Massachusetts Criminal Lawyers Blog

The Quincy Police have filed several charges including marijuana trafficking against a Quincy couple after an incident last Thursday. The story in boston.com reveals that the prosecution may have difficulties proving many of them.

It all started when a utility company decided to turn off services at a house on Norfolk Street. The company enlisted the help of detectives from the Norfolk County Sheriffs office to enter the house. There is no explanation for this. Perhaps it is the company's policy to have law enforcement on hand for this task. But, why detectives and why not local police? Defense counsel will surely explore whether of not there was a secondary law enforcement motive for entering the house. If so, then they should have had a warrant, and there may be grounds for a motion to suppress.

Back to the story. When the utility employee and the detectives arrived, there was a man spreading mulch outside the house. Apparently, neither the detectives nor the utility employee bothered approaching the man to discuss the utility situation. According to the article the man left "[w]hen police entered the house." So they saw the man in the yard, and just went into his house. Why not speak to him first? Why not ask him for the key? Why not tell him the reason for going in his house while he is spreading mulch outside? It also makes you wonder if the man was investing in mulch while failing to pay utility bills.

When the mulch man left, the detectives took note of his license plate. Again, if this was simply a utility shut off, why were they interested in the man's license plate at this point in time. I assume that the police had not discovered anything suspicious at the time that the man drove away. Was there more going on here? Was there a law enforcement motive to the entry of the house? There is no mention of whether the house was locked or not. Surely, absent some emergency, utility companies are not breaking down doors to turn off power. Strange.

In any event the detectives smelled "raw marijuana" when they went inside. After looking around, they found marijuana plants growing under lights. The Quincy Police and members of the Federal Drug Enforcement Agency then got a search warrant and eventually discovered 65 growing marijuana plants and 18 small dried marijuana plants.

The police eventually found the mulching man's vehicle in another part of town. They knocked on the door and two boys told the police that they did not know where their father was. The police, however, could see him inside and after initially refusing to do so, the man came out and was identified as Hao Vu. When the police started to question him, however, Vu ran off and tried to hide behind a restaurant. He was arrested and charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, Disorderly Conduct, and Resisting Arrest.

The police return to check on the boys and when nobody answered the door, they forced their way in and found Annie Vu in a bedroom with four children. Armed with information that the marijuana grow house was in the name of both Hao and Annie Vu, they arrested Annie too. She was charged with Trafficking in Marijuana, Conspiracy to Traffick Marijuana, and Resisting Arrest.

Unless there is a lot more to this than what has been reported, these two have been grossly overcharged. Lets start with Annie. Just because she is on the deed or the lease from the marijuana grow house does not mean that she was involved with the growing. Where is the evidence that she was ever at the house while the plants were there? And conspiracy? The prosecution needs evidence that she and Hao agreed to distribute marijuana. Where is that evidence? How about resisting arrest? Refusing to answer the door and hiding in a bedroom is no where near enough evidence for that charge. One has to threaten a police officer or create a risk of injury to a police officer for this charge to be sustained.

Now lets look at the charged lodged against Hao Vu. Trafficking charges are based upon weight. For marijuana, the minimum weight is fifty pounds. How will the prosecution establish the weight of these plants? Will they weigh just the portions suitable for smoking? Surely, they don't have fifty pounds of "buds." What about the proverbial "stems and seeds." How about the actual roots? Moreover, will the police weigh the plants after a proper period of drying? If they don't dry the stuff and just put it in plastic bags, the moisture will cause their evidence to rot. There were a total of 83 plants. They would each have to weigh just under ten ounces to make the cut.

As for the conspiracy charge, again, I just don't see any compelling evidence that Annie and Hao got together on this. There's no mention of it in the article. The same analysis with regard to the resisting arrest charge applies to Hao. Running away is not enough, unless there is something about the run that would put the officers at risk of injury. Here, they said that he ran and tried to hide behind Quizno's. That's not going to do it.

Some have said that when you make the police chase you around they will have their revenge. Perhaps that accounts for the charge of Disorderly Conduct. What exactly did Hao do to merit this charge? When and where did he cause public inconvenience or alarm? It looks like they were throwing everything possible a these two. They will need experience legal counsel to sort this out.

Continue reading "Marijuana Trafficking Suspects Appear to be Over Charged" »

Disorderly Conduct charges were brought in the Quincy District Court against Justin Green of South Boston after he tried to surf a subway train out of the North Quincy MBTA station last Friday.

According to Boston.com, some people in the train apparently saw Green hanging on to the top of a car as the train began to pull out of the station. The driver stopped the train for several minutes in order to get Green back on to the platform. When confronted, Green allegedly said that he had a "God given right to do anything he wants," and that he was only risking his own safety.

Depending on your perspective, he almost had a point. When you first read the story, you may get the feeling that he was doing something wrong, but ask, "what is the crime?" In fact, if not for the stopping of the train and inconveniencing the passengers, I doubt if the disorderly charge would apply. To be convicted of disorderly conduct here, the prosecution needs to prove 1) that Green created a hazardous condition that did not serve any legitimate purpose for Green, and 2) that Green recklessly created a risk of public inconvenience or alarm.

The second element is obvious. Green was attempting to surf at 5:30 p.m. on a Friday, and when the conductors stopped the train of his choice, other oncoming trains were delayed. So, its safe to say that he recklessly created a risk of inconvenience to several passengers on public transit.

The first element is actually not so clear. It may have been hazardous, but by what standard will the court determine whether or not Green's actions served a legitimate purpose for him. He has already said that he had a right to do as he pleased. He obviously considered train surfing his own "legitimate purpose," regardless of whether or not anyone else agreed.

However, since this is a very minor crime punishable by a $150 fine, it is unlikely that the Quincy District Court will delve too deeply into whether the law applies to what the accused believes to be legitimate versus what is objectively legitimate.

This is simply a story that illustrates the elements of a crime that is often used as a catch-all when nothing else seems to apply.

Continue reading "Disorderly Conduct Charge for MBTA Train Surfer" »

Drug distribution and drug possession charges were brought against two men in the West Roxbury Division of the Boston Municipal Court after the men were arrested in Roslindale on Wednesday. Dennis Reynolds of Attleboro was charged with selling heroin to Daniel Hancock of Walpole. Hancock was charged with possession of heroin. After being handcuffed, Reynolds allegedly said: "I'll beat this case like I beat my last case, wait till you meet my lawyer."

The Roslindale Patch reported that undercover Boston Police officers saw what they believed to be a drug transaction between the two men at the corner of Metropolitan Avenue and Washington Street. The Officers approached to investigate. The article states that Hancock then began to struggle with officers. There is no explanation as to why there was a struggle when the police were simply approaching to ask questions, but as so often happens when such a struggle ensues, Hancock ended up on the pavement in handcuffs. The police would later claim that there were 3 bags of heroin near where he lay.

No drugs were taken from Reynolds, but he had $134 in his pocket. So at this point the police had speculation that Reynolds had just sold drugs to Hancock (Or the opposite was about to happen). The situation got worse, as it usually does, when the accused men agreed to speak to the officers. The men were likely separated and gave "contradictory statements about the money." The article says that the men initially said that the met to settle a debt. The article does not contain the contradictory information.

Back at the police station, Reynolds apparently called his girlfriend -- not his lawyer -- and said "Baby shut off my phone they have my phone." It seems that she was unable to do this quickly enough as the officers claimed to have received one call and one text from people seeking to buy drugs.

So, will Reynold's lawyer have a chance of beating this case? If he had called his lawyer first, he or she would surely have told him refrain from making incriminating statements. Although Reynold's words are technically hearsay, most of them are admissible against him in court. The prosecution will likely be able to admit the conversation with his girl friend and that is not helpful to his defense. The same applies to his statements about the money. Fortunately for him (and his lawyer) the prosecution will not likely be able to use his complimentary description of his lawyer because it contains reference to a prior case. Jurors may not know of a person's prior conviction of similar charges because they are only supposed to focus on the facts before them.

So what will they have before them? If not for the words and actions of the two men after the police approached, the case would consist of police speculation that they had witnessed a possible drug deal. Surely defense counsel will challenge the admissibility of the phone call and text message on illegal search and seizure grounds, and should prevail. It may come down to just what the officers saw. Will they be able to say who was the seller and who was the buyer? After all, it could go either way. And that is reasonable doubt.

Continue reading "Drug Distribution Suspect Proclaims Confidence in His Attorney" »

Quincy District Court arraigned Lisa Julian earlier this week on charges of Operating Under the Influence of Drugs. Braintree Police Chief Russell Jenkins informed the Patch of the following facts which gave the police probable cause to arrest Julian.

1. A motorist told the police that Julian weaved over the center line on Washington Street, ran two red lights and almost hit other vehicles.

2. Officers found Julian in Braintree Square and made "observations that she was impaired."

3. Julian made statements to the officers "that led them to believe she was under the influence of prescription medication."

4. The officers asked her to perform field sobriety tests.

Obviously there may be more to this story, but based on these facts alone a criminal defense attorney would analyze Ms. Julian's chances at trial as follows.

Do the police have the reporting motorist's identity? Will the reporting motorist be willing to come to court and testify? If the answer to either of these questions is no, then the erratic driving information will never be heard at trial. A police officer may not repeat it because it is inadmissible hearsay.

What exactly did the police see when they found Ms. Julian in Braintree square? Was she still in the car? The article does not say that the police found her driving. If not, will the prosecution be able to prove the essential element of "operation" at all.

What did she say to the police? As always, this is crucial evidence, and unlike the statements of the reporting motorist, these hearsay statements are admissible against Julian. It appears that she mentioned medication. This, however, may not be enough. The crime charged requires more than proof that a driver ingested "drugs." The criminal statute requires proof that a person operated under the influence of "narcotic drugs, depressants or stimulant substances." Without a blood test, how will the prosecution prove that she had such drugs in her system? This is not like alcohol where the police are able to smell it, are familiar with its effects, and have a breath test machine that supposedly measures its percentage in the blood stream.

I should note that her passenger was arrested for possessing Alprazolam -- also known as Xanax -- which is a depressant. This is somewhat damaging, but is not in and of itself proof that Ms. Julian took any of those type of pills.

The chief said that the officers asked Julian to perform field sobriety tests, but the article does not say whether or not she agreed to do so. If she did not, the case is even weaker. If she did and she failed it would be detrimental to her defense, but it still does not answer the question of whether she was under the influence of the particular drugs described in the statute. There are many reasons for being unable to do these tests that are not related to drug consumption.

Before she makes any decisions, Ms. Julian will require the advise of an experienced criminal defense attorney.

Continue reading "Operating Under Influence of Drug Charges Involve Unique Issues of Proof" »

Drug distribution charges were brought against Hermino Nieves on Monday after the Quincy Police saw what they believed to be a drug deal in a parking lot off Willard Street. The charges, however, may be difficult to prove.

According to Boston.com someone called the Quincy Police on Monday around 12:43 p.m. "about a possible drug transaction in the parking lot behind 796 Willard Street." Police officers responded and saw "a car meet up with another car. . . . The suspects appeared to make an exchange of some sort, and then part ways."

The police followed a woman that they thought was the buyer. The story does not elaborate as to how they reached this conclusion. In any event, they stopped her car and she was "allegedly holding a bag [of heroin]" The story does not say why the woman was stopped or whether she was holding the bag out in plain view as the officers approached her car.

The police also followed the alleged seller -- Nieves -- and conducted a "traffic stop." This term seems to indicate that Nieves committed some sort of driving offense, but, again, the story does not elaborate. The police searched his car and found cell phones and $180.00, but no contraband.

Issues regarding search and seizure. Motion to Suppress.

1. What is meant by "an exchange of some sort?" After all, this may be the only reason for stopping Nieves. There is a genuine question as to whether or not this observation provided the police with adequate legal justification to stop his car. Stopping a car is a seizure and must be constitutionally justified. In other words, the police needed adequate information to believe that there had been a crime. Seeing what could easily have been an innocent interaction is not enough.

2. Was there some other reason to stop the car? It may be that the police will avoid issue number 1 by claiming that Nieves committed a motor vehicle infraction which gave them a good reason to stop him.

3. What justified the search of Nieves car? Even if there was a valid reason to stop Nieves for a traffic violation, the police should have simply given him a ticket and allowed him to leave unless they had enough information to search. It may be that the officers who stopped the woman called the officers that stopped Nieves and told them about the heroin that they found. If they had not yet received such a call, the search was questionable.

These issues must be raised by defense counsel in a Motion to Suppress. If successful, the case against Nieves will be dismissed.

Issues of Proof. Trial

At first glance one may be convinced that the case against Nieves is strong. A defense attorney sees things differently because he or she must look at the proof needed and the likelihood that the proof will be available at trial.

Here we have the police assuming that Nieves was the seller. The fact that the woman possessed heroin points in that direction, but not provide proof beyond a reasonable doubt. If the woman told police that Nieves sold her the drugs it strengthens the case, but we must then consider whether she will be available to testify. Her statement to the police is hearsay -- the police may not repeat it during Nieve's trial. For the jury to hear this information, the woman must appear and testify. This is unlikely because she has her own criminal charges and will not want to incriminate herself. Moreover, her reliability and willingness to cooperate under these circumstances is doubtful.

A defense attorney will exploit these weaknesses and give Nieves a good chance at acquittal. Reasonable doubt.

Continue reading "Drug Charges In Quincy District Court May Be Hard to Prove " »

Gun charges were brought in the Roxbury Division of the Boston Municipal Court on Monday as a result of a State Trooper's search of a Cape Cod man's car. According to the Cape Cod Times the trooper stopped Roosevelt Wilkins of South Yarmouth for civil motor vehicle infractions on Tremont Street Saturday morning. When the trooper asked Mr. Wilkins for his license he allegedly said that it was in a bag in the trunk. I say "allegedly" because this is the exact location where the police found a .38 caliber revolver loaded with hollow point bullets.

As the trooper searched the trunk, Wilkins ran away only to be apprehended by nearby Boston Police officers. By running, Wilkins may have eliminated a possible line of defense -- that he did not know that the weapon was in the trunk. After all, flight may be used at trial to show what is called "consciousness of guilt." However, if the gun was actually in a bag that also contained his driver's license, he did not have this defense anyway.

So the case may come down to a motion to suppress the results of the search. I would bet that Mr. Wilkins will claim that he did not direct the trooper to the bag. Such a claim would make sense. If Wilkins had a valid driver's license, but it was not in his possession, he could have just said so and as a result simply received an additional civil charge. Why in the world would he tell the trooper that his license was in a bag where he was keeping a gun? Moreover, why would Wilkins point the trooper in the direction of the trunk at all?

Wilkins should challenge the search with a motion to suppress. He is entitled to a hearing where his attorney may cross examine police witnesses. He may also testify on his own behalf. If he is able to convince one of the excellent judges of the Roxbury Division that he did not consent to the trooper's search of the bag, the case could very well be dismissed. If not, he is looking at a mandatory minimum jail term.

The stakes are high, hence Wilkins is in need of an experienced criminal defense attorney to help him out of this jam. The most important step will be the motion to suppress.

A few other details.

First, the article quotes the police as having said that Roosevelt "lacked the permit to possess that kind of ammunition." I believe that someone misquoted the police, because they know that there is no special permit required to possess hollow points. A license to carry a firearm would cover that.

Second, the article quotes the Roxbury Division's clerk as saying that Wilkins was charged with unlicensed carrying of a firearm, unlicensed possession of ammunition, and a "third firearm charge." It is a safe bet that the third charge is "carrying a loaded firearm." This charge -- Chapter 269, section 10(n) requires an additional sentence beyond that required for carrying the gun itself.

Lastly, the article says that Wilkins received pre-trial probation for assault and battery in 2004. To some readers, this looks bad for Wilkins. But, it actually means that Wilkins does not have much of a record at all. That charge was a misdemeanor, it is over 8 years old, and he was not even convicted.

Continue reading "Gun Charge Brought After Curious Search Circumstances " »

The Norwood Police received a call from TJ Max last week after store employees saw two people removing security tags from merchandize. According to the Transcript and Bulletin, when officers arrived at he store the suspects were still inside. The man, Ergin Abaz, had a shopping bag containing merchandise. The woman, Christin Quattrucci had some goods in her pocketbook. The police arrested both of them for shoplifting. The article states that the police also found pill bottles and a doctor's prescription pad in Quattrucci's possession.

The police then searched their car. They found a "tote bag" that allegedly belonged to Abaz, and they searched that too. Inside they found "drugs and doctor's prescription pad." The doctor's name on the pad matched the name on Ms. Quattrucci's bottles.

Mr. Abaz and Ms. Quattrucci were arraigned in the Dedham District Court on Monday. These are the charges:

Abaz. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class B Drug with Intent to Distribute, Possession of a Class B Drug, and Possession of Class C Drug with Intent to Distribute.

Quattrucci. Shoplifting, Conspiracy to Violate the Drug Laws, Receiving Stolen Property, Possession of a Class E Drug, and Possession of Marijuana.

These are some observations and areas of concern from a defense perspective:

Why were the police searching the car? Does a shoplifting arrest give the police probable cause to search the car for evidence of the crime? Not likely. I suspect that the police explanation will be as follows: The two were arrested and would not be able to drive away. The car needed to be towed. It is police policy to do an "inventory search" to secure any valuable contents. But, who is to say that the car needed to be towed? Isn't it possible that one or both would bail out of the police station? After all, at that point they were just charged with shoplifting. The police station at 137 Nahatan Street is practically right across the street from TJ Max at 146 Nahatan. If they made bail they could walk over and drive away. Hence, no need for a tow, and no need for an inventory search.

Even if the call for a tow were justified, defense counsel will surely seek information to determine whether an inventory actually took place. If so, the police would have filled out an inventory form with a list of the items found. The absence of such a form may indicate that the search was not an inventory, but a search for evidence. Without probable cause or some other justification such a search would be a constitutional violation.

A motion to suppress will expose an invalid search, suppress the items found, and result in dismissal of the charges related to the search.

Where is the evidence of a conspiracy to violate the drug laws? A conspiracy conviction would require proof that they made an agreement to do something illegal. The article seems to imply that Abaz and Quattrucci were writing their own prescriptions. However, there does not appear to be any proof of that. Moreover, there does not appear to be any proof that they had any agreement to do it. Being in each others' company with the drugs and prescriptions is not enough to prove an agreement.

In any event, there is very little chance that a conspiracy trial will take place in the Dedham District Court based upon these allegations. Procedural rules do not allow for a conspiracy trial to take place at the same time as trial on the other charges unless defendants agree. The prosecution generally does not want two trials when they may get what they want from one.

Finally, why has Abaz been charged with having an intent to distribute drugs at all? A large volume of drugs may support this, but there is nothing in the article about volume. Nor are there any other indicators such as drug sale records, packaging materials, or large amounts of money. These drugs could just as easily have been for Abaz's personal use.

Continue reading "Dedham District Court Arraigns Two on Drug Charges After Norwood Police Search Car" »

The Dedham District Court will hear charges against Lillian Vespa-Malkin as a result her collision into the rear of a Massachusetts State Police cruiser on Thursday night. The initial report in the Needham Patch indicated: "[t]here is no word on whether the driver will be charged." By 11:30 a.m. the Dedham Patch's update said that she had been arrested and charged with OUI, Operating to Endanger, and a civil marked lanes violation. According to the the Dedham Transcript Ms. Vespa-Malkin was arraigned in the Dedham District Court yesterday.

As for the factual allegations, the articles say that The trooper was working a highway construction detail when Ms. Vespa-Malkin drove her SUV into the driver side rear quarter of the cruiser and caused severe damage to the cruiser. Of course Ms. Vespa-Malkin's vehicle must have sustained heavy damage too. The trooper was treated at the hospital with neck and back injuries and released. The articles do not reveal whether Ms. Vespa-Malkin suffered any injuries, but at a minimum, she must have been severely shaken.

Responding troopers surely investigated and wrote reports that outline the bases for the charges against Ms. Vespa-Malkin. The news reports, however, contain no information on this topic. Some things, however are very clear. 1) Both the trooper and Ms. Vespa-Malkin are lucky that the injuries were not even more serious. 2) These incidents happen far too often. 3) Ms. Vespa-Malkin is in a lot of trouble and needs experienced legal assistance.

Here are some things that will surely be explored. Were there any field sobriety tests? What is the value of such tests for someone who was seriously shaken up from a car crash? Was there a breath test? Was Ms.Vespa-Malkin taken to the hospital? Was there blood drawn and tested for alcohol? Did she make incriminating statements regarding drinking? Does she have witnesses that could help her prove that she was not impaired? Was there any alcohol containers in her vehicle? Did any other vehicles that had been following her stop? What did they see? Were there any construction workers present? Did they see anything? Did the trooper have his flashing blues on at the time of the accident. Was his vehicle in the breakdown lane?

Most importantly, was this just an accident or was it a crime? Perhaps she took her eyes of the road for just an instant. At 60 mph you travel 1/8 of a mile in just 7.5 seconds. Perhaps there is some other reasonable explanation. I expect that someone smelled alcohol. If there had not been such an odor, would there be charges? Probably. If a trooper's vehicle gets hit, the other driver is going to be charged with something. The odor of alcohol will clinch the OUI charge, but proof at trial is another thing. It is entirely possible (again, I have not seen the reports at this point) that alcohol had nothing to do with it, but with all the press involved in these re-occurring events, Ms. Vespa-Malkin has a significant legal challenge on her hands.

Continue reading "OUI Charge in Dedham District Court After Collision with State Trooper" »

Two men will be prosecuted on drug charges in the West Roxbury Division of the Boston Municipal Court as a result of an automobile stop last week. According to the West Roxbury Patch undercover Boston Police Officers saw Robert Clarke using his cell phone outside the Washington Street Burger King around 8:15 p.m. The officers apparently knew Clarke from previous drug-related arrests. Eventually, Michael Dixon drove up and Clarke got into his car.

The pair headed West on Washington Street towards Dedham and the police had trouble keeping up with the speeding car. The police allege that the car stopped at the Grove Street red light and the men leaned towards each other. The light changed and the car did not move. The undercover officers allege that they watched the men and eventually sounded their horn. By that time, however, the light had changed back to red, and Dixon drove though the intersection anyway.

The police pulled Dixon over, ostensibly for speeding and running the red light. According to the Patch, they ordered the men out of the car, pat frisked them and searched the car. The article says that the police recovered eight pills in the car and some pills, a pill bottle, and $280.00 "in one of the suspect's pockets."

Clarke was charged with possession of class B and C drugs. Dixon was charged with distribution and possession with intent to distribute class B and C drugs.

ISSUES:

Just because a person has a drug history does not mean that the police may stop and search them at any time. Here, there was a little more than just that, but was there enough? A man (with or without a drug history) on his phone outside a restaurant getting picked up for a ride is not enough to stop and search. So the police followed to see if anything was going on.

The legal questions will be: 1. Did they see enough to warrant the stop of the car? 2. Did they see enough to warrant the order for them to get out of the car? Did they see enough to search them and search the car?

Obviously, if the driver committed the motor vehicle offenses, the police were justified in stopping the car. As with many allegations of civil motor vehicle violations, the driver may not agree that he was speeding and may not agree that the light was red when he went through the intersection. If the driver contests these allegations and prevails, then the stop would be unjustified and the drugs suppressed. In my experience, however, this is a long shot.

The other questions are closer calls. A valid stop, without more, does not give the police grounds to order people to get out of their vehicle. A ticket should be issued and the occupants should be allowed to go on their way. So what more did the police have? The men were allegedly leaning towards each other at the light. This could have been a drug deal, or it could have been any other innocent behavior. The men will need experienced defense counsel to demonstrate to the judge at a Motion to Suppress, that this does not justify the exit order.

"Pat downs," are usually justified as being necessary for the officers' safety. They are performed to determine if a person has a weapon. Here there did not appear to be any reason for the men to be out of the car, nor did there appear to be any reason for the officers to be afraid that they may have weapons.

Why were the police searching the car? There is a big difference between a police suspicion and probable cause to search. Obviously the police suspected Clarke because of his history, and they will say that using a cell phone to contact a dealer is a common practice. They will also say that the men leaning in together over the console
looked like a drug deal. All this adds up to a suspicion. These observations,clearly, could be innocent behavior that do not add up to probable cause. Zero plus zero equals zero. Should every person that uses a cell phone for a ride who gets in a car and leans towards the driver at a red light, be ordered out of the car and searched? Should every person that provides the ride in these circumstances, have his car searched?

These are just the search and seizure issues. What about the issues of drug dealing? Where is the evidence that Dixon sold drugs? Where is the evidence Dixon possessed drugs with the intent to distribute them? Having eight pills and $280 may not be enough.

In any event, this case is not as open and shut as it may first appear, when scrutinized with an eye towards defending the accused men.

Continue reading "Search and Seizure Issues in West Roxbury Auto Stop and Drug Arrests" »

The Walpole Police were called to the Main Street Shopping Center last Tuesday on a report of a melee outside of Supreme Pizza. According to the Walpole Times, Chris and Yvonnem Antonopoulos parked outside the pizza place and made insulting gestures through the glass from the sidewalk outside. The target of their gesticulations appears to have been the shop's owner. Their motive appears to be revenge. Apparently, the owner had previously given them a "letter of disinvite," banning them from the restaurant.

The Times does not report the owner's reasons for banning the couple from his establishment, but proprietors may forbid anyone they wish to forbid from their private property. A "letter of disinvite" is simply written evidence that property owners oppose another's presence and have made their wishes known to the target of their opposition. This is an essential element of the criminal charge of trespass.

It appears that Mr. and Mrs. Antonopoulos knew this and were abiding by the letter by staying on the sidewalk. Oddly enough, while they were avoiding the possibility of a misdemeanor trespass charge, they were each squeezing a roll of quarters in their fists for defense in a fight against the owner should he come outside. And come outside he did.

One may wonder why he did not simply call the police. But, the taunts had their desired effect and the pizza man came out and engaged Mr. Antonopoulos in combat. The two went to the pavement followed by Mrs. Antonopoulos who allegedly bit the victim's leg. To make matters worse for the husband and wife team, a 71-year-old man came out to attempt to break up the rumble and Mrs. Antonopoulos allegedly attacked him for his efforts.

The couple drove away leaving the "battered" victims behind. They drove towards the center of town and and were apprehended adjacent to the police station. Since there was no investigation of Operating Under the Influence, we may rule out alcohol as a factor in the couple's decision making.

To be fair, it would be very interesting to know why the shop owner banned them. Was it justified or not? Did they have good reasons to be upset? In addition, the pizza man and his helper apparently agreed to do battle with them, but did not get charged. The article says that the police determined from witness accounts that the Antonopouloses were the instigators. But they never attacked. Its like saying: "he started it by calling me names."

As it stands the couple must defend themselves in the Wrentham District Court against charges of Assault and Battery, Assault and Battery with a Dangerous Weapon, Assault and Battery upon a Person older than 60 years, Disorderly Conduct, and Disturbing the Peace.

I'm not too sure if holding a roll of quarters gives you more punching power, but the Assault and Battery with a Dangerous Weapon charge under these circumstances raises an interesting question. Since this charge requires proof that the accused battered another with a dangerous weapon, it requires proof that the weapon actually touched the victim. If the Antonopouloses had their fingers wrapped around the rolls of quarters and those weapons never actually made contact with the victims, can the charge be sustained? This is an important issue because this charge is a felony.

It should also be noted that the charge of Assault and Battery upon a person over the age of 60 years is also a felony with a possible state prison sentence of 3 years. I doubt very much if the couple in this case will be facing incarceration, but they surely would be well advised to seek experienced criminal defense counsel.

Continue reading "Husband and Wife Charged with Assault and Battery with Dangerous Weapons (Rolls of Quarters)" »

Dedham District Court issued a Criminal Complaint for Motor Vehicle and Drug Possession charges against Newton-Wellesley Hospital E.R. doctor, Kristin Howard, on Tuesday as a result of a car crash Friday morning that was captured on video.

That video recording from a traffic light camera shows her car coming out of a parking lot and crashing into another car on State Street in Wellesley. This video has made national and international news. Commentator, George Stephanopoulos described the video as "heart stopping".

This exposure is sure to have an effect on the case. In fact, to some extent, it already has -- at arraignment,an experienced and well respected prosecutor asked for bail in the amount of $10,000.00. When one considers that the purpose of a cash bail is to ensure that an accused will return to court and not run away, the incongruity of this request becomes apparent. Was there really a chance that a well know physician would throw everything away and flee because of an OUI charge in the District Court? Since the Wellesley Police arrested her after the Friday morning accident, she must have been released from the Wellesley Police Station and must have come to court of her own volition. At the station a magistrate likely reviewed the situation and made the correct assumption that she could be trusted to arrive in court on Tuesday. After arraignment and bail arguments the Dedham District Court judge agreed and released her on her own recognizance to return again in January.

What about the charges? Boston.com has the most detailed news story. According to their report Doctor Howard was charged with Operating Under the Influence of Drugs and Alcohol, Operating to Endanger, Leaving the Scene of an Accident Causing Property Damage, and illegal Possession of Prescription Pills. The article describes the doctor driving in a parking lot, hitting a truck, backing up into a fence twice and then accelerating into the street and hitting a car stopped at the traffic light.

The police claimed to have smelled alcohol on her breath, hence the OUI Alcohol charge. They found prescription drugs in the car, hence the OUI Drugs charge and the drug possession charge. Striking the fence and the truck followed by accelerating into the street allegedly supports the charges of Leaving the Scene charges.

But there is no mention of an alcohol breath test, and only a single reference to a field sobriety test. Would it be reasonable to expect an operator to perform a road-side balancing type test after such a crash? No matter how "heart stopping" a video is, it does not prove everything.

There may or may not have been damage to the fence or the truck. If she tapped them and did not damage them, she may not be convicted of leaving the scene of property damage. This will be explored by defense counsel. Moreover, the prosecution will require witnesses to prove that she stuck anything. It is not on the video.

As for the prescription drugs, they may have been in her car, but were they in her system? Was there a blood test? Even if the drugs were in her system, did they cause her to drive the way she did? The prosecutor said that she wrote the prescriptions to herself, and that "raises some flags." Self prescribing is not actually a crime, but it invalidates the prescription and makes possession of the drugs illegal.

At least one article quoted Doctor Howard as telling the police that the car had a mechanical malfunction. The police also claimed that she initially said she was going to work, and then said she was going home from work.

One poster on the ABCnews.com site asked this question: "Why do people plead NOT guilty when they are CAUGHT both on video CRASHING into another vehicle, they found drugs that had been prescribed to HER by HER AND she initially LIED about where she was going[?]" This illustrates the prejudicial effect a video may have on a case. The video appears to be damning, but it does not prove all the elements of all of the charges. I trust that Doctor Howard has experienced defense counsel to sort though it all.

Continue reading "Operation Under the Influence Charges Against ER Doctor Has Video Evidence" »

The Norwood Police and members of the Norfolk County Police Anti-Crime (NORPAC) task force broke down the door at 110 Pellana Road, Norwood on Wednesday and arrested four men inside. According to Boston.com, and the Norwood Patch, the police had a warrant based upon upon information that the resident, Stephen Petrosh, had been selling marijuana. They attempted to execute the warrant (search the place) by knocking first. The police said that they could see people inside that were not responding to their knocks, so they broke the door down.

When they got inside, the officers found Petrosh along with three other men: Joseph Carbone, Joseph Spaziani, and Justin Schrekenghaust. They also found LSD, Psilocybin (mushrooms), marijuana, Ritalin, Lyrica, Varenicline, weapons, ammunition, cash, scales and other drug paraphernalia.

Petrosh, Carbone, and Spaziani were each charged with possessing the drugs (except the prescription medication) with intent to distribute them as well as unlicensed possession of ammunition. Schrekenghaust was only charged with possession of LSD. Apparently, none of the alleged weapons were illegal. Petrosh also has a drug case already pending in the Concord District Court. All of them made bail and were due in the Dedham District Court for arraignment the next day.

Issues:

1. I expect that the search warrant was based upon Petrosh's alleged sales to a cooperating informant. It should be noted that unless that informant is identified, there will be no charge for that sale, and evidence of that sale will not come into evidence against Petrosh's. Nor will the evidence of his pending case be allowed into evidence. So proof of an intent to distribute must be based on the amount of drugs found (the articles do not reveal this information) and the other indicators of distribution -- usually scales, money packaging materials, notes/ledgers, etc.

2. Each man arrested stands in his own unique defensive position. Surely, each would be well advised to retain experienced defense counsel. Presence in the apartment is not sufficient to prove possession of drugs, or an intent to distribute them. The articles do not divulge the reasons that the police charged three men with possession with intent to distribute, and one with simple possession. One or more of the three men with the more serious charges may not have actually possess the drugs at all. It could be that the police lumped them all together for the Dedham District Court to sort out.

3. Although Petrosh made bail and was allowed to walk into the Dedham District Court on Thursday morning, there is a fair possibility that the prosecutors there would try to be sure he did not walk out. This is because of his pending case in Concord. The Concord District Court probably gave him a "bail warning" - explaining that that if he were arrested while awaiting trial, he could be held for up to 60 days without bail. If so, the law would allow the Dedham District Court to revoke his Concord District Court bail, and lock him up. If Petrosh spoke with counsel in advance, he would have been prepared and may have retained his liberty.

Continue reading "Dedham District Court Arraignments for Men Caught in NORPAC Drug Bust" »

Operating Under the Influence charges were brought against Alicea-Rove Velazquez early last Wednesday. According to the Hingham Journal, Hingham Officer Michael Rockoff found a car stopped in the right travel lane of Route 53 at approximately 3:22 a.m. that morning. When he approached, he saw Velazquez asleep in the driver's seat. According to the article, the transmission was in "park" and the key was in the "on" position. It does not say whether the engine was running.

Rockoff banged on the roof of the car for a couple of minutes to awaken Ms. Velazquez. The officer then noted an odor of alcohol, an inability to focus, and glassy eyes. When she got out, she was "unsteady on her feet." These are fairly standard observations involved in these arrests.

The article says that she was getting out to perform "field sobriety tests." It does not say which tests she did, or how she fared; it only says that the police determined that she was impaired. Hence, they either determined that she failed the tests, was unable to do them at all, or refused to try. It is my guess that it would not have mattered much. She was going to be arrested even if she did fairly well. The police don't take chances in these circumstances. It will be left up to the attorneys at court.

The police also determined that Ms. Velazquez had been convicted of OUI in New Hampshire in 2008. She was, therefore, charged with Second Offense OUI, .

This story shows that one does not need to be actually driving to be arrested for OUI. It has been argued that stopping and parking is the right thing to do if you determine that you should not be driving. This, however, is not a defense, nor does it always negate the "operating" element of Operating Under the Influence. At a trial, the judge will tell the jury that to satisfy the element of operation, there must be proof that the accused citizen did something (such as turning the key) that would set a vehicle in motion. For Ms. Vazquez this issue will need to be explored thoroughly.

The story also shows that out-of-state convictions may be considered first offenses. This does, however, raise challenges for the prosecution. If a person seeks trial on a Second Offense OUI, there will actually be two separate trials. In Ms. Velazquez's case, the first trial will be to determine her culpability while parked on Route 53. If she wins, that's the end. If she loses, however, there will be a second trial in which the prosecution will be required to prove beyond a reasonable doubt that she has been convicted in New Hampshire four years ago. This will require evidence from out of state.

It does not appear that Ms. Velazquez took a breath test. These articles usually tell us the results if one has been taken. Hence, she may have refused to take the test. This raises the stakes considerably with regard to her loss of license. Refusing the breath test on a second offense results in a loss of license for 3 years. If convicted, there is an additional 2-year loss of license. On top of that, once the license is returned she must have an interlock device (portable breath test) installed in her car for yet another 2 years.

If she wins her case however, she may have her full license back immediately. This should be the focus.

Obviously Ms. Velazquez and those in her position would be well advised to consult with an experience criminal defense attorney.

Continue reading "OUI Arrest of Driver Parked in Travel Lane Presents Second Offense Issues" »

Quincy Police arrested three people on Saturday as a result of their confrontation with an off-duty uniformed Quincy Police officer. Three news agencies described the incident differently. Boston.com gave the most details reporting that as off-duty officer was driving near Independence Avenue and President Avenue he saw "several people standing around, one of whom was holding a baseball bat in a confrontational manner." The officer approached and the man took his bat and left in his car.

That, however, was not the end of this story. Someone yelled that another man had a knife and the officer told that man to put his hands on his head. The man did so but "then became combative," so the officer "took him to the ground" and handcuffed him. Yet another man attempted to pick up a jacket on the ground near the officer, the officer told him to stop approaching, and then struggled to arrest him. A woman "attempted to interfere [and] when she did not back off" the officer sprayed her with pepper spray and then arrested her.

The arrests were as follows: Stephen Guest and Jessica Duggan - Disorderly Conduct and Resisting Arrest. Stephen Pellegrine - Disorderly Conduct.

If the officer saw a man threatening another person with a bat, an investigation is not only justified, it is required. But what happened next? The situation appeared to be de-fused with the departure of the bat-wielding man. Is it grounds to ask someone to put his hands on his head because someone else said he had a knife? Having a knife is not always a crime. Was the officer going to search him? Or was he actually going to put hand-cuffs on him? Perhaps the man with his hands on his head was justified in being concerned (if not combative). Did the police find a knife on that man? Apparently not.

What about the man trying to retrieve his jacket? What's wrong with that, whether or not it was near the officer? The officer could have stepped away a little, or the officer could have handed the man his jacket. In fact, by picking it up the officer could have assessed its weight to determine the possible presence of a weapon. Was a weapon found in that jacket? Apparently not.

The prosecution theory must be that the men that were arrested were, in their individual capacities, acting in a disorderly manner and one of them (Guest) resisted being arrested for that charge. Ms. Duggan may have resisted her own arrest or interfered with the arrest of one of the men. In any event, in order to prove Resisting Arrest, there must be evidence that A) a person used or threatened to use force or violence against the arresting officer or B) a person used any other means that created a risk of injury to the officer. It is difficult to tell from this article whether the actions of these three reached that level. A lone officer, however, in a group of allegedly agitated individuals will be given wide leeway with regard to his decisions as to how to resolve the situation.

It is interesting to read other accounts of the story. The Patriot Ledger wrote that three people attacked the officer from behind as he attempted to break up a fight. WHDH.com reported that the officer stopped to talk to a man and a woman engaged in an argument and "several people emerged from a nearby home possibly with baseball bats." This article was entitled "3 arrested for possibly attacking Quincy officer."

Hopefully the truth will come out in the Quincy District Court cases. Each of the arrested would be well advised to obtain experienced defense counsel.

Continue reading "Reports Vary Wildly About Incident Involving Injured Off-Duty Quincy Police Officer" »

Last Sunday afternoon Mr. Robert Tiernan was using his weed whacker along a fence between his property and his neighbor's. According to the Medford Transcript, the man next door came outside along with his wife and a friend. They were "looking at the garden that is close to the shared fence . . . and asked [Tiernan] to stop for a few minutes, but he refused." What happened next will be the subject of several cases headed for Somerville District Court.

Tiernan told the police that after he refused to pause his weed whacker, one man threw a beer bottle at him. The bottle hit him and spilled beer all over his pants. His foot then got caught in the bottom of the fence, he lost his balance and his control of the weed whacker. He said that if anyone got whacked, it was an accident. The police observed injuries to the woman's arm.

The others told the police that Tiernan got argumentative when asked to stop. They said that he not only used the tool to shoot rocks and dirt at them, but he swung it over the fence and injured the woman.

When the police arrived they found Tiernan on the ground surrounded by three men. He was covered in blood, his shirt had been ripped off, he had bruises on his torso, and he had a cut over his eye that looked like it needed stitches.

The men claimed that after Tiernan committed the Assault and Battery with the whacker, one of them did hit him with a beer bottle, and then Tiernan started to walk away. They all approached him "fearing that he was going to flee." The three men then claimed that Tiernan attacked them and that he was injured as they defended themselves.

The police only arrested Tiernan on charges of Assault and Battery with a Dangerous Weapon. They will, however, be filing Assault and Battery charges against the other men in the Somerville District Court. They seized the weed whacker as evidence.

A few questions: Why couldn't the neighbors wait until Tiernan finished his work? Couldn't they have "looked at the garden" a little later? Did Tiernan's refusal to shut off the machine justify the man's hitting him with a beer bottle? Why didn't the police arrest that man for felony Assault and Battery with a Dangerous Weapon? After all he admitted it, even though he claimed he was defending himself from the swinging garden tool. If a fence separated the parties couldn't they all have just stepped back? Why was anyone close enough Tiernan to be in range of the the dirt and pebbles that got whipped up? For that matter, why was anyone close enough to be in range of the weed whacker at all? Did the three men really need to detain Tiernan? Did they think he would flee and never be found by the police? He lived next door. And did the three men really need to defend themselves from Tiernan? Did they follow him into his own yard? How big were these three and how old?

What was really going on there? Perhaps there was some previous "bad blood" between these people? Surely the presence of beer explains some of it.

In any event, Tiernan will be facing felony Assault and Battery with a Dangerous Weapon Charges. The other three will likely have a hearing before a Clerk Magistrate to determine if Complaints will issue against them at all. If cooler heads don't prevail in the early going, this could be a long feud, in court and out.

They would all benefit with the assistance seasoned criminal defense attorneys to see to their individual best interests.

Continue reading "Assault and Battery with a Dangerous Weapon (Weed Whacker) in Neighborhood Dispute Results in Arrest" »