SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases

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was the normal means of access to the house. There was no gate separating the driveway from the public road; there were no trees, fence or shrubbery shielding the driveway from the public road; and there were no "No Trespassing" signs posted. See Simmons, 392 <strong>Mass</strong>. at 47. Accordingly, the search warrant for the house did not authorize a search of the car.29 As the motion judge correctly concluded, 8. 951, a motion to suppress the evidence obtained as a result of the search of the Avalon would have been meritorious. 2. counsel was deficient in failing to f ile a motion to euppreas. Once Detective McDermott testified that the towel she saw in the Avalon was not the Ritz-Carlton towel, defense counsel should have moved to suppress the fruits of the search of the Avalon and to strike her testimony. Counsel claims he had hoped Mcnermott's testimony would be helpful in corroborating Greineder's story. But once. it was clear that McDermott's testimony about the search was harmful to the defense, counsel's failure to move to suppress and strike was grossly negligent. Under the 29 While automobile searches axe often performed without a warrant under the "automobile exception," the prosecution muat establish that the officers had probable cause to believe that there was contraband or evidence in the car and chat there were exigent circumstances that made obtaining a warrant impracticable. Here, neither requirement was met. There was no reason to believe that there was anything relevant to the alleged murder in the car, as the car had not been at the Bcene and had no known connection to the crime. Moreover, there were no exigent circumstances justifying a warrantless aearch. 62
circumatances, the court could properly have entertained a motion to auppreas during trial.30 There was no strategic reason not to file such a motion. By his own admission, counsel simply failed to consider doing so. As in Wiqqins v. Smith, 539 U.S. 510, 534 (2003), this failure !'was the result of inattention, not reasoned strategic judgment. 'I 3. The motion judge's reasoning was flawed. The motion judge's decision rejecting this claim rested on a faulty premise - that defense counsel's failure to move to suppress the evidence was a "deliberate'l decision. 8. 951. However, counsel testified that he did not consider moving to suppress and strike the testimony in the middle of trial. D. (5/30/06)/28. Therefore, the court's conclusion that this was a strategic decision was simply erroneous. In any event, any such decision would have been manifestly unreasonable once the damaging nature of Detective McDermott's testimony became clear. 4. Counsel's failure to move to suppress was prejudicial. There is a reasonable likelihood that the verdict '" While motions to suppress are generally required to be filed prior to trial. there is an exception for a motion to suppress evidence chat counsel could not anticipate would be introduced at trial. See, m, Commonwealth v. Carter, 39 Masa. App. Ct. 439, 440-441 (1995); Commonwealth v. watkins, 33 MaSS. App. Ct. 7, 13 n.6 (1992); Blumenson, Fisher, & Kanstroom, 2 Maasachusetts Criminal Practice 515.2D (1998 & 2001 Supp.). In this instance. defense counsel was surprised by MCDeKmOtt'S trial testimony. 67
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NORFOLK. ss. COMMONWEALTH OF MASSAC
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3. Greineder's direct testimony. .
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VI. VII. d. Greineder is entitled t
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4 . Counsel's failure to move to su
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Miller v. Harvey, 566 F.2d 879 (4th
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Commonwealth v. Carter, 39 Mass. Ap
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Commonwealth v. Martinez, 425 Mass.
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FitzDatrick v. Allen, 410 Mass. 791
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STATEMENT OF THE CASE Dirk K. Grein
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First of all, we are in Room 8. The
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logistical reasons for closure.3 As
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inculpatory DNA test results linkin
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testified that Greineder could not
Page 27 and 28: This Court held in Bmmonwealth v. N
Page 29 and 30: of his Miranda rights. a. at 112-12
Page 31 and 32: up Ms. Greineder . Greineder replie
Page 33 and 34: waives that right and makes volunta
Page 35 and 36: that Greineder had never mentioned
Page 37 and 38: they render the trial fundamentally
Page 39 and 40: Prior to trial, the Commonwealth ma
Page 41 and 42: gets to that point [i.e., to commit
Page 43 and 44: States, 17 F.2d 973, 976 (5th Cir.
Page 45 and 46: 399 Mass. 17, 21 n.5 (1987). In Gal
Page 47 and 48: 1. Rebeiro's trial testimony was fa
Page 49 and 50: As noted above, many jurisdictions
Page 51 and 52: deliberations. Judge Chernoff is co
Page 53 and 54: where the jury had experimented wit
Page 55 and 56: jury, if “a judge learns that a j
Page 57 and 58: consideration of the factors outlin
Page 59 and 60: moments" of insight, which "helped"
Page 61 and 62: Commonwealth v. Curnin, 409 Mass. 2
Page 63 and 64: In evaluating a claim of ineffectiv
Page 65 and 66: DNA test results withstands scrutin
Page 67 and 68: In any event, if filing such a moti
Page 69 and 70: subject to exclusion on that ground
Page 71 and 72: esults were effectively unchallenge
Page 73 and 74: emains unrebutted, and Dr. Brenner'
Page 75 and 76: precisely what the Constitution pro
Page 77: A search warrant for a residence co
Page 81: process can arise from a combinatio
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SUPREME JUDICIAL COURT DIRK GKEINEDER - Mass Cases

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