William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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In a breakthrough ruling for police and prosecutors, the state’s highest court has ruled that the Massachusetts Declaration of Rights (embodied in the state Constitution,) permits police to secretly break into a suspect’s car for the purpose of covertly installing a GPS tracking device.

Not only is the ruling a major boost to police investigators, but the Supreme Judicial Court’s (SJC) ruling was unanimous – which is somewhat of a rarity at the SJC. The decision, written by Justice Judith Cowin, upheld the drug trafficking conviction of one Everett H. Connolly, of Cape Cod. Connolly was convicted of a drug trafficking charge after he was tracked by State Police and found to be in possession of an amount of cocaine weighing 124 grams. The State Police were able to track Connolly, because in 2004, while in his vehicle, Connolly sold crack cocaine to an undercover police officer in Harwich. Police did not arrest Connolly in that undercover operation, but instead applied to a judge for a warrant to place a GPS tracking device in his van, to track his movements further. On Aug. 31, 2004, State Police installed the GPS device inside Connolly’s van while it was parked at his apartment complex.

When Connolly returned from driving to New York – where police had learned he obtained his cocaine – State Police tracked him on Route 6, stopped him and seized the van. Inside, they found the cocaine. After trial on the drug possession and trafficking charges, Connolly was sentenced to 12 to 15 years in state prison by Barnstable Superior Court Judge Gary Nickerson. On appeal, the court ruled that police use of GPS devices as an investigative tool – even when secretly breaking into a vehicle in order to install the device – does not violate the ban on unreasonable searches and seizures found in the Massachusetts Constitution. The ruling, however, requires that two conditions must exist before a GPS device could be secretly placed in someone’s vehicle: “The Commonwealth must establish, before a magistrate… that GPS monitoring of the vehicle will produce evidence” that a crime has been committed, or will be committed in the near future; and 2) The tracking units can only be installed for 15 days. By contrast, in most other matters, search warrants remain in effect for just seven days.

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I often wonder how people in some professions can sometimes do what they do, unavoidably exposed to what they must see as part of their work, and not give up entirely on the human race, the human condition. Beyond my own profession as a Massachusetts criminal defense lawyer, I’m thinking of two other professions: law enforcement and news reporting – because those two professions see the worst of what our world has to offer. Reading what follows, you will know what I mean.

Damian Merida is (almost was,) a 30 year-old Guatemalan. He immigrated to this country when he was young, after most of his ten brothers and sisters preceded him here, because they were living in a dirt-floor house inside a poverty-wracked village that had almost no food, medicine, employment, or future. As it had for so many others before his family, the United States beckoned as a place where a chance at making something of yourself, a chance at a decent life, still existed. He and his siblings settled in Lynn, Massachusetts. While he entered the country without legal approval – and while I can already hear the far-right’s cries of “He’s “an illegal” – he got what he deserved,” the fact remains that what I will describe was done to him, had no relation whatsoever to his being a legal or illegal immigrant. He could have had a file folder full of stamped and certified immigration papers on him, and this savagery would have happened anyway. (It’s also a fact that if any of the conservative right found themselves living in a dirt-floor hut in a dirt-poor country with no hope and no future, they’d enter this country any way they could, legally or illegally.)

On July 22, As Merida slept under a shade tree in Robert McManus Field in Lynn, a wide, grassy park about a mile from his house, a pack of children allegedly descended on the 30-year-old landscaper, and savagely beat him with a mix of bricks, bottles, sticks and rocks. The savage and inhuman attack has provoked questions and incited fear throughout this city and beyond, because according to the Lynn Police Department, Merida was targeted solely because of his ethnicity. His alleged attackers are six boys age 11 to 14; most were on championship sports teams, and one is an immigrant himself, from West Africa. Hate ran through their young veins – hate almost certainly inspired and cultivated by parents and older youths. Authorities are investigating whether this same group of boys was responsible for an attack in the Lynn area two weeks prior to the attack on Merida, on another man from Guatemala. Lynn police are urging the victim to come forward.

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It’s stories like today’s, which would make anyone outside of the profession of criminal law or law enforcement, pause to wonder what it is inside people that causes them to sometimes act the way they do. Not me. As a Massachusetts criminal defense lawyer, I’ve seen it all. Yet today’s post is no less unfortunate than those that have preceded it.

The Worcester County District Attorney’s office reported yesterday (Labor Day,) that two Fitchburg area teenagers were killed in a fight that began over a parking space in a driveway outside a party. The Worcester district attorney reports that Nelson Geraldino, 18, was stabbed multiple times and that Pedro Genoa, 17, was shot in the abdomen and suffered other injuries in the early Sunday morning fracas in Fitchburg. Genoa’s 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds. Three suspects have been arrested: Two brothers who were injured in the fatal confrontation, Orville Carrion, 22 and Jose Carrion, 27, have been charged with murder and are being held without bail. Genoa’s 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds, and has been charged with assault with intent to murder and mayhem. Mayhem, as my website explains, is an aggravated form of assault and battery. This charge essentially alleges that the defendant either did or had the intent to dismember the victim or otherwise inflict grevious bodily injury, such as slashing someone’s face or amputating an appendage (ear, finger, foot, etc.) A knife or blade is commonly involved with such a charge.

Based upon my experience as a Massachusetts murder defense lawyer, I smell either alcohol or some other drugs involved here – in the sense that they caused this fight to escalate to murder, not in the sense that this was necessarily a drug deal gone bad (as can often be the case.) This case may have been a variant of road rage, a crime increasing in frequency. My advice to anyone involved in such a situation: Keep your head calm and your wits about you. Getting cut off in traffic, or losing a parking space to an inconsiderate boor, is nowhere near worth risking your life and freedom for.

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This case is an interesting example of the importance of prosecutors – and defense counsel – taking care to watch what they say in their closing arguments to a jury, and of how a case can go awry in the last minutes of trying it.

In Berkshire Superior Court last year, a jury handed down a guilty verdict in a rape, assault and battery, and kidnapping case. Regrettably, rape cases are tried frequently in Massachusetts, and this case didn’t seem like any major exception. Except that in this case, the prosecutor went a little too far in his closing arguments. Non-lawyers usually don’t know this, but attorneys in criminal (and civil, for that matter) cases cannot just say’ anything they want’ to a jury, in their opening and closing arguments. Rather, opening and closing arguments must be limited to the evidence and the facts, and avoid inferential or suggestive comments to the jury. (Forget what you usually see on TV.) Sometimes, that line can be a hard one for a trial judge to find, but this case serves to better illustrate where that line is, in criminal cases.

In a ruling issued by the Massachusetts Appeals Court on September 1, the court vacated (meaning, disallowed) the rape ,assault and battery, and kidnapping convictions against one David E. Garcia, who was convicted in 2008 for the May 2006 rape, kidnapping, and assault and battery of his girlfriend, who at the time was 22. Because of a lengthy criminal history, Garcia was sentenced to 10 to 12 years in state prison. That’s one long stretch in a pretty unpleasant place. In trial testimony, the woman told the court that Garcia raped her after an argument over his allegedly cheating on her with another woman. The victim testified that Garcia would not let her leave his home, nor would he let her use the phone, at varying times hitting her and punching her during the ordeal. According to testimony, Garcia did not bring her home until the next day. (In case you’re wondering, the defendant’s act of not allowing the victim to leave the house is what constituted the kidnapping charge and conviction. Again, forget what you think you know about “kidnapping” from TV shows and movies, where only strangers “kidnap” someone.) Garcia acknowledged all of the above, but claimed that the sex was consensual.

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In another example of how professional sports players are anything but angels, or icons that should be praised, a former New England Patriots football player received a two year jail sentence earlier this week in Norfolk Superior Court in Dedham, for the statutory rape of a 15 year-old girl who attended the high school where he was a football coach. Daniel Villa was sentenced earlier this week after he decided to plead guilty to charges of enticing a minor and statutory rape of a 15 year-old student at Walpole High School, where he worked as a football coach. In addition to the two year jail sentence (which Villa will serve in a County House of Correction, not state prison,) he was also sentenced to seven years probation, banned from working with children less than 16 years of age, and ordered to register as a sex offender with the Massachusetts Sex Offender Registry Board (SORB.)

In pleading guilty to the charges and avoiding a trial, Villa told the judge he was “Thirsty for a clear conscience.” While this may be true, and while Villa’s lawyer also said that his client wished to spare the victim and her family the additional pain that a trial would likely bring, it also seems that Villa’s lawyer did not feel that the former NFL player could prevail at trial. One of those reasons: Prosecutors say Villa sent the girl thousands of text messages, and the sexual acts cited, were alleged to have taken place repeatedly.

Statutory rape differs substantially from a “normal” rape or sexual assault charge. A charge of statutory rape does not necessarily allege that any violence or coercion took place, only that the victim was under the age of 16. The victim may have been an entirely willing participant in the sexual acts engaged in, and may even have initiated the alleged sexual acts, but Massachusetts law presumes that a person under the age of 16 does not possess the “capacity” to provide consent to sex. “Capacity” refers to the intellectual, emotional, mental and developmental skills necessary, to provide a knowing “consent” to such acts. Some people believe this legal theory is invalid and based on puritanical thinking that gave rise to many laws in Massachusetts that originated hundreds of years ago, but it is still the law and hence must be observed.

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I’m sure you read and hear of cases every day where judges hand down sentences to criminal defendants. Less frequently reported, are cases of a judge being threatened with some type of harm as the result of the sentences they mete out.

Just such a case occurred recently in Suffolk Superior Court, where a man who was previously sentenced by a West Roxbury District Court judge for an OUI offense, allegedly threatened the judge after she handed down her most recent sentence against him. Peter Hrycenko was charge with intimidation of a Massachusetts judge after he allegedly sent a threatening letter to the judge’s home on Dec. 23, 2007. Three days prior to that date, judge Coffey had sentenced Hrycenko to serve one year of a two-year jail sentence for operating after the suspension of his license for a prior OUI conviction.

At issue in this trial, was not so much the letter itself, but the intent behind the letter. The letter, which was introduced into evidence during Hrycenko’s trial that began August 11, recited the following language: “”I am as shocked writing this letter, as you may be receiving it. I’ve known of your residence for years and as upset as I have been towards you, I have never retaliated against you or your property because it is not who I am. Please take the time to read this as I want you to fully understand the toll your harsh sentences have taken on me and my family.” The letter goes on to complain about the sentence Coffey imposed on him in 2007 as well as a previous occasion in 2000. Hrycenko also describes a knifepoint attack “behind your court” and mentions an earlier conviction for rape. According to court documents, Hrycenko was found guilty of aggravated rape and sexual assault of a hitchhiker in 1988.

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In a painful lesson that alcohol is not the only drug that causes death when mixed with driving, a 25 year-old woman was killed this past Sunday when her car was hit in a head-on collision by a car driven by a drug-addicted driver. Alison Regan, 25, who was a special needs teacher at the Boston Higashi School in Randolph, died when a truck driven by Eric Lum, 29, of Randolph struck her car head on. She died in the collision. Police found Regan on Route 28 on the Quincy-Milton line still belted into her 1989 Oldsmobile Cutlass, bleeding profusely from her head. The car’s roof had caved in and no air bags had deployed, according to investigators. The school released a statement Monday saying it was “deeply shocked and saddened” by her death. I’m sure they are, as I’m sure are many others who knew Ms. Regan.

The defendant, Eric Lum, 29, of Randolph, appeared in Quincy District Court yesterday and pled not guilty to Massachusetts motor vehicle homicide and other related Massachusetts drug charges and Massachusetts vehicular charges. Lum was ordered held on $100,000 bail. State police and prosecutors said the 29-year-old Randolph man was driving a stolen SUV that crossed the center line of Route 28 just after midnight on Sunday and slammed head-on into a car driven by Ms. Regan. State troopers reported finding a bent, burnt spoon coated with a “brown oily residue” and a syringe in the wreck of the Ford Explorer Lum allegedly stole from his grandfather Walter Seyfert, 82. Though Lum denied using or injecting heroin prior to the crash, the defendant’s father, Ronald Lurn, 55 referred to him as “a long-term junkie,” and said the 210-pound stock car-racing enthusiast has been addicted to heroin for more than seven years.

After his son’s arrest and arraignment, the elder Lum told reporters, “”For the Regans, it’s horrible. For us, there’s some salvation that he won’t end up dead. “You think of a heroin addict as a bum in the street. That’s not always the case. We’ve done everything we could from being overbearing, to too lenient, to enablers.” Shockingly, the defendant’s grandmother – the wife of the defendant’s grandfather from whom the defendant reportedly stole the truck that killed Ms. Regan – had something different to say: “He’s a good boy,” Florence Seyfert, 81, insisted of her grandson yesterday as she left his arraignment, pushing past reporters. To make matters even worse, the defendant, according to police, fled into nearby woods after the crash. When police apprehended him about an hour later, he reportedly said that he “didn’t think it was fair” he could be jailed, state police allege.

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In my previous post on this shocking story, I discussed the horrific details of how the stench of rotting flesh led a Worcester, Massachusetts landlord to discover the apparently murdered body of one of his tenants, 23 year-old Darlene Haynes. His discovery afterward that the once-pregnant victim’s abdomen had been sliced open, the fetus ripped from the womb and stolen, has sent shock waves through the world. News outlets from Britain to Australia have reported this event, and once the murderer(s) and “kidnappers” of this now-born baby are found, charged and tried, the story will only get larger still. So far, only one suspect has been arrested in this case: One Julie A. Corey, a 35year-old woman who was found in a New Hampshire homeless shelter with a newborn baby that authorities believe was ripped from the Massachusetts murder victim’s uterus.

As sickening as this case is, it presents interesting legal questions – at least, from a Massachusetts criminal defense attorney‘s perspective I want to address these, initially, here.

• Why has the defendant not been charged with murder? Because while authorities believe that Julie Corey was either involved in this Massachusetts murder or possibly committed the murder herself, they have yet to either secure enough forensic evidence to support a charge of murder, or obtain a confession from Corey. Investigators are now developing that evidence.

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As a Boston, Massachusetts criminal defense attorney, I’ve seen a lot of horrific crimes. Truly, shocking acts. But what was discovered in Worcester this past few days, would leave anyone stunned beyond words: Not only was a 23 year-old woman found murdered in her apartment, but the 8 month-old fetus she was carrying had been cut out of her womb.

The murder victim and the baby’s mother was Darlene Haynes. Apparently a rather troubled young woman, Haynes was, at age 23, the un-wed mother of three other children, age 5 years to 18 months, with the 18 month-old in the care of the state Department of Children and Families. The other two children, ages 3 and 5, were being cared for by Haynes’ mother. Police said the 23-year-old had apparently been dead for several days, and that she hadn’t contacted family or friends since Thursday. The gruesome discovery of Haynes’ body was made by her landlord, William Thompson, who said a “horrifying smell” led him to her apartment, where he found her body wrapped in bedding in a closet. While her death was ruled a Massachusetts homicide, the exact cause of Haynes’ death has yet to be determined pending toxicology tests, At this point, the autopsy indicated Haynes suffered head injuries.

Major developments in this murder case occurred yesterday, when the baby that had been cut from the victim’s uterus was located, and a suspect in this murder was arrested. Surprisingly, (some would say shockingly,) the baby appeared to be in good health. Julie Corey, 35, of Worcester, Massachusetts, and a male companion were arrested in the town of Plymouth, New Hampshire, where police found them with the baby. Corey was charged as a fugitive from justice and is to be arraigned in District Court in Concord, New Hampshire today. As of the time of my posting, Corey was in custody and could not be reached for comment; it is unclear at this point whether or not Corey has a lawyer. Police in New Hampshire said the man found with Corey was released, and is not a suspect at this time. (So much for the oft-stated claim by feminist groups, that women don’t commit violent crime, but only men.)

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Like seemingly everyone, I’ve watched this incident take over the media cycle for the past several days, and sweep across the globe (as in the world, not the Boston Globe,) who seem to be doing all they can to ring the racism bell, with frightening speed. I shook my head when I saw Al Sharpton jump in. But when I saw the President of the United States not only address this incident during a nationally televised press conference, but essentially endorse Mr. Gates’ version of these events, I was truly shocked.

As a Boston criminal defense attorney who has seen his share of racially-motivated crimes and offenses, from assault and battery to rape and murder, I’m offended that Henry Gates Jr. dared to blame this incident on racism. “Racism”, by the way, is a vastly overused term, by both the public and the media. In its purest form, “racism” is a virulent, hateful belief system that regards certain categories of people (whether based on ethnic background or national origin,) to be inherently inferior – and undeserving to live or enjoy any of the dignities or freedoms that a “superior” race enjoys. The most notorious examples of this: Hitler’s death camps in World War II; the mass exterminations in Rwanda, Bosnia and Darfur. If this incident occurred as Gates described it – which by all credible accounts it did not – then it would be accurately characterized as “bigotry” or “prejudice”. But most people don’t know or care to know the difference, and the media loves the word racism.

So unrealistically sympathetic has been the overall media reporting of Gates’ version of these events, the vast majority seem dare not even suggest what all the objective facts indicate: That Gates’ overblown and bombastic ego caused him to make accusations against the arresting officer, which have no basis whatsoever in reality.

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