Case History
Brian A. Kelley, Attorney at Law
Two recent Superior Court Jury wins!
Attorney Kelley recently had two jury trial wins both in Superior Court.
On June 14, 2012, Attorney Kelley successfully defended a case in Plymouth Superior Court where his client was wrongfully accused of rape. The trial proceeded over several days. The allegations came after a 9 year delay. The jury took only one hour to acquit the client of 9 indictments.
The second jury trial occurred on July 25, 2012 in Suffolk Superior Court and the client was facing similar indictments. The Commonwealth presented evidence over 3 days including explaining the 2 year delay and lack of physical evidence. However, the jury took 3 hours to acquit the client of all five charges.
Attorney Kelley successfully defends date rape case
Plymouth Superior Court, July 2011
Client was accused of rape by his girlfriend. During the trial the defense was able to draw out that complainant's father had told the complainant not to see the client. She continued to see him and after catching the daughter in the act of seeing the client – she claimed rape. During the trial the defense was able to demonstrate that the complainant had continually contacted the client on Facebook and the complainant contradicted herself about many of the details of the allegation when she testified.
The jury was out less than one hour and found the client not guilty of all the charges.
Juriors Facebooking During Trial
BROCKTON — The attorney for a Bridgewater woman convicted in the theft of $350,000 from Bridgewater State College is seeking a new trial, saying that jurors violated trial rules by asking for comments about the case on Facebook. Clare Werner, 63, a former bookkeeper at the college, was sentenced Thursday to three years in state prison. After the sentencing in Plymouth County Superior Court in Brockton, Werner's court-appointed attorney, Brian A. Kelley, said he filed a motion for a new trial as a result of the actions of the jurors. The jurors, according to Kelley, committed violations during the seven-day trial by posting messages about the case on their Facebook.com pages.
"They were inviting comments about the case on their pages," Kelley said in an interview. "This may have had some influence over the jurors' opinions ... This is a violation of the juror's oath." Kelley said he believes a hearing will be held in May on the motion for a new trial. Meanwhile, officials at Bridgewater State College said Thursday's sentencing brought closure, after more than three years of dealing with the case.
In remarks at the hearing, college President Dana Mohler-Faria said the day marked "the conclusion of a deeply unfortunate and disappointing chapter" in the college's history. "The nefarious and unlawful actions of one individual have cut deep into the professional fabric of the college," said Mohler-Faria, later adding that the "outcome of this trial has brought with it well-deserved and long-overdue vindication." Werner was sentenced to prison on six counts of larceny over $250. After the completion of the sentence, she will serve five years of probation on six other counts of larceny over $250. She was also ordered to pay $350,000 in restitution.
A Plymouth County Superior Court jury had convicted Werner on April 7 of 12 counts of larceny over $250. Bryan Baldwin, chief of staff for Mohler-Faria, said the college has hired an internal auditor and taken other steps to improve its financial controls since the thefts occurred. The case began in August 2005, when Bridgewater State College and the state auditor's office notified the state attorney general's office that more than $350,000 was missing from the Student Accounts Office at the college. According to a joint investigation by the attorney general and state auditor, Werner used her position to steal cash payments made by and on behalf of students, along with other sources of cash.
Werner, an employee in the Student Accounts Office since 1978, was responsible for processing and preparing daily cash and check deposits for transport to the college's bank. According to the attorney general, Werner used her access to the daily deposits to steal cash from the cashier's deposit bags. To cover up this scheme, Werner used checks coming into the Student Accounts Office to serve as replacements for the stolen cash, the attorney general said. During the trial, Kelley, the defense attorney, argued that the college had lost most of the money on its own and that Werner was a scapegoat. Kelley said Werner had admitted to taking $9,500 from the college, but argued there was no evidence she had stolen the larger amount.
Article from Enterprisenews.com
BROCKTON - A 21-year-old city man has been convicted of involuntary manslaughter in the March 2008 shooting death of 15-year-old Olivier Baptiste during an argument over the return of a video game.
William Suarez, who has been jailed since the shooting, was sentenced to serve four to six years in state prison by Brockton Superior Court Judge Paul E. Troy. Because Suarez will be credited with time already served, he will be eligible for parole in March 2012.
A 12-member jury also found Suarez guilty on a charge of unlawful possession of the firearm used in the shooting. Tory ordered Suarez to have five years of supervised probation following his release from prison, with the added condition that he not possess any weapons, including firearms.
On March 25, 2008, Baptiste, a sophomore at Brockton High School, was visiting Suarez, then 18, in his apartment at Battles Farm Drive, four doors from where Baptiste lived with his mother and sister.
Evidence during the trial showed that a disagreement occurred as Baptiste was leaving, prosecutor Thomas Flanagan said. The youth picked up a video game, the battle simulator "Call of Duty 4: Modern Warfare," from the counter, and Suarez ordered him to give it back.
When Baptiste did not return the game, Suarez pulled a gun from his waistband, pointed it at Baptiste and pulled the trigger, but the gun did not fire. He then repeated the act, and this time the gun fired, hitting Baptiste in the right temple and killing him.
Suarez's lawyers, Brian Kelley and Michael Zeman from the Committee for Public Counsel Services, argued that Suarez did not know the gun was loaded when he pointed it at Baptiste and pulled the trigger, and only wanted to scare him.
Flanagan argued that Suarez should have known the gun was loaded because he and his friends had fired it days before.
Suarez, a 2007 graduate of Brockton High School, was indicted by a grand jury on charges of murder and unlawful possession of a firearm.
Calvin Vasconcelos, now 20, who was 17 and living in the apartment with Suarez at the time of the shooting, was indicted on a charge of second-degree murder and unlawful possession of a firearm in the same case. He is awaiting trial, Flanagan said.
Client found not guilty of armed robbery.
May 2010 Plymouth Superior Court, the client was charged with robbing a Brockton gas station in the morning. The police arrested the client nearby and did a show up identification. (A highly questionable but typical procedure where the police bring a suspect of a crime back to a crime scene to permit the witness to attempt to identify the suspect.) The police described a positive identification by the gas station attendant. Attorney Kelley filed a motion to suppress the identification. During the hearing on that motion, it was learned that the identification procedure was done from a distance of about 120 feet away. The case proceeded to trial in May of 2010. The Commonwealth introduced a statement that the client had told the police he was with the two kids who did it, but he remained at the edge of the property and never went into the store. During investigation, the 911 tape surfaced where the gas station attendant described the assailant as 5'5 – 5'6". The gas station clerk also said that the assailant was bulky or muscular. The client was 5'11" and very thin.
At trial the gas station clerk, who was 6'4" attempted to change his prior statement regarding the description. However the jury was able to hear 911 tapes with a clear description that did not match the client and a sweatshirt located nearby was introduced. The sweatshirt was XXL.
The jury agreed with the defense theory that the police had arrested the wrong person and acquitted the client.
Client found not guilty in shooting case.
November 2009 plymouth superior court
This case involved a shooting at a fast food store in Brockton. Prior to the incident, the client and one of his friends, the co-defendant, were involved in a fight on the Bat Bust that had arrived from Dorchester.
During the fight one of the client's friends was stabbed. After the stabbing, the client and the co-defendant followed one of the participants of the fight. The incident was caught on camera. Although the client was never seen holding the weapon, the Commonwealth charged the client with the shooting as a participant in a joint venture. The client made a gesture toward his neck and the co-defendant shot at the victim but missed. After he was arrested, the client gave a full statement to police stating that he was attempting to de-escalate the fight and did not know about the gun. During trial the defense was able to establish that the victim didn't see the gesture and had no memory of what was said to him.
A key technical legal issue in this case was the Motion to Redact certain statements made by the defendant regarding his activities prior to the shooting. He made statements to the police indicating that he was on his way back from New York where he had bought some marijuana, only to learn later that the marijuana was fake. He was with the co-defendant the entire time. Because the defendant argued, the statements were irrelevant and prejudicial, the statements were not produced to the jury.
The jury found the client not guilty of all charges.
Client found not guilty of gun possession.
Plymouth Superior Court September 2009
Client was at a Fourth of July party in Brockton. During the party, there were over 20 kids present and some were milling about in the street and the driveway. A gun shot went off. The police arrived within minutes and found a shot gun lying on the ground in the driveway. When they started to question people, they found a willing witness in a man who lived there. He told police that the gun was the clients. At trial, the defense introduced that the client was involved with the witness's ex-wife and the witness himself was on probation for larceny. Furthermore, despite having the opportunity to find evidence such as gunshot residue and fingerprints, the Commonwealth failed to even test for such evidence.
After a 2 day jury trial the defendant was found not guilty.
Client wrongfully accused of rape.
Plymouth Superior Court October 2008,
The only evidence in the case was the testimony of the complainant. There was no physical evidence or documentary evidence. There were no other witnesses of any kind. The client made a full statement to police denying the allegations.
After a 4 day jury trial in which the client testified the jury found the client not guilty.
Client found not guilty of driving under the influence, after Jury Trial.
Plymouth Superior Court, March 2008
Client charged with operating under the influence after being in a minor car accident. After the accident she had a brief conversation with the other driver but told him that she had to leave. The driver reported to the police that the client had left the scene and he reported the client's plate number to the police. The client's home was close by and the police arrived there before she did.
The Police claimed to see her walking unsteadily up the driveway, which has a long incline. The officer spoke to her briefly and despite having a long walkway available, did not conduct a field sobriety test. The Client did not submit to a breathalyzer, but on the video that depicts her booking, she is seen looking a little unsteady on her feet but having almost no difficulty speaking to officers.
Furthermore during discovery, Attorney Kelley was able to acquire a recording of officers talking over the radio about the client. The officer on scene states on this recording that he has no "probable cause to arrest" the client for OUI because he didn't see her driving. The dispatch officer is heard saying to arrest the client because he has "probable cause." The on-scene officer testifies at trial that he did see her driving. Attorney Kelley played the tape for the jury demonstrating the police officers inconsistent statements.
The jury found the client not guilty of OUI.
Client found not guilty of possession with intent to distribute.
Plymouth Superior Court October 2008
The Client was stopped in a gas station by a State Trooper who then searches his car. The trooper finds several bags of drugs, which are later determined to be several types of drugs including a bag of Marijuana. The Commonwealth charged the client with possession of those drugs with the intent to distribute them. Their case at trial would rest on the opinion of Brockton Detective Thomas Keating of the Brockton Police Department as an expert – who would have testified that the pills, packaging and amount, were consistent with a street level delivery service. The defense in this case conceded that the client possessed the drugs and possessed them for his personal use. The defense also challenged the testimony of Detective Keating asserting that the detective did not have the background or education to offer an opinion in the drugs that were found in Mr. Colon's vehicle.
The court agreed and refused to allow the offered testimony. Without an expert, the Commonwealth was unable to prove the element of intent to distribute and the defendant prevailed on a motion for a required finding on so much of the indictments as alleged intent to distribute.
The defendant pled guilty to the remaining possession charges and received probation.
NOTABLE MOTIONS
Client charged with stalking in violation of restraining order.
Plymouth Superior Court has case dismissed by the Supreme Judicial Court. In defending the charges, Attorney Kelley sought to dismiss the charges because the Commonwealth had improperly introduced acts that the client had pled guilty to, in violation of the double jeopardy clause of the United States Constitution. Although the Superior Court denied Mr. Edge's motion, the client sought review to the Supreme Judicial Court. The SJC ultimately agreed with Attorney Kelley and dismissed the indictments.
See Kenneth Edge v. Commonwealth, 451 Mass. 74 (2008).
Clients case dismissed after her statements are suppressed.
Police and fire personnel arrived on the scene of a mildly damaged home and found client and others in the driveway of the home. At the time, client was not a suspect. She was later questioned at the Brockton Police Department after she went to the police station on her own, and asked about her recent break up with one of the occupants of the home.
The interview was recorded. For close to two hours the client denied having anything to do with the fire, or setting the fire. The State Police used a variety of ruses to cajole client to admit but she continued to deny any involvement. In the second hour, the client told police she needed to leave to get her son out of school. The police would not let her leave and kept questioning her. She asked if she could use the phone to call someone to pick up her son. The police ignored her request. During a motion to suppress hearing where Attorney Kelley challenged the legality of the police action, the court ruled that when the client asked to leave her questioning had become custodial and Miranda was required. Because that didn't happen, no Miranda was given and police continued to pressure the client into confessing – the statement was suppressed and the case was dismissed from the Plymouth Superior Court.
Clients case dismissed due to police intentionally misstating facts about client.
Client was living in Brockton with his girlfriend and one other person when his parole officer came to his home with an officer of the Brockton Police Department, on a routine visit to client.
The police report claimed that when they knocked on the door they heard someone say one minute and some furniture moving around. When the door was answered by client, the officer claimed he was out of breath and glassy eyed. The parole officer and the police officer went inside and noticed the couch seemed to be disheveled. The police officer then began searching the home and found $8,000 in cash in the cushions of the couch, an amount of drugs in one bedroom, and a scale in the other bedroom. The police also found approximately $4,000 cash in another bedroom of the apartment.
When confronted with the money, client told police that the money was for his girlfriend's cousin who was trying to make bail. He also told police that his girlfriend had a receipt from a bank where the money was withdrawn from. Officers later spoke to client's girlfriend who indeed did have a receipt and bank statement showing where the money had been withdrawn from.
When the evidence was collected, the officer who collected it (different than the officer who searched) noted on the evidence envelope which room the drugs were located in and which room the cash was located.
According to the parole officer, he had been to the home prior to client's release and understood that client would be living there with his girlfriend.
When the case was presented to the grand jury the officer (the same officer who searched the home) stated that (1) the drugs were found in client's room; (2) the scale was found in clients room; (3) client had no explanation of where the money had come from; and (4) all the money was located in the same place – in the cushions of the couch.
The defendant requested an evidentiary hearing on a Motion to Dismiss based on O'Dell. The defendant introduced a map drawn by the officer who searched the apartment demonstrating that more than one bedroom was in the apartment. In addition, the defendant introduced the evidence envelopes demonstrating where the drugs and other drug paraphernalia were found. Lastly, the defendant elicited testimony from the parole officer that he knew which bedroom client was staying in before he was even released on parole. None of this evidence was presented to the grand jury.
After the hearing the court found that the Brockton officer who testified before the grand jury had misled the grand jury and ordered the indictments dismissed.