Massachusetts Criminal Defense Lawyer Blog

Massachusetts Court ruling gives police chief broad discretion to deny gun license

March 19, 2015 | by Michael DelSignore

The state’s highest court decided this week to uphold Shrewsbury police Chief Gemme’s decision to revoke a Raymond Holden’s license based on an assault and battery charge that was ultimately dismissed. The case is important for those looking to apply for an LTC or those who fear suspension or revocation, because it showed just how broad a licensing authority’s discretion is.

The licensing authority in Massachusetts may deny an application or suspend or revoke for any of the following reasons under G. L. c. 140, § 131 (d) and (f). :

1. A felony conviction as a juvenile or adult- ineligibility waived after 5 years 2. Being the subject of a current 209A restraining order 3. Conviction for possession or sale of drugs 4. Confinement to a hospital for mental illness-may be waived with statement from treating physician 5. Conviction of a misdemeanor punishable by imprisonment for more than two years-waived after 5 years 6. Conviction of a violent crime-never waived 7. Conviction of any weapons charge for which imprisonment may be imposed-waived after 5 years 8. Past or current treatment for drug or alcohol addiction-waived after 5 years with affidavit from physician 9. Being the subject of an outstanding state or federal arrest warrant 10. Not a “suitable person” in the eyes of the licensing authority

Defining Circumstantial Evidence in the Aaron Hernandez Trial

March 18, 2015 | by Michael DelSignore

The case against Aaron Hernandez is circumstantial; sometimes in the minds of the public this makes for a weaker case. While circumstantial evidence is viewed as lesser evidence by the public and likely by a jury, under the law, the two forms of evidence direct and circumstantial are viewed as the same, one form of evidence is not better than the other and either type of evidence can support a conviction.

At the end of the case, the judge will give the jury instructions on the definition and application of circumstantial evidence that will help the jurors understand how they should weight the evidence and the language of this instruction is one of the many important aspects of the case.

The judge will explain the difference between direct and circumstantial evidence. Circumstantial evidence is evidence where a witness cannot testify directly about a fact, but the witness presents evidence of other facts that the jury may draw reasonable inferences from.

Trial Judge’s ruling may be grounds for appeal in Aaron Hernandez Murder Trial

March 14, 2015 | by Michael DelSignore

The trial judge presiding over the Aaron Hernandez murder trial in Fall River has just reversed a critical decision she made on Wednesday that could have been fatal to Hernandez’s case. During trial on Wednesday, the prosecution called an employee of the gun manufacturer Glock to testify about home surveillance footage taken in Hernandez’s home only minutes after the murder of Odin Lloyd. My Fox Boston reported on the events.

The Testimony

The footage revealed an unclear depiction of Hernandez walking through his home at 3:30am carrying a black object that resembled a gun of some sorts. The prosecutor asked the witness whether he recognizes the object, and the witness testified that the object looked identical to what he recognizes from his experience as being a Glock 21. And although the defense attorneys attempted to strike that testimony from the record, the trial judge decided that the testimony was permissible. This testimony is arguably the most fatal part of Hernandez’s defense, since it connects Hernandez to the alleged murder weapon at the time of the crime.

Massachusetts Court decides No 4th Amendment Violation where Anonymous Tip leads to DUI stop

March 6, 2015 | by Michael DelSignore

There are often times when police officers have to rely on anonymous callers who dial 911 to tip police off on a crime they had observed. Whenever a defendant is arrested as a result of such a tip, the trial court must determine the caller’s reliability before allowing the case to proceed to trial. In the case of Com. v. Depiero, the Appeals Court determined that it was lawful for police to arrest a driver with a history of drunk driving after receiving an anonymous 911 call reporting erratic driving.

The 911 Call

Police dispatch received a call stating that a “drunk driver” operating on Memorial Drive was “swerving all over the road.” The caller did not identify him/herself, but did provide the dispatcher with a license plate number, make, and model of the car. A state trooper was then dispatched to the driver’s address, where he observed the driver pull into his driveway. After the driver parked, the officer turned on his emergency lights and conducted a traffic stop. The driver admitted to having drunk alcohol, and subsequently failed the field sobriety tests.

HGN test ruled in admissible by the Kansas Supreme Court during DUI trial

February 21, 2015 | by Michael DelSignore

The Kansas Supreme Court recently issued a decision dismissing one of the most controversial pieces of evidence used in an OUI trial – the horizontal gaze nystagmus test (HGN). Finding no evidence to support the reliability of HGN test results, the high court forbade trial judges from admitting HGN test results for ANY purpose at all, until expert scientific evidence is presented to establish the test’s reliability in measuring intoxication levels.

The Kansas court issued this important ruling in the recent case of City of Wichita v. Molitor. In Molitor, the defendant was pulled over for failing to signal a right turn at a stop sign. Though the defendant correctly stopped at the sign, and properly completed the turn, he did so without signaling. And though the defendant passed two of three sobriety tests, the officer still required him to take a breath test, which registered a BAC level of .09 percent. The defendant was then arrested for an OUI.

After the officer stopped the defendant, the officer approached the vehicle and detected an odor of alcohol. The officer also noticed that the defendant had watery and bloodshot eyes, and so asked the defendant if he had consumed alcohol earlier that evening. The defendant replied that he had a couple beers, and the officer ordered him to exit the vehicle for field sobriety testing.

New Jersey Legislature to vote on Bill requiring interlocking ignition devices for all DUI convictions

February 3, 2015 | by Michael DelSignore

New Jersey legislators are voting on a bill that would require the installation of an ignition interlock device for all drivers convicted of a DUI. If enacted, this bill would require all drivers operating a motor vehicle within a period of time after their DUI conviction to periodically breathe into an electronic device to determine whether they are sober enough to operate a vehicle. If the device registers a breath of .08 percent or greater, it will prevent the driver from starting their vehicle.

New Jersey joins many states in seeking to add and tighten existing restrictions and sanctions on repeated offenders. In 2005, for example, the Massachusetts legislature enacted “Melanie’s Law,” which not only requires the installation of ignition interlock devices for repeat offenders, but also enhanced license suspension sanctions and mandatory confinement sentences. Under Melanie’s law, a person charged with an OUI with a license that was currently suspended faces a one year mandatory minimum jail sentence. The law also creates a jail penalty for anyone tampering with the interlock device.

New Jersey has already enacted legislation that requires ignition interlock devices to be installed in the vehicles of drivers charged with a second or subsequent OUI. The new bill, however, seeks to require the installation of the device for not only repeat offenders, but also first time offenders as well. According to the official statement to Senate Bill No. 385, anyone convicted of a first offense OUI with a BAC level between .08 percent and .10 percent would not only lose his license for 10 days, but would be required to install an ignition interlock device for a period of three months. The ignition interlock device will remain installed for longer periods of time if the BAC level was greater than .10 percent. The bill also includes a provision that allows for the automatic extension of this time period if the driver fails the breath test within the last thirty days.

Reasonable doubt in a Massachusetts criminal trial defined by the SJC

January 29, 2015 | by Michael DelSignore

The Massachusetts Supreme Judicial Court has just issued a decision establishing a single definition of reasonable doubt, the standard by which jurors are to find the defendant guilty of a crime. The decision, published and released under the case heading of Commonwealth v. Gerald Russell, marks a significant effort to protect the most important legal principal in Constitutional law.

The 150-year-old Webster Instruction

Proof beyond a reasonable doubt is a difficult concept to understand and to explain, and is the most difficult standard for any party to meet. Courts have been relying specifically on one definition of this standard, published over 150 years ago in the case of Commonwealth v. Webster, 59 Mass. 295 (1850). The Supreme Judicial Court explained the standard of finding guilt beyond reasonable doubt to mean that the jury, after considering the facts and the reasonable inferences drawn from them, reached a “satisfactory conclusion” of “moral certainty” that the defendant committed the charged offense. The courts then derived from this decision what has become the model “Webster instruction” – which requires a “moral certainty” and an “abiding conviction.”

SJC rules in favor of Defendant in license suspension case

January 28, 2015 | by Michael DelSignore

The Massachusetts Supreme Judicial Court has just issued an important decision in the license suspension case of Commonwealth v. Oyewole (click here for my previous blog on the case). After the Appeals Court rejected the defendant’s arguments that he was not properly notified of his suspension, the Supreme Judicial Court officially reversed this decision, agreeing with Appeals Court Justice Agnes’s dissent that the State must be required to prove notice beyond all reasonable doubt.

The Oyewole case involved a defendant who was charged with an OUI, and who was subsequently stopped by an officer operating within the 60 day license suspension period. The defendant’s license was temporarily suspended as a result of the OUI conviction that was continued by the trial judge for one year. And although the trial court generally confiscates the defendant’s license for the duration of the license suspension period, the officer who later stopped the defendant within the 60 day period testified that the defendant had his license with him at the time of this subsequent stop.

The defendant argued that he was not properly notified of his license suspension, and that the State failed to meet its burden of proof on this element of the charge. To convict on a charge of operating with a suspended license, the State must prove that the defendant not only operated a vehicle during the suspension term, but that the defendant did so while on notice that his license was suspended.

SJC rules in favor of Aaron Hernandez in Suffolk County Double Homicide case

January 16, 2015 | by Michael DelSignore

The Supreme Judicial Court quashed a Grand Jury subpoena approved by a Suffolk Superior Court judge that required Aaron Hernandez’s defense lawyers to turn over his cellphone, the Boston Herald reports. According to the SJC, the subpoena was an attempt by prosecutors to misuse the Grand Jury to obtain evidence in the double homicide prosecution, rather than using the proper channels to obtain a valid warrant.

The authority and function of the Grand Jury is derived from the Fifth Amendment, and is regulated in Massachusetts by Mass. Rule of Criminal Procedure 5. The Grand Jury serves an entirely different function than the better known trial jury, also known as the “petit” jury because of its smaller size. In contrast to the petit jury that actually observes a trial and renders a verdict on either a criminal or civil case, the Grand Jury’s sole function is to investigate a crime at the direction of the prosecutor, and to determine whether the alleged suspect likely committed the crime (probable cause).

There are three more important distinctions between the Grand Jury and the petit/trial jury. First, the Grand Jury only hears from the prosecutor, and the witnesses which either the prosecutor presents or the Grand Jury summons. There is no judge, and no defense attorney present. Second, the identity of the Grand Jurors and the evidence presented in a Grand Jury are completely secret throughout the length of each Grand Jury. Only the prosecutor and any testifying witnesses could know what is said in a Grand Jury proceeding. The last important distinction is the investigative power wielded by the Grand Jury, the exercise of which triggered this SJC decision.

Learn the Process in Court when charged with OUI out of the Westborough District Court

January 13, 2015 | by Michael DelSignore

Drivers who were stopped and charged with an OUI out of Westborough can expect to appear before the Westborough District Court for pretrial matters. As the case progresses towards trial, the case will be transferred to the Worcester Trial Court, where it will be scheduled for a jury session.

When you face an OUI charge out of Westborough, your case will first be heard at the courthouse at 186 Oak Street – right off of Route 9. There you will be arraigned by the court, and will be asked whether you will be representing yourself or if you have retained a lawyer. If you cannot afford a lawyer, you should speak with the probation office to determine whether you are eligible for a court-appointed lawyer.

Following the arraignment, you will be given later court dates on which you will appear with your lawyer. The court will also schedule later dates to hear motions by either party. During these later court dates, you will have an opportunity to discuss additional evidence that the district attorney has not provided at the first court date as well as discuss a resolution of the case. For someone charged with a First OUI with no record, the standard plea offer is a CWOF or continuance without a finding on the OUI charge. I have discussed this type of resolution on my website.