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Articles Posted in Important SJC Decisions

In the case of Commonwealth v. Sam C. Wassilie, the Supreme Judicial Court for the Commonwealth of Massachusetts (SJC) is currently considering whether a Superior Court judge properly dismissed criminal charges involving alleged “upskirting”. Upskirting is traditionally defined as secretly filming/photographing up a woman’s skirt to view her private areas. The Commonwealth is appealing the dismissals entered by the Court, and Wassilie is cross-appealing on the counts that the Court declined to dismiss.

Wassilie was found to have set up a cell phone in a concealed area in the public restroom of the Pine Grove Athletic Field in Dalton, MA.  Police obtained a search warrant and found videos on Wasillie’s phone and laptop showing children and adults using the bathroom. The footage showed Wasillie setting up the camera and concealing it with paper towels, and was positioned to captured footage of the genitals and buttocks of individuals using the restroom.

The prosecution argues that the Superior Court Judge made three errors when dismissing several of the Commonwealth’s charges: 1) ruling to dismiss instead of ordering a new trial, 2) finding that there was not sufficient evidence of the crime, and 3) finding that Massachusetts’ “upskirting” statute is ambiguous.

A Boston police officer found himself on the wrong side of inaccurate scientific evidence when he was denied employment based on a positive hair drug analysis.  The Massachusetts Supreme Judicial Court is currently considering a case titled Boston Police Department v. Michael Gannon and The Massachusetts Civil Service Commissioninvolving the use of hair drug tests to determine eligibility for employment. The appellant in this case, former Boston Police Cadet Michael Gannon,  was passed over for appointment as a Boston Police Officer because a hair drug test he was given came back positive for cocaine. In addition to the fact that the accuracy of hair drug tests has been refuted by some scientific experts, Mr. Gannon had also taken five other hair drug tests as a part of the recruitment and certification process and all five came back negative for drug use. When he learned that he was being denied a position as a full Officer with the Boston Police Department based on the positive hair drug test, which he maintains was not accurate, Mr. Gannon filed an appeal to the Civil Service Commission to contest the decision. The Commission determined that because of the unreliability of hair drug tests, the Police Department did not have reasonable justification for refusing Gannon the position. Being dissatisfied with that result, the Department sought judicial review before the Superior Court.  The Superior Court reversed the Commission’s decision, and Gannon now appeals before the Supreme Judicial Court to have the Commission’s original decision reinstated.

There are many issues with the overall reliability of hair drug tests. The biggest issue that the Commission pointed out is that the testing procedure is not able to tell the difference between a drug being ingested and a sample being externally contaminated with a drug. In other words, there is no way for the test to establish that a positive result is actually due to drug ingestion by the test subject. Hair samples are easily contaminated by environmental exposure to traces of illicit drugs, and oftentimes even public areas contain contamination that could effect a hair sample.  In its decision the Commission pointed to a surprising study showing that 92% of US dollar bills are contaminated with trace amounts of cocaine. Due to the porous nature of hair strands,  samples can be easily contaminated simply by a non-user inhaling second hand smoke or touching a contaminated surface. While the hair drug testing process does involve decontamination, that process is often not effective at removing trace amounts of drugs.

This is not the first time that the reliability of hair drug testing has been challenged on this level. The Commission previously reviewed scientific evidence on this question in the Boston Hair Drug Test Appealsin 2013. In that case it was concluded that hair drug tests are not scientifically reliable enough to be used as sole grounds for termination of a public employee.

In Commonwealth v. Finn, the Massachusetts SJC will decide whether the Superior Court can hold a defendant under the dangerousness statute of 58A after the defendant was released by the district court.

The statute says that a person who is “held under arrest” for a felony as enumerated in Subsection 1 of §58A may be detained if that person’s release would not reasonably assure the safety of any other person or the community. The determination would hold that the person poses a danger to others based on the factors of that person’s arrest and his/her first appearance before the court.

Defendant James Finn has been held in detention March 7, 2018 based on the Court’s determination that he was dangerous to the community. The defendant was arrested on December 3, 2017 and charged with three counts of indecent assault and three counts of providing harmful material to minors.  The alleged victims were three children around the age of eight who lived in the same apartment building as Finn and his wife.  Finn was allegedly under the influence of alcohol at the time.  Finn was in custody when initially arraigned on December 4, 2017.  The Commonwealth moved to detain him on the basis of dangerousness under G.L. c. 276, §58A. This was allowed since Finn did not at the time have a stable residence.  Finn was held in detention until conditionally released by the district court on January 22, 2018. His arraignment in superior court was scheduled for March 7.  Finn appeared for arraignment, and the Commonwealth moved again for pretrial detention under §58A.  The defendant opposed the motion and argued that since he was not subject to arrest the dangerousness statute did not apply to him.  The Court disagreed, and Finn has been in detention since March 7 and is appealing the decision to detain him under §58A.

The Massachusetts Supreme Judicial Court will decide whether the failure to secure a child properly in a car seat can result in an involuntary manslaughter conviction.  The case is Commonwealth v. Hardy, where the defendant Hardy was convicted by a jury of involuntary manslaughter.  On appeal, Hardy argues that her failure to secure her child in a booster seat is a legally insufficient basis for her conviction as to manslaughter and reckless endangerment of a child.  A manslaughter conviction requires the Commonwealth to prove, “the defendant unintentionally caused another’s death during the commission of wanton or reckless conduct,” and said conduct, “created a high degree of likelihood that substantial harm would result to the victim.”

Similarly, a conviction for reckless endangerment of a child requires the Commonwealth to show the defendant recklessly engaged in conduct that caused substantial risk of serious bodily injury to a child… or wantonly or recklessly failed to take reasonable steps to alleviate such risk when there was a duty to act.  G.L. c. 265, §13L.

Was Hardy’s conduct, failing to secure Dylan in a booster seat, wanton or reckless?  Was Hardy aware that her failure to use the booster seat created a high degree of likelihood that substantial harm would befall Dylan?  Courts have defined recklessness as conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences.  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944).  Hardy submits her act of merely using the seatbelt and not the booster did not rise to the requisite level of wanton or reckless conduct.  She further alleges that the Commonwealth provided no evidence as to whether Dylan may have survived the crash if a booster seat had been utilized.  In her brief, Hardy argues that at most, the Commonwealth is alleging her conduct was merely negligent and as a matter of law, a legally insufficient basis for the conviction of manslaughter.  She further asserts that an individual who fails to secure a child in a vehicle at all might engage in wanton or reckless conduct, but she took steps to mitigate, the inherent risk associated with any passenger in a vehicle by making sure Dylan was at least wearing a seatbelt.

The Massachusetts SJC held today in Commonwealth v. Richard Sherman, Jr. that in a rape trial, when the sexual encounter starts consensual and it is alleged that the victim withdrew her consent, that the defendant is entitled to a jury instruction that a consensual sexual encounter can become rape if the victim withdraws her consent during the intercourse and the defendant continues with sex by force or threat of force.  The SJC held that the instruction is required when the jury asks a question on this issue.

The Court found that the error was harmless in this case because the victim testified that the sexual encounter was never consensual while the defendant claimed that it was always a consensual sexual encounter.  The defendant was acquitted on the charge of oral rape which the court held meant that the jury could have concluded that the victim consented to oral sex but not penetration.  While these are two different theories of rape, the jury questions and the lack of instructions on an important element of the law does not seem to be harmless error.

Should the trial judge have admitted evidence of cocaine use?

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Jesse Carrillo, where the defendant was convicted of involuntary manslaughter based on providing heroin to the deceased.  The defendant was a heroin addict himself and the evidence at trial indicated that he went to New York to buy heroin and that he would bring some heroin back to the victim.

At trial the defendant was convicted of both distribution of heroin and involuntary manslaughter.  The defendant claimed that the trial court committed reversible error by refusing to instruct the jury on the lesser included offense of joint possession of heroin.  It was the defendant’s claim throughout the trial that he was a user and an addict but was not distributing heroin or making any profit from selling heroin.  The defendant testified in his own defense at the trial and outlined his heroin addiction.  The defendant also presented expert testimony.

Defense Expert

The Massachusetts decided Commonwealth v. Davis today further defining the law as it related to OUI marijuana in Massachusetts.  The Davis decision involved the issue of when the police have probable cause to arrest someone for OUI marijuana.  

The SJC found that the judge correctly denied the motion to suppress finding that the officer’s observations met the standard of probable cause need to make an arrest.  The SJC acknowledged that it is difficult to detect impairment by marijuana since there are not validated field sobriety tests.  However, the court indicated that a judge is permitted to rely on the officer’s observations.  The SJC held that the officer can testify about the driving, the odor of marijuana and subjective observations of the individual’s appearance and condition.  The SJC noted that the testimony was that the defendant admitted to smoking, had slow coordination and difficulty focusing.  The Court contrasted the Davis case with its other decision in Commonwealth v. Daniels where the it found not reasonable suspicion when the there was no testimony that the defendant’s alertness, judgment or ability to respond promptly had been impacted.  

The Davis decision is the first case from the SJC on probable cause for OUI marijuana and the Court is likely to have to readdress this issue in future cases.  The Court declined to further extend its decision in Commonwealth v. Gerhardt to call into question the lack of studied method to determine impairment by marijuana.  

In the case of Commonwealth v. Christ O. Lys’, the Massachusetts Supreme Judicial Court has to address what type of evidence is required at a motion hearing to warrant vacating a plea based on ineffective assistance of counsel.  In the defendant, filed a motion for new trial to vacate a plea after he was detained and put into removal proceedings.  

     The defendant was charged with selling marijuana and cocaine to an undercover police officer.  The defendant faced a 28 count indictment, but accepted a plea to three counts of distribution of marijuana.  The defendant filed a motion for new trial based on his trial counsel’s failure to provide him with the immigration consequences of his plea.  

The defendant filed an affidavit stating that the lawyer did not advise him of immigration impact of the plea.  The motion judge found that the plea counsel did not testify or provide an affidavit; accordingly, the motion judge stated that he must give the affidavit of the defendant full credit given the lack of evidence.  

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.

The Massachusetts SJC will soon release a decision that could have a major impact on how addiction and drug offenses are treated in Court.  The case of Commonwealth v. Julie Eldred involves a very common situation that occurs in the district courts.  The defendant agreed to a plea on the charge of Larceny over $ 250.00; as part of that plea, the defendant was to remain drug free with random screens.  The defendant received a CWOF or continuance without a finding which is technically not a criminal conviction in Massachusetts.

The defendant tested positive for fentanyl; the judge in the Concord District Court detained the defendant until she could find a bed in an in-patient treatment, pending a final violation hearing.  At the final violation hearing, the defense filed a motion to change the condition of probation to remove drug free, arguing the the defendant because of her addiction could not comply with that condition.  The district court judge reported the question to the appeals courts, and the SJC accepted the case for direct appellate review.

The defense argued that the court cannot impose conditions designed for someone to fail.  This reasoning is derived from the case of Commonwealth v. Henry, 475 Mass. 117 (2016) where the SJC held that the court must address someone’s ability to pay before ordering restitution as a condition of probation.  

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