Boston Criminal Defense Lawyer Blog

The Lawrence Eagle Tribune reports that a Marblehead man, Richard Burke, faces charges of a second offense operating under the influence of alcohol, driving an uninsured motor vehicle, driving after his license was suspended and related motor vehicle charges in the Salem District Court. The charges stem from a collision that his car had with a minivan on Sunday during the early afternoon. Apparently, the two car accident left the defendant and two others in the hospital. Unfortunately for Burke, these new charges have been lodged while he was released on bail for another drunk driving case in the Woburn District Court. For that reason the judge ordered that he be held for up to sixty days without the possibility of posting bail and/or until the case is resolved. Although the defense attorney argued that there were other conditions including alcohol monitoring and a curfew that cold be imposed short of incarceration, the Salem District Court Judge did not go for it. It was represented that the defendant has a previous "continuance without a finding" on a previous operating under the influence from 2005.

According to reports, the car driven by the defendant traveled into the path of the minivan and hit it head on. Police officers and an EMT indicated that they smelled an odor of alcohol from the defendant. The defendant did not submit to a blood alcohol test at the hospital.

According to the Tribune, the defendant's first case was "continued without a finding." A "continuance without a finding" means that a defendant admitted to sufficient facts but the judge did not find him or her guilty. In many of these situations, the judge continues the case for one year and orders that a defendant enter and complete and "ASAP" alcohol program, pay court fees and not get rearrested. In the event these conditions are satisfied the case is dismissed. The benefit of this type of disposition is that a defendant can state that he or she has not been convicted of a crime. In situations in which a defendant pleads guilty or is found guilty by a jury, that is considered a criminal conviction. However, it is important to understand that even a continuance without a finding on the charge of operating under the influence of alcohol counts as a first offense, even though it is not considered a conviction. Therefore, if a defendant is arrested for operating under the influence or drunk driving after receiving a continuance without a finding, it will be considered a second offense.

The Commonwealth must prove three things beyond a reasonable to secure a conviction for driving under the influence of alcohol. The prosecutor must prove that a defendant was driving a motor vehicle on public way and was under the influence of alcohol. In order to prove "operation" it is not necessary for the government to prove that a person was driving a car down the street in the traditional sense. Simply having a key in the ignition is sufficient in many cases. A public was is a way in which the public has a right to access. For example, a mall parking lot or a restaurant parking lot is usually considered a "public way" even though they may technically be "private property." They are considered "public" because the public has the RIGHT to access the area. However, a driveway or private property like a private access road is not considered a public way. The most litigated area is the "under the influence" element of the crime. The Commonwealth is not required to prove that the defendant was "drunk." The prosecutor must however prove that the defendant's ability to safely drive a motor vehicle was impaired from alcohol.

Continue reading " Salem District Court Judge Orders Marblehead Man Held Without Bail Who Faces Charges Of Operating Under The Influence Of Alcohol Second Offense And Rlated Charges " »

A twenty-eight year old Salem Massachusetts man, Michael Marino, will spend the next six years behind bars after pleading guilty to stabbing his mother's former boyfriend seven times. According to The Salem News, Paul Goodwin told the Superior Court Judge that this situation was the most "horrifying thing in [his] life." Goodwin wanted Marino to be sentenced to the maximum of thirty-five years, twenty years for the count of assault with intent to murder and fifteen years for count of assault and battery causing serious bodily injury. The prosecutor described the incident as a "brutal attack" and requested that the defendant be sentenced to a seven to ten year sentence. Superior Court Judge David Lowy imposed a six year sentence followed by a probation term when Marino is released from prison. Marino was ordered to participate in drug and alcohol counseling and attend an anger management class during his probationary period.

According to reports, the victim explained to the Judge that the defendant sliced his throat and then opened up his belly "like a fish." Apparently, Goodwin, [who had previously received a restraining order against his former girlfriend and mother of the defendant, Brault] went to Brault's mother's house after she had been kicked out. As Goodwin and Brault were speaking, Brault received a phone call from her son, Marino who appeared at the scene. An altercation ensued that left Goodwin with lacerations to his liver, lung and diaphragm and fighting for his life. Defense counsel explained that his client did not land the first blow and was not sure what to expect when he arrived at the scene. Counsel further explained that Marino was under the influence of Klonepin and alcohol. The struggle landed Marino in jail and Goodwin in the hospital.

In many cases where a defendant is charged with a violent crime there are a number of defenses to pursue. Obviously, the type of defense that is mounted depends on the facts of the case. For example, if a defendant was not identified at the scene and the accuser and the defendant are unknown to one another, a defense of misidentification should be evaluated. That type of defense would not make sense in a case such as this because the parties knew each other.

Although all of the facts of this case are not known, it appears that if the case went to trial a viable defense would be that Marino acted in self-defense. In cases in which a defendant claims self-defense the Commonwealth must prove that beyond a reasonable doubt that an assault and battery by means of a dangerous weapon occurred AND must prove beyond a reasonable doubt that the defendant did NOT act in self-defense. However, in cases of self-defense and individual has the obligation to retreat if possible and can only use as much force as is necessary to defend oneself. Thus, the fact that Marino introduced a knife into the struggle could be problematic to the claim of self-defense. In these types of cases the size of the individuals involved in the altercation can be important as a slighter person may need to use more force to protect himself from a bigger, stronger person.

Continue reading " Salem Massachusetts Man Sentenced To Six Years In Prison On Charges Of Assault With Intent To Murder And Assault And Battery By Means Of A Dangerous Weapon Causing Bodily Injury " »

A disagreement over a debt landed one neighbor in jail and the other crying and calling the police. According to The Danvers Herald, forty-four year old Jayniene McCarthy of Danvers barged into a neighbor's apartment, kneeing a two-year old toddler before putting a knife to the boy's mother's throat and taking a wallet from the kitchen table. According to reports the front door of the victim's apartment was kicked in and McCarthy faces charges including armed robbery, assault and battery on a child causing injury, breaking and entering, assault and battery to collect a loan and malicious destruction of property. The assailant allegedly took a knife from the dish rack and put it to the victim's neck demanding repayment of a $100.00 loan. When the police arrived she was crying and the child had a bruise on his head. Both were evaluated at the hospital. According to the paper, the suspect allowed the police to search her apartment and the wallet was found in the suspect's apartment.

Apparently, the defendant was held without bail pending a dangerousness hearing set for this Wednesday. The District Attorney's Office files a request for a "dangerousnsess hearing" in the event that they believe that an individual is a danger to herself, himself, a particular individual or the community and there are no other reasonable means to ensure the safety of the public without having the defendant held in jail without bail. The prosecutor must also be able to present probable cause that the defendant committed the offense. In the event a judge finds that an individual fits this criteria he or she may be held without the opportunity to post bail.
Although all of the facts of this case are not known at this time, if the defendant does not have a record that is a positive factor that should be emphasized by a qualified defense attorney. In cases in which is is alleged that a defendant engaged in violent behavior which may concern a Judge, arguing that the defendant could routinely report to probation and abstain from alcohol and or drugs (if they were involved in the offense) may help an individual be able to be eligible for bail. If things are not looking good, it is sometimes a good idea to argue that the individual be placed on a "bracelet" and only allowed to go to work and other enumerated activities.

In this case, it appears that the defendant consented to the police entering her apartment and searching it. In Massachusetts the police must get a search warrant in order to search a person's home. A few exceptions to that rule are if there are "exigent circumstances" or if a person in control of the premises "consents" to the search. "Consent" must be given freely and without coercion. An experienced defense lawyer will often file a motion to suppress evidence based on illegal entry, search of an apartment and seizure of evidence from a home in situations in which law enforcement did not get a warrant prior to entry and there was not exigency or consent. Whether an individual "consented" to a search is often the subject of litigation during a motion to suppress evidence.

Continue reading " Danvers Massachusetts Woman Held For A "Dangerousness Hearing" Following Her Arraignment For Charges Stemming From An Alleged Armed Robbery " »

The Lowell Sun reports that forty year old Shawn Kelley has been charged with assault with intent to murder and assault and battery relating to an incident that occurred on Tuesday, September 6th during the evening. It has been alleged that a woman reported the incident the following morning claiming that Kelley choked and threatened her. Following his arraignment in Lowell District Court, Judge Thomas Brennan ordered that Kelley be held on $10,000 cash bail. In the event that the bail is posted, Brennan ordered that Kelley have a mental health and a substance abuse evaluation, refrain from abusing the victim and have no access to weapons. A probable cause hearing is set for October 6th.

Massachusetts General Laws Chapter 265 section 13A provides that the punishment for a defendant convicted for assault or assault and battery is up to two and one half years in prison or by a fine of not more than one-thousand dollars. The charges of assault and assault and battery are considered felonies because the potential penalty in this case is a “house of correction” or “jail” sentence. When a potential sentence that a defendant can receive includes a state prison commitment, the charge is considered a felony.

In order to be convicted of assault and battery the Commonwealth must prove beyond a reasonable doubt that there was an intentional and unjustified touching, however slight, on another OR that a defendant intentionally engaged in wanton or grossly negligent conduct that cause injury to another person. Thus, the charge of assault and battery is often described as having two “branches,” the “intentional” branch and the “wanton” or “negligent” branch. The government can prove their case by establishing either theory. The crime of simple assault can also be committed in one of two ways. One can be convicted of assault by “attempting a battery” on another or by putting another person in fear of an immediately threatened battery. Relative to the “attempted battery” type of offense, it is not necessary for the “victim” be put in fear.

Although all of the facts of this case are not known at this time, it appears that the reason for the delayed reporting should be investigated for the defense. Furthermore, while the case is still “new” it may be appropriate for the defense team to employ an investigator to determine whether there are any witnesses to the alleged incident other than the defendant and the complaining witness.

Depending on the circumstances of the case, it will be important to establish if there is a viable claim of self-defense, defense of another, accident, misidentification or that the incident simply did not happen. Relative to a claim of self-defense or defense of another, the Commonwealth has the burden to prove its case beyond a reasonable doubt and then to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.

Continue reading " Billerica Man Faces Assault And Battery Charges And Assault With Intent To Murder Charges In Lowell District Court " »