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The Massachusetts Supreme Judicial Court will review a motion to suppress that was allowed out of the Eastern Hampshire District Court where the judge found that a single crossing of the fog line for 2 to 3 seconds did not provide reasonable suspicion for a traffic stop and was not a violation of Massachusetts General Laws Chapter 89 Section 4A.  The case is Commonwealth v. Zachariah Larose.

The Massachusetts Lane Roadway statute provides as follows:

When any way has been divided into lanes, the driver of the vehicle shall so drive that the vehicle be entirely within a single lane, and shall not move from the lane which he is driving until he has first ascertained if such movement can be made with safety.

As a Massachusetts Criminal Defense Lawyer, one of the most important areas of law to understand is how to gets statements excluded as in violation of your clients rights under Miranda v. Arizona. In a serious case, the difference between winning and the client accepting a plea may be your ability to have the Court exclude statements from evidence.  In this Blog, we will review a few common issues that come up in suppressing statements under Miranda.  

What Warnings are Required under Miranda?

What warnings are police officers required to give to comply with Miranda?  One issue that may come up in a motion hearing is that the officer does not put on the record explicitly what rights were read to the defendant.  

The Massachusetts Appeals Court decided the case of Commonwealth v. Emerton.  In this case, the defendant was arrested at an OUI Roadblock on Soldiers Field Road in Brighton and the case was heard in the Brighton District Court.  Soldiers Field road is an area where the State police have been using for years to conduct roadblocks.  Under Commonwealth v. Trumble, roadblocks are permitted under Article 14 of the Massachusetts Declaration of Rights if the following questions are satisfied:  

  1. the selection of the cars to be stopped must not be arbitrary; 
  2. safety must be assured 

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Michelle Carter yesterday.  In this Blog, I have outlined some of the key issues that the SJC addressed during the oral argument.

Was there sufficient evidence to convict Carter of involuntary manslaughter?  

The defense lawyer argued that the key pieces of evidence is the defendant’s text from two months after where she told a friend that she told him to get back into the truck.  The defense contended that that text message was part of very long and rambling texts so that to use a text as the basis to find her guilty was not supported by sufficient evidence.

Under Massachusetts OUI Law, the prosecutor does not have to prove that alcohol is the sole cause of the impairment.  I had this issue in a recent trial where the Commonwealth was attempting to allege that my client was impaired through the combined impact of alcohol and marijuana.  

        The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Stathopoulus, 401 Mass. 453 (1988), which held that the Commonwealth is entitled to a jury instruction as follows:  

If you find that the alcohol which the defendant may have ingested alone did not render him under the influence of alcohol, but the mixture of that alcohol with a controlled substance, diminished his ability to operate a motor vehicle safely, you are warranted in finding him guilty.  

In this blog we outline our process for taking a case to trial at DelSignore Law.  All cases are different but in general this is out approach that we use in every case.  Early on in the process, I start preparing the cross examination and outlining the closing statement.  I like to do this early because it helps me see the direction of the case in terms of what evidence I need and what evidence I may want to try to exclude at trial or before trial through an evidentiary motion. 

We prepare a trial notebook that consistent of the following for all cases.  We have pictures of the scene, written opening, closing and cross examination questions, motions in liming, and copies of the police report.  In all trial notebooks, I divide each section of the case with a color paper and put extra paper to use during trial.  I also have a copy of the officer’s training manual if the case is an OUI that specifies when the officer was trained on the administration of field sobriety tests.  I bring that manual to court in case an issue of impeaching the officer arises. 

The binder would also include direct examination questions that I will ask any witness as well as copies of any medical records or evidence that I intend to use at trial.  The trial folder consists of everything that I may use at trial.  There are records and motions that I do not intend to use; I keep these out of the trial binder in case I need to find something during trial.  When I have a transcript of an officer from a motion to suppress hearing, I will put the page number by the cross examination for anticipated impeachment.  In other words, if the officer claims that my client has slurred speech during the trial, but did not recall slurred speech at the motion, on the slurred speech chapter of the cross, I would have motion hearing at page 32, to tell me quickly where to find the impeachment.  

The United States Supreme Court has granted Certiorari in the case of Gamble v. United States that raises the issue of whether the Double Jeopardy Clause precludes prosecution for the same offense by the federal and State Government.  

The case of Terrance Gamble involves a 2008 conviction from Alabama where he was convicted of second degree armed robbery.  Both federal and state law barred him from possessing a firearm.  Gamble was found in possession of a handgun.  He was prosecuted by both the federal and state governments for being a felony in possession of a firearm.  The defendant moved to dismiss the federal indictment on Double Jeopardy Grounds, as the federal charge was taken out after the State case was already pending.  Relying on the separate sovereign doctrine, the court denied the motion to dismiss.  The defendant entered a conditional plea preserving this issue for review.  

The defendant argued that the plain meaning of the Double Jeopardy Clause is that no person should be punished for the same crime twice.  The defense argued that cases prior to the formation of the Constitution from England rejected the separate sovereign doctrine.  The defense argued that the separate sovereign doctrine came about from a prohibition case, United States v. Lanza, 260 U.S. 377 (1922) that was driven by policy considerations with the court not looking into the original intent behind the Double Jeopardy Clause.  The defense argued that the doctrine was wrong from the start and the Court was deeply divided when the doctrine was formed.  

The Massachusetts Supreme Judicial Court will address a case that will have an important impact on the way juries are formulated in Massachusetts.  The case is Commonwealth v. Quinton Williams, where a judge allowed the prosecutor to excuse for cause a juror that stated that Black American are treated unfairly by the judicial system.  The SJC allowed for direct appellate review in the case.

  The case was a drug distribution charge out of the Brockton District Court.    The juror answered the judge’s question as follows after the judge asked if the juror has an bias in the case. The juror responded as follows:  

I work with low-income youth in a school setting; I work a lot with teenagers who are convicted of drug crimes.  And frankly, I think the system is rigged against young African Americans.  The juror said that the views could be put from the juror’s mind after asked by the judge.  The juror indicated that the opinion would not impact the ability to be fair and impartial.  

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Davis.  The Justice had to determine what is the standard to determine if there is probable cause to arrest a driver for being impaired by marijuana. In the Davis case, the defendant was stopped for speeding, the car smelled of marijuana, the officer said that his speech was delayed and the arresting officer formed the opinion that the defendant was impaired by marijuana.  The oral argument before the SJC revealed the following questions and areas of concern for the Justices.  

Justice Link suggested that the officers did not have much evidence to make that conclusion that the defendant was impaired by marijuana.  The Commonwealth disagreed contending that the officer had more than sufficient evidence to conclude that the driver was impaired.  Davis’ lawyer argued that the officer should have conducted some field tests to perform a better investigation to determine impairment.  Justice Lenk questioned the Commonwealth about how much the smell adds to the analysis because it can be long after consumption.  

On the issue of probable cause, the Justice seems to suggest that if it were an alcohol case there would be enough probable cause to arrest.  Justice Gaziano suggested that the SJC allows field sobriety tests into evidence in Gerhardt because it informs the officers opinion regarding the probable cause to arrest.  He questioned the lawyer for the defendant that if the car smelled like alcohol, we would allow the officer to arrest; in this case it smells like marijuana, so the same inference of impairment he asked if that should be permitted.  The defense lawyer skillfully argued that marijuana is different and the Court cannot tell if the person is impaired.  The studies on marijuana suggest that a driver would drive slower if under the influence of marijuana and not faster as the defendant in this case.

Jury selection is a critical part of any criminal trial in Massachusetts.  In Massachusetts, the rules have changed allowing greater attorney participation in jury selection.  The new rules permit Attorney conducted voir dire.  However, the judge still determines whether an individual shall be excluded for cause from a jury.  There are two ways to exclude a potential juror from sitting on a jury.  The first is through a challenge for cause.  This is a request by one of the attorney to exclude a juror based on the fact that the lawyer believes that the juror cannot be fair and impartial. 

For example, in an OUI trial, a judge may exclude a juror for cause that has been in an accident with someone thought to be under the influence of alcohol.  This would be based on the fact that the juror’s experience may bias the juror against the defense.  Some judges may try to rehabilitate the juror to keep the juror on the panel by asking if the juror can set aside that experience and still be fair and impartial.  A judge should allow a defense lawyer to ask follow up questions to determine if the experience is so ingrained that it would start the defendant off at a disadvantage with respect to this juror. 

A recent case decided by the Massachusetts Appeals Court addressed the issue of when a judge abuses his discretion for not excluding a juror for cause.  The case was Commonwealth v. Chambers, decided on August 29,2018.  

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