murder of his mother on January 24, 2002.1 Over six years later (on May 6, 2008), he filed a motion for a new trial, alleging that he was not competent to stand trial in 2002.2 The motion was denied after a non-evidentiary hearing, and the defendant appealed the denial arguing error in the failure to hold an evidentiary hearing on his motion.3 II. Facts The defendant, who lived with his mother’s aunt, had a strained, and sometimes hostile, relationship with his mother.4 This unfortunate relationship may have been partly due to jealousy over his mother’s relationship with her two daughters (the defendant’s half-sisters), indicated by disparaging remarks he made when one of his half-sisters telephoned the aunt’s house.5 On the morning of February 10, 2000, sometime between 11 a.m. and noon, the defendant told the aunt that he was going to work out, but wanted to clean his room when he returned and asked where the mop was kept.6 Upon his return, the aunt left the house to visit friends and, thereafter, the defendant called 911 from the aunt’s house reporting that his mother had been shot.7 It was determined that the victim most likely died between 8:30
1 2 3 4 5 6 7

Commonwealth v. Chatman, 466 Mass. 327, 327 (2013). Id. at 328. Id. Id. Id. Id. Commonwealth v. Chatman, supra at 328.

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a.m. and 12:30 p.m., and that she had been killed by a single gunshot wound to the back of her neck.8 Physical evidence at the scene strongly suggested that the defendant was involved in his mother’s murder.9 The evidence indicated that the victim’s body had been moved from the defendant ’s bedroom to the aunt’s bedroom, where it was found by police.10 Evidence also suggested that the defendant had mopped the floor in his bedroom and put bloodied clothing in the washing machine.11 The defendant’s bloody fingerprint was found on a wall in his bedroom, and bloody footprints were left in the bathroom and inside the bathtub.12 Significantly, the victim’s blood was found on the defendant’s sneaker, clothing, the bottom of his bedroom door, his mattress, and on the shower curtain liner in the bathtub. 13 Additionally, while the murder weapon was not found, a .38 caliber handgun was retrieved from the defendant’s bedroom, along with multiple different kinds of ammunition.14 Although neither the handgun nor the ammunition was involved in the murder they were admitted at trial to show that the defendant was familiar with handguns. 15 Although the defendant denied killing his mother, his statements could not be reconciled with the physical evidence.16 During the 911 call, the defendant reported that his mother had been shot, yet the entry and exit wounds were not readily apparent: he would not have immediately known that his mother had been shot—unless he was the one that shot her.17 Additionally, he insisted that he had not been in the bathroom between discovering the body and the police arriving but police found his bloody footprints there.18 Interestingly, the defendant also told police: “I’m a man and if it means I get the death penalty or life in prison, I ’ll take it like a man.”19 The Commonwealth’s theorized that the victim went to confront the defendant because he made comments about her daughter’s call to the aunt’s

8 9

Id. See id. at 329. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Chatman, supra at 329. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Commonwealth v. Chatman, supra at 329.

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house, and the defendant shot her during the confrontation. 20 The defense challenged the accuracy of the forensic evidence and, alternatively, argued that even if it was accurate, the Commonwealth still could not prove beyond a reasonable doubt that the defendant did actually kill his mother. 21 In support of his 2008 motion for a new trial, the defendant filed multiple affidavits supporting his claim that he was incompetent at the 2002 trial.22 Two affidavits from medical professionals opined that the defendant likely suffered from a schizoaffective disorder.23 Dr. Joss, a forensic psychologist, believed that the defendant’s disease was a “substantial disorder of thought, mood and perception which grossly impairs [the defendant ’s] judgment, behavior, and capacity to recognize reality. “24 Dr. Joss further opined that the defendant suffered from this condition both before and during trial, and as a result, “‘did not have a rational understanding of the proceedings against him.‘“25 Dr. Drebing, a neuropsychologist who conducted multiple tests on the defendant, determined that the defendant had symptoms of a potential schizoaffective, delusional disorder.26 Further, the defendant’s relatives and acquaintances submitted supporting affidavits. 27 In addition, a forensic psychologist at the court clinic, Dr. Leavitt, conducted a competency evaluation on the defendant after he called the judge a “racist bitch” during a hearing on a motion filed by the Commonwealth.28 Dr. Leavitt determined that the defendant presented mental health issues and was likely incompetent to participate in a complex proceeding, such as an evidentiary hearing.29 In late 2010, upon a subsequent order for a competency evaluation and after the defendant had begun taking medication, Dr. Leavitt concluded that he “was ‘competent to engage actively, meaningfully, and rationally in the legal proceeding. ’”30 The judge then heard arguments on the defendant’s motion for a new trial on March 3, 2011.31 The motion was denied on October 6, 2011.32

20 21 22 23 24 25 26 27 28 29 30 31 32

Id. at 329-330. Id. See id. at 330-331, 332. Id. Commonwealth v. Chatman, supra at 330 (internal quotation marks omitted). Id. (internal quotation marks omitted). Id. at 331. See id. at 332. Id. at 331. Id. Commonwealth v. Chatman, supra at 331-332. Id. at 332. Id.

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In denying the motion, the motion judge (also the trial judge) determined that the defendant had not made an “adequate showing that he was incompetent at the time of trial.”33 She reasoned that a history of mental illness did not establish incompetency and that Dr. Joss ’s opinion was unreliable because it was based mainly on the defendant ’s recollections.34 She further noted that many of Dr. Joss’s conclusions did not have sufficient basis in the record.35 As for the affidavits filed by the defendant’s acquaintances, the judge determined that they were of little or no value, as the affiants were not qualified to render a medical opinion.36 Additionally, the judge relied heavily on the fact that there was no indication that the defendant’s trial counsel considered their client to be incompetent at the time of trial.37 Finally, the judge presented her own experience as reason for denying the motion: she did not see anything during the trial that suggested that there might be an issue of competency. 38 III. Issues Presented 1. Whether the appropriate standard of proof for determining the defendant’’s competency to stand trial a preponderance of the evidence or “a substantial question of possible doubt.,”39 including whether the appropriate burden of persuasion assigned to the defendant during the hearing on his motion for a new trial. 40 2. Whether the particular facts of the case mandated an evidentiary hearing.41 IV. Holdings and Reasoning 1. The court held that because the defendant’s competence was not raised at trial, the defendant, at the hearing on his motion for a new trial, must establish by a preponderance of the evidence that the Commonwealth would not have prevailed on the issue if it had been raised at trial. 42 Quite simply, the judge assigned the incorrect burden of persuasion to the

33 34 35 36 37 38 39 40 41 42

Id. Id. Id. Commonwealth v. Chatman, supra at 332. Id. at 333. Id. See id. at 334. See id. at 335. See id. at 336. Commonwealth v. Chatman, supra at 336.

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defendant.43 The defendant incorrectly argued that he was only required to show that there was “a substantial question of possible doubt” as to his competence to stand trial.44 The court explained that because the allegation was not that “circumstances at trial gave rise to a ‘substantial question of possible doubt,’” the case was “more analogous to one involving newly discovered evidence”—requiring the preponderance of the evidence standard. 45 However, the Commonwealth’s assertion that the defendant must establish by a preponderance of the evidence that he was not competent to stand trial was also incorrect.46 The court reasoned that, if the defendant had the burden of proof on the issue at trial, then he would need to establish that he would have prevailed by a preponderance of evidence had the issue been raised at trial.47 However, if, as here, the Commonwealth had the burden of proof on the issue at trial, then the defendant must establish that the Commonwealth would not have prevailed on the issue if it had been raised at trial.48 2. The court held that the defendant made an adequate showing that he had a mental illness that could have, due to the nature of the disorder, been unnoticeable at trial; the Commonwealth may not have been able to prove that the defendant was competent.49 Because the defendant raised a serious question of his competency, an evidentiary hearing to explore the issue further was necessary.50 In reaching this conclusion, the court determined that the “considerable weight” given to the trial counsel’s failure to indicate the defendant’s incompetency at the time of trial was unwarranted.51 Trial counsel provided an affidavit stating they would have raised the issue of competency had they thought it relevant; however, the affidavit was intended for the purpose of supporting the defendant’s motion for funds for a psychologist—not for the purpose of addressing the defendant’s competence.52 To better evaluate trial counsel’s opinion as to competence, it would have been more appropriate to

43 44 45 46 47 48 49 50 51 52

Id. Id. at 334. Id. at 335. Id. at 334. Id. at 335. Commonwealth v. Chatman, supra at 335-336. Id. at 338. Id. at 339. See id. at 336-337. Id. at 336-337.

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have the counsel testify at an evidentiary hearing. 53 Further, the court found that the judge’s dismissal of Dr. Joss’s opinion was unwarranted because his opinion was bolstered by Dr. Leavitt’s concurring opinion and because there was nothing to indicate that “Dr. Joss’s assessment of the defendant’s mental health history at the time of trial was flawed in the manner articulated by the judge.”54 Most significantly, the court reasoned that the defendant’s mental illness was could have been concealed at trial successfully, thus not presenting an issue of competence at trial, the defendant’s motion on the issue of competence was incredibly complicated and required an evidentiary hearing to sufficiently analyze. 55 Furthermore, the court noted that because the Commonwealth offered little evidence that the defendant was actually competent at the time of trial, the defendant had a reasonable chance at proving that the Commonwealth did not meet its burden at trial. 56 Because this case was a closer call than the hearing and subsequent analysis indicated, and because the incorrect burden was used in the ruling, the court vacated the ruling denying the motion for a new trial and remanded for an evidentiary hearing.57 V. Impact on the Law Before the Massachusetts Supreme Judicial Court decided Chatman, the standard of proof for determining whether a defendant was competent to stand trial was “substantial question of possible doubt.”.58 This standard was not fully clarified prior to this case and it resulted in an oversimplification of the appropriate standard. 59 Chatman more fully explained that this standard applies only when the allegations were issues present at trial that “g[i]ve rise to a ‘substantial question of possible

See id. at 337, 339. Commonwealth v. Chatman, supra at 337-338. 55 Id. at 338. 56 Id. at 338-339. 57 Id. at 339. 58 See Commonwealth v. W.M.M., 69 Mass. App. Ct. 1113, at *2 (2007) (citing Commonwelath v. Hill, 375 Mass. 50, 54 (1978); quoting Rhay v. White, 385 F.2d 883, 886 (9th Cir. 1967) (“This accumulation of factors merited consideration by the motion judge whether, at the time of the plea colloquy, there existed a ‘substantial question of possible doubt’ about the defendant's competency under Commonwealth v. Hill.”). 59 See Commonwealth v. Chatman, supra at 334-335; Commonewalth v. Companonio, 445 Mass. 39, 48-49 (2005) (simply noting that “[n]one of the defendant's so-called ‘evidence of incompetency’ creates a ‘substantial question of possible doubt’ on the issue of competency.”).
54

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doubt.’”60 Conversely, if“” the court reviews newly discovered conditions that were concealed at trial (as was the case with Chapman) than the preponderance of the evidence standard is more appropriate. 61

60 61

Commonwealth v. Chatman, supra at 335. Id.

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Commonwealth v. Sylvain 466 Mass. 422 (2013)

CONTRIBUTING EDITOR: ADAM M. FIEDLER

I.

Procedural History

In 2007, the Defendant, Kempess Sylvain, pleaded guilty to possession of a controlled substance.1 Since the defendant was a legal resident and not a citizen, the guilty plea subjected the defendant to automatic deportation from the United States.2 Subsequent to the defendant’s conviction, the Massachusetts Supreme Judicial Court (SJC) decided Commonwealth v. Clarke, which held that the rule announced in Padilla v. Kentucky regarding a defendant’s Sixth Amendment right to accurate advice as to the deportation consequences of a guilty plea was not a “new” rule under Teague v. Lane, and therefore could be applied retroactively to cases on collateral review.3 After the ruling in Clarke, the defendant filed a motion for a new trial, arguing that his attorney was constitutionally deficient in not advising him of the deportation consequences of his plea. 4 The motion was denied, and defendant timely appealed.5 While the defendant’s appeal was pending, the U.S. Supreme Court decided Chaidez v. United States, which contradicted the SJC’s ruling in Clarke.6 Specifically, the Supreme Court held that Padilla announced a new rule under the Teague framework.7 The defendant requested and was granted direct appellate review by the SJC in light of this new decision.8

1 2 3 4 5 6 7 8

Commonwealth v. Sylvain, 466 Mass. 422, 423 (2013). See id. Id. at 423. Id. Id. Id. Commonwealth v. Sylvain, supra at 423. Id.

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II. Facts

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On April 15, 2007, a Boston police officer witnessed the defendant engaging in a sexual act with a prostitute. 9 Upon noticing the police officer, the defendant ingested several small bags which he removed from his coat pocket.10 The officer believed the bags contained drugs.11 Fearing an overdose, the officer intervened and found an additional bag of crack cocaine in the defendant’s pocket.12 The incident took place within 1,000 feet of a child care center.13 The defendant was arrested and charged with one count of possession of cocaine with intent to distribute and one count of a drug violation in a school zone.14 In exchange for dismissal of the school zone charge, which carried a two year prison sentence, the defendant pleaded guilty to simple possession of cocaine, and was sentenced to eleven months in the house of correction, which was suspended for two years. 15 The guilty plea was entered after the defendant received erroneous advice from his counsel regarding the deportation consequences of his plea.16 In actuality, the defendant’s guilty plea would result in his deportation from the United States.17 ’At the time the plea was entered, the Defendant’s counsel provided an affidavit stating that he was aware the Defendant was not a U.S. citizen, and also that he advised the defendant his guilty plea would not likely result in his deportation.18 The defendant also submitted an affidavit which stated that but for the advice of counsel defendant would not have provided a guilty plea had he been provided accurate advice regarding the deportation consequences.19 III. Issues Presented 1. Whether the U.S. Supreme Court decision in Padilla, holding that a criminal defendant had Sixth Amendment right to accurate advice as to deportation consequences of a guilty plea, could be applied

9

Id. at 424. Id. 11 Id. 12 Commonwealth v. Sylvain, supra at 424. 13 Id. 14 Id. at 424-425. 15 Id. at 425. 16 See 425-426. 17 See id. at 425. 18 Commonwealth v. Sylvain, supra at 425-426. 19 Id. at 426.
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retroactively to the Defendant’s case.20 2. Whether defendant’s right to effective assistance of counsel, as it relates to deportation consequences, is a “new” rule of criminal procedure under Massachusetts law.21 Whether defendant’s attorney’s erroneous advice constituted ineffective assistance of counsel under article 12 of the Massachusetts State Constitution.22

3.

IV. Holdings and Reasoning 1. The court held that under Federal law, Padilla is considered a new rule of criminal procedure and thus cannot be applied retroactively at the federal level.23 In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment requires a criminal defense attorney to give accurate advice regarding the deportation consequences arising from a guilty plea.24 The Supreme Court did not discuss whether the holding would apply retroactively on collateral review, seemingly leaving this decision up to state and lower federal courts.25 However, a prior U.S. Supreme Court case, United States v. Teague, provided a framework for deciding when to retroactively apply these decisions to already decided cases. 26 Under this framework, new constitutional rules of criminal procedure will not apply retroactively to cases on collateral review, while the old rules of criminal procedure will apply retroactively.27 The court defined a new rule of criminal procedure as one that breaks new ground or imposes a new obligation that was not previously required by precedent.28 In Commonwealth v. Clarke, the SJC utilized the Teague framework to determine that the Padilla ruling was an old rule of criminal procedure, and could thus be retroactively applied to cases on collateral review. 29 Specifically, the court found that the Padilla decision was simply an
See id. See id. 22 See id. at 427. 23 See id. at 432. 24 Commonwealth v. Sylvain, supra at 427 (citing Padilla v. Kentucky, 130 S.Ct. 1473, 1478 (2010)).
21 25 26 27 28 29 20

Id. Id. at 428 (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). Id. Id. Id. at 429 (citing Commonwealth v. Clarke, 460 Mass. 30, 34 (2011)).

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extension of the court’s ruling in United States v. Strickland, applying specific facts to the general standard previously announced. 30 The U.S. Supreme Court decided a case, Chaidez v. United States, which is directly at odds with Clarke, holding that Padilla did announce a new rule, and could not be applied retroactively to cases on collateral review. 31 Specifically, the Supreme Court held that Padilla considered the unsettled preliminary question: whether deportation advice was outside the scope of the Sixth Amendment right to counsel because it involved only a collateral consequence of a conviction.32 Based on this new Supreme Court precedent, the SJC held that Padilla could not be applied retroactively as a matter of federal law.33 2. The SJC held that Padilla did not announce a new rule under Massachusetts law, even though the U.S. Supreme Court held that Padilla did announce a new rule, as each state court is not compelled to “blindly follow” the U.S. Supreme Court’s opinion on what constitutes a new rule.34 The Commonwealth argued that while the court is not’ required to blindly follow the Supreme Court’s opinion, there is a state-law version of the Teague framework which should not be discarded for an undefined alternative method.35 Further, there was no state-law requirement prior to Padilla that compelled counsel to advise their clients regarding the deportation consequences of a guilty plea, so Padilla must have announced a new rule.36 The court disagreed with the Commonwealth, explaining that Padilla simply applied a general pre-existing standard to a specific set of facts.37 Further, the court pointed to the customary practice of criminal defense counsel to warn their clients of the deportation consequences prior to the Padilla ruling.38 In other words, the Padilla ruling did very little to change the practice of criminal law in Massachusetts.39 Since that is the case, the court did not believe that Padilla announced a new rule of criminal procedure and the defendant was free to seek relief under the Sixth

30 31 32 33 34 35 36 37 38 39

Commonwealth v. Sylvain, supra at 429. Id. at 431 (citing Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013)). Id. at 430. Id. at 431. Id. at 435. Id. at 426-427. See Commonwealth v. Sylvain, supra at 427. Id. at 435. Id. See id.at 435.

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Amendment.40 3. The court held that under Article 12 of the Massachusetts State Constitution (which includes the state-law version of the Sixth Amendment’s right to effective assistance of counsel), defense counsel must accurately advise a noncitizen client of the deportation consequences of a guilty plea or a conviction at trial.41 The court utilized identical reasoning in making this determination as it did in holding Padilla did not create a new rule.42 Specifically, the Massachusetts ineffective assistance of counsel standard is a dynamic standard which changes over time and simply applying a set of facts to a general standard does not automatically announce a new rule.43 V. Impact on the Law The SJC ruling that Padilla did not announce a new rule of criminal procedure under Massachusetts law in the face of contradictory Supreme Court precedent breathes new life into the Padilla decision for Massachusetts citizens.44 Under the Supreme Court ruling in Chaidez, there was serious doubt as to whether collateral Sixth Amendment arguments were a thing of the past for cases that were final at the time of Padilla.45 This decision puts those doubts to rest in Massachusetts —collateral attacks on incorrect advice regarding deportation consequences will continue to be a viable argument.46 Further, the SJC reaffirmed that state courts are not compelled to agree with Supreme Court decisions as to what constitutes a new rule of criminal procedure.47 State courts are able to determine whether a rule of criminal procedure under Teague or the state-law equivalent can be applied in cases or controversies that are final on the date of the determination.48

40 41 42 43 44 45 46 47 48

Id. at 436. Id. Commonwealth v. Sylvain, supra at 436. See id. at 437. See id. at 435. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013). See Commonwealth v. Sylvain, supra at 435. Id. Id.

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Commonwealth v. Ortiz, 466 Mass. 475 (2013)

CONTRIBUTING EDITOR: CONOR GERAGHTY I. Procedural History

The Quincy Division of the District Court Department issued a complaint against the defendant for distribution of a class B substance and school zone charges on July 7, 2010.1 The defendant filed a motion to suppress evidence that was granted in part.2 The jury trial began on September 22, 2011, but resulted in a mistrial because a witness referred to evidence suppressed at the prior hearing.3 At the new hearing on December 15, 2011, the defendant was ultimately convicted on both charges.4 The defendant was sentenced to one year for the distribution charge, and two years on the school zone charge.5 The defendant appealed and the Supreme Judicial Court (“SJC”) granted direct appellate review.6 II. Facts The Weymouth Police Department was conducting undercover surveillance in the area of Washburn Street in Weymouth on June 29, 2010 when an officer observed a green SUV driven by a Hispanic male, stop in front of 24 Washburn Street.7 The resident, Karen McDonald, exited her home and approached the green SUV.8 McDonald reached her hand into the SUV’s passenger side window, and then retracted her hand. 9 According to the witnessing officer, McDonald appeared to be concealing something

1 2 3 4 5 6 7 8 9

Commonwealth v. Ortiz, 466 Mass. 475, 477 (2013). Id. Id. Id. Id. Id. Commonwealth v. Ortiz, supra at 477-478. Id. at 478. Id.

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in her hand.10 One week later on July 6, 2010, the same Weymouth police officer conducted surveillance in the same area.11 The officer once again observed the same green SUV driven by the same Hispanic male pull up in front of 24 Washburn Street.12 McDonald again exited her home and approached the vehicle;13 and again reached her hand into the passenger side window of the vehicle, and then retracted it.14 Once the SUV drove off, the officer approached McDonald and saw that McDonald had tissue paper in her hand.15 The officer instructed McDonald to hand over the tissue paper.16 Inside the tissue paper the officer found six small bags later identified as cocaine.17 The officer alerted her colleagues to be on the lookout for the green SUV, and that SUV was stopped soon after in the vicinity of 24 Washburn Street.18 The driver of the vehicle was arrested, and during the search incident to arrest, officers found $150 in currency, and an additional dollar bill containing a white, powdery substance.19 The defendant was questioned about the interaction with McDonald in front of 24 Washburn Street, and claimed he had never been to the location before that day, and he only stopped because the woman had flagged him down. 20 He also stated to the officers that he does not sell or do drugs.21 At the beginning of the defendant’s second trial on December 15, 2011, the judge asked the prosecutor and defense counsel if they agreed to stipulate that the substance found in the six small bags taken from McDonald was cocaine, and each side agreed to do so.22 During trial, both parties referred to the contents of those bags as cocaine, but the jury was not informed of this stipulation by any party during the presentation of the Commonwealth’s case, and no drug certifications were presented by the Commonwealth during its case-in-chief.23 The defendant did not present

10 11 12 13 14 15 16 17 18 19 20 21 22 23

Id. Id. Id. Commonwealth v. Ortiz, supra at 478. Id. Id. Id. Id. Id. Commonwealth v. Ortiz, supra at 478. Id. at 478-479. Id. at 478. Id. at 479. Id. at 479-480.

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any witnesses.24 During jury instructions, the judge informed the jury that the parties had stipulated that the substance in the bags was cocaine. 25 Defense counsel did not make an objection at that time.26 III. Issue Whether the Commonwealth must introduce any evidence at trial that a stipulation has been agreed upon by both sides, and whether such a stipulation must be in writing and signed by the defendant, or at least in the form of a judicial colloquy.27 IV. Holding and Reasoning The SJC held that where a stipulation as to a material fact has been agreed upon, the Commonwealth does not have the burden to produce evidence of that material fact at trial.28 The fact that the stipulation was presented to the jury after the close of evidence did not prejudice the defendant’s rights, and was merely harmless error, because the stipulation was only to one material fact (as opposed to all facts which would permit a guilty plea), and the remaining facts were presented by the Commonwealth to the jury.29 The SJC additionally held that, in the future, where the Commonwealth and the defendant stipulate to the existence of an element of a crime alleged in the case, that stipulation must be presented to the jury before the close of evidence.30 Furthermore, the Court considered whether the stipulation must be in writing and signed by the defendant. 31 The defendant argued that such a stipulation should be governed by Rule 11 of the Massachusetts Rules of Criminal Procedure,32 which requires that the defendant sign any stipulation made during the pretrial conference.33 The Court rejected the defendant’s argument because many stipulations, including the stipulation in this case, are not agreed upon until after the pretrial conference, and thus Rule 11 could not apply.34 The Court requested that the standing advisory committee review this issue and determine if a procedure similar
24 25 26 27 28 29 30 31 32 33 34

Id. at 480. Commonwealth v. Ortiz, supra at 480. Id. Id. at 476. Id. at 481. Id. at 483-484. Id. at 484. Commonwealth v. Ortiz, supra at 485. Mass R. Crim. Pro. 11 Commonwealth v. Ortiz, supra at 485-486. Id. at 486.

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to the procedure governed by Rule 11 would be appropriate in a situation where the stipulation was made after the pretrial conference.35 V. Impact on Law This ruling removes the burden of Massachusetts prosecutors of having to prove the existence of a stipulation regarding a material fact at trial.36 Now, as long as a stipulation has been agreed upon by the parties prior to trial, the prosecutor can proceed with the trial as if that fact has already been proved, even if the jury has not been notified that such a stipulation is agreed upon.37 Additionally, such a stipulation does not need to be signed by the defendant if the stipulation is agreed upon at a point in time after the completion of the pretrial conference.38

35 36 37 38

Id. at 486-487. Id. at 480. See id. Id. at 486.

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Commonwealth v. Fortunato, 466 Mass. 500 (2013)

CONTRIBUTING EDITOR: MELISSA HAMBELTON I. Procedural History

The defendant was indicted for armed robbery and being a habitual offender.1 The Superior Court judge allowed the defendant’s motion to suppress the admission of prearraignment statements made more than six hours after arrest.2 The Commonwealth applied for leave to prosecute an interlocutory appeal which was allowed by a single Superior Court judge and the case was transferred to the Appeals Court. 3 The Supreme Judicial Court of Massachusetts (“SJC”) transferred the case sua sponte.4 II. Facts On February 19, 2008, a man entered a bank in Reading, told a teller that he had a gun, and ordered the teller to give him money.5 The man fled upon the teller giving him a substantial amount of money.6 Detective Michael Saunders and State Trooper Shawn O’Neil traveled to Albany, New York, after receiving information that the defendant may have participated in the robbery.7 Saunders and O’Neil spoke with the defendant, who was released from a New York state prison the previous day.8 While speaking with the defendant, Saunders and O’Neil told the defendant he was a suspect in a robbery that took place in Reading, read him his Miranda warnings, and recorded the interview.9 At the end of the

1 2 3 4 5 6 7 8 9

Commonwealth v. Fortunato, 466 Mass 500 (2013). Id. at 500-501. Id. at 503. Id. Id. at 501. Id. Commonwealth v. Fortunato, supra at 501. Id. Id.

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interview, the defendant told Saunders and O’Neil he would speak with them upon his return to Massachusetts. 10 Two days later, on November 19, 2009, Saunders and O ’Neil arrested the defendant in Medford at 4:10 PM and he was taken to the Reading Police Department.11 Booking procedures took place at approximately 6:00 PM, and the defendant was again read his Miranda warnings, which he acknowledged in writing.12 Saunders brought the defendant to an interview room in the police station, and again repeated the Miranda warnings.13 The defendant declined to speak with Saunders and was brought back to his holding cell.14 At 10:30 PM—over six hours after his arrest —the defendant stated he wanted to speak with Saunders.15 Saunders went to the defendant’s cell, but did not do any of the following: say anything to the defendant about his right to a prompt arraignment, provide the defendant with any sort of prompt arraignment form, and did not restate the defendant ’s Miranda rights.16 The defendant proceeded to speak with Saunders, ultimately telling him he did not want this matter going to trial, that he could plead guilty, and that he had pled guilty before.17 III. Issue Whether the contents of the 10:30 PM conversation between the defendant and Saunders fell within the scope of the Rosario rule, thus barring its admission into evidence.18 IV. Holding and Reasoning The SJC held that the statements made on November 19th at 10:30 PM between the defendant and Saunders were part of continuing “police questioning” and that the Rosario rule applied, affirming the trial court’s order granting the defendant’s motion to suppress.19 The Rosario case established a bright-line rule intended to make the rights of police in questioning an arrested person, and the standard for

10 11 12 13 14 15 16 17 18 19

Id. Id. at 502. Id. Commonwealth v. Fortunato, supra at 502. Id. Id. Id. Id. at 502-503. See id. at 503-504, 509. Commonwealth v. Fortunato, supra at 509.

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suppressing statements made by the defendant after arrest, but prior to arraignment “as clear as possible” to police, prosecutors, judges, and defense counsel.20 The Rosario rule states that any statement made by a person under arrest, over six hours after the arrest is made, is inadmissible as evidence unless the person under arrest validly waived their right of “timely presentment to a court for arraignment.”21 In this case, the SJC stated that the Rosario rule serves many purposes including: protecting against unwarranted police pressure, facilitating the right to counsel of the criminal defendant, and ensuring that the criminal defendant receives a prompt statement by judge or magistrate of the charges against him.22 Serving these purposes, the SJC determined that the 10:30 PM conversation between the defendant and Saunders was an “integral part of police questioning and subject to the six-hour time limitation imposed by the Rosario rule.”23 In coming to this conclusion, the SJC took a “realistic view” of what can “constitute police questioning;” this “realistic view” included weighing the following four facts: (1) the defendant was in custody for over six hours; (2) the defendant was unsuccessfully interrogated by Saunders around 6:30 PM; (3) the defendant was in the same police station without an arraignment or some other intervening event; and (4) the defendant asked to speak to Saunders specifically.24 These facts ultimately allowed the SJC to conclude that the 10:30 PM conversation constituted “police questioning” and the Rosario rule applied.25 V. Impact on the Law This case is significant because it further clarified what constitutes “police questioning” under the Rosario rule.26 The Commonwealth argued that the Rosario rule did not apply in this case because the defendant’s statements were unsolicited and voluntary. 27 However, the SJC decisively announced that the facts of this case do fall under “police questioning” and the application of the Rosario six-hour rule was appropriate.28 The SJC stated that the Commonwealth’s argument that the Rosario rule does not apply to unsolicited or voluntary statements was misplaced in this
20 21 22 23 24 25 26 27 28

Id. at 505-506. Id. at 504. Id. at 506. Id. Id. Commonwealth v. Fortunato, supra at 506. See id. at 504-505, 509. Id. at 505-506. Id. at 509.

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particular case and was an “issue left for another day.”29

29

Id.

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Commonwealth v. Cumming, 466 Mass. 467 (2013)

CONTRIBUTING EDITOR: ERIK HAGAN

I. Procedural History Richard Cumming was convicted in 2002 on four indictments of raping a child, four indictments of indecent assault and battery of a child under the age of fourteen and two indictments of assault and battery on a child over the age of fourteen.1 The judge sentenced Cumming to between six and ten years of incarceration for the rape of a child, indecent assault and battery on a child under the age of fourteen, as well as community parole supervision for life (“CPSL”).2 For indecent assault and battery of a child over the age of fourteen, the judge imposed a sentence of between four and five years of incarceration.3 All sentences were to run concurrent and Cumming did not appeal.4 II. Facts In 2010, Cumming filed a Massachusetts Rule of Criminal Procedure 30(a)5 motion to correct his sentence in light of Commonwealth v. Pagan,6 which held CPSL provisions unconstitutionally vague for certain offenders.7 The Commonwealth filed a motion to completely resentence
Commonwealth v. Cumming, 466 Mass. 467, 468 (2013). Id. 3 Id. 4 Id. 5 “Unlawful Restraint. Any person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time, as of right, file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts” MASS. R. CRIM. P. 30.
2 6 7 1

Commonwealth v. Pagan, 445 Mass. 161 (2005). Commonwealth v. Cumming, supra at 469.

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Cumming, which he resisted by arguing that the other sentences were final, and it was only the CPSL sentence that should be reheard. 8 The judge vacated all the sentences and imposed the same sentences for all convictions except for two charges of indecent assault and battery of a child under the age of fourteen.9 Instead of six to ten years of incarceration running concurrent to his other convictions, Cumming would have ten years of probation following his release.10 Cumming appealed and the Appeals Court affirmed in an unpublished decision. 11 II. Issues 1. Is a criminal defendant placed in double jeopardy when a judge restructures a sentence pursuant to Rule 30(a) if part of the original sentence was subsequently held unconstitutional? Did the judge unconstitutionally increase the aggregate punishment by substituting probation in place of community parole supervision for life?

2.

III. Holdings and Reasoning 1. The Supreme Judicial Court (SJC) held that resentencing on final and lawful portions of a sentence does not violate double jeopardy. 12 The SJC reached this conclusion for two reasons. The first reason was that it was the defendant who brought the Rule 30(a) motion to correct the sentence.13 This was significant because the defendant exposed himself to restructuring an interdependent grouping of sentences. 14 Additionally, because the original sentence was part of a clustered package of sentences, the original judge may have believed that CPSL accomplished the sentencing goals, which could also have been accomplished by subsequent probation.15 When the CPSL sentence was removed, the resentencing judge was correct to consider the entire interdependent sentence and found that it was not double jeopardy.16 2. The SJC held that imposing probation from and after increased the aggregate punishment and, therefore, constituted double jeopardy. 17 The

8 9

Id. Id. 10 Id. 11 Id. at 470. 12 Id.at 472. 13 Commonwealth v. Cumming, supra at 471. 14 Id. 15 Id. at 472. 16 Id. 17 Id. at 474.

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SJC determined that under the CPSL, violations of parole would result in either: (a) Cumming finishing the remainder of his sentence in prison if he violated parole in an underlying six to ten year sentence; or (b) Cumming returning to a house of correction for thirty days on the first violation, 180 days on the second violation, and one year for any additional violations if he violated parole after the original sentences finished. 18 However, under the restructured sentence, a violation of parole would return Cumming to incarceration for the maximum ten-year sentence for each of the underlying offenses.19 Therefore, the modified sentence would likely result in a more severe sentence than originally imposed and would violate double jeopardy.20 IV. Impact on the Law The impact on the law will be twofold. The first is that Rule 30(a) motions brought by the defendant to correct subsequent illegal sentences will be immune from double jeopardy claims made on the entire sentence. Defendants should be aware that Rule 30(a) motions will prompt consideration of the entire “package” of sentences, instead of only considering the illegal sentence. The second impact is the risk that more erroneous sentences could result if judges are not careful when imposing a resentence. As stated in the decision, an onerous sentence may appear to be less severe “at first glance”.21 The Court chose to focus on the severity of the punishment for parole violation, instead of any other factors.

18 19 20 21

Id. at 473. Commonwealth v. Cumming, supra at 473. Id. at 474. Id. at 473.

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Commonwealth v. Gray, 466 Mass. 1012 (2013)

CONTRIBUTING EDITOR: ANDREW HIGLEY I. Procedural History

The defendant, John Gray, was charged with operating under the influence (“OUI”), his OUI third offense. 1 His motion to suppress in district court, challenging the actions of the arresting officer at the motor vehicle checkpoint stop was granted.2 In response, the Commonwealth filed an interlocutory appeal seeking review from a single justice of the Supreme Judicial Court (“SJC”).3 The single justice directed the case to the Massachusetts Appeals Court (“Appeals Court”).4 The Appeals Court reversed the order of the district court on the basis that the judge’s decision was based on a “clearly erroneous” finding of fact.5 The defendant then sought further review from the SJC.6 II. Facts In September 2010, the defendant drove up to a sobriety checkpoint conducted by the Massachusetts State Police.7 The order for this particular checkpoint, issued by State Police Major Sean Baxter, stated that the checkpoint would be conducted “in accordance with State police General Order TRF-15 (“TRF-15”) and the ‘written operations plan’ approved by Major Baxter.”8 Generally, TRF-15 authorizes the initialscreening officer at a sobriety checkpoint to divert a motor-vehicle driver to
1 2 3 4 5 6 7 8

Commonwealth v. Gray, 466 Mass. 1012, 1012 (2013). Id. See id. Id. Id. Id. at 1013. Commonwealth v. Gray, supra at 1012. Id. at 1013.

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a secondary checkpoint if the officer has “reasonable suspicion” of an OUI violation.9 TRF-15 does not permit the initial-screening officer to ask the driver questions about consumption of alcohol.10 However, a separate order, State Police Division Commander’s Order 10-DFS-35 (“10-DFS-35”), does permit such questioning.11 At this particular checkpoint, Sergeant Paul D’Auteuil stopped Mr. Gray.12 After some questioning by the Sergeant about alcohol consumption, and then a diversion to a secondary checkpoint, Mr. Gary was arrested on suspicion of an OUI violation.13 Mr. Gray argued in his motion to suppress that the Sergeant did not comply with the applicable guidelines for the checkpoint because the officer’s questions were improper.14 At the later suppression hearing in District Court, the Sergeant testified that he did not ask Mr. Gray any questions—such as where he was coming from or whether he had been drinking—until after Mr. Gray displayed signs of intoxication.15 Despite no evidence to the contrary, the District Court ruled that the officer asked these questions before observing signs of intoxication and therefore failed to comply with the specific guidelines for that checkpoint.16 At the Appeals Court, the Commonwealth argued that: (1) the judge ’s finding of fact was clearly erroneous; and (2) the guidelines specific to this checkpoint allowed the Sergeant to question Mr. Gray about alcohol consumption.17 The Commonwealth argued that but for the judge’s erroneous finding of fact, the judge would have denied the motion to suppress because the Sergeant complied with the guidelines.18 The Appeals Court agreed with the Commonwealth on the first issue, but did not go further and rule on the second issue.19 At the SJC, Mr. Gray argued that the Sergeant did not comply with the guidelines because, under TRF-15, he was not permitted to ask any questions about alcohol at the initial checkpoint.20 The Commonwealth argued that he was permitted to ask such questions under 10-DFS-35;

9

Id. Id. 11 Id. at 1013-1014. 12 See id. at 1012. 13 Commonwealth v. Gray, supra at 1012-1013. 14 Id. at 1012. 15 Id. at 1012-1013. 16 Id. at 1012. 17 Id. at 1013. 18 Id. at 1013. 19 Commonwealth v. Gray, supra. 20 See id.
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specifically, 10-DFS-35 was included under the “written operations plan” mentioned by Major Baxter in the order for this specific checkpoint. 21 III.Issues Whether the State Police Division Commander’s Order 10-DFS-35 was part of the “written operation plan” in Major Baxter’s order and therefore applicable to this specific sobriety checkpoint.22 IV.Holding and Reasoning First, both parties agreed at the SJC that the district court judge’s finding of fact was clearly erroneous; the only remaining issue was the guidelines and whether 10-DFS-15 was part of the “written operations plan.”23 The SJC began by recognizing that sobriety checkpoints “must be conducted in strict compliance with the written guidelines applicable to that particular checkpoint.”24 Strict compliance with these guidelines is necessary because checkpoints constitute warrantless seizures under the Fourth Amendment of the Federal Constitution and Article 14 of the Massachusetts Declaration of Rights.25 However, these checkpoints do not run afoul of these rights as long as there are “standard, neutral guidelines” that are “strictly adhered to.”26 The SJC avoided a final ruling, however, and punted that question back to the district court judge to decide in the first instance.27 The SJC reasoned that because the judge based his decision on the erroneous finding of fact that the Sergeant questioned the defendant before observing signs of intoxication, the judge never had to decide whether 10-DFS-35 even applied to this checkpoint.28 Despite avoiding the sole issue in the case, the Court did indicate that if 10-DFS-35 was part of the “written operations plan,” then the Sergeant’s timing of the questioning was proper.29 In contrast, if that order was not part of the plan, the questioning was improper because TRF-15 would not permit for such questioning at the initial screening. 30 Ultimately though,

21 22 23 24 25 26 27 28 29 30

Id. Id. Id. Id. (citing Commonwealth v. Murphy, 454 Mass. 318, 323, 328 n.9 (2009)). Commonwealth v. Gray, supra. Id. at 1013. See id. at 1014. Id. (noting that the officer’s questions still would have been improper). Id. Id.

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the SJC decided that this was an issue of fact, best to be resolved at the district court level.31 V. Impact on the Law Despite declining to rule on the sole issue in the case, the SJC reaffirmed the principle that courts should closely scrutinize sobriety checkpoints to ensure that the specific guidelines of each checkpoint are strictly followed by law enforcement. 32 The SJC has previously upheld these checkpoints despite constitutional challenges;33 but to pass constitutional muster, the checkpoints must be conducted “pursuant to a plan devised by law enforcement supervisory personnel.”34 The District Court’s clear directive was to conduct a searching, factual review to determine whether 10-DFS-35 was part of the “written operations plan”— determinative of whether the Sergeant’s questions were proper.35 Going forward, courts will continue to hold law enforcement to a high standard when conducting sobriety checkpoints to ensure that constitutional rights are not trampled.36

See Commonwealth v. Gray, supra. Id. at 1013. 33 See, e.g., Commonwealth v. Murphy, supra at 324; Commonwealth v. Swartz, 454 Mass. 330, 335 (2009); Commonwealth v. McGeoghegan, 389 Mass. 137, 143 (1983). 34 Commonwealth v. McGeoghegan, supra at 143. 35 Commonwealth v. Gray, supra at 1014. 36 See id. at 1013 (recognizing that sobriety checkpoint guidelines “must be strictly adhered to” by law enforcement).
32

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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

In the Matter of Thomas F. Patch, 466 Mass. 1016 (2013).

CONTRIBUTING EDITOR: CAROLINE M. P. KELLY I. Procedural History

Bar counsel appealed a single justice’s order from the Massachusetts Supreme Judicial Court (“SJC”) indefinitely suspended Thomas F. Patch (“Patch”) from practicing law.1 The single justice did not accept the Board of Bar Overseers’ recommendation to disbar Patch and instead, indefinitely suspended Patch based on his observations of Patch ’s behavior in the courtroom.2 Bar counsel appealed, stating that Patch should have been disbarred, not indefinitely suspended. 3 II. Facts In 2004, Patch was suspended after adjudications of contempt in the Probate and Family Court regarding his divorce.4 He introduced evidence of mitigation that showed clinical depression led to his misconduct.5 He was reinstated upon serving his three-month suspension.6 In 2006, Patch was convicted of criminal harassment and violating a protective order.7 For these convictions, he was sentenced to two and onehalf years in the house of correction, suspended for five years, and sentenced to five years’ probation.8 He was ordered to undergo a psychological evaluation and seek mental health treatment as terms of his

1 2 3 4 5 6 7 8

In the Matter of Thomas F. Patch, 466 Mass. 1016, 1016 (2013). Id. Id. Id. Id. Id. In the Matter of Thomas F. Patch, supra at 1016. Id.

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probation.9 In 2007, Patch was convicted of witness intimidation for his behavior towards one of the mental health professionals who evaluated him during his 2006 probation.10 Patch was sentenced to two and one-half years in the house of correction.11 Upon the Court’s notification of Patch’s convictions, a single justice temporarily suspended Patch from practicing law.12 Patch filed an answer to the petition for discipline, alleging facts in mitigation, such as his mental health evaluation from his 2006 convictions.13 Despite alleging these mitigating facts, he did not allege that his misconduct was the consequence of psychological issues.14 At the hearing in February 2011, Patch’s counsel argued that he had psychological issues, but did not present evidence to support the notion that his psychological issues affected his misconduct of witness intimidation.15 The hearing panel recommended disbarment in their report; the Board of Bar Overseers adopted this recommendation.16 At the hearing, a single justice ordered indefinite suspension after he observed Patch cry twice at the hearing and concluded that he had “unresolved emotional issues.”17 It was further ordered that Patch be reinstated to practice law after addressing his emotional issues to the satisfaction of the Board of Bar Overseers.18 III. Issue Presented Whether the single justice abused his discretion in not accepting the Board of Bar Overseers’ recommendation to disbar Patch and alternatively, ordering an indefinite suspension. IV. Holding and Reasoning The SJC answered this issue in the affirmative. 19 The Court noted that when an attorney has a felony conviction that affects the administration of justice, the proper sanction is either disbarment or indefinite suspension.20
9

Id. Id. 11 Id. 12 Id. at 1017. 13 In the Matter of Thomas F. Patch, supra at 1017. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 See In the Matter of Thomas F. Patch, supra at 1018. 20 Id.
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Indefinite suspension is the lesser sanction and is appropriate when a respondent shows that there are mitigating factors. 21 These mitigating factors can be psychological issues.22 The Court noted that Patch did not present evidence (such as testimony, expert testimony, or otherwise) to show that his psychological issues mitigated his conduct. 23 While Patch’s counsel stated that he had psychological issues at the hearing, he did not show evidence that these issues caused his witness intimidation misconduct.24 The court ruled that he waived his right to argue mitigation due to psychological issues at trial because he failed to state his issues causing the misconduct.25 Without the mitigating factors, the SJC adopted the Board of Bar Overseers’ recommendation of disbarment.26 The indefinite suspension order was vacated, and the case was remanded to order disbarment.27 V. Impact on the Law In the Matter of Thomas F. Patch further solidified the difference between indefinite suspension and disbarment. 28 The SJC has consistently held that indefinite suspension is appropriate only when a defendant presents specific mitigating factors.29 Factors could include drug addictions, selfreporting one’s malevolence, and seeking substance abuse treatment.30 In this decision, the SJC continued this trend by refusing to allow an order for indefinite suspension to stand without specific, asserted factors.31

21 22 23 24 25 26 27 28 29 30 31

Id. Id. Id. Id. In the Matter of Thomas F. Patch, supra at 1018. Id. Id. Id. See, e.g., In the Matter of Barry F. Collins, Jr., 455 Mass. 1020, 1021-1022 (2010). See, e.g., id. In the Matter of Thomas F. Patch, supra at 1018.