Articles Posted in Motion to Suppress Statements

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Kuokwing Wu, 59 years old from Brooklyn New York appeared in Peabody District Court and plead not guilty to charges of indecent assault and battery on a child under 14. According to The Salem News, the 10 year old boy and his 13 year old brother were in a restroom in the mall near the food court when Wu reached over and pulled out the waistband on the 10 years old pants.

The boys promptly reported the incident to their mother who reported it to mall security. According to reports, the description given by the boys matched Wu who worked at one of the establishments in the food court. Wu was questioned by the police and a friend of his interpreted. According to the Salem News Wu maintained that he pulled at the boys shirt to show him that it was wet. The boys claimed that the shirt was dry. The defendant was held on $10,000.00 cash bail following a bail hearing in the Peabody District Court. Wu will return to Peabody to answer to the criminal charges next month.

A defendant charged with this type of offences, or any type of crimnal charge including assault and battery, must have an experienced criminal lawyer on his or her side to ensure a favorable outcome. In Massachusetts, a conviction for indecent assault and battery can result in incarceration and have collateral consequences of having to register as a sex offender. Depending on the facts of the case, the strategy developed early on by a Massachusetts criminal defense attorney can have an impact on the case. For example, in a case where the defendant gave a statement to the police a motion to suppress the statements is often a viable option. Before the police question a defendant who is in “custody” they must inform him or her of the “Miranda Rights.” In short, the police must inform the defendant that he or she has a right not to speak with the police, has a right to have an attorney present for questioning, that if he or she cannot afford an attorney one can be appointed to him or her and that anything he or she states can be used against him or her in court.

In appropriate circumstances, an experienced Massachusetts defense attorney presents the argument that the defendant was in “custody” when questioned by the police and that he or she did not knowingly and intelligently waive these rights. Successfully suppressing an inculpatory statement can often result in removing a powerful piece of evidence from the Commonwealth’s case.

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According to The Salem News, Maureen Fogwell, 57, from North Hampton New Hampshire was arrested as she drove away from the Salem Massachusetts Courthouse last week following her arraignment for driving under the influence of alcohol as a second offense. After spending a week in the women’s prison in Framingham, Ms. Fogwell admitted to the offenses and was sentenced to a 60 day mandatory minimum sentence for driving after her license was suspended for an OUI related offense. The judge also imposed a a six-month jail sentence which he suspended for two years. During this probationary term she must enter and complete a two week in patient alcohol program.

In Massachusetts, failing to complete terms of probation may result in a defendant receiving a notice of surrender and a surrender hearing occurs. During this type of hearing the probation officer must produce reliable evidence that the probationer violated the terms of his or her probation. In the event that an individual is found to have violated the terms of his or her probation, the penalty can be the maximum sentence that can be imposed for a conviction of the crime. In this case, Ms. Fogwell could face up to two and one half years in jail if she does not successfully complete probation.

In Massachusetts, the prosecution must prove that a defendant was driving a motor vehicle, on a public way and was under the influence to secure a conviction. An experienced defense attorney is necessary to review the particular facts of an individual’s case to determine how to proceed at trial. Depending on the circumstances of the case it may be appropriate to demonstrate that the defendant was not driving, that the road was not a “public way” i.e., that the public did not have a right of access and that he or she was not under the influence. In the event that a defendant was arrested as the result of a roadblock, made statements or was in a motor vehicle that was searched, there may be grounds to file a motion to suppress evidence and/or statements.

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Popular swimming phenom and eight gold medal winner Michael Phelps has been suspended by USA due to the picture of him holding what is believed to be a marijuana bong. The now famous picture of Phelps surfaced in Star magazine. According to reports, the incident occurred in November, when Phelps attended a house party while visiting the University of South Carolina. Phelps has apologized to his fans and referred to his behavior as regrettable. Phelps has never tested positive for any banned substance.

Phelps has been in the spotlight before for “regrettable behavior” including a previous conviction for operating under the influence of alcohol often referred to as driving under the influence or DUI in Massachusetts.

In Massachusetts, a conviction for driving under the influence can carry a sentence of up to two years in jail. The District Attorney has to prove that you were driving a car on a public way and that you were under the influence of alcohol. Any one of these areas should be challenged when defending an OUI case in a Massachusetts. To prove operation the District Attorney does not have to show that you were actually driving. Massachusetts Courts have held that starting the engine of the car or making use of the power provided by the engine constitutes operation. Massachusetts Courts have held that putting the keys in the car’s ignition can be enough to establish operation.

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On April 24, 2008, while on patrol in the area of Route 95 southbound a State Trooper saw a gray Mercedes-Benz, traveling approximately five feet from the car in front of it. The Trooper’s “attention was drawn” to the “very short distance” between the cars. According to the police report, “as the Mercedes traveled along in the left lane it drew closer and closer to the Ford. The Ford pulled into the middle lane and the Mercedes travel past it. The Mercedes was subsequently stopped.” The Trooper requested the operator’s license and registration. The operator produced his passport and informed the Trooper that he did not have his license in his possession. At that time, the Trooper asked the defendant to step to the rear of the Mercedes. According to the police report, the defendant stated that another police department took his license when he was arrested the previous week. The Trooper then asked the defendant what he was arrested for and he allegedly stated that he was arrested “for distribution of Oxy.”

According to the report, when the defendant was “at the rear of the vehicle,” the Trooper “pat-frisked” the defendant. During this procedure, the Trooper felt what he believed was a “round vile” in the defendant’s right front pocket. The Trooper asked the defendant what he was feeling and the defendant allegedly stated, “It’s a bottle of Oxy and Suboxone in it.” The Trooper retrieved the glass vile from the defendant’s pocket and claimed to visually confirm that the tablets were Oxycontin. During the search of the Mercedes the Trooper located a silver screen/grater with “white powder residue” along its edges. The Trooper asked the defendant what the metal screen was and he allegedly responded that it “was a screen . . use[d] to shave Oxy into powder . . . to snort.”

The Commonwealth often questions a suspect and acquires inculpatory statements that are used against him or her at trial. A defendant’s statement can be the most compelling evidence used by the Government to secure a guilty verdict. In any case where the police have secured a statement of the defendant, a motion to suppress the statement MUST be filed. It is well established that in order for a defendant’s statement to be introduced at trial the Commonwealth must demonstrate that the statement was given freely, voluntarily and intelligently. Before the police question a suspect they must inform him of rights commonly referred to as the “Miranda Warnings.” These warnings include that a suspect be told of his or her right to remain silent, that anything that is said can be used against him or her and the right to an attorney and if he or she cannot afford one the state will appoint one.