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Com. v. Hinckley3/12/1996
In a criminal case, evidence that the defendant refused to turn over his sneakers to the police so that investigators could determine whether they matched shoe prints found at the scene of a crime was improperly admitted in violation of the defendant's privilege against self-incrimination protected by art. 12 of the Declaration of Rights of the Massachusetts Constitution; the error was not harmless where the case against the defendant was wholly circumstantial and where the prosecutor argued and the Judge instructed that the jury could infer the defendant's guilt from the defendant's refusal. [264-267]
A criminal defendant who did not preserve an objection on constitutional grounds to testimony that he had refused to turn over his sneakers to police so that they could be compared to shoe prints at the scene of a crime was entitled to raise the issue on appeal, where his trial occurred before this court rendered its Opinion of the Justices, 412 Mass. 1201 (1992), and decided Commonwealth v. Lydon, 413 Mass. 309 (1992) (stating that admission of such refusal evidence would violate a defendant's privilege against self-incrimination protected by art. 12 of the Declaration of Rights of the Massachusetts Constitution), and where under Commonwealth v. D'Agostino, 421 Mass. 281 (1995), the defendant was entitled to the clairvoyance exception from waiver of the issue. [267-268]
FRIED, J.
The defendant refused to turn over his sneakers to the Commonwealth in the course of a criminal investigation. Evidence of this refusal was admitted at his trial. We now decide in accordance with our prior decisions that the admission of this refusal evidence violated the defendant's State constitutional privilege against self-incrimination and that his failure to object to the admission at trial does not preclude his raising the issue on appeal before his convictions become final. Accordingly, we reverse the judgments of the Superior Court and remand for a new trial.
I
On November 20, 1991, a jury convicted the defendant and his half-brother, Craig Martin (brothers) of breaking and entering in the daytime and larceny in a building. The Commonwealth presented evidence that sometime after 4:20 P.M. on March 16, 1991, the office at the town of Yarmouth landfill was broken into and a safe was stolen. Damage to a garage window and the office door indicated that entrance to the office had been gained through the garage. The safe, weighing 500 to 600 pounds, was kept under a table in the office. Physical evidence established that the safe was forced through an office door that led to the outside, transported across the landfill's property on a dolly (also taken from the landfill), and deposited near an alley behind a shopping plaza adjacent to the landfill. Outside the landfill office window and office door, the police found at least two different sets of shoe prints.
At approximately 8:20 P.M., the brothers arrived at the apartment of a friend of Martin in a car registered to the defendant's girl friend. Martin asked his friend if he would help them move something. The friend agreed and followed them in his own car to the alley behind the plaza. The friend helped the brothers lift the safe into the back of their car and cover it with a quilt. After leaving the alley, the two cars pulled to the side of the road to aid a female friend of theirs whose car had broken down. After a brief conversation, the brothers agreed to give the woman and her companion a ride to her apartment. Once at her apartment, the brothers and the friend moved the safe into the apartment and the brothers began to pry it open with a crowbar and a sledgehammer. Although they succeeded in removing t
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