February 2012 Archives

Kidnap Charge Brought Against Man Who Would Not Stop Car to Let Girlfriend and Child Out

February 29, 2012

state police car.jpgThe South Boston Division of the Boston Municipal Court arraigned 24 year-old Kenneth Tozier Monday on a kidnapping charge and set his bail at $750.00. According to Boston.com, it all started when Tozier, his ex-girlfriend, and their child went clothes shopping for the child on Sunday afternoon. After shopping, they all got into Tozier's car and made their way to Route 93 North. During the trip, the couple got into an argument about their relationship. Apparently, the woman demanded that Tozier stop and let her out, but he refused. The woman then dialed 9-1-1 from inside the car and told the State Police dispatcher that she had been kidnapped. A trooper pulled them over near Exit 20 and eventually charged Tozier with kidnapping.

Tozier's ex told the trooper that he was driving like a maniac, reaching speeds close to 120 miles per hour. Since the trooper did not cite him for speeding, it is apparent that he was not driving anywhere near that fast at the time of the stop. This makes one wonder whether he had ever been driving that fast at all.

A kidnapping charge cannot be prosecuted in the South Boston Division of the Boston Municipal Court because the Superior Court has exclusive jurisdiction over such charges. As such, the prosecution must make a decision. Will they seek an indictment against Tozier or reduce the charge to something within the lower court's jurisdiction? I seriously doubt that the prosecution will seek an indictment against Tozier based on these facts. I don't believe that it is unusual to have a situation where people argue while driving on a highway. How much better would Tozier look if he had pulled over and left the woman and child in the breakdown lane?

If, as I suspect, the prosecution decides not to indict, what will the charge be reduced to? It does not appear that Tozier struck the woman (assault and battery) or threatened her (threats). I doubt that they would go so far as to charge him with endangering the child on the flimsy grounds that he was speeding. Tozier may be willing to accept any reduction to avoid the serious felony, but it would be interesting if he refused any reduction or amendment and forced the government to either indict or dismiss completely.

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Quincy District Court Robbery Arraignment Held Five Months After Event

February 20, 2012

gum.jpgThe Quincy District Court arraigned a Boston man last week on a charge of Armed Robbery. The alleged robbery occurred on September 24, 2011. There is no explanation for the delay in the Patch article, but it may be that it took the police some time to identify the culprit.

According to the article, 28 year-old Robert Kennedy walked into a Braintree Mobil Station, showed the clerk thirty five cents and asked if there was anything that he could buy for that amount. The clerk directed the man to Wrigley's gum. Kennedy apparently wanted more, so he demanded cash. When the clerk was not forthcoming, Kennedy allegedly reached over the counter "in an attempt" to help himself. The clerk told the police that Kennedy threatened him with a syringe, but it turned out to be a cigarette lighter.

Question 1: How did the police determine that the item was not a syringe, but a cigarette lighter? If Kennedy was just arraigned last week, he must have gotten away. Perhaps he dropped the lighter in the process, or told the police what he had been holding when the police caught up to him. If he initially got away, identification will be the live issue at trial. If he did not make any incriminating statements, all the better for him.

Question 2: How did the police determine that Kennedy was involved? When a case involves identification the defense is obviously entitled to learn the method that the police used to decide who to charge with the crime. In cases like this there is often a security video recording. Although the recordings are now digital, the quality is often poor. I have had cases in which the prosecution has handed me a disc and told me that the case is "open and shut," only to find that I cannot even recognize the person that they claimed to be my client when I played it.

In addition to video recordings the police have a lot of photographs to show to victims. The police are able to access the Registry of Motor Vehicle's license photograph data base, as well as their own data base of booking photographs. It most instances, they are able to input certain characteristics (race, age, hair length, etc.) to narrow the field. A witness would then look through hundreds of faces.

If the police have an idea as to the person involved, they may put together a photographic array. This means that they assemble about eight pictures and show them to the witness. There are certain protocols that they should follow in order to make a proper identification. For one thing, the people in the photographs should have similar characteristics. It would be unfair, for example, to include their white suspect with a group of seven black individuals. In addition, the police should not suggest that they have placed a suspect in the array. In fact, the police should tell the witness that the person may or may not be in the array.

Question 3: Did the robber take any money? If he did not take money, then it is not an Armed Robbery. One most take something from another person to be convicted of robbery. If he tried, but failed, he may have committed an Attempted Robbery.

Question 4: Did the robber actually brandish the cigarette lighter in an attempt to convince the clerk to turn over cash, or did he just have it in his hand? I suppose that a lighter could be considered intimidating in some circumstances, (See Reservoir Dogs) but would a clerk really believe that he was about to be engulfed in flames unless he handed over the cash? Hardly. So we most look to see if there was an Unarmed Robbery. This would occur if one used some physical force against a person, without a weapon, in order to get property from the person. For example a debilitating punch followed by stealing from a person's pockets would add up to Unarmed Robbery. In the case at hand, if there was no use of a weapon, and no use of physical force against the clerk, there may still have been a Larceny from a Person.

The Quincy District Court set Mr. Kennedy's bail at $5,000. Since he only had thirty-five cents at the time of the alleged robbery, it is unlikely that he has access to that kind of money. He will, most likely, ask for a review of his bail in the Norfolk Superior Court in Dedham. To do this, he simply fills out a request at the Quincy District Court. The Quincy Court will forward the request to the Norfolk Superior Court, and the "Bail Review" will be arranged.

If Kennedy were arraigned in Quincy on Friday the 17th, he will most likely be seeing a judge in the Norfolk Superior Court Tuesday. (Monday is a Court Holiday). Bails reviews are heard in Room 8 of the Superior Court at 12:30 p.m. Mr. Kennedy, however, will not be physically present. He will be watching the courtroom on a closed-circuit television screen from the jail.

Medfield Police Stop Dorchester Man's Car and Charge him with Carrying a Dangerous Weapon

February 11, 2012

Blackjack3.jpgThe Dedham District Court will hear charges against Lawrence Jackson of Dorchester as a result of a motor vehicle stop in Medfield early last Saturday morning. According to the Medfield Patch, Mr. Taylor and a female companion traveled through Dover and into Medfield at approximately 1:30 a.m. on Saturday, February 4. Apparently, the Dover Police saw them and called the Medfield Police to tell them that Jackson's car was "suspicious."

Medfield Police Officer Daniel Pellegrini spotted the car on North Street in Medfield and stopped it for "a violation related to the license plate." The Chief of the Medfield Police told the Patch that he believed that "the plate light was out." After he stopped the car, Officer Pellegrini saw an open container of alcohol inside. He also saw a knife in the glove compartment as Jackson retrieved his registration. Officer Pellegrini then asked Jackson for permission to search the car for more weapons. During the search, the police found a "blackjack." A drug sniffing dog performed another search with negative results.

The Medfield Police charged the 58 year-old Jackson with carrying a dangerous weapon, drinking alcohol in a motor vehicle, and a "number plate violation." His passenger was not charged. Let's look at this fairly simple matter from the perspective of a criminal defense attorney.

First of all, there are some questions with regard to the legality of the traffic stop. After all, when the police stop a car, they are conducting a "seizure" in a constitutional sense and the 4th Amendment prohibits unreasonable searches and seizure. If the stop of Jackson's car violated his 4th Amendment rights, then he may file a motion to suppress the blackjack and the open container. If successful, there will be no evidence to use against him, and the charges will be dismissed.

At a hearing on the motion to suppress, an experienced criminal defense attorney will ask: "What specifically did the Dover Police say was suspicious about Jackson's car?" The article did not say that Dover reported to Medfield that a car was coming with its plate light out. So what did they report? At the risk of being in some way insensitive to the parties, I am going to assume, for the sake of this discussion that Mr. Jackson is African American. If this is true, I wonder if Mr. Jackson feels that this contributed to the "suspicious" nature of his car. Mr. Jackson may feel that white person would not receive such scrutiny, and a white person driving with a license light plate bulb malfunction may not even be pulled over. If the stop was based on race, the motion will be allowed. You may be certain, however, that no officer involved will agree to that.

The police will rely on the allegedly malfunctioning plate light to justify the stop. The Dover Police, after all, may pass on information to the Medfield Police about cars traveling between the two towns without offending anyone's constitutional rights. And if a car, described as suspicious for any reason, is observed committing an actual infraction the car may stopped for that infraction. So, while it may seem a little fishy, and Mr. Jackson may feel that he was targeted inappropriately, the police will attempt to portray this as a routine traffic stop. Jackson has every right to challenge this.

There is more to it than just the stop. Even if a stop is justified, the police need additional justification to search a car. The plate light malfunction is a civil infraction. The same is true for the open container of alcohol. And having a knife in one's glove compartment is not a crime. Apparently, Jackson's license and registration were in order otherwise he would have had additional charges. As such, the police should have issued citations to Jackson for the plate light and the alcohol, and sent him on his way. That is the law.

So what was the justification for detaining the couple while the police searched the car? Well, the article says that after seeing the knife in the glove compartment, the police asked Jackson if they could search the car for weapons. The article does not say that Jackson answered "yes," but we may assume that the police will say that he did. After all, if he did not consent, then the search of the car was illegal. And if he did consent, then he waived his right to challenge its legality. This will be an issue of fact for the judge to determine in the event of a hearing on a motion to suppress.

According to the article, the drug sniffing dog was called because something that Jackson said to the police led them to believe that there may be drugs in the car. What could that be? I wonder if Jackson was really as unwise as he has been portrayed in the Patch. Was he unwise enough to be driving around with a bulb out while drinking a beer? Maybe. But, was he also unwise enough to give the police permission to search his car while knowing that it contained an illegal weapon? And unwise enough to drop hints to the police that here may be drugs in the car even though there were none?

What really happened and what may be proven in the Dedham District Court are two different things. One thing is for sure, Jackson will need an experienced criminal attorney if he expects his version of events to be established.

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Wrentham District Court Appearances Scheduled for Eight Men "Involved" in Dean College Beating

leg irons.jpgThe Franklin Police Department has brought charges against eight young men that were present during an assault upon a Dean College student on December 2, 2010. The incident took place on the college campus and all of the men were students.

A video recording of the incident shows a man, later identified as Kirk Dudley, delivering a knock-down punch to the victim followed by several more punches as the victim struggled to get back on his feet. Dudley then removed one of the victim's shoes and swung it at the victim's head before taking off the other shoe and departing with the pair. Throughout the video other men can be heard laughing and shouting. Some of them can be seen making hand signs, smiling, laughing, and possibly taunting the staggering victim.

A December 6, 2011 article at MyFoxBoston.com, stated that Dean College learned of the incident shortly after it occurred, and on the following Monday viewed the video that had been posted on line. According to the college's official statement, "[t]hat video has provided additional insight and disturbing views of what transpired." The college also said that the nine students had been expelled, and that the investigation was ongoing.

It appears that the video not only provided insight, but also provided evidence to be used against eight men that were standing by as Dudley did what he did. Today's Milford Daily News reports that the Franklin Police applied for Criminal Complaints against the eight onlookers and that they are scheduled to be arraigned in the Wrentham District Court on April 2. The article states that all eight will be charged with armed robbery and disorderly conduct.

The Milford Daily News article raises several issues. It states that the eight men will be charged with armed robbery, but states that Dudley has been charged with unarmed robbery. This is inconsistent, and it is hard to tell which one is wrong. Without some kind of weapon, there can be no armed robbery. It could, however, be said that Dudley actually committed an armed robbery because he used the first shoe as a weapon in the process of obtaining the second one.

Since the eight bystanders did not actually commit the acts necessary for robbery of any kind, the theory must be that they aided and abetted Dudley. In order for one of them to be guilty of robbery under this theory, the prosecution must prove that 1) he was present, 2) that he knew that Dudley was going to rob the victim, 3) that he shared Dudley's intent to rob the victim, and 4) that he either helped or made himself available to help if needed.

Each of the eight stands in his own position on these issues. What if one or two were just there and remained in the background without saying or doing anything? Should they be charged with robbery? Moreover, should the one or two that made hand signs or laughed loudly be in any worse position? If so, why? Video recording the commission of a crime is not a crime. Laughing at the commission of a crime is not a crime. And failing to intervene on behalf of a helpless victim is not a crime.

Furthermore, can it be proven that any of the eight shared Dudley's intent to take the shoes from the victim? The video does start with a view of the shoes, and the MyFoxBoston.com article does say that Dudley claimed that the victim had stolen the shoes from him. This may indicate that there was some kind of a plan to get the shoes, but as a matter of proof of shared intent with regard to each of the eight, it is a stretch. And what about the man behind the video recorder? Will he also be charged with robbery? Was he there to help steal shoes, or was he just using his cell phone to record a confrontation?

The video is powerful and dangerous evidence in this case. It makes the bystanders look heartless and callous to the point that one viewing the video may become enraged at their behavior. In fact, the first comment posted in response to the MyFoxBoston.com article, appears to come from a man that works on a college campus and he said that "[i]f they were at my school, I would be fired for a baseball bat 'Beat Down' on ALL OF THEM!¬!" So, each of the eight young men, no matter what their individual involvement, will have to overcome this sentiment.

On the other hand, while the college may be correct that the video is "disturbing," a juror's gut reaction to a disturbing video must be set aside and the factual evidence must be evaluated objectively to determine if it supports the crime charged. Moreover, it must be evaluated for each individual charged. After all, these eight young men all acted differently, and they are all being charged with a life felony. (As well as the misdemeanor of Disorderly Conduct).

I have not seen all of the evidence. What I have written here is based upon the news reports and the video itself. Surely, the victim gave a statement. There may be statements from one or more of the eight men as well as statements from other witnesses. In the final analysis, the video will be the most shocking and and most probative evidence. If evaluated fairly, it should actually help exonerate some or all of the eight bystanders.

All crime is bad behavior, but not all bad behavior is crime.

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