4th Amendment, Criminal Procedure, Editor Blog, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Sheridan

Contributing Editor: Rachel Murray

Commonwealth v. Sheridan, 25 N.E.3d 875 (2015)

I. Facts

Early one morning, the defendant, Matthew J. Sheridan, was pulled over by Officer Sean Glennon for an unilluminated headlight. While Glennon was conducting the stop, Sheridan appeared nervous, his hands shaking as he “fumbled” around for his license and registration. A second officer, Scott Walker, was patrolling the area, stopped at the scene, and approached the passenger window. Walker looked in the car’s passenger window and saw a small plastic sandwich bag sticking out from under a t-shirt on the floor; the bag appeared to contain about one-ounce of marijuana. Walker indicated the presence of marijuana to Glennon, who then ordered Sheridan out of the car; a pat frisk revealed a cell phone and $285.00 cash. Glennon handcuffed Sheridan and searched the car, recovering two additional bags of marijuana. Sheridan was transported to the police station where, during booking for possession with the intent to distribute marijuana, the officers seized the cell phone and cash. Glennon proceeded to read the text messages in the cell phone, some of which appeared to be orders to purchase marijuana.

5th Amendment, Criminal Procedure, Editor Blog, Mass. Crim. Dig., Sixth Amendment

Mass. Crim. Dig.: Commonwealth v. Burgos

Contributing Editor: Sameera Navidi

Commonwealth v. Burgos, 19 N.E.3d 843 (2014)

I. Facts

On July 4, 2005, Dana Haywood was shot and killed in the Monte Park neighborhood of New Bedford. Three years later, Rico Almeida contacted the District Attorney’s office about Haywood’s murder. At the time, Almeida was sharing a cell with the defendant, John Burgos, when he found out that the defendant murdered Haywood. Almeida offered to help police by wearing a concealed recording device to get the defendant’s confession on tape. In order to secure a search warrant, police submitted an affidavit, which contained information about police officers’ prior dealings with Almeida. The affidavit also detailed the background of gang involvement between the defendant’s gang, United Front, and Haywood’s gang, Monte Park. Additionally, the affidavit stated that police suspected Haywood’s death was in retaliation for a United Front member’s murder. A Superior Court judge issued the search warrant, which allowed police officers to provide Almeida a recording device to record a conversation with the defendant. The defendant admitted on tape to being one of the shooters that killed Haywood.

Criminal Procedure, Due Process, Editor Blog, Mass. Crim. Dig., Sixth Amendment

Mass. Crim. Dig.: Commonwealth v. Valentin

Contributing Editor: Sarah Gage

Commonwealth v. Valentin, 470 Mass. 186 (2014)

I. Facts

In July 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs for the defendant’s brother, Simon. Ruidiaz paid Simon for the stolen drugs, but Simon told Ruidiaz that he was “still going to get” Bond. Later that same month, while Bond was with a group of friends, including Kenneth Stokes, Simon and the defendant approached Bond from behind and shot him in the back of the head. Bond fell to the ground and Simon shot him again in the head. Stokes testified that the defendant next stomped on the victim’s head while making a profane death threat. Then the defendant and Simon fled on foot and, as they were running away, the defendant told Simon, “Man, put the gun away, the police are coming.” At the trial, the defendant’s primary defense was an alibi, calling three witnesses to testify that he was playing dominoes elsewhere at the time of the shooting. The Commonwealth called four witnesses, including Stokes, who were at the shooting. All four of these witnesses testified that the defendant either “kicked” or “stomped” on the victim’s head after Simon fired the second shot. However, only Stokes testified that the defendant made a profane statement while he kicked or stomped on the victim’s head. On cross-examination, two witnesses acknowledged they did not tell the police shortly after the incident that they saw the defendant stomp on Bond. Stokes, though cross-examined, was not questioned about his failure to initially tell the police about the defendant’s statement. On the second day of jury deliberations, defendant’s trial counsel, Robinson, asked for the judge’s permission to have her law partner stand in for her. Although her partner had not worked on the case and had only discussed it with Robinson, the judge granted the request without seeking defendant’s consent to the substitution.

5th Amendment, Editor Blog, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Leclair

Contributing Editor: Taylore Karpa

Commonwealth v. Leclair, 469 Mass. 777 (2014)

I. Facts

On May 2, 2012 the defendant was arraigned on charges of assault and battery, following an incident between him and his girlfriend that occurred earlier that day at Matthew Sheehan’s (“Sheehan”) apartment. The case went to trial on August 1, 2012, and it was on that day that the Commonwealth first disclosed its intent to call Sheehan as a witness. The judge appointed an attorney to represent Sheehan and to counsel him regarding the potential assertion of his Fifth Amendment privilege against self-incrimination. After consulting with Sheehan about the questions he could expect upon examination, his attorney informed the court that Sheehan intended to invoke his privilege. Sheehan sought to assert this privilege in order to refuse answering questions that might expose him to criminal charges for possession of a controlled substance and conspiracy to violate the drug laws. After an in camera hearing on this issue, the judge ruled that Sheehan would not be permitted to invoke this privilege. As grounds for this ruling, the judge stated that Sheehan failed to demonstrate that he faced an actual risk that his testimony would “tend to indicate involvement in illegal activity, as opposed to a mere imaginary, remote, or speculative possibility of prosecution.” The case proceeded to trial and Sheehan took the stand as the first witness. During the cross-examination, defense counsel posed questions to Sheehan regarding his use of illegal drugs on the night of the incident. Sheehan responded by invoking his privilege against self-incrimination. The judge then instructed Sheehan to answer the question at which time Sheehan testified that he had used cocaine that night. Defense counsel then proceeded to ask Sheehan further questions regarding his cocaine use. Despite the judge’s prior instruction, Sheehan responded each time by invoking his Fifth Amendment privilege and refusing to answer, as instructed by his attorney.

4th Amendment, Criminal Procedure, Due Process, Editor Blog, Fourteenth Amendment, Fourth Amendment, Mass. Crim. Dig., Surveillance

Mass. Crim. Dig.: Commonwealth v. Guzman

Contributing Editor: Wendy Hansen

Commonwealth v. Guzman, 469 Mass. 492 (2014)

I. Issues

There are three main issues in this case:
  1. Whether the imposition of the Global Positioning System (“GPS”) is mandatory under chapter 265, section 47 of the Massachusetts General Laws;
  2. Whether the statutory mandate violates substantive and procedural due process under the Fourteenth Amendment of the U.S. Constitution and Articles 1, 10, 11, and 12 of the Massachusetts Declaration of Rights; and
  3. Whether the statutory mandate constitutes unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution and Article Fourteen under the Massachusetts Declaration of Rights.

5th Amendment, Criminal Procedure, Editor Blog, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Howard

Contributing Editor: Kristy Wilson

Commonwealth v. Howard, 469 Mass. 721 (2014)

I. Facts

On January 28, 2009, Maurice Ricketts was shot in the head while working at Bay State Pool Supplies in Cambridge. The defendant, Clyde Howard, was a handyman at Bay State. After taking out the trash, the defendant entered the warehouse and spoke with the victim. There was yelling, and the defendant “pulled out a gun, and pointed it at the victim,” and then chased him through the warehouse. The defendant fired his gun once, missed the victim, and then continued to follow him out of the warehouse. The operations manager alerted the branch and assistant managers and called 911. The managers ran toward the warehouse and heard two shots fired. They saw the defendant “facing the back of the dumpster with his arm outstretched and pointed slightly downward, and then heard two additional shots.” They then “saw the defendant walk toward the back door, stop, return to the dumpster area, and fire an additional shot.” After the final shot, the defendant “ran to a white van, and drove away.” The victim was found behind the dumpster with a faint pulse and later died at the emergency room.

4th Amendment, criminal law, Editor Blog, Fourteenth Amendment, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Thomas

Contributing Editor: Eric Gillespie

Commonwealth v. Thomas, 469 Mass. 531 (2014)

I. Facts

In the early morning of July 6, 2006, a three-story Brockton house erupted in flames. The first-floor occupants were unharmed; however, second-floor residents and guests threw the children out the window to a passerby and then jumped themselves. Those on the third floor could not escape on their own. While firefighters saved three people, including the one-month-old baby, the baby’s mother was trapped in the bathroom and later died of smoke inhalation at the hospital. Michelle Johnson rented the first-floor apartment. The defendant, Chiteara M. Thomas, and her boyfriend, Cornelius Brown, stayed in the first-floor apartment with Johnson. Prior to the fire, Johnson demanded that Thomas move out. The defendant, angry at being tossed out, repeatedly threatened “to kill Johnson and burn the house down.”

4th Amendment, criminal law, Editor Blog, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Vacher

Contributing Editor: Catherine S. Flaherty

Commonwealth v. Vacher, 469 Mass. 425 (2014)

I. Facts

On December 16, 2008, sixteen year-old Jordan Mendes’s body was found burning in a pit in Hyannis. Mendes was stabbed in the neck and face twenty-one times, and was shot in the chest. The previous day, he went to his half-brother Charlie’s home on Arrowhead Drive after school. The defendant, Robert Vacher, was dropped off at Charlie’s home with Charlie and John R. around the same time as Jordan. That evening, Charlie arranged to test drive a black Nissan Maxima that a classmate was selling for $11,000. Charlie, John R., and the defendant test drove the vehicle and had it in their possession for approximately four hours, returning it at 8:00 p.m. At that time, Jordan’s friend Diana had expected to see him at the Arrowhead Drive house; he did not arrive, and she telephoned him throughout the night but was ultimately unable to reach him. The next morning, Diana drove Charlie and the defendant to a car dealership in Hyannis, where they purchased a silver BMW for $10,995 in cash. Charlie, John R., and the defendant were later seen at a gas station with the BMW and a red gasoline can. Jordan’s grandmother became concerned about his whereabouts because she had not seen him since the previous day. She and Jordan’s sister went to look for him, ultimately arriving at a place in the woods where Jordan and his sister often played as children. Jordan’s grandmother and sister noticed a fire burning in a pit, and found Jordan’s body at the bottom. A certified accelerant detection dog twice alerted to the presence of gasoline.

criminal law, Due Process, Editor Blog, Mass. Crim. Dig., Privacy

Mass. Crim. Dig.: Moe v. SORB

Contributing Editor: Kevin C. Mortimer

Moe v. Sex Offender Registry Board, 467 Mass. 598 (2014)

I. Issue

In Moe v. Sex Offender Registry Board, the Massachusetts Supreme Judicial Court (“SJC”) considered: (1) whether the July 12, 2013 amendments to the sex offender registry law (“SORL”) are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) whether the Legislature intended for retroactive application; and (3) if so, whether such application violates due process under the Massachusetts Declaration of Rights.

II. Holding

The SJC held that: (1) the July 12, 2013 amendments to the sex offender registry law are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) the Legislature intended for retroactive application; and (3) such application violates due process under the Massachusetts Declaration of Rights.

4th Amendment, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Duncan

Contributing Editor: Sean P. Murphy

Commonwealth v. Duncan, 467 Mass. 746 (2014)

I. Facts

On a “bleak, snowy, and freezing” January day, a neighbor went to retrieve a borrowed shovel from Heather Duncan’s residence; although no one was home and the gate was locked, she observed two dead dogs in Duncan’s yard and heard a third dog barking. Responding to the neighbor’s subsequent call, police officers heard a dog whimpering as if in distress. Stepping on a tall, nearby snowbank and gazing over Duncan’s six-foot privacy fence, they saw two dogs who were apparently frozen and a third dog “alive but emaciated”—they couldn’t see any food or water left out for the dogs. The yard’s gate was padlocked, so officers tried numerous ways to contact the homeowner, to no avail. The officers then contacted the fire department, which removed the padlock from the gate, and animal control took custody of the dogs—in total, police were on scene for less than two hours.

II. Procedural History

Heather Duncan was charged with three counts of animal cruelty under G.L. c. 272, § 77. The defendant filed a motion to suppress the observations by police and any physical evidence, and after an evidentiary hearing the judge allowed the motion, stating “[o]ur courts have not as yet applied the emergency exception to animals.” Under Rule 34 of the Massachusetts Rules of Criminal Procedure, the judge reported the question of law, and trial was continued pending the resolution of the question.