Commonwealth v. Bachir

696 N.E.2d 948, 45 Mass. App. Ct. 204, 1998 Mass. App. LEXIS 513
CourtMassachusetts Appeals Court
DecidedJuly 17, 1998
DocketNo. 95-P-1455
StatusPublished
Cited by5 cases

This text of 696 N.E.2d 948 (Commonwealth v. Bachir) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bachir, 696 N.E.2d 948, 45 Mass. App. Ct. 204, 1998 Mass. App. LEXIS 513 (Mass. Ct. App. 1998).

Opinion

Smith, J.

The defendant was indicted for parental kidnapping (G. L. c. 265, § 26A), and for violating a restraining order (G. L. c. 209A). Later, he was also indicted for intimidation of a witness (G. L. c. 268, § 13B).

[205]*205Prior to trial, the defendant filed a motion to suppress statements that he had made to the police. After an evidentiary hearing, a Superior Court judge denied the defendant’s motion. A jury found the defendant guilty of parental kidnapping and of violating G. L. c. 209A, and not guilty of intimidation of a witness. The defendant was sentenced to M.C.I., Cedar Junction, on the parental kidnapping conviction. On the conviction of violating the G. L. c. 209A order, the defendant received a sentence to a house of correction, to be served on and after the other sentence. He filed a timely notice of appeal. Later, he filed a motion to vacate his convictions and sentences, pursuant to Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), claiming that his convictions were duplicative. The trial judge denied the motion, and the defendant filed a notice of appeal from the denial. The defendant’s two appeals have been consolidated.

On appeal, the defendant claims that the judge committed error in denying his motion to suppress. He also contends that his conviction and sentence for violating the G. L. c. 209A order should be vacated because the elements of that crime were included in the parental kidnapping indictment. Finally, the defendant claims that he was denied the effective assistance of counsel because his trial attorney failed to file a motion for a required finding of not guilty on both indictments.

We summarize, as background, the facts introduced by the Commonwealth, reserving further details for discussion with the relevant issues. Molly Scharlach and the defendant are the parents of Michael, bom on April 21, 1986. The defendant and Molly moved constantly during their relationship, including several moves to Lebanon, as well as to Egypt, Yugoslavia, Turkey, Greece, and various locations in the United States. In September, 1992, while they lived in Cambridge, Molly left the defendant and she and Michael moved to Quincy.

On September 24, 1992, Molly obtained a restraining order against the defendant pursuant to G. L. c. 209A. Molly received temporary custody of Michael, and the defendant was ordered to refrain from contacting Michael or Molly, either in person or by telephone, at home or at work. The order was extended on October 2, 1992, for a year, until September 28, 1993.

After Molly left the defendant, he repeatedly telephoned Molly’s mother in California in an attempt to learn where Molly was living. Because the. defendant called as many as thirty times a day, Molly’s mother installed an answering machine. [206]*206The mother gave law enforcement officers tapes from the answering machine which had been recorded immediately preceding Michael’s disappearance. On a tape recorded November 12, 1992 (one day before Michael’s abduction), the defendant called Molly’s mother and asked what Molly’s intentions were. The mother told him that there was a restraining order against him and that Molly was not going back to him. The defendant replied, “I don’t know what I’m going to do. I’m going to do something very bad. I’m not going to let nobody take my son . . . .”

The next day (November 13, 1992), the defendant hired a taxi driver whom he directed to drive to Quincy. There, they stopped at a Dunkin Donuts and waited for fifteen to twenty minutes. A school bus then drove by, and the defendant directed the taxi driver to follow the bus. When the bus stopped at an elementary school, the defendant got out and told the driver that he was going to pick up his son. A short time later, he returned with a child who was holding his hand. The child was Michael, then six years old.

The defendant directed the taxi driver to proceed to Rhode Island. There, the defendant telephoned Molly’s aunt. He told her that he was taking Michael “to where people love him.” He allowed Michael to talk to her. After stops in Connecticut and New York, the defendant directed the driver on to Atlantic City. Upon arrival, he discharged the taxi driver, who returned to Massachusetts and later identified the defendant as the person who had hired him and had taken the child from school.

The Federal Bureau of Investigation, the State Department, the Immigration and Naturalization Service, and Interpol became involved in the investigation into the abduction of Michael. Despite their efforts, neither the defendant nor the child were located for a number of months. At the time of trial, the son was living in a Palestinian refugee camp in southern Lebanon.

On December 4, 1992, Molly’s mother received two telephone calls from the defendant, who said he was in Lebanon with Michael. The defendant said Michael was in a Palestine Liberation Organization refugee camp. In February, 1993, the defendant called Molly to say that their son was seriously ill and could not walk. Molly went to Lebanon with the goal of bringing her son home, but the defendant’s family stopped her. After a year of living in Lebanon, Molly returned home without her son.

[207]*207On August 29,1994, the defendant arrived at John F. Kennedy (JFK) airport in New York and was arrested on a Massachusetts fugitive warrant for parental kidnapping. A New York Port Authority police officer transported the defendant to the JFK airport police station. The officer read the defendant the Miranda warnings and the defendant responded that he understood those warnings and was willing to answer questions. The defendant admitted that he had taken his son to Lebanon and that he was making arrangements with the FBI to return him.1

At trial, the defendant testified in his own defense and denied that he had taken his son from school. He testified that, instead, he was in California on the day that his son disappeared and that he later travelled to Lebanon, where he found the boy.

1. Denial of the defendant’s suppression motion. The defendant filed a motion requesting, among other things, that certain statements he made to two Massachusetts State troopers be suppressed. The defendant argued that admission of his statements violated his right to have counsel present as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. After an evidentiary hearing, a Superior Court judge allowed the motion in part2 and denied it in regard to his statements to the troopers.

We summarize the judge’s findings of fact. After the defendant was arrested at JFK airport, two State troopers were sent from Massachusetts to bring the defendant back to the Commonwealth. At his rendition hearing in New York, the defendant was represented by counsel who advised him not to speak to the troopers about the case on the ride to Mas[208]*208sachusetts. The judge presiding at the rendition hearing also ordered the troopers not to discuss the case with the defendant while transporting him.

After the hearing the troopers brought the defendant by automobile to Massachusetts. While travelling through Connecticut, the defendant began conversing with the troopers. First, he asked them why he was being transported by automobile rather than by air.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Welch
790 N.E.2d 718 (Massachusetts Appeals Court, 2003)
People v. Sorrendino
37 P.3d 501 (Colorado Court of Appeals, 2001)
Commonwealth v. Henderson
747 N.E.2d 659 (Massachusetts Supreme Judicial Court, 2001)
Commonwealth v. Lenahan
736 N.E.2d 405 (Massachusetts Appeals Court, 2000)
Commonwealth v. Gaskins
727 N.E.2d 1215 (Massachusetts Appeals Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
696 N.E.2d 948, 45 Mass. App. Ct. 204, 1998 Mass. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bachir-massappct-1998.