Boston Criminal Defense Lawyer Blog

One of the most valuable tools that an aggressive and successful defense attorney has in his or her arsenal is the motion to suppress evidence. Whether a case is in the Lowell District Court, Peabody District Court or Lawrence District Court the viability of filing a motion to suppress evidence should always be considered when a client is charged with an offense in which the Commonwealth must prove possession to secure a conviction against a defendant. Boston area criminal Defense Attorney Kathleen M. McCarthy has successfully litigated motions to suppress evidence in the Massachusetts Superior and District Courts. Whenever a client is charged with possession of a controlled substance, possession of a controlled substance with intent to distribute, trafficking in a controlled substance, possession of a firearm, possession of ammunition or possession of a dangerous weapon a Massachusetts criminal defense attorney should consider filing a motion to suppress evidence. If a motion to suppress evidence is successful that is often the end of the case.

STANDING

In order to be in a position to file a motion to suppress a defendant must have standing and an expectation of privacy. Standing generally means that a person is legally in a position to file such a motion. Whenever a defendant is charged with an offense in which the Commonwealth must prove possession to convict a defendant, such as unlawful possession of a firearm, G.L. c. 269 § 10 9h), he has automatic standing to contest the reasonableness of the search under Article Fourteen of the Massachusetts Declaration of Rights. Commonwealth v. Amendola, 406 Mass. 592, 601 (1990) [adopting doctrine of “automatic standing” where defendant is charged with a possessory offense and seeks to exclude evidence under the Massachusetts Declaration of Rights]. Whether an individual has a reasonable expectation of privacy is usually a separate--but related issue. In Commonwealth v. Kirschner, 67 Mass. App. Ct. 836 (2006) the Appeals court recognized that a defendant charged with a possessory offense is relieved of the burden of showing an expectation of privacy. See, Commonwealth v. Frazier, 410 Mass. 235 (1991).

STANDING/EXPECTATION OF PRIVACY

Under the Fourth Amendment, the question of whether the defendant has standing to challenge a search or seizure is merged with the determination of whether the defendant had a reasonable expectation of privacy in the place searched, and a defendant has no standing if he has no reasonable expectation of privacy. Rakas v. Illinoi, 439 U.S. 128, 138-39 (1978); Commonwealth v. Mubdi, 456 Mass. 385, 391 (2010). In contrast, under Article Fourteen, the question of standing remains separate from the question of reasonable expectation of privacy. Mubdi, 456 Mass. at 391; Commonwealth v. Williams, 435 Mass. 203, 207-08 (2009); Commonwealth v. Frazier, 410 Mass. 235, 244 n. 3 (1991). “This separation matters most in cases where a defendant is charged with a possessory offense, because Article Fourteen gives a defendant automatic standing to challenge a search of a private place, such as an automobile or home, in which the object he is alleged to possess is found.” Mubdi, 456 Mass. at 392. Where a defendant has automatic standing, he does not need to show that he has a reasonable expectation of privacy in the place searched. Id. “The practical consequence of automatic standing is that, if a defendant is charged with illegally possessing drugs or firearms that were seized during a search, the defendant may succeed in suppressing such evidence where the search was unconstitutional, regardless of whether he has a subjective or objectively reasonable expectation of privacy in the place where the drugs or firearms were found.” Id. at 392-93.

Continue reading "A Legal Analysis Of The Relationship Between Standing And The Expectation of Privacy In The Context Of A Motion To Suppress" »

If you are looking for an experienced and successful defense attorney for any drug crime, firearm offense or violent crime Attorney Kathleen M. McCarthy will bring good results and hard work to your case. She recently successfully litigated a motion to dismiss and suppress evidence in a Massachusetts Superior Court. The defendant was initially charged with being a career criminal, illegal possession of a firearm and improper storage of a firearm as the result of a search of a motor vehicle in which the defendant was a passenger. Attorney Kathleen McCarthy filed a number of pre-trial non-evidentiary motions including a motion to dismiss the career criminal portion of the indictment. She argued that the grand jury was not presented with the requisite number of previous offenses to charge the defendant as a career criminal. A superior court judge agreed and allowed the motion without a hearing. This eliminated the mandatory minimum state prison sentence that the defendant faced. This, however, was not the end of the case.

The defendant was still facing the illegal possession of a firearm charge that carried a mandatory committed sentence of eighteen months in jail if convicted. Attorney McCarthy conducted a thorough pre-trial investigation and filed a motion to suppress evidence based on the illegal search of the car that the defendant was a passenger in.

The Commonwealth claimed that local police officers responded to a local street after receiving a report that there was a “suspicious” car idling outside one of the buildings. During an evidentiary hearing Attorney McCarthy established that when the police arrived there was no car “idling.” The police officers approached the car that the defendant was in and questioned the driver. Apparently, the driver did not have a valid driver’s license and was arrested. The defendant, passenger in the vehicle, was allowed to go the nearby police station to bail out the driver. In the meantime the police conducted what they claimed was an inventory of the car and found a firearm and two ski masks.

Successful defense attorneys file these motions to zealously defend their clients. The motions usually assert that the evidence should be suppressed for the following reasons:
• said evidence was not seized pursuant to a lawful arrest;
• it was not in plain view;
• there was no probable cause;
• there was no warrant;
• there were no exigent circumstances;
• the search was not pursuant to a lawful stop-and-frisk;
• the search was not consented to;
• the search, stop and/or inquiry of the defendant was conducted without probable cause, reasonable suspicion or exigent circumstances;
• the search was a “pretextual search”;
• the search was not done in conformity with written police inventory policy;
• the stop of the defendant was unlawful;
• the search of the defendant and the car was unlawful;
• the stop and search was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article 14 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts and G.L. c. 276.

In Massachusetts, individuals have an expectation of privacy in their homes, person and in appropriate circumstances a motor vehicle. Attorney McCarthy filed a motion to suppress claiming that he police had no right to tow the car because it was parked in a private area and the owner of the building, or anyone for that matter, did not call requesting that the car be towed. Following an evidentiary hearing the superior court judge agreed with Attorney McCarthy and allowed the defendant’s motion. Thus, the Commonwealth will not be allowed to introduce the gun and masks into evidence. The result is that the government does not have a case.

Continue reading "Superior Court Judge Orders Suppression Of Gun And Related Evidence Following Motion To Suppress Evidence" »

The Lawrence Eagle Tribune reports that a former Lawrence City Councilor Jorge Gonzalez was arrested for allegedly firing his handgun in front of his home. The Tribune indicates that the police believe that alcohol may have played a part in the incident. Police officers responded to the former Councilor's home after complaints relative to gunshots being heard at approximately 2:14 am. Apparently, witnesses also saw fifty-four year old Gonzalez's wife take him into the house after the shots were fired. Gonzalez was arraigned in the Lawrence District Court this week and charged with discharging a firearm within 500 feet of a dwelling and disorderly conduct.

Massachusetts General Laws Chapter 269 § 12E provides that whoever discharges a firearm . . . within five hundred feet of a dwelling or other building in use, except with the consent of the owner or legal occupant thereof, shall be punished by a fine of not less than fifty nor more than one hundred dollars or by imprisonment in a jail or house of correction for not more than three months, or both. Although all of the facts of the case are not known at this time, in cases of these types it is sometimes appropriate to argue that in view of the fact that it was the defendant's dwelling, the statute was not violated. In order for the Commonwealth to prevail in a disorderly person case it must prove beyond a reasonable doubt that a defendant engaged in hazardous or offensive conduct for no legitimate purpose. Although the offense is a misdemeanor and may appear minor at first blush, the maximum sentence is six months is jail.

Continue reading "Former Lawrence City Councilor Faces Criminal Charges For Firing His Gun Outside Of His Home" »

The Lawrence Eagle Tribune reports that a Lawrence Massachusetts man faces a minimum mandatory sentence of 10 years in state prison if convicted of charges stemming from a drug bust. Marcelo Perez, 48, of 210 Lawrence St., was charged with drug crimes including two counts of trafficking cocaine, two counts of unlawful possession of a handgun, two counts of unlawful possession of ammunition and possession of a dangerous weapon.

Three local authorities worked together focusing on suspected drug activity in the Dunkin' Donuts parking lot on Main Street in Haverhill Massachusetts. Reports indicate that when he was arrested Perez had loaded .38 caliber pistol and 305 grams of cocaine in his jacket. With the assistance of the Tewksbury K9 unit, police discovered a hidden compartment in the back floor of Perez's jeep. It has been reported that the authorties seized an additional 30.7 grams of cocaine another loaded handgun, a box of ammunition and a digital scale. Police estimated the street value of the cocaine at $6,500.

If you have been charged with any drug crime in Massachusetts, it is imperative that you have an experienced defense attorney on your side. Most drug arrests stem from a search that has been conducted by the police. Attacking the legality of the search is often times the first step to a successful litigation of a drug offense. Depending on the circumstances of the case, this is done by filing a motion to suppress evidence seized from a defendant, his or her car and/or his or her home or apartment. Attorney McCarthy has successfully litigated these types of motions. If the evidence is suppressed the government is left without a case.

Based on the recent Supreme Court decision of Melendez-Diaz v. Massachusetts, it is imperative that a qualified defense lawyer attack any drug certificate that the District Attorney attempts to introduce in order to establish that the seized substance is in fact an illegal drug. The Supreme Court has indicated that the Commonwealth cannot merely introduce a drug certificate to prove that a retrieved product is contraband. Based on this new case law, in most cases, the Commonwealth is required to produe a chemist that examined the item and determined that is was an illegal drug. The Courts and the District Attorneys' offices are scrambling to try to get around this requirement. If you find yourself facing drug charges you must have an experienced Massachusetts criminal lawyer on your side to fight for all of your rights.

Continue reading "Lawrence Massachusetts Man Faces Mandatory Jail Sentences Stemming From Drug And Gun Charges In Haverhill District Court" »

The Lawrence Police reacted when a group of neighbors complained about the occupants of a gray Toyota Camry being involved in what they thought were "drug transactions." The Lawrence Tribune reports that as a result of a police surveillance and a tip from a citizen, four individuals were arrested and charged with drug offenses. The charges ranged from drug offenses including distribution of heroin, possession of heroin with intent to distribute to possession of cocaine and possession of marijuana.

If you face criminal drug charges it is important that you have an experienced Boston criminal lawyer on your side. Although all of the facts of this case are not known at this time, gathering all of the facts that led to the arrest of these defendants is essential to mount a complete defense. In the event that the police did not have reasonable suspicion to approach the defendants and/or probable cause to search the individuals or the car, the case could be dismissed. Whenever someone faces drug chares as the result of a search of his or her person or car, the appropriateness of filing a motion to suppress the evidence must be evaluated. In most situations, the facts are such that the filing of the motion is the exercise of effective assistance of counsel.

Filing a motion to suppress is one of many tools that a qualified criminal defense attorney has in her aresenal. If a client is charged with any type of offense where the Commonwealth must prove possession, arguing that the defendant did not have possession and control of the object or substance is often a viable defenese.

Continue reading "Concerned Citizen Prompts Lawrence Police To Conduct Drug Surveillance That Leads To Arrest Of Four Suspects Now Facing Drug Charges " »

A routine trip the doctor's office turned fatal when a disgruntled patient stabbed his psychiatrist during a treatment session and then was shot and killed by an off duty security guard, Paul Langone. According to The Boston Globe, Dr. Astrid Desrosiers, a well respected and well known instructor of psychiatiry at Harvard Medical school, experienced what has been called a "psychiatrists worst nightmare" when patient, Jay Carciero of Reading Massachusetts, stabbed her during an office visit. It is believed that Carciero was being treated by Desrosiers on Staniford Street, where Massachusetts General Hospital leases space for its Bipolar Clinic and Research Program.

According to reports, Langone entered the area an ordered Carciero to drop his weapon. When Carciero refused, the guard shot him in the head. Carciero was pronounced dead at the Massachusetts General Hospital. At this time, it is believed that Langone was properly licensed to carry a gun in Massachusetts.

As the authorities continue to investigate the matter, Langone has been lauded as a hero. In Massachusetts, an individual is allowed to act in self defense or in defense of another. If evidence of self-defense or defense of another is presented, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another. For the jury to acquit a defendant when these types of defenses area raised the jury must have a reasonable doubt whether or not the defendant acted in self-defense or in defense of another. Although it does not appear that the security guard will be charged with a criminal offense in this case, defense of another would clearly be a viable defense under these circumstances.

Additionally, it is good that the security guard had a license to carry a firearm. The Massachusetts firearms laws are very strict and a conviction for illegal possession of a firearm carries a minimum mandatory sentence of eighteen months in prison. In the event that an individual is charged with possession of a loaded firearm, the potential penalties are even more severe and are imposed on and after the sentence for the underlying charge.

If you have been charged with a violent crime in Massachusetts or charged with illegal possession of a firearm you must have an experienced lawyer on your side. Depending on the circumstance, a motion to suppress evidence and or statements should be filed that may dispose of the case.

Continue reading "Doctor Stabbed In Massachusetts General Hospital And Reading Suspect Shot And Killed By An Off Duty Security Guard" »

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" »

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" »

In Melendez-Diaz v. Massachusetts, 557 U.S. – (June 25, 2009), the United States Supreme Court held that in a prosecution for a drug offense the introduction of certificates of analysis from Massachusetts drug crime laboratories violated a defendant's constitutional right to confront witnesses against him at a trial. The Supreme Court recognized that the Sixth Amendment to the United States Constitution, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Court has been narrowing the exceptions that state courts have carved from the Constitution to make prosecutions easier and more convenient for the government. Melendez-Diaz relied on the holding in Crawford v. Washington, 541 U.S. 36, 51 (2004) in which the Court reaffirmed the basic tenet of the constitution that a defendant has a right to confront those “who ‘bear testimony’” against him. Crawford v. Washington, 541 U.S. 36, 51 (2004).

Melendez-Diaz, affirmed Crawford’s holding that a witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. In Melendez-Diaz, the Court discussed that the Crawford opinion described the class of testimonial statements covered by the Confrontation Clause as follows: “Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52. The Court held that relative to a Massachusetts drug “certificate,” which the court concluded was the functional equivalent of an affidavit, there is little doubt that the document fell within the “core class of testimonial statements.”

This landmark decision will have the effect of forcing the government to meet its burden in all Massachusetts drug cases. Based on the language in the opinion, it also appears Massachusetts criminal defense attorneys should object during the prosectuion of gun offenses to the admission of ballistic certificates when the District Attorney moves to introduce them without a live witness. The reasoning in Melendez-Diaz requires the exclusion of the certificate as rank hearsay and a violation of the defendant's rights to confront witnesses against him or her.

Continue reading "Supreme Court Ruling In Suffolk County Cocaine Case Will Benefit Massachusetts Criminal Defense Lawyers " »

The Lowell Sun reports that 89 year old James Von Brunn, allegedly known as a white supremacist, was under investigation in the shooting death of a security guard at the Holocaust Museum in Washington, D.C.. According to reports, Von Brunn began firing a rifle as soon as he entered the Museum. Officials are reporting that the suspect's car was found near the museum and tested for the presence of explosives.

The gunman was also shot and taken to a nearby hospital. It has been reported that he is in critical condition. The Sun reports that the perpetrator was "engaged by security guards immediately after entering the door" with a rifle. The Salem News reports that students and faculty from from the Holten Richmond Middle School in Danvers and Swampscott Middle School were in the museum at the time of the incident.

In Massachusetts, strict gun laws are in effect. A conviction for a firearm offense can result in minimum sentence of eighteen months in jail. Depending on the facts of the case, an individual can be charged and convcited for possession of a firearm even it he or she does not actually have the firearm on his or her person. The prosecutor often relies on a theory of constructive possession to prove its case if the defendant was not the individual that actually had the firearm on his or her person. For example, when a firearm is found in a car, home or hotel room with more than one person present, the government often charges more than one person with the offense and lets all the cases work their way through the criminal justice system.

If you have been charged wih a firearm offense it is important to have an experienced Massachusetts trial attorney on your side from the beginning. Depending on the facts of the case, a pre-trial motion to suppress evidence, including the firearm and other incriminating evidence, may be appropriate. Successful litigation of these types of motions often results in a dismissal of the underlying case.

Continue reading "Elderly Man Kills Security Guard At Holocaust Musuem In Washington" »

The shooting death of Robert Plaza, 32 of Lawrence Massachusetts marks what the police suspect is the fourth homicide in the city this year and the second in less than a month. The Lawrence Eagle Tribune reports that Plaza careened into a chain-link fence in front of a local assisted living building. When firefighters and concerned citizens attempted to pull Plaza from his vehicle they discovered a gun shot wound to his chest. He was pronounced dead at the hospital a short time later. The authorities are treating Plaza's death as a homicide and believe it was the result of a "drug transaction gone bad."

If you have been charged with a firearm offense or a drug offense you must contact an experienced defense attorney as soon as possible. In Massachusetts, a conviction for possession of a controlled substance, possession of a controlled substance with intent to distribute and possession of a controlled substance with intent to distribute in a school zone can result in a commitment to the house of correction or to state prison. A conviction for a firearm offense can result in a defendant serving a minimum of eighteen months in jail.

In order to properly defend against these types of crimes, a good Massachusetts trial attorney often files appropriate pre-trial motions. These motions include motions to dismiss and motions to suppress physical evidence and statements. Successful litigation of these types of motions often result in the dismissal of the charges.

Continue reading "Lawrence Massachusetts Man Killed Marking The City's Fourth Homicide Of The Year" »

According to The Lawrence Eagle Tribune, a Lawrence Massachusetts man was arrested and charged with carrying a firearm without a license, discharging a firearm within 500 feet of a building, and possession of ammunition without a firearms identification card. The Tribune reports that police were called to the Fern Street neighborhood due to reports of a man firing up to six gunshots "over his head." During the early morning hours, a neighbor heard commotion and went to his window where he saw a pair of men. One of the individuals was "holding a gun over [the other person's] head." After repeatedly firing the gun, witnesses stated that the man walked into an apartment on Fern Street in Lawrence.

The police arrested this defendant and three of his roommates. The paper reports that one of the roommates was charged with disorderly conduct and resisting arrest while the other two were charged as keepers of a disorderly home. Police recovered a .32-caliber semiautomatic handgun behind the home. Shell casings were also recovered from the street.

If you have been charged with any crime, you must contact a Massachusetts defense attorney to ensure that all of your rights are protected. In any case where "possession" of the alleged item is an element of the crime and experienced trial attorney can evaluate whether filing a pre-trial motion to suppress the evidence is a viable option. A successful litigation of a motion to suppress evidence means the suppression of the physical evidence and often times dismissal of the case against a defendant.

If you have been charged with a criminal offense, it important that you contact a criminal attorney familiar with the elements that the government must prove to secure a conviction. For example, to prove the crime of discharging of a firearm within 500 feet of a dwelling or other building in use you can face a penalty ranging from by a fine of not less than fifty nor more than one hundred dollars or by imprisonment in a jail or house of correction for not more than three months, or both. However, there are exceptions to the enforcement of this law that include the lawful defense of life and property; any law enforcement officer acting in the discharge of his duties; (c) persons using underground or indoor target or test ranges with the consent of the owner or legal occupant thereof; (d) persons using outdoor skeet, trap, target or test ranges with the consent of the owner or legal occupant of the land on which the range is established; (e) persons using shooting galleries, licensed and defined pursuant to statute; and (f) the discharge of blank cartridges for theatrical, athletic, ceremonial, firing squad, or other purposes in accordance with the statute.

Continue reading "Lawrence Massachusetts Man Charged With Firearm And Related Offenses " »

According to The Salem News, a Peabody jury acquitted Alfred Cochrane Jr. of carrying a firearm without a license and discharging a firearm within 500 feet of a dwelling. According to reports, the defendant was charged with the firearm offenses after his downstairs neighbor reported that a bullet had come through his ceiling. Coincidentally, at approximately the same time, Cochrane was treated at the Salem Hospital for a gunshot wound to his foot. The government did not produce the actual gun and the jurors acquitted the defendant.

If you have been charged with illegal possession of a firearm it is critical that you contact a Massachusetts defense attorney as soon as possible. Succesfsul litigation of these types of cases includes filing all relevant pre-trial evidentiary and non-evidentiary motions. Motions that are part of a trial attorney's arsenal include motions to suppress evidence, motion to suppress statements and motions to inspect and examine evidence. If convicted on this type of offense the penalties may include a mandatory eighteen month sentence.

Depending on the facts of the case a criminal defendant should consider the possibility of having an independent expert/witness examine the alleged firearm to determine whether it really is a firearm pursuant to the statute. In order to secure a conviction for this type of offense, the government must prove that a defendant was in actual, joint or constructive possession of the firearm. A skillful defense attorney can attack this element of the crime at trial. Additionally, the alleged firearm must be capable of discharging a bullet. A damaged or malfunctioning weapon, depending on the facts, may not meet the definition of a "firearm" in Massachusetts.

Continue reading "Peabody Massachusetts Man Acquitted On Gun Charges " »

According to The Lowell Sun, 28 year old Michael Harmon from Framingham has been charged with a number of offenses stemming from a dispute in front of Charlie's Bar in Lowell. The paper reports that Harmon has previously been convicted as an accessory in a 2001 murder

In Lowell Superior Court earlier in the week Michael Harmon pleaded not guilty to charges of armed assault to murder, assault and battery causing serious bodily injury, carrying a firearm without a license, possession of a firearm without a firearms-identification card and illegally possession of ammunition. He has been held without bail since his arrest in March after a judge sitting in an Essex County District Court held that he was a "danger to society."

The Sun also reported that the police claimed that they were called to an area outside of the bar in the early morning hours for a "fight and possible shooting." Upon responding the police found Michael Nickerson, 30, of 53 James Ave., Tewksbury, on the ground and bleeding from an apparent gunshot wound. It is reported that Nickerson survived and he and a witness identified Harmon as the shooter. It is also alleged that Harmon admitted being in a fight but denied involvement in the shooting.

If you have been accused of committing any crime of violence, it is critical that you have an experienced Massachusetts trial attorney on your side from the beginning of the case. Your liberty is at stake from the bail hearing through disposition of the charges. For example, District Attorney's Offices have been moving to have defendants held pursuant to M.G.L.A. 276 § 58A. This statute provides that a defendant can be detained prior to trial for certain felonies or offenses that involves a substantial risk that physical force against another may result. Generally, the Commonwealth must have the hearing within three days from the time that they request such a hearing. Therefore, you must have a knowledgeable defense attorney on your side from the beginning.

Additionally, penalties that can be imposed following conviction for most felonies are substantial. For example, a conviction for armed assault with intent to murder can carry up to twenty years in state prison. Convictions for assault and battery by means of a dangerous weapon and unarmed assault with intent to murder have a potential penalty of up to ten years in state prison.

Continue reading "Lowell Massachusetts Man Charged With Assault With Intent To Murder And Firearm Offenses Stemming From A Fight In Front Of A Local Bar" »

The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney's Office misinterpreted the "dangerousness statute" when proseuctor's moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result."

In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing "firearm w/o license, FID" as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result." § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the "menace of dangerousness" inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, "[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”

If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. Kathleen McCarthy will make sure that all of your rights are protected from the arraignment through disposition. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.

Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant's expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.

Continue reading "Massachusetts Supreme Judicial Court Rules Illegal Possession Of A Firearm Is Not Enought To Trigger A Dangerousness Hearing" »

According to The Lowell Sun, the police are searching for Dennis King, 25 years old, from South Lowell Massachusetts for shooting a pregnant woman who was inside of her Lowell apartment. Although the police have not released the victim's name, the paper reports that the police responded to reports of gunfire and found the woman inside of her apartment. The pregnant woman was shot in the chest and the right shoulder. According to reports, there is an arrest warrant for King who faces three counts of armed assault with intent to murder and aggravated assault. It is believed that the gun has not been recovered by the police. The woman and the unborn child are currently listed as in stable condition in a Boston Massachusetts hospital.

The Sun also reports that King was arrested in January and charged with driving with a suspended license and giving a false name and Social Security number to police. According to reports, King has also previously been arrested for domestic assault and battery.

If you have been charged with a violent crime including assault and battery, assault and battery by means of a dangerous weapon, possession of a firearm or any crime related to domestic violence, including violating a restraining order, it is imperative that you contact an experienced Massachusetts defense attorney as soon as possible. Convictions for violent crimes can result in incarceration for up to life or twenty years in prison. Convcitions for certain possession of firearm offenses may result in a minimum mandatory sentence of eighteen months. Depending on the circumstances, such as if the gun is loaded, a defendant may face two consecutive eighteen month mandatory minimum sentences. Developing a defense of mistaken identify or filing appropriate pretrial motions to suppress or dismiss are steps that must be taken early on in a case.

Continue reading "Lowell Massachusetts Man Sought In The Shooting Of A Pregnant Woman" »

According to The Lowell Sun, Eric Sideri, owner of Angela's Coal Fired Pizza in Tyngsboro Massachusetts, is being held without bail after his arraignment in Lowell District Court. Sideri is charged with kidnapping and beating up a manager, Oliveira, whom he suspected stole $20,000 from the business. According to reports, after the restaurant closed on Saturday night, Sideri cornered Oliveira beating him up with a baseball bat and a stick. Sideri allegedly stuck a large gun in the manager's mouth and threatened to kill him if he did not answer questions about the missing money.

According to prosecutors, Oliveira claimed that he was taken to the restaurant's back door and shown "a white SUV with its tailgate open and blue tarp covered with trash bags inside." Sideri then allegedly told him, "I will kill you and nobody will know."

The defendant's attorney painted a much different picture of the events. The defendant claims that a confrontation occurred after Sideri confronted Oliveira about the missing money. Sideri claims that he acted in self-defense during the incident and that Oliveira fabricated the kidnapping and beating story to offset any charges that Sideri would file against him.

Following bail arguments by both sides District Court Judge Michael Uhlarik ordered that Sideri be held without bail. Sideri returns to the Lowell District Court on Thursday when a "dangerousness hearing" will take place.

Continue reading "Tyngsboro Restaurant Owner Facing Charges of Kindnapping and Assaut and Battery Ordered Held Without Bail In Lowell Massachusetts District Court" »

In Commonwealth v.Gomes the Massachusetts Supreme Judicial Court held that a probationary condition requiring that the defendant submit to random testing relative to the use of drugs and alcohol was improper. On appeal, the defendant challenged the probationary condition that he submit to random drug and alcohol testing. He did not challenge the condition that he abstain from alcohol and drugs. The defendant was on probation as part of a sentence stemming from convictions for various firearm offenses. Although the defendant was under twenty-one years old at the time of his conviction, there was no indication that he had ever used drugs or alcohol and he had no criminal history that related to illegal drug or alcohol use. Furthermore, the use of drugs or alcohol were not implicated in the offense.

Massachusetts General Laws c. 276, § 87 permits a trial court to "place on probation ... any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper ..." The primary goals of probation are rehabilitation of the probationer and protection of the public. Massachusetts Courts have recognized that the goals of probation are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.

Relative to the requirement that an individual submit to random drug and alcohol testing, Massachusetts Courts recognize that random drug and alcohol testing constitutes a search and seizure for constitutional purposes under Article Fourteen of the Massachusetts Declaration of Rights. Accordingly, the condition must be reasonably related to legitimate probationary goals in order to withstand constitutional scrutiny. In this case, the court found that an impermissible probationary condition was similar to an illegal sentence. Unless the Commonwealth can demonstrate that random testing was reasonably related to recognized probationary goals for this particular defendant, the impermissible probationary condition will be struck.

In local Massachusetts District Courts such as Newburyport, Peabody, Lowell and Lawrence many defendants do not go to jail as a result of the conviction. Often a defendant finds himself facing prison because he had violated a term of probation and the probation officer moves to surrender him. One possible outcome of this type of hearing is that the individual's probation is terminated and a committed sentence is imposed. It is imperative that you have an experienced Massachusetts trial attorney representing you during a sentencing hearing to ensure that any imposed conditions are reasonably related to the conviction. This will often avoid a surrender hearing ftriggered from impractical and often unconstitutional conditions of probation.

Continue reading "Massachusetts Supreme Judicial Court Holds That Conditions Of Probation Must Be Reasonably Related To Offense" »

According to The Lawrence Eagle Tribune Ed Manzi, 47, of 125 Windkist Farm Road North Andover Massachusetts was arrested and charged with attempted murder, assault and battery, possession of a firearm, malicious destruction of property, intimidation of a witness and related offenses as a result of an incident with his girlfriend, Catherine Lambert. Manzi teaches in Tewksbury Massachusetts and has been suspended from his position without pay as a result of these charges.

Before the altercation the pair and their baby were at Ipswich River Park when Manzi drove off without them. Manzi's attorney, Anthony Rozzi of Haverhill Massachusetts, maintained that Manzi left the park because Patricia was drinking alcohol in the park. According to the Tribune, when Lambert was packing Manzi's clothes in a basket he punched her in the face and then struck her in the head with a computer speaker and monitor. She ran to get her mother, Patricia Lambert, who was outside riding a horse.

According to court documents, Patricia Lambert reported that when she asked Manzi to give her the baby he punched her in the face knocking her to the floor. When she stood up, Manzi allegedly took a semi-automatic pistol from her pocket and hit her on the head with it. While hitting her, a live round ejected from the gun. Lambert claims that Manzi hit her on the head and pulled the trigger numerous times. After the gun misfired, Manzi left the area and discarded the gun on Boston Street.

The defense paints a much different picture of the incident. Attorney Rozzi claims that the defendant acted in self-defense. Rozzi maintains that Manzi client was upset because Catherine Lambert was allegedly drinking alcohol at the park. According to the Tribune, Rozzi said there was some pushing and shoving at the couple's apartment, but Catherine fell over their computer table and which caused her injuries.

Following the hearing the defendant was held without bail pending the outcome of a "dangerousness hearing" scheduled for March 23, 2009. During a dangerousness hearing the District Attorney's Office is expected to present evidence that Manzi poses a threat to the community and should be held without bail until the case is resolved. Based on the facts of this case, it appears that the defendant will begin to mount its claim of self-defense.

When an individual is charged with assault and battery, assault and battery by means of a dangerous weapon or any other violent offense, self-defense is often a viable claim. In Massachusetts, in order to receive a jury instruction on self-defense the facts must indicate that the defendant must have reasonably believed that he or she was immediately about to be attacked or that his or her personal safety was in immediate danger. The individual must also have done everything that would be considered reasonable to avoid physical combat before resorting to force and must use no more force that was reasonably necessary in the circumstance to defend himself or herself. If self-defense is properly asserted during the trial, the instruction will also indicate that the District Attorney must prove beyond a reasonable doubt that the defendant did not act in self-defense

Continue reading "North Andover Massachusetts Man Accused of Domestic Violence Asserts Self-Defense" »

According to the Lawrence Eagle Tribune, a North Andover man was arrested and charged with attempted murder, assault and battery with a dangerous weapon, assault and battery on a household member and illegal possession of a handgun. According to the paper, the defendant allegedly beat up his live in girlfriend then attempted to shoot her mother when she tried to protect her. It is also alleged that the defendant pointed a gun at the woman's mother however, the gun did not fire. It was reported that the police found a loaded semi-automatic weapon within blocks of the incident.

The woman was treated at the Lawrence General Hospital, located in Lawrence Massachusetts, for injuries as a result of the beating. She obtained a restraining order from the police. The defendant was arrested on a fugitive from justice warrant in New Hampshire.

If you have been the defendant in a restraining order it is important that you know your rights. The complaining witness must demonstrate to the judge that he or she has reasonable apprehension of immediate physical harm. The fear or apprehension must be reasonable and also must be rimminent. Initially, a temporary restraining order usually issues. The defendant is supposed to be served with a copy of the order and generally there is a court hearing within one week. If the defendant does not appear and the complainant requests a continuance of the order, the order is routinely extended. The order can be extended for up to one year at a time. Upon expiration of the order the complainant can request that it be continued, however the defendant has a right to be present.

If an individual is the recipient of a restraining order in Massachusetts, it is important that he or she reads all of the conditions. For example, some of the orders simply order that the defendant not "abuse" the complainant. Other conditions may provide that the defendant "stay away" from the complainant and sometimes children.

Continue reading "North Andover Man Charged With Attempted Murder In a Crime of Domestic Violence" »

According to the Lowell Sun, police officers observed a driver of a car and his passenger engage in a drug transaction. As a result of these observations, the police pulled the car over and determined that the driver's license to operate was revoked. The police found bags of marijuana and a 9 mm handgun on the passenger and cocaine and illegal prescription drugs on the driver. The driver's girlfriend gave the police permission to search the home that the couple shared and the police retrieved what is believed to be cocaine, bullets, a 9 mm handgun and a shotgun. The driver was charged with multiple counts of illegal possesssion of controlled substances with intent to distribute and firearm offenses.

If you are charged with a violation of the controlled substances act or with a firearm offense it is crucial that you contact an attorney as soon as possible. If you are charged with possession with intent to distribute a controlled substance in a school zone or distribution of a controlled substance in a school zone you face a mandatory sentence of two years in prison. Similarly if you are charged with possession of a firearm you also face a mandatory minimum sentence. To successfully defend against these types of cases it is necessary to file appropriate pre-trial non evidentiary and evidentiary motions. These motions include requests for informant information, measurement of the place of the alleged offense to the school and motions to suppress the stop and/or physical evidence. Contact Kathleen M. McCarthy today if you are charged with these types of offenses so that she can get to work and successfully defend you.

On September 12, 2008, the Massachusetts Appeals Court reversed Harold Pierre’s conviction for possession of a firearm holding that the search conducted by the police at the time of the defendant’s arrest was unlawful. The police were conducting a surveillance in an effort to arrest the defendant on an outstanding warrant. Positioned in the area of Pierre’s home, the police observed him exit his residence and walk towards his car. After observing the defendant, the police announced their presence and ordered the defendant, and the individuals that he was with, not to move and to show their hands. The defendant complied and dropped a white plastic bag that he was carrying and put his hands in the air.

One member of the group with the defendant disobeyed these orders and entered the car through the rear passenger door. A police officer observed this individual take a firearm from his waistband and put “something” under the front seat where a firearm was eventually recovered. That individual was charged with possession of that firearm. Pierre was placed under arrest within “thirty seconds” of putting his hands in the air. The white bag that the defendant had dropped was placed in the car because it was raining. A police officer testified that sometime between a half hour and an hour after the car was brought back to the station he assisted in doing an inventory of the car. During this “inventory” he picked up the white plastic bag and removed a pair of pants from the bag. When he removed the pants from the bag, a firearm fell out. Pierre was charged with possession of that firearm and possession of ammunition.

It is well settled law in Massachusetts that under the Fourth Amendment to the United States Constitution and the Article Fourteen of the Massachusetts Declaration of Rights a search conducted without a search warrant are presumed to be invalid. See Katz v. United States, 389 U.S. 347, 357 (1967); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992). When the police conduct a warrantless search the burden is on the Commonwealth to prove that the search fell within one of the narrow exceptions to the warrant requirement. In the event that you, a family member or a friend, are charged with a crime in which possession is an element that the Commonwealth must prove, the experience and knowledge of a Boston Criminal Defense Attorney is necessary in order to mount an attack on the search that led to the possession charge. By successfully challenging the police conduct in searching an individual, home, car or other location, the Court will suppress the evidence and the case will likely be dismissed.

In the Pierre case, the defendant argued that the search of the white plastic bag was improper because it did not fall into any of the exceptions to the warrant requirement. The Commonwealth argued that the search of the white plastic bag was proper as a “search incident to an arrest.” However, the defendant argued, and the Court agreed, that the search of the plastic bag after the defendant was arrested and the car had been towed was not a valid search incident to an arrest. In Massachusetts, the police may search the area within the person’s immediate control as long as the search is conducted contemporaneously with the arrest. The Massachusetts Courts have limited the spatial and temporal scope of searches that are conducted pursuant to an arrest. The Massachusetts Appeals Court reversed Pierre’s conviction and re-articulated the principle that a valid search incident to an arrest must occur quickly and close to the area of the incident and be considered part of the “natural part of the arrest transaction.” Commonwealth v. Turner, 14 Mass.App.Ct. 1023, 1024 (1982).

The filing of a motion to suppress evidence is the first step in defending against a charge of possession of a firearm, possession of marijuana, possession of cocaine, possession of a dangerous weapon and any other charge in which the Commonwealth must prove possession to convict a defendant. The Law Office of Attorney Kathleen M. McCarthy has the knowledge and experience to successfully defend possession cases in the Boston area.

Officers responded to the Highland section of Lowell to a report of a man possessing a firearm in a Honda. After the police pulled the Honda over, two men fled and were eventually captured and charged with committing an armed home invasion. Despite a thorough search of the area it does not appear that the firearm was recovered.

If you have been charged with possession of a firearm you must contact a Massachusetts criminal attorney immediately. In order for the prosecution to prove that you possessed a firearm they must establish that the firearm was capable of discharging a bullet and the firearm must be under a certain length. Strategies to successfully defend such a charge include demonstrating that the firearm could not be fired without repair by a skilled ballistician.

An experienced attorney will also review the facts of your particular case in order to determine whether the government can prove that you actually possessed the firearm. Under Massachusetts law the prosecution must prove that you exerted actual, joint or constructive possession of the firearm. Possession is determined by whether you had knowledge of the existence of the firearm and possessed the ability to exert control over it.

With this crime, as with many crimes that require the prosecution to prove possession, it is important for a skilled attorney to also attack the manner in which the firearm was seized from the defendant. State and Federal Constitutional law provide all citizens with the right to be from all unreasonable search and seizures. The filing of a motion to suppress evidence seized as the result of an unlawful search and seizure is an effective method to successfully defend firearm cases in Massachusetts.