Today in COMMONWEALTH vs. Christopher DOYLE, No 11-P-1779, the Massachusetts Court of Appeals held damage done to a container for the sole purpose of obtaining the property inside a container is not Malicious destruction of property.
To prove malicious destruction of property, according to G.L. c. 266, § 127 a defendant's actions must be both "wilful" and "malicious." Under Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 4 (2001). "In addition to the intent to inflict injury to property, the crime requires a state of mind infused with cruelty, hostility or revenge."
The Appeals Court held that this case was like Redmond where the defendant was arrested while apparently in the process of stealing computer equipment. In pursuit of that goal, Redmond had:
1) ripped a security alarm from the wall
2) broken a window
3) and forcibly opened the front door of the office
4) A second door, leading into a computer room, appeared kicked in
In Redmond the Court of Appeals held that "[a]lthough clearly intended, such property damage was nothing more than the 'the adventitious by-product of a wholly discrete criminal enterprise' (the theft of the computers) and was not 'gratuitous, excessive violence purposefully designed to intimidate and overpower,' ... or destructive activities that were by design and hostile to the owner of the property." Redmond, quoting from Commonwealth v. Wynn, 42 Mass.App.Ct. 452, 456 (1997).
In Commonwealth v. Morris M., 70 Mass.App.Ct. 688 (2007) the Appeals Court also found destruction of property caused by driving a Jeep across the driving range of a golf course and smashing the car into a pole was not malicious because the juvenile was driving the vehicle in order to escape another who apparently intended to harm him.
In the case of Mr. Doyle, the Appeals Court believed it was clear that the damage was done in an effort to steal from the ATM and not with "a state of mind infused with cruelty, hostility or revenge." as required under Commonwealth v. Redmond. Even viewed in the light most favorable to the Commonwealth, the evidence was not sufficient to establish the necessary element of malice and so the conviction for Malicious Destruction of Property was overturned.
If you have been charged with malicious destruction of property or another crime, it is important to have an experience criminal defense attorney who understands all the elements of each crime, and what the legal definitions of each element are. Sometimes a complaint can be dismissed at a pretrial stage or even following the district attorney's opening statement, if they do not allege an essential element of the crime. For a consultation, contact the Law Office of Isaac J. Mass.
Today, in Commonwealth v. Reyes SJC 11270 (2013), the Massachusetts Supreme Judicial Court
held that the storage of a firearm in securely locked container (like a glove compartment) inside a parked vehicle is not a violation of the carrying statute and may be adequate under the storage statute.
Amaury Reyes, was convicted in the Salem District Court
of improperly carrying a firearm in a motor vehicle in violation of M.G.L. c. 140, § 131C (a)
(carrying statute), and unlawfully storing a firearm (after leaving it in his motor vehicle) in violation of M.G.L. c. 140, § 131L (a ) and (b )
(storage statute). Reyes possessed a class A license permitting him to carry a firearm for all lawful purposes under M.G.L. c. 140, § 131 (a ).
On April 10, 2010, he drove from his home to work, during which time he carried his personal firearm with him in a holster without passenger. When he arrived at work, he parked his motor vehicle, removed the firearm and holster from his person, placed them in the glove box, and locked the vehicle.
Reyes consented to a search of his vehicle alerting the officer that his firearm was in the glove box of his
vehicle. He acknowledged that the firearm was not outfitted with a cable locking device. He unlocked
the car with a remote opener. The officers entered the vehicle from the passenger side, opened
the glove box, and retrieved the firearm in its holster. The firearm contained a loaded magazine, but no round in the chamber.
On appeal Reyes argued insufficient evidence at trial to support his convictions under the carrying and storage
The carrying statute provides in relevant part that "no person carrying a loaded firearm ... shall carry the same in
a vehicle unless such firearm while carried therein is under the direct control of such person." The Court
held that there was no evidence that his firearm was out of his possession (or his direct control) when he traveled to work in his vehicle. They further held that the carrying statute does not apply once the defendant leaves his
vehicle and leaves the firearm in it. The Court held that when Reyes left his motor vehicle and the firearm in it, he became subject to the storage statute because he was storing or keeping his firearm in a "place" neither on his
person nor "under the control of the owner or other lawfully authorized user." G.L. c. 140, § 131L (a ).
As to the storage charge, the court maintained that a motor vehicle is not itself a securely locked container.
However they held “that the storage of a firearm in a securely locked container within a motor vehicle would
satisfy its requirements.” This may include a locked glove compartment if it locks according to the SJC.
If you have been charged with a firearms violation you may need a criminal defense attorney who is abreast of the latest developments in firearms statutes and new court rulings reacting to the deluge of firearms litigation. For a consultation contact
the Law Office of Isaac J. Mass
Hardship Licenses, sometimes called a Cinderella License are issued by the Massachusetts Registry of Motor Vehicles to some offenders for a legitimate purpose such as going to work, attending school, or receiving medical treatment. Hardship Licenses are valid for a consecutive 12 hour period (e.g. 8:00 AM to 8:00 PM). Such licenses are only granted to Massachusetts license holders. In order to apply for a hardship license, you must attend a hearing at a Registry of Motor Vehicles hearings site.
A hardship will only be considered for the following offenses certain offenses. You will need all required documents with you when you meet with the Hearing Officer. Obtaining a hardship license is sometimes difficult, especially without a
skilled lawyer. Although an applicant may meet all requirements, issuance of a hardship license is only granted at the reasonable discretion of the Registry of Motor Vehicles, based on the facts of the case.
An attorney can help present your case in the light most favorable to you emphasizing the issues that are most important to the Registry of Motor Vehicles. For example in accordance with Melanie's Law, the Registry of Motor Vehicles is changing its policy regarding who is eligible for a hardship license. To be eligible for a hardship license, you may now be required to present proof that you do not have access by public transportation to your required destination. You should be represented by an attorney when seeking a hardship license.
For an opportunity to consult a an attorney about representation at a Registry of Motor Vehicle hearing contact the Law Office of Isaac J. Mass. The Law Office of Isaac J. Mass can also represent you in hearings before the Board of Appeals after an unsuccessful hearing at the Registry of Motor Vehicles.
December 18th, 2012 , in Commonwealth v. Jones,
the Massachusetts Supreme Judicial Court
held that it was ok to deny a defendant’s right to admit into evidence that, shortly after he had declined to take a breathalyzer test, he changed his mind and requested but was not given the test.
On May 14, 2010, a witness was driving north on Route 10 in Southampton
when she reported a pickup truck being driven erratically. The defendant was the driver of the truck and was stopped by the Easthampton police
. The police administered a field sobriety test, and the defendant performed poorly. He was then placed under arrest.
The defendant, prior to trial, moved that he be permitted to testify that, at the police station, he initially declined to take a breathalyzer test, then "shortly afterwards" changed his mind and asked to take the test, but one was not administered. Although the prosecutor did not object, he wanted to introduce evidence that the defendant did not recant his initial refusal, and that he had also refused certain field sobriety tests and suggested the proposed testimony would “open a can of worms”. The judge denied the defendant's motion.
The Supreme Court found, the judge acted within the scope of his discretion in excluding the testimony. The defendant sought to testify that, shortly after declining to take a breathalyzer test, he requested to do so. Such evidence could only exonerate the defendant by suggesting that he thought he was not intoxicated at the time the request was made. But the court has held that "consciousness of innocence is of very little value, because there are a variety of different motives that can prompt action consistent with innocence." Commonwealth v. Espada, 450 Mass. 687, 698 (2008).
The court believes a recantation of an initial refusal to take a breathalyzer test is likely motivated by the desire to avoid suspension of the suspect's driver's license
as it is with consciousness of innocence.
IF you have been arrested for operatining under the infulence or neglegent operation, contact
the law office of Isaac J. Mass
for a consultation.
Under MGL Ch. 276 § 55
, a judge may at his discretion dismiss certain complaints at the request of the alleged victim.
If your charge is assault and battery or another misdemeanor for which you are liable in a civil action your complaint may be eligible. There are exceptions for offenses committed by or upon a sheriff or other officer of justice for example. Riotous offenses and offenses committed with intent to commit a felony are likewise cannot be resolved by an for an accord and satisfaction.
In cases where an accord and satisfaction is appropriate the person injured must appear before the court and acknowledge in writing that he has received satisfaction for the injury. Such injured persons may also want to notify the court of their intention to exert their 5th amendment rights
against self-incrimination if the case were to go to trial. To do so convincingly, it is helpful for the injured person to have a conversation with an attorney other than the district attorney or attorney for the defendant regarding whether or not the injured party actually has a viable fifth Amendment privilege.
The court may in its or his discretion, upon payment of accrued expenses (including but not limited to court cost and accessed attorney’s fees) discharge the recognizance or supersede the commitment, or discharge the defendant from the indictment or complaint, and may also discharge all recognizances and supersede the commitment of all witnesses in the case.
Some of the factors a judge may consider in evaluating an accord and satisfaction may include: the criminal history of the defendant, especially the nature of past charges, the adequacy of the satisfaction, the relationship of the parties, mitigating factors that led to the charged conduct and any voluntary programs which the defendant has successfully participated in or completed.
What is satisfaction? Satisfaction can be almost anything for example a written apology, assurances that the conduct will not be repeated, money damages, the return of property, or even an agreement to waive all counter claims against the injured party.
Defendants should not believe that just because an injured party comes forward and says they want the case dismissed that the judge will be likely to do so. The MA Supreme Judicial Court upheld the Accord and Satisfaction Statute in Commonwealth v. Guzman, 466 Mass. 344 (2006)
holding that the accord and satisfaction was not private justice because the case could continue at the discretion of the judge. The District Attorney has a right to be heard in these matters and almost always will oppose an accord and satisfaction.
If you have criminal charges pending and need the counsel of an attorney contact
the Law Offices of Isaac J. Mass
. If you have been the victim of crime and are entitled to a recovery for personal injuries you received, you may want to contact an attorney to evaluate your damages. Beyond medical bills you may be entitled to lost wages, pain and suffering, loss of consortium, consequential damages and punitive damages. Contact the Law Office of Isaac J. Mass for an evaluation of your case before you accept an accord and satisfaction.
Every four years most people know that they get to vote for President, watch the Summer Olympics and have an extra day in February to get things done. For those who are incarcerated though it means an extra day in jail or prison. The amount of days you will serve in the House of Correction or State Prison may depend on when you are sentenced. If you are held on bail or sentenced prior to February 29th on a leap year, you are likely to serve an extra day in jail if you are sentenced to a specific number of months or years in the House of Correction. This may also effect when you are eligible for parole. In 2006, the Massachusetts Appeals Court in Commonwealth v. Mello, 65 Mass.App.Ct. 674 (2006) overruled a trial judges approval of a motion to correct the mittimus and upheld the Massachusetts Department of Corrections policy of not crediting the extra leap day every four years. John Mello had been convicted of the crimes of home invasion, assault and battery by means of a dangerous weapon, and armed assault in a dwelling house. He was sentenced to a term of ten years to ten years and one day on the home invasion conviction and to a concurrent term of four to six years on the armed assault in a dwelling house conviction. The defendant was also sentenced to five years probation for each of the three convictions of assault by means of a dangerous weapon, to be served concurrently on and after the completion of his State prison sentence. Mello sought two days of jail time credit for February 29th, 2000 and 2004.
The Appeal Court, however, found that the legislature
“defined a "year" as a calendar year, not as a compilation of 365 days.”
General Laws c. 4, § 7, Nineteenth, reads:
"In construing statues the following words shall have the meanings herein given, unless a contrary intention clearly appears:
" 'Month' shall mean a calendar month, except that, when used in a statute providing for punishment by imprisonment, one 'month' or a multiple thereof shall mean a period of thirty days or the corresponding multiple thereof; a 'year', a calendar year
" (emphasis added).It is vital when accepting a plea agreement in a leap year to negotiate for
a stay of execution until after February 29th or to seek a sentence which is for a term of days not months or years. Two days may not seem like a lot of time to most of us, but when you are incarcerated every day counts. If you have been arrested and face criminal charges, you should contact
a lawyer who is familiar with how time in jail is calculated and credited. The Law Office of Isaac J. Mass
represents criminal defendants zealously and advocates for them even on the smallest details which effect their lives; contact
us for a free consultation.