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Articles Posted in Important SJC Decisions

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.  

As a Massachusetts Criminal Defense Lawyer, the outcome of serious criminal cases can often come down to very specific facts developed during a motion to suppress.  In the case of Commonwealth v. Aderito Barbosa, the defendant was charged with Human Trafficking.  This is a criminal offense that carries up to twenty years in a Massachusetts State Prison; if found guilty of the crime you are required to serve a minimum mandatory five-year state prison sentence. If the victim is under the legal age in Massachusetts, you could be looking at a life sentence.

In this case, the police raided the defendant’s hotel room at the Park Plaza in Boston.  Upon exiting the elevator, the defendant was greeted by the police.  Knowing what they were there for, he requested an attorney and said he would exercise his Miranda rights.  He tried to flee and was alleged to have resisted arrest and, at that time, requested a lawyer.  As part of an arrest, police are permitted to conduct a search incident to arrest.  A search incident to arrest is a search conducted by the police during the actual arrest; they are legally permitted to search the person being arrested, including his or her immediate surroundings.

Federal laws mandate that the police may search for weapons, contraband, or evidence of a crime, even if it is not related to the crime for which the individual is being arrested for. However, in Massachusetts, police are only granted the authority to search for evidence which is related to the crime.

In December, the Supreme Court began oral arguments in a Colorado case, where a shop owner denied service to a same-sex couple looking to purchase a cake. As the arguments ensued, it began clear that the justices were sharply divided and highlighted many of the issues, on both sides, in the case: religious beliefs and anti-discrimination laws.

The Colorado case dates back to 2012 when a gay couple, Charlie Craig and his partner David Mullins, walked into a cake shop requesting a cake to celebrate their same-sex marriage; their wedding was to be held in Massachusetts, but their cake was for a reception they were holding in Colorado for their friends and family. The owner of the shop, a religious man named Jack Phillips, declined to make them a cake due to his Christian values.

The rules governed by anti-discrimination agencies in Colorado suggest that Phillips’ refusal to provide a cake for a same-sex marriage celebration violated laws and that, legally, he had no right, by free speech, to turn down the cake request by the two men. Phillips was informed that if he was to make wedding cakes for heterosexual weddings, he is also legally required to do so for weddings where the two parties are of the same sex.

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