Recent Noteworthy Appellate Results


Massachusetts Appeals Court, May 2019

The defendant was convicted of felony larceny by single scheme, that he intended to defraud the alleged victim through a contract made under false pretenses. On appeal, the conviction was reversed, the verdict set aside and a judgment entered for Attorney Driscoll's client. The evidence was insufficient to prove beyond a reasonable doubt that the defendant intended to defraud his alleged victim at the time the contract was executed. Notably, the defendant started performance under the contract and the the alleged victim secured a no contact/stay away order that prevented the defendant's further performance under the contract. This case echoed that where there is no criminal intent present at the inception of the contract the matter is civil, not criminal.


Massachusetts Appeals Court, April 2019

The defendant was convicted of breaking and entering with felonious larceny. On appeal, the judgments were reversed, the verdicts set aside, and judgments entered in favor of Attorney Driscoll's client. The only evidence implicating the defendant was a cigarette butt with his DNA impressed, which suggested that he smoked the cigarette at one time. But it did not exclude the equally reasonable hypothesis that he smoked the cigarette at an earlier time and someone else transported the cigarette butt to the scene – either intentionally or accidentally. The evidence was insufficient to prove beyond a reasonable doubt that the defendant was both present at the scene of the crime and at the time of the crime.


Massachusetts Supreme Judicial Court, March 2019

The defendant was arrested while sitting alone in a stolen vehicle, in the passenger seat. The trial court suppressed the defendant's incriminating statements made during his arrest. On appeal, Attorney Driscoll argued that the police lacked probable cause for arrest because they did not investigate whether his client knew that the vehicle was stolen before the arrest. The intermediate and highest state appellate courts agreed with Attorney Driscoll, affirming the trial court's suppressed order. This case differentiates the justification required for reasonable suspicion versus probable cause when the suspect's "knowledge" is relevant. Here, the police failed to establish probable cause via a Terry stop inquiry before making an arrest. Therefore, all evidence gathered as a result of that arrest was suppressed as fruit of the poisonous tree.


Supreme Court of the United States, November 2017

The police saw the defendant receive a firearm from one of four men while in a public driveway and then enter a vehicle that drove away. The police followed the vehicle and made an armed vehicle stop to arrest the defendant, who was later convicted of felony possession of a firearm and ammunition without a license. On appeal, the denial of defense counsel's motion to suppress all evidence stemming from the vehicle stop was challenged. The appellate court agreed, the mere possession of a gun or ammunition is not a crime and neither is the private transfer of a gun. But the appellate court upheld the convictions on the basis that a gun transfer conducted in a public driveway was sufficiently suspicious for the police to believe an unlawful gun transaction was talking place, justifying the vehicle stop with an arrest for officer safety. Attorney Driscoll pursued the matter with a petition for a writ of certiorari to the Supreme Court of the United States. The issue raised was grounded in Forth Amendment jurisprudence and the case law of Delaware v. Prouse and progeny. If it is unconstitutional for the police to stop motor vehicles to discover the driver's license status, then is it also unconstitutional for the police to stop a vehicle to discover a passenger's firearm license status? Certiorari was denied, leaving the issue open for another day.


Massachusetts Appeals Court, February 2017

The defendant was convicted on two counts of felony assault and battery with a dangerous weapon, a knife. On appeal, the judgments were reversed and the verdicts were set aside. Attorney Driscoll's argument challenged the prosecutor's question to the testifying defendant asking whether the defendant reported his self-defense claim to the police. Doing so was error, pursuant to the U.S. Supreme Court precedent of Doyle v. Ohio. That error prejudiced the jury because self-defense was the defendant's theory of defense and the Commonwealth sought to undermine that defense in violation of Doyle v. Ohio. The trial judge's curative instruction was ineffective for two reasons. First, it was not administered until the morning after the prosecutor's improper question. Second, and more importantly, the curative instruction assumed the defendant did not answer the prosecutor's question. But he did. The purported curative instruction neither struck the defendant's answer nor instructed the jury to disregard it.