Practice Resources

Welcome

Welcome to the April edition of the Criminal Law Section Council newsletter, containing information about CLE programs, meetings, hot legal developments and other section news.

At its February meeting, the Criminal Justice Section Council welcomed Probation Commissioner Ron Corbett to discuss the current landscape of the Probation Department, its challenges going forward, and Gov. Deval Patrick's proposal to move the Probation Department to the executive branch. The council also began a discussion on the potential use of videoconferencing in lieu of in-person attendance of incarcerated defendants in Superior Court. The council decided to continue this discussion in subsequent meetings to understand the varying perspectives on the issue, including that of judges, defense attorneys, defendants and corrections.

At its March meeting, the council received status reports from its liaisons. A member of the subcommittee to study and evaluate "harassment prevention orders" under Chapter 258E informed the council that its members are in the process of surveying courts in various counties to determine the use and potential abuse of these orders. Additionally, our section editor invited members to submit articles on current criminal justice issues for publication in the Lawyers Journal. The council also briefly discussed the practice of obtaining, at arraignment, a defendant's waiver to his right to be present at his trial, but the council tabled this discussion to gather more information on the use of this practice and its effect on the bail and trial process. Finally, the council continued its discussion about videoconferencing, discussing proposals to address some of the objections to the practice. Specifically, the council learned about new technology that has the potential to permit real-time private conversations between attorneys and clients during court proceedings and high-definition video to allow incarcerated defendants to see, and be seen, in a more realistic light.

The section council always welcomes suggestions from you as section members and, if you are interested, invites you to volunteer to work with the council members to plan and implement programs. To volunteer, contact Jean Stevens or go to the Criminal Justice Web site council directory and e-mail any council member.

Michael Fabbri, chair
Radha Natarajan, vice chair
Criminal Justice Section Council

Upcoming Criminal Justice section council meeting

As a member of the Criminal Justice section, you are invited to attend the Criminal Justice Section Council meeting on Tuesday, April 12 from 5:30 to 7 p.m. at the MBA, 20 West St., Boston. This meeting's guest speaker is Middlesex County Sheriff Peter Koutoujian.

Click here to R.S.V.P.

The Criminal Justice section council holds monthly meetings. You can keep abreast of the meeting dates here.

Interested in learning more about another MBA section?

Check out upcoming section open meetings

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Limited Assistance Representation Informational open meeting

Thursday, April 28, 4:30-5:30 p.m.
Brockton Courthouse, 215 Main St., Brockton

The MBA's General Practice, Solo & Small Firm Section is sponsoring a three-part series of open meetings on Limited Assistance Representation (LAR) around the commonwealth. The second in this series will be held at the Brockton Courthouse on Thursday, April 28 from 4:30 to 5:30 p.m. Hon. Catherine P. Sabaitis first justice, Plymouth Probate and Family Court; and Barbara L. Nason Esq., Ryan and Faenza, Walpole will discuss the following issues:

• What is LAR;
• How LAR can benefit both the legal profession and clients with limited means;
• How to qualify for LAR; and
• What forms and agreements you will need to streamline your LAR practice.

SAVE THE DATE: The third meeting will be held at the MBA Centennial Conference on Wednesday, May 18 from 3:30 to 4:15 p.m. Panelists will include: Hon. Edward M.Ginsburg (ret.); and Linda Sternberg Esq., Attorney at Law, Boston. Thomas J. Barbar, Esq., Deutsch, Williams, Brooks, DeRensis & Holland PC, Boston will moderate.

To R.S.V.P., click here.

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Juvenile and Child Welfare open bench-bar meeting

Wednesday, May 4^, 3:30-5:30 p.m.
Worcester Law Library, 50 Harvard St., Worcester

The MBA's Juvenile and Child Welfare Section Council is sponsoring this bench-bar presentation at the Worcester Law Library, 50 Harvard St., Worcester. This meeting is free to all attorneys interested in the practice of Juvenile & Child Welfare Law and is approved for 1 CLE credit for CAFL attorneys.

The presentation will include a discussion on the Standing Order for Care and Protection Trials, Implementation of new law for young adults (ages 18-22) in DCF custody, harassment prevention orders and the new DYS Community Services Model.  The panelists will be announced.

To R.S.V.P., click here.

The final bench-bar meeting will be held on Monday, June 6, from 5:30 to 7:30 p.m. at the MBA, 20 West St., Boston. As space is limited, please R.S.V.P. to these meetings. There will be no ability to attend by conference call.

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Case summaries

The Criminal Justice Section Council would also like to call to your attention the following recent court cases that may be of interest to the section council membership as well as other criminal practitioners:

Commonwealth v. Walorz, 2011 Mass. App. LEXIS 416 (March 25, 2011)
The defendant in the case was convicted after a jury-waived trial of trafficking in oxycodone over 28 grams. The Appeals Court found that the defendant's stipulation of facts, including the fact that he signed for and took possession of a delivery box that contained pills of oxycodone, rendered harmless beyond a reasonable doubt any error in the admission of the drug certificate without a live witness.

Commonwealth v. Griffin, 2011 Mass. App. LEXIS 400 (March 22, 2011)
In this interlocutory appeal by the commonwealth, the Appeals Court affirmed the allowance of the defendant's motion to suppress. The majority agreed with the lower court's findings of facts and rulings of law that probable cause did not exist to strip search the defendant where:

1. The defendant was a passenger in a car;
2. There was probable cause to search the car and the driver of the car based on statements by a confidential informant that the driver was traveling to New York to obtain a kilogram of cocaine;
3. The confidential informant provided no information about the defendant; and
4. The defendant did nothing suspicious or furtive when the officers stopped the car he was in.

Commonwealth v. MacDonald, 2011 Mass. LEXIS 150 (March 18, 2011)
The Supreme Judicial Court affirmed the defendant's conviction for possession with intent to distribute marijuana and violation of the drug laws in a school zone. The court found that it was proper for the officer to opine that the substance was marijuana where he was properly qualified as an expert to make that opinion and where marijuana is not easily mistaken upon visual examination as might a compound like cocaine. The court further held that an expert may offer an opinion based on a hypothetical that tracks the facts of the case where the proper foundation is laid, the witness is not a percipient witness, the witness does not comment directly on the defendant's guilt, and there is an appropriate limiting instruction that the jury are the only finders of fact.

Commonwealth v. Sosa, 2011 Mass. App. LEXIS 378 (March 18, 2011)
The Appeals Court affirmed the defendant's conviction for murder in the second degree. In this case, the defendant testified that he stabbed the decedent in self-defense. At trial, the prosecutor asked the defendant whether he had told anyone previously the story he was telling on the stand. The defendant argued at trial and on appeal that this was an improper reference to the defendant's invocation of his right to remain silent. The prosecutor argued that the question was referring only to omissions made when speaking to civilian witnesses, before the police ever arrived on scene. The court found that reference to omissions made to non-police witnesses pre-Miranda did not violate the prohibition against introducing evidence that the defendant exercised his right to remain silent. Additionally, the court found that the defendant did not actually exercise his right to remain silent with the police.

Commonwealth v. Beaulieu, 2011 Mass. App. LEXIS 377 (March 18, 2011)
The Appeals Court affirmed the defendant's conviction for operating under the influence of alcohol after his license to operate had been suspended or revoked for a prior similar crime. The court found that this charge under Chapter 90, Section 23, did not require a bifurcated trial because the evidence of prior license suspension or revocation was an element of the offense and not a sentencing enhancement. The court also found that, while evidence of a defendant's refusal to perform field sobriety tests cannot be admitted against him in court, the defendant opened the door by predicating his defense on the failure of the police to investigate by, in part, failing to conduct field sobriety tests.

Commonwealth v. Luciano, 2011 Mass. App. LEXIS 364 (March 16, 2011)
The court affirmed defendant Luciano's convictions for two counts of assault and battery by means of a dangerous weapon and reversed the convictions of defendant White on the same charges. The court found that it was constitutional error for the lower court to deny the indigent defendants funds to obtain transcripts from a first trial for use in their second trial. The court held that it was improper for the lower court to deny funds without holding a hearing (as required by Chapter 261, Section 27C) and held that it was a violation of equal protection to require the defendants to make a particularized showing of need for the transcript. However, the court found that the violation was harmless beyond a reasonable doubt. Additionally, the court held that the lower court erred in its instruction to the jury on joint venture. Specifically, the lower court failed to inform the jury that, in order to be convicted under a joint venture theory, the defendants had to be aware that the principal was armed with a dangerous weapon. Because of this error, defendant White's convictions were reversed. However, the error was not deemed to have caused a substantial risk of a miscarriage of justice in defendant Luciano's case and his convictions were affirmed.

Commonwealth v. Eddington, 2011 Mass. LEXIS 40 (March 10, 2011)
On further appellate review, the Supreme Judicial Court affirmed the Appeals Court's reversal of the Superior Court's decision to allow the defendant's motion to suppress. The court found that the police officers had a lawful basis to impound the car the defendant was driving and conduct an inventory search where:

1. The defendant could not drive the vehicle because he had a suspended license;
2. The officers did not call the registered owner of the car because it was 4:30 a.m.;
3. The car, while lawfully parked on the side of the road, was in a "high crime area" that put the car at risk of theft or vandalism; and
4. The search was pursuant to a written inventory policy.

Commonwealth v. Filoma, 79 Mass. App. Ct. 16 (March 9, 2011)

The Appeals Court reversed only the defendant's convictions for operating under the influence of liquor causing serious bodily injury. The commonwealth had two methods of establishing operation under the influence of liquor:

1. (1) Per Se Method: Admitting a breathalyzer reading of .08 or higher and having the court instruct the jury that, if they believed its accuracy, it could conclusively establish operation under the influence; or
2. (2) Proof by Impaired Operation: Admitting testimony by percipient witnesses of defendant's appearance and conduct and a breathalyzer reading of .08 or higher supported by an expert explaining the connection between the measure and impaired operation.

In this case, the commonwealth failed to seek an instruction under the "per se" method and admitted percipient witness testimony and the breathalyzer reading without expert testimony. Therefore, the commonwealth failed to prove that the defendant was operating under the influence and those convictions had to be reversed.

Commonwealth v. Maker, 459 Mass. 46 (March 3, 2011)
The Supreme Judicial Court ordered that the Boston Municipal Court vacate the defendant's conviction and sentence for failing to register as a sex offender within two days of his release from incarceration. The court found that the Sex Offender Registry Board does not have the authority to create new registry requirements, and because only SORB's regulation, and not the statute, required a sex offender to register within two days of his release from incarceration, such requirement was invalid.

Commonwealth v. Washington, 459 Mass. 32 (March 3, 2011)
The court affirmed all the defendant's convictions, including one for first degree murder. The court held that, while an officer must have probable cause, not reasonable suspicion, to support a stop or seizure based on a seat belt violation, a civil motor vehicle infraction, the officer did have probable cause in this case that the defendant, a passenger, had violated the seat belt law. Furthermore, the court clarified that in order to impeach a defense alibi witness on his or her failure to come forward earlier with the exculpatory information, the commonwealth must establish three things:

1. The witness knew the defendant's charge in enough detail to know that he or she had exculpatory information;
2. The witness had a reason to provide the information; and
3. The witness knew how to provide the information to law enforcement.

In this case, the court held that the prosecutor met these requirements, albeit barely.

Commonwealth v. Miller, 78 Mass. App. Ct. 860 (March 2, 2011)
In this case, the court affirmed the district court's order allowing the defendant's motion to suppress but on a different legal basis. The officer in this case stopped the defendant's car because its license plate had a black stripe covering the words "Spirit of America." The officer believed that the stripe violated a regulation that prohibits license plate frames from obscuring any word or number on the license plate. The district court allowed the motion to suppress on the basis that the regulation was broader than the governing statute, which only addressed obscuring the numbers on the plate, and the Registry of Motor Vehicles had no authority to expand the scope of the statute to prohibit more conduct. The Appeals Court found that it did not need to rule on the legitimacy of the regulation because the regulation itself only prohibited license frames that obscured contents, not black stripes. Therefore, the officer was mistaken that the black stripe was a violation of the regulation, and because it was a mistake of law that predicated the stop, the fruits of the stop must be suppressed.

Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827 (February 28, 2011)
The Appeals Court answered reported questions from the district court as follows:

1. Returns of service on Chapter 209 orders meets the requirements of the official or public records exception to the hearsay rule; and
2. Returns of service on Chapter 209 orders are not testimonial and can be admitted into evidence without a live witness.

Commonwealth v. Heang, 458 Mass. 827 (February 15, 2011)
While affirming the defendant's convictions, the court set forth guidelines on the admission of testimony by a ballistics expert:

1. Before trial, the examiner must adequately document the findings or observations that support the examiner's ultimate opinion, and this documentary evidence, whether in the form of measurements, notes, sketches, or photographs, shall be provided in discovery, so that defense counsel will have an adequate and informed basis to cross-examine the forensic ballistics expert at trial;
2. Before an opinion is offered at trial, a forensic ballistics expert should explain to the jury the theories and methodologies underlying the field of forensic ballistics. This testimony should include, but is not limited to, explanation of how toolmarks are imparted onto projectiles and cartridge casings; the differences between class, subclass, and individual characteristics of firearms; and the different types of resulting toolmarks that examiners look for and compare. Such testimony should also clearly articulate the differences between class and subclass characteristic toolmarks, which can narrow down the group of weapons that may have fired a particular projectile, and individual characteristic toolmarks, which potentially may permit an opinion that a particular firearm fired a projectile; and
3. In the absence of special circumstances casting doubt on the reliability of an opinion, and once these two things have been done, a forensic ballistics expert may present an expert's opinion of the toolmarks found on projectiles and cartridge casings. Where a qualified expert has identified sufficient individual characteristic toolmarks reasonably to offer an opinion that a particular firearm fired a projectile or cartridge casing recovered as evidence, the expert may offer that opinion to a "reasonable degree of ballistic certainty."

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The Massachusetts Bar Association now has a presence on three social networking platforms, including Facebook, launched in October 2010, LinkedIn, launched in January 2010, and Twitter, launched in July 2009. All three social media platforms feature information about the MBA including CLE, events and news.

As an MBA member, we encourage you to both post items of interest to you, and the greater legal community, on these pages and comment on items already posted.

Put your name out there

The goal of section councils is to offer members opportunities for professional growth and development through participation in section activities. One opportunity available to section members is publishing articles which are of interest to fellow practitioners. The MBA provides several forums for articles by section members - Lawyers Journal and the Massachusetts Law Review.  

If you are interested in writing an article for any of these publications or if you have seen articles which you think may be of interest to other Criminal Justice Section members, please contact Jean Stevens at [e-mail jstevens] for more information regarding this opportunity.

MBA May 18-19 Centennial conference to feature two-days of concurrent educational tracks; the Access to Justice Awards Luncheon and "Hail to the Chiefs" Bench-Bar Panel on May 18; Centennial Ball on May 19

The MBA's Centennial Conference, a celebration of the MBA's century of service to the public, profession and rule of law, will take place on Wednesday, May 18 and Thursday, May 19 at the Boston Sheraton Hotel.

Click here to register.

Conference programming includes:

** Massachusetts lawyers who are MBA members can earn up to a 7.5 percent premium credit on Massachusetts professional liability insurance offered by CNA through the MBA Insurance Agency. You can earn a 5 percent premium credit by attending the Building a Solid Foundation: Managing Law Practice Risk session plus one other Substantive Track session. If more than one-third of your firm's attorneys attend, you can earn up to a 7.5 percent premium credit. This offer is valid for new and renewed lawyers' professional liability insurance policies with an effective date of Aug. 1, 2011 to July 31, 2012. This offer may not be combined with any other malpractice prevention/CLE premium credits. **