Criminal Law & Procedure–Judgment Reversed Due to Prosecutor’s Improper Implications During Closing Argument

Judgment Reversed Due to Prosecutorial Error in Closing Argument, Commonwealth v. Brown, 81 Mass. App. Ct. 1115 (Feb. 22, 2012).

Summary: The defendant was convicted of unlawful possession of a firearm as well as unlawful possession of a loaded firearm. The Court found that his motion to suppress was properly denied because the encounter between the defendant and the police was not an unjustified stop or seizure, but rather an investigatory inquiry—commonly known as a Terry stop. However, the Court found that the judgments must be reversed and the verdict set aside because the prosecutor erred by arguing in his closing that the theory of the defense case was that the officers framed the defendant, even though no such argument was put forth by the defense counsel.

Discussion: During his closing argument, the Prosecutor stated, “I would suggest there are a few things that you should consider when you’re evaluating whether or not you think that [the] officers lied to you. Consider the following, what motive do they have to lie. Did you hear anything about any sort of animosity towards [the defendant]? Any prior experience[s] that were negative in any way? What would cause them to lie? And if they wanted to frame [the defendant] there are really two more things that you should consider. Why did they pick this charge of all charges, possession of a firearm? Why not say, we chased [the defendant] down into an alley and he drew this firearm and pointed it at us and in fear for our safety we had to drawn [sic] down on him (Inaudible) and we had to wrestle the gun away from him. Assault on a police officer with a dangerous weapon. If you’re going to frame somebody, why are you framing him for a possession charge? Why not go all the way? And if you’re going [to] frame somebody, why not say you just saw it in his hand?…” (Emphasis added).

The Court found that this was prejudicial error because (1) there was no theory of framing advanced by the defense, and (2) the framing argument was a form of improper witness vouching by the prosecutor.

Implications: The Court emphasized that the framing remark inappropriately suggested to the jury that the only possible explanation for the congruence between the testimonies of various prosecution witnesses was either these witnesses were completely truthful and accurate or they were conspiring to perpetrate a gross lie. The Court also noted that the trial judge’s failure to make a curative instruction – that the closing arguments were not evidence – did not ameliorate the prosecutorial error.

Criminal Law & Procedure–Unlawful Detention in Massachusetts Invalidates Subsequent Consent to Search

Criminal Law – Search and Seizure, Unlawful Detention Prior to Obtaining Consent,Commonwealth v. Elijah Judge, 2012 WL 537620 (Mass. Ct. Appeals Slip Opinion, Feb. 21, 2012).

Summary: The Court found that, where the defendant was convicted of trafficking cocaine and challenged admission of evidence obtained from a search of his car during a traffic stop, the police did not have reasonable suspicion to prolong the traffic stop prior to obtaining defendant’s consent to search. A Massachusetts State police trooper initiated a routine traffic stop after observing a rejected inspection sticker on the windshield of defendant’s vehicle. During the stop, defendant exhibited extreme nervousness, and purported to explain his initial failure to pull over with a story about visiting a nearby girlfriend. The trooper shortly thereafter learned that, while the license and registration were valid, both the defendant and passenger had prior criminal histories. The trooper called for additional officers, and asked the defendant additional questions, eventually obtaining consent to search the defendant’s vehicle. The trooper discovered cocaine within a bag located in the trunk. The defendant challenged the admission of evidence from the search of the car and trunk. The critical issue was whether, after the defendant complied with the usual requirements associated with a traffic violation, a legally sufficient basis existed, in terms of reasonable suspicion grounded in articulable facts, to further detain the defendant’s vehicle.  The Court answered in the negative.

DiscussionThe Commonwealth characterized the period of detention, between the verification of the license and registration and subsequent actions, as part of an overall exchange between the trooper and the defendant aimed at obtaining consent to search the defendant’s vehicle. The Court disagreed, and stated that a distinct period of time existed between verification of the license and the moment the defendant rendered consent. The Court explained that the rendering of consent was a separate period of detention that did not have legal justification in this instance, and therefore the defendant was improperly detained. The Court found that the factors relied upon by the Commonwealth (nervousness, inconsistent statements about a girlfriend, previous criminal record) did not equate to reasonable suspicion. Thus, the court found that the trooper lacked any reason to further interrogate the defendant or prolong the stop due to lack of reasonable suspicion, and reversed the order denying defendant’s motion to suppress.

Implications: The key considerations here were (1) the period of time spanning from validation of the license to obtaining consent and (2) the trooper’s reasonable suspicion to search. The Court’s opinion makes clear that the factors relied upon in order to claim reasonable suspicion should be considered together, noting that while a past criminal record is included in a reasonable suspicion evaluation, when considered with the other factors, the circumstances didn’t warrant continued detention.

Same-Sex Spouse Awarded Joint Custody in Massachusetts

Same-sex Spouse is Legal Parent and Gets Joint Custody of Child, Della Corte v. Ramirez, 81 Mass. App. Ct. 905 (2012).

Summary: The Appeals Court held that a former same-sex spouse of a child’s mother was the legal parent of the child, and that no substantial material change in the circumstances of the parties warranted a modification of child custody.  The case involved a woman, Della Corte, who gave birth to an artificially conceived child while married to her same-sex spouse, Ramirez.  During their divorce proceedings, the Probate & Family Court decided that the couple should have joint custody.  Della Corte challenged this finding.  The issue here was whether Ramirez was a legal parent and whether Della Corte would be required to share custody of the child following their divorce.  In interpreting G.L. c. 46, §4b, the Court found that Ramirez was a legal parent, and that there were no substantial and material changes in circumstances warranting a modification of custody.

DiscussionDella Corte was artificially inseminated with the sperm of an anonymous donor approximately two months before the two married.  Ramirez was an integral part of the decision to conceive and the insemination process, and the child’s birth certificate identified both Ramirez and Della Corte as the child’s parents.  After the birth, the relationship deteriorated and Della Corte wanted a divorce.  The Court looked at Massachusetts statute G.L. c. 46, §4b, stating that “[a]ny child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband” (emphasis added).  In interpreting the statute, the Court found there is no requirement that a couple be married at conception, and that the word “husband” should be construed in a gender-neutral manner, not excluding same-sex married couples (citing Goodridge v. Department of Pub. Health, 440 Mass. 309, 343 n. 34).  Additionally, there is no need for second-parent adoption in order to confer legal parentage on the non-biological parent if child is born of the marriage.

Practice Pointer: This ruling confirmed that when a same-sex married couple has a child by artificial insemination, the second-parent does not need to go through adoption proceedings in order to have legal parental rights over the child.  More broadly, this decision seems to have the effect of making same-sex marriages and divorces legally indistinguishable from heterosexual marriages and divorces.

Possession With Intent to Distribute of Less Than 1oz of Marijuana Upheld in MA

Prosecution for Possession of Marijuana With Intent to Distribute In Quantities Less Than Ounce Upheld: Commonwealth v. Keefner (SJC-11019) (Slip Opinion)

Summary: The SJC today held that a defendant may be charged with possession with intent to distribute marijuana, in violation G.L. c. 94C, section 32C, even if the amount seized was under an ounce.  The issue here was what effect did the passage of G.L. c. 94C, Section 32L (decriminalizing possession of less than an ounce) have on the offense of possession with intent to distribute.  The SJC, using rules of statutory construction, determined that (1) the passage of the 32L did not repeal the offense of possession of intent to distribute even if the amount is less than ounce and (2) prosecution under the “intent to distribute” statute is not limited solely to situations where the distribution involves a sale. Notably, the Court expressly reserved the issue of what constitutes “distribution” for determination later.  However, the SJC went to affirm a motion to suppress all fruits of the subsequent search and held that knowledge of a defendant’s use of marijuana, without additional facts specifically concerning an intent to distribute, does not give rise to support probable cause to search the defendant.

Discussion.  The SJC reasoned that both statutes are mutually independent of each other and reiterated that possession of marijuana in any amount remains illegal–“decriminalization is not synonymous with legalization.”  It reasoned that such construction is consistent with the intent expressed by the Legislature and the voters.  In support thereof, he SJC specifically pointed out to the following language in G.L. c. 94C, Section 32L: “[n]othing contained herein shall prohibit a political subdivision of the Commonwealth from enacting ordinances or bylaws regulating or prohibiting the consumption of marihuana or tetrahydrocannabinol in public places and providing for additional penalties for the public use of marihuana or tetrahydrocannabinol.”

Practice Pointer: Due to the relative infancy of the “One-Ounce Rule,” it is difficult to determine how that rule impacts other areas of the law.  Based on affirming the motion to suppress, however, the Court is consistent in holding that the use or smell of marijuana will not give rise to probable cause to search a defendant.  This will be the case even if the smell of marijuana is coupled with another civil infraction, such as a traffic violation.  For example, in Commonwealth v. Cruz, the SJC held that, in a valid traffic stop, the odor of burnt marijuana, by itself, does not give rise to reasonable suspicion or probable cause sufficient to justify an exit order.  459 Mass. 459 (2011). 

Pervasiveness of Social Media: Facebook “likes” May Pose Ethical Dilemmas for Judges

In a recently-released opinion, the Committee on Judicial Ethics was called upon to define the ethical implications and permissible parameters of a Judge’s use of the ubiquitous social networking site Facebook.  The Committee stressed that all activities on the site must be consistent with Judicial Ethics. 

It noted that there are no bright-line prohibitions and that a Judge is permitted to “post” on their wall and may also “like” other people’s posts.  However, the substance of these activities must be in line with Judicial Ethics.  For example, a judge needs to be careful in what “Facebook groups” he subscribes to or other actions on the site that may be construed as a conflict of interest.

Notably, the Committee indicated that the Code of Judicial Ethics prohibits a judge from “friending” any attorneys that may appear before them.  It specifically stated:

“in terms of a bright-line test, judges may only ‘friend’ attorneys as to whom they would recuse themselves when those attorneys appeared before them.”

The Committee reached the conclusion that “friending” attorneys on social networking sites creates the impression that those attorneys are in a special position to influence the judge, even if those Facebook “friends” may just be acquaintances. 

For the full opinion, click here.

Wassem Amin