profiles of the justices - Massachusetts Lawyers Weekly

B10 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 282
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trial was declared when the jury could not reach
a unanimous verdict and (3) the defendant now
claims that the commonwealth should be barred
from advancing a joint venture theory at a retrial,the
defendant’s argument must be rejected,as
the commonwealth’s evidence was sufficient to
submit the case the jury on principal and joint
venture liability on both charges.
Taylor v. Commonwealth (Lawyers Weekly
No.10-102-06) (9 pages) (Greaney,J.) (SJC) Petition
heard by Sosman, J., sitting as single justice.
John D. Fitzpatrick for the defendant; John
E. Bradley for the commonwealth (Docket No.
SJC-09443) (June 16, 2006).
Murder - Manslaughter -
Reduced verdict
Where a judge reduced a first-degree murder
verdict to involuntary manslaughter, the judge
acted properly considering the defendant’s role
in a multi-party fatal attack on the victim.
Commonwealth v. Chhim (Lawyers Weekly
No.10-129-06) (27 pages) (Cowin,J.) (Spina,J.,
with whom Greaney and Ireland, JJ., join, dissenting)
(SJC) Motion to suppress evidence
heard by Chernoff, J.; case tried before Gants, J.,
and motions for postconviction relief and for a
new trial heard by him. Stewart T. Graham Jr.
for the defendant’ Peter A. D’Angelo and Kevin
L. Ryle for the commonwealth (Docket No. SJC-
09592) (Aug. 2, 2006).
Murder - Motion for
new trial - Reduced verdict
Where (1) a jury convicted the defendant of
first-degree murder, (2) the defendant then
filed a motion for a new trial pursuant to Rule
30(b) of the Massachusetts Rules of Criminal
Procedure and (3) the judge who heard the
motion ordered the entry of a finding of guilty
of a lesser offense (second-degree murder),the
judge did not abuse his authority.
Commonwealth v. Gilbert (Lawyers Weekly
No.10-116-06) (23 pages) (Marshall,C.J.) (SJC)
Motion for a new trial heard by Gants, J.; motion
for reconsideration of the reduction of the
verdict also heard by him. Richard J. Fallon for
the defendant; Peter D’Angelo for the commonwealth
(Docket No. SJC-09512) (July 5, 2006).
Murder - Newly-discovered
evidence - Ineffective assistance
Where a defendant,who was found guilty of
the premeditated murder of two of his business
associates, appealed and filed a new trial
motion, both the appeal and new trial motion
were rightly rejected,as no merit existed to the
defendant’s claims (1) that newly-discovered
evidence cast substantial doubt on the justice
of his convictions and (2) that he was denied
the effective assistance of counsel.
Commonwealth v. Shuman (Lawyers Weekly
No. 10-164-05) (17 pages) (Cordy, J.) (SJC)
Case heard by Botsford,J.,and new trial motion
considered by her. Donald A. Harwood for the
defendant; Varsha Kukafka and Susan Corcoran
for the commonwealth (Docket No. SJC-
08364) (Nov. 8, 2005).
Murder - Post-trial discovery
Where a judge denied the post-trial discovery
motion of a defendant convicted of firstdegree
murder, we hold that this constituted
error under the circumstances presented by
the case and that a remand must be ordered.
Commonwealth v. Daniels (Lawyers Weekly
No.10-178-05) (28 pages) (Marshall,C.J.) (SJC)
Cases tried before Rup, J., and motions for posttrial
discovery and for a new trial were heard by
her. Dana Alan Curhan and Brad P. Bennion
for the defendant; Jane Davidson Montori for
the commonwealth (Docket No. SJC-08805)
(Nov. 23, 2005).
Murder -
Reasonable provocation
Where a defendant was convicted of seconddegree
murder, the conviction must be vacated
and a new trial ordered, as the defendant’s
trial counsel was ineffective in failing to request
a jury instruction on voluntary manslaughter
based on reasonable provocation.
Commonwealth v. Acevedo (Lawyers Weekly
No. 10-059-06) (24 pages) (Spina, J.) (SJC) Case
tried before Grabau, J.; motion for a new trial
heard by him. Leslie W. O’Brien on appeal for the
defendant;Kevin J.Curtin for the commonwealth
(Docket No. SJC-09577) (April 4, 2006).
Murder in first degree -
Armed robbery
Where a defendant has appealed his convictions
for first-degree murder and armed
robbery, we hold that the convictions should
stand, as (1) the trial judge acted permissibly
in submitting the case to the jury on a theory
of extreme atrocity or cruelty, (2) the defendant’s
motion to suppress statements he made
to the police was rightfully denied,(3) the jury
instructions framed contained no reversible
error, (4) no abuse of discretion occurred in
the admission of certain autopsy and crime
scene photographs, (5) the court acted permissibly
in refusing the sever the defendant’s
trial from that of a coventurer and (6) no merit
exists to the defendant’s claims of ineffective
assistance of counsel and serious error in the
prosecutor’s opening and closing statements.
We also find no reason today to act pursuant
to G.L.c. 278, §33E, to reduce the murder verdict
or order a new trial.Affirmed.
Commonwealth v.Anderson (Lawyers Weekly
No. 10-157-05) (31 pages) (Ireland, J.) (SJC)
Cases tried before Rouse, J., in the Superior
Court. Robert S. Sinsheimer for the defendant;
Amanda Lovell for the commonwealth (Docket
No. SJC-09266) (Sept. 22, 2005).
Murder in first degree - Infant
victim - Cross-examination
Where a defendant has been convicted of
first-degree murder, the conviction should be
affirmed based on this court’s rejection of the
defendant’s argument that his right to crossexamination
was improperly restricted.
Commonwealth v.Podkowka (Lawyers Weekly
No.10-003-06) (15 pages) (Spina,J.) (SJC) Cases
tried before Carhart,J.,in Superior Court.Myles
D. Jacobson on appeal for the defendant; Elizabeth
Dunphy Farris for the commonwealth (Docket
No. SJC-08788) (Jan. 6, 2006).
Murder in second
degree - Likelihood of
death - Jury instruction
Where (1) a defendant,convicted of seconddegree
murder, moved for a new trial and (2)
an order denying that motion was reversed by
the Appeals Court on the ground that a jury
instruction on “third prong malice” was erroneous,
the conviction should be reinstated, as
the error did not result in a substantial risk of
a miscarriage of justice.
Commonwealth v. Childs (Lawyers Weekly
No.10-191-05) (10 pages) (Ireland,J.) (SJC) Motion
for a new trial considered by McEvoy, J., in
Superior Court. Anne M. Thomas for the commonwealth;
Arnold R. Rosenfeld and Ashley
Handwork for the defendant (Docket No. SJC-
09441) (Dec. 15, 2005).
New trial -
Ineffective assistance
Where a Superior Court judge granted a criminal
defendant a new trial,we hold that the judge
acted permissibly,as the defendant demonstrated
that his trial counsel had provided ineffective
assistance in depriving the defendant, through
inattention, of two grounds of defense: thirdparty
culprit and failure of the police to conduct
an adequate investigation.
Commonwealth v. Phinney (Lawyers Weekly
No. 10-038-06) (19 pages) (Ireland, J.) (SJC)
Case heard by Sosman, J., sitting as single justice.
David W. Cunis for the commonwealth;
David R. Yannetti for the defendant on appeal
only (Docket No. SJC-09435) (March 6, 2006).
New trial - Newly
discovered evidence
Where a defendant convicted of murder was
granted a new trial, this was error, as the defendant
did not present any newly discovered,
admissible evidence.
Commonwealth v. Weichell (Lawyers Weekly
No. 10-092-06) (32 pages) (Greaney, J.) (SJC)
Motion for a new trial heard by Borenstein, J.,
in Superior Court. Robert C. Cosgrove for the
commonwealth; Carol A. Fitzsimmons for the
defendant (Docket No.SJC-09556) (Docket No.
SJC-09556) (May 22, 2006).
New trial motion -
Effectiveness of counsel -
Recantation
Where a Superior Court judge denied a
murder defendant’s motion for a new trial,the
judge committed no abuse of discretion,as defense
counsel was not ineffective.
Commonwealth v. Hudson (Lawyers Weekly
No.10-087-06) (27 pages) (Cowin,J.) (SJC) Motion
for new trial heard by Lauriat, J., in Superior
Court. Attorneys on appeal were Paul B.
Linn for the commonwealth and Greg T. Schubert
for the defendant (Docket No. SJC-09593)
(May 16, 2006).
Probation - Revocation -
Termination date
Where a defendant’s probation was revoked,
a remand must be ordered because the revocation
decision was improperly based in part
on behavior that occurred following the end
of the probationary period.
Commonwealth v. Aquino (Lawyers Weekly
No. 10-181-05) (8 pages) (Cowin, J.) (SJC) probation
revocation hearing was held by Tina S.
Page, J., and motions for reconsideration were
heard by her. Douglas J. Beaton for the defendant;
Dianne M. Dillon for the commonwealth;
David J. Nathanson, for Committee for Public
Counsel Services, amicus curiae, submitted a
brief (Docket No. SJC-09485) (Dec. 2, 2005).
Probation revocation -
‘No contact’condition
Where a probation condition stated that the
defendant was to have “no contact” with minors
under 16 years of age, we hold that the
condition gave him sufficient notice that he
was prohibited from displaying his antique automobile
at a car show attended by minors.
Commonwealth v.Kendrick (Lawyers Weekly
No. 10-025-06) (11 pages) (Cowin, J.) (SJC)
Probation revocation proceeding heard by
Martha A. Scannell Brennan, J., in the District
Court. James B. Krasnoo for the defendant;
Christopher P. Hodgens for the commonwealth
(Docket No. SJC-09514) (Feb. 9, 2006).
Prostitution -
Motion to suppress
Where a defendant has appealed his convictions
for owning, or assisting in the management
or control of,a place for unlawful sexual
intercourse and for keeping a house of ill
fame, we conclude that the appeal must be rejected
because (1) the relevant search warrant
was issued on sufficient probable cause and
properly executed,(2) the judge committed no
palpable error in admitting certain “prior bad
act” evidence and certain extrajudicial statements,(3)
the judge acted permissibly in denying
the defendant’s motion for a mistrial, (4)
the defendant has not proved his “ineffective
assistance of counsel” claim, (5) sufficient evidence
was introduced against the defendant
at trial to justify denials of his motions for required
findings of not guilty and (6) the defendant
was not prejudiced by a certain erroneous
jury instruction.
Commonwealth v. Mullane (Lawyers Weekly
No. 10-004-06) (25 pages) (Ireland, J.) (SJC)
Pretrial suppression motion heard by Hamlin,
J.,and cases tried before her.David W.Cunis for
the commonwealth; George Hassett for the defendant
(Docket No. SJC-09527) (Jan. 9, 2006).
Questioning by DSS
investigator - Right of counsel
Where a defendant filed a motion to suppress
an incriminating statement he made to an investigator
with the Department of Social Services
who interviewed the defendant at jail without
defense counsel present, the motion should
have been allowed but the error was harmless.
Commonwealth v. Howard (Lawyers Weekly
No. 10-067-06) (13 pages) (Greaney, J.) (SJC)
Motion to suppress evidence heard by Rup, J.;
cases tried before Agostini,J.,in Superior Court.
Aziz Safar for the defendant; Steven Greenbaum
for the commonwealth (Docket No. SJC-09605)
(April 18, 2006).
Rape - Mental impairment
Where (1) a jury convicted the defendant of
raping a 19-year-old woman suffering from a
brain disorder and resulting mental disability,
(2) the Appeals Court set aside the verdict,
holding that the trial judge had improperly admitted,
through the testimony of the victim’s
mother,character evidence of the victim’s trusting
nature and propensity to be victimized,and
(3) the commonwealth applied for further appellate
review, we decide that the defendant’s
conviction should be affirmed.
Commonwealth v. Bonds (Lawyers Weekly
No.10-016-06) (23 pages) (Cordy,J.) (SJC) Case
tried before Sikora, J., in the Superior Court.
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