Criminal Defense

October 17, 2018

Massachusetts Court of Appeals Partially Reverses Firearm Conviction

In a Cape Cod criminal case, the Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. If police acted illegally during the arrest or investigation of the case, it may be possible to have certain evidence excluded at trial.

Even if a defendant is convicted, a case may be reviewed on appeal. It is not unheard of for an appellate court to disagree with a trial court as to whether the evidence introduced at trial was sufficient to support the defendant’s conviction.

Facts of the Case

In a case recently reviewed by the Massachusetts Appeals Court, a criminal defendant was convicted of several crimes involving the unlawful possession of a firearm. He sought reversal of his conviction on appeal, arguing, among other things, that police had violated the Fourth Amendment by conducting an illegal search and seizure and that there was insufficient evidence to support certain aspects of his conviction.

June 25, 2018

United States Supreme Court Issues Ruling Regarding Cell Phone Location Records, Potentially Affecting Customers in Massachusetts and Across the Nation

By John C. Manoog III

If you are like millions of other Americans, you probably have a cell phone in your hand or in your pocket right now. As any Massachusetts criminal defense attorney can tell you, there is a lot of data on your cellphone that, potentially, could be used against you in court if you are accused of a crime.

What you may not know is that all of the potentially incriminating data is not on your phone itself. Wireless carriers across the country log a time-stamped record of each cell site and sector each time a cellphone connects to a cell site, thereby providing a very detailed record of a user’s whereabouts.

It is important to note that this doesn’t just happen when the user is making a phone call or sending a text message; the average smart phone taps into a wireless network at least once a minute any time the signal is on, even if the phone is not being used for calling, texting, or searching the internet at that moment.

January 17, 2018

Massachusetts Court Reviews Alleged Cross-Examination “By Innuendo” of Defendant and Others in Illegal Gun Possession Case

By John C. Manoog III

A person who has been accused of committing a crime has the right to remain silent. As any Cape Cod criminal defense attorney can tell you, exercising this right is vitally important.

This is because, as we’ve all heard on television and in the movies, “anything you say can and will be used against you in a court of law.” Far too often, individuals waive this right, and their own words are used later to convict them.

Facts of the Case

In a case recently considered by the Massachusetts Appeals Court, the defendant was arrested and charged with two counts of unlawful possession of a loaded firearm in violation of Massachusetts General Laws ch. 269, § 10(a), (n) after he was found sitting in a parking lot with a revolver and a semiautomatic pistol in the vicinity of his truck. At trial, the defendant was convicted as charged. He appealed. Continue reading

November 22, 2017

Appellate Court Affirms Dismissal of Case Filed Against Massachusetts Board of Selectmen Following Speeding Ticket

By John C. Manoog III

There’s an expression to the effect that “you can’t fight city hall.” While this statement is not always true (after all, an assertive Cape Cod criminal defense attorney may be of great assistance in defeating a particular accusation of wrongdoing), there is some truth to the sentiment that it can sometimes be a complicated endeavor to challenge the ruling of a municipal official on a relatively minor point. Those who aspire to fight the ruling of a government official, such as a clerk or magistrate who finds that one has violated the speed limit, should be mindful that, unless proper procedures are followed, the effort is likely to be in vain.

Facts of the Case

The plaintiff in a recent case was given a speeding ticket for driving in excess of the posted speed limit of 30 miles per hour in a certain town in 2011. The plaintiff contested his responsibility for the infraction (which was defined as a “civil motor vehicle infraction”) by requesting a hearing. The clerk-magistrate found the plaintiff responsible for the infraction. Although the plaintiff could have requested a de novo hearing in district court, he apparently paid the ticket and filed a separate lawsuit against the defendant board of selectmen instead, alleging that he was unlawfully cited and fined. The superior court dismissed the plaintiff’s case in its entirety.

October 31, 2017

Massachusetts’ Highest Court Grants New Trial Due to Sleeping Jurors

By John C. Manoog III

Under the Sixth Amendment to the United States Constitution, a person who has been accused of a crime has certain rights, including the right to a speedy and public trial. Depending upon the circumstances, the defendant may have the right to have his or her guilt or innocence determined by a jury at trial.

There are many procedures that must be followed during a jury trial, and any irregularity has the potential to trigger a new trial on the order of an appellate court. Of course, each case must be decided on its particular facts.

Facts of the Case

October 3, 2017

Reckless/Negligent Homicide While Operating Under the Influence Conviction Affirmed by Massachusetts Appeals Court

By John C. Manoog III

A person who is suspected of operating under the influence (OUI) of drugs or alcohol on Cape Cod will probably be given a breathalyzer test at some point following his or her detention by police. Under Massachusetts law, there is a 15-minute waiting period prior to the administration of the test.

The purpose of the waiting period is to ensure that the defendant has not brought something into his or her mouth (such as food, drink, or a regurgitated substance resulting from a burp or hiccough) that would contaminate the breath sample or compromise the accuracy of the test. When this waiting period is not strictly respected, the defendant may have an argument that the test results should be suppressed and not used as evidence against him or her at trial. However, this argument will not prevail in every Massachusetts OUI case, since the resolution of such matters is very fact-specific.

Facts of the Case

July 19, 2017

United States Supreme Court Reviews Criminal Conviction by Massachusetts State Court When Courtroom Was Closed During Voir Dire

By John C. Manoog III

Under the United States Constitution, the defendant in a criminal case has certain rights that, if violated, can potentially result in the reversal of a conviction. Among these rights are the Sixth Amendment rights to “a speedy and public trial” and “the assistance of counsel.”

A recent decision by the nation’s highest court explored whether the alleged violation of those rights in a particular Massachusetts criminal case was a basis to order a new trial.

Facts of the Case

December 12, 2016

U.S. Supreme Court Clarifies Rules Applying to Double Jeopardy Clause Cases: Bravo-Fernandez v. United States

By John C. Manoog III

For most people, the most notable component of the Fifth Amendment to the United States Constitution is the right to remain silent (“[not] compelled in any criminal case to be a witness against himself”). However, another important part of the Fifth Amendment is the so-called Double Jeopardy Clause.

Under the double jeopardy provisions of the amendment, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” While this seems like a straightforward rule, many issues have arisen over the years as to exactly how this part of the amendment is to be enforced in certain situations.

Recently, the nation’s high court revisited the provision in light of a jury’s conviction as to one offense but acquittal as to related offenses in a case involving bribery of a public official.

August 18, 2016

Massachusetts Revisits Issue of Pre-Breathalyzer Right to Counsel – Commonwealth v. Neary-French

By John C. Manoog III

Clearly, the United States Constitution guarantees the criminally accused the right to counsel. However, exactly when, and under which circumstances, that right first attaches is sometimes a point of contention.

Recently, Massachusetts’ highest court was called upon to revisit this issue as it concerned a defendant’s right to counsel regarding whether or not to submit to a breathalyzer test after being arrested for drunk driving.

In a previous case, the court had held that no such right exists, but the defendant pointed to a change in Massachusetts statutory law as a reason to change the common law as to this issue.

June 21, 2016

No Constitutional Right to “Speedy Trial” After Guilty Plea Has Been Entered – Betterman v. Montana

By John C. Manoog III

People accused of crimes in the United States are afforded certain rights under the U.S. Constitution. Included within these rights are the Fourth Amendment right to be free from unreasonable searches and seizures, the Fifth Amendment right to remain silent to avoid self-incrimination, and the Sixth Amendment right to a speedy and public trial by an impartial jury.

Recently, the nation’s highest court was asked to consider whether the rights guaranteed under the Sixth Amendment also apply to the post-conviction or sentencing phase of a criminal prosecution.