Criminal Appeals

MA SJC Orders Aaron Hernandez Cell Phone Held by Attorneys Turned Over to Prosecutors

Published on: August 22, 2016 | by Lefteris K. Travayiakis, Esq.

In the case now being prosecuted in Suffolk County, Massachusetts, against Aaron Hernandez, the SJC has ruled that a cell phone belonging to Hernandez, given by him to his prior attorneys, must be turned over to prosecutors for the Commonwealth as a result of an anticipatory search warrant application.

Aaron Hernandez is awaiting trial for murder in connection with the shooting deaths of Daniel de Abreu and Safiro Furtado in an alleged drive-by shooting in Boston. In its investigation, Alexander Bradley told prosecutors he witnessed Aaron Hernandez shoot at 5 people in a BMW on the date of the shooting. Bradley also told prosecutors that, following the shooting, he and Hernandez communicated with one another via text message, with Bradley eventually threatening to sue and expose Hernandez’ violent conduct. Later, in June 2013, Hernandez gave his cell phone to his attorney for the purpose of seeking legal advice on several issues. Continue Reading ›

Massachusetts SJC Rules No Right to Counsel for Breathalyzer

Published on: August 15, 2016 | by Lefteris K. Travayiakis, Esq.

A reported question pre-trial was taken by the Massachusetts Supreme Judicial Court in the matter of Commonwealth v. Timothea T. Neary-French as to whether the defendant had a right to an attorney prior to submitting to a breathalyzer test. The Supreme Judicial Court held that there is no such right to an attorney before deciding whether to take a breath test when stopped for Operating Under the Influence of Alcohol, despite the fact that the law permits a permissible inference of intoxication upon a reading of a blood alcohol level of 0.08% or more. Continue Reading ›

Supreme Court Reverses Murder Conviction for Prosecutor Withholding Exculpatory Evidence

Published on: April 14, 2016 | by Lefteris K. Travayiakis, Esq.

The United States Supreme Court reversed the murder conviction of a Louisiana man and granted him a new trial, finding that the the prosecutor had withheld evidence that could have supported his defense at trial that could have cast doubt on the credibility of prosecution witnesses. This case, Weary v. Cain, is notable because the SJC expanded upon the principle concerning violations of a defendant’s due process rights when the prosecution withholds material evidence.

Under the rule pursuant to Brady v. Maryland, the suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. In Weary v. Cain, the SJC held that the defendant does not need to establish that “more likely than not” that he would have been acquitted if the withheld evidence had been admitted. Rather, the defendant claiming a “Brady violation” need only show that the evidence is sufficient to “undermine the confidence” in the verdict.

Massachusetts Supreme Court Upholds Suppression of Gun After Unlawful Seizure of Car

Published on: March 31, 2016 | by Lefteris K. Travayiakis, Esq.

In a recent decision concerning whether the seizure and resulting inventory search of a car by the police, the Massachusetts Supreme Judicial Court held that, in circumstances where persons are arrested and their vehicle may be towed and inventoried, a practical alternative to the seizure and impoundment of the car could render its impoundment unreasonable and unlawful. See Commonwealth v. Jemaul R. Oliveira.

In this case, Mitchell Violet and Jemaul Oliveira were arrested for shoplifting from a department store. When questioned, they told the police that the merchandise was in a bag in their car and also gave the police the keys and permission to retrieve the bag from the car. The police took the keys, unlocked the car and retrieved the bag from the back seat.

After advising them that the car would be impounded and inventoried, the defendants appeared “agitated” and Violet requested that he have his girlfriend come pick up the car, as it was also registered in her name. The police rejected this request, conducted an inventory search of the car, and in the glove compartment, found a loaded firearm.

Both were then charged with Shoplifting by Concealing Merchandise and Unlawfully Carrying a Firearm.

Brockton Armed Robbery Leads Massachusetts SJC to Expand Law on Suggestive Eyewitness Identifications

Published on: February 19, 2016 | by Lefteris K. Travayiakis, Esq.

The issue of the reliability of eyewitness identifications has been a hot topic in Massachusetts courts the last few years. Several cases from the Massachusetts Supreme Judicial Court and Appeals Court have touched upon the danger of suggestiveness of eyewitness identifications, their reliability and consequently, their admissibility against defendants at trial. Commonwealth v. Johnson, decided by the SJC on February 12, 2016, is yet another decision highlighting suggestive identification issues.

The Johnson case involved an issue where the defendant, prior to trial, moved to suppress (or exclude) the identification of him by the victim of a robbery because, he argued, it was made under circumstances that were impermissibly suggestive and therefore, unreliable to be admissible as an identification of him at trial. These issues are litigated in Massachusetts courts daily, and most often, it isn’t much of a big deal as far as the law goes. But in this case, the major issue that sets this case apart from most others is that the impermissible identification procedure didn’t come from the police…

Massachusetts Appeals Court Broadens Scope of Lawful Stop on Vague Description of Suspect

Published on: February 12, 2016 | by Lefteris K. Travayiakis, Esq.

In a recent decision, the Massachusetts Appeals Court appears to have broadened the scope of “reasonable suspicion to stop” a person in circumstances where he did not match the descriptions of the suspect as provided by eyewitnesses.

In the case of Commonweatlh v. Johnson, police responded to several 911 calls of shots fired by multiple shooter in a residential area. One 911 caller reported that the shooters were black and or Spanish, one of which ran towards a nearby park. Another 911 caller reported a shooter as a black male who wore a black jacket, a red bandana, and then ran from the scene (without stating even the general direction of flight). Continue Reading ›

Massachusetts Courts Affirm Defendant’s New Trial Motion in Murder

Published on: May 19, 2015 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court, in the case of Commonwealth v. Brescia, affirmed a judge’s allowance of the defendant’s motion for new trial on the grounds of, because of the defendant’s having had an undetected stroke during the course of his testimony, this medical condition could have affected his credibility before the jury.

James Brescia was tried in the Middlesex Superior Court in 2006, charged with murder in the shooting death of a man whom he believed was having an affair with his wife. The Middlesex County District Attorney’s Office alleged that the defendant had hired an assassin to kill his wife. During trial, the defendant elected to testify in his own defense; and he was cross-examined by the prosecution over two days.

Error for Massachusetts Prosecutor To Comment on Defendant’s Constitutional Rights During Closing Argument

Published on: May 6, 2015 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Appeals Court recently ruled that it is reversible error and improper for a prosecutor to suggest the defendant had the opportunity to tailor his testimony and lie because he had heard the other witnesses during trial. This issue was addressed in Commonwealth v. Alphonse, and because the error was reversible, the defendant’s conviction was reversed.

The defendant was tried for the crime of assault & battery in the Brockton District Court. During closing arguments, the prosecutor argued:

Massachusetts SJC Imposes New Rule on In-Court Identifications

Published on: December 24, 2014 | by Lefteris K. Travayiakis, Esq.

In the recent case of Commonwealth v. Walter Crayton, the Massachusetts Supreme Judicial Court established a new standard for the admission at trial of an in-court identification of the defendant where the witness had not, prior to trial, been asked to participate in an out of court identification procedure. The new rule imposes the burden on the Commonwealth to request. prior to trial, that the prospective witness be permitted to make an in-court identification if there has not been any previous identification of the defendant.

Once the prosecutor makes this request, the burden remains on the defendant to establish that the proposed in-court identification would be “unnecessarily suggestive” and that there would be no “good reason” for it. Examples of “good reason” for the first identification procedure by a witness against a defendant at trial may include circumstances where the eyewitness was familiar with the defendant before the commission of the crime; or where the eyewitness was the arresting officer. In other words, circumstances where the witness and the defendant were known to one another or where the identity of the defendant is not a live issue at trial – where the witness is not identifying the defendant based solely on his memory of witnesses the defendant at the time of the incident and therefore, little risk of misidentification from the in-court show-up. Continue Reading ›

Potential for Ineffective Assistance of Counsel When Attorneys Interview Witnesses Alone

Published on: November 1, 2014 | by Lefteris K. Travayiakis, Esq.

Many clients, and even attorneys, don’t understand the perils of interviewing potential witnesses without the assistance of an investigator. Even when I explain and encourage client to retain the services of an investigator, many of them forego the use of an investigator for no other reason than to save some money. Unfortunately, not hiring an investigator can end up costing the client much more in the long run, and in some cases, even a conviction.

The recent case of Commonwealth v. Zabek was heard before the Massachusetts Appeals Court and specifically addressed the issue of trial counsel interviewing witnesses on his own and the potential conflict of interest that may arise as a result.

In that case, the defendant was convicted after trial on charges of rape of child and other sexual offenses. In his appeal, the defendant claimed that his trial attorney was ineffective because he had an actual conflict of interest and could not therefore zealously defend him. The lawyer, the defendant argued, had interviewed a witnesses prior to trial without an investigator, which then potentially made the lawyer a potential impeachment witness at trial.