Com v. Banville, 8/13/10

Commonwealth v. Christopher Banville, August 13, 2010 
457 Mass. 530

Search and Seizure, Search Warrant Conflict of Laws, Expert Witness, Prior Convictions

The defendant was found guilty of first degree murder under theories of deliberate premeditation and extreme atrocity and cruelty, as well as larceny of a motor vehicle.  The defendant appealed his convictions claiming: 1) ineffective assistance of counsel for failing to file a motion to suppress evidence gained from buccal and genital swabs taken from the defendant pursuant to a Maryland search warrant, 2) Expert testimony was hearsay and inadmissible, and 3) that the judge erred by allowing the prosecutor to use evidence of the defendant’s prior criminal convictions to show a propensity to commit crime.  The SJC affirmed the defendant’s conviction and declined to reduce the degree of guilt.

Com v. Rodriguez, 8/9/10

Commonwealth v. Lionel Rodriguez (and a companion case, Commonwealth vs. Ryan Marshall), August 9, 2010 
457 Mass. 461

Peremptory Challenge, “Honest but Mistaken” identification, Photographic and Expert Testimony Admission, Accessory before the Fact Juror Instructions

A jury convicted Rodriguez of murder in the first degree on the theory of extreme atrocity or cruelty, and his codefendant Marshall was convicted of being an accessory before the fact to that murder also on a theory of extreme atrocity or cruelty.  Rodriguez argued on appeal (1) that the prosecutor improperly used a peremptory challenge to remove the sole Hispanic juror; (2) error in the failure to instruct the jury on an "honest but mistaken" identification as set forth in Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983); and (3) error in the admission of autopsy photographs and testimony of the medical examiner. Marshall argued (1) insufficiency of the evidence; (2) violation of due process; (3) error in the judge's instructions to the jury; and that the SJC exercise their authority under G.L. c. 278, § 33E, to reduce his conviction. The SJC found that errors in the admission of autopsy photographs and testimony of the medical examiner created a substantial likelihood of a miscarriage of justice as to Rodriguez’s conviction of murder in the first degree on a theory of extreme atrocity or cruelty, and reduced his conviction to murder in the second degree. Because there was insufficient evidence to sustain Marshall's conviction as an accessory before the fact, the SJC reversed his conviction and set aside the verdict.