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Charges Need to be Sorted Out After Six Arrested in Van Containing Ammo/Knuckles

February 14, 2014

brass knucks.jpgCrimes involving "constructive possession," while difficult to prove, are easily charged when one is in the vicinity of something illegal. Guilty or not, you may be arrested and brought to court to defend yourself. Six young men riding in a mini van in Worcester last week will learn this soon in Worcester District Court.

According to Mass Live, a Massachusetts State Police trooper stopped a mini van for civil violations in a section of Worcester known for criminal activity on Saturday morning. The driver of the van, Jorge Luis Deya, did not immediately stop after the trooper activated his lights. In addition, the trooper claims to have seen the passengers "frantically moving" when the van did come to a stop. The trooper called for backup from the Worcester Police Department, approached the driver, and learned that Deya did not have a valid driver's license. The police ordered everyone to get out of the van and then they searched it. Inside, they found brass knuckles, 82 rounds of low caliber ammunition, and a bottle of wine.

Defense counsel will surely explore whether the exit order was a violation of each individual's constitutional right to be free from unreasonable searches and seizures. If one of the passengers had a valid driver's license why wouldn't that individual be allowed to drive away without the exit order and search? Would the events preceding the stop justify the failure to take this course? This must be analyzed.

Of the six occupants, two were 20 years old, three were 18, and one was 17. All, therefore, were adults for purposes of criminal court. None, however, had a license or firearms identification card which would allow him to have the ammunition or brass knuckles and none were old enough to possess wine. And this is not kids stuff. Possession of brass knuckles is a felony punishable by up to five years in state prison. Whether such a sentence is likely or not, a felony conviction itself has far reaching negative consequences. Especially for the futures of young people.

The article does not say where in the van the items were found. At some point this information will be relevant when a judge or jury decides individual culpability. The police, however, simply grouped them all together. And the police probably had no choice. We may safely assume that none of the items were in the actual possession of just one of the men. If they were, then the charges would be brought solely against him.

Many who read these typical stories quickly assume that they are all guilty in one way or another. The same may be said of stories involving underage drinking parties. After all, they must have all known what was going on. The law, however, does not work that way. Each individual is entitled to have his/her case examined with an eye toward a presumption of innocence. And just being there is never enough for a possession conviction.

In order to be convicted of possessing something, the prosecution may attempt to prove actual knowing possession such as having an item in your pocket. In the alternative, they may attempt to prove constructive possession. This will likely be the theory that the prosecution will use in this case.

As such, the prosecution will be required to prove all of the following beyond a reasonable doubt against each individual. 1) The individual had knowledge of the object, 2) the individual had an ability to control the object, and 3) the individual intended to exercise control of the object.

Let's take the example of one rear seat passenger. Where is the actual proof that he knew the objects were in the car? Maybe he saw and heard the others talking about the objects, but there is no proof of that. Even if there were, and even if all of the objects were within his reach, that's not enough for criminal possession. There must be proof that he had an intention to exercise control of the objects. Where will that proof come from? Unless he admitted that to the officers, it will not be susceptible of proof.

Isn't everyone in the car entitle to be presumed to be the person who was just along for the ride with no intention of taking actual possession of the brass knuckles, ammunition, or wine? After all, what would be worse -- letting a guilty party escape punishment, or convicting an innocent one for the sake of preventing that escape? Our law prefers the former.

Even some people who find themselves in this situation have doubts about their own criminal responsibility. Contacting an experienced criminal defense attorney,early, therefore, vitally important.

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Theft of Ammunition Case May Be Full of Holes

ammo shelf.jpgThe Foxboro Police have arrested a woman by the name of Kerry Barasso and charged her with stealing ammunition from Bass Pro Shops. The articles in the Patch and the Sun Chronicle raise serious questions about her culpability and that of a second suspect.

According to Chronicle, the police believe that on January 14, Ms. Barasso and Daniel Foscaldi made purchases at the store, but also took about 300 rounds of assorted ammunition without paying for them. They claim that the couple "concealed the stolen ammunition in the bottom of a black bag with the other items on top." As a result of a State Police bulletin to be on the look out (B.O.L.O.) for the couple and the car, the Marion Police pulled them over the next day. The police towed the car and searched it. Inside they found a black bag containing the purchased items, but no ammunition. According to the Chronicle, "there was not enough evidence at the time to arrest the suspects."

The Foxboro Police conducted a further investigation and did obtain arrest warrants. They executed the arrest of Barasso on January 21 -- one week after the alleged theft. They have not located Foscaldi.

My first question is -- What did the police have when they obtained the arrest warrants that they did not have at the time of the B.OL.O.? The news articles say that a Foxboro Police Detective interviewed employees and reviewed security videos. Apparently none of the employees said that they witnessed the theft of bullets, otherwise store security would not have let the couple leave the store. This makes me wonder what the employees knew when they called the police in the first place, and how it was enough for the B.O.L.O.

So what was on the videos? The news said that the video showed Barasso or Foscaldi with a similar black bag inside the store and that another video shows them driving away in the same car. That proves nothing. If the prosecution is going to obtain a conviction, they must have more than that. If they have video of the two concealing ammunition in the bag, wouldn't that be reported? Wouldn't the Marion Police have had that information when they pulled them over the next day? I wonder if it exists.

Recap: Someone at the store was suspicious and called the police. The police arrived and did an initial investigation that warranted the B.O.L.O. but not warrant any arrests. The couple gets pulled over the next day and since they don't have ammunition, there is not enough evidence to arrest them. A detective sees one video of the couple in the store with a bag similar to the bag found at the traffic stop and another video of them going to their car and leaving. Something is missing here and it is not just the ammunition.

Perhaps a store employee assisted them in the ammunition selections by unlocking a case. The news does imply that the store knew what kind of ammunition they were looking for. But, again, if they knew this, how did they let them leave and how was there insufficient evidence at the traffic stop?

The Chronicle says that Ms. Barasso has been charged with larceny of ammunition and larceny of property worth more than $250. While the Massachusetts larceny statute does have a special provision for stealing firearms, it has no such clause for stealing ammunition. So it may come down to one count of larceny over $250 -- a felony. However, even in the unlikely event that there is enough proof for larceny, proving the value, without the items, will be very difficult. Each round would have to cost 84 cents. It is possible, but possibilities are not proof enough in a criminal case.

Other areas to be explored. Why did't the police charge Shoplifting instead of Larceny? If the value was less than $250 how could the police get felony warrants as opposed to misdemeanor summonses for clerk's hearings?

Where missing ammunition is involved, you may be sure that the police, the prosecutor, and the Wrentham District Court will be taking this very seriously. Obviously, Ms. Barasso and Mr. Foscaldi would be well advised to obtain experienced legal counsel.

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Gun Charge Brought After Curious Search Circumstances

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.

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Husband and Wife Charged with Assault and Battery with Dangerous Weapons (Rolls of Quarters)

Temp 018.JPGThe 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.

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Brandishing Licensed Firearm Results in Arrest for Assault with Dangerous Weapon

Baretta 25 2.jpgThe Stoughton District Court will hear charges of Threats and Assault with a Dangerous Weapon against Frederick Baker of Raynham because another man told the police that Baker "pulled out" a pistol during an argument at a gas station. According to the, Baker and the alleged victim were at a Mobil station in Stoughton at approximately 7:00 a.m. yestaerday when an argument started over the use of the pumps.

After their interaction, Baker drove away, but the alleged victim called the police and said that Baker pulled a small black handgun and threatened to blow his head off. The Canton Police stopped Baker on Route 138 and found him to be in possession of a .25 caliber Beretta, and a license to carry it. Baker explained that "he felt threatened." But, according to one officer, "the bottom line is the situation didn't warrant the level of force that he escalated to."

A license to carry a firearm comes with great responsibility and should inspire significant restraint. But these cases are never open and shut. If the reason for the licensed gun is personal safety, what good is it if you are not allowed to prepare for defensive use. The triviality of the argument that created the dangerous situation is irrelevant. The real question with regard to self-defense is whether, at the time the firearm was drawn, the person drawing it was in imminent fear of injury and believed he had no other recourse.

There are many other questions that need to be answered. What did the alleged victim say to Baker? Since it was an argument, we may assume that words were exchanged. Was there a threat towards Baker? Would there actually have been a physical altercation if not for the showing of the gun? Did the gun, in fact, diffuse a dangerous situation? Did the alleged victim have access to a weapon or appear to have such access? Was the alleged victim significantly larger than Baker. Was the alleged victim alone or did he have others with him?

Apparently Baker never aimed the weapon since the article twice says he just "pulled" it. To be convicted of Assault with a Dangerous Weapon in this circumstance, there must be proof beyond a reasonable doubt that Baker intended to put the victim in fear of an imminent battery and that Baker engaged in some conduct which the victim reasonably perceived as imminently threatening.

So, we know that the victim claims to have seen the gun, and that the victim probably said that he was in fear. But was the victim really in fear and if so was that fear reasonable? I suppose that one important issue in this regard is whether Baker actually said that he would blow the victim's head off. The men had been in an argument. In arguments, like fights, both sides want to win. Perhaps the victim felt as if he had lost and was determined to have the last word by bringing the police into it and saying what was necessary.

Surely Baker's defense will address these issues and more. Aside from the criminal penalties, Baker's license to carry hangs in the balance.

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Man Licensed to Carry Firearm Charged with Improper Storage After He Hides it In Playground

gun in waistband.jpgThe Boston Municipal Court arraigned a licensed gun owner yesterday on charges of improperly storing his firearm. According to the, John T. Murrett of Quincy tried to take his loaded Ruger LC9 pistol into Club Royale in downtown Boston by tucking into his pants at the small of his back. Club security found it when they frisked him at the door and told him that he could not bring it inside. Undeterred, he left and "placed his firearm in some bushes in a nearby playground." He then returned to the Royale where the motto is: "From the moment you walk in until you leave, we want your night to be the best of your life." For Murrett, however, a legal nightmare began shortly after he left. His pistol was not where he left it.

Murrett certainly exercised some bad judgment that night, not the least of which involved the things he said and did not say. It appears that instead of asking the bouncers about bringing a firearm into the club, he just let them find it. Perhaps he thought that they wouldn't. First bad move. Then he hid it in a playground of all places. Not that there are a lot of kids out during the clubbing hours, but it sure sounds bad in the paper.

Then came the things that he did say. After losing the gun, he went back to the club and asked if anyone had turned it in. First of all, what are the chances that someone who found a gun would bring it to a nearby nightclub? Then, he practically made the prosecution's case by admitting to the bouncers that he lost it. It gets worse. When the police arrived he told them that he takes the sidearm with him wherever he goes, even to a wedding he had been to earlier that day. Perhaps he should have had a nuptial exception to his constant carry rule.

Murrett then told the police that it was fully loaded with 7 rounds in the magazine and one in the chamber. That takes a little extra effort. He had to load the magazine, chamber one round, remove the magazine, and then replace the chambered round by adding one more to the magazine. All that for a wedding? To make matters worse, he also told the police that he had "a couple of alcoholic drinks." The police arrested him for Improper Firearm Storage (Chapter 140, section 131L) and Carrying a Firearm while Intoxicated (Chapter 269, section 10H).

Perhaps Murret's bad judgment regarding his statements may be explained by the panic he felt when he found out that the gun was missing. In fact, one may say he did the right thing as far as the public is concerned by immediately sounding the alarm regarding a firearm on the loose. He did not, however, do himself any favors with his self-incriminating chatter.

Even licensed carrying of a firearm in Massachusetts is fraught with peril. Not just because it is a lethal weapon, but because you can get yourself into trouble like this very easily. The sight of a gun for many people provokes thoughts of illegality. Just flashing it may bring a charge of threats or assault with a dangerous weapon. In fact, the article implies that club security called 911 when they initially found Murret's gun. Even with a valid license, there are many places that you may not carry a firearm. You may not carry a firearm into state buildings, federal buildings (including the post office) or sports stadiums, just to name a few. Stringent licensing application processes are designed to ensure that people with bad judgment do not carry firearms. Like it or not, as far as firearms are concerned, this is not Oklahoma.

So what is Murett's present legal situation? First off, it is very unlikely that he will have a license to carry a firearm again anytime soon. I assume it was issued by the Quincy Police Department, and that this incident has prompted them to revoke it. The unfortunately mentioned his place of employment in the article. So whether or not his gun was required at his job he may have some employment jeopardy.

Secondly, as the story points out, the charge of carrying while intoxicating did not appear in the court papers. I expect that the very capable clerk magistrate of the Boston Municipal court determined that probable cause did not exist with respect to that charge. That charge requires proof that he was under the influence at the time that he carried a loaded firearm. Not only did the police not say that he was under the influence, even if they had, they could not say that he was in that condition when he last carried the weapon. By the way, this charge would have a higher maximum penalty of 2 ½ years in jail compared to 1 year for improper storage.

Even though the charge of carrying a loaded firearm while under the influence was weeded out in this case, aspects of that statute are worth mentioning. Unlike driving on the public roadways, a holder of a license to carrying a firearm is not presumed to consent to a breath test. So how would the prosecution prove "under the influence?" With the usual observations of glassy eyes and unsteady feet? With field sobriety tests? Those "tests" are supposedly designed to determine one's ability to operate a motor vehicle safely, not carry a firearm. With this charge there is no standard by which to judge if someone is too drunk to carry. The short-hand definition of "under the influence" in an OUI case is having consumed enough alcohol to negatively impact one's ability to operate a motor vehicle safely. There is no such definition that I know of with regard to carrying a firearm. It is not illegal to drink and then drive unless you drink too much to be safe. Under what standard should one's ability to safely carry a firearm be judged? Would the standard be higher, or lower than that used for operating a motor vehicle? Intoxicated carrying charges only applies to individuals who are licensed to carry. Oddly enough,if you illegally carry a firearm without a license while under the influence, this statute does not apply. Perhaps the legislature reasoned that the heavy penalties involved with unlicensed carrying were sufficient. One more thing, this statute only applies if the firearm is loaded. So before you get loaded, be sure your pistol isn't.

The pending charge of improper storage will not be taken lightly, especially since the gun has gone missing. Leaving one on your bed stand is one thing, but under a bush in a Boston playground is another. Hence, I expect he has competent criminal defense counsel who will explore all avenues. There should be a full examination of the possibility of suppressing Murrett's statements to the police.

Interestingly, this statute makes it a crime to store a firearm "in any place unless such weapon is secured in a locked container or equipped with a tamper resistant lock or safety devise." Murrett's firearm actually has an internal lock. Did Murrett lock it? I say "interestingly" only because the statute is vague as to where you may leave a locked gun. Under your bed? An unlocked office drawer? Your glove compartment? On a beach towel while you take a swim? Unfortunately for Murrett, no judge or jury will likely acquit on the grounds that he locked it before he stashed it under the bush.

The statute also establishes that a conviction will be "evidence of wanton or reckless conduct in any criminal or civil proceeding if a person under the age of 18 . . . acquired access to [the] weapon . . . and such access results in the personal injury to or death of any person." Therefore, even after the nightmare of this case is over, Murrett will not be out of the woods. Until the gun is found, there is a possibility that he could be sued, or even charged with a crime as a result of another person's use of it.

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