NEW ENGLAND LAW REVIEW

MASSACHUSETTS CRIMINAL DIGEST

VOLUME 47 January 2013

NEW ENGLAND LAW | BOSTON 2013 Copyright New England School of Law, Boston, MA

NEW ENGLAND LAW REVIEW

VOLUME 47 2012-2013 NUMBERS 1-4

EDITORIAL BOARD
Editor-in-Chief WILLIAM H. WYNNE Managing Editor LEIGH ANN JOHNSON Executive Article Editors MATTHEW GALLAGHER JUSTIN KESSELMAN Executive Online Editor ALEX AFERIAT Business Managing Editor JEFFREY D. KNIGHT Executive Literary Editors ELIZABETH C. LAZAR SARAH HAWKINS

Symposium Editor JULIANA CATANZARITI

Online Editors KIMBERLY KROHA JEANNA MORRIS Executive Comment & Note Editors ALAINA ANDERSON ERIN FITZGERALD DANIELLE FLYNN ERIN HYSELL DAVID SHEPPARD-BRICK

Alumni Relations Editor KIMBERLY BUTLER RAINEN

Comment & Note Editors ELIZABETH ANDERSON THOMAS FLANAGAN ERIN GORMLEY MATTHEW GRAZIO SHANA HEISEY JACLYN LATESSA ALLISON MCNULTY BRITTANY PIERCE BROCK SHRIVER

Technical Editors BRETT BAUMAN MATTHEW CAMPBELL MEAGHAN HATCH SARRAH KMIECIAK CHRISTOPHER MONSON ELIZABETH NICOLL AMY PARKER KEELEY RICE

ASSOCIATE MEMBERS
LINDSAY BOHAN WILLIAM BREKKA KAREN CASETTA SARAH FAUST ADAM FIEDLER FELICIA FLAHIVE CONOR GERAGHTY LOUISA GIBBS DEVIN GUIMONT ERIK HAGEN MELISSA HAMBELTON CRYSTAL HEADRICK ZACHARY HELLER ANDREW HIGLEY CAROLINE KELLY ROBB LEVINE MICHAEL LOMBARDI SARAH LOWDON ROBERT MARTIN MICHAEL MARTUCCI BRIAN MCNIFF KRISTEN MULLEN GREGORY PAONESSA JANIE REILLY Faculty Advisor LAWRENCE M. FRIEDMAN ALLISON REUTER LINDSAY REYNOLDS KEITH RICHARD ANNALISE SCOBEY STEPHEN SHOREY RACHEL SZOSTAK KENNETH THOMPSON KATE TIMBERLAKE ELIZABETH VAN BLARCOM JARED VARO ROBERT WILLIAMS VANESSA WOODMAN

NEW ENGLAND LAW REVIEW

MASSACHUSETTS CRIMINAL DIGEST
VOLUME 47 JANUARY 2013 ISSUE 1

TABLE OF CONTENTS
COMMONWEALTH V. BARNES, 461 Mass. 644 (2012) Contributing Editor: Allison McNulty .................................................................... 1 COMMONWEALTH V. WOODBINE, 461 Mass. 720 (2012) Contributing Editor: Brittany Pierce........................................................................ 5 COMMONWEALTH V. GOUSE, 461 Mass. 787 (2012) Contributing Editor: Brock Shriver .......................................................................... 9 NEW ENGLAND INTERNET CAF, L.L.C. V. CLERK OF SUPERIOR COURT FOR CRIMINAL BUS. IN SUFFOLK CNTY., 462 Mass. 76 (2012) Contributing Editor: Erin Fitzgerald ..................................................................... 13 COMMONWEALTH V. NEGRON, 462 Mass. 102 (2012) Contributing Editor: Elizabeth C. Lazar................................................................. 17 COMMONWEALTH V. WASHINGTON W., 462 Mass. 204 (2012) Contributing Editor: Juliana Catanzariti ............................................................... 21 COMMONWEALTH V. PRUNTY, 462 Mass. 295 (2012) Contributing Editor: Kimberly Butler Rainen........................................................ 25 COMMONWEALTH V. PORTILLO, 462 Mass. 324 (2012) Contributing Editor: Matthew Gallagher ............................................................... 29 COMMONWEALTH V. MORALES, 462 Mass. 334 (2012) Contributing Editor: Matthew Grazio .................................................................... 33 COMMONWEALTH V. MAGRI, 462 Mass. 360 (2012) Contributing Editor: Sarah K. Hawkins ................................................................. 37 COMMONWEALTH V. RODERIQUES, 462 Mass. 415 (2012) Contributing Editor: Thomas Flanagan ................................................................. 41
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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Barnes, 461 Mass. 644 (2012)

CONTRIBUTING EDITOR: ALLISON MCNULTY I. Procedural History

In Commonwealth v. Barnes, the Massachusetts Supreme Judicial Court (SJC) considered three petitions for relief, challenging one or more orders of a judge in the Quincy District Court relating to the OpenCourt project.1 II. Facts The OpenCourt project was developed by the National Public Radio station in Boston. Over the Internet, OpenCourt streams video and audio recordings of proceedings in the first session of the Quincy District Court. The OpenCourt project was approved by the SJC and is governed by Rule 1.19 of the Rules of the Supreme Judicial Court. In the first petition, the Commonwealth appealed from a judges order permitting OpenCourt to post video and audio recordings of a criminal dangerousness hearing. During the hearing, the judge permitted OpenCourt to record, but ordered that there be no mention of the minor victims name. Defense counsel accidentally mentioned the victims name three times. The Commonwealth then sought an order forbidding the video from being archived. The second petition was brought by OpenCourt and it sought to challenge a judges order which required OpenCourt to redact an alleged victims name from a recording and to stay public access to the recording. In the third petition, Charles Diorioa criminal defendantappealed from orders allowing the broadcasting of his arraignment and a motion hearing.2

1 2

Commonwealth v. Barnes, 461 Mass. 644, 645 (2012). Id. at 645-646, 654-655.

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III. Issues Presented 1. Whether restrictions on OpenCourts ability to publish existing audio and video recordings were prior restraints in violation of the First Amendment. 2. Whether removing a recording with a minor victims name from OpenCourts website is necessary to protect a compelling government interest and is the least restrictive reasonable method to do so. 3. Whether the streaming of a criminal defendants arraignment and motion hearing violates that defendants right to a fair trial in another pending case and effective assistance of counsel. IV. Holdings and Reasoning 1. The SJC held that restrictions on OpenCourts ability to publish existing audio and video recordings constituted prior restraints in violation of the First Amendment. The court explained that a prior restraint on the freedom of speech and press is only allowed if justified by a compelling State interest to protect against a serious and identified threat of harm.3 The Commonwealth and Diorio argued that because the OpenCourt project only exists due to the cooperation of the Quincy District Court, all of its recordings should be deemed court documents. This would mean that the recordings, like all other court documents, can be redacted or impounded for good cause without implicating the First Amendment.4 The court rejected this argument and found the Quincy District Courts cooperation with OpenCourt was not extensive enough to allow a finding that the recordings were court documents; OpenCourt employs their own production staff and maintains the recordings on its private website.5 According to Rule 1:19 of the Rules of the Supreme Judicial Court, a judge shall permit broadcasting of court room proceedings but may limit coverage if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence.6 The court found the ability to limit coverage under Rule 1:19 only applies to the judges initial decision to allow the session to be recorded.7 Once that decision has been made, the ability of the judge to control what is done with the recording is limited by the prior restraint doctrine; it must be determined that any restraint imposed is necessary to protect a compelling government interest and is the least restrictive reasonable

3 Id. at 652, quoting George W. Prescott Publ. Co. v. Stoughton Div. of the Dist. Court Dept of the Trial Court, 428 Mass. 309, 311 (1998). 4 5 6 7

Id. at 652-653. Id. at 653. Id. at 647, quoting S.J.C. Rule 1:19, 461 Mass. 1301, 1301-1302 (2012). Commonwealth v. Barnes, supra at 654, quoting S.J.C. Rule 1:19, 461 Mass. at 1302.

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method to do so.8 2. In the first petition, the Commonwealth argued that protecting the privacy of minor sexual assault victims is a compelling State interest that justifies a judicial order forbidding posting the recording on OpenCourts Web site.9 The SJC acknowledged that the Supreme Court has found this to be a compelling state interest but also notes that the measures necessary to protect that interest are supposed to be decided on a case-by-case basis, considering factors such as the minor victims age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.10 The Commonwealth failed to provide any evidence that psychological harm would result if the recording was not removed from OpenCourts website.11 Additionally, the Commonwealth presented no factors or characteristics relating to this particular minor and failed to show that removing the recording was the least restrictive means of protecting the minor victim.12 Therefore, the SJC held that the judge could not order the recording removed because the Commonwealth failed to pass the prior restraint testremoving the recording was not necessary to protect a compelling government interest, nor was it the least restrictive reasonable method to do so.13 3. The SJC held that the streaming of Diorios arraignment and motion hearing did not violate his right to a fair trial in another pending case.14 Diorio argued that the streaming of his arraignment and motion hearing in which he was shackledwould create a substantial likelihood of an unfair trial in his other pending case because if jurors saw the video, they would be prejudiced against him.15 The SJC rejected this argument and found there was no substantial likelihood of harm to Diorios fair trial right, because the case against Diorio in which identification was at issue took place in another county, and many alternatives to protect the right existed, including juror voir dire and cross-examination during any subsequent trial on those charges.16 Additionally, there was not a substantial likelihood of harm to Diorios right to counsel.17 Diorio argued that the microphones used by OpenCourt can pick up court room whispers, preventing him from speaking

8 9

Id. Id. at 655. 10 Id. at 656, quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-608 (1982). 11 Id. 12 Id. 13 Commonwealth v. Barnes, supra at 656-657. 14 Id. at 659-660. 15 Id. at 659. 16 Id. at 659-660. 17 Id. at 660.

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confidentially with his attorney during the proceeding.18 The SJC rejected this argument because the microphones used by OpenCourt are the same microphones used by the Quincy District Court.19 Therefore, Diorios right to counsel was not violated because the defendants and their counsel must take exactly the same precautions to ensure that their conversations are not recorded as they would if OpenCourt were not present in the court room.20

18 19 20

Id. at 559. Commonwealth v. Barnes, supra at 660. Id.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Woodbine, 461 Mass. 720 (2012)

CONTRIBUTING EDITOR: BRITTANY PIERCE I. Procedural History

Prior to trial, Woodbine filed a motion to suppress statements that he made to detectives in the hospital. Defense counsel provided a transcript of Woodbines recorded statement to Detective Keeler and the prosecutor, and Keeler reviewed the transcript before the hearing. At the hearing, Keeler testified that he did not record, take notes, or write a report about Woodbines initial statements to him. The motion judge denied Woodbines motion to suppress the unrecorded statement, holding that the statement was made voluntarily. However, the judge granted the motion to suppress the recorded statement, concluding that Woodbine had invoked his right to counsel before that part of the interview took place.1 In response to Woodbines oral motion to prevent Keeler from using the transcript of the inadmissible recorded statement to refresh his recollection of the unrecorded statement, the judge found the issue to be moot. Therefore, Woodbine filed a written motion seeking to limit Keelers testimony. Following a brief voir dire, the judge ruled that Keeler could testify to all of Woodbines unrecorded statement with the exception of two topics for which he stated that had no independent memory.2 II. Facts3 On the evening of December 15, 2003, Aston Dwayne was shot and killed while walking to his car in Dorchester. Shortly thereafter, defendant Woodbine ran up to the car of Wilson Jean-Philippe and asked for help. Woodbine was bleeding from his left leg, and when he began to reach for something in his pants, Jean-Philippe drove away. Jean-Philippe later

1 2 3

Commonwealth v. Woodbine, 461 Mass. 720, 725-726 (2012). Id. at 726-727. Id. at 721-725.

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returned to where he had been parked and found a gun on the ground that appeared to have blood on it. Woodbine was found at a nearby building and taken to the hospital. Upon arriving at the hospital, detectives attempted to question him, but left after he stated that he did not wish to speak to them. The next day, the detectives returned to the hospital, recited the Miranda rights, and informed Woodbine that he was being charged with murder. Woodbine asked to speak with Detective Keeler alone and provided details of the shooting to Keeler, including a description of his accomplices and a motive. When Detective Callahan returned, they took a tape-recorded statement from Woodbine. III. Issues Presented 1. Whether Woodbines motion to suppress the statements that he made to the detectives was properly denied?4 2. Whether it was proper for Keeler to testify in detail about Woodbines unrecorded statement when he had the opportunity to review Woodbines subsequent recorded testimony at least twice before trial and there was no guarantee that he had a specific memory of the event?5 3. Whether the prosecutor influenced the jury to draw an improper inference during closing arguments?6 4. Whether it was an error for the trial judge to fail to give a DiGiambattista instruction?7 IV. Holdings and Reasoning The Supreme Judicial Court reversed Woodbines convictions and remanded the case for a new trial.8 The Court first concluded that Woodbines motion to suppress was properly denied because he received complete Miranda warnings prior to making his unrecorded statement.9 In addition, Woodbines statement was properly found to be knowingly and voluntarily made where he expressed a desire to speak with Keeler and there was no evidence that he was in a confused state, that he was on medication that rendered him unable to think clearly, or that he was unable to comprehend what the detectives were saying.10 Similarly, because the detectives immediately ceased

4 5

Id. at 727. Id. at 730. 6 Id. at 738-739. 7 Woodbine, 461 Mass. at 739-740. 8 Id. at 740. 9 Id. at 727-728. 10 Id. at 728-729.

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questioning when Woodbine stated that he did not wish to talk to them upon arriving at the hospital, did not return to question him for seventeen hours, and gave Woodbine his Miranda warnings prior to questioning him, the Court held that Woodbines subsequent unrecorded statement was properly admitted.11 As to the defendants second argument, the Court held that it was improper for the trial judge to allow the detective to testify about Woodbines unrecorded statement. The judge must conduct a voir dire examination of a witness when an issue arises as to whether they have an independent memory of an event or whether they are testifying about their memory of inadmissible evidence.12 The Court reasoned that where a witness refreshes his recollection with a suppressed document prior to trial, there is no indication to the jury that the witness had a prior inability to recall. Impeachment of the witness on cross-examination is therefore hindered because the suppressed evidence may not be used. Additionally, the Court concluded that the prosecutor asked the jury in closing arguments to draw an improper inference that Detective Callahan had created a written report of Woodbines unrecorded statement.13 The prosecutor knew the report made by Detective Callahan only contained a reference to the recording of the suppressed statement and, as a result, the argument was improper. Finally, the Court determined that because the recorded and unrecorded statements made by Woodbine were separate and distinct parts of a two-stage interrogation, a DiGiambattista instruction should have been given.14 Therefore, the jury should have been instructed that there is a preference that interrogations be recorded and that they should evaluate the defendants statement with care.15

Id. at 729-730. Id. at 731. 13 Woodbine, 461 Mass. at 738-739. 14 Id. at 739-740. [I]t is only from a complete recording of the entire interrogation that produced such a statement or confession, [that a fact finder] can evaluate its precise contents and any alleged coercive influences. Commonwealth v. DiGiambattista, 442 Mass. 423, 446 (2004).
12 15

11

Woodbine, 461 Mass. at 740, quoting DiGiambattista, 442 Mass. at 447-448.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Gouse, 461 Mass. 787 (2012)

CONTRIBUTING EDITOR: BROCK SHRIVER I. Procedural History

A jury convicted the defendant, Damian Gouse, of assault and battery in violation of G.L. c. 265, 13A for striking the victim with his fists; assault and battery by means of a dangerous weapon in violation of G.L. c. 265, 15A(b) for striking the victim with a shod foot; and for the unlawful possession of a firearm outside of his residence or place of business in violation of G.L. c. 269, 10G(a).1 Prior to trial, the defendant moved to suppress the firearm and, after a two-day hearing, his motion was denied. In a subsequent proceeding, the defendant was convicted of unlawful possession of a firearm having been previously convicted of a violent crime, in violation of G.L. c. 269, 10G(a).2 The defendant appealed and the case was transferred to the Supreme Judicial Court of Massachusetts on its own motion.3 II. Facts On the afternoon of January 19, 2008, the defendant attacked the victim in a public intersection in Fall River.4 Police arrived on scene shortly after the altercation and the victim reported that the defendant approached her in his vehicle.5 The victim refused the defendants requests for her to get inside the vehicle, and ran after the defendant exited the vehicle.6 After chasing the victim, the defendant caught up with her and punched her in the face.7 The victim struggled free and another chase ensued.8 The
1 2 3 4 5 6 7

Commonwealth v. Gouse, 461 Mass. 787, 788 (2012). Id. Id. Id. at 789. Id. at 790. Id. Gouse, 461 Mass. at 790.

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defendant again caught the victim and knocked her to the ground, this time kicking her with his shod foot.9 The officer photographed the injuries which showed a bump above the victims eye and blood flowing from her eye, nose and mouth.10 Two individuals told the officers on the scene that the defendant was armed.11 One of these individuals, identified as David Silvia, witnessed the defendant kicking the victim and was told by the defendant that he better leave or the defendant would shoot him.12 The victims father also told the police that the defendant was usually armed.13 Police in plain clothes drove to an apartment complex where the defendant was believed to be staying.14 They found the vehicle that matched the one the defendant was driving during the assault of the victim.15 They observed two females exit the apartment complex and approach the vehicle where one of them opened the trunk.16 A few moments later the defendant emerged from the complex and carrying a black bag, which he placed beside the opened trunk before returning inside the complex.17 One of the females placed the bag in the trunk; then the defendant and the two females entered the vehicle and drove away.18 The police pulled them over soon thereafter.19 The occupants were quickly removed from the vehicle and handcuffed.20 Police impounded he vehicle and conducted an inventory search on scene. No weapons were found on the defendants person, but a trunk search revealed the black bag.21 The police searched the bag and found a .22 caliber, sawed-off rifle, ammunition, and a spent casing.22 III. Issues Presented 1. Whether firearm should be suppressed because the police did not have probable cause to believe a firearm was in the vehicle or grounds to

8 9

Id. Id. 10 Id. at 791. 11 Id. 12 Id. 13 Gouse, 461 Mass. at 791. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Grouse, 491 Mass. at 791. 20 Id. 21 Id. at 791-792. 22 Id. at 792.

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11

conduct an inventory search.23 2. Whether evidence was insufficient to prove that the defendant constructively possessed the firearm.24 3. Whether the judge improperly allowed the jury to view a photograph of the victims facial injuries during the trial.25 4. Whether when issuing the jury instructions, the judge failed to clarify that the charge of assault and battery and assault and battery with a deadly weapon must be supported by separate and distinct acts, which may have confused the jury into thinking both charges stemmed from a single striking.26 Whether the conviction of being a subsequent offender infringed on the defendants Second Amendment rights and his State and Federal due process guarantees.27 IV. Holdings and Reasoning The search of the vehicle was justified by the automobile exception to the warrant requirement.28 Probable cause existed because three individuals told police that the defendant was likely to be armed.29 One witness told police the defendant threatened to shoot him.30 When the police did not find weapons in the vehicle it was appropriate to conclude that they may be in the bag in the trunk of the vehicle.31 The test for whether sufficient evidence of possession is present is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.32 In this case, the evidence warranted inferences that the defendant knew the bag contained a firearm and that he constructively possessed it.33 Determining whether the prejudicial effect of a piece of evidence outweighs its value is within the discretion of the trial judge.34 There is nothing to indicate that the trial judge abused this discretion in allowing
23 24

Id. Id. at 794. 25 Gouse, 491 Mass. at 796. 26 Id. at 798-799. 27 Id. at 799. 28 Id. at 792 citing Commonwealth v. Bostock, 450 Mass. 616, 624 (2008). 29 Id. at 792-793. 30 Id. at 793. 31 Gouse, 461 Mass. at 792 (citing Commonwealth v. Cast, 407 Mass. 891 (1990) (probable cause to search extends to all containers within the vehicle)).
32 33 34

Id. at 794 quoting Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008). Id. at 795. Id. at 797 quoting Commonwealth v. Pena, 455 Mass. 1, 12 (2009).

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the jury to view the photograph.35 The court only reviewed this claim to determine if a miscarriage of justice occurred because the defendant failed to raise this issue in the court below.36 It found that although the judge failed to mention the exact words, a separate and distinct act when issuing the instructions for the separate offenses, he explained each charge separately in relation to the alleged offense and did not mingle the two in a way that would have mislead the jury.37 The defendants Second Amendment argument failed because he presumed that recent Supreme Court decisions in McDonald v. Chicago, U.S. and District of Columbia v. Heller extend farther than they do.38 The right to bear arms is only extended by these cases to persons homes for self-defense, not anywhere they please.39 The defendants argument that his procedural rights were violated because he should not bear the burden of proof that he has a license to carry a gun also failed.40 Licensure is an affirmative defense to be raised by the defendant.41 If the defendant can produce a license then the burden shifts to the prosecution to prove it is invalid in the present case.42

35 36 37 38 39 40 41 42

See id. Id. at 799. Gouse, 461 Mass. at 799. Id. at 800-801. Id. at 801. Id. at 804. Id. Id.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

New England Internet Caf, L.L.C. v. Clerk of Superior Court for Criminal Bus. in Suffolk Cnty., 462 Mass. 76 (2012)

CONTRIBUTING EDITOR: ERIN E. FITZGERALD I. Procedural History

The plaintiffs, New England Internet Caf, LLC; Ronald Sevigny; Leo Pelletier; Linda Pelletier; and Donald Greenidge (Plaintiffs) sought access to search warrant materials by filing a motion with the criminal session judge who had authorized the warrants. On May 13, 2011, the judge dismissed the motion and instructed the plaintiffs to file a civil action in the Superior Court. On May 24, 2011, the plaintiffs filed a civil complaint and an emergency motion to modify or terminate the impoundment order on the warrant materials. On June 23, 2011, a civil session judge granted the plaintiffs motion. The clerk of the Superior Court for Criminal Business and the Attorney General (Defendants) sought review of this order in the Appeals Court and the Supreme Judicial Court (SJC) transferred the appeal on its own motion.1 II. Facts As part of the Attorney Generals efforts to stop online gambling in Internet cafs, police obtained search warrants for the plaintiffs properties and bank accounts. In addition, they received permission to seal and impound the warrants and their accompanying application and affidavits.2 After the search warrants were executed and no indictments were issued, the plaintiffs filed a civil action and a motion to remove the impoundment order on the warrant materials. The judge granted the

1 New England Internet Caf, L.L.C. v. Clerk of the Superior Court for Criminal Bus. in Suffolk Cnty., 462 Mass. 76, 77-78 (2012). 2

Id. at 79.

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plaintiffs motion to unseal the warrant documents and the defendants sought review by the Appeals Court. The SJC transferred the appeal on its own motion. III. Issues Presented 1. Did the criminal session judges acknowledgement of the existence of good cause for maintaining the impoundment order in the May 13, 2011 decision to dismiss prohibit the plaintiffs from being able to renew their challenge to the impoundment order?3 2. Was the June 23, 2011 order by the civil session judge procedurally deficient because it was a preliminary injunction that granted the ultimate relief sought without providing the defendants with adequate notice of or opportunity to respond?4 3. As targets of the search warrant, do the plaintiffs have a Fourth Amendment right to access the search warrant materials before indictment?5 IV. Holdings and Reasoning 1. No. The Court concluded that a plain reading of the May 13, 2011 decision clearly shows the judge took no action on the merits of the plaintiffs motion. In the decision the judge states that no action was taken and that the motion is dismissed without prejudice.6 Both statements support that the plaintiffs were free to re-file without any constraint. Additionally, the Court held that the Commonwealths assertion that the plaintiffs were required to show a change in circumstance or a passage of time before resubmission of the motion was incorrect. The only procedural rule imposed on the plaintiffs was to present a non-frivolous claim. The conclusion that the plaintiffs claims were not frivolous is supported by the May 13, 2011 decision that describes the claims as persuasive and having important litigation of constitutional dimension.7 Furthermore, the judgeafter hearing oral arguments and reviewing each partys briefsfound sufficient support to grant the emergency motion to modify the impoundment in the June 23, 2011 decision.8 2. No. The decision to impound documents is the exception to the

3 4 5 6 7 8

Id. at 84. Id. at 85. Id. at 88. New England Internet Caf, L.L.C., 462 Mass. at 84. Id. at 85. See Id. at 84-85.

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general rule of publicity. When considering a motion to modify or terminate impoundment, courts must consider the interests of each party under the specific facts presented. The review process is flexible and allows judges to create appropriate remedieseven if they grant the ultimate relief soughtunder the circumstances. Guided by the malleable nature of impoundment proceedings the Court concluded the judges treatment of the plaintiffs emergency motion was appropriate. The issue of impoundment had been fully briefed and argued only a few weeks earlier when the defendants sought the original impoundment order. Thus, the Court did not require extensive notice. Additionally, after hearing oral arguments the judge allowed the defendants to provide additional information to support their need for impoundment and stated that only after reviewing everything would the judge issue a decision. Finally, the judges removal of the impoundment order had limitations. The judge only unsealed the warrant affidavits and allowed the defendants to submit proposed redactions to them.9 3. No. The plaintiffs asserted that the good cause standard is inadequate to protect the interests of the target of a search. Thus, the plaintiffs urged the Court to recognize that the Fourth Amendments protection against unreasonable intrusion and its requirement of probable cause creates a postexecution, preindictment right to challenge both the reasonableness of the search and the degree to which the warrant was supported by probable cause.10 Further, the plaintiff contended that to give meaning to this right, a person must be able to inspect and copy the affidavit the warrant is based on. The Court disagreed for two reasons. First, while the plaintiff was correct that the good cause standard was created as a way to ensure that media outlets had access to impounded court materials, this did not mean that it is per se insufficient to protect the rights of those subject to the search. There is a presumptive right of allnot only members of the mediato access of court documents. It is through this lens that judges consider all impoundment matters.11 Second, like the Fourth Amendment, the right of publicity is not absolute. Courts must balance the rights of the parties and the relevant facts when determining whether to grant (or modify or terminate) an impoundment order. The good cause balancing test essentially uses the same factors found in a Fourth Amendment analysis. The plaintiff argued that in some situations the publics interest in access to court documents conflicts with, and must be balanced against, a criminal defendants interest. While the Court agreed with this assertion, it holds that the good
9

Id. at 85, 87. Id. at 88. 11 Id. at 90.

10

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cause standard is flexible enough to take all interestsprosecutions, defendants, and mediasinto account under its analysis. Therefore, the court concluded that a Fourth Amendment analysis, separate and apart from the good cause analysis, is unnecessary.12

12

New England Internet Caf, L.L.C., 462 Mass. at 92.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Negron, 462 Mass. 102 (2012)

CONTRIBUTING EDITOR: ELIZABETH C. LAZAR I. Procedural History

A grand jury indicted the defendant for home invasion, in violation of G.L. c. 265, 18C; assault and battery by means of a dangerous weapon, in violation of G.L. c. 265, 15A(b); burglary in the nighttime when armed or when making an assault (aggravated burglary), in violation of G.L. c. 266, 14; and armed assault in a dwelling house (armed assault in a dwelling), in violation of G.L. c. 265 18A. The defendant pleaded guilty to assault and battery by means of a dangerous weapon, aggravated burglary, and armed assault in a dwelling.1 II. Facts Four armed men invaded an apartment in Springfield on the night of June 27, 2003 intending to rob the occupants.2 One of the men shot the occupants with a BB gun; the defendant was found hiding a few blocks away.3 Two victims identified him as one of the men who had broken into the apartment.4 III. Issues Presented 1. Whether the defendant could challenge an assault conviction on double jeopardy grounds when he pled guilty to the allegedly duplicative offense. 2. Whether the defendants conviction of armed assault in a dwelling was duplicative of his conviction of aggravated burglary.

1 2 3 4

Commonwealth v. Negron, 462 Mass. 102, 103 (2012). Id. at 102. Id. at 102-103. Id. at 103.

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IV. Holdings and Reasoning The court found that a defendant who pleads guilty to an allegedly duplicative charge does not forgo his right to vacate that conviction.5 The court cited Commonwealth v. Clark,6 where the SJC held that a guilty plea will not preclude a court from hearing a constitutional claim that the State should not have tried the defendant at all and Massachusetts Rule of Criminal Procedure 30(a), which allows a defendant to challenge a conviction achieved through a guilty plea.7 The court reasoned that since a guilty plea, which is an admission of the charged facts, is a conviction, Rule 30(a) allows a defendant to challenge that conviction on double jeopardy grounds. Concluding that both the common law and rules of criminal procedure allow such a challenge, the court rejected the Commonwealths reliance on two Massachusetts Court of Appeals decisions8 that held a defendant could not raise this type of challenge where he failed to challenge the allegedly duplicative charge in a pretrial motion to dismiss and subsequently pleaded guilty to the charge.9 The court rejected the Appeals Courts reasoning because the cases at issue incorrectly treated the Supreme Courts decision in United States v. Broce10 as binding precedent. In Broce, the Court found that the convicted defendants could not collaterally attack two convictions of conspiracy to rig bids and suppress competition in violation of the Sherman Act as duplicative because a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede[s] that he has committed two separate crimes.11 The Broce indictments had identified two separate bidrigging agreements, and before entering a guilty plea the defendants did not allege the existence of only one conspiracy in a trial-type proceeding. The Court concluded that the defendants had relinquished their entitlement to attack the conviction. Based on the facts of Broce and the Courts reasoning, the SJC found that this rule of relinquishment is a procedural bar existing in Federal common law, and as such does not govern State procedural law.12 The court also found that even if the Broce
5 6

Id. at 108. 379 Mass. 623, 625-626 (1980). 7 Negron, 462 Mass. at 104-105. 8 Commonwealth v. Buckley, 76 Mass. App. Ct. 123 (2010); Commonwealth v. Mazzantini, 74 Mass. App. Ct. 915 (2009). Negron, 462 Mass. at 105. 488 U.S. 563 (1989). 11 Negron, 462 Mass. at 106 (quoting Broce, 488 U.S. at 569-570) (internal quotation marks omitted). 12 Id. at 106 (citing Commonwealth v. LePage, 352 Mass. 403, 409 (1967) (holding that federal rules do not control Massachusetts procedure)).
10 9

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Commonwealth v. Negron

19

rule applied, it would not bar the defendants review in this case. The Supreme Court had identified an exception to Broce where on the face of the record the court had no power to enter the conviction or impose the sentence.13 In contrast, a court may review a double jeopardy claim on the basis of the indictments without making evidentiary findings or expanding the record, and thus a guilty plea does not proscribe collateral review of a double jeopardy claim.14 In concluding its analysis, the court declined to adopt the rule of relinquishment because double jeopardy would exceed legislative authorization and is contrary to legislative intent.15 The court found that a conviction of armed assault in a dwelling is not duplicative of a conviction of aggravated burglary.16 The court quoted the Massachusetts rule on duplicative charges: [A] defendant may be properly punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.17 The court compared the elements of the defendants two crimes. The elements of armed assault in a dwelling are: (1) the defendant entered a dwelling that was not his own while armed with a dangerous weapon; (2) the defendant assaulted another inside the dwelling; and (3) the assault was committed with the intent to commit a felony.18 The elements of aggravated burglary are: (1) the defendant broke into and entered the dwelling of another; (2) the breaking and entering occurred at night; (3) at the time of the breaking and entering the defendant intended to commit a felony; (4) a person was lawfully inside the dwelling; and (5) the defendant was armed at the time of the breaking and entering or armed himself inside the dwelling, or the defendant assaulted a person who was lawfully in the dwelling once inside the dwelling.19 The court reasoned that since the fifth element of aggravated burglary may be proved in two different ways, aggravated burglary occurs in two forms (armed burglary and burglary with assault). Armed assault in a dwelling requires an element that is not required under either type of aggravated burglary: the intent to commit a felony at the time of the assault and therefore armed assault in a dwelling is not a lesser-included offense of aggravated burglary. Likewise, armed burglary and burglary with assault are not lesser included offenses of armed assault in a dwelling since the former require two elements not required in armed assault in a

Id. at 106-107 (quoting Broce, 488 U.S. at 569). Id. at 107. 15 Id. 108. 16 Id. at 111. 17 Negron, 462 Mass. at 109 (quoting Commonwealth v. Vick, 454 Mass. 418, 431 (2009) (internal quotation marks and citation omitted)).
14 18 19

13

Id. at 109 (citing G.L. c. 265 18A). Id. at 110 (citing G.L. c. 266 14).

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dwelling: intent to commit a felony at the time of entry into the dwelling and breaking and entering in the nighttime.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Washington W., 462 Mass. 204 (2012)

CONTRIBUTING EDITOR: JULIANA CATANZARITI I. Procedural History

On August 13, 2008, Washington W., a juvenile, filed a motion seeking discovery of statistical data concerning the district attorneys prosecution of juvenile sexual assault charges. A Juvenile Court judge denied the motion without prejudice. After the Supreme Judicial Courts (SJC) decision in Commonwealth v. Bernardo,1 the juvenile filed a renewed discovery motion that was allowed on March 30, 2009. The Court ordered the Commonwealth to produce discovery no later than May 4, 2009. After denial of the Commonwealths motion for reconsideration, a new June 4, 2009 production deadline was set. On June 2, the Commonwealth moved for relief from that order. The judge denied the motion, but extended the deadline to June 19, 2009. On June 12, the Commonwealth filed a petition for interlocutory review of the discovery order with the SJC. On June 25, 2010, the SJC affirmed the order.2 In December 2009, the Commonwealth indicted the juvenile as a youthful offender for two incidents of rape of a child. On March 2, 2010, the juvenile moved to dismiss the indictments. On July 2, 2010, the judge granted the motion to dismiss without prejudice.3 At a status hearing on July 8, 2010, the juvenile filed a renewed motion for the statistical discovery, which the prosecutor promised to deliver at the next scheduled court date. At the next court date, August 12, 2010, the Commonwealth failed to produce the discovery and informed that judge that it no longer considered itself legally obligated to provide it because the indictments had been dismissed. The judge noted that the Commonwealth
453 Mass. 158, 169 (2009) (holding that discovery requests pertaining to a defendants claim of selective prosecution may be granted where the defendant has made a threshold showing of relevance under Mass. R. Crim. P. 14).
2 3 1

Commonwealth v. Washington W., 462 Mass. 204, 206 (2012). Id. at 206.

21

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v. 47 | 21

was still pursuing prosecution of the indictments, and ordered production of all discovery by August 31, 2010. On October 5, the juvenile had still not received the discovery, and moved to dismiss the indictments with prejudice. On October 7, the prosecutor informed the judge that he had the discovery with him, but he would not produce it because he was no longer obligated to. The judge allowed the juveniles motion to dismiss with prejudice.4 II. Facts The juvenile and the complainant have Aspergers syndrome. When the juvenile was in the ninth grade and the complainant in the seventh, they became friends and often played at the juveniles home. On May 7, 2007, the complainant told his parents that he had engaged in various sexual acts with the juvenile that were initiated by the juvenile. The parents notified the police, and Detective Eric Wade interviewed the parents that day. Three days later, the complainant participated in a Sexual Abuse Intervention Network (SAIN) interview. On August 7, 2007, the juvenile was charged with two delinquency complaints of rape of a child, and two delinquency complaints of indecent assault and battery on a child under the age of fourteen.5 III. Issues Presented 1. Whether the July 2, 2010 dismissal of the indictments was proper under a theory of (a) insufficiency of the evidence; or (b) the impairment of the integrity of the grand jury proceeding. 2. Whether the judge properly dismissed the indictments with prejudice for failure of the Commonwealth to comply with discovery orders. IV. Holdings and Reasoning 1(a). The judge erred in granting the July 2 dismissal on insufficiency grounds. In order to indict an accused, the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him[.]6 Here, the detectives testimony that the complainant told him that the juvenile would push his pants down and then push him on to the ground was enough to support the youthful offender indictment.7 1(b). The judge did not err in holding that sufficient evidence was withheld from the grand jury to so seriously taint the proceedings as to

4 5 6 7

Id. at 208. Id. at 205. Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (internal citation omitted). Commonwealth v. Washington W., supra at 211.

2013

Commonwealth v. Washington W.

23

warrant dismissal of the indictments.8 When the prosecutor possesse[d] evidence which would greatly undermine the credibility of evidence likely to affect the grand jurys decision to indict, the prosecutor must alert the grand jury to the existence of such evidence.9 In this case, the prosecutor had a transcript and a video recording of the SAIN interview with the complainant, but did not offer it into evidence. During the interview, the complainant made statements that were inconsistent with the testimony offered by Detective Wade. Contrary to Wades testimony that the complainant told him that he was pushed or forced to the ground, during the interview, the complainant made no such statements. This evidence would have contradicted the detectives statements and put into question the reliability of the parents statements that the complainant told them that the juvenile pushed him to the ground. The infliction of threat or serious bodily harm was a necessary element of the offense, and although the prosecutor was not required to provide copies of the SAIN interview, he was required to present the grand jury with exculpatory information that would undermine that necessary element of the offense. The indictments were properly dismissed.10 2. The judge did not abuse his discretion when he dismissed the indictments with prejudice on October 7, 2010. A judge may impose sanctions on a party for failure to comply with a discovery order. The SJC accepts the lower courts findings of fact absent clear error, and reviews the sanction order for abuse of discretion. The court finds no clear error in the judges finding that the Commonwealth deliberately, willfully, and repetitively failed to provide the statistical discovery. The Commonwealth appeared to be aware of its obligation, as it represented that it would produce the discovery at a later date. However, the prosecutor reneged on his affirmation, and contended that he no longer had an obligation to produce the discovery once the indictment had been dismissed. No party is permitted to disregard a court order based on its own contention that the order is no longer necessary. This is especially the case where, as here, the judge rejected that contention. Unless the order is vacated, it remains an order of the court and a party that willfully violates the order is subject to sanctions.11 The issue was not moot due to the July 2 dismissal because that dismissal was without prejudice and the Commonwealth was pursuing further action. The judge did not abuse her discretion in dismissing the case with prejudice after finding that the Commonwealth deliberately, willfully, and repeatedly failed to comply with the discovery order. Although dismissal

8 9

Id. Id. quoting Commonwealth v. McGahee, 393 Mass. 743, 746 (1985). 10 Id. at 212-213. 11 Id. at 215.

24

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is a remedy of last resort,12 in this case, the prosecutors misconduct was so egregious and willful that the sanction is appropriate. Additionally, the juvenile was denied the opportunity to support his selective prosecution claim, and correspondingly, his right to a fair trial.13

12 13

Id. at 215. Commonweath v. Washington W., supra at 217.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Prunty, 462 Mass. 295 (2012)

CONTRIBUTING EDITOR: KIMBERLY BUTLER RAINEN I. Procedural History

At trial, the judge rejected the defendants non-discriminatory reasons for exercising a peremptory challenge against the only African-American juror in a first degree murder trial where race would be at issue. The trial judge also issued a jury instruction that limited prior inconsistent statements of a witness to the evaluationof the witnesss credibility, and not for the statements truth. The Supreme Judicial Court of Massachusetts (SJC) deferred to the trial judges determinations on these two issues.1 II. Facts On August 7, 2004, the defendant, Daniel J. Prunty, confronted Jason Wells about items that were missing from his home after a party Wells attended at the defendants house the previous evening. An altercation took place at the defendants home involving Wells and other party attendees over the missing property. The defendant, a white male in his 20s, retrieved a rifle from his bedroom, pointed it at Wells, and threatened that if he did not return his property he would shoot him. The defendant used racially discriminatory statements in addressing Wells, an AfricanAmerican, during this altercation. After Wells admitted to taking the stolen items and attempted to reach the persons he believed possessed the items, the defendant again aimed the rifle at Wellss head and fatally shot him.2 A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, assault and battery by means of a dangerous weapon, and attempted extortion.3 During jury empanelment, defense counsel posed a peremptory

1 2

Commonwealth v. Prunty, 462 Mass. 295, 313-314, 318 (2012). Id. at 296-297. 3 Id.

25

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New Eng. L. Rev. Mass. Crim. Dig.

v. 47 | 25

challenge to Juror 16, the last juror to be empanelled. The prosecution objected to the challenge because juror was the only potential AfricanAmerican juror on the panel. When asked for justification for the challenge, defense counsel argued that the juror was likely to be prejudiced because the juror was a school teacher and because there was evidence of young people in their twenties using drugs. The judge found that the proffered reason for [the] challenge [was] not bona fide, but rather [was] a mere sham because two jurors were retired teachers and three other jurors had minor children.4 During trial, Rebecca Pape testified that the statement she gave to the grand jury, which was being used on cross examination to impeach her credibility, had been perjury. Pape initially testified to the grand jury that she and the defendant were in the bathroom together when Wells shot himself in the head. She later admitted to lying for the defendant, testifying that she witnessed the defendant shoot Wells in the head. At trial, the judge gave a jury instruction limiting the use of Papes prior inconsistent statements to assessing her credibility and not for their truth.5 The defendant appealed arguing that the limiting instruction was reversible error as the limiting instruction hindered his ability to rebut the Commonwealths case by excluding valuable exculpatory evidence from the jurys consideration.6 III. Issues Presented 1. Whether the trial court judge erred in rejecting the defendants peremptory challenge against the only potential African-American juror on a jury panel that was required to consider issues of defendants racism against the African-American victim at trial. 2. Whether the jury instructions, which limited the jury to using the witnesss prior inconsistent statements to solely assess the witnesss credibility, were proper. IV. Holdings and Reasoning Peremptory challenges are not absolutethe basis for a challenge cannot be discriminatory. In deciding whether a challenge is discriminatory, a judge has not abused his discretion unless juror prejudice is manifest.7 Therefore, appellate judges give great deference to the decisions of trial court judges on preemptory challenges. In this case, however, the prosecution successfully rebutted the presumption that the

4 5

Id. at 309-310. Id. at 303 n.10. 6 Id. at 296, 317. 7 Prunty, 462 Mass. at 304, citing Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001).

2013

Commonwealth v. Prunty

27

defendants peremptory challenge was proper by showing that the juror was the only African-American to be empanelled. Moreover, the trial court judge was entitled to reject the defendants proffered nondiscriminatory explanation for the challenge that the jurors occupation as a teacher would make it difficult for the juror to be impartial. Thus, the SJC concluded that the trial judge did not abuse his discretion and sufficiently discharged his responsibility to consider the adequacy and genuineness of the defendants proffered explanation.8 Lastly, the SJC concluded that the trial court judge did not abuse his discretion in rejecting the defendants argument that the African-American juror could not be impartial because he had experienced racism. Without some evidence of the jurors inability to be impartial, the fact that the juror had experienced racism is an illegitimate and impermissible race-based argument for a peremptory strike.9 Additionally, the SJC concluded that the jury instruction that limited the use of the witnesss prior inconsistent statements solely to assessing the witnesss credibility did not give rise to a substantial miscarriage of justice because: (1) there was overwhelming evidence of defendants guilt, (2) the instruction did not affect the defendants ability to rebut the Commonwealths case,10 and (3) the jury did not need to believe the truth of the witnesss statements to acquit the defendant.11

Id. at 306-307, 311. Id. at 313-14. 10 Id. at 316-17. 11 Id. at 317, citing Commonwealth v. Laguer, 448 Mass. 585, 598 n. 30 (2007) (finding that to succeed on motion for new trial the defendant must establish that there is a reasonable possibility that the evidence would have made a difference in the jury's verdict).
9

28

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Portillo, 462 Mass. 324 (2012)

CONTRIBUTING EDITOR: MATTHEW GALLAGHER I. Procedural History

Portillo moved to suppress statements he made to police during his interrogation under the Fifth and Fourteenth Amendments of the U.S. Constitution and article 12 of the Massachusetts Declaration of Rights because he had not been advised of his Miranda rights.1 The motion judge granted Portillos motion to suppressincluding the audio recording of the interrogation and the interrogating officers testimony regarding Portillos statements made during the interrogationbecause the Prosecution refused to provide the defense with a transcript of the Spanishlanguage interrogation despite having ample time to do so.2 The Commonwealth filed an interlocutory appeal, which was approved by a single justice of the Supreme Judicial Court (SJC). After being entered into the Appeals Court, the case was transferred to the SJC on its own motion.3 II. Facts Felix Portillo was charged with distribution of marijuana and possession of marijuana with intent to distribute.4 Portillo was interrogated by two officers in the Spanish language, and the interrogation was tape recorded.5 During discovery, the prosecution only provided the defense with a copy of the tape recording and not an English or Spanish transcript of the interrogation.6

1 2 3 4 5 6

Commonwealth v. Portillo, 462 Mass. 324, 325 (2012). Id. Id. at 325-326. Id. at 326. Id. Id.

29

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III. Issue Presented In Commonwealth v. Portillo, the SJC considered whether the prosecution must provide the defendant with an English-translated transcript of recorded deposition testimony taken in a language besides English that the prosecution intends to offer into evidence at trial or any evidentiary hearing.7 IV. Holdings and Reasoning The SJC held that where an interrogation was recorded by police, taken in a language besides English, and the prosecution intends to offer the testimony into evidence at trial or in an evidentiary hearing, the prosecution must provide an English transcript of the deposition to the defense or the statements will be excluded.8 The English-language transcript must be given to the defense sufficiently in advance of trial in order to resolve any questions of accuracy regarding the translation.9 The SJC recognized, pursuant to Mass. R. Crim. P. 14(a)(1)(A)(i), that the prosecution need not provide a transcript to the defendant for all recorded deposition testimony taken in English or another language providing a defendant with a copy of the recording is sufficient.10 The same applies for recorded testimony taken in English that the prosecution intends to introduce at trial.11 However, if the prosecution intends to introduce a transcript of a recorded deposition testimony into evidence at trial it must provide the defendant with a copy of said transcript sufficiently in advance of its use.12 Adopting the procedure of the First Circuit, parties should stipulate to one transcript of a recording before trial.13 Absent stipulation both parties may submit authenticated copies of the transcript and the jury is allowed to decide the accuracy of the transcripts.14 Jurors should also be instructed that they can disregard portions of the transcripts that they believe differs from what they hear on a recording.15 The language of Massachusetts and Federal courts is English.16 When a
See Commonwealth v. Portillo, 462 Mass. at 325. Id. at 332. 9 Id. 10 Id. at 326. 11 Id. at 327, citing Commonwealth v. Gordon, 389 Mass. 351, 355 (1983). 12 Id., citing United States v. Morales Madera, 352 F.3d 1, 8 (1st Cir. 2003), cert. denied, 541 U.S. 965 (2004). 13 See Commonwealth v. Portillo, 462 Mass. at 327-328, quoting United States v. Rengifo, 789 F.2d 975, 983 (1st Cir. 1986).
8 14 15 16 7

Id. Id. Id. at 328, citing Commonwealth v. Festa, 369 Mass. 419, 430 (1976).

2012

Commonwealth v. Portillo

31

recorded statement is taken in a language besides English and the recorded statement is to be entered into evidence at trial or an evidentiary hearing, an English-language transcript of the statement must be provided.17 The recorded statement cannot be offered into evidence without an English transcript because it is the English word that is the evidence, not the recording.18 A recording taken in a foreign language may only be admitted into evidence if there is relevant evidence on the recording besides the contents of the statementssuch as tone of voice or inflection, regarding a question of voluntariness.19 However, a court must weigh the probative value of the recording against the risk of prejudice before admitting the recording into evidence.20 A prosecutor may not rely on the jurys understanding of a foreign language to discern the meaning of the recording because it is the interpreted testimony that is evidence, not the jurors translation.21 The same procedure used for transcripts of English-language recordings is to be used for foreign-language recordingsthe parties should stipulate to one transcript, or in the event the parties cannot agree, the parties may each submit their own transcripts into evidence through the testimony of a translator.22 In order to effectuate this process, the prosecution must supply the defendant with an English copy of the transcript adequately in advance of trial to allow defense counsel to consider whether an agreement can be reached or to retain a translator and produce a separate English-language transcript.23

Id., citing Commonwealth v. Festa, 369 Mass. at 430. Id., citing Commonwealth v. Festa, 369 Mass. at 430, and United States v. Morales Madera, 352 F.3d at 8.
18 19 20 21 22 23

17

Commonwealth v. Portillo, 462 Mass. at 328-329. Id. at 329. Id. at 328. Id. at 329. Id. at 330.

32

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Morales, 462 Mass. 334 (2012)

CONTRIBUTING EDITOR: MATTHEW GRAZIO I. Procedural History

A grand jury indicted the defendant, Carlos Morales, on charges of possession of a class A controlled substance with intent to distribute, being a habitual offender, assault and battery on a police officer, and resisting arrest. Prior to trial, Defendant filed a motion to suppress the drugs seized from his person. After an evidentiary hearing, a Superior Court Judge granted Defendants motion. A single Justice of the Supreme Judicial Court (SJC) granted the Commonwealth leave to file an interlocutory appeal. The appeal was then transferred to the SJCand the suppression order was affirmed. II. Facts In early November 2009, Detective Daniel Desmarais was in contact with a confidential informant (CI) who informed Desmarias that Defendant was selling heroin out of his tan Ford Explorer, and that the CI had purchased heroin from Defendant several times during the previous month.1 The CI had previous dealings with Desmarias and had demonstrated reliability in the past.2 Desmarias learned from the CI that Defendant was buying his drugs from an unknown individual who resided at 22 Fetherston Avenue in Lowell.3 Desmarias continued his investigation and throughout early November was able to corroborate the information he obtained from the CI.4 On November 12, 2009, Desmarias followed Defendant in an unmarked police cruiser with Detective Lavoie following in his own police car.5 After ob1 2 3 4 5

Commonwealth v. Morales, 462 Mass. 334, 335-336 (2012). Id. Id. at 336. Id. Id.

33

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serving defendant drive to 22 Fetherston Avenuethe alleged drug suppliers homeand seeing him briefly enter the house, the Detectives followed Defendant to his residence.6 Defendant then recognized the police officers and sped away in his vehiclesubsequently committing various traffic infractions.7 A patrol officer in the vicinity saw the car and pulled Defendant over.8 The officer observed Defendant, while in his vehicle, leaning to the right and moving his hands behind his torsopresumably concealing something between his torso and clothing.9 Defendant was then taken from the car, with the help of Desmarias who had arrived on scene, and given a patdown of his outer clothing.10 During this pat-down Desmarias felt a lump between Defendants buttocks.11 This raised suspicion that Defendant was concealing drugs and Desmarias took Defendant to a more secluded area by a nearby house.12 Desmarias pulled back Defendants shorts and observed a clear plastic bag containing a tan powder wedged between defendants buttocks.13 Defendant turned to run, a struggle ensued, and eventually Defendant was subdued and handcuffed on the sidewalk.14 Defendant reached his hand down his shorts and, in response, Desmarias pulled back Defendants shorts, exposing his buttocks to public view, and retrieved the bag.15 Defendants father then arrived and saw his son lying face down on the sidewalk with his buttocks exposed.16 III. Issues Presented17 1. Was the defendant strip searched within the meaning of the Federal and State Constitutions? 2. Did the manner in which this search occurred contravene the reasonableness requirement imposed by the Fourth Amendment to the Federal Constitution and Article 14 of the Massachusetts Declaration of Rights?

Id. Commonwealth v. Morales, supra at 336-337. 8 Id. at 337. 9 Id. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Morales, supra at 338. 14 Id. 15 Id. 16 Id. 17 The SJC did not consider whether there was sufficient probable cause to arrest the defendant for possession of drugs and therefore assumed that the officers were justified in conducting a search of defendants person incident to that arrest. Id. at 339.
7

2013

Commonwealth v. Morales

35

IV. Holdings and Reasoning 1. The Commonwealth argued that Desmariass actions did not constitute a strip search and therefore his actions were permissible because the search was conducted incident to the defendants arrest.18 The SJC reaffirmed their definition of a strip search announced in Commonwealth v. Prophete: a strip search occurs where the detainee is commanded to remove the last layer of his or her clothing.19 The SJC also took guidance from the U.S. Supreme Court which recently noted that a strip search can occur in a variety of circumstances including, but not limited to, a visual inspection of a de-clothed detainee.20 A strip search need not include the touching of unclothed areas by the inspecting officer.21 A defendant need not be completely naked, as the Commonwealth contends, to achieve the status of a strip search.22 Viewing this case in light of these definitions, the SJC held that Desmariass action of lifting Defendants shorts and publically exposing his buttocks was a strip search.23 2. Because all searches must be conducted in a reasonable manner, the SJC next determined when and in what circumstances a strip search is reasonable.24 The SJC looked to cases construing the reasonableness of strip searches and described factors to be considered. These factors include: (1) whether the search was conducted in a private room; (2) whether there were exigent circumstances justifying and obviating the need for privacy; (3) whether the officers physically touched the detainee or conducted a visual strip searchthe latter tending to aid in establishing reasonableness; (4) whether the officer conducting the search is of the same gender; and (5) an overarching concern to protect the health and dignity of the detainee. Each case should be considered on its specific facts and circumstances, but the above factors should be considered in determining the reasonableness of a visual body cavity or strip search under the Fourth Amendment and Article 14.25 In this case there were no exigent circumstances justifying the search.

18 19

Id. at 340. Commonwealth v. Morales, supra at 340, quoting Commonwealth v. Prophete, supra at

557.
20 Id. at 340-341, citing Florence v. Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510, 1513, 1515 (2012). 21

Id. at 341, citing Florence v. Chosen Freeholders of the County of Burlington, supra at

1515. Id. at 341-342. Id. 24 The traditional reasonableness inquiry includes the scope of the intrusion, the manner in which the search is conducted, and the place where the search takes place. Bell v. Wolfish, 441 U.S. 520, 559 (1979).
23 25 22

Commonwealth v. Morales, supra at 343.

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Defendant did not have a weapon, was handcuffed on the ground, surrounded by officers so that he could not flee, and could not have destroyed evidence. Absent exigent circumstances Defendant should have been taken to a private room to avoid the humiliation of the public exposure of his buttocks.26 In the circumstances the location of this search was unreasonable.27

26 27

Id. at 343-344. Id. at 344.

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Magri, 462 Mass. 360 (2012)

CONTRIBUTING EDITOR: SARAH K. HAWKINS I. Procedural History

A grand jury indicted the defendant on thirty-two charges stemming from his alleged participation in a string of break-ins.1 A Superior Court jury convicted the defendant on twenty-three of the charged offenses.2 The Appeals Court affirmed twenty-two of the defendants convictions.3 The Supreme Judicial Court granted the defendants application for further review.4 II. Facts From June to August, 2007, Pittsfield police investigated a string of residential burglaries and automobile break-ins.5 These crimes were similar in the methods employed and items stolen.6 Police suspected the defendants involvement and placed him under surveillance.7 While under surveillance, the defendant approached an unattended, parked car.8 With two lookouts in place, the defendant reached through an open window and opened an interior compartment, triggering his arrest.9 Thereafter, two police officers, without a warrant, visited the apartment in which the defendant had been staying.10 The tenant provided oral and written

Commonwealth v. Magri, 462 Mass. 360, 360-361 (2012). Id. at 361. 3 Id., citing Commonwealth v. Magri, 77 Mass. App. Ct. 1117 (2010), S.C., 462 Mass. 360 (2012).
2 4 5

Id. Id. 6 Id. 7 Commonwealth v. Magri, supra at 362. 8 Id. 9 Id. 10 Id. at 365-366.

37

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consent to search the apartment.11 The tenant pointed the officers to two bagsa gray backpack and a white shopping bagbelonging to the defendant.12 The tenant indicated to police that the defendant was no longer welcome to stay in her apartmenta fact of which the defendant was likely unaware.13 Officers seized the two bags.14 At the police station, officers opened each bag, examined the contents, and found items linking the defendant to several of the charged crimes.15 III. Issues Presented 1. Was the defendant unduly prejudiced by the joinder of thirty-two charges in a single trial?16 2. Were the defendants rights under the U.S. Constitution and the Massachusetts Declaration of Rights violated when police searched his bags, barring admission of the discovered evidence at trial?17 IV. Holdings and Reasoning The thirty-two charges against the defendant were properly joined for trial in accordance with Mass. R. Crim. P. 9(a).18 A trial judge shall join charges on related offenses for trial, unless the judge finds the joinder not in the best interests of justice.19 Related offenses are properly joined when the totality of the evidence shows a common scheme and pattern of operation that tends to prove all the indictments.20 In this case, the trial judge found that the defendants alleged offenses were similar to one another, occurred in a discrete geographic region over a two-month period, and often involved the same lookouts.21 Because the alleged offenses shared a common modus operandithat is, a common motive and method united both the acquisition and disposition of the stolen items the judge concluded that the offenses warranted joinder.22 This was a

Id. at 366. Id. 13 Commonwealth v. Magri, supra at 366, 367. 14 Id. 15 Id. at 366. 16 Id. 361. 17 Id. 18 Id. at 363. 19 Commonwealth v. Magri, supra at 364, quoting Mass. R. Crim. P. 9(a)(3) (internal quotation marks omitted).
12

11

Id. at 364, citing Commonwealth v. Delaney, 425 Mass. 587, 594 (1997), cert. denied, 522 U.S. 1058 (1998), quoting Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995) (internal quotation marks omitted).
21 22

20

Id. Id. at 365.

2013

Commonwealth v. Magri

39

permissible finding and not an abuse of the judges discretion.23 The defendants motion to suppress the contents of two bags seized by police should have been granted.24 The defendant had a reasonable expectation of privacy in the contents of the two bags,25 because he was an overnight guest and maintain[ed] an expectation of privacy in luggage stored in [the] hosts dwelling.26 That the bags in this case were not traditional luggage is immaterial: [T]here is no reasoned basis to draw a legal distinction between a guests containers based on the materials from which they are made, their shape, or the mechanism by which they are closed.27 The tenants statement to police that the defendant was no longer welcome in her apartment did not terminate the defendants overnightguest status or the reasonable expectation of privacy flowing therefrom.28 The defendant may not have known that, at the time of the search, he was no longer welcome in the tenants dwelling.29 Because the defendant had a reasonable expectation of privacy, police could not conduct a warrantless search of the two bags contents absent exigent circumstances or valid consent.30 The Commonwealth argued consent, not exigent circumstances.31 The tenants consent to search her apartment did not justify the polices warrantless search of the defendants bags: In cases involving closed containers . . . the plain view doctrine may support a warrantless seizure of a container believed to contain contraband but any subsequent search of the concealed contents of the container must be accompanied by a warrant or justified by one of the exceptions to the warrant requirement.32 Moreover, the tenant, having no interest in the defendants bags, lacked authority to consent to their search.33 The warrantless search violated the defendants rights under the Fourth Amendment and art. 14 of the Massachusetts Declaration of Rights.34 The trial courts error in denying the defendants motion to suppress was not harmless and the defendant was entitled to a new trial on the charges impacted by the improperly obtained evidence.35

Id. at 364-365. Id. at 366. 25 Commonwealth v. Magri, supra at 367. 26 Id. at 367. 27 Id. 28 Id. 29 Id. 30 Id. at 366. 31 See Commonwealth v. Magri, supra at 368. 32 Id. at 368, citing Commonwealth v. Straw, 422 Mass. 756, 762 n.3 (1996), quoting United States v. Corral, 970 F.2d 719, 725 (10th Cir. 1992).
24 33 34 35

23

Id. Id. at 366. Id. at 369.

40

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Roderiques, 462 Mass. 415 (2012)

CONTRIBUTING EDITOR: THOMAS FLANAGAN I. Procedural History

At trial, the jury acquitted the defendant of the offenses charged in two indictments but found the defendant guilty of a lesser included offense. A divided Appeals Court affirmed the conviction.1 II. Facts On December 23, 2003, the defendant took her seven week-old son to the pediatrician because the child displayed flu-like symptoms. That night, the defendant put her son to sleep on a recliner chair and the defendant slept with her boyfriend, Shawn Cambra, on a pull-out couch in the living room. When the pull-out couch was fully opened, it touched the foot of the recliner on which the child slept and divided the room in half.2 Cambra was able to access the front door of the apartment from his side of the bed; the defendant was able to access the rest of the apartment from her side of the bed.3 Cambra told police that since the pull-out mattress separated him from the rest of the apartment, he would need to step on the recliner to access the bathroom from his side.4 The defendant stated that she got up to feed and change the child during the night, the last of which occurred at approximately 6:00 a.m. At 10:00 a.m. on December 24, 2003, Cambra noticed a red bruise on the childs upper right arm. The child was taken to the hospital where doctors discovered that the child had a fractured right arm, multiple fractures to both of his legs, rib fractures, a compression fracture of the spine, and a fractured clavicle.5 Two indictments were brought against the defendant. At the request of defense counsel, the judge
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Commonwealth v. Roderiques, 462 Mass. 415, 416 (2012). Id. at 417. Id. at 418. Id. at 419. Id.

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told the jury that it could consider whether the defendant recklessly endangered her child as a lesser offense included in the charge under G.L. c. 265, 13J (b).6 III. Issues Presented 1. Is recklessly endangering a child a lesser included offense of wantonly and recklessly permitting another to commit an assault and battery on a child?7 2. Did the trial court judge err when he instructed the jury that it could consider the lesser included offense of recklessly endangering a child?8 3. Did the Commonwealths expert witness impermissibly testify about an ultimate issue of the case when she stated that, in her opinion, the childs injuries were not accidental?9 IV. Holdings and Reasoning 1. Recklessly endangering a child is a lesser included offense of wantonly and recklessly permitting another to commit an assault and battery on a child.10 A crime is a lesser included offense of another crime if each of its elements is also an element of the other crime.11 A charge of wantonly and recklessly permitting another to commit an assault and battery on a child, in violation of G.L. c. 265, 13J (b), requires that the child be under fourteen years of age. A charge of recklessly endangering a child, in violation of G.L. c. 265, 13L, requires that the child be under eighteen years of age. The Court found that, logically, a child under the age of fourteen is under the age of eighteen so if this element was satisfied for 13J then it was also satisfied for 13L. The next element of 13J requires substantial bodily injury to the child, while the next element of 13L requires substantial risk of bodily injury. The Court found that satisfaction of this element in 13J required that the second element of 13L was also satisfied because [t]he occurrence of an injury presupposes that a risk of injury has been created.12 Finally, the Court found that the last element of 13J criminalizes child abuse resulting from a failure to act, while the last element of 13L criminalizes the wanton or reckless failure to reduce the risk of bodily harm to the child

Id. at 416. Roderiques, 462 Mass. at 420. 8 Id. at 424. 9 Id. at 428. 10 Id. at 426. 11 Id. at 421, citing Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007), quoting Commonwealth v. Perry, 391 Mass. 808, 813 (1984).
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Id. at 423.

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when there is a duty to act.13 The Court found that this element in 13J encompassed this element in 13L, and that 13L was a lesser included offense of 13J.14 2. The trial judge erred when he instructed the jury that it could consider the lesser included offense of recklessly endangering a child.15 The Court stated that instructing a jury on a lesser included offense is appropriate when the jury could have found the defendant[] guilty of [the lesser included offense] and not guilty of the greater offense.16 The defendant and the Commonwealth both agreed with the Court that there was no view of the evidence on which the elements unique to 13J (b) . . . were not present, but the elements common to 13J (b) and 13L were present.17 The Court then reviewed whether the defense attorneys request for the lesser included offense instruction constituted ineffective assistance of counsel and whether the trial judges instruction caused a substantial risk of a miscarriage of justice.18 The Court stated that the attorneys request for the instruction was a reasonable, tactical decision because the punishment for the lesser included offense is less severe and it gave the jury the option of finding the defendant guilty for something other than the greater offense.19 The trial judge did not create a substantial miscarriage of justice by giving the instruction because, viewed in a light favorable to the Commonwealth, the evidence supported a guilty verdict under 13J.20 Although the instruction on the lesser included offense should not have been given, it did not prejudice the defendant severely enough so as to require reversal.21 3. The Commonwealths expert witness did not impermissibly testify about the cause of the childs injuries.22 The role of the expert witness is not to testify as to the defendants guilt or innocence, but to assist the trier of fact in reaching a decision.23 Although an experts opinion may touch upon some of the ultimate issues of the case, this does not mean that the experts

Roderiques, 462 Mass. at 423-424. Id. at 424. 15 Id. at 425. 16 Id. at 424, quoting Commonwealth v. Porro, 458 Mass. 526, 537 (2010). 17 Id. at 425. 18 Id. 19 Roderiques, 462 Mass. at 426, quoting Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 695 (2000).
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Id. at 427. Id. at 428. Id., quoting Commonwealth v. Pytou Heang, 458 Mass. 824, 844 (2011) Id. at 428.

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testimony is impermissible.24 The experts opinion in this case did not provide any evidence or opinion as to who was responsible for the childs injuries, only to how the injuries may have been caused.25

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Id. Id. at 429.