Com v. McGillvary

Commonwealth v. McGillvary
January 25, 2011.
78 Mass.App.Ct. 644

Motor Vehicle, Operating under the influence, Operation, Jury Instructions, Defendant's decision not to testify, Assistance of counsel, Prior conviction, Speedy trial

The defendant was convicted by a jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense.  On appeal, the defendant made several challenges.  First, he challenged whether he actually operated a motor vehicle, as required by G. L. c. 90 § 24.  Second, the defendant claimed that the Commonwealth did not present a sufficient amount of evidence to prove that he operated a motor vehicle or that the defendant had prior convictions.  Third, the defendant argued that the prosecutor’s representation of the evidence during his closing argument created a substantial risk of miscarriage of justice.  Fourth, the defendant contended that his right to testify was muzzled.  Fifth, the defendant claimed the judge abused his discretion by denying his motion to replace his attorney.  Lastly, the defendant argued that he was denied his right to a speedy trial.  The judgment was affirmed.

Com v. Sliech-Brodeur, 7/19/10

Commonwealth v. Joann Sliech-Brodeur, July 19, 2010

457 Mass. 300

Plain View, Search and Seizure, Discovery Orders and Mass. R. Crim. P. 14(b)(2), Jury Instructions, Daubert-Lanigan Hearing, Evidentiary Rulings

The defendant was found guilty of murder in the first degree of her husband on theories of deliberate premeditation and extreme atrocity or cruelty.  The defendant appealed her conviction by challenging a denial of her motion to suppress evidence, the scope of discovery orders granted on motion to the commonwealth concerning her defense of lack of criminal responsibility, and a number of rulings by the trial judge.  The SJC stated that the defendant’s motion to suppress was properly denied but that the discovery orders violated Mass. R. Crim. P. 14(b)(2), as appearing in 442 Mass. 1518 (2004).  These discovery orders resulted in prejudice to the defendant, and thus the SJC reversed the conviction and ordered a new trial.

Com v LeBlanc, SJC, 2/18/10

COMMONWEALTH v. LeBLANC, FEBRUARY 18, 2010, SJC

Instructions to jury, Consent

The defendant was convicted of inter alia rape, cocaine distribution adn drugging a person for unlawful sexual intercourse. The evidence at trial showed that the defendant raped an eighteen year old female after providing her cocain and alcohol. On appeal the defendant argued the judge erroneously instructed the jury on incapacity to consent by stating that consumption of alcohol or cocaine “does not necessarily mean incapacity to consent. Specifically, the defendant argued the use of the word “necessarily” was misleading because it created a substantial risk that the jury understood the instruction to mean theat the mere consumption of alcohol or cocain might mean that she was incapable of giving consent. The SJC disagreed. The trial judge properly told the jury that the fact that the victim consumed alcohol or drugs did not inevitably mean she was not capable of consenting.

Instructions to jury, “Administer”

The defendant argued that the judge’s instructions interpreting the word “administer” as “gave or provided” were erroneous. The SJC agreed. The statute requires some forceful action, deceit or trickery on the part of the defendant. Merely making alcohol or drugs available is not enough to convict. The SJC found that the error was not harmless and reversed the conviction of drugging a person for unlawful sexual intercourse.