Massachusetts Criminal Defense Lawyer Blog

Defining Constructive possession in Massachusetts gun charge, what does it mean to possess a firearm

March 24, 2013 | by Michael DelSignore

Often times, those charged with illegal possession of a firearm in Boston will be arrested when the police officer never saw them in possession of the firearm at all. When a suspect is arrested without actually being in possession of the firearm the prosecution will try to prove constructive possession.

As a Boston criminal defense attorney, it is important to fight this charge of constructive possession as often times it can be an abuse of police discretion when an officer arrests everybody on the scene where a gun was found. The Massachusetts Supreme Judicial Court recently answered what the prosecution needs to show to obtain a conviction for constructive possession in Commonwealth v. Romero.

In Commonwealth v. Romero, the defendant was parked in front of a friend’s house with three other men. The defendant was in the driver’s seat and he had seen one of the passengers with a gun earlier in the day. A police officer pulled behind the defendant’s car and observed the vehicle for several moments. It appeared that all four passengers were passing back an object back and forth. When the officer approached the vehicle he observed a gun in one of the passenger’s laps. The defendant was arrested and charged with possession of a firearm without a license. Since the defendant was not in physical possession of the weapon, the prosecution relied on constructive possession and the defendant was convicted.

Lawyers USA Article details trial tips for OUI lawyers in Massachusetts

March 22, 2013 | by Michael DelSignore

Julie Campanini recently published an excellent article in Lawyers USA offering a number of suggestions for improving trial skills. From her experiences during trials combined with years of speaking with jurors, she noticed that many lawyers tend to unknowingly act in ways which place them in a negative light for the jury. Below is a list describing some of the issues she noticed. As a Massachusetts OUI lawyer, I found these suggestions extremely helpful and encourage trials lawyers to read the recent article.

• Act genuinely- It is important for defense lawyers to be themselves in the courtroom and allow elements of their personality to show. Jurors are intimidated by overly formal lawyers, so it is good to relax and show the jury that they can relate to you on a personal level rather than just a “business” level. Jurors, like everyone else, are more likely to believe you if they can empathize and trust what you are saying.

• Act respectively- It is common for opposing counsel to subconsciously intimidate one another with statements and mannerisms which may come across as rude or disrespectful. Campanini mentions how the most successful lawyers are those who treat everyone in the courtroom with respect, so that their statements are taken more seriously and with higher levels of consideration. Over-zealous or short tempered lawyers are least likely to create a positive impression on the jury, as they simply appear arrogant or insecure.

What injuries constitute “serious bodily injury” when charged with an assault and battery in Massachusetts

March 16, 2013 | by Michael DelSignore

When facing an assault and battery charge in Massachusetts a defendant may face the more severe charge of assault and battery causing serious bodily injury if the evidence shows the assault caused a serious bodily injury. This turns the assault and battery from a misdemeanor to a felony and carries significantly harsher punishment. The recent case of Commonwealth v. Scott was decided by the Supreme Judicial Court and faced the issue of what injuries are sufficient to be a serious bodily injury under G. L. c. 265 §13A(b).

Commonwealth v. Scott involved a defendant who went to his ex-girlfriend’s home to confront her. Defendant became violent during the time in the victim’s home. Defendant punched the victim in the face, stomach, threatened her with a knife and beat her with a can of soda. The victim suffered several injuries, the worst being a lacerated liver.

The defendant was convicted of several crimes like kidnapping and assault and battery, but because of the lacerated liver defendant was also convicted of assault and battery causing serious bodily injury. To constitute a serious bodily injury, the injury had to result in either (1) a permanent disfigurement; (2) loss or impairment of a bodily function, limb or organ or; (3) a substantial risk of death. The only question on this appeal was if there was enough evidence to show the injury caused an impairment of an organ. The court held that there was no sufficient evidence for a jury to conclude that there was impairment.

How Does A Massachusetts Court Decide If A Police Stop Was Lawful under the Fourth Amendment

March 12, 2013 | by Michael DelSignore

As a Brockton criminal defense lawyer, a question that arises in many cases is did the officer conduct a legal stop under the Fourth Amendment. The Massachusetts Supreme Judicial Court just discussed this issue in the recent case of Commonwealth v. McKoy.

In Commonwealth v. McKoy, two Brockton police officers drove by the defendant and his brother walking down the street on a freezing snowy night. Moments later, the police officers received a call about a shooting that occurred about 100 yards from where they had seen the two men walking. The officers reversed direction and saw the two men continuing to walk with their hands in their pants. The officers got out of the vehicle and drew their weapons and ordered both suspects to the ground. One suspect got away but the defendant was handcuffed and searched. Officers found ammunition and a gun that the defendant had dropped on the ground. The defendant was arrested and found guilty of unlawful possession of firearm and ammunition.

The defendant contends that the search was unlawful and that the evidence of the gun and the ammunition should be suppressed. The SJC upheld the conviction and ruled that the search was legal and the evidence did not have to be suppressed. For the police officers to engage in a stop, they must have reasonable suspicion that the suspect has committed a crime. The court stated that reasonable suspicion is a twofold test; first was the original stop reasonable and second was the search justified under the circumstances. Reasonable suspicion is defined as would a reasonable officer given the facts of the situation find the actions appropriate? Furthermore an officer can take reasonable steps if they feel they are in danger.

What evidence does a Boston criminal lawyer look for in contesting a drug distribution charge

March 10, 2013 | by Michael DelSignore

A common question that frequently arises for a Boston criminal defense lawyer is: does a defendant have to be present at the scene of the drug transaction to be convicted of drug distribution?

A Massachusetts court of appeals decision recently answered this question in Commonwealth v. Mgaresh. The court held that if a defendant is aware of the transaction and in control of transaction, the defendant does not need to be physically present at the time of distribution.

In 2009, an undercover police officer contacted the defendant and arranged to purchase $200 of cocaine. When the detective arrived at the location, he met a women who was on the phone with the defendant during the transaction.The transaction of 1.95 grams of cocaine was completed and the detective arrested the woman..

New York Court of Appeals narrowly interprets Confrontation Clause, finding the right of Confrontation does not apply to breath test maintenance documents

March 7, 2013 | by Michael DelSignore

As a Massachusetts OUI attorney, challenges to breath test and blood test evidence based on the 6th Amendment Confrontation must be made in each case as the law continues to evolve in this area. Cases from the United States Supreme Court continue to define the scope of the right of confrontation.

Recently, the New York Appeals Court ruled on the issue of an alleged violation of the “Confrontation Clause” when records for a Breathalyzer test were presented at trial without the verbal testimony of the technicians whom completed the tests.

In State v. Pealer, a police officer stopped the defendant for suspicion of drunk driving. When the defendant failed all sobriety tests, he was arrested. At the station, he failed a Breathalyzer test.

How does the Commonwealth prove a charge of reckless endangerment of a child

March 4, 2013 | by Michael DelSignore

For those charged with reckless endangerment of a child in Massachusetts, it often involves defendants who have not personally subjected the child to danger, but have failed to protect a child from danger. The recent case of Commonwealth v. Figueroa was recently decided by the Massachusetts Appeals Court and answered some questions of when a defendant can be convicted of reckless endangerment and when they owe a duty to protect the child.

Commonwealth v. Figueroa involved child abuse of a six month old victim. The mother of the child lived with her mother, the defendant and the defendant’s boyfriend.

On February 29, 2008, the defendant’s boyfriend was shaking the baby and then droped the child on the floor causing a head injury. The child’s mother saw this and grabbed the baby and explained what happened to the defendant and asked for a ride to the hospital. Without looking at the infant, the defendant said he would be alright and threatened to call Social services if the child’s mother tried to bring him to the hospital.

Recent United States Supreme Court decision in Bailey holds that police cannot seize an individual leaving a residence subject to a search warrant

February 28, 2013 | by Michael DelSignore

The United States Supreme Court issued its decision in Bailey v. United States on February 19, 2013 holding that its precedent in Michigan v. Summers does not allow the police to seize an individual that has left the premise prior to a search. You can read the Bailey decision here.

Background of the Bailey Case

The Bailey case involved police officers detaining an individual one mile from the premise to be searched. Police officers were given information through an informant that crack cocaine was being sold at a residence. A warrant was obtained. While the officers were conducting surveillance prior to executing the warrant, officers witnesses the target of the search leaving the premise and detailed the individual and brought him back to the premise. During the detention, police seized incriminating evidence, recovering the keys to the premises along with drugs and firearms.

Limiting the power of prosecutors in criminal cases in light of Aaron Swartz

February 24, 2013 | by Michael DelSignore

When a suspect is arrested, one of the main concerns for Massachusetts defense attorney is the power of the prosecutor who will be the person who decides what to charge a defendant with. This discretion of what to charge a suspect with gives prosecutors tremendous power in the legal system, power that many people feel has to be limited. Nowhere was this power more evident than in the case of Aaron Swartz. Swartz was arrested for downloading millions of academic articles and placing them online. The federal government stepped in to “send a message” and charged Swartz with several felonies including federal fraud and computer felonies. Swartz was faced with 35 years in prison, but the prosecutor offered a plea bargain of six months in prison, which Swartz rejected. On January 11, Swartz took his own life causing outrage over the prosecutor’s actions.

It is common for prosecutors to charge people with multiple felonies in hopes of getting a plea bargain accomplished. With Swartz, the prosecutor hoped that Swartz would take the plea bargain for six months when Swartz saw that losing at trial could potentially put him in prison for 35 years. Prosecutor’s make their name off of winning cases and charging a suspect with felonies and offering a plea bargain to a less sever crime is often an easy way to scare a defendant into agreeing.

A main reason that a prosecutor has so much power is the procedure for charging a defendant with a crime. In the Swartz case, that involved a federal prosecutor. To charge Swartz with a federal crime, the prosecutor needed to secure an indictment from a grand jury. The indictment proceeding consists of only the prosecuting attorney delivering evidence to show there is probable cause to charge a suspect with a crime. The grand jury consists of 16-23 members and if at least 12 find probable cause, and indictment is returned and the charges against the suspect are formally brought.

OUI drug charge in Massachusetts, how is the offense proven in court?

February 18, 2013 | by Michael DelSignore

OUI drug charges in Massachusetts are on the rise. What does the Commonwealth have to prove to secure a conviction?

In prosecuting an OUI drugs case, the police report will typically look very similar to an arrest for OUI alcohol, with the officer administering field sobriety tests. What typically compels an officer to bring an operating under the influence of drugs charge is an admission to ingesting drugs or the officer finding them during a search of the car. If no admission is made or no drugs found, an officer will only consider the charge after ruling out that alcohol is not the cause of the impairment.

In Massachusetts, if an officer pulls someone over who is suspected of operating under the influence of drugs, then there are certain procedural steps the officer should take to have a strong case of OUI drugs. Many officers who are not trained as a DRE will simply make an arrest and bring the charge; however, without the evaluation, there is a strong argument that there will be insufficient evidence to sustain a conviction.