Case Results » Unlawful Possession of a Firearm
Out Of State Defendant Avoids A Prison Sentence And Convictions For Illegally Carrying And Improper Storage Of Two Firearms
Out of state defendant was in the Boston area repairing water tanks. The defendant stayed at a local motel with a number of colleagues during the project. A motel employee found two firearms in the defendant’s rented room. He was ultimately charged with two counts of illegally carrying a firearm and two counts of improper storage of a firearm.
Attorney McCarthy filed a number of pre-trial motions including a motion to suppress evidence, a motion to suppress the defendant’s statements and a motion to dismiss. The motion to dismiss was based on the fact that because the firearm was confiscated from the defendant’s motel room, he was not “carrying” a firearm for purposes of the statute. Eventually, the prosecution agreed that the motel room was in effect the defendant’s residence and amended the illegal carrying a firearm charge to the non-mandatory possession of a firearm. Following arguments of both sides, the judge continued the defendant’s case for two years at which time all charges will be dismissed provided the defendant does not get rearrested.
Attorney McCarthy Secures Dismissal of Gun Charges Against Lynn Woman For Commonwealth's Failure To Timely Disclose Exculpatory Evidence And Failure To Comply With Court Orders
Attorney McCarthy successfully litigated a Motion to dismiss gun charges against a female defendant due to the Commonwealth's failure to timely disclose exculpatory evidence and failure to comply with court orders. The charges stemmed from an incident that occurred on April 17, 2008. According to the police report, the police responded to the area of Route 1 in Peabody for a call of a woman being run down by a motor vehicle. After responding to the scene, the police spoke to the involved parties, and transported the female defendant back to her residence. When the police arrived at the residence the defendant’s boyfriend was also there. The defendant was ultimately arrested on an outstanding default warrant.
The defendant was transported in a cruiser to the State Police Barracks in Danvers, MA. After she was taken from the cruiser and into the police station the Trooper searched the car and claimed that he found a loaded handgun in stuffed behind the rear seat of the cruiser. No-one ever identified the defendant as in possession of this weapon.
Attorney Kathleen McCarthy timely filed a number of pre-trial motions requesting for copies of any notes, logs or other documentation generated as a result of the transportation of any individual in the cruiser that the defendant was transported in for a period of one week prior to this incident. In Massachusetts, the prosecution must also provide facts of an exculpatory nature. M.R.C.P. 14 (a)(1)(iii). It was clear that the intent of requesting the information relative to individuals transported in the cruiser was to determine whether anyone else was in the cruiser that was involved in a “firearm” related incident.
On the day of trial the defense was informed for the first time that the trooper had responded to an earlier call on the day of the defendant's arrest concerning occupants of a pickup thought to be in possession of a handgun. The trooper that arrested the defendant responded to this stop and one of the three occupants of the truck was put in the trooper's cruiser. Although no handgun was recovered the driver was arrested and charged with illegal possession of a Class D substance, illegal possession of ammunition and illegal possession of alcohol. Based on the late disclosure of the requested exculpatory evidence, Attorney Kathleen McCarthy filed a motion to dismiss the case.
Almost fifteen months after the incident the named caller could not be located and the 911 tape had been destroyed. The cell phone number no longer belonged to the individual that made the initial call. After an extended hearing the district court judge held that the late disclosure caused irremediable harm to the defendant's case and dismissed the charges against the defendant.