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The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney’s Office misinterpreted the “dangerousness statute” when proseuctor’s moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.”

In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing “firearm w/o license, FID” as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.” § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the “menace of dangerousness” inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, “[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”

If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.

Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant’s expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.

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Robert Demaio is twenty nine years old and homeless. He admittedly has problems with alcohol and anger management. Last Friday Demaio beat up another man in a Beverly, Massachusetts park causing him to suffer sever brain damage. The victim is a fifty one year old Lynn, Massachusetts man who authorities say is likely to die from the injuries he suffered in the beating. Demaio has been charged with assault and battery causing serious bodily injury. The criminal case is currently pending in the Salem District Court. Bail has been set in the amount of $100,000. When the police encountered Demaio they observed his hand to be swollen, consistent with having punched someone.

Assault And Battery Charges Filed Against Homeless Man Who Beat 51 Year Old

Massachusetts General Laws Chapter 265 Section 13A makes assault and battery a crime in Massachusetts. The law states that anyone who commits this crime and causes serious bodily injury while doing so is guilty of aggravated assault and battery. A conviction of this offense can result in up to five years in state prison. However, if the victim dies from the injuries Demaio is likely to face more serious charges such as manslaughter or even murder. If the injuries to the victim are as serious as reported I would not be surprised to see this case indicted to the Superior Court in Essex County. Given that Demaio has a history of violence a superior court prosecution is a likely scenario.

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On January 26, 2009 Victor Oliveira’s home in Saugus, Massachusetts was raided. The police found 139 OxyContin pills, each 80 milligrams some other drugs and over eight thousand dollars cash. According to reports Oliveira told police that he was selling the OxyContin pills. After initially bringing this case in the Lynn District Court the case was indicted by the Essex County District Attorney’s Office. All charges against Oliveira are pending in the Essex County Superior Court in Salem, Massachusetts. Oliveira has been charged with trafficking over twenty eight grams of a Class A substance.

Essex County District Attorney Indicts Massachusetts Men For Drug Trafficking

From the looks of things it seems like the strength of any defense lies in the defendant’s ability to attack the constitutionality of the search warrant. In order to obtain a search warrant the police must establish probable cause for a magistrate or judge to conclude that a particular object or place is being used to conduct criminal activity. The person who requests the search warrant must provide an affidavit that establishes facts that support the need for a search warrant. The affidavit must pass federal and state constitutional scrutiny. Typically the Massachusetts courts make the search warrant requirements more difficult to sustain than do the federal courts. Oliveira will likely file a motion to suppress. If successful there is always a good chance that his case will be dismissed.

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At about 10:30 p.m. police officers in Massachusetts saw what they believed was someone drinking beer in a car in Brockton. The car was pulled over and the driver then took off, speeding all the way to Quincy. The suspect’s car hit a tree near a garage and the driver and one of three passengers were arrested. The driver, Joseph Cooper was charged with operating to endanger, assault with a dangerous weapon and attempted murder. It is alleged that he tried to ram a police cruiser head on. The driver was also operating with a suspended license. One of the passengers was charged with resisting arrest. The other two escaped on foot.

Boston Massachusetts Men Charged With Crimes After Chase

Here is an interesting question. What if anything are the two men who escaped criminally responsibly for? Unless one or both of them were drinking the beer the answer is probably nothing. There is no legal way to charge them with any criminal activity given the facts of this article. While the prosecution typically charges people who accompany the principles as joint venturers there is nothing here suggestive of criminal behavior on their parts. So why did they run? Well, perhaps they had outstanding warrants. Maybe they did not want to get charged with “resisting arrest” as did the passenger. Here is another point. Why was the passenger being arrested? It is difficult to hold any passenger accountable for the conduct of a driver absent some evidence that he or she shared the same criminal intent, desired the same result and stood ready, willing and able to assist in the crime.

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According to The Salem News, Maureen Fogwell, 57, from North Hampton New Hampshire was arrested as she drove away from the Salem Massachusetts Courthouse last week following her arraignment for driving under the influence of alcohol as a second offense. After spending a week in the women’s prison in Framingham, Ms. Fogwell admitted to the offenses and was sentenced to a 60 day mandatory minimum sentence for driving after her license was suspended for an OUI related offense. The judge also imposed a a six-month jail sentence which he suspended for two years. During this probationary term she must enter and complete a two week in patient alcohol program.

In Massachusetts, failing to complete terms of probation may result in a defendant receiving a notice of surrender and a surrender hearing occurs. During this type of hearing the probation officer must produce reliable evidence that the probationer violated the terms of his or her probation. In the event that an individual is found to have violated the terms of his or her probation, the penalty can be the maximum sentence that can be imposed for a conviction of the crime. In this case, Ms. Fogwell could face up to two and one half years in jail if she does not successfully complete probation.

In Massachusetts, the prosecution must prove that a defendant was driving a motor vehicle, on a public way and was under the influence to secure a conviction. An experienced defense attorney is necessary to review the particular facts of an individual’s case to determine how to proceed at trial. Depending on the circumstances of the case it may be appropriate to demonstrate that the defendant was not driving, that the road was not a “public way” i.e., that the public did not have a right of access and that he or she was not under the influence. In the event that a defendant was arrested as the result of a roadblock, made statements or was in a motor vehicle that was searched, there may be grounds to file a motion to suppress evidence and/or statements.

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Around 10:00 p.m. on Tuesday night a woman was leaving a Route 1 restaurant in Danvers, Massachusetts. She had just finished having dinner with a friend and went to get her car parked at the rear of Friday’s Restaurant. She was approached by a man who dragged her into the woods next the Route 1 Costco’s store where she was raped and sexually assaulted. The victim was taken to a local hospital around 3:30 a.m. for treatment. The assailant fled the crime scene to the area of Route 114 near Peabody, Massachusetts.

Massachusetts Woman Dragged From Car, Raped

According to the Massachusetts Law Enforcement Agency Uniform Crime Reports rapes in Massachusetts have risen from approximately 250 in 1960 to over 1,600 in 2007. Between 1990 and 1993 reported rape cases in Massachusetts peaked at around 2,000 per year. On a national level, the crime of rape in Massachusetts has declined over the past three years. In 2005 Massachusetts ranked 37th nationally, 38th in 2006 and 39th in 2007.

In Massachusetts rape in punishable by life in prison. If a firearm is used during the commission of the rape there is a minimum mandatory ten year state prison sentence.

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Police have reported that Paul Mwaura, 27 of Brockton, Massachusetts is now charged with indecent assault and battery in the Quincy District Court. It is alleged that Mwaura groped two women at the Crane Library in Quincy. One woman told authorities that the defendant asked her to engage in sex for a fee in a library bathroom. When she declined he grabbed her after which she fled. The second woman reported that Mwaura was leaving the library while she was entering at which time he groped her and left the building.

2 Women Sexually Assaulted At Massachusetts Library

Indecent assault and battery is a sex crime and a felony in Massachusetts. It is punishable by up to five years in state prison. The statute prohibiting this act is Massachusetts General Laws Chapter 265 Section 13H. To prove someone guilty of this crime the district attorney must prove beyond a reasonable doubt 1) that victim was at least fourteen years of age at the time of the alleged offense; 2) that the defendant committed an assault and battery on the alleged victim. Assault and battery is essentially the intentional touching of another person, without legal justification or excuse; 3) the assault and battery was “indecent” as that word is commonly understood, measured by common understanding and practices. An indecent act is one that is fundamentally offensive to contemporary standards of decency. An assault and battery is “indecent” if it involves touching portions of the anatomy commonly thought private, such as a person’s genital area or buttocks, or the breasts of a female; 4) that the alleged victim did not consent.

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In 2004 around 6:00 p.m. Malden, Massachusetts police responded to a call for a woman bleeding. Officers arrived to find the victim in her bed and suffering from facial injuries. It was clear to police that the home had been broken into through a rear door. The man who broke in assaulted and beat the elderly victim who was taken to the hospital. This past Saturday, as a result of a DNA match, Jason Kuzcynski was arrested and charged with home invasion and assault and battery on a person over the age of sixty five. Kuzcynski is being held without bail pending a hearing on dangerousness.

Massachusetts Man Charged With 2004 Home Invasion

Massachusetts General Laws Chapter 265 Section 18C defines the crime of home invasion in Massachusetts. The law states that anyone who is armed and enters the home of another person knowing or having reason to know that someone is home and uses force on that person is guilty of home invasion. There is a minimum state prison sentence of twenty years for anyone convicted of this crime. The crime of assault and battery on a person sixty or older carries a ten year state prison sentence. With an elderly victim it is likely that the district attorney in this case will not agree to a plea bargain that falls below the twenty year mandatory sentence.

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Last Thursday night Haverhill police raided Gerald Boucher’s apartment on North Avenue. When the police entered the home Boucher and two other men were engaged in drug deal activities. The police found sixty two grams of cocaine, an ounce and a half or marijuana and a variety of drug paraphernalia. Boucher has been charged with possession with intent to distribute marijuana, trafficking cocaine, conspiracy and a school zone violation. The search was made pursuant to a search warrant that was issued out of the Haverhill District Court. The two other men, James Sarno and Alexander Frye were charged possession with intent to distribute cocaine, possession with intent to distribute marijuana, conspiracy and a school zone violation.

Massachusetts Man Charged With Various Drug Crimes

Trafficking cocaine in Massachusetts is a crime under Massachusetts General Laws Chapter 94C Section 32E. The law states that anyone who possesses cocaine with the intent to distribute that substance, or does in fact distribute the cocaine is guilty of trafficking if the quantity exceeds fourteen grams. The penalty for trafficking over twenty eight grams is five years in state prison. This is a mandatory minimum sentence. The school zone violation adds another two years, mandatory to the sentence. So if Boucher is convicted he will have to serve seven years in state prison.

The fact that the drugs were found during a search made pursuant to a warrant always implicates Fourth Amendment issues. Typically motions to suppress the search are filed. If these are successful then the drugs are excluded as evidence and, in most instances the case gets dismissed. These cases also raise many interesting defenses. Absent any admissions by the defendants the question that arises is “whose drugs were these?”. There is often the contention that someone is buying the drugs for personal use and another person is selling the substances. Good Massachusetts Criminal Defense Lawyers many times get great results on cases such as this one.

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The Salem News reports that James Chouinard of Peabody Massachusetts was arrested and charged with three counts of assault by means of a dangerous weapon. According to reports, the police responded to an apartment located in Peabody Massachusetts after Chouinard’s sister requested that he be “checked on.” Apparently, he called his sister and informed her that he “took” a lot of pills. When the police arrived, the authorities claim that Chouinard would not let them in and waved a sword at them. He was charged with three counts of assault by means of a dangerous weapon. The Salem News reported that he was transported to the Salem Hospital for a psychiatric evaluation.

In Massachusetts, assault by means of a dangerous weapon is a felony. See, M.G.L. Chapter 265 section 13A. If a defendant is convicted for assault by means of a dangerous weapon in the Superior Court, he or she can receive a sentence of up to five years in state prison. If he is convicted in a district court he or she faces up to two and one half years in jail.

To prove this offense, the government must prove an assault and that it was committed with the use of a dangerous weapon. The prosecution can prove that the defendant’s actions was an attempted battery or was an immediately threatened battery. Under the first theory, the Commonwealth must prove that the defendant intended to commit a battery and came reasonably close to doing it. Under this theory of assault, it is not necessary for the Assistant District Attorney to prove tht the victim was put in fear or was even aware of the attempted battery. The second form of assault is commonly referred to as a “threatened battery.” Here, the prosecutor must prove that the defendant intended to put the victim in fear of an imminent battery and committed an act which the victim reasonably perceived as an imminently threatening battery.

The aggravating element in this crime is that the assault was committed with a dangerous weapon. The dangerous weapon does not have to be a gun, knife or other item that is commonly believed to be a weapon. Any object can be a weapon if it has the apparent ability to inflict harm. Cigarette lighters, shoes, and even a pencil may be considered a dangerous weapon in the appropriate circumstances.

If you are charged with simple assault, assault by means of a dangerous weapon, assault and battery by means of a dangerous weapon or any violent offense it is imperative that you contact an experienced defense attorney as early as possible. In order to successfully defend against these types of crimes. It is important to have a trial attorney on your side early in the case.

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