ATTLEBORO - Prosecutors reached back to a pre-Civil War court decision to help bolster their case against a city landlord convicted last week of keeping a noisy and disorderly house.
Brian K. Madsen, 47, of 2 Merritt Place, was sentenced in Attleboro District Court to probation for one year. His lawyer filed a notice to appeal the case this week, partially because the charge has largely been untested in higher courts.
Police charged Madsen after receiving repeated complaints from residents in the area of 2 Merritt Place, a large rooming house off North Main Street, after an investigation by the department's Problem Orientated Policing unit.
The unit, called POP, was established by Police Chief Kyle Heagney in June 2012 with the goal of improving the quality of life in the city. Officers in the unit met with residents about their complaints and with Madsen about the problems before filing the charges, Detective Sgt. Arthur Brillion said.
Residents cited problems, such as abandoned vehicles, trash and other unsightly issues, Brillon said.
A report filed in the case also noted police responded to more than 30 disturbance calls and other crimes - such as drunken behavior and domestic assaults - in addition to medical calls in 2011 and 2012.
Madsen was told to address the problems with his tenants, which were consuming police resources, before police decided to charge him, according to Brillion.
The report indicates problems would subside for a short period before police were called again to the building.
The issue at the trial was whether Madsen could be held criminally responsible for the behavior of tenants in his building.
In helping Assistant District Attorney Noah Ertel do legal research on the case, an intern at the office, Henry Sousa, found an 1856 case involving a Raynham landlord who was convicted of the charge for having prostitutes in his building.
In the case, Commonwealth v. Kimball, the court ruled to keep or maintain a nuisance "imports the concept of control by the defendant over the place of the nuisance, as well as the requirement that the illegal activities that render the premises a common nuisance take place over time."
Ertel argued that to prove the case he had to show Madsen kept and maintained the house where the alleged activities occurred. Detective Matthew Cook, who was assigned to the POP unit, and police prosecutor Steve Graney, testified at the trial.
Brillon said the police department is happy about the conviction, and commended members of the POP unit and the prosecutors.
"It is hoped that this conviction will encourage the property owner as well as other landlords within the city of Attleboro to properly 'police' their tenants," Brillion said.
Madsen's lawyer, James Hanley of Pawtucket and Fall River, argued that the charge against his client only applied to cases involving prostitution.
Hanley, who did not want to discuss the case in detail because it is being appealed, said there is little case law where courts have ruled on landlords convicted of keeping a noisy and disorderly house.
Because of that, there are no standard jury instructions for the judge to instruct jurors on the law and what elements of the crime had to be proven in the case.
Judge Daniel O'Shea and the lawyers had to fashion instructions on the law before the start of the trial.
While on probation, Madsen cannot be the subject of any civil action regarding his property, such as being cited for code violations, by the building or health inspectors of the city.