Boston Criminal Attorney Blog

In another example of how professional sports players are anything but angels, or icons that should be praised, a former New England Patriots football player received a two year jail sentence earlier this week in Norfolk Superior Court in Dedham, for the statutory rape of a 15 year-old girl who attended the high school where he was a football coach. Daniel Villa was sentenced earlier this week after he decided to plead guilty to charges of enticing a minor and statutory rape of a 15 year-old student at Walpole High School, where he worked as a football coach. In addition to the two year jail sentence (which Villa will serve in a County House of Correction, not state prison,) he was also sentenced to seven years probation, banned from working with children less than 16 years of age, and ordered to register as a sex offender with the Massachusetts Sex Offender Registry Board (SORB.)

In pleading guilty to the charges and avoiding a trial, Villa told the judge he was “Thirsty for a clear conscience.” While this may be true, and while Villa’s lawyer also said that his client wished to spare the victim and her family the additional pain that a trial would likely bring, it also seems that Villa’s lawyer did not feel that the former NFL player could prevail at trial. One of those reasons: Prosecutors say Villa sent the girl thousands of text messages, and the sexual acts cited, were alleged to have taken place repeatedly.

Statutory rape differs substantially from a “normal” rape or sexual assault charge. A charge of statutory rape does not necessarily allege that any violence or coercion took place, only that the victim was under the age of 16. The victim may have been an entirely willing participant in the sexual acts engaged in, and may even have initiated the alleged sexual acts, but Massachusetts law presumes that a person under the age of 16 does not possess the “capacity” to provide consent to sex. “Capacity” refers to the intellectual, emotional, mental and developmental skills necessary, to provide a knowing “consent” to such acts. Some people believe this legal theory is invalid and based on puritanical thinking that gave rise to many laws in Massachusetts that originated hundreds of years ago, but it is still the law and hence must be observed.

Deciding whether to advise a client to plead guilty to any charge, is a difficult one, but one that is always fact-dependent and circumstance-dependent. Given the amount of evidence that the Commonwealth had against Villa, it seems this plea was the best course of action to take. If Villa had elected to go to trial and been found guilty of the charges, he could have received a much lengthier prison sentence. As a Massachusetts criminal defense lawyer, I can tell you that while these decisions take a lot of intellectual and professional skill, they often come down to the skills of a poker player. Beyond knowing the law and being a skilled trial advocate, a truly good criminal defense lawyer needs to “Know when to hold ‘em and know when to fold ‘em.”

I’m sure you read and hear of cases every day where judges hand down sentences to criminal defendants. Less frequently reported, are cases of a judge being threatened with some type of harm as the result of the sentences they mete out.

Just such a case occurred recently in Suffolk Superior Court, where a man who was previously sentenced by a West Roxbury District Court judge for an OUI offense, allegedly threatened the judge after she handed down her most recent sentence against him. Peter Hrycenko was charge with intimidation of a Massachusetts judge after he allegedly sent a threatening letter to the judge's home on Dec. 23, 2007. Three days prior to that date, judge Coffey had sentenced Hrycenko to serve one year of a two-year jail sentence for operating after the suspension of his license for a prior OUI conviction.

At issue in this trial, was not so much the letter itself, but the intent behind the letter. The letter, which was introduced into evidence during Hrycenko’s trial that began August 11, recited the following language: “"I am as shocked writing this letter, as you may be receiving it. I've known of your residence for years and as upset as I have been towards you, I have never retaliated against you or your property because it is not who I am. Please take the time to read this as I want you to fully understand the toll your harsh sentences have taken on me and my family." The letter goes on to complain about the sentence Coffey imposed on him in 2007 as well as a previous occasion in 2000. Hrycenko also describes a knifepoint attack "behind your court" and mentions an earlier conviction for rape. According to court documents, Hrycenko was found guilty of aggravated rape and sexual assault of a hitchhiker in 1988.

Suffolk County Assistant District Attorney Joseph M. Ditkoff, along with Assistant District Attorney Stacie M. Moeser, argued that "[T]he defendant's description of rapes and knifepoint attacks combined with assurance that he knew where [Coffey] lived and that he was upset with her was adequate evidence from which [a] judge could infer that the defendant was threatening the judge with harm if she did not accede to his demands," The relevant law, known in legal circles as the “intimidation statute”, M. G.L. Ch. 268, §13B(1)(c)(iii), makes it a crime for anyone to "directly or indirectly, willfully ... intimidate or harass another person who is ... a judge ... with the intent to interfere thereby with a ... criminal proceeding." This crime is a felony, and provides for a penalty of up to 10 years in prison if convicted. Intimidation, whether directed at a witness or a judge, is similar to assault, (and assault is distinct from battery.) Hrycenko’s defense attorney, Daniel Beck, argued his client had no intent to intimidate: "I told the jury that his big mistake was sending the letter to her home, but that it was not done to intimidate her," he said. "It was a pathetic plea for mercy."

A few minutes into the jury’s deliberations, the jury asked Superior Court judge Linda E. Giles to clarify what the term “willful” means, indicating that the issue for the jury was whether or not Hrycenko intended to intimidate judge Coffey. This point illustrates the importance of the issue of “intent”, or, in latin, mens rea, in a specific-intent crime like this: While the effect of Hrycenko’s letter may have been to intimidate this judge, unless the jury could agree that Hrycenko had this specific intent to intimidate, (versus just complaining or airing his feelings,) then a guilty finding is going to be quite difficult.

And difficult it apparently was, because after one day of deliberations, on August 14, Judge Linda E. Giles declared a mistrial after jurors advised her they were helplessly deadlocked. As a Boston criminal defense attorney, I’ve seen juries deadlock on issues like this several times. Undeterred, a spokesman for Suffolk County District Attorney Daniel F. Conley, said the office will retry Hrycenko. A new trial date has yet to be announced.

In a painful lesson that alcohol is not the only drug that causes death when mixed with driving, a 25 year-old woman was killed this past Sunday when her car was hit in a head-on collision by a car driven by a drug-addicted driver. Alison Regan, 25, who was a special needs teacher at the Boston Higashi School in Randolph, died when a truck driven by Eric Lum, 29, of Randolph struck her car head on. She died in the collision. Police found Regan on Route 28 on the Quincy-Milton line still belted into her 1989 Oldsmobile Cutlass, bleeding profusely from her head. The car’s roof had caved in and no air bags had deployed, according to investigators. The school released a statement Monday saying it was "deeply shocked and saddened" by her death. I’m sure they are, as I’m sure are many others who knew Ms. Regan.

The defendant, Eric Lum, 29, of Randolph, appeared in Quincy District Court yesterday and pled not guilty to Massachusetts motor vehicle homicide and other related Massachusetts drug charges and Massachusetts vehicular charges. Lum was ordered held on $100,000 bail. State police and prosecutors said the 29-year-old Randolph man was driving a stolen SUV that crossed the center line of Route 28 just after midnight on Sunday and slammed head-on into a car driven by Ms. Regan. State troopers reported finding a bent, burnt spoon coated with a “brown oily residue” and a syringe in the wreck of the Ford Explorer Lum allegedly stole from his grandfather Walter Seyfert, 82. Though Lum denied using or injecting heroin prior to the crash, the defendant’s father, Ronald Lurn, 55 referred to him as “a long-term junkie,” and said the 210-pound stock car-racing enthusiast has been addicted to heroin for more than seven years.

After his son’s arrest and arraignment, the elder Lum told reporters, ““For the Regans, it’s horrible. For us, there’s some salvation that he won’t end up dead. “You think of a heroin addict as a bum in the street. That’s not always the case. We’ve done everything we could from being overbearing, to too lenient, to enablers.” Shockingly, the defendant’s grandmother – the wife of the defendant’s grandfather from whom the defendant reportedly stole the truck that killed Ms. Regan – had something different to say: “He’s a good boy,” Florence Seyfert, 81, insisted of her grandson yesterday as she left his arraignment, pushing past reporters. To make matters even worse, the defendant, according to police, fled into nearby woods after the crash. When police apprehended him about an hour later, he reportedly said that he “didn’t think it was fair” he could be jailed, state police allege.

According to Norfolk County Assistant District Attorney Emily Nesson, Lum, a mechanic and carpenter, appeared in Stoughton District Court last month for driving with a suspended license, which he has been convicted of six times. Allegedly, Lum’s history of driving offenses at the state Registry of Motor Vehicles spans 12 pages, dating back to 1998. It includes Massachusetts speeding, multiple Massachusetts motor vehicle accidents, fleeing the scene of property damage and having his license revoked for four years in April 2007 for being a “Massachusetts habitual traffic offender.”

As a Boston criminal defense attorney who regularly handles Massachusetts OUI, Massachusetts vehicular homicide cases and Massachusetts drug offense cases, I can assure this defendant that he is in some deep trouble. While, like all criminal defendants, this defendant deserves a vigorous defense, it also seems clear - at least given the evidence available at this point (and I emphasize this point)– that he needs to be incarcerated until something can be done to adequately address his seemingly apparent drug addiction problem. I’ve blogged before that I believe treatment should take priority over incarceration, but if this man is found to be guilty of this death, or if he otherwise pleads guilty to this death, I believe he should be incarcerated. A promising young life has been snuffed out; family and friends left in grief. For drug offenses that do not result in serious bodily injury or death, however, I stand by my previously-stated position that treatment, not incarceration, is the wiser, more effective judicial choice.

My condolences to the Regan family at this loss.

In my previous post on this shocking story, I discussed the horrific details of how the stench of rotting flesh led a Worcester, Massachusetts landlord to discover the apparently murdered body of one of his tenants, 23 year-old Darlene Haynes. His discovery afterward that the once-pregnant victim’s abdomen had been sliced open, the fetus ripped from the womb and stolen, has sent shock waves through the world. News outlets from Britain to Australia have reported this event, and once the murderer(s) and “kidnappers” of this now-born baby are found, charged and tried, the story will only get larger still. So far, only one suspect has been arrested in this case: One Julie A. Corey, a 35year-old woman who was found in a New Hampshire homeless shelter with a newborn baby that authorities believe was ripped from the Massachusetts murder victim’s uterus.

As sickening as this case is, it presents interesting legal questions - at least, from a Massachusetts criminal defense attorney’s perspective I want to address these, initially, here.

• Why has the defendant not been charged with murder? Because while authorities believe that Julie Corey was either involved in this Massachusetts murder or possibly committed the murder herself, they have yet to either secure enough forensic evidence to support a charge of murder, or obtain a confession from Corey. Investigators are now developing that evidence.

• Why has the defendant only been charged with kidnapping? Because at this stage in the investigation, the only thing that police can determine is that Corey did not, as she claimed to several persons, deliver that baby (or any baby) in the past week, or recent past. Hence, because this premature infant could not be hers, and because she can not produce any documentation supporting legal custody of this child, the appropriate legal charge at this stage is “kidnapping.” DNA testing is presently being done on both the victim and the baby, and that will confirm for certain whether or not this baby was taken from the mother’s body. Regardless, kidnapping in Massachusetts is a felony charge, carrying a lengthy state prison sentence.

• But if police suspect Corey actually cut this baby out of the victim’s body, why aren’t there more serious charges than just kidnapping? Depending on the evidence investigators obtain, there may well be – soon. But it’s important to understand: Two separate acts of violence seem to have been committed against this victim: One, the apparent blunt force trauma to the victim’s head, which at this point investigators believe killed the victim – or at the least rendered her unconscious; and two, the act of cutting into the victim’s abdomen to pull out the fetus. An autopsy will first need to be completed on the victim, to determine what the exact cause of death was, and whether or not she was still alive (conscious or not,) at the time her abdomen was sliced open and the fetus removed.

If the autopsy confirms that the mother was killed by blunt force trauma to the head and police can develop enough evidence to tie Corey to this act, she will be accordingly charged with this Massachusetts murder, most likely murder in the first degree. If police determine that someone else actually struck the blows that killed the mother, but determine that Corey was involved, present or assisted in the killing, she can be charged with accessory to murder (before or after the fact.) If the investigation determines that Corey was the person who sliced into the mother’s abdomen and pulled out the fetus, she can be charged with mayhem and battery. (Mayhem basically involves mutilation or dismembering of a body.) If the victim was unconscious at the time of the mayhem, then no assault charge would result. If the autopsy determines the victim was conscious at the time of the attack, assault charges would likely be filed.

• What’s even more interesting here, is the “kidnapping” charge. Consider: I’m sure you’ve heard of the savage stories of people sometimes being unwittingly drugged at a bar, for example, then dragged off somewhere, to have a kidney cut out of them. These horrid stories reflect the growing black market trade for human organ transplantation (most often occurring abroad.) If occurring in Massachusetts, the most likely charges that would stem from such an incident would be: assault, battery, mayhem and possibly attempted murder. Kidnapping? Of course not – though something was illegally and violently removed from the victim’s body, a kidney is a human organ, not a human being. But something was removed from this victim’s body here – so why the “kidnapping” charge? Because at 8 months, a fetus is legally considered “viable” – that is, it can live outside the mother’s womb – and hence the law considers the fetus a “person”. That is why you’ve been reading and hearing this fetus referred to as a “baby”. If the fetus had been under 6 months in development, a charge of kidnapping would not be likely. Rather, the charges of battery, mayhem and attempted murder would be filed.

I’ll continue to monitor legal developments on this story.