POST CONVICTION SUCCESS

O’BrieN

LAW OFFICES

Case 1 

December 2011 - Defendant found guilty after trial of indecent exposure. On appeal Defendant argues evidence was insufficient to support a conviction since the Commonwealth failed to prove at least one person was actually offended by his behavior, as is required under Massachusetts law. Appeals Court agrees, reverses conviction, and enters judgment for Defendant.

Case 2 

September 2011 - Defendant charged with making a false motor vehicle license, making a false report while serving as a public official or employee, and two counts of conspiracy. During the trial, the judge closed the courtroom while an undercover police officer testified so his identity would remain secret. Defendant successfully argued that this violated her Constitutional right to a public trial. A Motion for New Trial was allowed by the Superior Court.

Case 3 

April 2011 - Defendant found guilty of rape and sentenced to 4-6 years state prison. On appeal, Defendant argues that verdict was legally inconsistent since it was impossible for jury to acquit on the greater offense of aggravated rape by joint venture yet at the same time, find Defendant guilty of simple rape using the co-defendant's body part. Appeals Court agrees, reverses and vacates conviction. Defendant is immediately released from custody.

Case 4 

December 2010 - Defendant pled guilty to failing to register as a sex offender. Defendant argues that plea was not made knowingly, voluntarily, and intelligently since he was not provided with effective assistance of counsel as his attorney failed to properly investigation whether the defendant even had a duty to register. Trial judge agrees, vacates conviction and resulting sentence before dismissing the charge entirely.

Case 5 

August 2010 - Defendant pleads guilty to OUI 2nd offense, along with various other motor vehicle driving infractions. Defendant argues that plea was ineffective since it was not made knowingly, voluntarily, and intelligently. He also claims he was not provided with effective assistance of counsel. Trial judge agrees, vacates conviction and resulting sentence, and grants Defendant a new trial.

Case 6 

April 2009 – Defendant convicted of filing a false motor vehicle insurance claim. During trial, prosecutor elicited testimony from Defendant that she had been a passenger in three other automobile accidents over the preceding nine years and that she claimed injuries in each. On appeal, Defendant argued that the introduction of this evidence was irrelevant and unduly prejudicial. Appeals Court agrees, vacates judgment, and awards new trial.

Case 7 

January 2009 - Defendant appeals from the denial of her motion for a new trial in which she attempted to withdraw a guilty plea for assault and battery. Appeals Court determines that her plea was not intelligently made since judge did not probe Defendant's understanding of the elements of the crime. Defendant's motion to withdraw guilty plea and for new trial allowed.

Case 8 

August 2008 – Defendant originally found guilty of carrying a firearm without a license. Defendant argued that a new trial was warranted because his prior attorney was ineffective for his failure to challenge, at the initial Motion to Suppress hearing, the legality of the stop and the arresting officer’s violation of his own inventory policy, which specifically prohibited the search of locked glove compartments. A Motion for New Trial was allowed by the District Court and the defendant eventually succeeded in suppressing the firearm found in the vehicle.

 Case 9

June 2008 - Defendant originally found guilty by jury of assault with a dangerous weapon. Defendant argued that a new trial was warranted because her prior attorney was ineffective for his failure to conduct a proper investigation prior to trial and to introduce into evidence, proof of the alleged victim’s racial bias toward the defendant. A Motion for New Trial was allowed by the District Court.

 Case 10

August 2006 - Defendant convicted of distribution of a class A substance and distribution of a class A substance in a school zone. The findings of guilt were premised on an out-of-court statement made by the alleged purchaser. Defendant argues on appeal that statements violated his right to confrontation in accordance with Crawford v. Washington. Appeals court agrees, judgments are reversed, and the findings are set aside. 

 Case 11

July 2006 - After jury trial, Defendant convicted of OUI 4th, leaving the scene of property damage, failure to stop for police, and operating after suspension. On appeal, Defendant argues she is entitled to a new trial because she was never allowed a separate trial to determine whether her OUI was in fact a subsequent offense. Defendant further argues that her motion for required finding of not guilty should have been allowed at trial on the count of operating after suspension. Trial judge agrees and allows a new trial on the charge of OUI subsequent, and reverses the previous finding of guilty on the charge of operating after suspension.

 Case 12

May 2006 - Defendant convicted of receiving a stolen motor vehicle, larceny, and possession of burglarous tools. Defendant argues on appeal that his motion to suppress all evidence should have been allowed and that the Commonwealth, at trial, failed to prove that the defendant possessed tools that could be considered burglarous. Appeals court agrees, reverses prior denial of motion to suppress, reverses all convictions against the defendant, and enters judgment in his favor. 

  Case 13

February 2006 - Defendant convicted of indecent assault and battery on a person over the age of 14 years old. Defendant contends on appeal that judge improperly held it against him that he failed to testify on his own behalf at trial. Court ruled judge's actions were improper. Judgment vacated on appeal.

  Case 14

December 2005 - Juvenile defendant convicted of receiving a stolen motor vehicle. Defendant argues on appeal that as defendant was merely a passenger in said vehicle, he could not be considered to "possess or control" the vehicle, which is a required element of the crime. Defendant also argues that the Commonwealth lacked enough evidence to warrant a conviction, and that the restitution award was erroneous. Conviction initially affirmed by Appeals Court. Application for Further Appellate Review allowed by the Massachusetts Supreme Judicial Court. Judgment ultimately reversed by the SJC.

  Case 15

May 2004 - Defendant convicted of trespass of property. On appeal, Defendant argues prosecutorial misconduct as he repeatedly states in his closing argument that the evidence was "uncontroverted." Appeals Court determines that prosecutor's statements improperly commented on Defendant's failure to testify and vacates conviction against the Defendant.

  Case 16

April 2003 - Defendant convicted of two counts of assault and battery with a dangerous weapon, assault and battery on a police officer, and disturbing the peace. Defendant argues on appeal that defense counsel erred by not requesting, and judge erred by not giving, an instruction on self-defense. Appeals court agrees and vacates all convictions against Defendant.

  Case 17

April 2003 - Defendant found guilty of malicious destruction of property over $250; a felony. On appeal defendant argues insufficient facts to warrant a conviction since Commonwealth failed to introduce any evidence of the value of the property allegedly destroyed. Appeals Court agrees, reverses conviction against defendant finding him guilty of only the lesser included charge of malicious destruction of property under $250; a misdemeanor. Appeals Court remands the defendant's case back to trial court for re-sentencing.

  Case 18

 December 2002 - Defendant charged with threatening to commit a crime and assault with a dangerous weapon. Defendant argues in motion for new trial that prior defense counsel was ineffective in entering into evidence, information from a 58A hearing which alleged that Defendant stalked and harassed the victim, and was considered to be dangerous. Trial judge agreed with Defendant, found prior defense counsel to be ineffective, vacated the defendant's convictions, and awarded him a new trial.