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Earlier today the Massachusetts Supreme Judicial Court reversed a first degree murder conviction in the case of Commonwealth v. Santos. Santos had been convicted on a felony murder theory. The Court found the following facts:

On July 26, 2005 shortly after 5:30 in the evening the victim was robbed and shot in the chest on a busy downtown Lowell street. Despite the presence of many witnesses no one was able to identify those involved in the crime other than to state that they were young Hispanic males. Santos’ flight from the scene was aided by and individual who eventually testified for the prosecution. That witness, Jesus Antonio Marquez told the jury that he was the getaway driver and the Santos and co-defendant Jose Luis Claudio Benitez knew the victim to be a heroin dealer from whom they had purchased heroin on multiple occasions. On the day of the crime Benitez arranged with the victim to buy a small amount of heroin. Benitez later changed the plan suggesting that he, Santos and Marquez rob the victim. Marquez drove. Benitez handed a gun to Santos. There was an expressed intention not to shoot the victim. Near the crime scene Santos and Benitez exited the car. Marquez heard a shot fired. The two defendants got back into Marquez’ car several minutes later. Benitez asked Santos why he shot the victim. The three went to Benitez’s sister’s home. Benitez told his sister that he told Santos not to shoot the victim and that “the other guy shot someone” notwithstanding his protestations. One of the victim’s drug customers testified to purchasing heroin from the victim shortly before the shooting and that he also saw Santos in the area. He identified Santos from prison photographs. Santos was arrested. He asked the police what for. After receiving a response he asked “is that it?”. Santos denied knowledge of the crime and admitted that he had been incarcerated for drugs. Marquez told the police about the robbery, the crime and the escape. Benitez and Santos were tried together.

On appeal Santos argued that the statement he made while in police custody was taken in violation of his Fifth Amendment rights. At one point during the interrogation Santos told the police “I’m not going on with this conversation” and “I want a lawyer…”. The officers left the room. They returned, failed to honor the request for counsel and continued their questioning. The Court found this to be violative of Miranda and held that Santos’ statement should have been suppressed. The invocation of the right to counsel must be honored. The admission of the statement further introduced, improperly, multiple references to Santos’ prior bad acts. Finally, the statement contained police accusations that Santos was lying as well as references to unnamed witnesses who knew that the defendant shot the victim. All of this required a reversal of the conviction.

Santos’ appeal also challenged the admissibility of Benitez’ statements to his sister that he “told [Santos] not to do it” and that “[Santos] shot the kid”. The Court held that such statements should not have been admitted as evidence. The statements were self serving and designed to distance Benitez’ involvement from Santos’. Furthermore, the statements were not part of the joint venture and should have been excluded. Benitez’s post arrest statements implicating Santos in the crime was also error. The statements were made after the joint venture had ended and after a joint venturer had been apprehended thus making the statements inadmissible. Admission thereof required reversal.

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Haverhill, Massachusetts Jose Reyes was sought pursuant to a warrant for Carrying a Firearm, Possession of a Firearm, Possession of Ammunition and Armed Assault with the Intent to Murder. All of these charges against the twenty one year old are pending in the Lawrence, Massachusetts District Court. There is also an Assault and Battery by Means of a Dangerous Weapon case pending in the Haverhill District Court. In Lawrence it is alleged that Reyes shot Pedro Valentin near the intersection of Dorchester Street and South Union Street. The article mentions nothing about the facts of the Haverhill case.

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Obviously the more serious case is the case pending in the Lawrence District Court. Anytime someone shoots someone else the district attorney will charge the crime of Armed Assault With the Intent to Murder. The reason stems from the general belief that anyone who shoots someone else did so trying to kill that person. While that is not always the reasons behind the shooting the case will be charged as such. Additionally, the crime of Assault and Battery by Means of a Dangerous Weapon will be filed as well.

The crime of Armed Assault with the Intent to Murder in Massachusetts requires the district attorney to prove the following elements beyond a reasonable doubt: 1) that the accused did commit an assault on someone. An assault is the act of threatening to commit a battery and a reasonable fear on the part of the victim that he or she was going to be hit; 2) that the defendant was armed with a dangerous weapon and 3) that the accused had the specific intent to murder the victim. As I have mentioned in past posts, this crime is nearly impossible to prove. Consequently, the prosecution tends to ask for the judge to instruction on the lesser included offense of Armed Assault with the Intent to Kill. With the latter crime there is no need to prove malice.

Getting away from the legal aspects of the crimes, here is where the prosecution tends to have problems with successfully prosecuting Violent Crimes cases such as this one. People are reluctant to come into court and testify against someone who shot someone else. Victims are especially reluctant to come into court and identify the shooter for a many reasons. They are not always afraid of the consequences of their testimony. In fact, they might have something to hide. What specifically occurred between the two that caused the shooting? Did the victim have a gun? Or perhaps the weapon used by the defendant was initially produced by the victim. Was there some sort of illicit activity that preceded the shooting that the victim wants to distance himself from? Often this is the case. Regardless of how these cases appear, they are not that easy to prove.

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This past Monday night Framingham, Massachusetts police were on patrol on Waverly Street when they noticed a Honda with “extremely dark” tinted windows. This observation prompted the officers to pull the car over and contact its occupants, Christian Joel Mercado Vega, Fe Sanchez and Wilfredo Ortiz. All of the defendants currently live in Framingham. Officers report that Ortiz appeared nervous and that Vega did not give his correct name or birth date. Vega was then ordered out of the car. Officers saw cocaine where he had been sitting. This motivated the officers to seize a duffel bag. Inside the duffel bag was over one pound of cocaine; specifically five hundred sixty four grams. During the search of the car a digital scale was located. All defendants have been charged with Trafficking Cocaine Over 200 Grams, a Class B Substance. The case is pending in the Framingham District Court. It will ultimately be prosecuted in the Middlesex Superior Court in Woburn.

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There is a statute in Massachusetts that limits the degree to which window tinting is acceptable. Massachusetts General Laws Chapter 90 Section 9D makes unlawful nontransparent or sunscreen materials affixed to windows in certain parts of cars. There is a thirty five percent visibility threshold applicable to this material. The Massachusetts Appeals Court has held that there is no need to measure the tint with a meter. Rather, the test is whether “is whether the officer reasonably suspected, based on his visual observations, that the tinting of the windows exceeded the permissible limits of Section 9D.” While this might appear to be a problem to constitutional challenges to searches there are ways to get a judge’s attention to this issue. Videotaping a replicated crime scene can be helpful. When vehicles with tinted windows travel in well lit areas the interior of the vehicle becomes blatantly visible. Imparting this fact to a judge at a Suppression Hearing calls into question the officer’s credibility and might result in a suppression of illegally seized evidence. An Experienced Massachusetts Criminal Lawyer will investigate the circumstances of the stop to see if this will be an effective strategy at an evidentiary hearing.

Something else comes to mind when reading this article; that being the validity of the Exit Order. In Massachusetts police cannot order a passenger from a car (Vega) absent a reasonable apprehension of danger to the officer or others. There is no indication that such exigency existed in this case. Keep in mind, if Vega is not ordered out of the car then no one sees any cocaine. Ortiz would have been cited for the civil motor vehicle violation and sent on his way.

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Just hours ago the Wareham Week reported that Jonathan Rose, a twenty year old Bourne, Massachusetts resident was arrested and charged with Trafficking Heroin and Conspiracy. According to the report, shortly after ten o’clock at night officers patrolling Route 195 saw the car being operated by Rose committing numerous Massachusetts Motor Vehicle Violations. Officers said that the car was going ninety in a sixty five, following another vehicle too closely and Operating Recklessly. In the passenger seat was Keith Boucher, a thirty six year old Wareham, Massachusetts resident. Boucher was also charged with Trafficking Heroin and Conspiracy. The case is pending in the Wareham District Court. It will be indicted and ultimately prosecuted in the Plymouth County Superior Court in Brockton.

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Did you ever read one of these articles and think to yourself “why would anybody carrying a large quantity of drugs drive like such an idiot?” While that is perhaps the most natural reaction of the lay person a Massachusetts Criminal Lawyer will read this article much differently. I always believe that the stop and search of the car was based on profiling or a “tip” that would not survive a constitutional challenge and that the reported Motor Vehicle Crimes are pretenses used to justify the illicit stop. While showing a judge that the officers are not being truthful is not always easy to prove the challenge of doing so has been facilitated in recent years through security video cameras and traffic cameras. Depending on the location of the stop you might be able to show that the alleged traffic violations never occurred. If successful the Search and Seizure of the Drugs will be suppressed and that case likely dismissed. Accessing these cameras and their contents at the earliest possible moment is often critical as rarely does this equipment store the data for a extended period of time.

The article leaves some other things to think about. What right did the police have to search the car and its occupants after the stop? Where did they find the drugs? What evidence suggests that the passenger, Boucher was Trafficking Heroin or conspiring to violate the controlled substances laws? Did the police have information that they failed to disclose in their reports that might impact their credibility and the validity of the stop and search? I have no doubt that an experienced Massachusetts criminal defense lawyer will gets answers to these questions and provide these defendants with an excellent defense.

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The Norwood, Massachusetts police have a Facebook page. It is young, having been launched in late June of this year. Yet already some of its major stories including arrests for Massachusetts Criminal Charges are being posted to the page and hitting other media outlets in the area. Its Friday post references a fairly large local drug bust wherein five Norwood, Massachusetts residents were arrested. All now face Massachusetts Drug Charges ranging from Possession of Heroin, a Class A Substance to Possession With the Intent to Distribute Heroin, a Class A Substance to Intimidation of a Witness.

Early Friday, a Norwood officer applied for and obtained a Search Warrant targeting a Washington Street home. During the execution of the Search Warrant officers found Drug Paraphernalia and some Heroin. The registered tenant of the apartment was Andrew Costello, a twenty five year old male who has been charged with Possession of Heroin. Shortly thereafter officers found and arrested Matthew Bretti at a nearby location. Bretti had some outstanding warrants and has been charged with Larceny, Intimidation of a Witness and Possession With Intent to Distribute Class A. Another associate of Costello and Bretti, Zachary Foley was observed engaging in a drug transaction involving Lindsey Maguire and Daniel Watson. Foley was charged with Possession With Intent to Distribute Heroin. Maguire and Watson have been charged with Conspiracy to Violate the Massachusetts Drug Laws. The cases are now pending in the Dedham District Court.

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Lawyers who defend Drug Cases in Dedham District Court

What I find truly amazing these days is just how quickly new stories get published, especially those involving criminal accusations. This story was published to a Facebook page on Friday. It was quickly picked up by the Patch and I imagine Wicked Local and others will report the news shortly if they have not already done so. As a Massachusetts Criminal Lawyer I would like to see some of these outlets, particularly those associated with law enforcement publish resolutions of those cases that are favorable to the accused so that they can restore their names. In particular, it would be great to see acquittals and dismissals posted. It would be encouraging to see these outlets report when mistakes by law enforcement were made or when “victims” recant. To the accused, a favorable case disposition, especially dismissals and acquittals should be made as public as the initial arrest. This might help them not only restore their reputations but show perspective employers that the negative publicity that is revealed with a Google search can be qualified or perhaps renounced. As a Massachusetts Criminal Defense Lawyer I pride myself on the results my office regularly gets for our clients. Hopefully, one of these days prosecutors and the police will publicly acknowledge when they have made mistakes, particularly in those situations where the arrest and initiation of criminal charges was made public.

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The Lawrence Eagle Tribune reported that Daniel Linnell III of Danvers will spend the next eighteen months on probation for hitting his son in a movie theatre last August. After the manager received complaints, the defendant was arrested at the Danvers theatre and charged with assault and battery. According to the paper, witness saw the frustrated father hit his four year old son on the head causing his drink to fly from his hand. In the Salem District Court, Linnell’s defense attorney asserted that the father swung at the child to prevent him from hitting him in the groin.

As in most situations, there were two sides to this story. On one hand, the father, defendant, claimed that he was just protecting himself from his child. On the other hand, on the day of trial two witnesses appeared prepared to testify that they saw Linnell strike the child, however, did not see the child hit him in the groin. Apparently, concerned with what the outcome would be, the father opted to accept responsibility and have his case continued without a finding for eighteen months. As long as Linnell completes an anger management course, does not get rearrested, enrolls in career counseling and does not abuse children the case will be dismissed. Thus, the defendant avoided the possibility of a conviction if the case had gone to trial.

If you have been charged with any crime in Massachusetts it is imperative that you have an experienced Boston area attorney on your side. Investigating a case early on and evaluating all of the evidence is critical in the early stages of a case. Depending on the circumstances, a defense attorney can file discovery motions, motions to suppress evidence, motions to suppress evidence and motions to dismiss.

For a defendant who is charged with assault and battery, the most common defenses are self-defense, defense of another and misidentification. Based on the available information in the Linnell case, it appears that a viable defense would have been self-defense. In the event that a case of self-defense or a defense of another is assorted, the Commonwealth must not only prove the case beyond a reasonable doubt but they also must prove that the defendant did not act in self-defense beyond a reasonable doubt.

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This past weekend a fight erupted at the Surfside 5, a bar in Salisbury, Massachusetts. According to a report in the Lawrence Eagle Tribune a Methuen, Massachusetts police officer, Shawn Tardif and his wife were at the bar with friends. Also at the bar was a group of women celebrating a woman’s pending engagement. Interaction between the groups became contentious. Two versions of the events have been reported. One version suggests that the wives from Tardif’s group were jealous after women from the bachelorette party started to flirt with their husbands. At one point Tardif’s wife was hit with a drink thrown by a woman named Nicole Morrison. Tardif tried to help his wife as did one of his friends. Morrison then bit the friend. Another version supported by other patrons at the bar have Tardif and his friend flirting with the women attending the bachelorette party and being asked to leave by these women.

Regardless of the origin of problem it is alleged that Tardif grabbed Morrison, threw her to the floor of the bar and dragged her by the hair. One of her earrings was ripped out as well. Responding police officers saw what was described as a “clump of hair” Tardif ripped out of her hair. The article also states that a security guard trying to stop the melee was struck in the mouth by Tardif. Disc jockey equipment with a value of over two hundred fifty dollars sustained damage as well. There might be a security videotape that will show how the incident unraveled. Tardif has been charged with Malicious Destruction of Property Over $250, a felony in Massachusetts as well as Assault and Battery. The case is pending in the Newburyport District Court.

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So what is going to happen to Mr. Tardif? That depends on several factors. The footage on the surveillance or security video might be supportive of the affirmative defense of “defense of another”. If Tardif was properly defending his wife and used no more force than necessary to accomplish that goal this defense might be asserted at trial. An Experienced Massachusetts Criminal Lawyer will want to interview the patrons present at the bar during the incident. Does their version of the events support Tardif’s or Morrison’s? Will a complaint against Morrison issue? If one does, she might choose to invoke her Fifth Amendment privilege to remain silent thereby making proof of criminal activity against Tardif more difficult to prove. If the Salisbury police do not apply for a complaint against Morrison Tardif certainly can and probably will. How credible are the people in Morrison’s group? Do any of them have criminal histories that bear on the issue of their credibility?

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Massachusetts State Police conducted an investigation into drug activities at 193 Campbell Avenue in Revere during the month of July. They had information that Luz Ramirez and Alexander Uran, occupants of that address had been selling drugs. A Search Warrant was granted permitting police to search the home. Yesterday afternoon police watched as Uran conducted a drug transaction in his neighborhood. Apparently officers had seen Uran engage in this activity on multiple occasions during their investigation. Officers confronted Uran and advised him that they had a warrant to search his home. During the search officers located in excess of 14 Grams of Oxycontin a large quantity of cash and some Drug Distribution Paraphernalia. Uran was immediately arrested. During the execution of the Search Warrant Ramirez entered the dwelling. She too was arrested. The cases are currently pending in the Chelsea District Court. It is expected that they will be indicted and the prosecution will take place in the Suffolk County Superior Court in Boston. Charges of Trafficking Cocaine, Trafficking Oxycontin and Conspiracy are mentioned as being prosecuted in the article.

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From reading this article it appears that the success of the district attorney’s case will lie on several factors. The validity of the Search Warrant is always scrutinized by the Experienced Massachusetts Criminal Lawyer. Did the affidavit provide sufficient probable cause to enable the magistrate or judge to constitutionally issue a Search Warrant? Here is something else to look at. What did the police see and perhaps more importantly document during the course of their month long investigation? What was the individual involvement of the parties? What did Uran do? What did Ramirez do? Were the observations of the officers memorialized in any way; i.e. were they photographed or videotaped. Keep in mind, as I have mentioned in prior blog posts, simply being present when a search warrant is executed or living in a home out of which drugs are sold does not amount to proof that everyone living in the structure was actively involved in the crime. There must be more. The prosecution must show an intent and actual participation in some form before its case can be submitted to a jury. The article suggests that Ramirez did not more then live with Uran and that the two had some sort of relationship. This does not give rise to provable Drug Trafficking Charges in Massachusetts. I would be very interested in reading the police reports in this case to see what observations the officers made during their investigation that suggest in any way Ramirez’s criminal responsibility for these crimes.

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heroin.jpgTwo days ago Lawrence, Massachusetts police in an unmarked cruiser saw an Infinity driving through Prospect Hill. Inside they saw a man and a woman. A second car containing four people met up with the Infinity, pulling alongside of it in a manner where the drivers of each vehicle could physically touch one another. This happened around two o’clock in the afternoon. Officers reported that they could see the drivers of both vehicles make an exchange, hand to hand, that they believed to be a drug transaction. Once the cars separated surveillance teams stopped both cars. The occupants of the Infinity admitted to purchasing drugs. The female occupant, Michelle Lamothe confessed to secreting the drugs in her bra. She then produced the substance and surrendered it to the police. It is Heroin. Lamothe has been charged with Possession of Heroin. The driver, Gerry Anthony (a pseudonym) was also charged with Possession of Heroin. A search of the other car, the alleged seller’s car revealed seven individually packaged bags of heroin and some cash. Arrested in that car were Manuel Berroa. He was charged with Possession With Intent to Distribute Heroin, a Class A Substance, a School Zone Violation and Distribution of Heroin. The other three occupants of the car were charged with Knowingly Being Present Where Heroin is Kept. The cases will be prosecuted in the Lawrence District Court.

 

Lawrence, Massachusetts Drug Crimes Defense Law Firm

The facts of this article suggest that the defendant was improperly charged. Lamothe had the heroin in her possession. There is no indication that the two intended to share the drugs. Conversely, the article suggests that the quantity in Lamothe’s possession was consistent with personal use. In this case one would think it was for her personal use otherwise it would be in Anthony’s clothing or hands. Whereas there is no Conspiracy charge the charges against Anthony might either be dismissed or resolved in a way where he will not have a criminal record provided he does not already have one. The case against Berroa is a bit more difficult for the prosecution to prove. Absent testimony from Anthony or Lamothe proving that Berroa distributed the drugs to Anthony would require speculation on the part of the jury. An instruction always given to jurors prohibits them from speculating. The district attorney has to prove his or case beyond a reasonable doubt. The charge of Knowingly Being Present Where Heroin is Kept is one that I have always had a problem with. Massachusetts case law makes clear that “presence only” at the scene of a crime is not enough to sustain a conviction for the underlying crime. However, the law making it a crime to knowingly be present where heroin is kept cuts against this. A challenge to the constitutionality of that law is always a good idea.

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HumanTrafficking2.jpgAnthony Maness is being held on fifty thousand dollars cash bail after being arraigned in the Westborough District Court on charges of Deriving Support from a Prostitute and Trafficking Persons for Human Servitude. The thirty seven year old Framingham, Massachusetts man is alleged to have forced a couple of women to work as prostitutes in Worcester County. Authorities claim that Maness forced two women, ages eighteen and twenty to work for him. The younger of the two eventually escaped and made a report of Maness’s activities to police in Medford, Massachusetts. The investigation led officers to a motel in Connecticut where Maness was arrested.

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The crime of Human Trafficking is relatively new in Massachusetts. The law, Massachusetts General Laws Chapter 265 Section 50 was passed in February of this year. The law states that anyone who uses, assists with, recruits or in any way promotes someone else to engage in sexual activity for commercial purposes, including live performances of a sexually explicit nature or pornography has committed the crime of Trafficking of Persons for Sexual Servitude. The punishment for a conviction of this offense is a mandatory five years in state prison. If the victim is under the age of eighteen then there is a possible life sentence that can be imposed after a conviction. This law is much tougher than the other crime with which Maness was charged, Deriving Support from Prostitution. That law, Massachusetts General Laws Chapter 272 Section 7 has a maximum five year sentence and no minimum mandatory. That statute encompasses Pimping Laws in Massachusetts which is much less broad than the Massachusetts Human Trafficking Law. The Massachusetts Human Trafficking Law is so new that there is no case law interpreting, explaining or qualifying the statute at this time. This makes your choice of who you hire to defend you extremely important. You want someone who has experience challenging the constitutionality of new laws.

So what is going to happen to Mr. Maness? A lot depends on the willingness of the victims to testify. Are they credible? Can anyone or anything corroborate their disclosures? Do they have a motive to lie against him? How was it that Maness was able to prevent them from escaping prior to the time that one of the women went to the Medford Police Station to make her report? What criminal history do these women have, if any? Any Experienced Criminal Lawyer practicing in Massachusetts will want to investigate the answers to these questions and more while preparing his defense of a Massachusetts Sex Offense.

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