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A Melrose man recently found himself arrested and inviolation of his probation when he was caught drug dealing by Lawrence police. The Lawrence Eagle Tribune reports that Mohamed Soltani had previously been prosecuted in Boston for drug dealing and was placed on probation and ordered to wear a GPS Monitoring Bracelet on his ankle. But authorities claim he continued drug dealing and engaging in a variety of other illegal activities. Continue reading

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The Lawrence Eagle Tribune recently reported that an American Revolution memorial honoring the Methuen men who fought in the Revolutionary War was struck and damaged by a drunk driver. A Haverhill man was allegedly drunk at the time of the accident and exhibited erratic driving behavior both before and after striking the memorial with his vehicle, witnesses reported. The Tribune notes that Haverhill police arrested the driver of the car and charged him with driving under the influence of alcohol.  The Methuen police will charge him with speeding and leaving the scene of an accident after causing damage to property. Continue reading

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Massachusetts Restraining Order Attorney Kathleen M. McCarthy successfully vacates Harassment Prevention Order [258E Order] in the Massachusetts Supreme Judicial Courtt.
The plaintiff and the defendant were former roommates. The defendant moved out of the apartment to a location down the street. The plaintiff claimed that she was in fear of harassment because the defendant drove by his former apartment ]which was down the street] a number of times while she was unpacking her car turned around and drove by her house again. The Newton District Court Judge erroneously held that the plaintiff met the standard for the issuance of a Harassment Prevention Order. Attorney McCarthy appealed the decision of the District Court judge to the Massachusetts Supreme Judicial Court. Attorney McCarthy argued that the conduct of the defendant did NOT meet the threshold for the issuance of a Harassment Prevention Order. The Massachusetts Supreme Judicial Court agreed and held that there was insufficient evidence to issue the restraining order.

Another issue raised in this case was whether a 258 E Harassment Prevention Order becomes moot when the order expires during the pendency of the Appeal. Attorney McCarthy presented convincing arguments that the orders are not moot because the defendant has serious interests to protect that survive even if the order expires. For example, similar to 209A cases, the existence of an order (even if expired) can have an effect on an individual if he or she is ever in court and bail becomes an issue, it can effect employment opportunities and in some cases effect a person’s ability to attend some social activities or volunteer at school. The Supreme Judicial Court agreed with Attorney McCarthy and held that an appeal from a 258E order should not be dismissed as “moot.”

When someone is served with either a Massachusetts 209A Restraining Order or a M.G.L. Chapter 258E Restraining Order one of the first questions that he or she has is whether a lawyer should be retained. The simple answer to this question is YES. The restraining order is a “civil” order however, if a defendant is charged of violating the order he or she can find themselves in the criminal court charged with violation of a restraining order. Although this charge is a misdemeanor, there is a potential for a committed sentence and avoiding the charged in the first place by successfully arguing that the restraining order should not issue is the best defense.

In the event that a District Court Judge issues or extends either a 209A order or a 258E order a Notice Of Appeal should be filed immediately. This issuance and/or extension of the order can be appealed to the Massachusetts Appeals Court and if not successful there eventually the case can be heard by The Massachusetts Supreme Judicial Court. If a defendant wins in the higher court then the case is remanded and the order is vacated. This is a great result. It is important to realize that a Motion To Vacate The Restraining Order should be filed to ensure that the restraining order is vacated and not in any court records.

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In many Massachusetts criminal cases, particularly domestic violence cases, a witness asserts a privilege not to testify at a trial. The most common privileges that are asserted are the marital privilege and the privilege against self-incrimination. Simply stated, in most circumstances the government cannot force a spouse to testify against his or her spouse–this is referred to as the marital privilege. Also, a witness cannot be forced to testify if some of the testimony will incriminate him or her.

If the Commonwealth plans to go to trial and cannot call this witness it may try to call a witness that heard the person make the statement that incriminates the client. In this situation the trial attorney must file a motion to exclude the statement of the witness who is reiterating what a non-testifying witness stated. This is generally done as a “Motion In Limine” filed prior to trial. Depending on the court, this can be done on a date prior to the trial date or immediately before trial. One of the seminole cases in this area is Commonwealth v. Gonsalves, 445 Mass. 1 (2005).

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The Lawrence Eagle Tribune reports that a Methuen man is being sought by authorities for charges stemming from an incident that allegedly began in Lawrence, MA. According to the Tribune, the thirty year old man reportedly jumped into the minivan of an unsuspecting woman and held a gun to her stomach while threatening her family. The woman was taken to a hotel in Salem New Hampshire where she was allegedly assaulted and beaten until she lost consciousness. After regaining consciousness, the woman called the police and a search expanding over two states has begun to locate the alleged perpetrator. The woman’s stolen van was later located in Andover and she was treated at a hospital for injuries sustained during the incident. According to the Tribune warrants have issued from Salem and the suspect faces charges for kidnapping, attempted second degree murder, kidnapping, threats, violation of a protective order and unauthorized use of a motor vehicle.

Although all of the facts of this case are not known at this time, it appears that he parties may have known one another because on of the charges is violation of a protective order. Assuming that the alleged victim was the complainant on the restraining order then it appears that the pair was known to each other.

In Massachusetts there are two types of Restraining Orders that a complainant can requests. One is referred to as a M.G.L. 209A Restraining Order and the other is a M.G.L. 258E order. In order to qualify for a 209A restraining order the parties must be related, married, roommates or have been in a substantial dating relationship. In order for a judge to issue an order the complainant must demonstrate that the defendant engaged in conduct that created a situation in which he or she was in reasonable apprehension of immediate physical harm. In most circumstances the defendant is not present during the initial issuance of the order and a date (usually within two weeks) is set for another hearing. During this time span the defendant should be served with the temporary order and informed of the new date for the extension hearing. The defendant can fight the extension of the order at this time.

The M.G.L. 258E or “Harassment Prevention Order”is available for parties who are not related, dating, married or have been roommates. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.

It is important to realize that the issuance of this type of order is a civil order however, any violation of the order can result in being charged with the crime of violating a restraining order. Furthermore, although a restraining order is a civil order it can have collateral consequences such as handing over firearm (which could effect employment) and visitation or custody of minor children. If you have been served with either type of restraining order you should contact an experienced attorney immediately.

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According to The Lawrence Eagle Tribune three Methuen Massachusetts people have been charged with trafficking more than thre-hundered grams of heroin, possession of a class A substance with intent to distribute and related gun offenses. The Tribune indicates that police responded to an apartment on Railroad Street in Methuen, MA due to a complaint of alleged domestic disturbance. Apparently, after the police entered the apartment they heard a “noise in the bedroom” and an occupant ran outside who was eventually apprehended and faces additionally charges of disorderly conduct and resisting arrest.

However, the authorities who stayed behind claim to have seen “in plain view” bags of heroin. Based on this observation the police applied for and apparently was granted a search warrant. Upon searching the apartment it appears that a substance believed to be heroin and two rifles were confiscated. The Tribune reports that in addition to the drug offenses three people are also facing charges for possession of a firearm without and FID card, illegal possession of a firearm without a license to carry, improper storage of a firearm, possession of a large capacity feeding device and unlawful possession of ammunition.

An aggressive and experienced defense attorney will carefully examine the circumstances surrounding the entry of the authorities into the apartment, into the bedroom and the alleged “plain view” observation of the alleged “heroin” in the “closet.” In Massachusetts, citizens have a reasonable expectation of privacy on their person and in their homes, Thus, the police cannot enter someone’s home without probable cause or consent. Although all of the facts of this case are not known at this time, if the police have been in the apartment or the bedroom it may be a situation in which a motion to suppress the entry into the apartment and evidence seized as a result of that entry.

In situations where a defendant is charged with a crime in which the Commonwealth must prove “possession” as an element of the crime an experienced attorney will examine the facts to determine if a motion to suppress evidence should be filed. Again, although all of the facts in this case are not known, if the police officers were not properly in then any evidence seized as a result of this unlawful entry may arguably be suppressed.

Another area to examine is the fact that the officers claimed to have made observations “in plain view” inside of a closet. In view of the fact that the occupant of that room apparently ran out of the apartment the circumstances surrounding the officers observations inside of a closet must be closely scrutinized.

In this case a search was also conducted pursuant to a search warrant. In most cases, to attack the issuance and execution of a search warrant the parties are limited to challenging the affidavit in support of the search warrant, the warrant itself and the return often referred to as the “Four Corners” of the search warrant. Depending on all of the facts in this case it may make sense to attack the initial entry of the police into the apartment AND the issuance and execution of the search warrant.

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Although recently acquitted of first-degree murder, George Zimmerman has not been able to stay out of the police log or the public eye and was recently involved in an alleged case of domestic assault. The Washington Times reported that back in early September, 2013, Zimmerman’s wife accused him of stealing items, including a large flat screen television valued at over $2,000 and furniture, from the home the couple previously resided in. The former Zimmerman residence is owned by the wife’s parents. Apparently, things went down hill for the happy couple after she filed for divorce. The estranged Mrs. Zimmerman accused her husband of becoming violent during an argument, threatening her with a gun and smashing an i-pod.

This type of incident that occurs between family members is often referred to by law enforcement as a case of Domestic Violence. In this case, it appears that the police investigated the allegations of Mrs. Zimmerman and although George was initially taken into police custody he is not facing any criminal charges. According to the Washington Times, Mrs. Zimmerman recanted her initial story.

In Massachusetts, cases of domestic violence are taken very seriously by the police and the District Attorney’s office. It is the usual course that following a call to the police for any type of assault or argument to a home, someone will be arrested. The authorities preferred method of response in these situations is to separate the fighting parties, even if the complainant does not wish to have anyone arrested. In their minds this will avoid a tragedy of having someone severely injured or killed after they leave the scene.

In Zimmerman’s case, Mrs. Zimmerman made very serious allegations. Threatening an individual with a gun is the crime of assault with a dangerous weapon and stealing the described property is the crime of malicious destruction of property over $250.00. Both of these crimes are felonies and are punishable by possible state prison sentence.

It is not unusual for a spouse or family member to decide not to pursue charges against a defendant after an arrest has been made. Unfortunately for them, it is not their decision. Once there is an arrest the complaining witness is not a “party” to the case but a witness. The case is captioned Commonwealth v. Defendant, thus the final decision relative to how a case will proceed is up the the prosecutor NOT the victim.

In Massachusetts, the prosecution cannot force a spouse to testify against his or her spouse, unless certain conditions are present such as the safety of the children. In the event the the only two people that were present during the incident was a husband and wife and there is NO other evidence the exercise of the marital privilege can often result in the dismissal or nolle pross of the criminal case. However, it is important to note that this privilege can only technically be exercised on a trial date and not for a motions hearing or a grand jury presentment–as these are not considered “trials.” Furthermore, there is no privilege that prevents a mother or father from testifying against a child or a sibling from testifying against a sibling. The only privilege relates to the marital privilege and often the court will require that a marriage certificate be presented to the court.

The 911 call is closely examined in the event that a spouse exercises his or her privilege. The cases of Melendez-Diaz and Crawford counsels that a statement made out of course is hearsay and is inadmissible if it is testimonial and the witness was not previously subjected to cross examination. An exception to this principle in Massachusetts is if the police or 911 operator are responding to an “ongoing emergency” because the interview of the “victim” is not considered “testimonial.”

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There are recent reports that Dina Lohan, mother of the infamous Lindsay Lohan, was recently arrested and charged with operating under the influence of alcohol. In Massachusetts the offense of OUI or DUI (driving under the influence of alcohol) is a misdemeanor but depending on the circumstances there can be a myriad of dispositions. If you have been charged with operating under the influence of alcohol in Massachusetts the first thing to do is to hire a Massachusetts criminal defense attorney.

In Dina Lohan’s case it was reported that she was traveling over the speed limit which led to the police pulling over the car. Apparently the actress appeared intoxicated and blew a breathalyzer reading of twice the legal limit. Unfortunately, it appears that Dina is following in the footsteps of her daughter and ex-husband by facing these charges in criminal court. Dina’s ex reportedly stated that he hopes that this incident could be a catalyst for her to seek help.

In these types of cases, an experience defense attorney will examine all of the circumstances surrounding the stop and exit order from the car. In Massachusetts citizens have a constitutional right to a reasonable expectation of privacy and the police cannot pull a car over for no apparent reason. Although speeding, or any civil motor vehicle infraction, can justify a stop–it is important to ensure that the stop was legitimate. For example, in Massachusetts, just because an individual is lost does not provide justification for pulling the car over. In the event that a motion to suppress the stop and evidence [i.e., sobriety test, breathalyzer etc.] is allowed the case is usually dismissed as there is no evidence left to prosecute.

Furthermore, in the event that there was a breathalyzer, all of the circumstances surrounding the taking of the breath sample must be carefully examined. For example, the breathalyzer operator and the machine itself must be certified to ensure that proper procedures were implemented. Again, if proper procedure was not followed a motion to suppress should be filed. However, if it is allowed it does not necessarily mean that the Commonwealth will dismiss the case–the breathalyzer results will be suppressed but the criminal case will probably proceed without it.

In the event the case proceeds to trial the Commonwealth has the burden of proving that the defendant was driving a “motor vehicle”, on a public way while “under the influence of alcohol.’ Most litigation surrounds the element of “under the influence of alcohol.” An experienced attorney will cross examine the arresting police officer and highlight the conduct that the defendant engaged in that supports that he or she was NOT under the influence of alcohol.

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The Lawrence Eagle Tribune reports that two twenty-one year old men, Rodney McCray of Haverhill MA and Roberto Hilerio of Boston continue to be held without bail facing charges of assault and battery by means of a dangerous weapon, assault and battery causing serious bodily injury, intimidation of a witness and disorderly conduct. The incident occurred over labor day weekend when Jesse Downs was allegedly attacked from behind on a street in Lawrence, MA. According to reports, Down’s girlfriend was coincidentally passing by the location and saw him speaking to police and emergency personnel. Downs was taken to the hospital where he has remained since the incident.

Defending assault and battery cases in Massachusetts requires an attorney that is thorough, skillful and has a knowledge of the law. Attorney McCarthy routinely successfully defends individuals charged with assault and battery, assault and battery by means of a dangerous weapon and other assault type crimes. A critical aspect of any case is to begin witness interviews and investigations promptly before memories fade or potential witnesses disappear.

Depending on the circumstances of a case, defenses range from misidentification to self-defense to defense of another. If a strategy of misidentification is employed the factors that are stressed through cross-examination of the Commonwealth witnesses are the witnesses lack of opportunity to observe the perpetrator such as poor lighting conditions, a stressful situation and the fact that the alleged victim and or witnesses did not know the person identified as the culprit prior to this case. Furthermore, the factors surrounding any identification of the defendant as the perpetrator must be examined to determine and expose any type of suggestive identification by the police or other witnesses. For example, if a witness identified the defendant through a photo-array an experienced defense attorney should request a copy of the array to make sure that the defendant’s picture was not suspiciously different from all of the other photographs. Similarly, the attorney should determine what was said to any identifying witness prior to the photo array being shown to anyone. If the police made comments indicating that the perpetrator is in the photo book or looks like a particular picture that information must be exposed. Interviewing any witness that made an identification is very important when defending this types of cases.

Relative to self defense cases, witness interviews are again crucial. Once the defense has presented a legitimate claim of self-defense or defense of another then the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self defense or in defense of another. This is in addition to the Commonwealth’s burden of proving the elements beyond a reasonable doubt.

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The Boston Globe recently reported that a six person jury sitting in Concord District Court convicted the former Waltham police chief of domestic assault and battery. The prosecution secured conviction despite the fact that the defendant’s wife testified that the defendant never attacked her. Based on newspaper reports, it appears that the Commonwealth introduced statements that the defendant’s wife made to a long time friend on the night of the incident indicating that the chief did strike her. Additionally, it seems that there was evidence from the medical records in which the wife stated that she was pushed and pulled. Thus, despite the fact that the “victim” did not testify for the prosecution, the defendant was still convicted.

Defending cases of alleged domestic abuse in Massachusetts requires knowledge of the law and skill. In this case, it appears that the Massachusetts Defense Attorney did a very good job as the chief was acquitted on charges of witness intimidation and threats made to his wife and one of her friends and Commonwealth witness. Thus, it appears that despite the presentation of a strong defense. the jury credited the testimony of the witness claiming that in the aftermath of the incident the victim stated that her husband struck her. The prosecution apparently argued that the victim’s stake in the defendant’s income and pension were motives for her to testify on behalf of her husband.

In Massachusetts a spouse cannot be forced to testify against his or her spouse. However, that does not mean that the Commonwealth will necessarily dismiss the charges. In courthouses across Massachusetts, including Concord, Lawrence and Lowell, the District Attorney’s office makes an assessment of the evidence independent of the spouse’s statements to determine whether to proceed to trial. This case of the Waltham police chief in the Concord District Court is an example of a case that went to trial even though the wife/victim did not want the case to go forward.

A collateral consequence of someone being charged with domestic assault and battery is that if a child was present the Department of Family Services will be notified and an investigation is conducted relative to the safety of the child or children. It is important for anyone charged with a crime to remember that any statements made to this agency are discoverable and could be used against him or her in the event that the case goes to trial. Similarly, in the event that one spouse gets a 209A restraining order and an evidentiary hearing takes place, it is important to remember that any statements made can be used in court during the trial.

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