Criminal Appeals

Misleading a Police Officer is a Crime in Massachusetts

Published on: December 30, 2011 | by Lefteris K. Travayiakis, Esq.

In Massachusetts, it is a crime to lie to or mislead a police officer, or otherwise impede a criminal investigation.

Under the Intimidation of a Witness statute, the Massachusetts legislature criminalized conduct where a person willfully misled or lied to a person furthering a criminal investigation with the intent to impede or obstruct justice.

In one recent case, Commonwealth v. Patrick Fortuna, the Massachusetts Appeals court considered a case where the defendant had been shot. While being treated at the hospital, he was interviewed by the police about who had shot him. He told the police that he was shot while walking home and didn’t know by whom, because the shooter had been far away.

Massachusetts Criminal Appeals: New Trial Motions

Published on: December 28, 2011 | by Lefteris K. Travayiakis, Esq.

Those convicted of any crime in Massachusetts should always consider challenging their conviction by filing an appeal. One way to litigate a Massachusetts Appeal is asking the trial judge to consider a Motion for New Trial based on undisclosed evidence by the prosecution.

In order to secure a new trial on the basis of undisclosed evidence, a defendant must be able to establish 3 things:

the evidence was in the possession, custody or control of the prosecutor;
the evidence is potentially exculpatory (e.g., tends to show evidence of innocence); and

Massachusetts Appeals Court Issues Detrimental Opinion on “Constructive Possession”

Published on: December 26, 2011 | by Lefteris K. Travayiakis, Esq.

In the recent case of Commonwealth v. Romero, the Massachusetts Appeals Court issued a split-decision where the defendant, charged with Massachusetts Gun Crimes, challenged his conviction based on insufficient evidence for “constructive possession”.

The defendant in the case was in the driver’s seat of a parked car – he was the owner and operator in the car – along with three other passengers who were sitting in the car as well. At 1:30 a.m., a police officer drove past the car and testified that, as he drove by, he could only see the top of 4 peoples’ heads because they were crouching down in their seats. Upon seeing this, the officer turned around and parked behind the defendant’s car.

As the officer began to approach the car, from about 3 feet away, he testified he could see in the car and from his vantage point one of the rear passengers reach towards the front of the car through the two front seats, this while the defendant/driver was looking side to side and also looking at the front seat passenger, who was looking at an object in his hand.

Massachusetts Supreme Court Rules Simply Putting Key In Ignition Enough for DUI / Drunk Driving

Published on: January 26, 2011 | by Lefteris K. Travayiakis, Esq.

In the recent case of Commonwealth v. Robert McGillivary, the Massachusetts Supreme Court addressed the legal issue as to whether an intoxicated driver, who only puts the key in the vehicle’s ignition without turning the car on, can be found guilty of Drunk Driving in Massachusetts.

By way of background, Robert McGillivary was convicted after trial of Operating Under the Influence of Alcohol. At trial, the evidence presented by the prosecutor was simply that he was found in the passenger’s seat of the car and had turned the ignition key once to activate the car’s power – but not further to turn the car on. At some point, the defendant testified that he had moved from the passenger seat to the driver’s seat, but did not recall ever putting the keys in the ignition. He ultimately found by the police slumped over the steering wheel. At his trial, there was absolutely no evidence that he actually drove the car at all.

McGillivary was convicted after trial and he appealed his conviction arguing that simply turning the car’s power on was not “operation” for purposes of the crime of Operating Under the Influence of Alcohol or Drugs.

Massachusetts Supreme Court Rejects McCowen’s Appeal of Conviction for Christa Worthington Murder

Published on: December 16, 2010 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court recently decided and rejected Christopher McCowen’s appeal of his conviction for the Murder of Christa Worthington in 2002. In a unanimous decision, Massachusetts’ highest court unanimously ruled that the defendant’s appeal was without merit and found “no basis on which to reduce the degree of guilt or order a new trial.”

Christopher McCowen, of Hyannis, Massachusetts, was convicted of the Rape and Murder of Christa Worthington in 2002 in her home in Truro on Cape Cod. McCowen was found by a jury to have first raped and then stabbed her. Worthington was found in her home as her 2.5 year old daughter was against her mother’s lifeless body. The daughter was unharmed.

Despite McCowen having lost his appeal, the decision did raise some concerns, particularly with racial issues that were made public shortly after the trial, raising the concern of racial bias during jury deliberations. Specifically, after the conviction, it was revealed that, during jury deliberations, for example, one white female juror referred to McCowen as “a big black man” who had been trying to intimidate her by staring at her in the courtroom. She also stated that bruises like those found on the victim’s body would result when “a big black man beats up on a small woman” These statements obviously offended fellow jurors, and in particular, a black female juror, which led to a confrontation within the jury room. As a result of these and other allegations of racial impropriety having occurred during jury deliberations, the trial judge held a 2-day hearing a year after McCowen’s conviction in 2006.

Massachusetts Supreme Court Throws Out Salem Murder Conviction

Published on: November 18, 2010 | by Lefteris K. Travayiakis, Esq.

In an opinion released this morning, the Massachusetts Supreme Judicial Court today reversed the First Degree Murder conviction against Jerome McNulty, who in 2001, had been convicted of the murder of Linda Correia, 27, in her Salem bedroom.

In its decision, the Massachusetts Supreme Judicial Court held that McNulty’s right to be informed by the Salem Police Department of his criminal lawyer’s attempt to provide advice to him had been violated. Consequently, it was error for the judge at his murder trial to admit into evidence McNulty’s signed statement that he made to the Salem Police Department.

When an attorney representing a person held in custody makes it known to the police that he is seeking to reach his client to provide legal services, the police have an affirmative duty to inform the suspect immediately of the attorney’s efforts. Even if the suspect had previously agreed to speak with the police, once the attorney makes that request, the suspect must be informed of his lawyer’s efforts to reach him and the suspect’s prior consent is invalid. Failure to do so results in a violation of a suspect’s constitutional right to counsel.

John Odgren Loses Appeal for Reduced Murder Sentence

Published on: September 16, 2010 | by Lefteris K. Travayiakis, Esq.

Lawyers for John Odgren appealed to Middlesex Superior Court Judge S. Jane Haggerty earlier this week, appealing that his sentence be reduced from First Degree Murder to Second Degree Murder.

Convicted of First Degree Murder for killing 15 year-old classmate James Alenson at Lincoln-Sudbury High School in 2007, Odgren was sentenced to serve a mandatory life sentence in state prison, without the possibility of parole. If the petition was successful, John Odgren would have been parole eligible after serving 15 years in prison.

Although Odgren’s defense focused on Insanity / Lack of Criminal Responsibility, arguing that he was insane at the time of the murder because of his history of emotional problems and mental health issues, including Asperger’s Syndrome. Jurors that heard the case found that he was, in fact, sane at the time of the stabbing.

Brockton Woman Gets Murder Conviction Reversed by Massachusetts Supreme Court

Published on: August 23, 2010 | by Lefteris K. Travayiakis, Esq.

Sheila Barry, of Brockton, Massachusetts, was convicted in 2006 in Plymouth Superior Court for the Murder of Admilson Goncalves. Today, the Massachusetts Supreme Judicial Court reversed her conviction, citing she was mentally ill when she committed the assault.

At her Murder trial, Plymouth County prosecutors alleged that Barry attacked Goncalves with a cinder block as he sat in his bicycle in Brockton in 2002 and that she continued to beat and assault him with the brick until it shattered.

In reversing her Murder conviction, the Massachusetts Supreme Court concluded that the legal rules regarding a defendant claiming an Insanity Defense need to be changed. Prior to this decision, a defendant who voluntarily consumed alcohol could not then claim the Defendant of Lack of Responsibility, or more commonly known as the Insanity Defense.

Brockton Man Acquitted of Murder after Massachusetts Supreme Court Overturns First Murder Conviction

Published on: August 14, 2010 | by Lefteris K. Travayiakis, Esq.

After 7 years, Jesus Silva Santiago walked out of court a free man, a second jury acquitting him of Murder in connection with the shooting death of Eugene Monteiro, 25, of Boston, Massachusetts.

The Murder allegations stemmed from an incident at Mike’s Lounge in Brockton. The Plymouth County District Attorney alleged that Santiago called the victim a racial slur as he and his friends headed into the bar, saying they weren’t allowed in the club. As the victim and his friends left the bar because one was underage, they passed Santiago again and he allegedly shot the victim in the chest. The Plymouth County District Attorney’s Office alleged that Santiago went into the bar after the shooting because there was no other place to hide as the police were on their way.

Santiago, 35, was in custody since 2003. At his first trial in 2006, he was convicted of Murder, but the Massachusetts Supreme Judicial Court overturned the conviction and automatic life sentence and ordered a new trial. At this second trial, a jury consisting of 4 men and 8 women deliberated 8 hours and finally acquitted him this past Thursday.

Massachusetts Supreme Judicial Court Orders New Trial in Murder Case

Published on: July 19, 2010 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court today reversed the conviction of Joann Silech-Brodeur, who was convicted of the Murder of her 70 year-old husband by stabbing him to death 34 times.

At issue in Silech-Brodeur’s Criminal Appeal was whether, in establishing her Insanity Defense, the defense was obligated to give prosecutors copies of the detailed notes and statements Silech-Brodeur made to her defense psychiatric expert. She claimed that she was suffering mental problems at the time that were exacerbated by her husband’s intent to divorce her. The defense psychologist testified at the trial that, during her examinations, Silech-Brodeur claimed she did not recall stabbing her husband and that the lost her sense of sight and sound during the struggle.

The trial judge, over the defendant’s objection, ordered production of the defense psychologist’s notes to be produced to the prosecution’s own expert. This, the Massachusetts Supreme Judicial Court held, went beyond the discovery limitations in Insanity Cases. The Court specifically held that “when a defendant serves notice that she will call an expert witness to testify about her mental condition at the time of the crime based on her testimonial statements, the rule only authorizes a court-ordered psychiatric examination of the defendant by the Commonwealth’s expert, and nothing more.”