Never Take an Arrest for Granted

In Commonwealth v. Daigle (Massachusetts Appeals Court No. 19-P-1215, January 25, 2021), an officer stopped the defendant's car after the defendant failed to make a complete stop at a stop sign. Upon encountering the defendant the officer claimed to have detected an odor of alcohol and claimed to have  observed the defendant with  glassy eyes and slurred speech (the common trilogy). The officer asked the defendant to perform so-called field sobriety tests. The defendant advised the officer that she had had two prior knee surgeries (and at trial produced medical records documenting three knee surgeries).

The officer contended that--in attempting to walk a straight line heel to toe--the defendant permitted up to six inches between heel and toe and occasionally strayed from the straight line by one to two inches. The officer then asked the defendant to remove her high-heeled boot(s) and perform a one-leg stand--which the officer concluded the defendant was unable to perform (on the side of the road in bare feet in the cold).

The defendant was placed in handcuffs and--according to the defendant--she began to suffer a panic attack.

At the police station the defendant agreed to submit to a breath test but--perhaps due to the panic attack--was unable to deliver a sufficient breath sample. As the machine failed to read the samples she become more panicked and ultimately was unable to provide a sample sufficient to obtain a breath test result. She repeatedly asked to perform an additional test but the officer refused her requests.

At trial the Commonwealth offered the above evidence--and argued that the inadequate breath sample was an intentional attempt to conceal her inebriation and her agitation at being refused an additional opportunity to "take" the test was further evidence of inebriation. The Commonwealth also noted that the defendant's moon roof was open on a cold evening--evidence the Commonwealth contended was still further proof of inebriation.

For her part the defendant contended that the breath test machine the police used reported an unusually high number of refusals--suggesting that the issue was with the machine and not with the defendant.

In the end the evidence was an equivocal heel-to-toe test followed by difficulty standing on one bare foot in the cold on the side of the road--all by one with a questionable lower leg. No breath test was presented. This was the evidence. The Commonwealth contended that the inadequate breath sample was the defendant's effort to evade detection--yet the Commonwealth may have been aware that the particular machine reported an unreasonably high number of refusals (calling its reliability into question) and the defendant requested an opportunity to provide an additional sample or samples. Then there was the open moon roof . . . The jury convicted the defendant.

The moral of the story is the Commonwealth--even in the absence of compelling evidence of intoxication--will throw everything at a defendant--even if the evidence is not necessarily reliable (breath test refusal) or reasonable (open moon roof).

Never take an arrest for granted.

An All Too Troubling, and Too Common, Occurrence

In Commonwealth v. Lopez (Massachusetts Supreme Judicial Court No.12-525, March 3, 2020), the defendant, Jean Carlos Lopez, was convicted--by a jury--of murder in the first degree, having committed murder by extreme atrocity or cruelty.

The facts of the case are troubling though a detailed description of the facts is not necessary to this discussion.

At the trial, after the Commonwealth finished presenting its evidence, the defendant asked the judge to find him not guilty, contending that the Commonwealth’s evidence was incapable of proving beyond a reasonable doubt that the defendant had committed murder (the jury thus incapable of finding him guilty). The judge denied the defendant’s request and proceeded to instruct the jury on the law that applied to the case, including what was necessary to prove murder and that the defendant was to be found guilty only if the jury, unanimously, were convinced beyond a reasonable doubt that the defendant had committed murder.

On appeal the defendant renewed his claim that the evidence was incapable of proving guilt beyond a reasonable doubt. 

The Supreme Judicial Court noted that its function was to “determine whether that evidence [was] sufficient to satisfy a rational trier of fact that [the defendant committed] the crime charged . . . beyond a reasonable doubt.”

In reviewing the evidence against the defendant, the court concluded that the evidence was insufficient to place the defendant at the scene of the murder, the jury perhaps persuaded by evidence of the defendant’s motive to harm the victim and his association with persons who were at the scene of the murder.

The trouble with this case is that the jury were instructed on what was required to establish murder and that before finding the defendant guilty of murder the jury must conclude, unanimously, not just that evidence of murder was presented but that the evidence of murder was convincing beyond a reasonable doubt. Despite the fact that the evidence was insufficient to prove murder, the jury found both that evidence sufficient to prove murder was presented and that that evidence was convincing beyond a reasonable doubt.

It is not an uncommon occurrence for a Massachusetts appeals court to conclude that a jury convicted a defendant when the evidence was insufficient--in each case the jury incorrectly evaluating the facts and|or applying the law. Recent cases where a jury convicted a defendant on insufficient evidence are:

Commonwealth v. Haltiwanger (Massachusetts Appeals Court, No. 20-P-517, May 11, 2021)
Commonwealth v. Condon (Massachusetts Appeals Court, No. 19-P-722, December 18, 2020)
Commonwealth v. Rijo (Massachusetts Appeals Court, NO. 19-P-1385, December 2, 2020)
Commonwealth v. Dunphe (Supreme Judicial Court No. SJC-12533, October 20, 2020)

Commonwealth v. Letendre (Massachusetts Appeals Court, No. 18-P-1445, July 10, 2020)
Commonwealth v. Klapman, 96 Mass. App. Ct. 1103 (2019)
Commonwealth v. Grayson, 96 Mass. App. Ct. 748 (2019)
Commonwealth v. Randall, 96 Mass. App. Ct. 1103 (2019)

Commonwealth v. Cueva, 94 Mass. App. Ct. 780 (2019)

In all of these cases a defendant was convicted despite the fact that the government failed to prove the defendant's guilt. While the convictions were set aside on appeal, it is conceivable, if not likely, that these defendant's experienced the consequences of the conviction prior to the correction of the conviction, perhaps incarceration, loss of driving privileges, revocation of a firearms license, loss of job, etc. Many may have incurred the legal expense of pursuing an appeal and all suffered the stress of a wrongful conviction. Some wrongful convictions may not have been appealed at all.

A jury's obvious difficulty with these basic concepts places a defendant in a difficult position: seemingly the jury needs impassioned commentary on the concepts of proof of a crime and proof beyond a reasonable doubt, but emphasizing the government's burden of proof to some extent conveys the notion that the defendant "did it" but the government can't prove it. 

These cases demonstrate the need for experienced trial counsel to address these difficult and sensitive matters.

The Police "Community Caretaking" Function

In Commonwealth v. Sargsyan (Massachusetts Appeals Court No. 19-P-1707, January 27, 2021), the Newton Police Department received a report of a parked motor vehicle running “for quite some time.” An officer was dispatched to the scene, ostensibly to check on the wellbeing of the occupant, given that at the time it was cold and dark. When the officer arrived, the car's engine was running and its headlights were on. The office walked up to the car and saw the defendant, alone in the car and apparently asleep in the driver's seat.

The officer knocked on the window “many times” to wake the defendant. After one or two minutes, the defendant “put up his hand and waved [the officer] away.” The officer then knocked on the door again and asked the defendant to lower the window.

After the defendant lowered the window the officer asked the defendant for his license to verify who he was and to “make sure the car was valid in his name.” According to the officer the defendant was slow to get his license and attempted to give credit cards to the officer. The defendant seemed very confused and his speech was slurred and slow. The officer asked the defendant where he was, where he was going, and where he was coming from. The defendant was unable to answer the questions; any statements the defendant did provide were not appropriate to the questions. The defendant's eyes were bloodshot, but the officer did not smell alcohol on the defendant.

The defendant successfully provided his license to the officer. The officer then asked the defendant for his registration. When the defendant bent over to get his registration from the glove compartment, the officer noticed the handle of a knife tucked inside the waistband of the defendant's jeans. The officer, for “officer safety,” then asked the defendant to step out of the car. After the defendant got out of the car, the officer asked him if he had weapons on him; the defendant responded, “No”

"For safety reasons" the officer placed the defendant in handcuffs and conducted a patfrisk, which yielded a knife. Earlier, while the defendant was getting out of the car, the officer saw a syringe on the seat underneath where the defendant had been sitting and the corner of a baggie containing a brown powdery substance in the car's center console that the officer knew from his training suggested was “drugs.” After the officer saw the baggie, the defendant was placed under arrest.

The defendant challenged the encounter and the Commonwealth responded that the encounter was appropriate under the police “community caretaking function.”

The Appeals Court explained that local police officers are charged with community caretaking functions “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” When performing this function, an officer may “stop individuals and inquire about their wellbeing, even if there are no grounds to suspect . . . criminal activity.” The function applies to police activities involving motor vehicles “in which there are objective facts indicating that a person may be in need of medical assistance or some other circumstance exists apart from the investigation of criminal activity that supports police intervention to protect an individual or the public.”

The Appeals Court concluded that the police activity somehow was in inquiry into wellbeing-- as opposed to an impermissible and random investigation into possible criminal activity.

The Appeals Court reasoned, “the defendant was found alone, on a cold, dark January evening, and he appeared to be sleeping while seated in the driver's seat of a car that was running. It took one or two minutes of the officer tapping on the window and then knocking harder on the door before he got the defendant's attention.”

The defendant was asleep and required some time to arouse. Even if these circumstances warranted further inquiry into the defendant's wellbeing, asking for a license to “make sure the car was valid in his name” is not in inquiry into person's wellbeing. The defendant produced his license. The officer then asked for the car registration--something entirely divorced from the defendant's wellbeing. It was only in response to this request that the officer was able to expand his view into the vehicle.

Because the officer's inquiry was unrelated to the defendant's wellbeing, the only reasonable conclusion was that the officer was suspicious of criminal activity and pursued the matter until his hunch was either confirmed or dispelled. Here, an investigation took place in a private space legally occupied by a defendant based upon the offer's conjecture--conjecture ordinarily recognized as insufficient to subject a citizen to search and seizure.  

Whatever might have been the appropriate outcome in this case, the court should be able to apply the facts of a case comfortably to the law. Here, because the officer was not inquiring into the defendant's wellbeing, the officer was not engaged in community caretaking and the reader is left with the impression that bounds on police activity are in reality illusory.

Proof Beyond a Reasonable Doubt

In Commonwealth v. Whitson, 97 Mass. App. Ct. 798 (2020), the defendant contended that the trial judge's failure to read to the jury the following required instruction entitled the defendant to a new trial: "When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs--based solely on the evidence that has been put before you in this case."

Nevertheless, the Appeals Court concluded that failure to provide the required jury instruction was without consequence, relying on the judge's instruction that the jury "must have in their 'minds an abiding conviction to a moral certainty that the charge is true' in order to convict." 

Without a definition of moral certainty, however, how can the court be confident that each juror applied the "highest degree of certainty possible in matters relating to human affairs"? It can't and the system denied the defendant a fair trial.

The court placed some emphasis on the fact that the defendant's trial counsel made no objection to the jury instruction. Considering instructions for omissions, however, would require that counsel have all the instructions the judge intends to give in writing--to review as the judge reads the instructions. This, however, is not how jury instructions are address at trial.

As between the defense attorney--who failed in an exercise of mental gymnastics--and the judge--who failed to perform an express requirement of his or her role, the consequence of error should be borne by the court (by awarding the defendant a new trial) and not the defendant.

UPDATE: May 27, 2021: In Commonwealth v. Gonsalves (Massachusetts Appeals Court No. 19-P-1167, May 27, 2021), the Appeals Court noted:

Although the judge instructed the jury that they must be convinced of the defendant's guilt to a moral certainty, he omitted the language mandated by Commonwealth v. Russell, 470 Mass. 464, 477 (2015), defining moral certainty as “the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case.” The defendant contends that this created a substantial risk of a miscarriage of justice. As he acknowledged at oral argument, however, the judge’s instruction was identical to the one considered in Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 799-803 (2020), where we found no substantial risk of a miscarriage of justice. We decline the defendant's invitation to overrule Whitson.

So much for “mandated” procedures intended to satisfy constitutional rights. (In Re Winship, 397 U. S. 358, 374 (1970)).

The Right to Counsel

Most of us are more or less familiar with so-called Miranda rights. Miranda rights derive from the United States Supreme Court case of Miranda v. Arizona, 384 U.S. 436, 479 (1966). In Miranda the United States Supreme Court stated: "[A suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says may be used against him in a court of law, that he has the right to presence of any attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

The Miranda court reasoned that the "warnings" are required because rights are meaningless if those entitled to the rights are unaware of the rights.

In Commonwealth v. Lajoie (Massachusetts Appeals Court No. 18-P49, March 15, 2019), the defendant was taken into custody and advised:

You have the right to remain silent.

Anything you say can be used against you at trial.

If you cannot afford an attorney, one will be appointed to you by the Commonwealth at no expense and prior to any questioning.

If you decide to waive your Fifth Amendment rights pursuant to Miranda, you may stop answering questions at any time if you desire.

Lajoie made statements that were used against him--at a trial accusing him of an event alleged to have occurred fifteen years earlier--and was convicted.

Lajoie appealed his conviction to the Massachusetts Appeals Court, contending that he was not advised that he was entitled "to presence of an attorney." The Massachusetts Appeals Court concluded that the “warning” was sufficient and the statements properly used at trial.

Was Lajoie made aware that he was entitled to an attorney then and there--before any questioning took place? How hard would it have been to tell Mr. Lajoie, “You are entitled to presence of an attorney before you answer any questions I ask you today. Do you desire an attorney today?” Wouldn't this question have made it less likely that Mr. Lajoie may not have fully understood the rights afforded to him at that moment?

The proper outcome is this case would have been to order a new trial without using the statements. If a conviction results, no concern exists that Mr. Lajoie was deprived of constitutional rights. If no conviction results, that outcome avoids concern that it was necessary to deny a defendant his rights to obtain the conviction--a very troubling circumstance. Essentially, if any reasonable doubt exists as to whether a suspect's constitutional rights were compromised, that doubt must be resolved in favor of the suspect. This point would seem to be beyond debate.

Commonwealth v. Lajoie (Massachusetts Appeals Court No. 18-P49, March 15, 2019)