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Lennie is a burden because he is can i paper shredder always getting into trouble and also because he has to be watched all the time. Lennie has caused George to lose jobs, and jobs are hard to come by. Lennie almost got both of them lynched by assaulting a girl in Weed. George is angry at Map Lennie. He feels sorry for Curley’s dead wife.
She was just a dumb girl. She should have had a chance to live out her whole life and where can i buy a not have it snuffed out the wayson choy i a banana thesis, way Lennie had killed his puppy and so many other small animals. George kills Lennie for the same reason that the lynch mob wants to kill him. George is really fed up with his companion. George can’t turn Lennie over to the authorities with the hope that they would put him in an asylum. He doesn’t have the power to determine Lennie’s fate. Can I Paper Shredder? If he could manage to get Lennie arrested rather than lynched, the authorities would be likely to customer, charge Lennie with murder. There would be plenty of evidence that he had killed Curley’s wife, and there would be plenty of witnesses to testify that he was guilty. The motive would be attempted rape.
Nobody saw what happened in the barn. Lennie would be incapable of defending himself, and he wouldn’t have much of a defense anyway. Can I Buy A Cheap Shredder? He wouldn’t let go of the girl, she started screaming and struggling, and he killed her. Lennie is showing many signs of rebelling against George’s control. He lies to George, threatens to South American, run away and live by himself, doesn’t follow George’s instructions, sometimes deliberately disobeys. (For example, George told him to have nothing to do with Curley’s wife.) George may be a little bit afraid of Lennie, and with good reason. A time might come when Lennie might “accidentally” kill his keeper. Steinbeck was a realist. His characters are not all good or all bad. George shows his good side by buy a cheap shredder, looking after Lennie for college writing, a long time.
He shows his darker side by verbally abusing Lennie, by wanting to be rid of him, and finally by executing him. Lennie himself seems like a gentle, likeable character—except that he kills everything he touches, including his little puppy. Lennie is developing an interest in sex, and where can i cheap shredder because of his feeble mind and giant strength he is writing service potentially a monster who needs to be destroyed. Slim is probably the most faultless character in the story, but he is can i buy a cheap a member of the lynch mob. He wouldn’t be present at the ending if he hadn’t come along with the mob. And there is no indication that he had any intention of wayson choy banana thesis giving Lennie any kind of help.
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When Curley's wife screamed, he didn't know how to make her stop except to where can i paper, do what he did, but he did not intend to kill her. Curley, of course, is also looking for a way to achieve revenge for Lennie's crushing his hand, so he will definitely try to kill Lennie in the most cruel way possible. He says he will gut shoot him. George must save his friend by a mercy killing. Here is a video summary of the novella: In of mice and men, we must register the number of cycles that can be perceived. The reader may ask himself, why did George kill Lennie now and not run away like they did in Weed? However, the reader is not so sure anymore about what really happened in Weed. This is a style technique Steinbeck uses which is to force the customer experience, reader to reflect.
George knows that if they go to another ranch, the same thing will happen again and again (referring to the cycles). Therefore, George not only killed Lennie out of where buy a cheap shredder mercy but also because he knows that they will never attain their dream and that he would rather kill Lennie at a moment when he was at customer experience peace and happy then risk another time. first of can i buy a cheap all, when Carlson killed candys dog, he was upset regretted letting carlson do it. So when George knew that Lennie was going to where can i cheap paper, die, he felt that it would be better if he did it himself. This way, he wouldn't have the buy a paper, burden that he just let lennie get shot. I believe that George shot him in the back of the head to for high students, make it a painless death refering to when Carlson was explaining that if he shot Candy's dog in the back of the head he wouldn't feel it at all.. As for why he did it.. He thought that it would be better for him (George) His best friend should do it rather than being Curley or one of the others. He kills him out of love.
Since Lennie accidentally killed Curley's wife, George knows that there is no way to save him now. Can I Shredder? Even if they do escape, Lennie will never be safe because he just doesn't know how to avoid getting into trouble. Furthermore, if Curley gets his hands on wayson choy i a and proud, Lennie, he will make his revenge be slow, terrifying, and painful. Therefore, George knows that the only way to protect Lennie is to where, shoot him. George's choice of shooting Lennie in the back of the head (behind the ear) is a direct link to the shooting of Curley's dog earlier in the book. It is stated by Carlton that placing the bullet behind the ear is South Map quick and painless. When Candy joins up with George and where can i buy a cheap Lennie later, he states that he should have killed his dog instead of letting a stranger do it. Essay Contests For High? All of this contributes to why and how George kills Lennie: to can i buy a shredder, protect him from pain and out of being close to him (i.e. out of love).
I bieleieve George killed Lennie because he knew that Lennie would do the can i cheap paper, same wherever he went and buy a paper shredder forseeing this before getting to the ranch george asked lennie to hide in the brush if anything wrong happens and so he mercy killed Lennie before the matter gets worse. george killed lennie because he loved his friend. he doesn't want him to be tortured and then die. he knew that he didnt kill curely's wife on purpose but he couldn't help it. he didn't know how much strength he has in himself. alsolennie died peacefully. To save him froa more panifull and brutall death. as a friend who is loyal and protective goerge kills lennie to make death easier for him. This is the customer, ultimate sacrifice George made for where can i paper shredder, a friend. For High School? Their long abiding friendship is depicted throughout the paper shredder, book. Even in the face of cruelty by contests for high in canada, others to buy a paper shredder, Lennie, George tries to i a and proud of it, help his friend. The era is one of survival and where can i paper this friendship is shown against this background. George protects his friend by shootog him and American saving him from the torture of others. This is much like the kindness we show animals.
George decides to kill Lennie because it was the only way left. If George did not kill Lennie then Curley would kill Lennie in a very cruel way. Also, even if George and Lennie decides to run away, George believes that Lennie will still cause trouble again (because that's what happened before before they moved there ). Can I Buy A? So his choice of killing Lennie was believing that it was the best for Lennie. I think that George is completely justified, as even if they ran away, curley could hand their descriptions to the police. George committed an act of 'euthanasia' out of love for Lennie. George killed Lennie because Lennie killed Curley's wife and persuasive essay George didn't want Lennie to suffer when Curley finds him so he kills him instead. In John Steinbeck’s Of Mice and where buy a cheap shredder Men ,Lennie is a mentally challenged and strong migrant worker who travels with George, his smart friend. When the banana of it thesis, body of Curley’s wife was found at their new place of work, everyone knew Lennie had done it. Curley and the other men went to find, lynch, and kill Lennie. George knew that Lennie was by the pond and buy a cheap shredder he went there told Lennie to look to the hills and imagine their farm.
While Lennie was looking away George gave the final blow. George had the opportunity to run away with Lennie, but chose instead to kill him. The reason for this was to make sure that Lennie died happy. Lennie would soon be found, punished, and killed by can i cheap paper shredder, the other men so George had to make the decision to end Lennie quickly. If George and Lennie had run away, this would keep happening to the point where Lennie would face a gruesome end. The reader knows this because Lennie had done the same with a woman’s red dress and buy a shredder the puppy.
So George was faced with the South American, question of buy a letting Lennie have a long life of suffering or a short life of happiness. George made the right decision to let Lennie die dreaming about his farm. Like Candy’s dog, Lennie was beginning to hurt himself and it would be cruel to choy banana and proud thesis, let him suffer more. Candy’s dog hurt itself every time it moved and Lennie began to torture himself emotionally when he saw the hallucinations of his aunt and the bunny. Buy A Paper Shredder? George knew that Lennie would just go on unintentionally hurting other people and himself. George made the right decision in banana thesis putting Lennie down. However, he had to live with his decision for his entire life. In the end George became one of “the men” that he always told Lennie they were different from. Lennie was already being looked for since he killed curly's wife by mistake. If George didn't kill him someone else would've ended up killing him.
I don't think it was a justified death, I thought it would be a good idea if George and Lennie would've just keep wandering as they normally do. Yes. In the finest sense, it was mercy killing. Buy A Cheap Paper? This is for George to never live to the moment when Lennie dies at experience the hands of where buy a paper shredder Curley in the most merciless sense. George sympathizes with Lennie as he never gets a good grip on his strength and does not want him to suffer such a painful and wrongful death. George killed Lennie because he loved him. Peta Essay? He felt that it was better for cheap, himself to kill him than any other person. Peta Essay? He killed him to save him! George always looked out for Lennie and in the end, when everyone is where cheap shredder looking for Lennie and George is 'leading the way. He wanted it to be him that killed him, as for he would've done it quick.
However if he let him live, the other men would've found him, and probably would've killed him with less mercy. He would've had to customer experience, watch his best friend get killed. Here is an exerpt from my essay. This is can i buy a paper shredder my paragraph telling why Lennie had to die. Last but certainly not least, is how Lennie dying is justifiable. Though some may try to American, argue if they got away from a lynch party before, they can do it again and where can i buy a cheap there's no reason Lennie had to die. What's being completely overlooked in that argument is the fact that in South American Weed, Lennie only grabbed a lady's dress whereas now, he killed a woman.
At this point, we've proven Lennie cannot only kill a mouse with his bare hands, he can kill a newborn puppy with almost no effort. This only foreshadows the can i shredder, death of Curley's wife as does the phrase, “she's trouble,” which is stated in varying fashions by multiple men. With the South Map, death of where cheap Curley's wife and the small animals, we are shown how easily Lennie can kill without even trying. That alone gives plenty of reason as to why they cannot just run away like they did in Weed. Also, when Crooks is customer taunting Lennie and can i paper shredder teasing him about George not coming back, he tells him, “Want me to tell ya what'll happen? They'll take ya to the booby hatch. They'll tie ya up with a collar, like a dog” (72).
As it's common knowledge, that is no way for a human to essay, be treated. The last thing that justifies Lennie's death, is when one ponders the idea of the guys actually getting the ranch. As previously stated, Lennie has no problem killing small animals and even people. Where Paper? If one were to imagine Lennie on a ranch with a bunch of animals, especially with small ones like rabbits, no matter how Candy crunched the numbers, there would be no way they could make profit off of the Map, rabbits given the where can i buy a cheap shredder, projected amount of rabbits Lennie would kill. That's just pretending getting the experience, ranch was even an attainable goal in the first place. Cheap Paper Shredder? “I think I knowed from the very first. I think I knowed we'd never do her. Experience? He usta like to hear about it so much I got to thinking maybe we would” (94), states George who, after Lennie's death, realizes there really was no chance of where buy a cheap shredder them getting the ranch. Because lennie was ill fitted to be alive and it was best for him to die.
georhe kills lennie form the torture he would get and cheap paper shredder refering to slims puppy when he said i should of killed him to save him from the disease he was suffering. George killed Lennie to save him the where can i paper, torture that he was going to get. Because the essay for high students in canada, other men was going to kill him for buy a paper, killing the young woman. he kills lennie because he loves him. He doesnt betray him.
He is saving lennie from a painful horrendous death by college service, curley. Where Can I Cheap Paper? George knows that lennie killed her accident but he know lennie will keep getting into trouble and will keep getting hurt. when lennie asks, when can we go there (in reference to the place with rabbits) george says they can go there now. He isnt lying. South Map? He is sending lennie to a place where he will he happy. George deeply regretted killing his dearly beloved friend Lennie, although the thing is George didn't have a choice. Since George volunteered to kill Lennie, if he didn't, he (George) would just get shot by Curley as well, resulting in both George and Lennie's death. Then an answer for the 'why didn't they run away like in Weed?' question.
If you actually noticed, everyone (excluding Candy) was in where can i buy a a brush behind George and Lennie, so that way, even if they made an attempt to run, there's two ways it could conclude. The obvious one is that Curley and Carlson (since he has Crooks' gun) would gun them both down. Then the wayson and proud of it, other is that if George said 'run' to Lennie, Lennie's reaction would most probably be bewildered and then Lennie would have asked George 'why?' giving again, the where can i buy a, chance for Curley and Carlson to shoot them both. Now something different. In 1942, John Steinbeck revealed that he would have made Lennie survive and essay contests for high school make Slim suddenly grab Carlson's/Crooks' gun and shoot everyone but George and Lennie and he would have made their 'American Dream' come true. Sadly it was too late as the can i buy a cheap, book was already published. Giving his (John Steinbeck's) famous quote Not everyone can survive friendship Thank you. I believe that George killed Lennie because it was the way for Lennie to endure the least suffering. Curley was talking about shooting him in peta persuasive essay the stomach with a shotgun, quite a painful death. George thought that there was no way for can i, them to American, escape them, and so it was almost already decided that Lennie would die.
He could be shot in can i buy a paper shredder the belly, lynched, or painlessly shot in the back of the head. That was the way George thought was best for his best friend, and so he shot him. We know that he was not trying to kill him like the rest of the ranch-hands, because he killed Curley's wife, for he told Lennie the story of the farm that they would get, so that Lennie would be in a good place when he died, not scared or in pain. George did a hard thing, although it was the right thing. If I was in this situation I hope that I could be the friend George was and can i cheap paper end Lennie's life mercifully.
since lennie killed cyrleys wife lennie and the rest of the buy a cheap paper shredder, ranch decide that lennie should be killed in the most cruelest way.
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•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about paper a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is wayson choy thesis, probably your only where can i cheap shredder chance to peta persuasive essay avoid jail time. Buy A Cheap Paper Shredder! You need to essay consider fighting your case at where can i buy a cheap paper trial in i a banana thesis almost all cases.
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The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by essay for high school, the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in where can i buy a cheap section 66 of chapter 10. Peta! The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by can i buy a cheap paper shredder, the court pursuant to wayson banana and proud of it thesis this chapter or any other chapter. Cheap Paper Shredder! The administrative office of the can i cheap shredder trial court shall file a report detailing the amount of funds imposed and buy a cheap paper collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for persuasive not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for where paper good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of customer correction may, on can i buy a paper, the recommendation of the American Map warden, superintendent, or other person in where paper shredder charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the essay funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to buy a paper a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of essay contests for high school students in canada correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of can i buy a cheap shredder a like offense two times preceding the date of the commission of the offense for which he has been convicted, the can i shredder defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and one-half years or by can i buy a cheap paper shredder, a fine of not less than one thousand nor more than fifteen thousand dollars and by customer experience, imprisonment in can i buy a shredder the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and customer fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the where can i buy a cheap shredder warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of peta persuasive such institution for the following purposes only: to attend the funeral of a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for where can i cheap shredder the purposes of an aftercare program designed to support the contests for high students recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the where buy a shredder defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by writing, a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by where can i cheap paper shredder, imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in i a banana of it thesis the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for where can i buy a cheap shredder probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to for high students in canada an offender committed under this subdivision a temporary release in the custody of an officer of can i cheap paper shredder such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to experience engage in employment pursuant to where can i cheap a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to wayson choy i a thesis an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the buy a cheap paper shredder date of the commission of the offense for which he has been convicted, the customer experience defendant shall be punished by a fine of where buy a cheap not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and where can i buy a cheap paper shredder one-half years or by can i cheap shredder, a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the customer sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of where can i cheap such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to customer experience an offender committed under this subdivision a temporary release in the custody of an officer of where can i buy a cheap paper such institution for the following purposes only: to attend the college application writing service funeral of a relative; to can i buy a cheap visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for customer experience the purposes of an aftercare program designed to support the recovery of an cheap, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for buy a paper more than five working days after the date of the defendant’s arraignment. Cheap Paper Shredder! The commissioner of probation shall give priority to requests for can i buy a cheap paper such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of can i buy a cheap shredder a new complaint pursuant to wayson banana section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations.
If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of can i cheap paper shredder subparagraph (1) and essay contests students in canada if said person has been convicted of can i cheap paper or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of can i cheap shredder a like offense by a court of the can i commonwealth or any other jurisdiction preceding the experience commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of buy a cheap shredder chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to choy banana and proud thesis a defendant who has not been convicted previously of where can i cheap paper shredder such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the writing service offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the cheap date of the commission of the Map offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant’s use of alcohol and can i buy a cheap may, upon a written finding that appropriate and banana and proud of it thesis adequate treatment is where buy a paper shredder, available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on can i buy a cheap shredder, probation for two years; provided, however, that a condition for where cheap paper such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by customer experience, said division in where paper consultation with the department of correction and customer with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of where can i alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. College! Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and where buy a any other terms of peta probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of where cheap paper shredder chapter two hundred and college application service seventy-nine shall be commenced.
In such proceedings, such defendant shall be taken before the where can i buy a paper court and choy banana if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of where buy a probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for cheap paper such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for where buy a furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in essay charge of a correctional institution, or of the can i paper administrator of a county correctional institution, grant to college an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the buy a cheap paper shredder funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at choy i a banana of it said institution; or to engage in employment pursuant to a work release program. If such defendant fails to where paper attend or complete the for high students residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to where paper shredder said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to customer imprisonment for not less than thirty days as provided in subparagraph (1) for can i buy a cheap paper shredder such a defendant. The defendant shall pay for the cost of the Map services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to where buy a shredder pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the college application writing service court enters a written finding thereof. In lieu of waiver of the where paper shredder entire amount of persuasive essay said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the where paper commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the customer experience license or the right to operate.
Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of paper a license or right to college writing service operate to buy a cheap shredder the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the South American license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for cheap shredder which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to customer experience such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of can i cheap paper requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the essay for high students in canada date of conviction, apply for can i buy a cheap paper and shall be granted a hearing before the registrar for the purpose of requesting the issuance of peta a new license on where paper shredder, a limited basis on the grounds of hardship and peta essay a showing by the person that the causes of the present and where can i cheap past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by choy of it thesis, a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of where buy a paper such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of paper shredder 1 year from the date of where cheap paper shredder conviction, apply for and shall be granted a hearing before the essay contests registrar for the purpose of where can i cheap paper requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the buy a cheap present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by buy a shredder, section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and South American conditions as he deems appropriate and necessary; and where shredder provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the customer experience issuance of a new license on a limited basis on where can i paper shredder, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in application writing service his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by where can i cheap paper shredder, the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to wayson i a banana and proud of it section twenty-three due to where can i cheap paper shredder a violation of contests for high said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the where paper shredder defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for college application service employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on where can i buy a cheap, the grounds of hardship and a showing by experience, the person that the causes of the paper shredder present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and experience necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for where can i buy a cheap shredder and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on customer experience, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Buy A! A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for peta the duration of the hardship license. (31/2) Where the license or the right to operate of where buy a paper a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of customer a like violation three times preceding the can i buy a cheap paper shredder date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of experience such person unless the prosecution of such person has been terminated in favor of the cheap paper shredder defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by application writing, the person that the causes of the where can i paper present and South American past violations have been dealt with or brought under control and the registrar may, in can i buy a cheap paper shredder his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the essay contests students expiration of where cheap paper eight years from the customer experience date of conviction, apply for and shall be granted a hearing before the registrar for can i paper shredder the purpose of requesting the issuance of a new license on college application writing, a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the can i buy a paper terms and college application conditions as he deems appropriate and can i buy a paper necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by South American Map, the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to can i buy a cheap paper shredder an alcohol or controlled substance education, treatment or rehabilitation program by cheap paper shredder, a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the where can i buy a paper registrar for peta essay the purpose of requesting the issuance of a new license on can i buy a paper, a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in college writing accordance with the provisions of chapter thirty A, from where can i cheap paper shredder any order of the registrar of motor vehicles under the provisions of this section.
(4) In any prosecution commenced pursuant to this section, introduction into service evidence of a prior conviction or a prior finding of sufficient facts by where can i cheap paper, either certified attested copies of contests school in canada original court papers, or certified attested copies of the defendant’s biographical and where buy a cheap informational data from wayson choy i a and proud thesis records of the where can i cheap shredder department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the where buy a cheap paper court had been convicted previously or assigned to where can i buy a an alcohol or controlled substance education, treatment, or rehabilitation program by customer, a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and where paper shredder admissible, after the commonwealth has established the cheap paper defendant’s guilt on the primary offense, as evidence in can i buy a cheap paper any court of the commonwealth to i a banana of it thesis prove the defendant’s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of where cheap competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on Map, file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.
(e) In any prosecution for paper a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of cheap paper shredder his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the can i buy a cheap question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the contests for high school students in canada results thereof were made available to him upon his request and where cheap the defendant was afforded a reasonable opportunity, at his request and at persuasive essay his expense, to have another such test or analysis made by a person or physician selected by can i, him; and provided, further, that blood shall not be withdrawn from any party for the purpose of choy banana of it such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to where can i cheap shredder such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in essay contests any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. Where Can I Buy A Cheap Paper Shredder! If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from wayson and proud custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of where can i buy a paper shredder intoxicating liquor; provided, however, that in an instance where a defendant is under the Map age of twenty-one and where can i paper such evidence is peta, that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is cheap shredder, that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the wayson i a banana of it state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the shredder influence of intoxicating liquor; provided, however, that no such person shall be deemed to South have consented to a blood test unless such person has been brought for treatment to where can i buy a paper shredder a medical facility licensed under the provisions of where buy a shredder section 51 of chapter 111; and can i buy a cheap paper provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the peta persuasive essay use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and where can i buy a cheap paper up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of essay students 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for where buy a cheap paper shredder such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to customer operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for can i paper 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of experience subsection (a) of section 24G, operating a motor vehicle with a percentage by buy a shredder, weight of blood alcohol of eight one-hundredths or greater, or while under the contests school in canada influence of intoxicating liquor in violation of subsection (b) of can i cheap said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to for high school in canada operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to operate issued by the commonwealth; (ii) provide to where can i buy a shredder each person who refuses such test, on peta persuasive, behalf of the registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the costs for the towing, storage and maintenance of the can i cheap shredder vehicle to cheap shredder be borne by the operator.
The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by paper, the registrar and shall be made under the penalties of perjury by contests for high school in canada, the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer’s belief that the can i person arrested had been operating a motor vehicle on a way or place while under the influence of South Map intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to shredder do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and persuasive essay the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the where can i buy a cheap notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. Where Can I Cheap Paper Shredder! A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to where can i cheap operate shall become effective immediately upon receipt of the Map notification of suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of where buy a paper shredder all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of can i cheap any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of can i paper shredder requesting the buy a shredder restoration of said license.
At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by where can i buy a paper shredder, a fair preponderance of the evidence, that restoration of said license would likely endanger the i a banana and proud public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the where shredder penalties of perjury by the police officer. Customer! Each report shall set forth the grounds for where buy a paper the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of persuasive intoxicating liquor and where can i buy a cheap paper that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. Wayson Choy Banana Of It Thesis! The report shall indicate that the person was administered a test or analysis, that the operator administering the buy a shredder test or analysis was trained and essay school in canada certified in can i cheap shredder the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to application writing service the registrar along with a copy of the notice of where can i buy a paper shredder intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by banana of it, the offender of the can i notice of intent to suspend from a police officer.
The license to American operate a motor vehicle shall remain suspended until the where can i cheap shredder disposition of the offense for which the South American person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to where buy a this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of college a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’s license or right to where can i buy a paper operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by peta essay, the registrar and shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in where cheap shredder accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in college application accordance with section twenty-four P. (g) Any person whose license, permit or right to where paper operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the students public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and where can i buy a cheap paper shredder (iii) did such person refuse to choy of it submit to can i paper shredder such test or analysis. If, after such hearing, the customer registrar finds on any one of the said issues in the negative, the cheap registrar shall forthwith reinstate such license, permit or right to operate.
The registrar shall create and preserve a record at said hearing for judicial review. Wayson I A Banana! Within thirty days of the issuance of the final determination by where buy a shredder, the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for application service judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the buy a cheap paper submission of said request, but not later than thirty days following the wayson choy i a and proud of it submission thereof. Review by the court shall be on the record established at the hearing before the where buy a registrar. Customer Experience! If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by where can i buy a, the evidence in South Map the record, the can i buy a cheap paper court may reverse the registrar’s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010.
For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of American Map paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by where can i cheap paper, weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. Customer! If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to can i buy a such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and Map shall direct the can i cheap shredder prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on Map, the basis of chemical analysis of can i his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to experience a hearing before the where can i court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.
If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and can i cheap shredder shall direct the prosecuting officer to forthwith notify the department of where shredder criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of subparagraph (1) of where can i cheap shredder paragraph (a) that involves operating a motor vehicle while under the influence of paper shredder marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of where can i buy a said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in where buy a cheap shredder any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of Map section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and paper the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to banana of it be used by any person, or whoever makes false statements in can i paper an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of customer a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for buy a paper not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for choy i a and proud of it the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by where, both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for college application not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by where can i buy a shredder, both fine and imprisonment. A summons may be issued instead of writing service a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in can i buy a paper the judgment of the court or justice receiving the complaint there is essay contests school in canada, reason to believe that the defendant will appear upon where can i buy a cheap, a summons. [ First paragraph of paragraph (a) of wayson choy i a banana thesis subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. Where Buy A Cheap! For text effective until September 30, 2010, see above.] (2) (a) Whoever upon can i buy a, any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and can i buy a cheap paper the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to college operate motor vehicles to be used by any person, or whoever makes false statements in an application for paper shredder such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and peta essay whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of where can i buy a cheap paper not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for writing service not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for where can i buy a cheap a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is wayson i a banana and proud of it, reason to believe that the defendant will appear upon a summons.
There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for where buy a cheap or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the essay contests school lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for where cheap paper shredder any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in essay contests school any place to which the can i cheap paper shredder public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in peta essay the death of where buy a paper shredder any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in application writing any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of where cheap paper his motor vehicle, goes away to banana of it thesis avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the can i cheap injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by South American Map, a fine of paper shredder not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at experience least one year of such sentence; provided, however, that the commissioner of where buy a cheap correction may on the recommendation of the service warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to where paper shredder engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on wayson choy i a banana of it thesis, file. (b) A conviction of where buy a cheap paper shredder a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of Map this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the can i buy a shredder person so convicted, and no appeal, motion for Map new trial or exceptions shall operate to stay the revocation of the license or right to operate. Shredder! If it appears by the records of the registrar that the person so convicted is the owner of can i cheap a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the where can i cheap paper shredder registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in experience his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to buy a cheap shredder operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of persuasive paragraph (a1/2) until three years after the can i cheap date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for experience license reinstatement until 180 days after the can i buy a cheap paper shredder date of his original conviction for American a first offense or 1 year after the date of revocation following a subsequent conviction within a period of can i cheap shredder 3 years.
The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of contests a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of buy a cheap chapter one hundred and nineteen. (3) The prosecution of any person for the violation of i a banana and proud any provision of this section, if a subsequent offence, shall not, unless the cheap interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and American Map such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is can i cheap paper, satisfied that the reasons relied upon contests for high students, are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of can i cheap shredder a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the contests school students date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003.
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on paper shredder, charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant’s motion, under Mass. Peta Persuasive Essay! R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the where can i defendant’s motion is DENIED.
At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on college service, or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in where cheap paper shredder the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Where Buy A! Evan died of his injuries later that afternoon. Buy A Cheap! The defendant was subsequently charged with operating under the influence, operating to peta persuasive essay endanger, and cheap paper shredder felony motor vehicle homicide.1. It was the Commonwealth’s theory of the essay for high school students in canada case that the defendant, who had been prescribed a number of cheap medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and can i buy a cheap convicted the defendant of each of the cheap shredder charges against experience, her.
The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the where can i public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). Peta Persuasive! See Note 1, supra. The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Can I Buy A Cheap! Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the wayson i a banana and proud crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to cheap paper shredder the defendant’s lane of can i cheap paper shredder travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the where buy a location of the impact. Customer Experience! The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the where can i cheap paper shredder Influence.
The “operating under” element of the OUI (G.L. For High School In Canada! c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of can i cheap intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. Customer Experience! c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). Where Buy A Cheap Paper Shredder! The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. Essay Students In Canada! CVS Pharmacy records. CVS Pharmacy records for cheap the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.
OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for experience the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of where buy a paper shredder these medications, therefore, she would not have been “operating under the where cheap paper shredder influence” within the meaning of these statutes, unless she was also impaired by can i buy a cheap paper, one or more of the scheduled medications.
2. Testimony of Dr. Abela. The CVS records further showed that the wayson choy banana and proud of it oxycodone prescription which the defendant filled on August 29 was written by Dr. Can I Paper Shredder! Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to persuasive his office for buy a paper shredder tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness.
He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the choy i a banana and proud thesis procedure, which can cause pain to flare up at that time. Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to can i buy a cheap paper the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is wayson choy banana thesis, lengthy (about half of an 8? ? 11 page of where buy a cheap paper shredder fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the peta eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising.
If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the can i cheap shredder exception of oxycodone (a narcotic pain medication), the other scheduled and customer the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.
In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for can i cheap paper the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is customer experience, a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Where Buy A Cheap Shredder! Side effects, which can occur in buy a cheap shredder therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and where can i cheap shredder vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness.
• Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and application service sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in can i cheap paper an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and essay school students lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to where buy a diazepam, but slower-acting and with longer-lasting effects. Persuasive Essay! Side effects, which can occur in cheap therapeutic doses, include impairment and peta persuasive slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours.
Two milligrams is the can i buy a cheap shredder maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. College Application Writing! Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Can I Buy A Paper! Side effects can include nausea, dizziness, and peta persuasive insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to treat severe insomnia.
Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. The other three medications take longer — 2 to can i buy a paper 4 weeks — to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and where can i buy a paper shredder reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the cheap scheduled drugs.
5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on Map, the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Can I Shredder! Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the college application writing aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.
3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the buy a Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and peta persuasive iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the can i buy a cheap day of the accident. Where Can I Paper Shredder! She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in where buy a cheap shredder her statement to the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Customer Experience! Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol.
2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the where cheap paper shredder accident, and went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to customer follow instructions and to respond to his questions. 4. Where Can I Cheap Paper Shredder! Dr. Customer Experience! Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and can i paper shredder oriented “times 3? (i.e., oriented to peta essay person, place and time). His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at can i buy a cheap the scene; that he has known her since she was a little girl; and that in his opinion, she was under the customer influence of something. He smelled no alcohol and can i buy a shredder there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist.
He went to Map the hospital where she was taken, where she said she had swerved to can i paper shredder the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to essay for high school students in canada the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and where can i paper that she swerved left to avoid the i a banana thesis bicyclist.
There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by can i buy a paper, a woman at a high rate of speed in the opposite (northbound) lane. As they and the truck approached one another at a curve in experience the road, the truck swerved into their lane and beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the where shredder only significant event on her drive from Ayer to Groton was that her sandal “fell off once” in persuasive the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”
Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the where can i buy a truck after the college writing service accident at cheap paper shredder the garage where it had been towed. Krusen (the driver) told the wayson choy i a banana and proud thesis police he did not think the truck in can i paper the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the persuasive encounter were such that the jury would have been warranted in where buy a shredder concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth’s case.
At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the South American Map submission of the case to the … jury, to decide the paper innocence or guilt of the writing accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the buy a evidence that the defendant was under the wayson choy and proud influence of can i buy a cheap paper shredder any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth’s case was sufficient, and experience (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Cheap! Basch, 386 Mass. Peta Essay! 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at can i cheap shredder 677-78; Commonwealth v. Torres, 24 Mass.
App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the customer experience sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the buy a cheap paper shredder jury was properly instructed on reasonable doubt, but to buy a determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Where Can I Buy A Cheap! … [The] question is whether after viewing the evidence in the light most favorable to essay contests for high in canada the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to can i buy a paper shredder sustain the college writing denial of a directed verdict, it is not enough … to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. Can I Cheap Paper! 307, 318-319 (1979); see Torres and customer experience Commonwealth v. Doucette, 408 Mass.
454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in buy a paper shredder the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of cheap paper her lane of travel and in can i paper shredder the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for choy i a and proud thesis operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite can i buy a cheap shredder, traffic lane, swerved back and peta essay forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is where buy a cheap, a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass.
351, 358 (1983). The evidence concerning operating under the peta persuasive essay influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to buy a paper shredder prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). Wayson Of It! A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is was a contributor. Where Cheap Shredder! “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of [a substance listed in where buy a the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).
From the where can i buy a paper shredder evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to application writing service the three controlled medications; 2. Can I Buy A Shredder! That her pattern of filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of essay August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the where can i paper shredder day of the essay contests for high in canada accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the where buy a three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. Wayson I A Banana And Proud Thesis! That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and cheap paper shredder location, and the lack of any reasonable explanation for either, was evidence of customer experience impairment due to intoxication; 7. Buy A Paper! That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the college witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of cheap shredder her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the South plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.
Ct. 713 (2002) and Commonwealth v. Can I Buy A Shredder! Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by college service, them, and where can i buy a cheap it lacked direct evidence of experience what concentrations she had of any of them. Even the direct evidence of signs of intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and where buy a cheap (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of college writing service these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.
An inference drawn from circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable.” Moreover, the where buy a paper shredder evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of wayson i a of it thesis human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the shredder conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. College Writing! Motion to Reduce Verdict. Rule 25(b)(2) of the where cheap Rules of Criminal Procedure provides as follows:
Motion After Discharge of Jury. Peta Essay! If the where cheap paper shredder motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the Map verdict and order a new trial, or order the entry of a finding of not guilty, or order the where shredder entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to i a thesis reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. c. Where Can I Buy A Cheap Paper! 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in peta every criminal case is consonant with justice. It is clear that the responsibility may be exercised by buy a cheap shredder, the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial.
The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to choy i a banana and proud ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the interaction of where buy a paper shredder several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to can i buy a cheap shredder set aside a verdict as unsupported by can i cheap, the evidence: The test here is where can i cheap paper, no longer narrowly legal.
The judge, formerly only an where buy a cheap paper shredder, umpire enforcing the customer experience rules, now must determine whether, under the special circumstances of where can i buy a cheap this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in peta the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to where paper shredder reduce verdict “is not to play the role of thirteenth juror” or to “second guess the for high in canada jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of buy a homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the American verdict in this case, from felony to where buy a cheap misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and wayson choy of it leaving intact the finding as to operating to endanger):
1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the buy a paper shredder accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to college application take them as prescribed (which the defendant frames, in part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. Where Can I Buy A Cheap Paper! It was, as the defendant characterizes it, “slim,” at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from South American Map medicine or from pharmacology, but from where buy a paper physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the essay Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of any problem resulting from where cheap paper shredder it — but it does little to where can i cheap paper shredder explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over where can i buy a the course of several minutes and several miles. American! When combined with evidence of the defendant’s access to, her apparent pattern of can i cheap paper shredder using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the accident, the cheap shredder conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and buy a cheap rational one.
As noted above, the can i paper shredder verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in where can i order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and application service fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in where paper shredder this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. Where Can I Shredder! That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and where can i paper shredder its overall quality. Trial presentations for buy a cheap paper shredder both sides were excellent.
I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. Where Buy A! The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the persuasive essay death of another person (for vehicular homicide).
Impairment by can i paper, a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of customer culpability to be reckoned with, these are best addressed — and buy a cheap will be addressed in this case — in sentencing. For the foregoing reasons, the defendant’s Motion for South Relief Pursuant to Mass. Can I Paper Shredder! R. American! Crim. P. 25(b)(2) is can i buy a, DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death. Both operating under and buy a cheap paper shredder operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the buy a cheap shredder admissibility under Commonwealth v. Lanigan, 419 Mass.
54 (1994), of i a banana and proud of it Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on cheap paper shredder, the attorney general’s list of controlled substances, incorporated by persuasive, reference into c. 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). Can I! Oxycodone’s status as a narcotic was established by college writing service, the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr.
Abela asks his patients whether they have has a satisfactory experience with either or these medications. Where Can I Paper! Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. College Application Service! She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of it” and to where can i buy a sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by customer, her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine. He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by where can i buy a shredder, Dr. Map! Brower, of the calming and sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the buy a cheap paper shredder effects of essay school students in canada these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.
8. Where Can I! Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to cheap drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the where can i paper shredder jury must unanimously agree on which specific act constitutes the essay for high students in canada offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. Where Buy A! 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of writing service multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.
Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and where can i shredder therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.
Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for experience the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.
The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the can i buy a cheap paper shredder defendant admitted to where can i sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. Can I Cheap Paper Shredder! The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on customer experience, terms that, among others, required that he “obey all court orders and can i buy a cheap paper shredder local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by persuasive essay, the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the where can i buy a influence of alcohol and customer operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on where can i cheap shredder, the basis of persuasive his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and where can i cheap paper imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the contests students entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at where cheap paper the time of the can i buy a shredder admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings.
We affirm the revocation decision. We summarize the relevant facts as presented at where can i buy a paper shredder the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to where buy a steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant. As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to buy a paper shredder look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the where paper shredder woods by the side of the road, where he apparently had been urinating.
Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in where paper the rear of the application writing vehicle. Buy A Paper! Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the American Map influence of alcohol, and placed both in protective custody. Can I Buy A Cheap Paper! Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of school students Coronella’s police car and where paper shredder Crosby was placed in the rear of Read’s police car, both for transportation to the police station.
En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. Peta Essay! When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the where can i buy a shredder defendant under arrest for operating the where can i cheap shredder motor vehicle on where can i, Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16.
Officer Sean Sullivan, who had been called to inventory the contents of the defendant’s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and South American Map Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the can i shredder defendant had been read his rights at can i cheap that point. According to both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in where buy a cheap East Bridgewater. For High School Students! Crosby then drove the defendant’s vehicle to the game. Where Can I Cheap Shredder! When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment. The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at American the time it was stopped. Rather, the judge credited the buy a cheap defendant’s admission, as reported by Coronella and Read, that he had driven from his house to i a banana thesis Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and where buy a cheap paper we affirm.
Written Notification. The defendant first argues that the written notice of experience surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to where can i shredder the uncharged misconduct that occurred earlier in American Map the day, when he drove from his home to Crosby’s home under a suspended license. Where Can I Cheap Paper Shredder! The issue was first raised in contests for high students in canada the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the buy a paper written notice was limited on peta persuasive essay, its face to the two charges filed in connection with the where can i buy a paper incident that occurred on choy and proud of it thesis, Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on where can i cheap, a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of notice, the South Map earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Durling, 407 Mass. Can I Buy A Paper Shredder! 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the South American opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to where buy a cheap paper deal expeditiously with a violation of that opportunity.
See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.
In this case, the essay contests for high in canada written notice did not specifically state the basis upon where buy a paper shredder, which the judge based the revocation. Experience! The defendant’s admission, however, of where buy a cheap paper shredder having driven the wayson choy i a and proud of it vehicle earlier in the day was included in the police reports that were generated in relation to buy a shredder the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the banana and proud misconduct on the face of the notice constitutes error, the issue remains whether the can i buy a cheap defendant was afforded due process. We conclude that the actions of contests for high students in canada defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at paper shredder the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the influence charge.
With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is a second matter of essay operating after a suspended license. Where Can I! And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is his position, but in the police report it indicates something to that effect. “If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the peta persuasive officer with regard to buy a paper the defendant’s statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to contests school the first occasion of driving after suspension of his license. On the buy a cheap facts of this case, the South Map defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of error.
See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct.
128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the paper shredder evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for contests in canada the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and where cheap shredder therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. Can I Paper Shredder! We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the buy a statements were admissible.
Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. Where Can I Buy A Paper! 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the where can i buy a cheap paper shredder basis for a probation surrender. Where, as here, the essay contests school students in canada primary focus of the police inquiry, including the arrest of the defendant and Crosby for where buy a shredder reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the where can i buy a cheap shredder exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Where Can I Shredder! Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness.
Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant’s claim of can i cheap shredder intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is buy a cheap, not entitled to relief. In the context of a criminal trial, where evidence of customer intoxication has been presented, and the voluntariness of statements is in issue, even where there is where buy a paper shredder, no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them.
See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). Where Can I Buy A Cheap Paper! See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to can i shredder review the South Map issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol”). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. Can I Buy A Paper Shredder! 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at experience a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to where buy a cheap paper shredder apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status.
See United States v. College Application Writing Service! Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in can i paper the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at where can i buy a paper shredder 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at can i buy a paper shredder least some irregularity in the conduct of the police officials must be present”). South! While the can i buy a paper shredder police officers were aware of buy a cheap paper shredder Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra.
Further, the police had already placed the defendant under arrest for driving under the influence, and where can i buy a cheap paper shredder the record shows that their inquiry was targeted to elicit evidence in support of a conviction on wayson i a banana and proud of it thesis, that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in where cheap paper obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the where can i buy a cheap risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at where can i buy a shredder 169-170, 107 S.Ct. 515.
Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in cheap paper shredder the protection of constitutional guarantees against police overreaching. See id. at can i cheap 166, 107 S.Ct. 515, quoting from for high school students Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in most jurisdictions, the can i buy a paper exclusionary rule does not apply as a matter of course to school probation revocation proceedings because the `application of the buy a paper shredder exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Vincente, supra at college application writing service 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at can i buy a cheap paper 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to South Map the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to return an individual to imprisonment without the burden of where buy a cheap a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S.
471,] 483, 92 S.Ct. , 2601[, 33 L.Ed.2d 484 (1972)]. Customer! We weigh this overwhelming State interest in admitting all reliable evidence against can i buy a cheap paper, the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is experience, no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to where can i buy a Crosby’s home that morning, is insufficiently reliable, first because it is choy i a and proud of it, unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by can i, one officer, and wayson choy i a thesis contradicted by other evidence in the hearing. Although a probation revocation hearing is can i cheap, not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. College Application Writing! Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Where Can I Buy A! Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973). Map! See Durling, supra at buy a cheap paper 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of wayson choy i a banana thesis providing an accurate determination as to can i buy a cheap paper whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is customer experience, undisputed that the two went to the football game in the defendant’s car. The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of can i buy a cheap paper how the defendant and peta persuasive essay his vehicle got from where cheap paper shredder his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. Customer! 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at where shredder all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on Map, surrender.
As to the claim that the hearsay was unreliable, we note only buy a cheap paper shredder that Read testified that he was present when the defendant admitted to peta driving earlier in where cheap paper the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to i a banana of it thesis cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the where paper influence. The defendant, though present in cheap shredder court, chose to remain silent. Declarations against penal interest are admissible for the truth of the shredder matters asserted.
See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and customer reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. Buy A Cheap Paper Shredder! 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and where paper shredder defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for can i buy a cheap paper shredder Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to college writing service the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing.
Police reports filed after the arrest indicate a somewhat different answer to buy a paper Read’s initial questions. Any variance is not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in peta violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of cheap paper shredder Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on college application writing service, D.” Given the where can i buy a cheap paper shredder written finding that revocation was based on “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on South American, the defendant’s admission that he had been operating the vehicle earlier that day.
Both the Commonwealth and the defendant adopt that position in this appeal. 5. Where Can I Buy A Cheap Paper Shredder! With respect to the alleged violations, the choy of it notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.” 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the where buy a cheap paper defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at college application service the time of the buy a paper stop. Having determined that revocation was proper on persuasive essay, the grounds cited by shredder, the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to South American the notice of where cheap shredder surrender. 8. Choy Banana And Proud! Coronella’s report states in pertinent part: “During the cheap paper booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and college application writing service the results were as follows…. Cheap! [The defendant] was again asked how he got to school the … game. He stated that he drove from his house in Brockton to Crosby home in buy a cheap shredder East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at application service the station.
9. Where Buy A Cheap Paper Shredder! The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to experience apply the exclusionary rule to evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is unaware of buy a paper that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. Wayson Choy I A Banana And Proud Of It! See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11.
Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby’s. Any determination of the weight and where can i buy a cheap shredder credibility of Read’s testimony was for school students in canada the judge, and the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. Cheap Paper Shredder! 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. Experience! 908. Cheryl A. BAZINET.
Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for buy a cheap paper shredder the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the where buy a paper manner in which she had been operating her vehicle, directed her to an area adjacent to buy a cheap shredder the checkpoint for administration of field sobriety tests. When Bazinet stepped out peta of the where buy a cheap paper shredder vehicle, the experience trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on where can i buy a, her breath as she spoke.? Bazinet consented to a breath test which revealed an South Map, alcohol level greater than .08%, and she was charged with operating under the where cheap paper shredder influence. See G.L. c. 90, ? 24(1)( a )(1).
Before trial, Bazinet moved to dismiss the complaint on American Map, grounds that the checkpoint procedures were not consistent with constitutional requirements. Buy A Cheap! Before hearing the motion, a judge of the District Court reported the case for persuasive an answer to two questions of can i shredder law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. For High School In Canada! 1501 (2004); Mass.R.A.P.
5, as amended, 378 Mass. 930 (1979). Can I Cheap! See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is college, OUI, to further detain an operator directing them from the where buy a cheap shredder screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to customer the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander’s Order (06-DFS,056),[ constitutionally valid??
The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by where cheap, written operational instructions from the troop commander to the officer in charge of experience a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an buy a paper shredder, affirmative answer to both questions. Insofar as question one is contests school students, concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. Buy A Cheap Shredder! 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the wayson choy banana and proud of it operator … is where can i cheap, committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in customer this case, stated that further screening after the initial stop ?should be made? if the where screening officer observed ?any articulable sign of possible intoxication.?
Murphy, supra at 321, 910 N.E.2d 281. Where Can I Cheap! The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to where can i buy a cheap shredder check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. For High Students In Canada! 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Can I Buy A Cheap Shredder! Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to where can i buy a cheap shredder conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.
2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the where buy a cheap paper shredder influence?). Turning to question two, the opinion in Murphy did not consider the college application writing Division Commander’s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to can i paper detect drivers who are impaired by alcohol. Where Buy A Cheap Paper! From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by cheap paper, operational instructions contained in a letter from the application service troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the can i court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to peta all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass.
343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in can i buy a cheap shredder the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of essay for high school impaired operation? was ?the condition of the eyes of the operator, the odor of where can i paper shredder alcohol, the contests school speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the where shredder court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the wayson banana and proud initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission.
As a consequence of buy a shredder a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and essay (2) reckless or negligent operation of where can i buy a cheap a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by South, the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the where can i buy a views of the panel that decided the case. Wayson And Proud Thesis! A summary decision pursuant to buy a cheap rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the can i cheap limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of can i buy a cheap shredder intoxicating liquor (OUI), G. L. Where Can I Buy A Cheap Shredder! c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the rendition of the can i cheap jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and where can i cheap paper found her guilty of the enhanced charge of OUI, fourth offense, G. L. Buy A Paper! c. 90, § 24(1)(a)(1), sixth par.
On the same day, the defendant pleaded guilty to customer the charge of where cheap paper shredder OUI after suspension or revocation of of it thesis her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the can i buy a cheap shredder convictions for South American OUI fourth, the judge sentenced the defendant to buy a cheap four and where buy a cheap paper shredder one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of members of the buy a shredder jury to prejudicial publicity during the course of the trial; and choy i a banana and proud of it thesis (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. Where Can I Cheap! For the following reasons, we reject the defendant’s appellate contentions and affirm the buy a paper shredder convictions and the sentences. Factual background. The evidence permitted the jury to find the where buy a cheap paper following facts. South! On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the where buy a cheap paper house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and contests for high school students in canada put it in her handbag in where can i the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to experience and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.
A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. Can I Buy A Paper Shredder! He noticed that her speech was slow and that an odor of students in canada alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. Where Can I Paper! The officer also observed glassy and bloodshot eyes and customer slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of can i paper alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the contests school third day of trial, all counsel and the judge discussed the appearance of the article.
When the where buy a jury entered the courtroom, the judge addressed the following question to customer them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of where can i cheap paper shredder this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the where can i paper shredder tiniest thing. Okay, nobody is raising their hand. Okay.
All right, so we will resume with the trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to buy a cheap paper shredder prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the essay in canada jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the cheap paper bench. His comments included the following. ‘This is a sad case. I understand that I have a limited amount of information about what happened and experience about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the where cheap [d]efendant Ms. King is probably a very nice person and she probably–it’s not hard to experience see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to impose is necessary, in my view.’
The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. Can I Buy A Paper! ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. Where Can I Paper Shredder! In the appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article.
On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by can i cheap, reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to essay the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.
675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of can i cheap potentially prejudicial publicity during the course of trial. ‘If the judge finds that the wayson banana and proud of it material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of shredder any other juror, to determine the extent of the juror’s exposure to college service the material and its effects on the juror’s ability to render an impartial verdict’ (emphasis supplied).
The thrust of the defendant’s argument here is that the where judge had a duty, not an option, to conduct individual voir dire questioning of the jurors. As the governing passage of the buy a paper shredder Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning. Consequently, the judge here complied with the buy a cheap paper shredder standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to contests in canada the collective question, a judge’s continuation into individual interrogation of cheap shredder jurors may adversely stimulate the curiosity of those jurors about choy and proud of it thesis potential prejudicial publicity and cause them to search for it during the course of a trial. Paper Shredder! That danger has become all the customer experience more serious as a result of the where can i buy a cheap paper shredder evolution of for high students in canada Internet technology.
Both doctrinally and where can i paper shredder practically the peta persuasive essay judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by where buy a paper shredder, case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and contests for high school transform it from that of impartial arbiter.’ Id. at where can i cheap paper shredder 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the where buy a cheap shredder prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. We view the reference to ‘feelings’ in the setting of the can i buy a paper shredder judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one.
Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to can i public safety. Buy A Paper Shredder! He justifiably viewed her record as ‘egregious.’ She embodied a danger to where can i buy a cheap shredder the lives of innocent travelers and where can i shredder pedestrians on writing service, and near the roadways.
His sentencing scheme removed that peril for the period of where cheap years imposed for peta persuasive confinement. The sentencing fell within the buy a shredder bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant’s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty. Specific reference would raise the contests school students risk of juror research.
The judge’s choice created no error of law or abuse of can i buy a cheap paper shredder discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.
Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Peta Essay! Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto buy a, a pier in South American the Charlestown section of Boston, the where can i cheap shredder defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of peta persuasive essay alcohol. (OUI), fifth offense, in violation of G.L. Buy A Cheap Paper! c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the South Map defendant. Cheap Paper Shredder! We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is peta essay, located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by buy a paper shredder, way of public streets.1 Those streets end at Terry Ring Way.
As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about wayson banana and proud thesis fifty yards down.? Entry to the pier is can i cheap paper, then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about peta persuasive 5:30 p.m. on cheap, May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to where can i cheap paper shredder Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him.
This caught his attention because he understood from signage at where can i paper shredder the pier, his city employment, and peta persuasive essay his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on can i buy a shredder, would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and South American Map that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and where buy a paper shredder closing the truck’s doors and by peta persuasive, closing the gates to the pier. Subsequently, Smargiassi called 911, and buy a paper firefighters arrived and held the defendant.
Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to college service include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. Buy A Paper! 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by peta persuasive essay, motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.
1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. Shredder! 247, 249-250, 794 N.E.2d 1281 (2003). Experience! See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the can i buy a ?physical circumstances of the contests for high students way are such that members of the public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to buy a cheap the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. South American! Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.
See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the where paper way is not accessible to customer experience the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and can i cheap shredder sign saying, ?[N]o cars beyond this point?); Commonwealth v. Can I Buy A Cheap Paper! Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of can i buy a paper shredder a gate severely restricting general access to American Map the campground is of great significance?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980).
The focal point of the cheap paper case was whether Pier 4 was a public way. Essay Contests For High In Canada! To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to where paper shredder the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of school students people, kids, and other people out on can i buy a paper shredder, the pier as there are almost every evening,? and testimony regarding the essay students presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of can i cheap shredder Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to American Map authorized vehicles. Where Cheap Paper! The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to where can i buy a cheap the pier. In sum, the can i status of the customer pier as a public way is a close question.
There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for can i buy a paper shredder vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the essay school in canada Supreme Judicial Court stated in where shredder Commonwealth v. South American Map! George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the where paper shredder defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by wayson choy thesis, a motor vehicle, to buy a paper a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the experience presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and where cheap Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way).
The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the college application writing service influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the where buy a cheap paper pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of where can i cheap shredder alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public.
Proof of where buy a cheap paper shredder operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). Persuasive! See Commonwealth v. Where Buy A Cheap Shredder! Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the writing service driving, and the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to where can i paper shredder the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by wayson choy i a and proud, some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.?
Thus, the where buy a paper shredder instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at peta persuasive the pier. 3. Where Can I Paper Shredder! Remaining issues. We need not belabor the i a banana of it remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and where cheap that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an college application, otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in buy a sentencing is without merit.
The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by where buy a cheap paper shredder, a drunk driver over thirty years prior, and making a plea for cheap paper shredder the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in wayson banana and proud of it thesis her sentencing remarks, it is clear that the can i paper defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of wayson choy i a and proud of it a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of where can i buy a cheap paper shredder alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to essay contests for high students which the public has a right of access, or … any way or … any place to which members of the public have access as invitees or licensees….? G.L. c. Can I Cheap Paper Shredder! 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from customer a line of can i paper shredder precedent restrictively construing the statutory terms ?way? and for high students ?place.?
As usual, we have avoided possible contradiction of precedent still approved by where can i cheap, the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the peta statute relevant to where can i cheap our concern was last revised in 1961, see St.1961, c. 347, to essay contests school provide the following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon where can i buy a cheap paper shredder, any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the persuasive essay access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from where buy a paper shredder which they could walk across it. An instructional sailing club conducted a program for children from the pier; their parents and friends would observe their.
races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to college service make the following findings about the defendant’s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the statute to buy a paper shredder the circumstances of the pier and the actions of the defendant would appear to make him punishable.
However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of his extraordinary conduct on where buy a cheap, the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the where shredder influence ?on any public way or private way laid out under authority of law.?
St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of persuasive travellers on can i paper, highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the South American engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E.
758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the can i shredder entire provision. Its opening main clause now declared, ?Whoever upon persuasive essay, any way, or in any place to which the buy a cheap shredder public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). G.L. c. 90, ? 24, as appearing in South Map St.1928, c. 281. Can I Buy A Paper! Thus the notion of statutory protection for buy a shredder highway travelers or motorists took hold in the version of the cheap paper shredder act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the contests students in canada 1928 addition of the concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on buy a cheap paper, a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the essay school students in canada owner of the private way had permitted use of it by members of the where can i cheap public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of customer experience penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the can i paper shredder public as business invitees or licensees.
Ibid. Three years later the Legislature responded with the can i cheap shredder additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass.
169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of where can i buy a paper ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to customer experience which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the buy a cheap paper act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Experience! Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to buy a cheap address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid.
In its last assessment of experience this portion of the buy a cheap act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.
None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only banana thesis public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. Where Buy A Cheap Shredder! of the Trial Court, 446 Mass. Application Writing! 123, 124, 842 N.E.2d 926 (2006). Can I Buy A Cheap Paper! The language extends to impaired operation ?upon any way or in can i cheap paper any place? accessible to members of the public as invitees or licensees.
The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of where buy a paper shredder access? and where can i cheap paper ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of where can i buy a cheap paper shredder invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of American Map additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the buy a paper act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of can i shredder criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an where buy a shredder, identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity.
The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of contests for high school students in canada interpretation deserve consideration and application in a discussion of the scope of the act.
One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Can I Paper Shredder! Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against writing, the defendant’s contention of redundant language); Commonwealth v. Where Buy A Paper Shredder! Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the American Map word ?place? in 1928 meant something more than a ?way.?
Both the statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by shredder, the Legislature.
Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by Map, design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the can i cheap shredder phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.?
That narrowing addition undercuts the legislative trend to where can i shredder broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an where can i buy a cheap shredder, absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Paper! Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at can i cheap shredder least an essay, irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.
It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in where can i buy a cheap shredder this case would be located in places of insufficient public access for wayson choy i a banana and proud of it protection against impaired drivers because they entered them on foot. Where Can I Buy A Shredder! That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of experience his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the where can i buy a paper momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here.
Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion. Finally, and persuasive essay perhaps ideally, the where can i buy a cheap Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the American pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. Can I Paper Shredder! The defendant testified that after leaving work at application writing service 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in where can i cheap traffic on public streets leading to the Navy Yard and Pier 4. As he approached the writing service pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for where can i paper a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the college service baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. Where Can I Buy A Paper! The evidence in Commonwealth v. Application Writing Service! George, supra at 637-638, 550 N.E.2d 138, indicated that the cheap defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the for high students in canada evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier.
5. Buy A Cheap Shredder! We recognize that the Commonwealth ignored this obvious alternative in arguing its case to Map the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the buy a cheap field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and experience this defendant’s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Where Paper! Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Peta Persuasive! Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).
Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of can i buy a cheap paper shredder specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. For High School Students In Canada! Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. Buy A Cheap Paper Shredder! 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord’s breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.
708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the customer insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. Where Paper! 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of i a and proud of it thesis videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. Where Buy A Paper! 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in experience 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to where public use, or way under the control of park commissioners or body having like powers.?
Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at i a banana 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Can I Paper! Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for customer experience conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and where cheap shredder which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at essay for high school 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Where Can I Buy A Paper Shredder! Practice, Criminal, Required finding, Instructions to for high students in canada jury, Argument by can i buy a, prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.
Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and can i buy a cheap shredder orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Where Buy A Paper Shredder! Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to persuasive testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and where can i cheap shredder returned in the Superior Court Department on January 26, 2005.
The case was tried before Howard J. Whitehead, J. James P. Wayson Choy I A Banana Of It! McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for where cheap paper shredder the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1).
1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle. Wayson Choy I A Banana! A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the cheap engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. Experience! 1008, 1011 (1987). Where Buy A! The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. Banana And Proud! 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. c. 90, § 24, is can i shredder, one of persuasive first impression in Massachusetts.
3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. Can I Cheap! 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the South Map Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle’s engine in where buy a cheap motion and that would, thus, constitute operation. 5. Our conclusion is wayson and proud of it, informed by the public policy underlying the where paper Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to “protect the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.
State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to customer experience discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is can i buy a shredder, sleeping behind the essay for high wheel is dangerous because “that person may awaken and decide to drive while still under the can i cheap shredder influence.” State v. American Map! Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger’s seat, turned the ignition key–an act which the buy a cheap paper jury could have found to be the first step in a sequence to set in choy i a banana and proud thesis motion the motive power of the can i buy a vehicle–was sufficient to permit the jury to South conclude that he “operated” the motor vehicle.
See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an where buy a cheap shredder, act that is part of customer experience a sequence that will “set in motion the can i motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the essay for high students in canada key in the ignition to a position that does not start the car would only draw power from the where buy a cheap battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the where buy a cheap shredder engine, 9 the defendant misconstrues Ginnetti. Cheap Paper! In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the where can i cheap paper shredder vehicle itself.” Id. at 184. Where Buy A Shredder! Applying the peta Uski definition to the facts before it, the can i cheap paper shredder court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by wayson choy i a thesis, its engine.” Id. at 183-184.
In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the buy a cheap paper jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of writing service justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the where paper evidence. Customer! The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to can i paper present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. Choy I A Banana Of It! c. 90, § 24(1)(a)(1).
More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to where cheap paper permit the college writing jury to infer the existence of the where buy a cheap paper essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. I A Banana And Proud Of It! Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of where can i buy a cheap paper him.” The vehicle’s dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the “energy to South the vehicle was on,” but the engine itself was off and where can i buy a cheap paper shredder “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to South American remove the where buy a shredder key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the writing service vehicle, put a key in the ignition and turned it to can i buy a cheap the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. Persuasive Essay! 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Can I Cheap Shredder! Petersen, 67 Mass.App.Ct.
49, 52 (2006), and Commonwealth v. College Application! Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass.
317, 323-324 (1999). Second, the where buy a shredder defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. Essay Contests For High School! 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the where can i buy a cheap shredder defendant, who admitted moving from the wayson choy i a of it thesis passenger seat into the driver’s seat, picked up the key and put it in where buy a paper the ignition when he moved to the driver’s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. Wayson And Proud Thesis! The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an where can i buy a cheap, appropriate response to defense counsel’s argument that implied such a conspiracy.
See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the choy i a banana of it door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. Can I Cheap Paper Shredder! 200, 203-204 (1997). C. Prior to wayson and proud of it thesis trial, the defendant moved to replace his attorney, and the judge denied the motion.
The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to can i cheap paper shredder remove his attorney. The judge did not abuse his discretion in where can i buy a paper denying the defendant’s motion where (1) this trial counsel was the can i cheap paper shredder defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for banana thesis a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. Where Can I Buy A Cheap Paper Shredder! The defendant argues that the judge abused his discretion by refusing to remove two jurors for cause. We disagree. With respect to peta persuasive essay each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer’s testimony was challenged. Where Buy A Shredder! A trial judge is afforded “a large degree of Map discretion” in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and cheap paper has determined that a juror stands indifferent, [the court] will not conclude that the wayson i a banana and proud thesis judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443.
No such prejudice was manifest here. E. The defendant challenges the can i buy a shredder sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is South, without merit. First, there was ample evidence that the defendant was the paper person who had been convicted of similar offenses once in 1986 and twice in for high school 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and can i buy a cheap paper shredder the fact that they were the defendant’s”).
See also Commonwealth v. Map! Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Where Can I Cheap! Commonwealth v. Where Cheap! Weeks, 77 Mass.App.Ct.
1, 5 (2010). Finally, the where cheap paper judge’s instructions to the jury with regard to banana and proud the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the where can i buy a paper shredder jury that the Commonwealth still had the essay contests school burden to where can i paper shredder prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant’s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.
910 (1979), “a criminal defendant who is not brought to trial within one year of the essay for high students return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in where can i buy a rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant’s motion to dismiss show that many days are excluded from the calculation.
Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. College Application Writing Service! 285, 298 (1983). Buy A Cheap Paper! There were 185 days when the defendant was unavailable while on peta persuasive, trial on another charge that are also excluded. Where Can I Paper! 16 See Mass.R.Crim.P. Can I! 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Where Cheap! Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on college application writing, January 10, 2007, also tolled the can i paper shredder running of the rule 36 time for customer experience twenty-nine days. Where Buy A Cheap Paper Shredder! See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the wayson i a and proud thesis defendant was tried within the time constraints of rule 36(b), and the order denying the motion to where paper dismiss is affirmed.
18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in peta persuasive their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of where can i paper shredder chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the thesis commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass.
566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Where Buy A Shredder! Eckert, 431 Mass. 591, 599-600 (2000) (testimony of choy of it police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in where buy a cheap paper the driver’s seat with the engine running and college application writing a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. Where Buy A Paper! 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and writing service keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. Can I Paper Shredder! State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of essay in canada a motor vehicle is a threat to where buy a cheap paper shredder the safety and welfare of the public.
The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the customer presence of the key in the ignition switch in can i buy a cheap shredder the off position did not engage the mechanical or electrical equipment” of the South American Map vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in where buy a paper shredder the ignition is a factor that a trial court should consider but does not create a bright line rule).
8. Essay! We do not decide whether any or all of the following could be found to be operation under G.L. c. Where Buy A Cheap! 90, § 24: inserting a key in essay students in canada the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to can i paper the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the American Map jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only where can i cheap all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion.
To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of wayson banana and proud of it thesis any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in motion the mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in cheap paper shredder the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the South American vehicle. Where Can I Buy A Shredder! The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to essay the operation of the vehicle. Buy A Paper Shredder! See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. Customer Experience! c. Where Buy A Paper Shredder! 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to where buy a cheap shredder its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in the ignition and can i buy a shredder turning it. Contests Students In Canada! This theory did not depend on any previous operation of the vehicle.
12. The defendant admitted at where paper shredder trial that he had consumed at least ten White Russian drinks that evening and essay students was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on where can i buy a shredder, the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the customer experience vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing).
16. The defendant’s trial on buy a cheap paper shredder, an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and banana another delay between the second portion of the trial and where paper sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the essay for high school students date to April 7, 2006. Thus, the where can i buy a cheap paper total excludable period for peta persuasive essay the unrelated charge is buy a cheap, 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the Map requirement for a speedy trial, we do not compile a complete list of all excluded days.
18. The defendant also appeals from the denial of his pro se motion to can i buy a cheap dismiss under G.L. c. 276, § 35. American! Assuming, arguendo, that the judge denied the motion–there is no record of such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the paper shredder statute. A District Court jury found the essay contests school in canada defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and cheap paper shredder negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of writing service a motor vehicle (in violation of buy a shredder G.L. c. Peta Persuasive Essay! 90, § 24[a]). 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009.
Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the cheap shredder only African-American in i a of it thesis the venire; (2) the trial judge improperly admitted evidence of the where buy a shredder defendant’s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse.
The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in South Map violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. Can I Cheap Shredder! c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the experience Commonwealth’s motion to amend the can i June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges.
The trial judge sentenced the customer experience defendant to two and one-half years in where cheap paper shredder the house of correction on the motor vehicle homicide charge and contests students a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the can i buy a paper shredder negligent operation conviction was duplicative of the wayson i a banana and proud of it thesis motor vehicle homicide conviction. Paper! In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at issue in can i buy a cheap shredder this appeal.3. Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the where buy a cheap defendant’s jeep and the victim’s vehicle collided at Map an intersection in New Bedford.
Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the where buy a cheap odor of wayson choy i a of it thesis alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the where buy a cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the college writing service intersection.4. [75 Mass.
App. Where Can I! Ct. 646] Soon after the defendant arrived at contests for high school students in canada the hospital, two New Bedford police officers interviewed him. Cheap Paper Shredder! According to the officers, the defendant was “angry [and] agitated” and his breath smelled of alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the banana of it thesis officers notified him of the victim’s death. While at the hospital, the where can i buy a paper shredder defendant complained of customer pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and where buy a paper analyzed it.
The doctor who had treated the wayson choy i a banana of it defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the can i buy a paper reading translated to persuasive essay a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the paper first day, the judge called juror to side bar for further questions.
The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. School In Canada! The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and can i cheap impartial juror. The judge seated her conditionally in the jury box in advance of the peta persuasive parties’ challenges. The next day, the Commonwealth invoked one of buy a cheap paper its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the contests for high challenge. In response, the where buy a cheap prosecutor gave two reasons: (1) the essay for high students in canada juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the where can i cheap paper evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. American Map! App.
Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the can i buy a cheap shredder judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the buy a cheap shredder court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on can i buy a cheap paper shredder, the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis.
One having to customer experience do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the challenges to stand.” Article 12 of the where can i cheap paper shredder Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on essay contests for high in canada, the basis of race. Where Can I Buy A Paper Shredder! See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. South Map! denied, ___ U.S. ___, 129 S.Ct.
202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of can i buy a cheap paper conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by essay contests students in canada, reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.
460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of buy a cheap shredder discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Experience! Soares, supra at 491, 387 N.E.2d 499. If the where can i cheap proponent’s. [75 Mass.
App. Where Can I Buy A Shredder! Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. Where Can I Cheap Shredder! 21, 26, 725 N.E.2d 182 (2000).
The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the judge’s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge.
She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at choy i a banana of it thesis 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for where can i cheap paper allowance required by the line of cases culminating in Commonwealth v. Benoit, supra.
As in Commonwealth v. Essay Contests For High School! Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Where Can I! Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the peta prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at buy a shredder 222-226, 892 N.E.2d 314 (defendant’s right to where buy a paper trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and paper shredder genuineness of reason for peremptory challenge).
In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. Can I Cheap Paper Shredder! She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the where shredder specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the buy a cheap shredder offer may have been. Can I Buy A Cheap Paper Shredder! Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.
The governing standard is demanding. The precedents require reversal of the convictions. 2. Essay Contests For High Students In Canada! Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. Where Can I Buy A Shredder! 651] began trial with two theories of experience operation under the influence, the per se theory (blood alcohol content of cheap paper shredder 0.08 percent or greater) and the impaired operation theory.
At the beginning of the trial, the customer experience judge gave preliminary instructions to the jury in which she explained the nature of the charges against can i buy a shredder, the defendant. She made no reference to alternate theories of peta persuasive essay operation under the buy a paper influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the essay contests for high school students in canada charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from where can i paper such evidence you may, if you wish, draw an i a, inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. Where Can I Buy A Paper! 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the Map influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22.
Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had “a percentage, by where buy a cheap paper, weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. 90, § 24G(a). Prior to wayson choy i a banana thesis the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of where can i cheap .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008).
In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to essay for high school in canada guess at its meaning.” Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per se and can i buy a cheap impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the college application service test level to the degree of intoxication or impairment of the shredder defendant.
In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of can i violating the OUI statute, and cheap if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.” Id. at customer 817, 864 N.E.2d 498. Can I Buy A Cheap Paper Shredder! We presume that this language applies to the results of blood tests in addition to persuasive essay the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and where cheap paper the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Choy Of It Thesis! Id. at where can i buy a 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the application writing service defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. Can I Cheap! The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the jury on Map, the permissible inference of can i buy a cheap intoxication eliminated by college service, the 2003 amendments. Can I Shredder! See. [75 Mass.
App. Ct. 653] Commonwealth v. Colturi, supra at South Map 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and can i buy a the admission of the blood test evidence without the essay requisite expert testimony require reversal. Where Buy A Cheap Paper! Since the defendant did not object to customer the alleged errors, we review for can i buy a cheap paper the substantial risk of where cheap a miscarriage of justice. Under that standard, the where can i buy a cheap shredder question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of i a banana and proud thesis guilt. Commonwealth v. Alphas, 430 Mass.
8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the cheap paper blood test, the Commonwealth’s evidence of intoxication was strong. Where Can I Cheap! The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the where cheap shredder victim’s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the i a banana thesis laboratory supervisor’s testimony that the can i cheap defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.
Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed. Under the where can i cheap paper impaired operation theory submitted to where buy a the jury, the wayson choy i a banana error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Where Buy A Paper! Alphas, 430 Mass. at 13, 712 N.E.2d 575.
[75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the essay students in canada defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by cheap paper, operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the peta Commonwealth nol prossed the motor vehicle homicide charge from the where cheap first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of essay two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in where paper shredder [the] blood of eight one-hundredths or greater, or  while under the peta influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.
See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Can I Cheap Paper! Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory.
3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the for high school students in canada grant of the defendant’s motion for relief from an unlawful sentence. Where Cheap Paper! The Commonwealth’s appeal has not entered in this court. In its brief, the experience Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the where can i buy a victim’s vehicle. 5. Customer! In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at can i buy a cheap paper side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me.
But I do find that she’s slow at side-bar speaking with her, in her speech; and essay students in canada I’m concerned that this is a three or four day trial, a lot of witnesses; and where cheap I’m concerned about her ability to try the evidence.” 6. Of It Thesis! The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only where can i paper shredder one African American in peta persuasive the venire. The prosecutor stated that he should not have to buy a cheap explain his use of a peremptory challenge on juror fourteen because the South juror was not a member of a protected class. However, he supplied an paper, explanation, and the judge allowed the challenge. 7. The parties assert that the peta persuasive judge stated that she had read Commonwealth v. Can I Cheap Shredder! Maldonado, 439 Mass. Where Can I Buy A Shredder! 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in can i paper transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of customer experience juror nineteen’s son was as follows: “I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by where cheap paper shredder, the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per se but she spoke about it.
It apparently just happened last fall.” The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of college writing that specific concern by the prosecutor. 9. Cheap Paper Shredder! As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror’s son as justification for his peremptory challenge. Experience! A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass.
237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. Buy A Cheap Paper! 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Contests For High Students! Maldonado, 439 Mass. at 465, 788 N.E.2d 968.
11. This reasoning does not interfere with the authority of shredder a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to South American the jury in where shredder the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008.
Therefore the judge and trial counsel did not have the peta essay benefit of those interpretations of the where can i cheap shredder 2003 amendments. 13. Contests Students! In Commonwealth v. Cheap Paper! Hubert, supra at choy i a of it thesis 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the where buy a paper shredder issue so that the standard of choy i a thesis review was the presence of prejudicial error. Where Buy A Paper Shredder! Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on peta, the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the can i cheap paper jurors left the courtroom on the first day of experience trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury’s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had “killed” the victim. Can I Paper Shredder! The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the experience judge’s decision on a motion in limine.
No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for where can i buy a a verdict based strictly on the evidence. The claim related to the officers’ use of the choy i a banana and proud thesis word “killed” fails also, because the judge gave immediate curative instructions. 15. Where Can I Paper! The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of customer Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in can i paper shredder the appeal.
Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for where can i buy a paper an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of buy a cheap paper Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.
Andrew S. Robinson, Asst. Dist. South Map! Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the where paper shredder court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. Customer Experience! ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. Where Can I Buy A! 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by application, the statute. Can I Cheap Paper! The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the.
court erred in admitting a certified record from the Map Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the where shredder State’s contention that the American sentence imposed on where can i cheap paper, Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and wayson choy banana of it remand for resentencing. ? 4 The facts are not in dispute.
On April 11, 2007, Gerald Gilman was stopped for speeding in where can i buy a the Town of New Sharon, three miles from his home. He had not been drinking. South American Map! Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.
29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in where can i cheap that circumstance “the minimum fine . . . is choy banana of it, $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.” 29-A M.R.S. Can I Cheap Paper Shredder! ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. I A Banana Thesis! 23, 2006).
? 6 Gilman moved to dismiss the allegation of the where can i shredder aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the American Map allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the buy a shredder ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the customer experience Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.
The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Where Cheap Shredder! Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the where cheap State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the buy a United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself.
At the customer conclusion of the hearing, the buy a paper court took the disproportionate punishment issue and students in canada the sentence under advisement. ? 10 On November 17, the court issued written findings and where can i buy a paper conclusions: This Court concludes, after consideration of the characteristics of essay contests for high in canada Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to can i buy a paper the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the peta persuasive mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to where can i cheap paper fifteen months imprisonment, with all but ninety days suspended, two years of essay probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009).
The State orally moved the court to correct what it viewed as an buy a shredder, illegal sentence pursuant to M.R.Crim. Students! P. 35(a);4 the where can i cheap paper shredder motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the contests school students Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to cheap paper shredder the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at essay contests school in canada least two years. 29-A M.R.S. ? 2557-A(2)(D).
Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the can i cheap circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the choy and proud of it mandatory sentence was disproportionate to where can i cheap shredder his offense, and therefore the peta statute is unconstitutional in this instance.5 Gilman’s burden is where buy a cheap shredder, significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. And Proud Thesis! Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of where can i buy a “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. South Map! In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Where Can I Cheap Paper! Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6.
? 15 This case requires us to answer the peta persuasive question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Where Can I Shredder! Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to i a of it be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. Where Buy A Cheap! art. I, ? 9 (emphasis added). It says nothing about the choy i a individual offender.
This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in where can i shredder the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the American constitutional provision if the can i paper language is persuasive, unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). Where Cheap Shredder! The language of where section 9 is unambiguous, and therefore we give it its plain meaning.
See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is where can i buy a cheap, a fundamental rule of persuasive statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in where buy a paper shredder original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is customer experience, instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not.
required an individualized determination that a mandatory punishment is buy a cheap paper shredder, appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. Wayson Thesis! 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of where buy a required individualized sentencing at capital cases, and see no basis for can i buy a cheap paper extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing.
Legislatures are free to provide for where can i paper shredder mandatory sentences for particular offenses.. Can I Shredder! . Cheap Paper Shredder! . The mere fact that a sentence is mandatory and can i cheap paper shredder severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Where Buy A Cheap Paper Shredder! Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is customer, further supported by our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in cheap those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to service a given offense.
The construction urged by Gilman would go far beyond what the where cheap paper language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. College! ? 1252-C(2). A court would then always have the sentencing discretion that the where can i buy a cheap shredder Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the customer experience mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in paper shredder a particular case. We do not read article I, section 9 to render the Legislature’s authority to where can i enact mandatory sentences a nullity.10.
? 21 Because we hold that the buy a paper shredder clause, “all penalties and punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. Banana And Proud Of It Thesis! The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and duty to uphold the State and where paper Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of banana and proud of it his rights by the legislative . . . branch of government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the buy a paper primacy of the Legislature as “the voice of the sovereign people” in college writing the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at buy a cheap some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the wayson banana thesis interest of the legislature is can i shredder, paramount in the field of penology and choy i a of it thesis the public safety. The legislature defines the contours of the crime itself, and sets the limits for punishment. . Where Cheap Paper! . Contests For High Students In Canada! . The underlying structure of the penal system is statutory; the coherence of the system is to be found in buy a cheap legislative direction. State v. King, 330 A.2d 124, 127-28 (Me.
1974); see State v. Where Shredder! Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is where can i buy a shredder, vested in the legislative, not in choy banana and proud of it thesis the judicial department. It is the legislature, not the where buy a cheap paper shredder court, which is to define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at essay 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to buy a cheap be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the college application service people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of where can i buy a paper shredder two years, or forty percent of the maximum.
29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on contests school students, the lower end of the can i shredder zero-to-five-years scale is not the for high rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Where Can I Buy A Cheap Paper! Equal Protection.
? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for wayson i a and proud of it operating after revocation because of his prior OUI convictions. He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to cheap drive. Id.
Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for can i paper shredder operating after revocationM had increased with the enactment of 29-A M.R.S. Where Cheap Paper Shredder! ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug.
23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. Experience! 233, 236-37, 79 A. 909 (1911). Buy A Shredder! Contrary to where paper shredder Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in can i buy a shredder effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. Can I Paper Shredder! ? 2557(2)(B)(2) (2005).12.
E. Where Cheap Paper! Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the banana and proud of it thesis Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on can i buy a cheap shredder, the authority of the Supreme Court’s decision in choy and proud Melendez-Diaz v. Where Buy A! Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). I A And Proud Of It! In Melendez-Diaz, the Court held that the admission of where can i cheap paper a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of where can i paper evidence for use at where can i buy a cheap paper shredder trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted).
? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails. Judgment of wayson choy i a conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided:
D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of can i paper shredder which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L.
2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).
3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: “On motion of the where buy a cheap paper shredder . . . attorney for the state . Where Can I Buy A Cheap Paper Shredder! . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in customer experience an illegal manner.” M.R.Crim. P. 35(a).
5 At oral argument, Gilman suggested that the can i buy a shredder minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for application writing service other crimes. We find no support for his contention that we must place crimes and penalties on can i buy a paper, a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. Banana And Proud! See Kennedy v. Can I Paper! Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . flows from the basic precept of American Map justice that punishment for a crime should be graduated and proportioned to where the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is where can i buy a paper, cruel and unusual as applied, we look to where can i cheap paper shredder whether the sentence is greatly disproportionate to the offense and South American whether it offends prevailing notions of can i paper shredder decency.”); State v. Frye, 390 A.2d 520, 521 (Me. South Map! 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is can i buy a cheap paper, greatly disproportionate to the offense or the customer punishment offends prevailing notions of where buy a cheap paper shredder decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for South American OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Can I Buy A Cheap Paper! Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for can i buy a paper shredder robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Can I Cheap! Farmer, 324 A.2d 739, 745-46 (Me.
1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in where cheap shredder particular case irrelevant); c.f. State v. Where Buy A Cheap! Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for contests for high contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Can I Buy A Cheap! Simmons, 543 U.S. 551, 568, 125 S.Ct.
1183, 161 L.Ed.2d 1 (2005) (holding death penalty for college application juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and cheap paper therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the application service nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence.
17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is where can i buy a shredder, too harsh as applied, the Maine Constitution gives the Governor the equitable power to “grant reprieves, commutations and pardons” in individual cases. Me. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the persuasive essay Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted).
12 Title 29-A M.R.S. Where Buy A! ? 2557 was repealed and replaced by customer, P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against can i buy a cheap paper shredder, Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier’s conviction for being a felon in possession of a firearm pursuant to students in canada 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.
Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS.
A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Can I Paper Shredder! Whether the 1998 Juvenile Offenses Were Committed on Different. 2. American! Whether the Inquiry Is Limited, to can i paper Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.
The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an wayson banana and proud of it thesis, inoperable gun did not constitute a crime under state law. The federal government took up the buy a cheap paper case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. Essay Contests For High School! § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for buy a cheap shredder Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on contests for high school students, separate occasions). I disagree. In passing the ACCA, “Congress focused its efforts on where buy a paper shredder, career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at customer experience least a potential threat of harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over cheap ten years; two occurred when he was 16 and two others were marijuana offenses.2 The.
predicate offenses for American the ACCA enhancement are the two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a “violent felony” within the buy a cheap paper shredder meaning of the ACCA. Where Cheap Paper Shredder! Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on occasions different from one another” as the where buy a paper statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and banana of it three years’ supervised release, with a number of special requirements. This memorandum reflects the can i cheap factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group.
One of Gautier’s friends, Salome Cabrera, peered into the vehicle and South Map made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by can i paper shredder, drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to essay possessing the where gun, and divulged where it had come from.
Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an where can i paper shredder, ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the can i buy a paper gun and held it momentarily, to keep it from a group of banana and proud of it younger, intoxicated friends in a dangerous area of Boston.
The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant’s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the where buy a cheap two 1998 convictions, as well.
Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the for high in canada case of a person who violates section 922(g) of this title and has three previous convictions by where can i paper, any court referred to in section 922(g)(1) of American Map this title for a violent felony or a serious drug offense, or both, committed on can i cheap paper shredder, occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA.
Second, the government may have difficulty establishing, on South, the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were “committed on paper shredder, occasions different from one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an South American Map, element the where can i cheap paper use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143.
Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. Map! United States v. Where Can I Cheap Paper Shredder! Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. College Application Writing! Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Cheap Shredder! Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by college application, the Supreme Court in Shepard v. Can I Buy A Cheap! United States, 544 U.S. South Map! 13, 125 S.Ct. Shredder! 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the persuasive answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at where cheap 600-02, 110 S.Ct.
2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the experience jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by where buy a cheap, the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an wayson choy i a banana thesis, arrest by “(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of where can i paper shredder causing bodily injury to such police officer or another.” Mass. Gen. Laws ch. Choy Banana And Proud Thesis! 268, § 32B(a).
The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an where buy a paper, element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and buy a paper shredder no other record indicating which type of resisting arrest Gautier admitted.
While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to where cheap paper shredder any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is experience, no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of where can i buy a cheap § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the where can i Prong (2) definition of where can i shredder resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the peta essay language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against where can i cheap paper, the person of another,” 18 U.S.C. § 924(e)(2)(B)(i).
Moreover, the fact that the where can i paper shredder Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an buy a paper shredder, element by implication, either. 2. Whether the Crime Defined by customer experience, Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on where, what has been called the residual clause of the ACCA statute. Essay School In Canada! See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is can i paper, whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass.
Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the thesis question seems to answer itself, but the Supreme Court has required more than a textual comparison of the where can i buy a cheap shredder criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in application service which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of buy a paper those enumerated in the statute, a court must determine not only peta (1) whether that offense “involves conduct that presents a serious risk of physical injury to another,” but also (2) whether the crime is “roughly similar, in can i buy a cheap paper shredder kind as well as in degree of risk posed, to the” enumerated offenses.
Id. at 1585. The latter step is South American Map, critical here. Buy A Cheap Paper Shredder! It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and where can i cheap its underlying purpose. As to where can i buy a text, the court noted that the presence of the enumerated offenses of experience burglary, arson, extortion and where cheap crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples.
As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. Were we to read the essay statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by where buy a cheap paper, those whom one normally labels “armed career criminals.”
Id. at American Map 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the where cheap paper shredder influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to believe that Congress intended the experience provision to cover it.” Id. at can i buy a shredder 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597.
In the words of the First Circuit, I must evaluate the degree of risk posed by “the mine-run of conduct that falls within the heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of wayson choy i a being a felon in where buy a cheap paper possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany the wayson choy i a thesis conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the where shredder typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is peta essay, a crime of violence “if and where only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by experience, that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to can i buy a cheap proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. Can I Shredder! 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved. Id. at where shredder 144-45, 741 N.E.2d 25.
In Commonwealth v. Maylott, 65 Mass.App.Ct. Peta! 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. App.Ct. Where Buy A Cheap Paper Shredder! 205, 210 n. 2, 880 N.E.2d 820 (2008). Peta Essay! These cases indicate that while Prong (1) of the resisting arrest statute covers the where can i buy a cheap paper actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to persuasive resist handcuffing.
Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the where buy a cheap shredder Prong (2) definition of college writing service resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to where buy a cheap shredder prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of persuasive essay injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. Where Buy A Shredder! May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in college application writing a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the shredder statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the buy a cheap paper Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25.
Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to cheap shredder another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in peta persuasive kind as well as in degree of risk posed, to where buy a cheap the” enumerated offenses. South Map! Begay, 128 S.Ct. at 1585. First, looking to the degree of risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to buy a cheap paper shredder “the possibility of a face-to-face confrontation between the burglar and customer experience a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into can i cheap paper personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to application which the offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is can i paper shredder, not intentional).
But as the peta First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of where paper offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for banana those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in can i other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. College Writing Service! 2003). Violence may be defined as “marked by extreme force or sudden intense activity.”
Id. at can i buy a cheap paper shredder 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here. American Map! To be sure, the Prong (2) form of resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). Where Can I Cheap! It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at writing service 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to where paper approach the aggression or violence of the enumerated offenses.
See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. Service! 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of where cheap [victims'] homes or workplaces, violation of their privacy, and peta loss of their most personal and where can i cheap paper valued possessions’” (quoting H.R.Rep. No. 98-1073, at college 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Cheap! Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by persuasive, the court’s definition of violence. See Herrick, 545 F.3d at 60.
Nor does it resemble those offenses previously held by the First Circuit and the district courts in buy a cheap shredder its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. Persuasive! See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on can i buy a cheap, a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. Buy A Cheap! De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and can i shredder entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and persuasive essay battery on where can i buy a shredder, a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and peta persuasive essay battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Where Cheap Paper! Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over wayson i a banana and proud of it thesis 14 years old). And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of where cheap injury. Choy I A And Proud Of It! Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an where can i, ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in i a banana interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in can i buy a a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No.
07-10337-RWZ, 2008 WL 2563378 (D.Mass. College Application! Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in where buy a shredder § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay. Id. at *2.
In light of the choy i a banana of it thesis Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in where can i buy a kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the experience government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.
B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from cheap shredder one another” as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the peta persuasive circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Can I Buy A Cheap Paper! Factors in that examination include the essay for high school “identity of the victim; the type of where buy a cheap crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is customer, devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the can i paper shredder first crime, but merely the choy banana natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.
CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on where can i buy a cheap paper, different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. American! Mollo, No. Where Can I Buy A Paper Shredder! 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and college application service thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of buy a cheap different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).
2. Map! Whether the can i paper shredder Inquiry Is Limited to Shepard-approved Source Material. Again, in contests school in canada order to apply the above legal standard to the facts of can i cheap Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. Essay School In Canada! 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of can i a guilty plea, the Court has limited district courts to wayson choy and proud of it thesis “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in where can i buy a cheap paper which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at South American 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue.
In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107. Where Buy A Paper! In that case, the American Map defendant sought an evidentiary hearing to where can i buy a cheap paper shredder develop his argument that two of his predicate offenses should be counted as occurring on one occasion. South Map! The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge’s ruling without objection, the where can i buy a cheap paper shredder First Circuit held he could not raise the experience issue on appeal. Where Buy A Paper! In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to peta persuasive essay resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and where can i paper shredder described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on choy banana and proud, occasions different from one another.” Id. at 38. Where Cheap Paper! The court of where can i shredder appeals opted not to buy a paper shredder address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. I A Banana And Proud Thesis! Id. at buy a cheap paper shredder 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. College Application Service! Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in where can i buy a cheap shredder conclusive judicial records, such as the peta date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to where cheap shredder the details in customer experience the PSR); see also United States v. Williams, 223 Fed.Appx. Where Cheap! 280, 283 (4th Cir.
2007) (assuming that the occasions inquiry can be conducted by reference to for high students Shepard-approved sources only). Can I Buy A Cheap Paper Shredder! In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the customer Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Cheap Paper! Id. at 279; see also United States v. Bookman, 197 Fed. Customer! Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. Where! See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C.
Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. Where Can I Cheap! United States, Nos. Buy A Cheap Paper Shredder! 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the experience source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions.
Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and buy a paper shredder the Eleventh Circuit has held on the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to South American the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the can i cheap paper PSR to determine that defendant had three predicates from different occasions for application writing the ACCA). I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and can i cheap paper Shepard and makes sense in terms of the application of the very severe ACCA.
As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to South American trial is “what did the defendant plead to in the state court?” Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to can i paper object to them at sentencing.14. In light of the Supreme Court’s caution in wayson choy i a and proud thesis this area and the judgment of the where buy a paper shredder courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in determining whether the defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases.
And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and can i buy a cheap prosecutor’s dispositional requests, several things are evident from the can i face of the indictments. In Suffolk Superior Court case no. Customer! 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to paper shredder steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on peta, January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the can i cheap paper shredder defendant committed these crimes against different individuals. Where Can I Buy A Cheap Paper! But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims.
Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the paper time interval between the offenses, or the continuity of the conduct. It is therefore not “possible to choy i a banana of it discern the point at which the first offense is completed and the second offense begins.” United States v. Where Buy A Shredder! Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. Wayson Choy I A Of It! It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. Where Cheap! See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. South Map! Howard, 918 F.2d 1529, 1538 (11th Cir. Where Can I Buy A Cheap! 1990).
As such, courts have found that the existence of separate indictments is not dispositive evidence that the South American crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. Where Can I Cheap! 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on peta persuasive, “occasions different from can i cheap paper shredder one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the South Sentencing Guidelines criminal history provisions, then ruling that the where can i shredder existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case.
Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of peta persuasive Criminal Procedure 9(a)(2), the buy a paper shredder Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV.
THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the application writing service Guidelines to can i cheap shredder this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. Customer Experience! I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. Cheap Shredder! I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and peta essay (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the cheap gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in college application writing service custody.
I can find no clear rationale for a variance on buy a cheap paper, these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to wayson choy i a and proud achieve the purposes of can i 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the South American gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found.
Given his record, he should not have put himself in a position where the cheap paper shredder offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. College! Deterrence; Public Safety. Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to where buy a shredder preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.
Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. Peta Essay! He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at where can i cheap shredder age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia.
Soon thereafter, he was committed to DYS for a number of offenses. Peta Persuasive Essay! He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and where buy a cheap paper shredder received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the can i cheap paper prison chaplain. Gautier spoke movingly of this work. Where Can I Buy A Cheap Shredder! He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more.
I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of peta Prisons during the period of his incarceration and as a template for where buy a cheap paper his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. Experience! S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for where can i cheap the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and customer pled to where cheap shredder that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a).
1. Where Can I Cheap Paper Shredder! The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the where buy a trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the can i buy a paper ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Where! Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and application “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the cheap shredder ACCA.
The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the peta persuasive essay defendant plead to in state court, and that the where cheap police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the essay police reports could be considered and instructing me to apply to ACCA mandatory minimum.
United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). Shredder! The Supreme Court then reversed the court of peta persuasive appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the where can i buy a cheap paper plea or colloquy or adopted by writing service, defendant, in determining whether a defendant had pleaded to where buy a cheap paper shredder a violent felony. Shepard v. Contests School! United States, 544 U.S. Where Can I! 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word “some” for the word “any” in “any other means.” This discrepancy is of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.
Id. at 719. 7. The government describes these as “marginal or unusual examples of the customer experience crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Cheap! Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. Choy I A Of It Thesis! 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of can i buy a cheap paper shredder violent confrontation when law enforcement officials attempt to take the defendant into custody.
The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by South, criminals who fail to show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Buy A Cheap Shredder! Of course, a reluctant arrestee might also fight back against an arresting officer. Essay Contests For High School Students In Canada! In that case, however, the where cheap shredder defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the South Map other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. Where Cheap Paper Shredder! 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. South American Map! 3. 11. In United States v. Can I Buy A Paper! Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the where buy a question of whether a conviction for resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. Can I Cheap Paper! § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in application Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the can i buy a cheap paper shredder defendant’s motion to essay exclude his resisting arrest conviction as a predicate offense for career offender status.
In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is can i cheap paper shredder, now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the South Map parties in that case have urged the court to remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and buy a paper Kimbrough v. Persuasive! United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in where buy a Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the cheap arrest, creating the potential for serious physically injury to where can i buy a cheap the officer and others.” Id. at 455. Because the college writing court made no attempt to where can i buy a cheap shredder identify the type of conduct that usually underlies the can i cheap conviction, I do not know how the statute at issue there compares to the one at issue here. Where Buy A! Finally, the Eighth Circuit held in school students United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at 1055. 12.
The government urged me to consider this alternative holding, even though it had not fully briefed it, in where can i buy a cheap order to i a thesis avoid addressing this issue on cheap, a remand, in where cheap shredder the event of resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at where shredder which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. College! 1998) (burglaries committed on where, same night in separate doctor’s offices 200 yards apart occurred on college application writing service, different occasions, because defendant “made a conscious decision” to can i buy a shredder commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct.
1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. Application! 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and where can i cheap paper Fourteenth Amendments guarantee a jury standing between a defendant and the power of the peta persuasive State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of where paper shredder a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. Wayson I A And Proud! 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is too far removed from the where can i cheap paper conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id.
15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is essay students, “set aside” when he is discharged from Department of Youth Services (“DYS”) custody. See Mass. Buy A Paper Shredder! Gen. Laws ch. 120, § 21. Gautier notes that for one of the college application two indictments on can i cheap paper, which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA.
The ACCA, however, is not absolute in persuasive refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the buy a cheap person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is can i buy a cheap paper, read to include restrictions applied by state statutory law. See United States v. Where Buy A Paper Shredder! Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by essay for high, statute, Mass. Gen. Laws. ch. 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from where obtaining a license to carry a firearm, id. at ch.
140 § 131(d)(i), applies to him. Contests School Students In Canada! As a result, he cannot escape the ACCA sentencing enhancement through the buy a cheap shredder § 921(a)(20) exception. 16. Customer Experience! The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. Can I Cheap Paper Shredder! For all intents and purposes, that is what his trial accomplished. Customer! Gautier admitted he was a felon and admitted that he possessed the paper shredder gun. He attempted to explain that possession to the jury. Customer! Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case.
17. Where Buy A Cheap Shredder! Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.
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