Massachusetts Criminal Defense Lawyer Blog

FIRST COMPLAINT DOCTRINE IN MASSACHUSETTS SEX CRIMES CASES REVISITED IN RECENT APPEALS COURT DECISION

August 22, 2010 | by Michael DelSignore

The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.

As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.

The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.

Miranda warning and right to remain silent without presence of a Massachusetts criminal defense lawyer

August 14, 2010 | by Michael DelSignore

The U.S. Supreme Court continues to chip away at the Miranda warning, dialing back the landmark protections afforded criminal defendants since the 1960s, the Associated Press reported.

What is important for a defendant to remember is simply this: Never speak to authorities as the suspect in a criminal investigation without the physical presence of a Massachusetts criminal defense lawyer. There is absolutely nothing to be gained form it. You are not going to talk your way out of charges. And, all too frequently, the statements you make are going to be some of the strongest evidence used against you in court.

If you keep that in mind, changes to Miranda won’t impact your rights as the high court continues to water down what has become a defendant’s most basic right over the last four decades.

“It’s death by a thousand cuts,” said Jeffrey Fisher, co-chair of the National Association of Criminal Defense Lawyers. “For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

The original ruling was issued in 1966 and emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. Perhaps the court’s most famous ruling, it requires suspects to be told that they have the right to remain silent, that they have the right to an attorney, and that an attorney will be provided if they cannot afford one.

A trio of decisions issued this year have pruned back some of those rights. The court approved a warning used in parts of Florida that did not notify defendants of their right to an attorney during police questioning. In a separate ruling, the court found that Miranda rights are good for a period of 14 days after a defendant is released from custody. Previously, an assertion of Miranda rights was good forever. Now police can attempt to re-question a suspect after a period of 14 days, even if they asserted their right to remain silent or to have an attorney present. This has increasingly become an issue in cold-case homicide investigations, where law enforcement felt they were hampered by a suspect who asserted his rights decades ago.

Lastly, the court has ruled that a suspect must overtly respond in asserting the “right to remain silent,” just as they must tell police that they wish to have a lawyer present.

At least Justia Sonia Sotomayor found the irony.

“Criminal suspects must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”
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Massachusetts Supreme Judicial Court interprets the resisting arrest statute in two recent cases

June 28, 2010 | by Michael DelSignore

In two cases decided on June 15, 2010, the Massachusetts Supreme Judicial Court interpreted the resisting arrest statute of Massachusetts General Laws Chapter 268 Section 32B. The two cases were Commonwealth v. Quintos Q, involving a juvenile and Commonwealth v. Montoya.

In Montoya, police officers testified at trial that they saw the defendant fire three gunshots. The officers intended to take the defendant into custody, but the defendant fled on a bicycle. The defendant stopped and ran behind some stairs, was ordered to stop by the police, but continued to flee.

The defendant ran and jumped over a fence only to land in a canal. The officers did not follow the defendant over the fence but told him he was under arrest and the defendant made no further attempts to flee the police.

Under Massachusetts law, the Commonwealth must prove the following to obtain a conviction of resisting arrest. A person commits the crime of resisting arrest by knowingly preventing an officer from making an arrest or by using any other means that create a risk of substantial bodily injury to the police officer or another.

Monotoya’s Massachusetts criminal defense lawyer argued that since the police officer did not follow the defendant over the fence, that the defendant cannot be convicted of resisting arrest because his actions did not create a risk of substantial bodily injury to the officer.

The Massachusetts Supreme Judicial Court rejected this argument holding that the officers did not have to be exposed to the risk as long as the defendant created the risk of bodily injury to the officers. The court held that the trial judge properly denied the defense lawyer’s motions for required finding of not guilty as there was enough evidence for the defendant to be convicted of resisting arrest.

The second resisting arrest case, Quintos Q, involved a similar set of circumstances as Montoya. The defendant in Quintos Q, was a passenger in a car that was being followed by the police. The driver attempted to get away from the police, but crashed the car, at which time the defendant and the driver ran. The officer never had time to say anything to the defendant. Finally, another officer saw the defendant trying to climb a wall and yelled stop police. The defendant did not attempt to flee further as he was cornered.

The Massachusetts Supreme Court held that the defendant was not under arrest until he was cornered, trying to climb the wall. The court found that the officers never communicated to the defendant an intent to make an arrest. Accordingly, the SJC reversed the juvenile delinquency conviction.
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United States Supreme Court limits Miranda in the case of Berghuis v. Thompkins

June 4, 2010 | by Michael DelSignore

The United States Supreme Court further limited the holding of its landmark case of Miranda v. Arizona in the case of Berghuis v. Thompkins decided on June 2nd.

In Miranda v. Arizona, the United States Supreme Court held that police must advise a defendant of the defendant’s right to remain silent, right to attorney and the fact that statements could be used against the defendant prior to any custodial interrogation. In Thompkins’ case, the police began to interrogate the defendant about a shooting. The Michigan police read the defendant his Miranda rights from a preprinted form. Most police departments in Massachusetts also use preprinted forms to advise a defendant of their rights. The defendant refused to sign the form and was asked to read one of the rights by the police officer. During the interrogation, the defendant was silent throughout most of the 2 hour and 45 minute interrogation. The defendant was asked by the officer if he prayed for the victim and asked for God’s forgiveness for shooting that boy down. The defendant replied that he did. His confession was used against him at his trial, resulting in his conviction on the charges.

The defendant argued that his silence during most of the interrogation acted as an invocation of his right to remain silent and that the police should have stopped questioning him when he did not respond. The Supreme Court rejected this reasoning holding that a defendant must unequivocally invoke his right to remain silent.

The defendant next attacked the waiver of his right to remain silent by arguing that waiver of his rights under Miranda was not knowing, intelligent and voluntary. The majority opinion written by Justice Kennedy indicating that Miranda should not be interpreted to hold that a waiver of Miranda is difficult to establish absent a written or formal waiver. The Court held that there is no formalistic process that the State has to demonstrate to prove that a defendant waived Miranda rights other than that the accused made an uncoerced statement and understood his rights.

The Court found that Thompkins waived his rights under Miranda and understood those rights. Significantly, the court held that the fact that almost three hours passed from the time of the Miranda warnings to the incriminating statement did not mean that the statement should be suppressed. Further, the court held that the fact that the police appealed to religion did not make the confession coerced as the court held that the Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.
In a dissenting opinion, written by new Supreme Court Justice Sotomayor and joined by Justices Stevens, Ginsburg and Breyer, the dissent argues that the court’s decision represents a substantial retreat from the Constitutional protections recognized in Miranda.

The dissent argued that the State did not satisfy the heavy burden of showing that the defendant waived his right to remain silent. Additionally, the dissent would hold that a defendant that continuously remains silent invokes their Fifth Amendment rights and their actions cannot be interpreted in any way other than indicating a refusal to speak to the police.
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Lindsay Lohan makes bail on warrant for alleged violation of DUI probation

May 22, 2010 | by Michael DelSignore

A California judge issued an arrest warrant for Lindsay Lohan as she failed to appear in court for mandatory court hearing according to news accounts. The court date was to determine whether Lohan was complying with the conditions of her DUI probation. According to the news reports, it is alleged that Lohan missed alcohol counseling meetings.

As a Massachusetts DUI lawyer, Lohan’s situation is commonly faced among many charged with DUI in Massachusetts. If a person accepts a guilty plea or is found guilty after trial on a first offense OUI, as a condition of probation, the individual will have to complete the 24D alcohol education program. Attendance at the 24D alcohol education classes is a requirement to successful completion of probation. Similarly, if a motorist is found guilty of a second offense OUI in Massachusetts, the motorist will have to attend a 14 day in-patient program and complete the aftercare component. Completion of these courses is a requirement to avoiding jail time on a probation violation hearing.

Lohan faces in California what appears to be similar to a probation violation or probation surrender hearing in Massachusetts. If a motorist accepts a plea of a Continuance Without a Finding, also known as a CWOF in the court, the motorist will have to complete the 24D alcohol education program, pay fines and fees and avoid committing any new offenses. If there are any violation of probation, either the individual fails to pay the money or complete the 24D program or commits new criminal offenses, the case is brought back to court for a probation violation hearing, which proceeds in a two step process in Massachusetts.

On the initial court date, the probation department will inform the judge whether the probation department is seeking a detention pending the final surrender hearing. If the probation department seeks a detention, the probation officer must convince the judge that there is probable cause to find the defendant in violation and that the judge should detain the defendant pending the final surrender hearing. In a typical Violation on a First Offense OUI, the probation department will not ask for a detention but set the matter down for a final surrender date. Typically, the surrender is resolved if the defendant attends the alcohol education program and gets in compliance with probation. In Massachusetts, there is no right to bail on a probation warrant or probation detention. If a judge holds a defendant prior to a probation violation hearing, there is no possibility of bail.

At a probation violation hearing, a judge can revoke the CWOF given at the initial plea, and revoke the probation and impose a sentence upon to the 2.5 year maximum penalty for the OUI offense.
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President Obama criticizes United States Supreme Court prompting response from Chief Justice

March 13, 2010 | by Michael DelSignore

The Obama Administration is taking heat from Republican senators and the Chief Justice of the U.S. Supreme Court for remarks the President made during the State of the Union, which were critical of a recent Supreme Court decision regarding campaign finance reform.

The independence of the court is little debated and often taken for granted. But an independent court is vital to democracy and has a far-reaching impact, from national debate over abortion and gun control to future cases the court might hear regarding Massachusetts criminal defense.

The judicial branch must operate independently of the executive branch (White House) and the legislative branch (Congress), which is the primary reason why Supreme Court Justices are appointed to the bench for life.

FOX News is reporting that two senators (with no apparent acknowledgment of the irony of the legislative branch now becoming involved with court affairs) have called on Obama to stop criticizing the court. Chief Justice John Roberts took umbrage at the President’s criticism during his State of the Union address.

Utah Sen. Orrin Hatch said he agreed with Roberts, who also said it was “very troubling” that the annual speech has “degenerated into a political pep rally.”

“But the president was wrong on the law, he was wrong on the facts and I thought it was unseemly for him to criticize the Supreme Court while they’re sitting there … they’re a separate branch of government. They’re not there to be lectured to by the president of the United States.”

During the speech, at which six of the justices were in attendance, Obama criticized a 5-4 January decision that found government limits on corporate funded, independent political broadcasts during elections constitute a violation of free speech rights.

Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, also chimed in to voice his criticism.

“I was disappointed and dismayed to hear the president of the United States mischaracterize the decision of the Supreme Court and scold the members of the court in his State of the Union address for something they didn’t do,” Sessions said.

Chief Justice Roberts, speaking on Tuesday at the University of Alabama, questioned whether justices should attend the address.

“To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there,” said Roberts, who was nominated to the court by President George W. Bush and approved by the Senate in 2005.

Roberts said anyone is free to criticize the court and that some have an obligation to do so because of their positions.

White House spokesman Robert Gibbs stood by the President’s comments, saying the flood of corporate money is drowning out the voice of average Americans.

“The president has long been committed to reducing the undue influence of special interests and their lobbyists over government,” Gibbs said. “That is why he spoke out to condemn the decision and is working with Congress on a legislative response.”

The Washinton Post said the issue may be resonating with voters after 1,500 comments were posted on its website.

The Wall Street Journal said the incident may be the most overt criticism of the court by a sitting President since Franklin Roosevelt engaged in an epic battle with the court over New Deal initiatives.
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Massachusetts license suspension for out-of-state DUI conviction affirmed by Massachusetts court

February 13, 2010 | by Michael DelSignore

The Massachusetts Registry of Motor Vehicles suspended the Massachusetts license of a resident based on a DUI conviction that occurred in Colorado. Under Massachusetts General Laws Chapter 90 Section 22, the Massachusetts Registry of Motor Vehicles can suspend the Massachusetts license of a resident for a conviction in another state that would result in a suspension if it occurred in Massachusetts, as long as the out-of-state statute is substantially similar to the equivalent Massachusetts OUI statute.

In the case of the Bresten v. Registry of Motor Vehicles, Bresten was convicted of driving while impaired in Colorado and required to pay a fine as a result of the conviction. The statute that the defendant was convicted did not carry with it a license loss. The Massachusetts RMV suspended the defendant’s license for one year as a result of the Colorado impaired driving conviction. The defendant ultimately received a hardship license from the Board of Appeals, but appealed the RMV’s determination that the Colorado impaired driving conviction is similar to the Massachusetts OUI statute.

The Massachusetts Appeals Court affirmed the RMV license suspension decision, finding that the statutes were substantially similar.

The Colorado statute prohibited a defendant from operating a motor vehicle when to the slightest degree alcohol impaired the motorist’s ability to operate safely. Under Massachusetts OUI law, the Commonwealth has to prove that a defendant’s ability to operate a motor vehicle safely is diminished by alcohol. Accordingly, the Colorado statute appears to require a lower standard of proof to support a conviction than under Massachusetts DUI law, a judge would misstate the law by defining impaired with the slightest degree definition used under the Colorado law. Further, the difference in the statute can be discerned with the lower potential penalty under the Colorado law.

In a case called, Commonwealth v. Connolly, 394 Mass. 169 (1985), the Massachusetts Supreme Judicial Court held that a jury in a Massachusetts OUI trial should be instructed that alcohol must diminish a drivers ability to operate a motor vehicle safely. The SJC in Connolly found that the trial judge committed error of law in instructing the jury that a defendant could be convicted if alcohol impacted the defendant to a perceptible degree, or if alcohol made the defendant slightly light headed, or slightly depressed or slightly happier than the person would be in the absence of alcohol. Accordingly, the Colorado statute appeared to adopt a lower burden of proof that was rejected by the Massachusetts Supreme Judicial Court. The opinion of the Appeals Court indicates that the court is taking a broad view of the definition of substantially similar in interpreting whether out of state convictions qualify for an in-state suspension. If you are convicted of a DUI in another state, the Massachusetts RMV will likely suspend your license as if the offense happened in Massachusetts.
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Preliminary breathalyzer test (PBT) results inadmissible in Massachusetts OUI cases

February 6, 2010 | by Michael DelSignore

Preliminary breathalyzer test result, PBT, are inadmissible to prove a DUI offense in Massachusetts. Accordingly, if you failed a portable breathalyzer test the Commonwealth cannot offer that evidence to the jury.

A case from Wisconsin raised an interesting issue of whether a defendant can offer preliminary breathalyzer test results to show that the defendant’s blood alcohol level was lower at the time of driving. The DUI lawyer in this case retained an expert who used the results of the preliminary breathalyzer test to argue to the jury that the defendant was still in the absorption phase and his blood alcohol level was lower at the time of driving than at the time the breathalyzer test was given.

The answer to this question would seem to be yes, how can the state disclaim the scientific reliability of its own evidence and deprive the defendant of his right to present a defense and exculpatory evidence. The Wisconsin Supreme Court rejected this argument, relying on the intent of the legislature to limit the admissibility of portable breathalyzer test results.

The court’s ruling reconciles two Wisconsin Statutes – Wis. Stat. sec. 343.303 and Wis.Stat.sec. 907.03. Wis. Stat. sec. 343.303 expressly prohibits the use of a PBT to prosecute a motorist accused of operating a motor vehicle while intoxicated. On the other hand, Wis.Stat.sec 907.03. provides for the admissibility of expert opinion testimony regardless of the admissibility of the underlying data. The defendant contended that even though the portable breathalyzer is inadmissible that his expert’s opinion should be allowed because the expert relied upon it in reaching his opinion. The defendant attempted to draw a distinction between offering the PBT results. which he was not doing and offering testimony that relied on the PBT results. The court held that is no distinction and the statute prohibiting PBT results from being admitted into evidence would be violated by allowing the expert to rely on them in forming his opinion.

The Court held that the legislative policy was clear that portable breathalyzer test results are inadmissible. The court reasoned the legislative intent behind limiting the admissibility of PBT results “helps law enforcement officers do their jobs with more cooperation from drivers than they would otherwise be likely to get if the results were admissible in court. The court noted that a PBT may be requested when an officer has a basis to justify an investigative stop but has not established probable cause to justify an arrest.

Similarly under Massachusetts law, preliminary breathalyzer tests are inadmissible. PBT have never been deemed scientifically reliable and as a result, may not be used as evidence against a defendant.

The Massachusetts courts have not addressed whether a defendant can offer the PBT. If this occurred in Massachusetts, the court probably would allow a defendant to offer the results of the PBT as the decision of the Wisconsin Supreme Court appears to deny the defendant his right to present a defense and cross examine the State’s evidence under the Sixth Amendment and Fourteenth Amendment to the United States Constitution.
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Boston drunk driving attorney available for those facing DUI charges over the New Year’s holiday

January 1, 2010 | by Michael DelSignore

The Law Offices of Boston defense attorney Michael DelSignore wishes everyone a safe and Happy New Year. Authorities will be blanketing the area with roadblocks and increased enforcement meant to combat drunk drivers and motorists should behave responsibly and know their rights.

We urge you to celebrate responsibly. But Boston Defense Lawyer Michael DelSignore believes those arrested for drunk driving in Boston over the New Year’s holiday deserve an experienced and available Massachusetts drunk driving attorney to fight for their rights.

The firm will be available for a free consultation to anyone facing drunk driving or other serious traffic or criminal charges in Taunton District Court, Quincy District Court,Dedham District Court and Westborough District Court through the New Year’s Holiday.

Don’t make a bad situation worse by failing to protect yourself in the unfortunate event that you or a loved one is arrested or involved in an accident.

Massachusetts authorities will be out in force with sobriety checkpoints and other enforcement as part of the National Highway Traffic Safety Administration’s “Over the Limit Under Arrest” campaign, which will work with local law enforcement to establish sobriety checkpoints, increased patrols and other measures aimed to increase Massachusetts drunk driving arrests through the New Year’s holiday.

“Many states continue to step up their efforts to get drunk drivers off our roads, but the numbers tell us we have to do more,” Secretary LaHood said. “Drinking and driving is dangerous and unacceptable, and I’m asking law enforcement to stay vigilant during this busy holiday season.”

The “Drunk Driving. Over the Limit. Under Arrest” campaign is scheduled to last through Sunday, Jan. 3.

The Providence Journal and other local media are reporting about increased enforcement throughout the upcoming New Year’s holiday weekend.

Extra police are patrolling roads throughout Massachusetts. “Our officers will be out cracking down on drunk drivers around the clock,” North Attleboro Police Chief Michael P. Gould Sr. recently told the Sun Chronicle. “We want people to enjoy themselves, but we want them to be smart, safe, and if they are driving, absolutely sober.”

In Massachusetts, a first offense for operating under the influence is punishable with a one-year license suspension, fine of up to $5,000 or by imprisonment for up to 2 1/2 years. Anyone charged with drunk driving in Taunton, Quincy, Dedham, Westborough or the surrounding area should contact a qualified drunk driving defense attorney to discuss their rights.

Anyone stopped at a sobriety checkpoint or roadblock in Massachusetts and charged with DUI/OUI should contact a defense lawyer right away. While such roadblocks are constitutionally permissible in Massachusetts, such cases are often defensible as typically police observe no erratic driving and are relying solely on the results of the field sobriety tests.

A Boston drunk driving defense lawyer may also be able to challenge the results of you Massachusetts field sobriety tests.

Those who refuses a breathalyzer in Massachusetts faces a 15-day time limit to requst a hearing with the Registry of Motor Vehicles. Anyone who refuses a breathalyzer and faces a Boston drunk driving charge over the New Year’s holiday should contact a qualified Boston drunk driving defense lawyer right away to help preserve your right to drive.
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Massachusetts OUI arrest based on 911 call and Chief Justice Roberts speaks out on DUI cases

October 21, 2009 | by Michael DelSignore

A Massachusetts DUI stop must be based on the officer having reasonable suspicion that a motorist is committing a traffic violation or some violation of the criminal laws. In a DUI case, if there is not a lawful basis for the stop, a DUI lawyer may be able to have the entire case dismissed as a result of the unconstitutional stop.

Chief Justice Roberts of the United States Supreme Court in a dissenting opinion from the denial of certiorari in a case from Virginia, suggested that he would support a lowering of the standard of reasonable suspicion and allow motor vehicle stops based on anonymous tips even if the police do not witness any traffic violation. The Chief Justice stated that the impact of requiring a tipster to be known to the police or the officer to witness a traffic violation is that a drunk driver gets one free swerve before they can be legally pulled over.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizure and an anonymous tip has no indication of reliability, that the tip is accurate, that is not made to harass the motorist, for revenge, or that the tipster is being truthful with the police. A truly anonymous tip cannot be lawfully used to stop a motorist for an alleged drunk driving just as an anonymous tipster cannot tell the police that an individual has a weapon on them and justify the police to search the individual. The United States Supreme Court in Florida v. J.L., 529 U.S. 266 (2000) made this holding clear. The Chief Justice is essential trying to create a DUI exception to the Fourth Amendment prohibition against unreasonable search and seizures and established case law.

If a caller does not wish to leave contact information or to identify themselves to a police dispatch, the reliability of the caller is clearly called into question. In fact, few tips are truly anonymous. Courts use the fact that cell phones can be traced to hold that the tip was not anonymous. Many courts will find that a tip is not anonymous if the police could have discovered the identity of the caller or if the caller put their anonymity at risk in any way. Accordingly, in Massachusetts the issue in a DUI tip case will be whether the tip is anonymous; if the tip is truly anonymous, a Massachusetts DUI lawyer should be successful in having the case dismissed based on a violation of the motorist’s Fourth Amendment and Article 14 rights under the Massachusetts Constitution.
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