Boston Criminal Defense Lawyer Blog

Charges of possession of a firearm, possession of a loaded firearm and possession of ammunition were dismissed against Lynn Massachusetts last week in a local district court. The charges stemmed from an incident that occurred on April 17, 2008. According to the police report, the police responded to the area of Route 1 in Peabody Massachusetts for a call of a woman being run down by a motor vehicle. After responding to the scene, the police spoke to the involved parties, and transported the female defendant back to her residence. When the police arrived at the residence the defendant's boyfriend was also there. The defendant was ultimately arrested on an outstanding default warrant.

The defendant was transported in a cruiser to the State Police Barracks in Danvers, MA. After she was taken from the cruiser and into the police station the Trooper searched the car and claimed that he found a loaded handgun in stuffed behind the rear seat of the cruiser. No-one ever identified the defendant as in possession of this weapon.

The defendant maintained her innocence from the outset of the set. There was no physical evidence that connected her to the gun. Attorney Kathleen McCarthy timely filed a number of pre-trial motions requesting copies of any notes, logs or other documentation generated as a result of the transportation of any individual in the cruiser that the defendant was transported in for a period of one week prior to this incident. The request also included all police reports generated in connection with this case. Massachusetts also requires the prosecution to provide automatic discovery of “any facts of an exculpatory nature.” M.R.C.P. 14 (a)(1)(iii). It was clear that the intent of requesting the information relative to individuals transported in the cruiser was to determine whether anyone else was in the cruiser that was involved in a “firearm” related incident. No information was forwarded to the defense relative to this request prior to trial.

On the day of trial, the prosecutor approached the defense attorney and indicated that the arresting trooper informed her that prior to the defendant’s arrest he had been called to back up the State Police in Concord relative to a report, by a named caller who gave his cell number, of a group of individuals in a truck with a gun. Apparently, there were three individuals in the truck that matched the description given by the caller. The individuals were taken from the truck. One of these “suspects” was placed in the rear of the Trooper's cruiser. The same cruiser in which the Trooper found the alleged firearm after the defendant's arrest. There was handgun ammunition, shot gun shells, controlled substances and alcohol found in the truck. The driver of the truck was arrested and charged with illegal possession of a Class D substance, illegal possession of ammunition and illegal possession of alcohol. The judge granted the defendant a continuance to investigate the incident. Based on the late disclosure of the requested exculpatory evidence, Attorney Kathleen McCarthy filed a motion to dismiss the case.

Almost fifteen months after the incident the caller could not be located and the 911 tape had been destroyed. Despite the efforts of an experienced investigator, the named caller could not be located and the cell phone number no longer belonged to the individual that made the call fifteen months earlier. After an extended hearing the district court judge agreed that the fact that the Trooper had placed an individual in his cruiser who was suspected of being in possession of a handgun only a few hours before the defendant was placed in the cruiser should have been disclosed to the defendant pursuant to the discovery orders rather than seventeen months later on the day of trial. The trial judge held that the late disclosure caused irremediable harm to the defendant's case and dismissed the charges against the defendant.

This case exemplifies the importance of filing all relevant pre-trial motions. Experienced defense attorneys often file pre-trial motions including discovery motions, motions to suppress, motions to dismiss and motions to compel in order to effectively represent their clients and protect their rights to due process and a fair trial.

Continue reading " District Court Judge Allows Defendant's Motion To Dismiss Gun Charges In Peabody District Court " »

Twenty-three year old Fidel Sena, from Peabody Massachusetts, has been arrested and charged with assault and battery by means of a dangerous weapon causing serious bodily injury on a fifty-three year old man. According to The Salem News, Salem police officers responded to a report relative to a fight involving the use of baseball bats. When the police arrived at the scene the fifty-three year old victim was lying on the ground. He was eventually transported to the Salem Hospital for treatment. A witness provided the police with a license plate number and description of the alleged perpetrator. According to reports, witnesses were brought to where the police pulled over the car and they identified Sena as the perpetrator.

In Massachusetts, in order for the Commonwealth to prove assault and battery it must prove that a defendant touched another person without consent. Assault and battery is considered a misdemeanor in Massachusetts because the maximum sentence is a commitment to jail or a house of correction and not state prison. However, the charge of assault and battery by means of a dangerous weapon is a felony because the potential punishment is a commitment to state prison.

If you have been charged with a crime in Massachusetts, you must have an experienced defense attorney on your side. Although all of the facts of this case are not known at this time, filing a motion to suppress the identification of the defendant may be appropriate because it appears that the police brought the witnesses to the suspect for a one on one show up identification. In these types of case, pre-trial motions requesting the circumstances surrounding the identification of the defendant as the perpetrator should be filed to determine the viability of filing motion to suppress the identification of the defendant as the perpetrator.

Additionally, if you have been charged with domestic assault and battery a qualified defense attorney is important to ensure that all of your rights are protected. In the event that a complaining witness applies for a restraining order and you are notified of a hearing relative to the issuance or extension of a restraining order, you must have an experienced Boston area domestic violence attorney on your side. You must be informed of all of your rights and options to avoid making statements and giving testimony at a restraining order hearing that may be used against you at trial or be the grounds for additional charges issuing against you.

Continue reading " Peabody Massachusetts Man Charged With Assault And Battery By Means Of A Dangerous Weapon And Related Charges " »

Judge Matthew Nestor found Beverly Massachusetts police officer guilty of motor vehicle homicide following a jury waived trial in Peabody District Court. According to The Salem News, Officer Stuart Merry was retried on the charges after the first trial judge held that exculpatory evidence was unintentionally withheld from the defense team during the first trial. The Commonwealth appealed this ruling but The Massachusetts Supreme Judicial Court agreed that the Beverly police officer was entitled to a new trial. However, even following the retrial, Merry was found guilty and sentenced to three years probation and a fifteen year license loss.

In Massachusetts, Massachusetts General Law Chapter 90 § 24G provides that in order to be found guilty of motor vehicle homicide the Commonwealth must prove that a defendant operated a motor vehicle recklessly or negligently on a public way in such a manner that the lives and safety of the public might be endangered and by such operation caused the death of another person. The law on motor vehicle homicide encompasses tort law to the extent that a finding of ordinary negligence suffices to establish homicide by motor vehicle. Although the Commonwealth must prove all elements of the crime beyond a reasonable doubt negligence, for purposes of motor vehicle homicide, is determined by the same standard that is employed in tort law.

In the Merry case, the Commonwealth claimed that the officer's negligent operation of his police cruiser caused the death of sixty-one year old Bonny Burns as she sat in her car in front of her home on January 20, 2007. The defense claimed that Merry suffered a seizure prior to the crash causing the officer to become rigid and push the gas pedal almost all of the way to the floor. Following approximately thirty minutes of deliberations the District Court Judge found Merry guilty indicating that he believed that the prosecution sustained its burden of proof.

In Massachusetts, if you are charged with any type of criminal motor vehicle offense it is important that you have an experienced Massachusetts defense lawyer on your side. Conviction on these types of offenses not only may involve probation and/or incarceration but they can have collateral consequences with the Registry of Motor Vehicles.

Continue reading " Beverly Massachusetts Police Officer Found Guilty Of Motor Vehicle Homicide " »

Twenty-two year old Anthony Merrill of Lynn Massachusetts is charged with assault with intent to murder and assault and battery by means of a dangerous weapon relating to a stabbing that occurred in Hammond Park in Marblehead. According to The Salem News, Merrill approached a Salem Massachusetts man from behind and stabbed him. A witness reported observing an individual in the park prior to the assault with two shiny objects. It has been reported that Merrill had two steak knives in his hand when he approached the victim. Initially the victim believed that he had been struck by a rock and chased after his assailant. The victim's friend alerted him to the fact that he had a knife sticking out of his back. Two bloody steak knives were confiscated from the scene. It is believed that the attack was unprovoked. Following his arraignment in the judge ordered that the defendant be held on $25,000.00 cash bail. The defendant was identified based on witness descriptions and photographic identifications made by witnesses.

Based on the facts of this case, it seems that a viable defense is that the defendant has been mistakenly identified as the culprit. In Massachusetts, presenting a defense of mistaken identification can be successful in situations, such as this one, where the defendant was not identified until a period of time passed and it does not appear that the parties knew one another. Furthermore, the fact that this incident took place at night could strengthen the defendant's position that he has been misidentified.

A successful Boston area defense attorney would likely file a pre-trial motion requesting that the Commonwealth disclose the details of any and all identification procedures. After gathering this information a decision must be made relative to whether a motion to suppress the identification of the defendant as the perpetrator should be filed. The grounds for this type of motion often include that the identification of the defendant was unduly suggestive either by the conduct of the police or the circumstances under which the identification was made. If the Court allows the defendant's motion then the out of court identification is suppressed. At this point, the Commonwealth must demonstrate that any in court identification is based on a source independent from the tainted prior identification. In most cases, when the identification of a defendant is suppressed the case would be dismissed.

Continue reading " Lynn Massachusetts Man Held On High Bail Faces Charges Stemming From A Stabbing In A Marblehead Park " »

An undercover sting operation to catch a Lawrence man allegedly breaking into neighborhood cars paid off. According to The Lawrence Eagle Tribune, police officers went undercover to catch the person breaking into the vehicles. A citizen reported that a man was loitering in the area of Methuen Street in Lawrence. The police responded and saw twenty-five year old Jose Rivera walking away from a parked car with its alarm sounding. The officer, who was in an unmarked cruiser, saw that a nearby car had its window broken and Rivera had screwdrivers in his pocket and a GPS base and charge chord in his pants. Rivera was arrested and charged with breaking and entering a vehicle in the daytime with intent to commit a felony, larceny over $250.00, possession of burglarious tools and malicious destruction of property over $250.00.

In Massachusetts, if you are charged with any type of theft crime it is important to have an experienced defense attorney on your side. In order for the prosecution to secure a conviction, they must prove all of the elements of a crime beyond a reasonable doubt. It is important that your Massachusetts trial attorney knows the law and all of the elements of the crime with which you are charged.

For example, in order for the prosecution to secure a conviction for possession of burglarious instruments in violation of G.L.c. 266, § 49,the Commonwealth must prove that the defendant possessed "an engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open a building, room, vault, safe or other depository, in order to steal there from money or other property, or to commit any other crime, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ or allow the same to be used or employed for such purpose . . ."

In Massachusetts, many defendants are charged with possession of burglarious tools simply because they are found with pliers, wrenches and other tools in their possession. However, mere possession of these objects, even at what is believed to have been a crime scene, is not sufficient to prove that the items were "burglarious." The trial judge must instruct and the Commonwealth must prove that the defendant possessed the item or tool with the intent to use it to break into a vehicle or residence. Mere possession of a tool is not enough for a conviction. The Commonwealth must also prove that the defendant had the specific intent to use the tool to enter the car or residence.

Continue reading " Lawrence Massachusetts Man Arrested And Charged With Breaking And Entering A Vehicle, Malicious Destruction Of Property, Possession Of Burglarious Tools And Malicious Destruction Of Property " »

A Salem Massachusetts man, Edward Vidinha, charged with a subsequent offense of possession of heroin faces up to two and one half years in prison if convicted. According to The Salem News, Salem police officers approached Vidinha after they saw, what they claimed to be, a drug transaction. According to reports, the officers claim that they saw Vidinha throw a small bag, of what they believe to be heroin, to the ground before they approached him. Vidinha pleaded not guilty at his arraignment in Salem District Court but was held on $7,500.00 cash bail. It is believed that the judge imposed such a high bail because of Vidinha's lengthy record.

Although all of the facts are not known at this time, it appears that there may be a viable motion to suppress the evidence in this case. In Massachusetts, the police must have "reasonable suspicion" before approaching and individual and conducting a "threshold inquiry." Here, it appears that the officers claim that they saw what they believed to be a drug transaction between Vidinha and another individual. In this type of case, it is important to file pre-trial discovery motions requesting specific information relative to the officers qualifications to make such a determination. It is also critical to do a thorough pretrial investigation to determine whether the officers could have seen what they claimed to have seen from their location. There are numerous ways to attack the legality of the officers conduct. Attorney McCarthy is experienced in defending drug cases in local courthouses including Stoughton and East Boston.

Having an experienced Massachusetts defense attorney on your side to protect your rights is crucial to presenting a successful defense. If you have been charged with a drug offense, you must contact a Massachusetts trial attorney to ensure that the police did not violate your state and federal constitutional rights when they conducted any search of your person, car or home. A successful result relative to a motion to suppress often results in the suppression of incriminating evidence and is often the end of the case.

Continue reading " Salem Massachusetts Man Behind Bars And Charged With Possession Of Heroin " »

The Salem News reports that forty-eight year old Peter Postell from Salem Massachusetts will be spending the next six months in jail for shoving a neighbor that Postell had been ordered to stay away from. Postell was two weeks away from completing his probation for a harassment conviction. His terms of that probation included that he have no contact with neighbors who were the target of the harassment. Earlier this week in a hearing conducted in Salem District Curt the neighbor testified that as he tried to avoid making eye contact with PostellPostel as he came down the street but Postell came up and shoved him. According to reports, the defense suggested that the timing of the allegations were suspicious due to the fact that Postell was expected to move in next door to the complaining neighbors after the probationary term ended. A District Court Judge did not buy the argument and Postell was sentenced to six months in jail.

In Massachusetts, ordering a defendant to have no contact or to stay away from alleged victims or complainants is a common term of probation. Crimes in which this type of order is often imposed includes circumstance in which a defendant is charged with domestic assault and battery, assault and battery, trespass, violation of a restraining order, threats and harassment. If you have been charged with this type of offense it is imperative that you have an experienced Boston area defense attorney on your side. In the event that the case is disposed of you must ensure that any imposed term of probation is reasonable and related to the crime charged.

In the District Courts of Massachusetts defendants do not ordinarily go to jail because of the initial charge. It is often when the probation department alleges that a term of probation has been violated that the defendant's liberty is in jeopardy. The probation department gives notice to the defendant that it believes he or she violated the terms of probation and a preliminary hearing is conducted. Depending on the facts of the case, the probation officer may request that a defendant be held in detention until the final surrender hearing. At the final surrender hearing the defendant has the opportunity to present his defense. The rules that apply during a probation hearing are more "relaxed" than those that apply at a trial. Although less stringent, any information must be credible and reliable. If you are facing a probation surrender hearing it is imperative that you have an experienced trial attorney at your side to ensure that your rights are protected and the probation department is made to sustain its burden of proof.

Continue reading " Salem Massachusetts Man Violates Court Stay Away Order And Lands In Jail " »

A twenty-four year Lowell Massachusetts man pleaded not guilty to charges relating to the shooting death of 17-year-old Tavaryna Choeun. According to The Lowell Sun, the defendant, identified as Srey, is accused of firing five shots into a car where Choeun was sitting in the passenger seat at a Lowell intersection. The authorities do not believe that Choeun was the intended victim. The shooting occurred on May 12, 2008 and Srey was just arraigned earlier this week on charges of first-degree murder, three counts of armed assault to murder, assault and battery with a dangerous weapon causing serious bodily injury, two counts of illegal possession of a firearm without a firearms identification card and discharge of a firearm within 500 feet of a building.

Although all of the facts are not known at this time it appears that a viable defense may be that Srey has been misidentified. The fact that there was a significant passage of time between the incident and an indictment suggests that the police may have had a difficult time having witnesses come forward. It may also be the case that some witnesses may have a motive to testify against Srey.

In Massachusetts, if you are charged with illegal possession of a firearm you could face a mandatory minimum sentence of eighteen months in the house of correction. Depending on the facts of the case, it may be appropriate to file a motion to suppress evidence if a gun was confiscated from your person, a car that you were in or in your apartment or home. Successful litigation of motions to suppress evidence can result in the suppression of evidence which is often the end of the case for the Commonwealth.

Continue reading " Lowell Massachusetts Man Pleads Not Guilty In Charges Stemming From Fatal Shooting In Lowell " »

The Salem News recently reported that Jeffrey Monico and Kevin Maloney, both twenty- eight years old have been charged with crimes in connection with a number of holdups of banks located on the North Shore. The banks are located in Lawrence, Andover, Ipswich, Beverly, Peabody and Danvers and the incidents took place back in April, 2008. Their crime spree came to an abrupt halt when they were arrested last spring as they left the scene of a credit union robbery in New Hampshire.

The two men face charges of unarmed robbery related to robberies of two Salem Five branches in Danvers, Massachusetts, a Danvers Bank branch in Andover, a Sovereign Bank in Lawrence, stealing by confinement at a Sovereign Bank in Ipswich, stealing by confinement in an attempted holdup at the Bank of America in Beverly and stealing by confinement in Peabody, Massachusetts. The two men are currently being held on charges in New Hampshire and are expected to be arraigned on these charges in Massachusetts within the next few weeks.

In Massachusetts, if convicted of unarmed or armed robbery a defendant faces the possibility of receiving a life sentence. Thus, if you have been charged with a crime it is imperative that you have an experienced Massachusetts attorney on your side. Having a trial lawyer on your side from the beginning is critical to developing a successful strategy. Depending on the facts of the case, establishing that a defendant has been misidentified often involves extensive pre-trial investigation. Furthermore, if the police spoke with a defendant or conducted any type of search the case must be evaluated to determine whether a motion to suppress any statements or evidence should be filed.

Continue reading " Peabody And Saugus Massachusetts Men Indicted And Charged With Crimes Related To North Shore Robbery Spree " »