2014 YEAR IN REVIEW

COURTROOM CLOSURES

Commonwealth v. Morganti & Commonwealth v. Alebord467 Mass. 96 & 106

• Issue of closure during empanelment waived by trial counsel, who did not object. • Defendant himself does not need to waive right to public trial.

• Not deficient performance to fail to object (trials were pre-Cohen). • Even structural error can be waived.

Commonwealth v. LaChance

469 Mass. 854• Where public trial right was waived and defendant seeks to

establish that his attorney was ineffective in not objecting to closure, he must establish prejudice –under Saferian – and does not get presumption of prejudice that would apply if it was a preserved structural error. • Of course, very difficult to imagine what prejudice could be shown.

What is left?

• Cases where creative argument of prejudice can be made

• Cases where trial counsel was not aware of closure. • Commonwealth v. White, 85 Mass. App. Ct. 491 – counsel didn’t know that court officer had closed courtroom; court affirmed order allowing motion for new trial.

SUPPRESSION ISSUES

Commonwealth v. Gentile, 466 Mass. 817

• What’s required for reasonable belief that target of arrest warrant is in his home, so that police can enter to execute the warrant?• Very little: just going in early morning would have sufficed,• BUT cop’s disbelief of woman at door who said defendant

not home cannot be given affirmative weight.• “A hunch is still a hunch, even if it turns out to be correct.

• Great language in opinion about cops’ overconfidence in their ability to discern whether someone is lying.

Commonwealth v. Augustine, 467 Mass. 230

• What is required for CW to get historical cell cite location information (CSLI) from a private cell phone provider?• On facts of this case, probable cause and warrant

• Article 14 requires more than reasonable suspicion showing that is required by Federal Stored Communications Act

• CSLI implicates expectation of privacy because, much like GPS, it tracks person’s movements

• 3rd party doctrine does not apply here, where cell users do not directly or voluntarily provide CSLI and where CSLI is byproduct of cellphone service, not its purpose

• Duration of period for which historical CSLI is sought is relevant consideration in calculus of reasonable expectation of privacy. Two weeks clearly enough; does not define what would not be enough.

• New rule; does not apply retroactively to final convictions.

Commonwealth v. Stewart, 469 Mass. 257

• BPD saw defendant, known drug dealer, followed by 3 people (including one counting $) down a street known for drug use. All four huddled up and then separated. When stopped, defendant denied having been on that street.

• Court: reasonable suspicion but not probable cause, even after defendant caught lying to police about where he had been.

• Court carefully parsed officer’s testimony and rejected trial judge’s factual finding that officer saw an exchange.

Commonwealth v. Jones-Pannell,85 Mass. App Ct. 390

• Outrageous case, now pending on FAR

• Rejects motion judge’s finding that area was not a high-crime area, in part by relying on reported cases (involving long-ago crimes) which mention the area

• Criticizes motion judge’s preface to his findings (“the following facts are the only ones found by the court on credible testimony”)

One-Party Consent Exception to Wiretap Statute

• Commonwealth v. Hearns, 467 Mass. 707• Commonwealth v. Mitchell, 468 Mass. 417• Commonwealth v. Burgos, 470 Mass. 133

• Focus: was offense (which must be designated under statute) committed in connection with organized crime• VERY fact-specific; requires careful attention to cop’s affidavit.

• Note: FN 8 in Burgos notes that the defendant filed a pretrial motion to suppress which was denied and did not object when evidence came in. Although basis for MTS was purely statutory, “he likely preserved his objection.”

Odor of Unburnt Marijuana ≠ PC to Search

Commonwealth v. Overmyer & Commonwealth v. Craan, 469 Mass. 16 & 24• Court “not confident . . . that a human nose can discern

reliably the presence of a criminal amount of marijuana, as distinct from an amount subject to only to a civil fine.”

• Rejects Commonwealth argument that police could search based on probable cause to believe defendant was violating federal law, noting that argument circumvents clear intent of Question 2 voters.

• What about dog sniff cases?

Mistakes by Police • Commonwealth v. Bernard, 84 Mass. App. Ct. 771

• cop mistaken that G.L. c. 90 § 6 prohibits all license plate covers (rather than just covers that obscure plate); stops premised on mistake of law generally unconstitutional

• Predates Heien v. North Carolina, 135 S.Ct. 530 - objectively reasonable mistake of law did not render stop unconstitutional.• SJC has not addressed question of cop’s mistake of law under Art. 14.• Distinguish Heien on difficulty of interpreting statute in question there.

• Commonwealth v. Maingrette, 86 Mass. App. Ct. 691 • cops checked warrant management 4 hours before arresting

defendant on default warrant; in meantime he cleared it up.• Failure to recheck immediately before arrest violated BPD policy• Evidence demonstrated ample time and opportunity to recheck

Short & Sweet• Commonwealth v. White, 469 Mass. 96. Where person is

arrested on warrant for crime committed at unknown time in past, police cannot conduct search incident to arrest for evidence of that crime.

• Commonwealth v. Powell, 468 Mass. 272. Reaffirms Rosario; rejects CW argument that Rosario doesn’t apply if defendant questioned about charges other than those on which he’s arrested.

• Commonwealth v. Rutledge, 86 Mass. App. Ct. 904. Arguments not raised below by Commonwealth will not be considered as a basis to reverse an order allowing a motion to suppress.

FAILURE TO REGISTER

Commonwealth v. Arce, 467 Mass. 329

• Need actual proof of at least 4 overnight stays a month or 14 a year for secondary address violation

• Defendant’s statement that he’s “staying” there not enough• Challenge secondary address component of statute; problem is

that you need not register a secondary address unless you spent 4 days a month or 14 a year in one place, and once you do you are in violation of the statute; so you don’t have to register until you have violated the statute, and by then it’s too late

• See also Commonwealth v. Pike, 467 Mass. 1008 (defendant’s statement that he was staying with a friend insufficient to prove defendant had moved without telling SORB)

SOARES CHALLENGE

Commonwealth v. Mason,85 Mass. App. Ct. 114

• Prosecutor used peremptory challenges on two of three people of color in the venire but judge found no prima facie case of discrimination because one person of color seated

• Misstatements of law: jurors shared defendant’s discrete group; says race must be sole reason for exclusion

• See instead Sanchez v. Roden, 753 F.3d 279 (1st Cir. 2014) (dismissing racial challenge because some African Americans were seated is “facile and misguided”)

RESENTENCING

Commonwealth v. Cole, 468 Mass. 294 Commonwealth v. Parillo, 468 Mass. 318Gangi v. Parole Board, 468 Mass. 323Commonwealth v. Scott,86 Mass. App. Ct. 812 (2015)

• Resentencing when your client has served his entire committed sentence

• Resentencing in cases with interdependent sentences

Highlights• No increase to aggregate punishment, which includes opening the

defendant up to greater sanctions down the road• Must be quantitatively fair• Cannot resentence a defendant on a completed sentence, even

where it is part of a package • Make sure any sentence imposed after a permissibly restructured

sentence does not exceed the prior one• Look out for guys charged with a VOP (or already in on a VOP) where

the probation was imposed after a previous finding of illegality of a CPSL sentence

• If sentence was partially served then amended to probation, argue that clients get pre-trial credit toward any VOP, even if the time is going to another sentence (issue reserved in Commonwealth v. Cumming, 466 Mass. 467 (2013) – fn. 6 - and Scott – fn. 7)

Commonwealth v. Selavka,469 Mass. 520

• If your client is serving an illegal sentence in his favor (e.g. – trial court forgot to impose mandatory GPS monitoring), the Commonwealth can file a 29(a) motion to correct it but has to do so within the 60-day window for revise or revoke motions or the defendant’s sentence becomes final

• 30(a) motion to correct sentence opens client up to resentencing; unclear if you have to win

• In this case, no appeal was filed so there was only one 60-day window; nothing about second 60-day window after the conclusion of the appeal

PRE-TRIAL CREDIT

Commonwealth v. Holmes,469 Mass. 1010 • Not allowing defendants to bank time is more important than

ensuring they did not serve dead time• Even if they don’t know they have time banked when they

commit the later offense• However, if defendant can demonstrate actual innocence or

other equally compelling circumstance, then it may be possible to get time even if it was banked

• See also Commonwealth v. Velez, 86 Mass. App. Ct. 727 (2014) (if a defendant serves time that would otherwise be dead time, he can get it toward an unrelated offense if it is served after the commission of the unrelated offense BUT only if he gets a committed sentence; if he gets probation, this time can’t go to a sentence after the probation violation hearing, because then it would be banking)

JUVENILES

Diatchenko v. D.A., 466 Mass. 655 (2013)• Miller, prohibiting imposition of mandatory LWOP on people

under 18 years old at time of offense, is retroactive.• A new rule, but retroactive because it’s substantive and

constitutional.

• Both discretionary and mandatory LWOP for people under 18 years old at time of offense violates article 26.• Uses juvenile brain science to conclude that LWOP for under-18

violates Eighth Amendment proportionality principles

• What’s next?• Entitled to hearing that affords “a meaningful opportunity for release”• Concurrence! Unique attributes of juvenile must be taken into

consideration at hearing, otherwise it runs afoul of “meaningful opportunity for release.”

Commonwealth v. Brown, 466 Mass. 676 (2013)• Companion to Diatchenko• The murder sentencing scheme is severable.• Juveniles convicted of first degree murder must be

sentenced under G. L. c. 265, § 2, but judges must construe the statute as if omitting the exception for parole eligibility for first degree murder when applying the statute to juveniles.

• Life with parole in no less than 15 years is an appropriate sentence under the statutory scheme and Diatchenko

Cases and issues to watch

These cases address the question of how developments in juvenile brain science, that are increasingly recognized by SCOTUS and SJC, can now be incorporated into the law. • Commonwealth v. Jackson, SJC-10398

• Whether the reasonable person standard in a duress case should account for a reasonable juvenile

• Argued January 9, 2015

• Commonwealth v. Pagan, SJC-11714 • The propriety of the judge’s reduction from a 1st to a 2nd degree

murder based in part on the defendant's youth (sixteen years old at the time of the offense).

• Argued January 6, 2015

Clients to find • Do you have any clients who:

• Were found delinquent of a sex offense and were committed to DYS • Whose commitments to DYS were extended past their 18th birthday,

pursuant to, G.L. c. 120 §§17-19, sometime between 1990 and 2009

• Kenniston v. Dep't of Youth Servs., 453 Mass. 179 (2009), held that commitment extensions pursuant to G.L. c. 120 §§17-19 were unconstitutional.

• Ordered by Gants, J. as single justice:• The unconstitutional commitments cannot be the basis for SORB registration. • For individuals whose commitments were unconstitutionally extended under the

pre-Kenniston version of the statute, their SORB registration requirement is calculated from their last lawful incarceration, not the date of their actual release.

IDENTIFICATION

Commonwealth v. Crayton, 470 Mass 228 • “Where an eyewitness has not participated before trial in

an identification procedure, we shall treat the in-court identification as an in-court showup, and shall admit it in evidence only where there is ‘good reason’ for its admission.”

• What is a “good reason”?• Eyewitness familiar with defendant before commission of crime• Arresting officer who is also eyewitness and id only confirms that

the defendant was arrested.

• Prospective only

• Note – court treated issue as preserved where counsel argued motion in limine but did not renew objection.

Commonwealth v. Collins, 470 Mass. 255 • Companion to Crayton

• Crayton rule applies where eyewitness participated in pre-trial ID procedure but failed to make an “unequivocal positive identification.”

• What is a “good reason” here?• Probably requires “a showing that the in-court identification is more

reliable than the witness’s earlier failure to make a positive identification”

See also and stay tuned…• Commonwealth v. Gomes, SJC-11537

• New jury instruction on eyewitness identification supported by generally accepted scientific principles

• Opinion released January 12, 2015

• Watch for • Commonwealth vs. Bastaldo, SJC-11763

• Whether the jury must be instructed to consider “that people of all races and all ethnicities may have greater difficulty in accurately identifying members of a different race or a different ethnicity” where identification is at issue and the proof of identity relies on a cross racial or cross-ethnic identification.

• Scheduled for argument on February 5, 2015

UNIT OF PROSECUTION

Commonwealth v. Traylor, 86 Mass. App. Ct. 84 • Unit of prosecution for assault and battery upon a child

causing bodily/serious bodily injury G.L. c. 265, § 13J(b) • The unit of prosecution is the injuries to the child, not

the “inflicting actions by a caretaker”

• Why no double jeopardy problem?• Legislature has the power to define offenses and the legislature

clearly authorized multiple convictions for multiple discrete injuries.

• Keep watching… FAR granted on Dec. 8

Commonwealth v. Rollins, 470 Mass. 66 • Unit of prosecution for child pornography• “[W]here the offending photographs come from a single

cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates only a single unit of prosecution.”

• Imposing multiple “convictions and sentences for the defendant's singular act of possession violated the guaranty against double jeopardy.”

• Why?• Conduct-based approach rather than a victim-based approach is

more in keeping with the statutory intent• Possessing even hundreds of photos at the same time in the same

place is a singular possessory act.

Commonwealth v. Bolden, 470 Mass. 274 • Unit of prosecution for aggravated burglary, G.L. c.266, §14 • Permits one burglary conviction per dwelling, regardless of

the number of assaults occur in the dwelling.

• Why?• “[O]nce a dwelling is ‘broken’ any subsequent breaks occurring

therein – reasonably close and time and purpose – are but a continuation of the offense and thus insufficient to support separate convictions under § 14.”

• Because being armed and assaulting the occupants merely aggravates the offense and “the Commonwealth may not aggregate such actions into multiple units of prosecution under § 14.”

DRUGS

Commonwealth v. Humberto H., 466 Mass. 562 (2013).

• 5 baggies of marijuana does not equal probable cause of an intent to distribute.• Other inconsequential factors included juvenile’s “defensive

demeanor” and the absence of smoking paraphernalia

• But also no indication of weight or value

• Court called for “judicial vigilance” in marijuana cases. Watch for overcharging using intent to distribute to bypass decriminalization

Commonwealth v. Sepheus, 468 Mass. 160 • Together or individually, none of the following factors were

sufficient evidence of intent to distribute:• Amount - 0.4 grams• Packaging - “A few individually packaged rocks of crack cocaine.”

Nothing suggesting that the 3 baggies were part of a dwindling larger inventory.

• Money - $312• Absence of smoking paraphernalia – a weak inference,

especially in absence of other factors

• BUT, counsel elicited expert testimony that, while inadmissible, made the evidence sufficient. M4RF properly denied, but counsel’s ineffectiveness demands remand for resentencing on possession or for retrial.

Other Good Stuff• Commonwealth v. A Juvenile, 2011-P-1138

• 11 Baggies• Post- Humberto H. Order issued dismissing complaint for lack of

probable cause affirmed by APC.

• Commonwealth v. Brown, 2012-P-1849• What they found:

• Bag of marijuana “approximately the size of a fist”• “More baggies” of marijuana in another pocket

• Motion to suppress properly allowed• Unpublished

DOOKHAN

Commonwealth v. Scott, 467 Mass. 336

• Dookhan’s misconduct was government misconduct that can render a defendant's guilty plea involuntary

• Defendants are “entitled to a conclusive presumption that egregious government misconduct occurred in [his/her] case” where Dookhan was primary or secondary chemist.

• BUT to vacate the plea… defendant must establish a reasonable probability that he would not have pleaded guilty had he known about Dookhan’s misconduct.

Commonwealth v. Gaston, 86 Mass. App. Ct. 568 • A Dookhan trial case• Pre-Scott motion for new trial denied

• Appeals Court applies the rationale of Scott to reverse • 1. Dookhan was confirmatory chemist• 2. The evidence would have been a “real factor” in the jury's

deliberations• “[P]roof of Dookhan's wrongdoing as it related to the defendant's case

provides its own shadow of reasonable doubt about the nature of the substances tested. In sum, we have no difficulty concluding that evidence of the “‘particularly pernicious’ government misconduct” by Dookhan would have been a real factor in the jury's deliberation on the narcotics charges.”

Stay tuned, the Dookhan landscape is changing…

• Bridgeman v. D.A., SJC-11764 • Can defendant who successfully vacates Dookhan plea be subject

to harsher sentence than in his original plea?• A few evidentiary questions arising in Scott hearings• Comprehensive solution for all Dookhan cases?

• Commonwealth v. Torres, SJC-11771• What happens to pre-Scott cases?

• Commonwealth v. Velazquez Ortiz, SJC-11795• What to do with pleas containing drug and non-drug charges?

• All argued on January 8, 2015

SHORT BUT SWEETHelpful tidbits and useful holdings

Commonwealth v. Woods, 466 Mass. 707: SJC exercised its superintendence powers and orders the Commonwealth to advise targets, or those reasonably likely to become targets, of their right not to incriminate themselves in front of the grand jury

Commonwealth v. Keo, 467 Mass. 25 : in the future, the Commonwealth argues inconsistent theories of the case at its peril

Commonwealth v. Sealy, 467 Mass. 617: leaves for another day whether Dwyer protocol should be extended to records covered by the attorney-client privilege (but unlikely it should)

Commonwealth v. Riley, 467 Mass. 799 : concurrence suggests need to revisit the jurisprudence of extreme atrocity and cruelty where the malice prong is only supported by evidence that a reasonable person would have known the conduct created a strong likelihood of death

Commonwealth v. Richardson, 469 Mass. 248 – if two sentencing enhancements based on specified prior convictions apply to a defendant, only one can be imposed in the absence of clear direction otherwise from legislature

Commonwealth v. Quinn, 469 Mass. 641: important case on implicit vouching by experts, in this case, the child’s treating therapist

Commonwealth v. Crayton, 470 Mass. 228: other bad acts evidence is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk

Commonwealth v. Reddy, 85 Mass. App. Ct. 104: failure to redact prejudicial language from a 209A order resulted in a SRMJ and prosecutor’s use of the language was prejudicial

Commonwealth v. Forbes, 86 Mass. App. Ct. 197: A&B serious injury is duplicative of first theory mayhem

Commonwealth v. Shin, 86 Mass. App. Ct. 381: failure to take medications is irrelevant to analysis as to whether defendant is criminally responsible for conduct

L.L. v. Commonwealth, 470 Mass. 169, 184 n.27: change in the abuse of discretion standard. Previous standard “has earned its retirement,” and now a judge abuses his discretion when he “made ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.”

Commonwealth v. Gopaul, 86 Mass. App. Ct. 685: G.L. 94C, § 32J (sale of drugs near “public park or playground”) applies only to public playgrounds and public parks on public property.

Commonwealth v. Thompson, 470 Mass. 1008: school zone radius reduction is not retroactive to cases that were tried and where a conviction entered before August 2, 2012, the effective date of the statute’s amendment.

Commonwealth v. Paine, 86 Mass. App. Ct. 432: a chemist’s visual identification and comparison to a recognized prescription drug database is insufficient to prove that a prescription drug tablet is the substance charged.