Com v. Miller, 6/10/10

Commonwealth vs. Callum A. Miller, June 10, 2010

457 Mass. 69

Homicide, Jury Instructions, Malice, Closing Arguments by Prosecutor, Lesser Included Offense of Assault and Battery 

The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty.  He now appeals conviction and argues that the judge erred in his instructions to the jury, that the prosecutor’s closing argument contained several improprieties that violated the defendant’s right to a fair trial, and that the judge’s failure to include a jury instruction for the lesser included offense of assault and battery created a substantial likelihood of a miscarriage of justice.  The SJC, after hearing this case on appeal from the Superior Court trial, rejected the defendant’s arguments and declined to exercise their authority under G.L. c. 278 § 33E, to reduce the degree of guilt or order a new trial.

Com v. Weeks, 6/10/10

Commonwealth v. Rupert A. Weeks, June 10, 2010

77 Mass.App.Ct. 1

Witness Confrontation, Argument by Prosecutor, Business Record, Prior Conviction, Firearms

The defendant was found guilty by a Superior Court jury of unlawful possession of a firearm without a license, and not guilty of unlawful possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon. A Superior Court judge found the defendant guilty on the charge of carrying a firearm without a license, subsequent offense.  The defendant appealed from his two convictions arguing that the judge’s admission of docket sheets to prove prior convictions during the subsequent offense trial violated his confrontation rights under the 6^th Amendment to the US Constitution.  He also raised various trial issues.  The Appeals Court affirmed the convictions.

Com v. Marzilli, 6/9/10

Commonwealth vs. Joseph James Marzilli, June 9, 2010
457 Mass. 64

Attempt, Indecent Assault and Battery 

Prior to the defendant’s trial the Superior Court judge reported the case to the Appeals Court, along with two questions concerning the charge:

“Does an indictment alleging an attempt to commit the crime of indecent assault and battery charge a felony offense that is cognizable under the laws of the Commonwealth?  If not, is the indictment a nullity or is it one which should be read to charge a misdemeanor of assault or another offense?”

The defendant argued that the answer to the first question must be, “No”.  The defendant claimed there is no crime of “indecent assault” in either the common law or in the statutes, citing Commonwealth vs. Eaton, 2 Mass.App.Ct. 113 (1974), and he further contends that because the crime of “indecent assault” does not exist, that the crime of “attempted indecent assault and battery” cannot exist either.  The SJC transferred the case to their court and conclude the answer to the first question is, “Yes,” and that being so there is no need to consider the second question.

Com v. Sullivan, 6/4/10

Commonwealth v. James Sullivan, June 4, 2010

76 Mass.App.Ct. 864

Witness Confrontation, Prior Misconduct, Drug Certificate, Assistance of Counsel 

Defendant appealed from convictions of two counts of unlawful distribution of cocaine. He raised four evidentiary claims: (1) testimony describing the process by which the informant was authorized to serve as such and participate in controlled drug buys constituted improper vouching; (2) testimony indicating the informant had purchased cocaine from the defendant before the dates of the indicted offenses constituted impermissible prior bad act evidence; (3) testimony indicating law enforcement personnel were assigned to a gang task force was improper as it was irrelevant and prejudicial; and (4) the admission of drug analysis certificates violated the defendant’s rights under the confrontation clause of the 6th Amendment to the US Constitution.  The defendant also claimed ineffective assistance of counsel.  The Appeals Court affirmed the convictions.
  

Com v. Ramsey, 6/3/10

Commonwealth v. David Ramsey, June 3, 2010

76 Mass.App.Ct. 844

Medical Record, First Complaint, Hearsay, Witness Credibility

A Superior Court jury convicted the defendant of incest, and acquitted him of rape of a child. On appeal, the defendant complained of multiple violations of the first complaint rule. He also asserted error in the exclusion of an alleged recantation, the improper questioning of a witness, and exclusion of a journal kept by the complainant. The Appeals Court reversed because of the erroneous admission of some portions of the complainant’s hospital records.

Com v. Belliveau, 6/1/10

Commonwealth v. Gregory Belliveau, June 1, 2010
76 Mass. App. Ct. 830

Operating under the Influence, What Constitutes a Public Way, Ineffective Assistance of Counsel, Sentencing 

The defendant was observed obviously intoxicated with a beer in his hand urinating in public immediately after driving onto a pier in Charlestown.  The defendant was convicted of operating a motor vehicle under the influence of alcohol (OUI), fifth offense, in violation of G. L. c. 90 § 24(1)(a)(1).  On appeal the defendant argued that the pier he was arrested on was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing.  The Appeals court affirmed the judgment.

Com v. Riedel, 6/1/10

Commonwealth v. Mark A. Riedel, June 1, 2010  

76 Mass. App. Ct. 911

Extraterritorial Stop, Operating Under the Influence, Operating Negligently so as to Endanger 

The defendant appealed the legality of an extraterritorial stop effectuated in Brewster by an Orleans police officer.  The stop resulted in charges of operating while under the influence of intoxicating liquor (of which he was convicted) and operating negligently so as to endanger (of which he was acquitted). The trial court denied the defendant’s motion to suppress and the Appeals Court affirmed.