Criminal Constitutional Law

Massachusetts Supreme Court Rules on Admission of 911 Call Where Caller Doesn’t Testify at Trial

Published on: October 15, 2011 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court recently considered whether the admission of a 911 call at trial was proper where the caller did not testify at trial, and whether admitting the call violated that defendant’s constitution right of confrontation.

In this case, the defendant was charged with two counts of Assault & Battery, and prior to trial, moved to preclude the prosecutor from admitting the 911 call, in which the caller identified his as the perpetrator, and alleging that he had just beaten her.

By way of background, in the case of Crawford v. Washington, the United States Supreme Court ruled that the Confrontation Clause of the Sixth Amendment barred the admission of statements of witness who did not appear at trial [unless they were unavailable to testify and where the defendant had had a previous opportunity to cross-examine them].

Massachusetts Sex Offenders Get Favorable Court Ruling

Published on: August 15, 2011 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court recently decided the case of John Doe vs. Police Commissioner of Boston, ruling on the issue of whether a 2006 state law barring sex offenders from living in nursing homes or similar long term care facilities was constitutional. The Court ruled that it was not.

By way of background, the 2006 law passed by the Massachusetts state legislature barred Level 3 Sex Offenders from living in nursing homes, infirmaries or other homes for the elderly or developmentally disabled. Sex offenders who lived in such facilities in violation of the law were then punished with imprisonment, ranging from 30 days up to 5 years for subsequent violations.

In this case, “John Doe” had been previously convicted of Massachusetts Sex Crimes, and the Sex Offender Registry Board argued that, even at his age of 65, his criminal history and suggested a “high risk of re-offense and high degree of danger.”

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 Rules Police Need ‘Reasonable Suspicion’ to Conduct Pat Frisks

Published on: May 29, 2010 | by Lefteris K. Travayiakis, Esq.

In reversing the Gun Crimes convictions of two men, the Massachusetts Supreme Judicial Court ruled that police officers can no longer frisk someone during a routine encounter unless they have ‘reasonable suspicion’ to believe the person is involved in criminal activity and is armed and dangerous.

In the case of Commonwealth v. Jamal Martin, that defendant had been convicted of Carrying a Firearm Without a License, Carrying a Loaded Firearm, and Assault & Battery on a Police Officer. The incident occurred on October 8, 2006, when, at 10:30 a.m., Boston Police Officers were patrolling a ‘high crime area’ in which ‘numerous shootings’ had occurred and looking for a specific juvenile to execute an arrest warrant. During their patrol, they observed a young man wearing a sweatshirt with the hood up around his face and walking in the opposite direction from which the police were traveling. Although the police could not see his face, they ‘thought’ that this person might have an outstanding default warrant…[how does that make sense when they couldn’t see his face?]

The police turned their cruiser around and engaged the young man, a teenager, in conversation. Although the police quickly realized this young man was not the person they were looking for, and simply because the young man refused to continue to speak with the police, they proceeded to ask him if he had any weapons. Despite that Martin responded that he did not, the police nonetheless continued to frisk them “for their safety.” The frisk revealed a loaded gun.

2nd Amendment Gun Laws Upheld by District Court

Published on: April 8, 2010 | by Lefteris K. Travayiakis, Esq.

United States District Court Judge Ricardo M. Urbinia, in the Federal District Court of Columbia, recently applied the Supreme Court’s decision in District of Columbia v. Heller which created a constitutional right to have a gun.

In Heller, the United States Supreme Court rejected a government’s ban on handguns along with a separate requirement that guns in someones home be kept locked or disassembled. The Heller case marked the first time the U.S. Supreme Court interpreted the Second Amendment as guaranteeing the right to have a firearm. The Supreme Court stated that “[a] ban on handgun possession in the home violate[d] the Second Amendment, as its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

The Supreme Court did go on to say, however, that some form of gun control or regulation could still be valid despite the Second Amendment Right to Bear Arms.

Court Documents Admitted in Drunk Driving Trial Not Violative of Sixth Amendment’s Right to Confrontation

Published on: April 5, 2010 | by Lefteris K. Travayiakis, Esq.

If you have been following this blog, you have seen several recent posts about criminal convictions being reversed as a result of the Melendez-Diaz and Crawford decisions. These decisions have dramatically changed the landscape of permissible ‘testimonial’ evidence against a defendant at trial, but the scope of these decisions is limited.

In the recent case of Commonwealth v. Dale McMullin, the Massachusetts Supreme Judicial Court pulled the reigns, so to speak, on the scope of Melendez-Diaz. The criminal defendant in this case was charged with several drunk driving related offenses, including Operating of a Motor Vehicle While Under the Influence of Liquor, Fourth Offense (M.G.L. c. 90, section 24(1)(a)(1); Operating After Suspension, Second Offense (M.G.L. c. 90, section 23); and Failure to Stop for a Police Officer (M.G.L. c. 90, section 25). After his criminal conviction, the defendant appealed challenging the admissibility, competency and sufficiency of the public records used to establish his prior convictions.

Although the defendant acknowledged that the admissibility of Registry of Motor Vehicle records was permitted by Commonwealth v. Maloney, he argued that the Maloney decision was based on the Confrontation Clause analysis in Commonwealth v. Verde, which was later overturned by Melendez-Diaz.

Drug Conviction Overturned for Constitutional Violation

Published on: April 3, 2010 | by Lefteris K. Travayiakis, Esq.

In the recent case of Commonwealth v. Jorge Vasquez, Massachusetts Supreme Judicial Court recently overturned the conviction of the defendant, who had been tried and convicted of Possession of Cocaine, as well as Distribution of Cocaine. Despite his criminal defense lawyer’s failing to object at trial to the admission of the Massachusetts State Police Crime Laboratory Certificates of Drug Analysis, the Supreme Judicial Court still reversed his convictions as a result of his being deprive of his Right to Confrontation under the Sixth Amendment to the United States Constitution.

At his criminal trial, the prosecutor did not call the Massachusetts State Police Crime Analyst at trial, but simply admitted the ‘Drug Certificates’. The Drug Certificates were signed by the analyst, but the court found a Sixth Amendment violation because the defendant had no opportunity to cross-examine the drug analyst. Although this was the preferred practice not too long ago, in the recent case of Melendez-Diaz, the United States Supreme Court ruled that drug certificates are testimonial in nature whose admission into evidence against a criminal defendant triggers the protections of the Sixth Amendment Right to Confrontation.

The Massachusetts Supreme Court further ruled that, without the admission of the Drug Certificates or testimony certifying the seized substances were, in fact, cocaine, the defendant’s convictions on the charges could not stand and must be reversed. Although there was evidence that the ‘substances’ were “consistent with cocaine” and testimony from police officers relating to the likeness of the substances with cocaine, this was simply circumstantial evidence. Although a conviction can stand on only circumstantial evidence, the convictions in this case had to be reversed because the court could not say whether a jury would still have convicted had the improperly introduced Drug Certificates not been introduced.

Massachusetts Supreme Court Rejects Challenge for Gun Rights

Published on: March 31, 2010 | by Lefteris K. Travayiakis, Esq.

In the case of Commonwealth v. Jason Loadholt, the Massachusetts Supreme Court ruled on whether a defendant’s criminal prosecution for Unlawful Possession of a Firearm and Ammunition is violative of a person’s ‘right to bear arms’ as guaranteed by the Second Amendment to the United States Constitution.

In his appeal to the SJC for his Gun/Firearms Charges, the defendant claimed that Massachusetts could not prosecute him for the various gun and ammunitions charges for not first having obtained a Firearms Identification Card because the United States Constitution guaranteed him, via the Second Amendment, his ‘Right to Bear Arms’.

In rejecting the defendant’s Constitutional claims in his appeal, the Massachusetts Supreme Judicial Court reasoned, citing United States v. Cruikshank, that the Second Amendment “does not by its own force apply to anyone other than the Federal Government.” Rather, the Second Amendment means that it shall not be infringed any further by Congress, as opposed to the States. The Court explained that the Second Amendment “is one of the amendments that has no other effect than to restrict the powers of the national government.”

Massachusetts Supreme Court Rules Homeless Shelters Entitled to 4th Amendment Privacy Protections

Published on: March 25, 2010 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court’s recent decision of Commonwealth v. Porter P., a juvenile, focused on whether a person temporarily staying in room in a homeless transitional center is entitled to a ‘reasonable expectation of privacy’ against unlawful searches and searches. The Massachusetts Supreme Judicial Court, in a 5-2 decision, ruled that they do!

By way of background, the juvenile defendant and his mother had moved into a room at the Roxbury Multi-Service Center Family House Shelter in March 2006, which provides temporary housing for homeless families and assists them towards securing a permanent home. A few months later, the shelter’s director heard rumors that the juvenile defendant had a gun and then contacted the Boston Police Department. The next morning, five Boston Police Officers arrived at the shelter, and with the permission from the Roxbury shelter’s directors, searched the juvenile’s room and found a .40 caliber Glock firearm. The juvenile was immediately arrested for Unlawful Possession of a Firearm; Unlawful Possession of Ammunition; and Delinquency.

The Massachusetts Supreme Judicial Court, in ruling for the juvenile defendant, found that

“the room that the juvenile and his mother shared at the shelter was a transitional living space, but it was nonetheless their home…”.

As a result, they had a reasonable expectation of privacy in their ‘home’ at the shelter, and the Boston Police Officers’ search, without a warrant or consent by them, was violative of their 4th Amendment Right to be secure from unreasonable searches and seizures.

Massachusetts Court Reverses Drug Conviction, Police ‘Expert Testimony’ Still Live Issue In Drug Cases

Published on: March 6, 2010 | by Lefteris K. Travayiakis, Esq.

The Massachusetts Supreme Judicial Court recently reversed the conviction of a man who had been convicted in 2004 for the crime of Trafficking Cocaine of over 28 grams. In the case of Commonwealth v. Mario M. Perez, the Supreme Judicial Court reversed the jury’s guilty finding on the grounds that the defendant’s Sixth Amendment Right to Confrontation was violated by the introduction of the Certificate of Drug Analysis without the chemist’s testimony.

The defendant’s reversal for the crime of Trafficking follows the United States Supreme Court’s decision in Crawford v. Washington, which essentially ruled that the Drug Certificates were testimonial evidence. At the time of this appeal, the United States Supreme Court had granted certiorari but not yet decided United States v. Melendez-Diaz, which now prevents the prosecutor from proving its case by way of ex-parte court affidavits and without the proponent being subject to cross-examination.

This case is particularly interesting because the District Attorney’s Office attempted to convince the Massachusetts Supreme Court to adopt a broader rule of law that would allow them to bypass having to call a drug chemist at trial. Massachusetts prosecutors are trying hard to convince the Court to allow them to prove what a particular substance is through the use of ‘police expert’ testimony only. In this way, the prosecutors could attempt to prove the controlled substance at trial through their usual police witnesses and without having to bring in the chemist who tested the drugs.