Massachusetts Criminal Defense Lawyer Blog

Massachusetts Sex Crimes Lawyer reviews recent Indecent Assault and Battery Case addressing excited utterances and the Right of Confrontation

June 2, 2011 | by Michael DelSignore

The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant’s conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant’s actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim’s statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant’s position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim’s response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court’s decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.
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Comments on recent case regarding admissibility of breathalyzer test results

May 24, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Zoanne Zeininger which addressed the issue of whether the Sixth Amendment requires the Commonwealth to present the live testimony of a witness from the Office of Alcohol Testing in order to admit breathalyzer test results at a Massachusetts DUI trial. Click here to read in SJC decision in Zeininger.

At trial, the Massachusetts OUI attorney, argued that the Office of Alcohol Testing documents could not be admitted into evidence without the live testimony of a witness from OAT in order to preserve the defendant’s right of confrontation under the Sixth Amendment and the recent case of Melendez-Diaz v. Massachusetts. At a DUI trial, the Commonwealth generally subpoenas a packet of documents from the OAT that show compliance with the annual certification and periodic testing requirements of Massachusetts drunk driving law. The Commonwealth generally seeks to admit these documents into evidence as business records without live testimony from the Office of Alcohol Testing. The Zeininger case raised the issue of whether this practice satisfied constitutional requirements.

The Massachusetts Supreme Judicial Court held that the court undergoes a two part inquiry to determine whether out-of-court statements are admissible at a criminal trial. First, it determines whether the statement is admissible under a hearsay evidence exception and second whether it satisfies the requirements of the Confrontation Clause of the Sixth Amendment.

The SJC held that the OAT documents are made by a public official having a statutory duty to comply with a rigorous regulatory certification. The Court held that these records do not express any opinion but memorialize routine scientific measurements. Further, the court stated that the records qualify as business records because they were not created essentially for use in court, but pursuant to the mandates of Massachusetts statutes creating the regulatory scheme. Accordingly, the court held that the records are admissible under Massachusetts evidence law.

The SJC also rejected challenges to the admissibility of the OAT records based on the Sixth Amendment Confrontation Clause. The SJC held that the Oat records are not made for the purpose of proving some fact at trial but to comply with its statutory mandate.

As a Massachusetts OUI lawyer, the court’s decision is contrary to the United States Supreme Court’s Melendez-Diaz decision as the only purpose for the OAT records is to establish the reliability of the breathalyzer test at trial. But for the fact that breathalyzer results are used in court, there would be no purpose for the records or testing of the machine. Accordingly, the Court ‘s suggestion that the records are not prepared primarily for trial is simply incorrect.

Additionally, the SJC’s claim that the records the records memorialize routine scientific measurements is inconsistent with the language of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) which held that the Confrontation Clause is essential to ensure the reliability of scientific procedures in court. The SJC ignores the language of the Supreme Court in Melendez-Diaz by suggesting that the OAT testing procedure is simple so that confrontation is not required.

As a Massachusetts DUI lawyer, the court’s decision and reasoning is incorrect and contrary to the requirements of the Confrontation Clause as set forth in the United States Supreme Court case law. The United States Supreme Court is expected to release its decision in Bullcoming v. New Mexico by the end of the terms, which may undermine the SJC reasoning in Zeininger.
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Proving Prior Convictions in Second Offense Massachusetts DUI arrest

May 6, 2011 | by Michael DelSignore

When you are charged with a Second Offense DUI in Massachusetts, how does the Commonwealth prove that you had a prior conviction. The Appeals Court addressed this issue in the case of Commonwealth v. Ellis which was decided on April 25, 2011.

The Ellis case involved an appeal of a Fourth Offense OUI conviction from the Chelsea District Court. However, regardless of whether you have a second, third or fourth offense, drunk driving charge, the method of proof is the same. With a third or fourth offense, the Commonwealth needs to prove either two or three prior convictions rather than just one prior conviction as for a second offense Massachusetts DUI charge.

In a second offense, the Commonwealth can prove the existence of the prior conviction in a number of different ways. First, the Commonwealth can offer into evidence a certified copy of the conviction from the court in which the prior offense occurred. This is the most common method used by prosecutors. Second, the Commonwealth can offer into evidence a certified copy of your Registry of Motor Vehicle driving record showing the prior conviction. Lastly, the Commonwealth can offer into evidence a copy of your probation record.

The Massachusetts OUI lawyer representing Ellis challenged the method of proving the prior convictions of the defendant. The Commonwealth attempted to offer the defendant’s probation record into evidence as a business record. If a record is a business record, then it can come into evidence at a criminal trial without requiring the maker of the record to testify. To qualify as a business record a record must be kept in the ordinary course of business and not prepared in anticipation of litigation. If a record is a business record, it is considered nontestimonial and the Commonwealth does not have to present live testimony of the author of the record in court.

The court rejected the classification of probation records as business records and held that these records are prepared in anticipation of litigation and according fall outside of the hearsay exception for business records. The Appeals Court adopted the argument of the lawyer in this case that under Melendez-Diaz the probation records were testimonial and required the Government to present a witness to admit the records into evidence. To read more about Melendez-Diaz and the right of confrontation, you can click on my prior blogs on this issue and refer to a Law Review Article from Creighton University, attached here.

Despite upholding the Massachusetts DUI lawyers objection to the probation records coming into evidence, the Court ultimately found that the error was harmless as the Government also admitted the defendant’s driving records from the Registry of Motor Vehicles. The court held that RMV documents are nontestimonial and can come into evidence without the presentation of a live witness.
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Rhode Island Legislator Charged with Drunk Driving, Possession of Marijuana, at Sobriety Checkpoint

April 27, 2011 | by Michael DelSignore

A Rhode Island lawmaker has been charged with driving under the influence and possession of marijuana and drug paraphernalia after being stopped at a DUI checkpoint in Connecticut, Channel 12 News reported.

A Massachusetts criminal defense lawyer has more ground upon which to challenge charges that result from a car stop at a sobriety checkpoint. These stops infringe upon your Fourth Amendment rights to be free from unreasonable search and seizure.

Massachusetts sobriety checkpoints and law enforcement roadblocks in Connecticut are permitted under state law, though law enforcement must obey strict rules regarding the checkpoint’s operation to ensure everyone is treated equally. The training of officers involved, the probable cause to request that you submit to field sobriety testing or a breathalyzer examination and the probable cause for any search of your vehicle or person are all issues a defense attorney may challenge in defending a client charged as a result of a DUI checkpoint.

Roadblocks in Rhode Island have been deemed unconstitutional and are not permitted under the state constitution.

House Minority Leader Robert Watson, R-East Greenwich-West Greenwich, was among those arrested Friday at a checkpoint in East Haven Connecticut. NBC 10 News reports Watson is expected to keep his leadership position despite the arrest after Republican House members voted unanimously to support him.

Watson denied failing the field sobriety tests and stated that he wished there were cameras. In many cases, a driver charged with DUI in Massachusetts will dispute the version of the police contained in the police report. Many motorists are upset when reading the police which often is inaccurate, exaggerates what occurred and distorts innocent activity to justify the arrest. According to the police report, the officer observed only three clues on the nine step walk and turn out of a total of eight clues. While the officer concluded Watson failed, his DUI lawyer will be able to use this test to show that he had normal balance, coordination and mental ability given the substantial number of things he did correct in performing the test.

The Providence Journal reported Watson was flagged over while driving his Ford Ranger. Police report that he smelled of alcohol and marijuana. A bag of suspected marijuana and a wood pipe were found upon a search of the vehicle.

A test of his blood-alcohol level at the station was .05, below the legal limit of .08. However, the presence of marijuana could complicate the case as prosecutors could argue he was driving under the influence of drugs as well as alcohol.

In Massachusetts, there is a presumption that a driver is not under the influence if a breathalyzer reading is .05 or below. If the breathalyzer reading is .06 or .07, the Commonwealth may still charge a motorist with DUI and will proceed under an impairment theory. Most cases of under .06 and .07 result in not guilty verdicts after a bench trial. However, when there is allegations of driving under the influence of drugs, the Commonwealth may charge OUI drugs in the alternative.
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Massachusetts Appeals Court addresses Identification issue in appeal from Wrentham District Court Open and Gross Lewdness Conviction

April 24, 2011 | by Michael DelSignore

As a Massachusetts criminal defense lawyer, the

Massachusetts Supreme Judicial Court holds that smell of burnt marijuana is insufficient to justify an exit order

April 19, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court addressed an important legal issues that arose once the Massachusetts legislature decriminalized simple possession of under one ounce of marijuana. Does the smell of burnt marijuana justify an order that a motorist exit a motor vehicle. In the case of Commonwealth v. Cruz, decided April 19, 2011, the SJC held that the smell of burnt marijuana alone does not justify an exit order.

The Cruz case involved the following facts. The defendant was a passenger in a car parked in front of a fire hydrant. The windows were rolled down in the car and the officers could see the driver light a cigar known to mask the smell of marijuana. The officers recognized the defendant and testified at the motion to suppress hearing that they saw the defendant smoking marijuana earlier in the day. Significantly, the defendant was not known to the officers as a dangerous person and even was counseled by one of the officers to “do more than hang out.” The driver was unknown to the officers. The officers further testified at the motion hearing that the defendant was smoking a cigar, that they could smell an odor of burnt marijuana and that the driver appeared nervous. The defendant and the driver were ordered out of the car.

In finding the exit order improper under Article 14 of the Massachusetts Declaration of Rights, the court stressed that by decriminalizing possession of under an ounce of marijuana the voters changed the status of the offense, meaning that the voters intended possession of marijuana under an ounce to be treated different from other serious drug crimes. Accordingly, the SJC concluded that the changed status of the offense implicates police conduct and requires some additional facts other than the smell of burnt marijuana to justify an exit order.

Under Massachusetts law, police must have a basis to support an exit order under Article 14 of the Declaration of Rights. An exit order is permissible in Massachusetts in one of three circumstances:

1. The police have a reasonable belief that their safety is in danger;
2. The officer has reasonable suspicion that the defendant is committing a criminal offense, other than a traffic violation.
3. The officer can order a defendant from the car if there is a legal basis for a warrantless search of the vehicle under the automobile exception to the warrant requirement.

Massachusetts provides greater protections to citizens under Article 14 than under the Fourth Amendment to the United States Constitution as under the Fourth Amendment as interpreted by the United States Supreme Court, the police do not need any basis to order a motorist from the vehicle.

In Cruz, the Commonwealth argued that the exit order was justified based on the officer’s belief that the defendant was engaged in criminal activity. The SJC held that there were no facts that would support the conclusion that a criminal amount of narcotics were in the vehicle. Further, the court rejected the reasoning of other State courts finding probable cause to believe a vehicle has any quantity of marijuana is sufficient to justify a warrantless search based on the likely presence of other contraband. In rejecting these other State court decisions, the SJC stressed that the standard to determine the validity of a warrantless search is the same used by a magistrate issuing a warrant. Applying this reasoning, the SJC concluded that under the facts of the case a magistrate could not issue a search warrant.
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United States Supreme Court heard oral argument in Bullcoming v. New Mexico which could impact the admissibility of breathalyzer evidence in Massachusetts

March 3, 2011 | by Michael DelSignore

Bullcoming v. New Mexico raises a significant issue under the Sixth Amendment Confrontation Clause regarding scientific and blood test evidence in Massachusetts drunk driving cases with breathalyzer or blood test results. The State of New Mexico attempted to present evidence to prove the defendant’s blood alcohol content through a surrogate blood analyst who did not have any role in drawing the defendant’s blood.

The State argued that the Sixth Amendment Confrontation Clause was not violated because the blood test was a simple test that did not require the analyst to interpret results or exercise independent judgment. The National College of DUI Defense amicus brief, by Attorneys Justice McShane, Lenny Stamm and Ronald Moore, pointed out the scientific judgment and interpretation involved with blood test results.

The State argued in its brief that the Confrontation Clause is not implicated because the report was produced by a machine and a machine is not a witness under the Confrontation Clause. The State argued that the scientific evidence in Bullcoming did not qualify as testimonial because it was not prepared under oath and is not an affidavit or confession. The complete court filings in the case are contained on the Scotus Blog, click here.

United States Supreme Court diminishes right of confrontation in case of Michigan v. Bryant

February 28, 2011 | by Michael DelSignore

The United States Supreme Court’s decision in Michigan v. Bryant, decided today, diminishes the Sixth Amendment right of confrontation. The Court held that statements are nontestimonial and thus not covered by the Sixth Amendment confrontation clause when the primary purpose of the statement is to allow the police to respond to an ongoing emergency. The Court’s opinion represents a substantial departure from the Court’s recent cases of Crawford v. Washington, 541 U.S. 36 (2004) and Melendez Diaz v. Massachusetts, 557 U.S. __ (2009) both affirming that the Constitution requires face to face confrontation under the Sixth Amendment.

Four justices joined in this reasoning with Justice Thomas joining the majority based on the fact that the statement was not sufficiently formal to be testimonial. Accordingly, Justice Thomas defines the right of confrontation based on whether the statement is similar to the historical practices that the framers of the Constitution intended to curtail when drafting the confrontation clause.

The Bryant case is an unusual case as the police came upon a victim who was dying from a gun shot wound. The police asked the victim what happened and he identified the defendant as the shooter. The victim died, leaving his statements as the only evidence identifying the defendant is the shooter. The Court held that the circumstances of the emergency indicated that the primary purpose of the victim’s statement was to help the police respond to an ongoing emergency of capturing the assailant. The Court held that a person in the victim’s position would not have a purpose of identifying his shooter for future prosecution, but to assist the police in responding to the emergency. Further, the Court stressed that the primary purpose of the police was to respond to the medical emergency facing the victim. Additionally, the Court stated that the defendant’s medical condition and the informal nature of the questioning was relevant in determining the primary purpose of the statement.

United States Supreme Court declines to hear case raising the issue of whether Constitution requires unanimous jury verdict

February 23, 2011 | by Michael DelSignore

The United States Supreme Court declined to hear an appeal from Louisiana in the case of Barbour v. Louisiana which raises the issue of whether the Constitution requires a unanimous jury verdict to support a criminal conviction. Click on this link to read the filings from the case on the Scotus Blog.

Only two states Louisiana and Oregon allow a criminal conviction without a unanimous jury verdict. Massachusetts requires a unanimous jury verdict of all six jurors in district court and twelve jurors in superior court. Accordingly, if a Massachusetts criminal lawyer obtains a verdict that is not unanimous a mistrial results and the case can be brought to trial again.

The defendant in Barbour asserts that the Sixth and Fourteenth Amendment require a unanimous jury verdict. The petitioner in the case is represented by Jeffrey L. Fisher. The petitioners argue that the United States Supreme Court should overrule its decision in Apodaca v. Oregon, 406 U.S. 404 (1972) where the United States Supreme Court held that the Constitution does not require a unanimous jury verdict.

Massachusetts Supreme Judicial Court heard oral argument in Commonwealth v. Zeininger regarding admissibility of breathalyzer test results at DUI trial

February 11, 2011 | by Michael DelSignore

The Massachusetts Supreme Judicial Court heard oral arguments on February 7, 2011 in the case of Commonwealth v. Zeininger, which was an appeal of a drunk driving conviction out of the Greenfield District Court. The defendants in the case filed an appeal with the Massachusetts Court of Appeals, which the SJC took on its own motion for direct view. As a Massachusetts OUI attorney, this decision could have an important implications for attorney defending drunk driving cases.

The defendant made three challenges to the admissibility of the breathalyzer test results. First, the defendant challenged the evidence presented by the Commonwealth to show that the breathalyzer machine was certified. Under the Massachusetts Supreme Court’s decision in Commonwealth v. Barbeau, 411 Mass. 782 (1992), in order to admit breathalyzer test results into evidence, the Commonwealth has to establish that the machine satisfies both the annual certification and the periodic testing requirements imposed by the Massachusetts regulation and the Barbeau decision.

The Commonwealth did not call a witness to prove the annual certification, but relied on the certification noted in the implied consent form. The implied consent form does not indicate who certified the breathalyzer testing machine. The Commonwealth can request a certification from the Office of Alcohol Testing, but it appears that the Commonwealth relied on the certification on the implied consent form rather than the full Office of Alcohol Testing documents that are certified by the Office of Alcohol Testing.