Massachusetts Criminal Lawyer Blog

July 27, 2013

MURDER CONVICTION AVOIDED

In In October 2009 a group of men in their 20s got together at TB’s apartment in Lowell for some beer and weed. One of the members of the group, AH, knew of two drug dealers in Lowell and thought that an invasion of the drug dealers’ home would yield both drugs and money. AH recruited two other men to break in with him. A fourth man, JS, was recruited to drive the group to and from the drug dealers’ home. TB, who’s apartment they were all in donated several black hoodies to the enterprise and he donated a handgun. AH already had a handgun. With JS dtriving, AH and the two other men went to the area of the drug dealers’ home. JS parked and stayed in the car. AH and the other two men left the car and went to the home of the two drug dealers. AH entered the house and a fight broke out. AH shot and killed both drug dealers. with his gun. It was never established whether or not the other two men went in. AH and the other two men ran back to JS’s car and all four men returned to TB’s apartment. They got no drugs and no money yet all four were potentially on the hook for two murders. Under Massachusetts Law, broadly speaking, everyone who participates in the home invasion – including the driver of the car (JS) and the supplier of the hoodies and a gun (TB) is guilty of first degree murder and subject to a life sentence without parole. The evidence against AH (the shooter) was strong. The evidence against TB (the supplier of the hoodies and the gun) and JS (the driver) was medium to strong. The case against the other two men was weak to medium. All five men were indicted for two counts of first degree murder and a number of other charges. JS had a chance very early on – before he was charged – to cut a deal with the government and avoid the murder charge. His lawyer, from Lowell, let too much time go by and the state indicted JS for two counts of first degree murder and the home invasion. When the reality of the situation began to set in JS realized that he – at the age of 23 – could spend the rest of his life in prison and never see the outside of a prison cell again. JS’s family sought out a lawyer for JS and ultimately hired Attorney Robert Lewin.

Attorney Lewin reviewed all the evidence in the case and concluded that if JS went to trial there was a strong likelihood that he would be convicted of first degree murder and spend the rest of his life in prison. At first JS did not want to testify against the other defendants. JS’s family did not want him to testify against the other defendants. Attorney Lewin began the long and difficult process of explaining to JS and his family that even though he did not have a gun and he did not go in the apartment and he did not shoot anybody, he could nevertheless be found guilty of first degree murder and spend the rest of his natural life in prison. This can be a difficult concept to understand but it is the law. Attorney Lewin began a negotiation with the DA’s Office. The DA offered to reduce the murder charges to manslaughter, but the DA wanted a 12 to15 year sentence and JS would have to testify against the other Defendants. JS and his family and Attorney Lewin all agreed that the 12 to15 year sentence was too long, particularly if JS was going to testify.

The negotiations went on for over six months when finally an agreement was reached. JS would testify against the other Defendants and JS would plead guilty to two counts of manslaughter and receive a 7 year to 7 years and 1 day sentence. The trials of the other Defendants were separated. AH, the shooter, was convicted of two counts of first degree murder, and was sentenced to two life sentences without parole. He will never be free again. The other two men against whom the evidence was weak were both found not guilty and after spending three years in prison were released. They both dodged a huge bullet. Incredibly within two months both men were arrested for new crimes and are back in jail awaiting trial in the new cases.

July 26, 2013

Harassment Prevention Orders Vacated

by Robert D. Lewin

LL, age 63, lives with his wife in a small, but pretty home in Methuen. EF and his girlfriend AW live next door in a similar small, but pretty home. From July 2011 to May 2012 disputes arose between LL and his neighbors. In particular, LL found it upsetting that EF would park his truck and boat trailer in the area partially in front of LL’s house. LL allegedly made threats to flatten the tires of his neighbors’ vehicles and allegedly made other threats and harsh and objectionable comments against the neighbors. In July 2012 EF and AW went to Lawrence District Court and each obtained an harassment prevention order against LL. The orders were good for one year. The orders came up for an extension hearing on July 23, 2013.

LL contacted and retained Attorney Robert Lewin. Attorney Lewin went out to LL’s house to view the neighborhood and to see the two houses. According to LL, since the orders had been entered a year earlier LL had had no contact with his neighbors. Under Massachusetts Law a party seeking to extend an harassment prevention order has the burden of proving that there is a current need for the order. (On the other hand, the fact that an existing order has not been violated is not by itself reason enough to vacate an order.) Attorney Lewin prepared LL to testify at the hearing.

On July 23, 2013 Attorney Lewin and LL and the two neighbors appeared in Courtroom 6 in Lawrence District Court. The two neighbors testified as did LL. Attorney Lewin had prepared a Memorandum of Law for the Judge and argued forcefully that the fact that the neighbors had obtained an order one year ago does not mean that they are entitled to an order today. Attorney Lewin argued that the neighbors had not produced sufficient evidence to prove that today they still needed an order. The Judge agreed and vacated both harassment prevention orders against LL.

June 27, 2013

LAWRENCE DISTRICT COURT: ANOTHER DOMESTIC ASSAULT AND BATTERY CASE DISMISSED

by Robert D. Lewin

WK, a 50 year old engineer and his wife, lived in Andover. One Saturday evening in February 2013, after a night of dining out and drinking, WK and Mrs. K returned home. An argument ensued. According to the Police Reports WK punched his wife in the face giving her a swollen, black eye. The police reports further indicated that WK stuck his thumbs into his wife’s mouth and she bit down hard on his thumb breaking the skin. She grabbed a phone in an attempt to call 911; he grabbed the phone from her. She ran to the garage in her nightgown and bathrobe, got in the car, and fled to the Police Station. At the station, color photos were taken of her face and eye. Mrs. K gave a complete statement of what happened. The police were dispatched to the family home. WK was arrested and charged with Assault & Battery, Witness Intimidation, and Threat to Murder. According to the police report she told police he threatened to murder her. Also according to the police report when asked to give his version of what had occurred WK told police he “bashed” his wife. WK was held without bail over the weekend at the Middleton Jail. On Monday morning he was brought to Lawrence District Court and arraigned and released. He was ordered not to abuse his wife. The case was continued for a pre-trial hearing.

WK retained Attorney Robert Lewin. As often happens in these cases, as time passed Mrs. K decided she would not testify against her husband and she executed a marital affidavit that Attorney Lewin prepared. The parties appeared in Lawrence District Court for the pre-trial hearing and the Judge, after speaking with Mrs. K, accepted her exercise of her marital privilege and excused her from testifying. The D.A.’s Office refused to dismissed the case and the case was set down for trial.

On Wednesday, June 26, 2013 WK and Attorney Lewin appeared in Lawrence District Court ready for trial. Mrs. K was not present. Two Andover police were present. Attorney Lewin prepared a Motion in Limine to Exclude all statements made by the wife to the police at the police station. Attorney Lewin also prepared a Motion in Limine to Exclude the Photo the police had of Mrs. K. The basis for excluding the statements made by the wife to the police was that the statements were hearsay and that the statements were not “spontaneous utterances” (an exception to the hearsay rule). To the great surprise of the Defense the DA’s Office did not object to the Motion to exclude Mrs. K’s statements to the police. (The particular judge who was hearing the case would most likely have denied the Motion and would have allowed the statements into evidence; it was an unforeseen break in the case when the DA did not oppose the Motion.) The Assistant DA did object to the Motion seeking to exclude the photograph. Attorney Lewin argued that there was no way the Commonwealth could prove – given the witnesses on the State’s witness list – that the woman in the picture was the Defendant’s wife. Remember, Mrs. K was not present at the trial. The police were not allowed to testify as to ANY statements Mrs. K made to the police (including for example her name, address, and the fact that she was married to Mr. K). There was no witness who had knowledge (independent of what Mrs. K had said to the police) that the woman in the picture was Mrs. K. The Judge reserved a ruling on the Motion to Exclude the photo. A jury was chosen and sworn. The DA finally realized that the Commonwealth’s case had fallen apart and the Commonwealth said they could not go forward. Attorney Lewin immediately moved that all the charges be dismissed with prejudice. A dismissal with prejudice means the case can NOT be brought again. The Judge ordered all three charges dismissed with prejudice.

May 29, 2013

OUI SERIOUS BODILY INJURY MANDATORY SIX MONTH SENTENCE AVOIDED

by Robert D. Lewin

On August 31, 2012, AS, a 67 year old retiree, went out for a few drinks at a local pub in Haverhill. Late at night he left the pub highly intoxicated, got into his SUV, and tried driving to his home in Methuen. In the center of Haverhill is a War Memorial which is situated on a grass plot. AS drove his SUV off the roadway, over the curb and sidewalk, into the War Memorial area. In the area was a homeless man sleeping a a bench. The front of AS’s SUV struck the bench going up over the bench over the homeless man sleeping on the bench. AS backed his car up and left the area as if nothing had happened. AS continued on his way eventually striking a roadsign and knocking it down. Once again he continued on his way. He travelled from Haverhill into Newton, NH where he drove off the road into a ditch. Witnesses had seen his car drive over the bench with the homeless man and called in his registration plate to the police. Other witnesses saw him strike the sign and called that into the police. A BOLO (Be On The Lookout) was put out by the Haverhill Police and picked up by the Newton, NH Police who had discovered AS in his car in the ditch. AS was removed from his car; he had urinated himself; he was arrested for DUI in NH. The Haverhill and Mass. State Police responded to NH to continue their investigation. It was not known if the homeless man on the bench would survive his injuries.

AS was charged with Aggravated DUI in NH (the Aggravatiung circumstance being a high Breath Test reading). In Massachusetts AS was charged with OUI/Negligent Operation Causing Serious Bodily Injury, Two counts of Leaving the Scene Property Damage, Leaving the Scene Personal Injury, two Counts of Aggravated Reckless Assault & Battery by Dangerous Weapon, and a number of civil motor vehicle infractions.

AS retained Attorney Robert Lewin. Attorney Lewin brought in Associate Counsel to handle the NH piece of the case.

May 21, 2013

PROBATION VIOLATION IN ESSEX SUPERIOR COURT

by Robert D. Lewin

On December 3, 2009 MS, then 20 years old, was convicted of Assault & Battery with a Dangerous Weapon and Armed Home Invasion in Salem (MA) Superior Court. On the A&B D/W charge she was given a 2 1/2 year sentence to the House of Correction: 18 months to be served and the balance (1 year) suspended to August 2013. On the Home Invasion charge, which carries a 10 year mandatory minimum sentence to State Prison, she was given probation to August 2013. She served 9 months of the 18 month sentence and was paroled.

On April 22, 2013 MS – 4 months prior to the date her probation is to end – MS got arrested for a DUI in Haverhill. She blew a high breathalyzer. One of the conditions of her probation was that she was to remain alcohol free. She was clearly in violation of probation. MS was very frightened that her probation in the Superior Court would be revoked and that the Judge would sentence her to finish the one year suspended sentence that was still hanging over her head – not to mention the 10 year State Prison sentence that was hanging over her head.

MS was also concerned about the DUI case; her concern was that the Judge in Haverhill District Court would see that she was on probation for a very serious crime and that the Judge in Haverhill would give her a harsh sentence.

May 21, 2013

Malicious Destruction of Property Charge Dismissed

by Robert D. Lewin

On March 17, 2013 YH, a 23 year old foreign student in his Senior Year at Boston College, let his temper get the best of him. YH was looking for a parking space on Boylston Street in downtown Boston. A lady was preparing to back into a space when YH quickly pulled into the space. The lady got out of her car and asked YH to get out of the space. He did and drove around the block and found another parking space. YH got out of his car and then proceeded to walk back up Boylston Street. YH saw the lady’s car parked in the space. As YH walked by the car he took his keys and scratched the side of the lady’s car. He did not see that the lady was sitting inside the car. She immediately got out of the car and called 911. The police responded and took statements from both YH and the lady. Subsequently, YH received a Notice from the Boston Municipal Court that an application for a criminal complaint had been filed against YH by the Boston Police for Malicious Destruction to Property Over $250.00. This charge is a felony. If a criminal complaint issued against YH for the charge he could be deported. YH contacted the Office of Lewin & Lewin and met with Attorney Robert Lewin. Attorney Lewin explained to YH the importance of YH having a lawyer speak with the Boston Police prior to the hearing to see if a result could be negotiated that would avoid a criminal complaint from being issued against YH.

YH retained Attorney Robert Lewin. Within one hour of being retained Attorney Lewin called the Boston PD. The Officer in charge of the case worked the 4-11 shift and was due in at 4 the next day. At 4 PM the next day Attorney Lewin spoke with the officer in charge of the case. They worked out an agreement that if YH paid for the damage done to the car ($712.00) then the police would agree to recommend that the Clerk not issue a criminal complaint against YH. On Monday, May 20, 2013 YH and Attorney Robert Lewin appeared in the Boston Municipal Court in the Criminal Clerk’s Office. Attorney Lewin reported to the Clerk the agreement that had been reached between the police and the Defense. The Clerk felt the agreement was fair. The hearing was continued for 2 months for YH to pay the restitution of $712.00. Upon payment for the $712.00 in restitution the Application for Criminal Complaint will be dismissed and NO criminal complaint will be issued against YH.

As a result of this disposition YH was NOT charged; NO entry was made on his criminal record and this case will not impact his immigration status. This may sound like a simple case; the key to a successful resolution was contacting the police and working the case out with the police prior to the hearing. After practicing criminal law for 42 years (on both sides of the fence) Attorney Lewin knows what the police want to hear – and more importantly, what the do not want to hear.

May 3, 2013

ANOTHER DOMESTIC ASSAULT AND BATTERY CASE DISMISSED

by Robert D. Lewin

On a Friday night in February, 2013 RW, a 25 year old cop from Maine, and his girlfriend came to Boston for an evening on the town. They visited several bars and by the end of the night RW was quite drunk. At about 1:15AM on Saturday morning RW found himself under arrest for Assault & Battery on his girlfriend. RW retained Attorney Robert Lewin. Attorney Lewin obtained a copy of the Boston Police 911 Call Recording. of RW’s girlfriend’s call to the police. On the recording she is crying and in a panic. She tells the police that RW grabbed her by the throat and pushed her head against a wall. In the background RW can be heard shouting andf swearing at her. The recording was awful. The 911 operator kept the girlfriend on the line and within 2 minutes the Boston Police arrived in person on the scene and arrested RW.

RW made no statements to the police. He was booked and subsequently released. He went home and took pictures of his neck and right hand. His neck had scratches on it and his right hand hand bite marks on it. The police report stated that the girlfriend had no visible injuries.This put the case in a very different light. The photographs and the injuries to RW raised the issue that the girlfriend had assaulted RW and thus the girlfriend had a Fifth Amendment right not to incriminate herself and thus not to testify.

On Friday, May 3, 2013 RW and Attorney Lewin appeared in the Boston Municipal Court, Central Division (Downtown Boston). The case was called and RW and Attorney Lewin answered ready for trial. The girlfriend did not appear at Court. Attorney Lewin moved to dismiss the case and Judge ordered the case dismissed. RW was fortunate that he had taken the pictures of his injuries.

April 29, 2013

OFFERING MONEY FOR SEX CHARGE DROPPED

by Robert D. Lewin

On February 28, 2013 JC, a 42 year old man had an itch that needed to be scratched. He got in his car and was driving around Dorchester and stopped at an intersection. He saw a lady of the night on the sidewalk and waived her over. She got in his car. They drove to a convenient store; she got out of the car and went in and bought some condoms. She came out of the store and got back in his car. Unbeknownst to him and her there were two undercover Boston cops who were following her as she was well known to the police. They followed JC’s car and it finally pulled over on a dark street. The cops waited for several minutes and then approached JC’s car. JC had his pants down; the lady had her skirt up and was performing oral sex on JC. The cops banged on the window and told JC and the lady to get dressed. The two got dressed and at the officers’ directions exited the car. The lady told the cops that she was a good businessperson and she wanted to give JC back his $40 for unfinished business. JC told the cops that she could keep it, but it was $100 not $40. The lady, having a lengthy criminal record for prostitution, was arrested. JC, having no criminal record, was let go but was told he would receive a notice to go to Court. Subsequently JC received a Notice of Hearing on an Application for Criminal Complaint for Offering Money for Sex from Dorchester District Court. JC retained Attorney Robert Lewin.

Recently the Boston Police have been cracking down on online prostitution and they (and the DA’s Office and the Court) have taken a harsher approach in the online prostitution cases. This case was an old-fashioned prostitution case. Attorney Lewin contacted the Boston Police and prior to the Clerk-Magistrate’s hearing Attorney Lewin spoke directly to the officer who arrested the lady and applied for the criminal complaint against JC.After 42 years of practicing criminal law Attorney Lewin knows what the cops want to hear and what they do not want to hear. After speaking with Attorney Lewin the police agreed not to push for a criminal complaint to issue against JC; instead they agreed to ask the Clerk to continue the hearing for four months at which time the application for criminal complaint would be dismissed. On April 29, 2013 in the afternoon JC and Attorney Lewin and the Officer appeared at Dorchester District Court for the Clerk-Magistrate hearing. Attorney Lewin explained to the Clerk that the police and the Defense had reached an agreement; the Clerk heard from Attorney Lewin and the Officer and the Clerk adopted the agreement that the parties had reached. The Clerk continued the hearing until August 30, 2013 and ordered that if JC was in no further trouble then he need not appear in Court and the application would be dismissed on that date. As a result of this disposition JC will not have to return to court, he will not have to appear before a Judge, he will not be charged, and he has no criminal record. It doesn’t get much better.

April 25, 2013

LAWRENCE-METHUEN DRUG DEALER GETS BREAK

by Robert D. Lewin

JC, a 28 year old laborer from Lawrence, MA lost two fingertips in an industrial saw accident in May of 2012. His doctors prescribed percocette for the pain and he became addicted. To support his habit he became a low level percocette dealer.

On February 26, 2013 JC and another dealer drove to the Burger King on Route 110 in Methuen, MA. JC was driving. JC pulled alongside a Mercedes in the BK parking lot and the passenger in JC’s car exchanged drugs for money with the driver of the Mercedes. JC then pulled his vehicle alongside another vehicle in the parking lot and once again the passenger in JC’s car exchanged drugs for money with the driver of the other vehicle. All of this was being watched by undercover police in the parking lot. The Mercedes got away but the second vehicle was stopped as it exited the parking lot. The operator gave up the drugs he had purchased and told the police that he had purchased the drugs from the passenger in JC’s vehicle. JC’s vehicle with both JC and his passenger still inside was surrounded in the parking lot by the police. Both JC and the passenger were ordered out of the car. The passenger was searched and drugs packaged for sale were found on his person and under the front passenger seat. In addition a small packet of heroin was found in his pant waist. JC had no drugs (or money) on himself. Nevertheless both JC and his passenger were charged with Distribution of Drugs.

JC had a decent case to take to trial. He had not personally distributed any drug and he had no drugs or money on himself. The government’s theory of the case was that JC had “aided and abetted” his passenger in distributing drugs by driving him to the parking lot and by driving him from one customer to another in the parking lot. In such a case the law requires the state to prove two things: (1) That JC participated in some way in the crime, in this case by helping the passenger by driving and (2) That JC shared the intent required to commit the crime, in this case the intent to deal drugs. A person who is found guilty of aiding and abetting in a crime is considered guilty of the underlying crime (distributing drugs) and is punished the same as the person who actually distributes the drugs. If convicted JC did not face any mandatory sentence but he did face a three year loss of his driver’s license and the potential of a jail sentence. (Drug convictions in Massachusetts carry a mandatory loss of license – 3 years in the case of distribution class B with the right to a hardship license after 18 months.)

April 25, 2013

HABITUAL TRAFFIC OFFENDER AVOIDED – LICENSED SAVED

by Robert D. Lewin

GC, a twenty year old man from Andover, has accumulated 11 surchargeable over the last four years. Under Massachusetts Law if a person accumulates 12 surchargeable events over a five year period they are classified as an habitual traffic offender and they lose their license for four years with the right to apply for a hardship license after 1 year.

GC let his license expire (he “forgot” to renew it on the renewal date). After a snowstorm on January 29, 2013 GC removed the snow from the front windshield but only in front of the driver’s seat. The rest of the front windshield and the other windows and the roof remained encased in snow. A police officer pulled GC over and gave him a ticked for unlicensed operation (a criminal offense) and impeded operation (a civil violation). Both violations are surchargeable and if GC were found guilty/responsible of either violation he would lose his license for 4 years.

GC retained Attorney Robert Lewin. Attorney Lewin ran GC’s driver record from the RMV and his criminal record (from the Mass.Department of Criminal Justice Information Services). The driver record showed that in fact GC’s license was not suspended or revoked but had expired; however, the driver record also showed that GC was in non renewal status because he owed excise tax. GC received a summons to appear in Lawrence District Court for an arraignment on April 25, 2013. Attorney Lewin met with the Assistant DA before court and explained the situation. The DA said she would agree to dismiss the unlicensed operation charge on the payment of $300 court costs (the criminal offense) but the DA wanted a responsible finding on the civil violation. The problem with a responsible finding on the civil violation is that it would have given GC 12 surchargeable offenses and he would lose his license for 4 years.