Articles Posted in Firearm Offenses

A routine trip the doctor’s office turned fatal when a disgruntled patient stabbed his psychiatrist during a treatment session and then was shot and killed by an off duty security guard, Paul Langone. According to The Boston Globe, Dr. Astrid Desrosiers, a well respected and well known instructor of psychiatiry at Harvard Medical school, experienced what has been called a “psychiatrists worst nightmare” when patient, Jay Carciero of Reading Massachusetts, stabbed her during an office visit. It is believed that Carciero was being treated by Desrosiers on Staniford Street, where Massachusetts General Hospital leases space for its Bipolar Clinic and Research Program.

According to reports, Langone entered the area an ordered Carciero to drop his weapon. When Carciero refused, the guard shot him in the head. Carciero was pronounced dead at the Massachusetts General Hospital. At this time, it is believed that Langone was properly licensed to carry a gun in Massachusetts.

As the authorities continue to investigate the matter, Langone has been lauded as a hero. In Massachusetts, an individual is allowed to act in self defense or in defense of another. If evidence of self-defense or defense of another is presented, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another. For the jury to acquit a defendant when these types of defenses area raised the jury must have a reasonable doubt whether or not the defendant acted in self-defense or in defense of another. Although it does not appear that the security guard will be charged with a criminal offense in this case, defense of another would clearly be a viable defense under these circumstances.

Additionally, it is good that the security guard had a license to carry a firearm. The Massachusetts firearms laws are very strict and a conviction for illegal possession of a firearm carries a minimum mandatory sentence of eighteen months in prison. In the event that an individual is charged with possession of a loaded firearm, the potential penalties are even more severe and are imposed on and after the sentence for the underlying charge.

If you have been charged with a violent crime in Massachusetts or charged with illegal possession of a firearm you must have an experienced lawyer on your side. Depending on the circumstance, a motion to suppress evidence and or statements should be filed that may dispose of the case.

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Charges of possession of a firearm, possession of a loaded firearm and possession of ammunition were dismissed against Lynn Massachusetts last week in a local district court. 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 Massachusetts 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.

The defendant maintained her innocence from the outset of the set. There was no physical evidence that connected her to the gun. Our Attorney timely filed a number of pre-trial motions requesting 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. The request also included all police reports generated in connection with this case. Massachusetts also requires the prosecution to provide automatic discovery of “any 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. No information was forwarded to the defense relative to this request prior to trial.

On the day of trial, the prosecutor approached the defense attorney and indicated that the arresting trooper informed her that prior to the defendant’s arrest he had been called to back up the State Police in Concord relative to a report, by a named caller who gave his cell number, of a group of individuals in a truck with a gun. Apparently, there were three individuals in the truck that matched the description given by the caller. The individuals were taken from the truck. One of these “suspects” was placed in the rear of the Trooper’s cruiser. The same cruiser in which the Trooper found the alleged firearm after the defendant’s arrest. There was handgun ammunition, shot gun shells, controlled substances and alcohol found in the truck. The driver of the truck was arrested and charged with illegal possession of a Class D substance, illegal possession of ammunition and illegal possession of alcohol. The judge granted the defendant a continuance to investigate the incident. Based on the late disclosure of the requested exculpatory evidence, Our Attorney filed a motion to dismiss the case.

Almost fifteen months after the incident the caller could not be located and the 911 tape had been destroyed. Despite the efforts of an experienced investigator, the named caller could not be located and the cell phone number no longer belonged to the individual that made the call fifteen months earlier. After an extended hearing the district court judge agreed that the fact that the Trooper had placed an individual in his cruiser who was suspected of being in possession of a handgun only a few hours before the defendant was placed in the cruiser should have been disclosed to the defendant pursuant to the discovery orders rather than seventeen months later on the day of trial. The trial judge held that the late disclosure caused irremediable harm to the defendant’s case and dismissed the charges against the defendant.

This case exemplifies the importance of filing all relevant pre-trial motions. Experienced defense attorneys often file pre-trial motions including discovery motions, motions to suppress, motions to dismiss and motions to compel in order to effectively represent their clients and protect their rights to due process and a fair trial.

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In Melendez-Diaz v. Massachusetts, 557 U.S. – (June 25, 2009), the United States Supreme Court held that in a prosecution for a drug offense the introduction of certificates of analysis from Massachusetts drug crime laboratories violated a defendant’s constitutional right to confront witnesses against him at a trial. The Supreme Court recognized that the Sixth Amendment to the United States Constitution, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Court has been narrowing the exceptions that state courts have carved from the Constitution to make prosecutions easier and more convenient for the government. Melendez-Diaz relied on the holding in Crawford v. Washington, 541 U.S. 36, 51 (2004) in which the Court reaffirmed the basic tenet of the constitution that a defendant has a right to confront those “who ‘bear testimony’” against him. Crawford v. Washington, 541 U.S. 36, 51 (2004).

Melendez-Diaz, affirmed Crawford’s holding that a witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. In Melendez-Diaz, the Court discussed that the Crawford opinion described the class of testimonial statements covered by the Confrontation Clause as follows: “Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52. The Court held that relative to a Massachusetts drug “certificate,” which the court concluded was the functional equivalent of an affidavit, there is little doubt that the document fell within the “core class of testimonial statements.”

This landmark decision will have the effect of forcing the government to meet its burden in all Massachusetts drug cases. Based on the language in the opinion, it also appears Massachusetts criminal defense attorneys should object during the prosectuion of gun offenses to the admission of ballistic certificates when the District Attorney moves to introduce them without a live witness. The reasoning in Melendez-Diaz requires the exclusion of the certificate as rank hearsay and a violation of the defendant’s rights to confront witnesses against him or her.

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According to The Lawrence Eagle Tribune, a Lawrence Massachusetts man was arrested and charged with carrying a firearm without a license, discharging a firearm within 500 feet of a building, and possession of ammunition without a firearms identification card. The Tribune reports that police were called to the Fern Street neighborhood due to reports of a man firing up to six gunshots “over his head.” During the early morning hours, a neighbor heard commotion and went to his window where he saw a pair of men. One of the individuals was “holding a gun over [the other person’s] head.” After repeatedly firing the gun, witnesses stated that the man walked into an apartment on Fern Street in Lawrence.

The police arrested this defendant and three of his roommates. The paper reports that one of the roommates was charged with disorderly conduct and resisting arrest while the other two were charged as keepers of a disorderly home. Police recovered a .32-caliber semiautomatic handgun behind the home. Shell casings were also recovered from the street.

If you have been charged with any crime, you must contact a Massachusetts defense attorney to ensure that all of your rights are protected. In any case where “possession” of the alleged item is an element of the crime and experienced trial attorney can evaluate whether filing a pre-trial motion to suppress the evidence is a viable option. A successful litigation of a motion to suppress evidence means the suppression of the physical evidence and often times dismissal of the case against a defendant.

If you have been charged with a criminal offense, it important that you contact a criminal attorney familiar with the elements that the government must prove to secure a conviction. For example, to prove the crime of discharging of a firearm within 500 feet of a dwelling or other building in use you can face a penalty ranging from by a fine of not less than fifty nor more than one hundred dollars or by imprisonment in a jail or house of correction for not more than three months, or both. However, there are exceptions to the enforcement of this law that include the lawful defense of life and property; any law enforcement officer acting in the discharge of his duties; (c) persons using underground or indoor target or test ranges with the consent of the owner or legal occupant thereof; (d) persons using outdoor skeet, trap, target or test ranges with the consent of the owner or legal occupant of the land on which the range is established; (e) persons using shooting galleries, licensed and defined pursuant to statute; and (f) the discharge of blank cartridges for theatrical, athletic, ceremonial, firing squad, or other purposes in accordance with the statute.

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The Massachusetts Supreme Judicial Court, in a 4 to 1 decision, ruled that the Bristol County District Attorney’s Office misinterpreted the “dangerousness statute” when proseuctor’s moved for detention against defendants charged with illegal possession of a firearm. The Supreme Judicial Court ruled against Bristol County District Attorney C. Samuel Sutter’s interpretation of Massachusetts General Laws § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.”

In Commonwealth v. Young, following a § 58A hearing on October 26, 2007, a judge in the District Court, citing “firearm w/o license, FID” as predicate offenses, ordered that the defendant be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief from a single justice pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.” § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court. The Court agreed with the defendant and held that unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the “menace of dangerousness” inherent in the crimes specifically included in § 58A (1). Justice Spina, writing for the majority, explained that, “[U]nlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result.”

If you have been charged with a violent crime or with illegal possession of a firearm in Massachusetts it is crucial that you have an experienced defense trial attorney from the beginning of your case. In order to prove illegal possession of a firearm the government must prove that an individual was in illegal possession of a working firearm. To prove possession the prosecutor must convince the jury that the defendant had actual physical or constructive possession of the alleged firearm. In order to prove constructive possession the government must prove that the defendant had the intent and ability to control the alleged firearm. They must also prove that the alleged weapon was capable of firing. If the firearm was not successfully fired on the first attempt, that is a fertile grounds to develop a successful defense.

Successful litigation of a weapons offense usually includes filing and litigation many non evidentiary and evidentiary pretrial motions. Non evidentiary motions often include a motion to inspect the firearm and for the defendant’s expert to present during any testing [DNA, fingerprinting and test firing]. In this type of offense, as with most offenses when an individual is charged with illegal contraband, an evidentiary motion to suppress physical evidence should be filed.

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According to The Lowell Sun, Eric Sideri, owner of Angela’s Coal Fired Pizza in Tyngsboro Massachusetts, is being held without bail after his arraignment in Lowell District Court. Sideri is charged with kidnapping and beating up a manager, Oliveira, whom he suspected stole $20,000 from the business. According to reports, after the restaurant closed on Saturday night, Sideri cornered Oliveira beating him up with a baseball bat and a stick. Sideri allegedly stuck a large gun in the manager’s mouth and threatened to kill him if he did not answer questions about the missing money.

According to prosecutors, Oliveira claimed that he was taken to the restaurant’s back door and shown “a white SUV with its tailgate open and blue tarp covered with trash bags inside.” Sideri then allegedly told him, “I will kill you and nobody will know.”

The defendant’s attorney painted a much different picture of the events. The defendant claims that a confrontation occurred after Sideri confronted Oliveira about the missing money. Sideri claims that he acted in self-defense during the incident and that Oliveira fabricated the kidnapping and beating story to offset any charges that Sideri would file against him.

Following bail arguments by both sides District Court Judge Michael Uhlarik ordered that Sideri be held without bail. Sideri returns to the Lowell District Court on Thursday when a “dangerousness hearing” will take place.

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In Commonwealth v.Gomes the Massachusetts Supreme Judicial Court held that a probationary condition requiring that the defendant submit to random testing relative to the use of drugs and alcohol was improper. On appeal, the defendant challenged the probationary condition that he submit to random drug and alcohol testing. He did not challenge the condition that he abstain from alcohol and drugs. The defendant was on probation as part of a sentence stemming from convictions for various firearm offenses. Although the defendant was under twenty-one years old at the time of his conviction, there was no indication that he had ever used drugs or alcohol and he had no criminal history that related to illegal drug or alcohol use. Furthermore, the use of drugs or alcohol were not implicated in the offense.

Massachusetts General Laws c. 276, § 87 permits a trial court to “place on probation … any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper …” The primary goals of probation are rehabilitation of the probationer and protection of the public. Massachusetts Courts have recognized that the goals of probation are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.

Relative to the requirement that an individual submit to random drug and alcohol testing, Massachusetts Courts recognize that random drug and alcohol testing constitutes a search and seizure for constitutional purposes under Article Fourteen of the Massachusetts Declaration of Rights. Accordingly, the condition must be reasonably related to legitimate probationary goals in order to withstand constitutional scrutiny. In this case, the court found that an impermissible probationary condition was similar to an illegal sentence. Unless the Commonwealth can demonstrate that random testing was reasonably related to recognized probationary goals for this particular defendant, the impermissible probationary condition will be struck.

In local Massachusetts District Courts such as Newburyport, Peabody, Lowell and Lawrence many defendants do not go to jail as a result of the conviction. Often a defendant finds himself facing prison because he had violated a term of probation and the probation officer moves to surrender him. One possible outcome of this type of hearing is that the individual’s probation is terminated and a committed sentence is imposed. It is imperative that you have an experienced Massachusetts trial attorney representing you during a sentencing hearing to ensure that any imposed conditions are reasonably related to the conviction. This will often avoid a surrender hearing ftriggered from impractical and often unconstitutional conditions of probation.

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According to The Lawrence Eagle Tribune Ed Manzi, 47, of 125 Windkist Farm Road North Andover Massachusetts was arrested and charged with attempted murder, assault and battery, possession of a firearm, malicious destruction of property, intimidation of a witness and related offenses as a result of an incident with his girlfriend, Catherine Lambert. Manzi teaches in Tewksbury Massachusetts and has been suspended from his position without pay as a result of these charges.

Before the altercation the pair and their baby were at Ipswich River Park when Manzi drove off without them. Manzi’s attorney, Anthony Rozzi of Haverhill Massachusetts, maintained that Manzi left the park because Patricia was drinking alcohol in the park. According to the Tribune, when Lambert was packing Manzi’s clothes in a basket he punched her in the face and then struck her in the head with a computer speaker and monitor. She ran to get her mother, Patricia Lambert, who was outside riding a horse.

According to court documents, Patricia Lambert reported that when she asked Manzi to give her the baby he punched her in the face knocking her to the floor. When she stood up, Manzi allegedly took a semi-automatic pistol from her pocket and hit her on the head with it. While hitting her, a live round ejected from the gun. Lambert claims that Manzi hit her on the head and pulled the trigger numerous times. After the gun misfired, Manzi left the area and discarded the gun on Boston Street.

The defense paints a much different picture of the incident. Attorney Rozzi claims that the defendant acted in self-defense. Rozzi maintains that Manzi client was upset because Catherine Lambert was allegedly drinking alcohol at the park. According to the Tribune, Rozzi said there was some pushing and shoving at the couple’s apartment, but Catherine fell over their computer table and which caused her injuries.

Following the hearing the defendant was held without bail pending the outcome of a “dangerousness hearing” scheduled for March 23, 2009. During a dangerousness hearing the District Attorney’s Office is expected to present evidence that Manzi poses a threat to the community and should be held without bail until the case is resolved. Based on the facts of this case, it appears that the defendant will begin to mount its claim of self-defense.

When an individual is charged with assault and battery, assault and battery by means of a dangerous weapon or any other violent offense, self-defense is often a viable claim. In Massachusetts, in order to receive a jury instruction on self-defense the facts must indicate that the defendant must have reasonably believed that he or she was immediately about to be attacked or that his or her personal safety was in immediate danger. The individual must also have done everything that would be considered reasonable to avoid physical combat before resorting to force and must use no more force that was reasonably necessary in the circumstance to defend himself or herself. If self-defense is properly asserted during the trial, the instruction will also indicate that the District Attorney must prove beyond a reasonable doubt that the defendant did not act in self-defense

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According to the Lawrence Eagle Tribune, a North Andover man was arrested and charged with attempted murder, assault and battery with a dangerous weapon, assault and battery on a household member and illegal possession of a handgun. According to the paper, the defendant allegedly beat up his live in girlfriend then attempted to shoot her mother when she tried to protect her. It is also alleged that the defendant pointed a gun at the woman’s mother however, the gun did not fire. It was reported that the police found a loaded semi-automatic weapon within blocks of the incident.

The woman was treated at the Lawrence General Hospital, located in Lawrence Massachusetts, for injuries as a result of the beating. She obtained a restraining order from the police. The defendant was arrested on a fugitive from justice warrant in New Hampshire.

If you have been the defendant in a restraining order it is important that you know your rights. The complaining witness must demonstrate to the judge that he or she has reasonable apprehension of immediate physical harm. The fear or apprehension must be reasonable and also must be rimminent. Initially, a temporary restraining order usually issues. The defendant is supposed to be served with a copy of the order and generally there is a court hearing within one week. If the defendant does not appear and the complainant requests a continuance of the order, the order is routinely extended. The order can be extended for up to one year at a time. Upon expiration of the order the complainant can request that it be continued, however the defendant has a right to be present.

If an individual is the recipient of a restraining order in Massachusetts, it is important that he or she reads all of the conditions. For example, some of the orders simply order that the defendant not “abuse” the complainant. Other conditions may provide that the defendant “stay away” from the complainant and sometimes children.

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On September 12, 2008, the Massachusetts Appeals Court reversed Harold Pierre’s conviction for possession of a firearm holding that the search conducted by the police at the time of the defendant’s arrest was unlawful. The police were conducting a surveillance in an effort to arrest the defendant on an outstanding warrant. Positioned in the area of Pierre’s home, the police observed him exit his residence and walk towards his car. After observing the defendant, the police announced their presence and ordered the defendant, and the individuals that he was with, not to move and to show their hands. The defendant complied and dropped a white plastic bag that he was carrying and put his hands in the air.

One member of the group with the defendant disobeyed these orders and entered the car through the rear passenger door. A police officer observed this individual take a firearm from his waistband and put “something” under the front seat where a firearm was eventually recovered. That individual was charged with possession of that firearm. Pierre was placed under arrest within “thirty seconds” of putting his hands in the air. The white bag that the defendant had dropped was placed in the car because it was raining. A police officer testified that sometime between a half hour and an hour after the car was brought back to the station he assisted in doing an inventory of the car. During this “inventory” he picked up the white plastic bag and removed a pair of pants from the bag. When he removed the pants from the bag, a firearm fell out. Pierre was charged with possession of that firearm and possession of ammunition.

It is well settled law in Massachusetts that under the Fourth Amendment to the United States Constitution and the Article Fourteen of the Massachusetts Declaration of Rights a search conducted without a search warrant are presumed to be invalid. See Katz v. United States, 389 U.S. 347, 357 (1967); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226 (1992). When the police conduct a warrantless search the burden is on the Commonwealth to prove that the search fell within one of the narrow exceptions to the warrant requirement. In the event that you, a family member or a friend, are charged with a crime in which possession is an element that the Commonwealth must prove, the experience and knowledge of a Boston Criminal Defense Attorney is necessary in order to mount an attack on the search that led to the possession charge. By successfully challenging the police conduct in searching an individual, home, car or other location, the Court will suppress the evidence and the case will likely be dismissed.