Massachusetts Criminal Defense Lawyer Blog

Meaning of Sixth Amendment right to prior opportunity for cross examination raised in Supreme Court petition in Berkman v. Indiana

November 15, 2013 | by Michael DelSignore

For drunk driving defense lawyers in Massachusetts, the area of law that is most in flux and subject to changing court decisions is the Sixth Amendment Right of Confrontation. A recent case from Indiana addressed the meaning of a defense lawyer’s prior opportunity for cross examination that is required if testimony is presented at trial without the live testimony of a witness.

In a felony murder case, the Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. A petition for writ of certiorari was filed in the United States Supreme Court and recently denied.

In the matter of Berkman v. Indiana, the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony because the defendant had an opportunity to question the witnesses during earlier proceedings. Unfortunately, the Supreme Court recently denied the defendant’s application for review of the decision.

United States Supreme Court denied certiorari in petition regarding how a defendant invokes right to remain silent

November 12, 2013 | by Michael DelSignore

As an OUI Lawyer in Massachusetts, a common defense is to attempt to exclude statements from evidence based on the police department failing to provide an individual with their Miranda warnings.

The United States Supreme Court denied review of a Florida Supreme Court’s decision in Deviney v. State, 112 So. 3d 57 (Fla. 2013), reversing a conviction in a murder case on the grounds that the interrogating officers obtained a confession after the defendant had invoked his right to remain silent.

The Fifth and Fourteenth Amendments to the U.S. Constitution protect a defendant in a criminal proceeding from self-incrimination, and forbid the government from detaining the defendant without due process of law. In layman’s terms, these constitutional amendments protect the defendant from being required to testify against himself, and ensure that the defendant receives a fair and proper proceeding.

Can an officer testify that he thought you were drunk during an OUI trial, Massachusetts SJC addresses the issue in recent case

November 7, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court recently issued a ruling limiting the testimony of police officers during an OUI trial. The case of Commonwealth v. Canty, decided on November 6, 2013, involved whether a police officer’s testimony violated the rule of evidence that a witness cannot render an opinion on the ultimate issue that the jury must decide. As a this decision clarifies how an officer may testify at trial.

In the Canty case, the officer testified as follows:

Did you form an opinion as to the defendant’s sobriety?

Prior Opportunity for Cross Examination under the Sixth Amendment addressed in the case of Berkman v. Indiana

November 6, 2013 | by Michael DelSignore

The case of Berkman v. Indiana raised an interesting issue under the Sixth Amendment regarding the meaning of a prior opportunity for cross examination. As a Massachusetts OUI Lawyer, Sixth Amendment case law will continue to shape how drunk driving and other criminal charges are defended in Massachusetts.

The Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to face his accusers. In the matter of Berkman v. Indiana [976 N.E. 2d 68 (Ind. App. 2012), the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony, holding that the defendant had an opportunity to question the witnesses during earlier proceedings.

Berkman was accused of murdering a drug dealer during a scheduled drug exchange in a supermarket parking lot. After the murder, Berkman allegedly brought the victim’s body in the victim’s car to a girlfriend, who later watched Berkman ignite the victim’s car on fire. Berkman was charged with murder and felony murder. The jury acquitted Mr. Berkman as to the murder charge, but was unable to reach a verdict on the felony murder charge.

Arizona Court Allows Partition Ratio Evidence In Impaired Driving Case

October 14, 2013 | by Michael DelSignore

As a Massachusetts OUI attorney, an issue that will arise in many cases will be the accuracy of the breathalyzer machine that displays a driver’s blood alcohol content. One of the main reasons this test is unreliable is because of the partition ratio which is used to convert alcohol on the breath into blood alcohol content. The big problem with this however is that a breathalyzer machine will use a standard partition ratio for every person who blows into the machine. However, the partition ratio may be different for every person which may cause the machine to read a much higher blood alcohol content then is actually present. The Arizona Supreme Court just weighed in on the admissibility of evidence of this partition ratio that is used to make the conversion.

The case of Arizona v. Cooperman had the defendant driver being charged with two drunk driving charges. The first charge was driving while impaired to the slightest degree. The other charge was a per se drunk driving charge meaning the defendant was driving with a blood alcohol of over .08. With this per se charge, all that is needed is to show that the defendant was driving within two hours of blowing the .08. In the impaired driving charge, there is no presumption of intoxication, but the breath test can be used as relevant evidence along with other factors to prove intoxication.

In this case, the Arizona court was ruling on the admissibility of partition ratio evidence and whether it was relevant. The court upheld the evidence and stated the evidence for the partition ratio should be allowed. The state argued that the prosecution was only using the breath test on the second charge of the per se violation and no the impaired driving charge so it was therefore irrelevant. The defendant wanted to introduce this evidence to prove he was not impaired even though the prosecution was only using the breathalyzer test to prove the per se violation. The court allowed the evidence stating that there is a strong correlation between blood alcohol and impairment. The evidence of the partition ratio is relevant as it can show the defendant had a lower blood alcohol content and therefore was not impaired. This evidence is still relevant even though the state was only using the blood alcohol content for the per se violation. The partition ratio could not be used as evidence for the per se violation because the per se violation is based solely on alcohol on the breath and the partition ratio will not come into play.

United States Supreme Court’s decision in Anonymous Tip case will have major impact in DUI cases across the country

October 6, 2013 | by Michael DelSignore

The United States Supreme Court agreed to hear two cases that will have a major impact on the prosecution of drunk driving cases in Massachusetts.

On October 1, 2013, the United States Supreme Court agreed to hear the appeal of two California brothers who were charged with drug possession and distribution after police officers pulled their truck over on an anonymous tip. The case is Navarette v. California, the filings can be found on the Scotus Blog.

Brockton criminal defense lawyer reviews recent case discussing waiver of Miranda rights

September 23, 2013 | by Michael DelSignore

As a Brockton Criminal Defense Lawyer, many times when I review a case for the first time, I see that a defendant has made a damaging admission. Often, suppression of the statement is critical to a successful defense at trial.

Because of the importance of a defendant’s Miranda rights and the incriminatory effect that a waiver of these rights might have, the State is required to prove beyond a reasonable doubt that the defendant waived his rights knowingly, intelligently, and willingly. The Massachusetts Supreme Judicial Court recently reviewed the issue of whether a defendant who ingested cocaine two days before turning himself in on a murder charge and who alleged to have no recollection of the crime made a knowing, intelligent, and voluntary waiver of his Miranda rights. In Commonwealth v. Stevie Walker, the Court considered the defendant’s waiver within the entire context in which it was made, including an examination of the defendant’s conduct, age, education, intelligence, emotional stability, criminal history, physical and mental condition, and the manner the waiver was obtained.

Walker was a suspect in the fatal stabbing of a victim in her apartment on the afternoon of November 4, 2005. Earlier that morning, Walker admitted to have been at a friend’s apartment located one floor below the victim’s apartment, smoking crack cocaine with his friend. The defendant and his friend fell asleep, and then awoke in the afternoon, at which point the defendant smoked more cocaine. After having left the apartment between 2 and 3 P.M., the defendant allegedly went up to the victim’s apartment and fatally stabbed the victim. He was discovered by the building manager in the victim’s bathroom, near the victim who was lying under a rug on the floor with a kitchen-knife protruding from her neck. The building manager wrestled with the defendant to prevent his escape, but the defendant overcame her and fled using an emergency exit.

The defendant claiming to have recently awoken with blood “all over”. The defendant told the officers he was there to turn himself in. The officers arrested the defendant and read him his Miranda rights which the defendant acknowledged understanding. The officer than asked the defendant if he had been drinking or using drugs, and the defendant responded, “Not in a while.” The defendant was read his Miranda rights two more times, and the defendant initialed a document with his rights listed, and printed his name on a waiver form, confirming that he understood he was waiving his rights.

During the interview with detectives later that morning, the defendant did not confess to stabbing the victim but claimed that he had just woken up inside a locked storage room and found blood all over him. He claimed to have had no recollection of the events since smoking cocaine at his friend’s apartment “a few days ago.” The defense sought to argue that the defendant was mentally debilitated when he waived his Miranda rights, and offered the expert testimony of two psychologists who examined the defendant and diagnosed him with having an unspecified personality disorder with paranoid and schiz-atypical attributes, as well as with cocaine dependence.

Despite the evidence presented by the defense, the Court concluded that there was no evidence that the defendant’s will was overborn when he chose to waive his Miranda rights. Defendant confirmed at the police station that he understood his rights several times, and that he had knowingly, intelligently, and willingly chosen to waive them.

The SJC also found that the officers did not observe any indication from the defendant’s conduct or speech that he was in any way impaired. Given these findings, in addition to the fact that the officers confirmed that he had eleven years of education and a prior criminal record indicating his familiarity with Miranda rights, the Court held the waiver to be valid.

Among the most important factors in the Court’s determination was the defendant’s seemingly unimpaired behavior, as observed by the police officers. The defendant had demonstrated that he was fully conscious of his surroundings and his decisions. Not only was he aware of his statements, but he was even selective in denying certain snacks and drinks offered to him during the interview. Although the defendant had a cocaine dependency had only awoken minutes before with no recollection of the past days’ events, his overall conduct was the determinative factor.
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Rhode Island Superior Court Judge refuses to sever trial of defense lawyer

September 20, 2013 | by Michael DelSignore

The Trial of two Rhode Island Criminal Defense Lawyers charged with conspiracy, bribery and obstruction of justice raises the issue of when two defendants can be tried together. As an Attleboro criminal defense lawyer, this trial has raised interesting issue of the joint trial of two defendants and when a judge should recuse himself from hearing a case.

The Providence Superior Court found itself addressing these very same circumstances after the Grand Jury indicted a stabbing suspect, his defense attorney, and a second defense attorney with obstructing administration of justice, conspiracy to obstruct the judicial system, bribery of a witness and conspiracy to bribe a witness. After sentencing one of the attorneys to six years imprisonment for his role in the conspiracy on September 11, the court refused to sever the second attorney’s proceedings from the stabbing suspect.

Defense attorney Donna Uhlmann is now preparing to stand alongside stabbing suspect Jamaal Dublin during the trial scheduled for September 23, 2013. Ms. Uhlmann and Mr. Dublin are accused of conspiring to bribe a witness that Mr. Dublin allegedly stabbed to prevent him from testifying against Mr. Dublin. Mr. Dublin’s lawyer urged the court to sever his trial from Ms. Uhlmann’s because he anticipates that much of the evidence that will be raised would be against the defense attorney, Ms. Uhlmann, and so would confuse the jurors from being able to differentiate between the actions of the defense attorney and the actions of Mr. Dublin.

Massachusetts Supreme Court holds that ineffective assistance of counsel claims based on failure to advise defendant of immigration consequences can be brought for case decided prior to Padilla

September 17, 2013 | by Michael DelSignore

The Massachusetts Supreme Judicial Court held in Commonwealth v. Sylvain that ineffective assistance of counsel claims based on the failure to advise a defendant of the immigration consequences of a criminal conviction can be brought prior to the Padilla decision under Article 12. The SJC declined to follow the recent decision of the United States Supreme Court holding that ineffective assistance of counsel claims could only be made for case decided after Padilla. Since Padilla, it has been the obligation of every Massachusetts criminal defense lawyer to advise any defendant of the immigration consequences of any plea in a criminal case.

SJC Rejects the reasoning of Chaidez.

The U.S. Supreme Court issued a decision in Chaidez v. United States finding that the right to counsel on the deportation consequences of a guilty plea expressed in Padilla was in fact a “new” rule, and so applies only to convictions finalized after the Padilla decision (after 2010). Thus, according to Chaidez, Mr. Sylvain is not eligible for the relief under Padilla since he was convicted and sentenced in 2007.

Connecticut Drivers facing OUI charge in Massachusetts will have assignment to Connecticut Diversionary Program count as a conviction for purposes of breath test refusal suspension

September 16, 2013 | by Michael DelSignore

The Massachusetts Court of Appeals addressed an important question for Connecticut Drivers charged with DUI in Massachusetts in the case of Thomas Scheffler v. Board of Appeals. The Appeals Court held that a driver’s assignment to a diversionary program, which is not considered a DUI Conviction in Connecticut, does count as a like offense for the purposes of determining whether the Massachusetts Registry of Motor Vehicles will issue a license suspension.

In 2009, Mr. Thomas Scheffler was charged in Connecticut for operating under the influence of liquor, in violation of a Connecticut statute. Because Mr. Scheffler refused a breathalyzer test, his license was suspended for six months. However, the OUI charge was dismissed upon Mr. Scheffler’s completion of a pretrial alcohol education diversion program, in compliance with another state statute.

Almost two months later, the RMV notified Mr. Scheffler that his license would be suspended for one year based on the Connecticut OUI charge. Despite being later informed that Mr. Scheffler’s license was actually suspended for refusing a breathalyzer, and that the OUI charge was dismissed following completion of the diversion program, the RMV did not clear Mr. Scheffler’s record. Instead, his record now reflects both the breathalyzer refusal and the OUI dismissal, in addition to the completed alcohol education program.