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Rarely does the prosecution have the right to appeal from a jury verdict.  However, in Commonwealth v. Dery, Slip Opinion December 23, 2008 it looks like the prosecution did just that – – and lost its case in the process. 

The defendant Zachary Dery was tried on September 13, 2007 for OUI and other traffic matters.  The impanelment process commenced and due to the parties striking prospective jurors the panel was reduced to 5 members.  The judge told the defendant that he could proceed with 5 jurors.  The defendant consented to trial in that manner freely and willingly.  No written waiver was filed and the prosecution never lodged an objection to this process.  The defendant’s gamble paid off and he was acquitted of the OUI charges.  

For some reason, not explained in the Court’s opinion the Commonwealth tried to have the case restored to the trial list claiming that 5 jurors cannot legally decide the case and that the defendant never signed a jury waiver in accordance with Massachusetts Rule of Criminal Procedure 19(b).  The trial judge refused to allow the prosecution to retry the case and an appeal followed. 

As to the constitutional argument, the Supreme Judicial Court held that a trial by a jury of less than six jurors survives constitutional scrutiny provided the defendant consents to this procedure.  Contrary to the position of the prosecution, a five person jury trial is not a nullity.  In another case also decided today that sentiment was explained.  See Commonwealth v. Nicoll, Slip Opinion December 23, 2008.  As to the failure to sign the jury waiver pursuant to Massachusetts Rule of Criminal Procedure 19(b) the Court held that the prosecution’s failure to object at the time of the waiver resulted in a forfeiture of its rights and that Rule 19(b) serves as a safeguard for the benefit of a criminal defendant.  In addition, in this case Rule 19(b) might not have been applicable in that jeopardy, which is a prerequisite for Rule 19(b) had not yet attached. 

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A 38 year old Newton man has been charged with soliciting payments from a developer in exchange for relaxing permit and inspection requirements.  The defendant, Paul Camilli faces charges of bribery in the Concord District Court.  A Middlesex County District Attorney press release said that Camilli was arraigned today on one count of a public employee accepting or receiving a bribe.  The private developer began a construction project in Maynard earlier this year.  The defendant is the Maynard superintendent of public works.  Apparently Camilli was making life difficult for the developer.  The developer asked what would get the project done.  Camilli responded that he was looking for cash.  Ultimately the developer paid thousands of dollars to get the necessary approvals.  The investigation was conducted with undercover law enforcement officials and surveillance videos.  Bail in the amount of $1,000 was imposed.  See Waltham Daily News, December 21, 2008.  See also Middlesex District Attorney press release December 22, 2008. 

Most likely Camilli was charged with violating Massachusetts General Laws Chapter 268A Section 2.  Subsection (b) of that law makes it a crime for any county, state or municipal employee to ask for or receive, directly or indirectly anything of value in return for 1) being influenced in his official capacity, 2) being influenced to commit a fraud on the state, municipality or county or 3) being induced to commit or omit acts in violation of his or her official duty.  A conviction for this offense carries a potential 3 year prison sentence and a $5,000 fine. 

This statute focuses on hindering the potential for the undermining of official integrity.  Even though the statute targets public officials, private citizens can be convicted if it is shown that they acted as an agent of the public official.  For instance, someone who acts as a “bag man’ for a public official can be convicted under this statute.  It is no defense that the bribe was not accepted. 

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Former Boston gang member Michael Addison was sentenced to death yesterday for killing a Manchester, New Hampshire police officer.  In October of 2006 Officer Michael Briggs and his partner confronted Addison who was suspected in a shooting and a couple of armed robberies.  In order to avoid apprehension Addison shot Briggs in the head and fled.  The death penalty phase of the trial followed the murder conviction after a 9 week jury trial.  It marked the first time in 49 years that a New Hampshire jury issued a death sentence.  The last execution in New Hampshire was in 1939.  If the death sentence is upheld Addison will die by lethal injection. 

Fighting against the death penalty Addison’s lawyers showed that he had a troubled childhood and likely sustained brain damage as a result of his teenage mother’s alcohol and drug abuse during pregnancy.  Evidence showed that Addison had been abandoned by his parents and raised by his maternal grandmother. When he was 16 Addison was taken into custody by the Department of Youth Services after a failed attempt to shoot a student outside a Dorchester high school. He was convicted later of stabbing a man and stealing his hat.  The prosecution on the other hand portrayed Addison as the former leader of a violent Boston street gang. 

Several politicians weighed in on the verdict.  Governor John Lynch issued a statement affirming his belief in the death penalty.  He also stated that he “believe[s] this was a just verdict.”  A Portsmouth state representative vowed to file anti death penalty legislation.  Such legislation was passed by the legislature in 2000 only to be vetoed by the governor.  Boston Globe, December 19, 2008, Shelley Murphy. 

Currently there is no death penalty in the Commonwealth of Massachusetts.  In 1975 the Supreme Judicial Court decided the case of Commonwealth v. O’Neal, 367 Mass. 440 (O’Neal I).  In that case the Court focused on the defendant’s right to Due Process and held that “the right to life is a fundamental constitutional right, that due process of law requires that the burden be on the State to demonstrate a compelling State interest served by the mandatory death penalty and absence of any less restrictive means of furthering such interest”.  The Court in O’Neal I requested that this matter be briefed on this one issue.  A few months later in Commonwealth v. O’Neal II, 369 Mass. 242 (1975) the Court ultimately held that the Commonwealth had not provided adequate justification for capital punishment, and the statute thus violated both the due process and the prohibition of cruel or unusual punishment provisions of the Massachusetts Constitution. This remains the state of the law today notwithstanding approximately seven gubernatorial and/or legislative attempts to re-institute a death penalty law. 

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Today, in a published opinion the Massachusetts Appeals Court reversed a conviction for threatening to commit a crime in violation of Massachusetts General Laws Chapter 275 Section 2 citing insufficient evidence.  See Commonwealth v. James, slip opinion December 18, 2008.  The Appeals Court reported the following facts: 

1.  That in December 2006 the defendant was serving a sentence in the Suffolk County House of Correction.

2.  During a search of his cell prison authorities found letters that the defendant had written to another inmate in which the defendant asked this inmate to kill a woman whom he had dated prior to his incarceration.  Apparently, during his incarceration this woman ended the relationship.  The defendant believed it had something to do with her seeing another man. 

3.  In one of the letters the defendant wrote that he wanted the woman shot in the stomach, chest or head, that he wanted her in critical and that he would kill her himself.  In another letter he against wrote that he wanted her shot in the chest or stomach, and that he wanted the place checked out in advance.

4.  In a tape recorded the defendant admitted to writing the letters but that he did so in a passing moment of anger and that he never intended for anyone to follow up on the threats.

5.  The threats were communicated to the woman through law enforcement officials. 

A jury sitting in the Boston Municipal Court convicted the defendant.  Reversing the conviction the Appeals Court held that to sustain a conviction under Massachusetts General Laws Chapter 275 Section 2 the prosecution must prove that the defendant had the intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient.  Menacing words alone, or even those that express a threat to commit a crime do not satisfy the prosecution’s burden to sustain a conviction under this statute.  The prosecution must also prove that the threat was communicated in some manner to the defendant’s intended victim, either directly or through an intermediary.  Mere proof that threatening words their target will not suffice to satisfy the government’s burden under this statute. 

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An Essex County Superior Court Judge sitting in Lawrence sentenced a 47 year old man to life in prison for raping and sexually abusing his daughter.  According to reports in the Lawrence Eagle Tribune, the victim moved to this country from the Dominican Republic when she was 11 years old to live with her mother and the defendant, her stepfather.  Within a month sexual abuse started.  It lasted for 2 years.  The victim then returned to the Dominican Republic where she remained for a few years.  When she turned 16 she moved back to Essex County the abuse resumed and within a few months the defendant was arrested. 

The case was tried before a jury in the Essex County Superior Court in Lawrence.  The defendant was convicted of rape, indecent assault and battery, incest and assault and battery by means of a dangerous weapon.   The judge who presided over the trial called the defendant’s conduct “appalling” and “close to torture”.  He then sentenced the defendant to life in prison on the rape charge.  A 9-10 year sentence was imposed on 3 counts of indecent assault and battery on a person under the age of 14.  A 9-10 year sentence was imposed for the conviction of one count of assault and battery with a dangerous weapon.  These sentences were to run concurrently with the life sentence.  On the 3 incest counts the judge sentenced the defendant to 15-20 years in prison to run from and after the life sentence.  Concurrent with this sentence were 4-5 year prison sentences for indecent assault and battery on a person over 14. 

Assuming the convictions survive an almost inevitable appeal the defendant will be eligible for parole in 30 years. 

Of particular interest in this case is the incest charge.  The Massachusetts incest statute, G.L. c. 272 sec. 17 states that anyone “within degrees of consanguinity within which marriages are prohibited” who engage in sexual intercourse shall be punished by up to 20 years in state prison.  A Massachusetts Supreme Judicial Court case, Commonwealth v. Rahim, 441 Mass. 273 (2004) made clear that sexual intercourse between a step-father and step-daughter is not incest.  Here, there exists a strong possibility that the incest convictions will be overturned.  If that is the case, the defendant will be parole eligible in 19 years as opposed to 30 years.

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On December 11, Framingham Police responded to a call dispatch regarding a dispute.  There they contacted the defendant who began flailing his arms and yelling at the police.  The man was arrested for disorderly conduct.  Framingham Police also learned that the man was wanted on a warrant.  During a pat frisk police located 2 syringes in the defendant’s pocket.  During the booking process police found broken automobile glass in the defendant’s clothing and credit cards in someone else’s name.  It was subsequently learned that this man had broken into 2 cars in another part of Framingham.  The prosecution charged this individual with larceny over $250 and malicious destruction to property valued in excess of $250.  See full article, Metrowest Daily News, December 13, 2008.
 
Several criminal issues are raised by this arrest.  First, possession of a syringe is regulated by Massachusetts General Laws Chapter 94 Section 27.  The law with respect to this section is somewhat ambiguous since the statute was amended in 2006. There is currently no case law in Massachusetts interpreting this statute.  This most likely explains why the defendant in this case was not charged with a crime of this nature.
 
Disorderly conduct is a crime pursuant to Massachusetts General Laws Chapter 272 Section 53.  It is punishable by up to 6 months in jail.  This statute can only apply to conduct that does not involve a lawful exercise of a First Amendment right.  For a person to be disorderly there must be disturbing conduct through acts other than speech.  It is questionable as to whether the defendant’s conduct in this instance of flailing of his arms and yelling at police constitutes a violation of this statute. 
 
Larceny over $250 is proscribed by G.L. c. 266 Sec. 30.  This crime carries a possible 5 years prison sentence if the person is indicted and convicted in the Superior Court.  If the case is kept in the District Court there is a maximum 2 year sentence after conviction.  The article is unclear as to why the defendant was charged with larceny over $250.  The credit cards themselves do not have that value. 
 
Malicious destruction of property over $250 violates G.L. c. 266 Sec. 127.  Here, the property destroyed was the car which likely is worth in excess of $250.  To prove someone guilty of this crime the prosecution must show that the defendant intended the conduct and the harmful consequences of that conduct.  Malicious destruction of property is also a specific intent crime that requires, as an element of the offense, a showing of a cruel, hostile, or vengeful intent in addition to the intentional doing of the unlawful act.

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The Boston Herald reports today that a Massachusetts State Trooper may have committed perjury while testifying at a drunk driving trial in the Quincy District Court.   During cross-examination at a November 24th trial the trooper, Kathleen Carney denied that she was facing any potential disciplinary action.  In fact, Trooper Carney was being investigated for allegations of brutality involving a 35 year old Quincy woman whom Carney had arrested in August of 2008.  Boston Herald writer Jessica Van Sack reported that after a December 1, 2008 hearing Trooper Kathleen Carney was placed on restrictive duty pending a continuing investigation of the brutality charges. 

The following day Carney appeared in the Quincy District Court again in connection with another drunk driving charge.  The prosecution however refused to call her as a witness and the case was dismissed.  At this time it appears that Norfolk County prosecutors will not call Carney to testify on any of their cases on which she is a potential witness.

Perjury in Massachusetts is a crime pursuant to Massachusetts General Laws Chapter 268 Section 1.  In essence, anyone who lies in a judicial proceeding about a matter material to the issue in question is guilty of perjury.  There is a potential 20 year prison sentence if you are convicted of this crime.  The lie for the purposes of the perjury statute is material if it tends in a reasonable degree to affect some aspect or result of the inquiry.  The lie or false testimony does not have to influence a pertinent determination.  Rather, when viewed objectively the testimony must have a reasonable and natural tendency to do so.  Massachusetts courts have held that falsehoods going to credibility of a witness may at times figure as material for purposes of the crime of perjury. 

In cases where the prosecution relies exclusively on the testimony of a police officer there is nothing more devastating to the defense than a lying cop.  Drunk driving cases are typically presented by placing one or two police officers on the stand.  The officers will usually testify that some sort of erratic driving caught their eye causing them to effectuate a stop of the vehicle.  When they approach the vehicle they smell alcohol and ask the suspect to perform some field sobriety tests.  If the person fails in their opinion they are arrested and asked if they want to take a breathalyzer test.  Many times this test is not taken by the suspect and the prosecution’s case rests solely on the officer’s observations.  In those cases, the credibility of the officer is material to the success of the prosecution. 

In many of my drunk driving cases my clients are simply not drunk or impaired by legal standards.  The officers who make the arrests are not familiar with my client’s speech patterns, physically limitations or social habits.  Thus, their objective observations even if truthful may be flawed.  Simply put, they might be incorrect in their assessment of my client’s sobriety.  On the other hand, if possible I will call people who were with my client at the time of the incident to offer testimony about his or her lack of impairment.  Sometimes these witnesses share with the jury personal characteristics about the client that show why someone might incorrectly attribute intoxication to their inability to adequately perform field sobriety tests.  When a case is handled fairly by the prosecution the jury can weigh the competing testimonies.  Typically they are asked to decide whether to believe the police officer who probably has no dealings with the defendant or friends or family members who know whether or not the defendant was actually impaired.  There is no place in justice for lying cops.  In my opinion they are far more dangerous and criminal than the “drunk driver” who they have arrested.  Kudos to the defense attorney who exposed Carney’s abuses and to the prosecutors who refuse to prosecute cases tainted by her arrests. 

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On November 23, 2008 a Westfield, Massachusetts 17 year old high school student was driving a car under the influence of alcohol.  The result was an accident that killed a Westfield High School junior and injured 3 other teenagers.  The driver now faces charges of motor vehicle homicide, operating a vehicle while under the influence of alcohol, operating to endanger and three counts of operating a vehicle under the influence of alcohol causing serious bodily injury.  Reports suggest that the defendant was driving at a high rate of speed when he lost control of his vehicle on a curve and struck a tree.  Charges are now pending in the Westfield District Court.

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On November 15, 2008 a Walpole man was arrested and charged with drug and weapons charges after leading police on a high speed chase.  He had been released after posting bail in the Stoughton District Court.  Then, just last week, the same man was arrested when he was found in possession of heroin.  He is now being held without bail at the Norfolk County Jail in Dedham.  

As to the first case, it was reported that the defendant led police on a high speed chase on Route 24.  When he was apprehended he was found in possession of 31 bags of heroin with a street value of approximately $1,500.  Apparently the quantity was not sufficient to charge the man with trafficking heroin.  After stopping the vehicle police also located a loaded .32 revolver and 11 grams of marijuana.  Police were assisted in stopping Antoine by a truck driver who blocked the vehicle.  Antoine and another were ordered out of the car at gunpoint at which point officers observed a bag of marijuana wedged between the driver’s seat and the door.  

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In July of this year a 43 year old Falmouth man was arrested and charged with enticing a child under the age of 16 for sex and the dissemination of matter harmful to a minor.  His lawyer is trying to get all charges dismissed claiming that the charges against the defendant cannot stand because there was no intent to rape the victim.  The prosecution in this case alleges that the defendant, a convicted sex offender, tried to persuade a girl to watch him masturbate over the internet.  

The Massachusetts child enticement statute is G.L. c. 265 sec. 26(C).  The law states that anyone who entices someone under the age of 16 into or out of a building, vehicle, home or outdoor space with the intent to commit an enumerated crime shall be punished for up to 5 years in prison.  Some of the enumerated crimes are assault and battery, indecent assault and battery, rape and rape of a child.  The word entice has been held to mean to lure, induce, persuade, tempt, incite, solicit, coax or invite. 

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