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Yesterday, we discussed whether an investigating officer’s failure to read a suspect in custody his or her Miranda Rights (hereinafter, the “Rights”), means that the case against said suspect must be dismissed.

The answer, in most cases, is no.

The remedy is to suppress the statement so that the Commonwealth may not use it against the suspect at trial. However, this is not as simple as one might imagine. The question becomes what is a “custodial interrogation”. Let’s look at three scenarios.

1) Duncan Drugdealer is at home when the police arrive with a search warrant. They tell him to sit down while they search the place. All of a sudden, as the officers are going upstairs, he yells out, “Hey, that coke in the bedroom ain’t mine!”

2) Virginia Victim stands in Boston’s Government Center, screaming that she her purse has just been stolen. The police see her and then see Alfred Assault running away from her, carrying a woman’s purse. The officers know Alfred and he very rarely carries a purse. So they chase him. As they catch up to him, he turns around and says, “It ain’t the old lady’s purse, man!”

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This is a question I encounter many times from clients. People do not seem to understand the rules regarding what rights the police must read them at the time of arrest, or around that time, and what happens if they do not. The rules are the same here in Massachusetts, whether the case be for a felony like murder or a misdemeanor like shoplifting.

File this one under the drawer marked “Trying To Outsmart The Investigating Officer” in the “What Not To Do” cabinet.

For those of you who are not sure, the so-called “Miranda Rights” (hereinafter, the “Rights”) originated from a United States Supreme Court ruling years ago. The aim was to ensure that folks who were interrogated by the police understood their rights not to talk to the police while in custody. In fact, it also was to make sure that said suspects were aware of what would likely happen to any statements made during said interrogation.

We have all seen the Rights in action on television and in the movies. They advise the suspect, in fairly routine words that he/she has the right to remain silent and the right to have an attorney present, that if they cannot afford an attorney then one will be appointed and that anything he/she says will probably be used against them in court.
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Karen M. Tucker, a woman accused of running a bridal show scam in Boston, has agreed to plead guilty to federal wire fraud and identity theft charges. Tucker is accused of running a company called Boston 411 in an attempt to defraud exhibitors and commercial advertisers. As part of her plea bargain, prosecutors will ask a federal court judge to sentence her to 36 to 57 months in prison.

Tucker is accused of telling exhibitors and advertisers that thousands of would-be grooms and brides and paid in advance to attend a bridal expo at the Hynes Veterans Memorial Convention Center. The event was supposed to take place in March 2010. According to the United States Attorney’s Office District of Massachusetts, Tucker deceived the agency that books events at the Boston convention center into thinking that Boston 411 was actually holding a bridal convention there. Tucker reportedly never completed the reservation she’d made at the center, and instead, “strung along” the booking agency, which in turn continued to assure exhibitors that the event was scheduled to happen. Prosecutors contend that the Boston fraud was part of a larger scam involving similar schemes in other US cities.

Some 100 to 200 wedding industry vendors paid Tucker $350 to $4,000 to run booths at the show. Exhibitors also gave her fees, which she used to cover personal expenses.

Tucker was charged with identity theft because she allegedly stole someone’s credit card number and used that person’s name to pay for a Boston 411 Web site. She is accused of using another person’s name to register a Paypal account.

The plea agreement will be presented in federal court in Boston in the next couple of weeks. If Tucker had been convicted by a jury, she could have faced up to 22 years in prison, 3 years of supervised release, a minimum $250,000 fine, forfeiture of assets, and restitution.

Pittsburgh Woman in Bridal Convention Scam Agrees to Plead Guilty, Justice.gov, September 28, 2010
Woman behind bridal scam to plead guilty to wire fraud, ID theft, Boston.com, September 29, 2010

Related Web Resources:
Identity Theft and Identity Fraud, US Department of Justice
Fraud by wire, radio, or television, Cornell University Law School Continue reading

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…And so the bullying battles in South Hadley rage on. You may remember South Hadley. Last year, Phoebe Prince, new to our shores, committed suicide there. Immediately, the finger of blame was pointed at schoolmates who had been bullying her. Almost as immediately, the local District Attorney, Elizabeth Scheibel (hereinafter, the “Heroic Prosecutor”) noticed the opportunity to make some headlines (no matter the cost) and took the extreme step of indicting those kids.

Later, we found out that Ms. Prince had already been a troubled young lady who had apparently attempted suicide in the past.

No problem. The media spotlight had already shown. The indictments stand. In fact, they will most likely continue to stand (or show) on the kids’ records for the next 15 years or so.

This was supposed to be a sharp message of intolerance to bullying according to the Heroic Prosecutor.

Apparently, it wasn’t. Bullying in the schools continued. We wrote about that. No change. In fact, to the contrary, it inspired new and rushed legislation that also enabled our
politicians to not only garner their share of the spotlight, but to give us “No Name-Calling Day”, a new holiday their brave and “tough” statute proclaimed.

Oh yes, and all kinds of confusion that the rushed law left in its wake which people are still trying to figure out how to deal with.
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In yesterday’s Boston Criminal Lawyer Blog, I discussed a bank manager and his buddy who have found themselves in the sites of the Massachusetts criminal justice system. The charge was assault and battery with a dangerous weapon, to wit a hammer and a football.

Today, it is a Massachusetts state trooper who has caught our attention. Same crime, although with the addition of drunk driving. This time, though, it the weapon is a gun…and, yes, shots are fired.

Timothy W., 41, (hereinafter, the “Defendant”) is a Massachusetts state trooper who is a decorated war hero. Yesterday, he was released on personal recognizance after being arraigned on charges that he allegedly drove drunk, crashed his car on a Dorchester street, pointed his gun at a Boston police officer, and later fired his gun into the ceiling of his home.

About a dozen family members, friends, and co-workers, including at least five men in military uniforms, attended the hearing in Dorchester District Court.

Clearly, this is not the tale of a bully dressed in blue, getting caught abusing power and demonstrating an abundance of attitude. It would appear that it is the tragic story of a man in real need to be helped.
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Last Friday morning, Boston was the scene of an alleged attack upon a street cleaning vehicle. This was a felony –type assault, complete with dangerous weapons.

The identity of the suspects, though, might surprise you.

Both gentlemen, Craig S., 23, and Piero P., 26, (hereinafter, collectively, the “Defendants”), are from Lynn. One of the two is a bank manager.

Well, at least, he was…

Anyway, the Defendants have pleaded “not guilty”. The case is currently pending at the Boston Municipal Court.

According to the prosecution, The Defendants were arrested by Boston police around 1 a.m. after they allegedly attacked Warren M., (hereinafter, the “Complainant”), the driver of a street cleaning truck.
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Worcester police detectives have arrested and charged two people in connection with the shooting death of Michelle Diaz. The 21-year-old Worcester State College student was sitting in her car when she was shot in the neck. She died several days after the incident.

The two men arrested, 23-year-old William Madison and 24-year-old Cassie Ago, are each charged with one count of accessory before the fact to armed robbery and one count of accessory before the fact to murder. They are to be arraigned on Monday.

Police do not believe that Madison or Ago were involved in Diaz’s shooting. They do, however, think they were involved in events that led to her Massachusetts murder. They are still looking for the alleged shooter.

Accessory Before the Fact
An accessory before the fact usually involves the commissioning of or providing aid to a felony. Under state law (Massachusetts General Laws Chapter 274, Section 2), the maximum penalty for accessory before the fact is the same as that of the principal felon of the actual crime. It is the prosecutor’s job to prove beyond a reasonable doubt that someone else (not the defendant) committed the crime and that the defendant either hired, advised, or played some other role that allowed that person to commit the felony and did so with the same intent that he/she would have had if he/she actually committed the crime.

2 Arrested In Connection With Deadly Neck Shooting, The Boston Channel, September 25, 2010
Murder charges lodged in college student death, Telegram.com, September 25, 2010

Related Web Resource:
Massachusetts General Laws Chapter 274, Section 2
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In Boston Municipal Court today, Piero G. Procopio and Craig S. Strasnick pleaded not guilty to Massachusetts assault and battery with a dangerous weapon charges. The two men are accused of taking a football and a hammer and attacking Warren McMasters, who drives a street cleaning truck.

The attack allegedly occurred in Boston in the early hours of the morning. McMasters, who works for American Cleaners, says that he was driving the wrong direction down Surface Street when a vehicle drove up and blocked the road. Suffolk Assistant District Attorney David M. Givskud says that the two men then exited the SUV and allegedly attacked McMasters before driving off.

Police later saw their vehicle North Washington Street. They found a football and a hammer inside the SUV. McMasters, who sustained bruises and cuts from the alleged attack was treated at a Weymouth hospital and then later released.

Boston Assault and Battery
In Massachusetts, no actual physical injury has to have occurred for an assault and battery charge to be filed against someone. “Assault” can refer to the threat of violence even if no actual physical contact takes place. “Battery” refers to physical contact where the alleged victim did not give consent. To be charged with Massachusetts assault and battery with a deadly weapon, any object allegedly involved that can be used as a weapon can fall under the “deadly weapon” category.

Two men attack driver of streetcleaner with football and hammer, prosecutors say, Boston.com, September 24, 2010
2 Arrested In Hammer Attack On Street Sweeper, WCVB, September 24, 2010

Related Web Resources:
Massachusetts General Laws, Massachusetts Trial Law Libraries

Assault, Justia Continue reading

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I have been breaking a new Massachusetts Motor Vehicle Law. Chances are, so have you.

Well, that’s sort of true. Actually, the law does not go into effect until next week. September 30th to be exact. You may have seen some of the message boards that have been posted about it.

They read, “TEXTING WHILE DRIVING IS AGAINST THE LAW.”

That’s right, no more texting while driving starting next week.

“Oh, Boy”, I can hear you say. “Sam’s about to go off about a new and ‘unnecessary’ law!”

Believe it or not, that is not the case.
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As I have often written, one does not always know either when there is a Massachusetts criminal investigation or even an arrest warrant in existence in one’s name. There are various ulterior motives out there by which potential witnessesare guided to give evidence against you.

And law enforcement tends to know all about them and how to use them. After all, it is one of the things of which prosecutions are made.

Let’s take the most common such motive–fear. We turn our collective heads a bit to the north to learn about William M., an 18-year-old (hereinafter, the “Witness”) of New Hampshire. The Witness’s lawyer has announced that he has struck a deal with prosecutors to testify against two companions who allegedly led a home invasion that resulted in the killing of a nurse and the maiming of her 11-year-old daughter at New Hampshire house.

The Witness has agreed to plead guilty to being an accomplice to first-degree assault, murder conspiracy, and burglary conspiracy, and faces 30 to 60 years in prison, according to his Massachusetts lawyer. In exchange for the Witness’ cooperation, prosecutors have dropped the most serious charge he faced, being an accomplice to first-degree murder, which carries a maximum penalty of life without parole.
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