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Articles Posted in Important SJC Decisions

The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Bohigian on February 10, 2020, dealing with the issue of the admissibility of a blood test in a OUI case involving Serious Bodily injury.  The case arose out of the Westboro District Court.

What is Serious Bodily Injury?  

Serious Bodily injury is defined as creating a substantial risk of death, involves total disability, the loss of any bodily function for a substantial period of time or involves substantial impairment of any bodily function for a substantial period of time.

The Massachusetts Supreme Court will address the issue of when a seizure occurred in the case of Commonwealth v. Evelyn.  The Evelyn case is SJC-12808 and was argued on January 7, 2020.

This case involved a young black man running from the police while the police were investigating a shooting in the Roxbury section of Boston.  This decision will have important implication for how black males are treated by the police and what it means for the police to have reasonable suspicion.

Under the United States Constitution, the US Supreme Court has interpreted the 4thAmendment to find that if a defendant runs, there is not seizure until the defendant submits to the authority of the police.  The United States Supreme Court announced this rule in the case of California v. Hodari D, 499 U.S. 621 (1991).  In that case, the defendant fled and the United States Supreme Court held that he was not seized until the police physically stopped him.  While running, the defendant threw cocaine from his pocket.  If there was no reasonable suspicion prior to the flight, the evidence would have been suppressed, but since the court held that the defendant was not seized until he was stopped, the court declined to suppress the evidence.  The Massachusetts SJC does not follow this rule as State Court are free to interpret their State Constitution different from how the US Supreme Court interprets the United States Constitution.

The Massachusetts Supreme Judicial Court heard oral arguments on March 3rd in the case of Commonwealth v. Edward Long, SJC-12868, that deal with the issue of disparity treatment and discriminatory enforcement of traffic laws by the Boston police.  In this case, the defense lawyer presented a compelling statistical case that race played a role in the traffic stop.  Under the Equal Protection Clause of the 14th Amendment and Article 1 Section 10 of the Massachusetts Declaration of Rights, a defendant who shows discriminatory enforcement of the laws can have the case dismissed.

What happened in the Long Case?  

The Long case involved two officers on the gang unit who were essentially profiling cars, finding minor reasons to stop the car, with the hopes of discovering further evidence that would lead to an arrest.  Two officers were involved in the stop of the defendant, Officer Rodriguez and Lopes.  The defendant was stopped for an expired inspection sticker after the officers randomly ran his plate, according to their testimony at the motion hearing.  Officer Rodriguez testified that giving traffic citation was not a primary concern of the gang unit; he testified that he gave out 5 citation out of 1000 cars that he stopped for traffic violations.  He testified a lot of arrests start out as average traffic stops.

The Massachusetts Supreme Judicial Court upheld the trial court’s decision to allow two witnesses’ identification of a robbery suspect as admissible evidence despite the lack of protocol and questions surrounding the identifications’ reliability.  The SJC alternated the procedures going forward requiring an instruction prior to the identification as in Line up identifications. The case adopting this new rule is Commonwealth v. Christian German decided November 13, 2019.

The case involved a robbery that occurred as a restaurant owner and three employees were leaving the restaurant late at night. As the women exited the restaurant, one of them got in the front seat of a waiting taxi. The other two employees waited as the owner locked the door. A man approached the three women standing outside of the restaurant, demanding their belongings. While one of the women threw her belongings on the ground, the owner ran around the corner to her vehicle to call 911. The robber then followed the other two women across the street, continuing to demand their property. Men on a nearby rooftop yelled at the robber, and the robber fired a gun in their direction and then left. When police arrived, two of the women had left in the taxi, while the owner and one employee remained to speak to police. After searching the area, officers found the suspect and detained him. One officer told the owner and employee that officers had detained a man, although they did not know if he was the robber, and that they needed witnesses to indicate whether or not he was the robber. While the officer wanted to transport the women one at a time to see the detained suspect, the women insisted that they would not go unless they stayed together and if assured that the suspect would not be able to see them.  The officer acquiesced and drove the two women to where the man was detained. Without any prompting, upon the officer pointing the police cruiser’s headlights at the suspect, both women simultaneously stated that the suspect was the robber and that they were 100% certain.

At trial, defense counsel argued that the women’s identification was improper where the women identified the man while sitting in a police cruiser together, not separate, and where the police officer did not provide adequate instructions prior to eliciting the “showup” identification. Defense counsel also argued that they should be allowed to introduce expert testimony that the witnesses’ degree of certainty of the suspect’s identity was questionable.

The Massachusetts Supreme Judicial Court allows a juror to sit who was equivocal on whether the jury could be fair and impartial in a case of sexual assault on a child.  You wouldn’t loan money based solely on a borrower’s promise to make payments “to the best of their ability.” A relatively equivocal statement such as this can be sufficient to establish the impartiality of a prospective trial juror. The recent decision in ​Commonwealth v. Rios,​ No.17-P-690,Mass.App.Ct.(November12,2019)(slipop.),illustrates that the credibility of the statement of fairness is equally as important as the statement’s verbiage when determining the impartiality of a prospective juror.

It is without question that individuals charged in criminal matters have a right to have their case heard by an impartial jury. Thus, trial courts have an obligation to ensure that prospective jurors can remain impartial prior to being selected to serve in a particular case. “[A] juror may not stand indifferent” when concerns arise that a prospective juror may make decisions based on issues extraneous to the case. ​ And it is an abuse of the court’s discretion to “empanel a juror who will not state unequivocally that he or she will be impartial.” ​Commonwealth v. Colton,​ 477 Mass. 1, 17 (2017).

Ruling in the Rios Case

Like all things in the law, the answer to the question “is this a seizure?” is “it depends.”  A seizure, under criminal law, is similar to being stopped or detained.  The Massachusetts Declaration of Human Rights and the United States Constitution protect citizens from unreasonable seizures.  A seizure does not mean being arrested, but means that a person does not feel free to leave from police presence.  Courts use a “reasonable person” standard when reviewing whether a seizure occurred; basically, courts look at the situation and determine whether, under all of the circumstances, the officer has used their authority to the point that a person would feel that they are required to follow the officer’s commands.

Last week, the Massachusetts Supreme Judicial Court decided Commonwealth v. Matta.  In this case, Matta was a passenger in a car.  The car had been the subject of two phone calls from unknown sources to the Holyoke Police, who reported that someone in the car had placed a gun under the seat.  Without having a warrant to search or arrest, or even probable cause to detain, the police begin to investigate.  Responding to the call, Holyoke police department  found Matta’s car parked in an area that the Supreme Judicial Court described as being “known for violent crime, drug sales, and shootings,” and pulled in behind it, without lights or sirens.

As the officer was getting out of his patrol car, Matta got out of his. The officer observed him grab at the right side of his waistband with both hands and adjust the waistband, then walk toward some bushes away from the sidewalk.  The officer said something to the effect of “Hey come here for a second” to Matta, who made eye contact with the officer, and then began to run.  The officer chased Matta, and yelled at him to stop.  During the chase, Matta threw a bag of what was later found to be heroin over a fence, presumably so the police wouldn’t find it on him if he was caught.  Matta eventually tried to scale a fence, and was captured.

The Supreme Judicial Court (SJC) recently reviewed Commonwealth v. Larose to answer whether it was reasonable, and therefore valid, for a police officer to stop the defendant’s motor vehicle for failing to drive entirely within a marked traffic lane.

The defendant was traveling during the early morning hours on Route 202, a two-lane highway with a single lane of travel in each direction, when the defendant, who was traveling directly in front of the officer, crossed the right-side fog line (the white line on the right-hand side of a road that separates the driving lane from the shoulder), one time for two to three seconds as shown by the officer’s dashboard camera.

After subsequent observations and further inquiries, the defendant was charged with an OUI and marked lanes violation.

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.  The Massachusetts Supreme Judicial Court heard oral argument in the case on April 2, 2019.

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 Massachusetts Supreme Judicial Court recently heard oral argument in the case; the main focus of the argument is whether the hair drug test is a reasonable test of employment.  The Boston police department has a strict policy that any positive drug test results in disqualification from employment; the legality of that policy was not challenged in this appeal.

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.  The Boston Police officer argued that the Superior Court judge should have given difference to the findings of the Commission.

Oral Argument before the Massachusetts Supreme Judicial Court

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.

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