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Justin Rogers, an 18-year-old from Quincy, and Tyrell Mosley, an 18-year-old from Brockton, have been arraigned on 10 counts of breaking and entering into a motor vehicle and eight counts of larceny under $250. Mosley is also charged with three counts of improper use of a credit card. It is alleged that the two men broke into cars in an apartment complex parking lot over the course of the month and stole a variety of items, including money, prescription drugs and electronics. Scituate and Cohasset police worked on the investigation, which reportedly included video surveillance. Detectives were allegedly able to identify the pair after footage revealed one of them using a stolen credit card. Police were allegedly able to observe part of the license plate of the vehicle driven by the suspects, and the full plate number was identified after further surveillance. Wicked Local reports that both of these men were “transported to the Scituate Police station for booking. Upon their release on bail, they were re-arrested by Cohasset detectives and transported to the Cohasset Police station for booking.”

As a Massachusetts criminal defense attorney, this arrest scenario immediately strikes me as strange. It might be that these men were “re-arrested” by the Cohasset police because the Scituate police were acting outside of their jurisdiction during the initial arrest. Police officers do not have authority to act outside of their jurisdictions unless they are authorized by statute or are conducting a valid citizens’ arrest. There are certain exceptions. One allows an officer who sees an arrestable offense being committed in his own jurisdiction to pursue the suspect into a neighboring jurisdiction to conduct an arrest. Another exception allows an officer sworn in as a special police officer in a second jurisdiction to make an arrest in the second jurisdiction. The third exception allows an officer in one jurisdiction to request “suitable aid” from an officer outside of his jurisdiction. Finally, the last exception allows officers of towns that have entered into mutual aid agreements to arrest in the municipalities included in the agreement. These exceptions are laid out in Massachusetts General Laws Chapter 41, section 98A, Chapter 41, section 99, Chapter 37, section 13, and Chapter 40, section 8G.

In this case, it might be that the Scituate and Cohasset police departments have some sort of mutual aid agreement, given that they were working together on this investigation. This might not be so, however, because it doesn’t seem to make sense that Rogers and Mosley were arrested by Scituate officers, released, and then re-arrested by Cohasset officers. This might be one ground for a motion to suppress evidence or a motion to dismiss.

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A six year old Lynn, Massachusetts girl needed shoes brought up to her elementary school. The girl’s mother, Rosilda Lopez was called and became upset. The twenty eight year old mother went to the school and hit the girl in the face two times. The reason: wearing the wrong pair of shoes. Another child witnessed the incident. This child told school officials. It turns out that a school surveillance camera caught Lopez committing the act. Lopez has now been charged with two counts of Assault and Battery in the Lynn District Court.

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Lynn, Massachusetts Violent Crimes, Assault and Battery Defense Law Firm

Lynn, Massachusetts Criminal Defense Attorney

So here is the question raised by this case. Just how far can a parent go in physically disciplining his or her child? The answer is not easy. Spanking is a form of Assault and Battery. Yet spanking has not been outlawed in Massachusetts. In 2007 there was a bill placed before the Massachusetts Legislature proposing a ban on spanking. That bill never passed. Nevertheless, in Massachusetts Assault and Battery cases are brought against parents who have hit their children. In my opinion the line between “spanking” and Assault and Battery has not been adequately distinguished by Massachusetts law. There is a proposed jury instruction which read that a “parent, or one acting in the position of a parent and who has assumed the responsibilities of a parent, may use reasonable force to discipline (his/her) minor child. However, a parent may not use excessive force as a means of discipline or chastisement.” Yet all of the Massachusetts cases that discuss spanking conclude that the conduct by the defendant was excessive and thus did not constitute spanking but rather an Assault and Battery. As a Massachusetts Criminal Lawyer I would be concerned any time law enforcement got involved in a matter that the parent characterized as a spanking. Chances are strong that such cases will be prosecuted and most judges will not be helpful to the defense in resolving the case.

Here however the situation is likely different. Lopez’s actions are not likely to be justified if 1) the videotape shows excessive physical conduct on her part and 2) if the reason was wearing the wrong pair of shoes. Additionally, the involvement of the Department of Children and Families will complicate the defense. Lopez will want to cooperate with DCF to prevent losing custody of her daughter. There is however a risk to doing so with a pending criminal case. Lopez has a Fifth Amendment privilege that most lawyers would advise her to invoke at least until the criminal case is resolved. The conflicting dynamic between the DCF case and the criminal matter will likely lead to an expeditious resolution of the Assault and Battery case.

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Last week’s Taunton Gazette reports that Leonardo Sanchez, of Lowell Avenue in Providence, Rhode Island has been charged with Trafficking Heroin Over 200 Grams as well as Carrying a Dangerous Weapon. Apparently the police had been investigating Sanchez for over six months. It is alleged that he had been selling large quantities of Heroin to one particular customer for that period of time. Authorities had information that last week Sanchez would be in possession of a significant amount of Heroin at the Silver City Galleria Mall in Taunton. Following up on their lead, the officers set up surveillance and observed Sanchez meet up with his contact. He was grabbed when he left the mall. In his possession the police found over two hundred grams of Heroin as well as a pair of brass knuckles. Sanchez was arraigned in the Taunton District Court where bail was set at forty thousand dollars cash. This case will eventually be prosecuted in the Bristol County Superior Court in Fall River as the district court has no jurisdiction over Massachusetts Trafficking Cases.

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Taunton, Massachusetts Heroin Trafficking Defense Law Firm

Bristol County Massachusetts Drug Crimes Defense Attorney

As a Massachusetts Criminal Lawyer there is an abundance of information that I would need to obtain before deciding how to proceed with the defense in this case. What is obvious is that Sanchez’s best chances for success are to show that the Search and Seizure was unlawful. This can only work if the facts of this case support the constitutional challenge. It is clear that Sanchez was stopped in the legal sense. To justify the stop the district attorney needs to show that reasonable suspicion for the police to believe that Sanchez was committing or was about to commit or did in fact commit a crime existed at the time of the stop. Reasonable suspicion can arise from the police officer’s personal observations. It can also originate from information supplied by an informant. The latter appears to be the case here. I base that assumption on the fact that the police had knowledge that Sanchez had been supplying someone regularly with Heroin for at least six months, that surveillance had been established prior to Sanchez’s arrival and that he was meeting a customer (probable the informant) at the mall. Someone had to alert that police to the time, date and details of this activity in order for them to set up this operation. If this is the case then the district attorney will have to show that the information was credible and that he or she had a basis of knowledge to establish that Sanchez would be in possession of drugs at the mall. Alternatively, if the stop of Sanchez amounted to an arrest, then the prosecution will have to show that it had probable cause to make the arrest. This is a tougher standard to overcome and could be problematic for law enforcement.

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According to The Lowell Sun, following his arraignment in the Middlesex County Superior Court, a Lowell Massachusetts man, Neil Sylvester was ordered to be held on $25,000.00 cash bail after being being charged with assault and battery, stalking (a subsequent offense) violating a restraining order, (four counts), and three counts of witness intimidation. Sylvester, who was already in jail for stalking his former girlfriend, thought it was a good idea to send her metal rods from his hand to demonstrate his lover for her. Apparently, his former flame did not like the present and contacted the authorities. Sylvester found himself facing criminal charges for his ill advised behavior.

In Massachusetts, Massachusetts General Laws Chapter 265 Section 43 indicates that an individual can be charged with stalking if he or she willfully and maliciously engages in a “. . . knowing pattern of of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury. . . ” In the event that a defendant is found guilty of stalking he or she can be sentenced to up to five years in state prison or by imprisonment in the house of correction for not more than two years. The crime of stalking is a felony because a potential sentence is a state prison sentence.

The charge of violating a restraining order is a misdemeanor because the potential penalty is house of correction sentence. In Massachusetts, a restraining order is a civil order however, in the event that an individual is charged with violating the order a criminal charge can issue. There are currently two types of restraining orders that an individual can apply for in Massachusetts. The more “traditional” order is referred to as a “209 A” restraining order. In order for someone to apply for that type of court order the parties must be related, married, roommates or have been involved in a substantial dating relationship. In order to get that type of order an applicant must initially convince a judge that he or she is in reasonable fear of immediate physical harm from the defendant. Typically, a temporary order is issued by a judge and a further hearing date is set so that the defendant can appear to oppose the order if he or she choses to do so.

The other type of order is called a 258 E Harassment Prevention Order. There is not requirement that the parties be involved in any type of personal relationship for this type of order to issue. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment. The first paragraph is the most common paragraph that a plaintiff proceeds under.

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Billerica police arrested seventy-two year old Ernest Frobese late last week for failure to register as a sex offender. Frobese’s pre-trial conference date is scheduled for January 23. A mistrial was declared two years ago after the court found Frobese incompetent to stand trial for failure to register. Frobese was sent to Bridgewater State Hospital to be held until he became competent or for at least 6 months. On Monday, November 5, 2012 Frobese was arraigned and released on personal recognizance.

Frobese was convicted in 1995 for indecent assault and battery on a child, and he is classified as a Level 3 sex offender. Initially, Frobese’s legal guardian would register for him. In 2007, Frobese became obligated to register on his own, and he allegedly failed to do so in 2008. He was tried on the 2008 failure to register charges in 2010. His defense attorney argued that Frobese was not criminally responsible. A psychologist testified in the 2010 trial that while Frobese is articulate and intelligent, he suffers from paranoid delusions.

As a Massachusetts criminal defense attorney, this report raises a number of issues for discussion. One issue involves the government’s burden of proving actual knowledge of the registration requirement. The Appeals Court recently clarified that the prosecution has to prove actual knowledge and that it is not enough that a reasonable person would be aware of the registration requirement. In this case, it could be difficult for the government to prove that element, particularly in light of Frobese’s mental health issues and the fact that his guardian registered for him in the past. An experienced criminal defense lawyer will conduct a careful review of Frobese’s Sex Offender Registry Board (SORB) records for indications that he did not actually know that he was required to register.
Another issue involves competency to stand trial. The due process clause requires that a person understand the charges against him and be able to participate in his own defense. The issue of competency can be raised by any party and at any stage. Defense counsel must consider carefully whether to raise competency issues, as there can be undesirable consequences. For instance, there is no right to bail during the competency evaluation period. A defendant might sacrifice speedy trial rights, and/or he might be committed for a longer time than he would have received as a sentence. Massachusetts General Laws chapter 123, section 15 governs the procedure for competency evaluations. Under section 15(a), the first step is an outpatient evaluation which usually takes place in the court clinic. If the court finds that further evaluation is necessary, section 15(b) provides for commitment for further examination, which should not be longer than 20 days. If, after the inpatient evaluation, there is a real doubt as to competency, the court may hold an evidentiary hearing under section 15(d). It is important to note the distinction between criminal responsibility and competency to stand trial. Criminal responsibility involves state of mind at the time of the crime’s commission, whereas competency to stand trial involves mental condition at the time of trial.

In Frobese’s first trial, he was apparently found incompetent and a mistrial was declared. Where a defendant is found incompetent, the case is stayed until he becomes competent or until the case is dismissed. Here, Frobese was reportedly committed to Bridgewater State Hospital. Bridgewater is for males requiring “strict security,” and as a result, most defendants would tend to prefer commitment to a less uncomfortable facility.

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According to a report in Wicked Local, a Massachusetts teacher’s aide has been arrested and charged with some Drug Crimes and Procuring Alcohol for a Minor. It is alleged that the defendant, Jennifer Olsen, twice smoked marijuana with several students. It is further alleged that Olsen provided the drugs. Authorities also claim that the defendant gave alcohol to underage students. Part of the prosecutions’ case in based on statements Olsen made through social media and emails. Charges of Procuring Alcohol for a Minor, Possession With the Intent to Distribute Marijuana, a School Zone Violation and Distribution of Marijuana are now pending against the defendant in the Concord District Court.

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Concord, Massachusetts Marijuana Distribution Defense Law Firm

Massachusetts Criminal Lawyer Who Defendant School Zone Violations

The Massachusetts School Zone Law was recently amended to more fairly reflect the original design of the law. The old law made it a crime to distribute or possess with the intent to distribute drugs within one thousand feet of a school zone. The hours of operation of the school were irrelevant and a conviction for this crime required a two year house of correction sentence to be imposed from and after another committed sentence. The law was harsh, unforgiving and unfair. This past summer the law was amended. Now, the illicit activities must occur within three hundred feet of a school zone and the hours implicating the law are five in the morning to midnight. There is still a mandatory two year sentence however there is a provision permitting parole after the person has served one half of the maximum sentence. There also exist circumstances wherein a person is not eligible for parole, such as if violence or a weapon was used during the commission of the crime.

So what exactly does this mean for Jennifer Olsen? If the district attorney’s insists on going forward on the School Zone Violation Olsen will either have to go to trial and win or go to jail. In most instances, particularly where a person does not have a criminal record, the district attorney’s office “breaks down” the School Zone Charge on the condition that the accused plead guilty to the underlying drug charge. Sometimes the prosecution agrees to reduce the felony to a misdemeanor and will consent to having the case continued without a finding. In that situation, if all goes well for the defendant, he or she will not have a criminal record once the probationary period is successfully completed. Here however, this situation differs. Olsen was in a position of trust that was violated when she provided drugs and alcohol to minors. This was also done on school property. The district attorney himself commented on how troubling these allegations are particularly where Olsen was entrusted to help educate students at this school. If however this case is difficult to prove from a legal perspective, then perhaps a reduction in charges will follow.

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In 2003 a Plymouth County Massachusetts jury sitting on a murder case in Brockton convicted Solange Anestal of murder in the first degree. The facts of the case are as follows. The defendant and her boyfriend lived together in an apartment in Brockton, Massachusetts. On June 26, 2003 the two were home with two friends. Anestal and her boyfriend, Petitry got into an argument. Petitry did not want her going out, where she would likely spend the night with other men smoking pot. Anestal complained over the phone to a friend that Petitry was treating her like a slave, refusing to permit her to leave the house. Petitry threatened to move out and started packing. He and the defendant argued loudly. One of the friends in the house saw Petitry holding Anestal down on the bed. She was spitting at him, telling him to move. The friends heard glass break and then saw Anestal stab Petitry in the chest with some broken glass while stating that she was going to kill him. Petitry died from the stab wounds.

Anestal defended on the theory that at the time of the crime she lacked criminal responsibility. In particular, she claimed that she suffered from post traumatic stress disorder resulting from years of emotional and physical abuse. The abuse started when she was one year old and continued until the time of the stabbing. The abuse involved family members and several men with whom she had relationships. Medical testimony supported the defense. The jury rejected the defense finding that Anestal acted with deliberate premeditation.

On appeal the defendant raised several issues. Two of these issues establish the basis for reversing the conviction. The first, that the judge improperly admitted prior bad act evidence against Anestal. Particularly that she had hit her young son twice and that the defendant was the subject of a DSS investigation. The second involves the trial judge’s refusal to instruct on the excessive use of force in self-defense. If the jury believed this to be the case it could properly have convicted the defendant of voluntary manslaughter instead of murder.

Read Case: Commonwealth v. Anestal.pdf

Of particular interest to me as a Massachusetts Criminal Defense Lawyer is the prior bad act issue. All too often judges in the trial courts in Massachusetts will permit the introduction of prior bad act evidence against a defendant. They rationalize that doing so is permitted when the prosecution is offering the bad act evidence “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” This type of evidence is also admissible to rebut contentions made by the defendant at trial. The threshold for admitting such evidence is low and rarely will a case be reversed on this basis. This case however is different. The Supreme Judicial Court correctly recognized that admitting this evidence likely had an improper impact on the jury. The prior bad act evidence in this case told the jury more about Anestal than they were entitled to know. The court believed that such information was unfairly prejudicial and that the right to a fair trial was violated.

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Police in the Weymouth and Cohasset areas have made their third arrest as part of a lengthy investigation into Drug Dealing Activities in those Massachusetts communities. Enrique Camilo of Boston was arraigned in the West Roxbury District Court on charges of Trafficking in Cocaine, Second and Subsequent Offense. His bail has been set at one hundred thousand dollars. Camilo was arrested last week after authorities found just under a pound of cocaine in his home. The arrest and arraignment occurred on October 26, 2012, eight days after a Search Warrant was executed at Camilo’s home. The search revealed over four hundred grams of cocaine, some cutting agents and assorted Drug Paraphernalia. Materials in the home link Camilo to the dwelling however he was not present at the time of the search. Camilo is also being charged in Norfolk County for another Massachusetts Cocaine Trafficking Case that is unrelated to this matter. It is alleged that the drug trafficking activities originated in Boston and were consummated in Cohasset. Others charged with Cocaine Trafficking as a result of this investigation are Gabriel Martinez and Rafael Torres. Martinez is from Dorchester.

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Massachusetts Cocaine Trafficking Defense Law Firm

Drug Trafficking Defense Lawyer in West Roxbury

Any Massachusetts Criminal Defense Lawyer will tell you that he or she loves a case like this one. Whenever a Search Warrant is executed at a home at a time when the defendant is not present there is a real chance that a jury can be convinced to acquit the defendant. Jurors want significant proof before they convict someone of a major crime. And yes, Drug Trafficking in Massachusetts is a major crime. Jurors know this. They know that drug trafficking convictions implicate mandatory minimum jail sentences. As such, juries want proof that the accused committed the crime for which he stands trial. They want fingerprints or DNA on the drugs or on the Drug Paraphernalia. The district attorney will likely have papers found in the home linking the accused to the property. But in all likelihood there will be ample evidence that others lived in or had access to the home. Utility bills, rental agreements, mail, personal effects, clothing and things of that nature will not all point to the defendant as the person responsible for trafficking these drugs. If the prosecution has evidence that the defendant was observed engaging in what are believed to be drug activities around the time the warrant was issued the jury will wonder why he was not arrested at that time. This concern often leads to not guilty verdicts. The failure to arrest suspects in drug cases at the time of the crime can be fatal to the prosecutor’s case. The delay between finding the drugs and arresting the defendant works to the defendant’s advantage in this situation.

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Lashanta Magnusson, former treasurer of a Tewksbury nonprofit Friends of Special Ed Kids (FOSEK), was arraigned on embezzlement charges Friday, according to the Lowell Sun. The prosecution alleges that Magnusson used the organization’s debit card to purchase personal groceries, gas, and other items and to make her car loan payments. The investigation began in September after members of the FOSEK board reached out to Tewksbury police with their concerns. The board members allegedly noticed improprieties in the organization’s checking and savings accounts. Magnusson, as the treasurer, was allegedly the only person with access to both accounts. FOSEK’s CEO and president reportedly became suspicious on September 10, when he made a deposit and noticed that the balance was unexpectedly low. It is alleged that the unauthorized withdrawals date back to April or even as far back as 2010 and that the total amount was more than $5,000. Electronic purchases made with the debit card allegedly include pizza and items from Walmart. Magnusson’s pre-trial conference is scheduled for January 11.

In this case, it is worth noting that the paper reported that Magnusson became a suspect because she was allegedly the only person with access to both the checking and the savings accounts. It does not say whether or how many other people had access to one, but not both, accounts. Most debit cards allow a person to choose which account to withdraw funds from, so if other personnel had debit cards, it would seem that others would have access to both accounts. It would also seem that, even if no one else had access to both accounts, two persons with access to one account each could have been responsible.

When making an electronic purchase using a debit card, often one is able to choose whether to treat the purchase as debit or credit. This may be important if the alleged purchases were made using the credit option because the Supreme Judicial Court has said that credit does not count as “property” within the meaning of G. L.c. 266, §30, the Massachusetts larceny statute. The difference between larceny and embezzlement lies in whether a person was or was not rightfully in possession of the property when a taking occurred. Embezzlement involves an unauthorized taking of property where the defendant was rightfully in possession. The prosecution has to prove that a defendant intended to permanently deprive the owner of the property. Larceny by embezzlement over $250 is a Massachusetts felony. Where the amount in question is $250 or less, the crime is only punishable by up to one year in jail or a fine. Here, Magnusson is apparently facing felony embezzlement charges, since it is alleged that the value of the property was more than $5,000.

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A twenty year old man claiming to be homeless was arrested yesterday after a routine Motor Vehicle stop. According to the Wayland Patch, on officer conducted a stop on Route 20 and recognized the passenger as someone pictured in a “Wanted Poster”. The man was sought for an alleged Carjacking having occurred last Wednesday. Apparently, on October 24, 2012 Wayland, Massachusetts police received a call from a victim stating that the defendant and another got into his vehicle and tried to Carjack him. The victim resisted the assailants attack and was able to identify the older subject right away. The second suspect remains at large. He is said to be mid to late teens. The defendant has seven warrants. Some are out of the Concord District Court and the others in the Framingham District Court. Charges on this case include Carjacking, Assault and Battery by Means of a Dangerous Weapon, Conspiracy and Attempt to Commit a Crime.

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Framingham, Massachusetts Violent Crimes Defense Law Firm

Concord, Massachusetts Criminal Defense Attorney

The crime of Carjacking in Massachusetts is a felony proscribed by Massachusetts General Laws Chapter 265 Section 21A. The district attorney prosecuting the case must prove two elements beyond a reasonable doubt to prove that crime. The first is that the accused had the intention to steal the vehicle. The second is that the defendant either assaulted or confined or maimed or put in fear the victim for the purpose of stealing the vehicle. This crime is often difficult to prove. As such, prosecutors will charge related crimes such as Assault and Battery when filing the complaint or indictment for Carjacking. Carjacking is usually a random crime where the defendant and victim do not know one another. It is difficult to understand the relationship, if any between the accused and the vehicle owner in this case based on this article alone. It does appear however that the police had a pretty good idea who might have been involved once they received the report. Showing photographs of suspects to victims typically assumes a suspicion on the part of law enforcement officials that at least one of the individuals shown in the array was involved in the crime. This is particularly true in the suburbs where the pool of people involved in criminal activity is somewhat small. In the absence of the victim’s ability to make an independent identification of the defendant, there might be some challenges to the identification process that result in a dismissal of the Carjacking charge. Any suggestion by the police that the defendant was the person responsible for the crime taints the identification making suppression a viable matter. An Experienced Massachusetts Criminal Attorney will take this into account when preparing a defense.

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