Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

LOWELL MEN ATTEMPT ARMED ROBBERY IN CONVENIENCE STORE WHILE MOTHER AND SIX-YEAR-OLD WAIT IN GETAWAY CAR

Well, this Boston criminal lawyer believes that this Massachusetts robbery story can be placed in the column of “What Were They Thinking?”

Lowell gentlemen Brian Cunneen, 22, and John Hickey, 27, hereinafter the “Defendants”, are accused of attempting to rob a Manchester, New Hampshire, convenience store yesterday. According to authorities, the robbery did not go so well.

Too many interruptions.

Apparently, the Defendants went into the store and brandished what appeared to be a handgun. They then demanded money from the female clerk. It was then that a customer came into the store and called the police. The Defendants ran out of the store empty-handed and, at least one of them, into a vehicle that was waiting a few blocks away.

The witness could not specify who was driving.

Next, a different witness who called police followed the car on the highway, giving authorities updates on their location. Police caught up with the car just after the driver finished paying a cash toll in Bedford, N.H., on the Everett Turnpike.

Found inside the alleged escape vehicle was a six-year-old girl and her 22-year-old mother in the back seat.

The Defendants were arrested. One was charged with armed robbery and the other with criminal liability to armed robbery, Manchester police said in a statement.
The woman was neither charged nor arrested and police have not yet (as of last night) revealed her relationship to the Defendants.

The Defendants were held in custody to appear in court for their arraignments in Manchester District Court this morning according to police.

Attorney Sam’s Take On Quality, Not Quantity Of The Evidence

We really do not yet know the quality of the evidence of the case against the Defendants.

“What do you mean, Sam? They were caught in the vehicle and two witness, not to mention the store clerk, identify them.”

It is easy to take such accounts, along with their assumptions, as undeniable truths. Let’s slow down a moment. There are many things that we do not know which could mean the difference between a conviction and an acquittal in this case.

First of all, many stores have video cameras set up just for this reason. If there is such a video recording, and if it is good in quality, this case might well be over before it began. However, if not, then the witnesses in the store are the only source of evidence as to the identity of the Defendants as the two who were attempting to rob the store.

This would be the clerk and the witness who wandered in. How good is their identification? There are factors to consider when looking at such eyewitness testimony. In this case, we know from the start that the witness who called the police was looking at his phone and calling the police. So…how long did he have a chance to look at the perpetrators. As for the clerk, she was panicked one would imagine, staring at a gun barrel which was pointed at her. Was she able to calmly get a good enough look at the folks purportedly holding the gun? Also, only one of the gents were holding the gun. Was the other person really a part of the robbery at all?

There are two alleged eyewitnesses who are said to identify the automobile. However, they seem to do so at different locations. That being the case, do we really know that the vehicle one witness saw the perpetrators run into was the same one that was stopped? What happened in between? We do not know who was driving when the car left the scene of the crime. Could the two would-be robbers have gotten out of the car before the car was stopped?

And then…there was that alleged gun. Assuming that it was, in fact, an actual gun, there is no mention of the gun being found at the arrest. If it isn’t…what does THAT mean?

What do the mother and daughter say about things? What if they claim not to know what the police are talking about? There could be the argument that a person would have to be crazy to take a six-year-old out on an armed robbery. Maybe the actual perpetrators did not do that after all.

As I have often told you, most cases are not simply as “dead in the water” as many people think. This is why we have a presumption of innocence.

By the way, at least in the Commonwealth, the prosecution need not prove that the item which appeared to be a gun was actually an operable firearm. It was used to threaten in the commission of the attempted robbery. That is enough.

To read the original story upon which today’s blog was based, please go to http://boston.com/metrodesk/2013/07/28/six-year-old-girl-and-mother-found-getaway-car-allegedly-used-two-lowell-men-new-hampshire/romQBj2huUcZ8rppfH0BTJ/story.html

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