Appeals from Criminal Convictions

A defendant convicted of crime, as matter of right, may appeal his conviction.  Attorney Gallagher is one of only handful of attorneys who try cases in the District and Superior Courts and also argues cases in the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court. Speaking candidly, it is more difficult to prevail on an appeal than it is at trial.  To reverse a conviction an attorney must, in a sense, “un-ring the bell.”  With one exception, what follows are cases in which Attorney Gallagher’s clients have had success.

The defendant drove his truck on the roads of a 200-site campground while intoxicated.  The police were called and he was arrested.  The defendant was convicted of driving while under the influence of intoxicating liquor.

Attorney Gallagher took the appeal.  A person cannot be convicted of operating under the influence of an intoxicating without sufficient proof that he was operating on a public way or a way to which the public had a right of access as licensees or invitees.  Attorney Gallagher observed, among other things, that the campground was gated and argued that its roads were not public ways or ways to which the public had a right of access as licensee or invitees.  The Court agreed and reversed the conviction.  Further, the Court entered a finding of not guilty on behalf of Attorney Gallagher’s client.  74 Mass. App. Ct. 179.

The defendant pleaded guilty to several serious crimes, including a number of armed robberies and an attempted armed robbery.  On the armed robberies, he received concurrent sentences of 8-12 years’ in State prison.  The defendant pleaded guilty to the attempted armed robbery charge and that charge was placed on “file” – meaning that no sentence was imposed and sentencing at a later date remained an option. The defendant finished serving his sentences on the armed robberies.  Not long after, he was charged with a new offense. The case that had been placed on file several years earlier was brought forward and a sentence of 18-20 years’ was imposed.

Attorney Gallagher took the appeal.  He argued (1) that the delay in imposing sentence deprived the defendant of his constitutional right to “speedy sentencing” and (2) because the length of the sentence was so much longer than the sentences imposed on the armed robberies it was fundamentally unfair.  The Supreme Judicial Court vacated the defendant’s sentence and ordered re-sentencing.  On re-sentencing, the defendant was sentenced to 6-8 years’.  448 Mass. 687.

Defendant was charged with trafficking in marijuana. The defendant prevailed on a motion to suppress evidence (bundles of marijuana) in the District Court. The Commonwealth appealed. Attorney Gallagher handled the appeal.

The defendant was a passenger in a van stopped for speeding at the interchange of the Mass. Pike and Route 84.  The trooper while asking for the driver’s license and registration detected a strong odor of marijuana.  He also took note that the both the driver and the passenger appeared very nervous and that there were several air fresheners in the vehicle. The registration provided that the vehicle had been rented in Rhode Island.  Questioned separately, the driver and defendant gave somewhat inconsistent and implausible answers to questions about what they had been doing and their immediate plans. The trooper ordered the driver and passenger to exit the vehicle and called for a drug-sniffing canine.  The dog circled the vehicle and alerted to presence of illegal narcotics at its lift gate.  A search of the vehicle uncovered several pounds of marijuana.

Attorney Gallagher argued that because possession of an ounce or less of marijuana no longer was a crime the odor of marijuana detected by the trooper was not evidence of criminal activity. He also argued that the remaining “evidence” was not telling enough to provide a reasonable suspicion or a probable cause belief that a crime was being committed. The Court agreed.  The guilty verdict was reversed and ultimately the case was dismissed. 89 Mass. App. Ct. 497.

The defendant was convicted of possession of cocaine with intent to distribute. Attorney Gallagher took the appeal. Attorney Gallagher argued that the evidence produced at trial only proved that the defendant possessed the drug; it did not prove that he intended to sell the drug. The Court agreed. The defendant’s conviction for possession with intent to distribute was reduced to straight possession. The defendant, who was in prison, was freed. 72 Mass. App. Ct. 1106.

The defendant was convicted of trafficking in cocaine. Attorney Gallagher took the appeal.  The prosecution introduced into evidence at trial the analyzing chemist’s certificate attesting that the substance seized was cocaine; it did not, however, call the chemist as a witness. A defendant has a constitutional right to confront the witnesses against him and subject them to cross-examination – here, that witness would have been the chemist.  Conviction reversed.  80 Mass. App. Ct. 114

The defendant was convicted of trafficking in cocaine. Attorney Gallagher took the appeal.  The prosecution introduced into evidence at trial the analyzing chemist’s certificate attesting that the substance seized was cocaine; it did not, however, call the chemist as a witness. A defendant has a constitutional right to confront the witnesses against him and subject them to cross-examination – here, that witness would have been the chemist.  Conviction reversed.   Conviction reversed. 76 Mass. App. Ct. 1129

The defendant was charged with home invasion, armed robbery and armed assault in a dwelling. The jury returned not guilty verdicts on the armed robbery and armed assault in a dwelling indictments; it returned a guilty verdict on the Home Invasion. The Court imposed a sentence 20-22 years’ on the Home Invasion. Attorney Gallagher took the appeal.  He argued that his client was deprived of right to a fair trial because of errors made in the course of the trial.  Agreeing, the Appeals Court reversed the conviction. On further appellate review, the Supreme Judicial Court affirmed the conviction in a 4 to 3 decision – four Justices voting to affirm it, three voting to reverse it.  451 Mass. 200 (2008)