Commonwealth v. Taylor (Lawyers Weekly No. 10-151-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11398 COMMONWEALTH vs. RODRICK JAMES TAYLOR. Suffolk. December 5, 2013. – August 29, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Homicide. Constitutional Law, Speedy trial. Practice, Criminal, Dismissal, Speedy trial, Discovery, Waiver, Argument by prosecutor. Indictment found and returned in the Superior Court Department on July 28, 2006. A motion to dismiss for lack of speedy trial was heard by Stephen E. Neel, J., and the case was tried before him; a motion for postconviction relief, filed on April 28, 2011, was heard by Diane M. Kottmyer, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Chauncey B. Wood (John Swomley with him) for the defendant. Sarah H. Montgomery & Kathleen Celio, Assistant District Attorneys (Edmond J. Zabin, Assistant District Attorney, with them) for the Commonwealth. Benjamin H. Keehn, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. William M. Jay, of the District of Columbia, Paul F. Ware, Jr., Joshua M. Daniels, & Kevin P. Martin, for Boston Bar Association, amicus curiae, submitted a brief. LENK, J. The defendant appeals from his conviction of murder in the second degree. He maintains both that a Superior Court judge erred in denying his motion to dismiss for lack of a speedy trial pursuant to Mass. R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996), and that errors in the prosecutor’s closing argument require reversal. As to the speedy trial claim, the judge did not abuse his discretion in denying the defendant’s motion to dismiss under Mass. R. Crim. P. 36, 378 Mass. 909 (1979) (rule 36). A total of 614 calendar days had elapsed between the defendant’s arraignment and the filing of his motion to dismiss, which tolled the running of time in which the defendant’s trial must have commenced. See Barry v. Commonwealth, 390 Mass. 285, 294 (1983). However, the Commonwealth met its burden of showing that at least 249 days were excludable from the speedy trial calculation, and that the defendant accordingly had been brought to trial within the requisite one-year period under rule 36.[2] Because the defendant acquiesced in certain delays, failed to object to every continuance sought by the Commonwealth, did not press a motion under Mass. […]
Litchfield’s Case (Lawyers Weekly No. 11-106-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1044 Appeals Court ROBERT M. LITCHFIELD’S CASE. No. 13-P-1044. Suffolk. February 12, 2014. – August 28, 2014. Present: Trainor, Katzmann, & Hanlon, JJ. Workers’ Compensation Act, Injuries to which act applies, Coverage, Emotional distress. Mental Impairment. Appeal from a decision of the Industrial Accident Reviewing Board. Charles E. Berg for the employee. Paul M. Moretti for the insurer. TRAINOR, J. Robert M. Litchfield appeals the decision of the reviewing board of the Department of Industrial Accidents (department) which affirmed a decision of an administrative judge of the department. The administrative judge determined that G. L. c. 152, § 36(1)(j), benefits for permanent loss of psychiatric function were not available to Litchfield. We affirm. Factual and procedural background. The following facts are taken from the administrative judge’s subsidiary findings of fact and are not in dispute. Litchfield “worked as a heavy equipment mechanic for the [t]own of Westford, the employer . . . , from 1984 until suffering an industrial injury to his elbow and shoulder in 2001.” Litchfield “never suffered from anxiety and depression prior to his industrial injury but has since. His depression prevents him from working or doing the things he used to enjoy including interacting with his family. . . . He spends his days watching television, playing computer games and performing light housework. He does get out of the house each day and works as a municipal poll worker on election days. His elbow and shoulder pain are always present. . . . The pain and inability to work, directly caused by the physical injuries, have caused his psychiatric conditions of depression and anxiety.” He has received compensation for these injuries under various sections of G. L. c. 152. In 2004, he was awarded § 35 partial incapacity benefits for his physical injuries. In 2007, he was awarded § 34 temporary total incapacity benefits for these injuries. A panel of this court affirmed that award in Litchfield’s Case, 74 Mass. App. Ct. 1115 (2009). Also in 2007, his § 36 claim for loss of function benefits for his shoulder and elbow was adjusted. Finally, in 2009, he was awarded § 34A permanent and total benefits for these injuries. Later, he filed a claim for permanent loss of psychiatric function under G. L. c. 152, § 36(1)(j). The denial of this claim is now before us on appeal.[1] Discussion. Authority to determine which version of the American Medical Association […]
Commonwealth v. Alves (Lawyers Weekly No. 11-104-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1183 Appeals Court COMMONWEALTH vs. OCTAVIANO ALVES. No. 13-P-1183. Suffolk. June 9, 2014. – August 27, 2014. Present: Kantrowitz, Agnes, & Hines, JJ.[1] Criminal Records. Practice, Criminal, Record, Complaint. Evidence, Identity. Mistake. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on March 7, 2012. A motion to expunge court and criminal records was heard by James W. Coffey, J., and a motion for reconsideration was heard by him. Hung Tran for the defendant. Amanda Teo, Assistant District Attorney, for the Commonwealth. AGNES, J. The single question before us is whether the proper remedy for a clerical error that results in the issuance of a criminal complaint against a person who not only did not commit the crime, but also was never the intended target of the police investigation, is to seal the record pursuant to G. L. c. 276, § 100C. In the unusual circumstances of this case, we conclude that even though the error was not corrected until the eve of trial when the complaint was dismissed, the statutory remedy of sealing the record was not the only option available to the judge, and that an expungement order is appropriate.[2] Background. Due to a clerical error, Octaviano Alves (date of birth: 1983) (Alves 1983), was charged with leaving the scene of a motor vehicle accident after causing property damage in violation of G. L. c. 90, § 24(2)(a) (criminal docket number 1207CR1074). Alves 1983 did not commit the offense, nor was he ever suspected of committing the offense. The actual perpetrator, i.e., the driver of the vehicle who left the scene, was Octaviano Alves (date of birth: 1977) (Alves 1977). Alves 1977, the correct defendant, was apprehended by the police, but was not arrested. A citation was delivered to him in hand. The police accurately recorded Alves 1977′s name, date of birth, Massachusetts license number, and home address. The police filed a timely application for a criminal complaint against Alves 1977. After a “show cause” hearing attended by Alves 1977, see G. L. c. 218, § 35A, as amended through St. 2004, c. 49, § 200, probable cause to issue process was found to exist, but, due to a clerical error, the summons and the complaint contained an incorrect date of birth that corresponded to Alves 1983. Although […]
Rose, et al. v. Highway Equipment Company v. Splaine (Lawyers Weekly No. 11-105-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1215 Appeals Court ROBERT ROSE & another[1] vs. HIGHWAY EQUIPMENT COMPANY; JAY SPLAINE,[2] third-party defendant. No. 13-P-1215. Suffolk. May 9, 2014. – August 27, 2014. Present: Green, Meade, & Sullivan, JJ. Negligence, Comparative. Warranty. Practice, Civil, Affirmative defense, Instructions to jury. Words, “Unreasonable use.” Civil action commenced in the Superior Court Department on July 13, 2009. The case was tried before D. Lloyd Macdonald, J. Deborah M. Santello for the plaintiffs. Christopher J. Sullivan (Jonathan Klein with him) for Highway Equipment Company. J. Michael Conley & Thomas R. Murphy, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. MEADE, J. Plaintiff Robert Rose sued Highway Equipment Company (HECO), the manufacturer of a broadcast spreader, after Rose severely injured his hand while oiling the spreader’s chain.[3] Rose’s suit asserted causes of action for negligence and breach of the implied warranty of merchantability. On the negligence count, the jury found Rose seventy-three percent negligent and HECO twenty-seven percent negligent, which foreclosed recovery. See G. L. c. 231, § 85. On the breach of warranty claim, the jury answered “yes” to the special question of whether Rose’s use of the spreader was unreasonable, barring Rose from recovery on that claim. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 355 (1983) (Correia). On appeal, Rose claims that certain jury instructions created reversible error. We affirm.[4] The jury heard various accounts of how Rose’s hand became caught in the spreader. It was uncontested that the spreader needed to be running in order for its chain to be effectively oiled. Rose explained that, before the accident, he was kneeling or crouching between the cab of the truck and the spreader, using something akin to a Windex bottle to spray oil on the chain. Rose testified that he suddenly felt a tug at the sleeve of his sweatshirt and was unable to extricate himself from the grip of the spreader before his right hand and forearm were pulled into the mechanism.[5] After the accident, Rose told his boss, who is also his father-in-law, that he was injured when reaching backwards for the bottle of oil. In contrast, it was HECO’s theory that Rose, after drinking beer earlier that afternoon, lost his balance while on a ladder on the operator’s side of the truck and fell into the […]
Commonwealth v. Forbes (Lawyers Weekly No. 11-103-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-730 Appeals Court COMMONWEALTH vs. TIMOTHY FORBES. No. 13-P-730. Hampden. June 3, 2014. – August 26, 2014. Present: Kantrowitz, Milkey, & Hanlon, JJ. Mayhem. Assault and Battery. Practice, Criminal, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on May 15, 2012. The cases were tried before Constance M. Sweeney, J. David Hirsch for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. MILKEY, J. After a jury trial in Superior Court, the defendant was convicted of one count of mayhem, G. L. c. 265, § 14 (first theory), and one count of assault and battery causing serious bodily injury, G. L. c. 265, § 13A(b)(i). The defendant makes two different arguments that the mayhem conviction is unsupported by sufficient evidence. Finding those arguments unpersuasive, we affirm that conviction. However, we vacate the conviction of assault and battery causing serious bodily injury, because we agree with the defendant that it is duplicative of the mayhem conviction. Background. Based on the Commonwealth’s evidence, the jury could have found the following facts. On March 9, 2012, the defendant attended a youth basketball tournament at the Holy Name School in Springfield. In the fifth and sixth grade championship game, a team featuring the defendant’s two sons played against an opposing team coached by the victim, Jose Feliciano. The game was fairly close until both of the defendant’s sons “fouled out.” The opposing team went on to win by a fairly large margin. At the end of the game, the players from both teams lined up in the middle of the court to shake hands, and the coaches lined up behind them. The defendant joined the end of the line of his sons’ team. When Feliciano reached the defendant, the defendant assumed a “fighting stance” and began to kick and throw punches at him. With his hands up, Feliciano backpedalled away from the defendant, but the defendant continued to advance and throw punches. Feliciano retreated all the way to the gymnasium wall, where the defendant locked him in a “bear hug.” This allowed the defendant to pin Feliciano’s arms and to position his mouth near Feliciano’s neck. A group of people gathered around the men and attempted to pull the defendant off Feliciano. In particular, Feliciano’s wife repeatedly hit the defendant in […]
Commonwealth v. Dale (Lawyers Weekly No. 11-101-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1909 Appeals Court COMMONWEALTH vs. ANDRE DALE. No. 12-P-1909. Suffolk. February 7, 2014. – August 25, 2014. Present: Trainor, Katzmann, & Hanlon, JJ. Indecent Assault and Battery. Evidence, First complaint, Relevancy and materiality, Cross-examination, Photograph. Child Abuse. Indictment found and returned in the Superior Court Department on November 17, 2009. The case was tried before Patrick F. Brady, J. David D. Nielson for the defendant. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth. KATZMANN, J. A Superior Court jury convicted the defendant of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B, as a lesser included offense of rape of a child under sixteen years of age, G. L. c. 265, § 23.[1] The principal issue in this appeal is the admissibility of first complaint testimony where the victim has no memory of the complaint. In light of the primary purpose of first complaint evidence, we determine that such testimony is admissible. The defendant also contests the admission of testimony of a subsequent complaint, of testimony pertaining to the victim’s bodily functions, and of photographic evidence showing injuries to the victim and her brother. We affirm. 1. Background. We summarize the facts as a jury could reasonably have found, reserving certain details for discussion with the specific issues raised. The series of incidents underlying the conviction began when the victim was seven or eight years old. The incidents occurred when the victim, S.B., and her older brother, M.B., lived with their great aunt, Tina Dale (Tina), and great uncle, Fred Dale (Fred).[2] The defendant is the victim’s cousin, the son of Tina and Fred; the victim and her brother referred to him as “Uncle Eddie.” During the period of the assaults, the defendant lived in the same house as the victim and had a room of his own. He only stayed in the house several nights a week. The victim testified that, on multiple occasions over the course of several years, the defendant would sexually assault her in the Dales’ residence. She testified that the first incident began when the defendant called her into his room after she was in bed. He told her that he was “checking for scars “[to see] if everything was okay,” and he pulled down her underwear and examined her visually. […]
Commonwealth v. Malick (and a companion case) (Lawyers Weekly No. 11-102-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 09-P-1292 Appeals Court 11-P-973 COMMONWEALTH vs. WAJAHAT Q. MALICK (and a companion case[1]). No. 09-P-1292. Plymouth. October 1, 2013. – August 25, 2014. Present: Graham, Sikora, & Hanlon, JJ. Practice, Criminal, Appeal, Appellate Division, Probation, Restitution, Sentence. Restitution. Indictments found and returned in the Superior Court Department on March 26, 1991. A proceeding for revocation of probation was heard by Jeffrey A. Locke, J., and a motion to revise and revoke sentence was considered by him. Michael J. Traft for the defendant. Thomas E. Bocian, Assistant Attorney General, for the Commonwealth. SIKORA, J. These appeals, consolidated for briefing and decision, arrive after a long and tortuous procedural history. They present questions of sentencing. One of them requires us to consider the purposes of restitution as a criminal law sanction. In 1993, the defendant, Wajahat Q. Malick, pleaded guilty to nine indictments charging him with an elaborate scheme of larceny and embezzlement in the course of his employment as the financial comptroller of a substantial automobile dealership. The plea judge adjudicated him a common and notorious thief[2] and imposed a prison term of from eighteen to twenty years. Upon related counts the judge added a consecutive sentence of from twelve to fifteen years suspended on condition of successful performance of a ten-year period of probation. A primary condition of probation was the accomplishment of restitution to the dealership or its owner, Helmut Schmidt. After a lengthy hearing, the plea judge set the restitution figure at $ 1,016,714.16. He placed six other related indictments on file. After approximately ten years of incarceration (1993 to 2003), the defendant began the probationary term. Approximately five years later, a second judge (probation judge)[3] found that the defendant, who had paid about $ 291,700 in restitution, or less than thirty percent of the amount owed, had obtained a mortgage loan under a different name, was concealing assets, and was not making a good faith effort to achieve restitution. In 2009, the judge revoked probation and imposed the suspended sentence of from twelve to fifteen years.[4] Meanwhile the dealership and Schmidt had pursued civil claims against banks allegedly negligent or reckless in their tolerance of the defendant’s deception. The civil litigation was still pending at the time of the revocation of probation in 2009. It later resulted in […]
Commonwealth v. Selavka (Lawyers Weekly No. 10-150-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11461 COMMONWEALTH vs. EDGAR L. SELAVKA. Hampshire. February 4, 2014. – August 25, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Sex Offender. Global Positioning System Device. Practice, Criminal, Sentence, Probation, Double jeopardy, Duplicative punishment. Indictments found and returned in the Superior Court Department on February 13, 2007. A motion to vacate a condition of probation, filed on November 19, 2012, was heard by Mary-Lou Rup, J. The Supreme Judicial Court granted an application for direct appellate review. Kathryn Hayne Barnwell (Bonnie G. Allen with her) for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. William C. Newman & Matthew R. Segal, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. LENK, J. Fifteen months after child pornography was discovered on his computer, the defendant pleaded guilty to eleven counts of possessing child pornography in violation of G. L. c. 272, § 29C. In addition to a period of incarceration, the defendant was sentenced to a term of probation. Notwithstanding the provisions of G. L. c. 265, § 47, requiring that defendants convicted of certain enumerated sex offenses, including possession of child pornography, be subject to global positioning system (GPS) monitoring as a condition of any term of probation, such monitoring was not imposed as part of the defendant’s sentence. Almost one year later, the Commonwealth sought correction before the sentencing judge of what it termed an illegal sentence by the addition of GPS monitoring as a condition of the defendant’s probation. After a hearing, the Commonwealth’s motion was allowed and GPS monitoring was ordered for the duration of the defendant’s probationary period. The defendant now appeals from the denial of his subsequent motion brought pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001) (rule 30[a]), to vacate the addition of GPS monitoring to the conditions of his probation, contending both that the judge lacked authority to modify his sentence and that the delayed imposition of GPS monitoring violated principles of double jeopardy. As we determined in Commonwealth v. Guzman, ante (2014), G. L. c. 265, § 47, affords a sentencing judge no discretion as to the imposition of GPS monitoring for probationers convicted of the specified predicate offenses. Accordingly, the defendant’s initial sentence was illegal insofar as it did not include GPS monitoring as […]
Commonwealth v. Guzman (Lawyers Weekly No. 10-149-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11483 COMMONWEALTH vs. JOSE A. GUZMAN. Suffolk. February 4, 2014. – August 25, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Sex Offender. Global Positioning System Device. Constitutional Law, Sentence. Due Process of Law, Sentence. Practice, Criminal, Sentence, Probation. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 7, 2013. The case was reported by Lenk, J. Thomas E. Bocian, Assistant Attorney General (Timothy J. Wyse, Assistant Attorney General, with him) for the Commonwealth. Ryan M. Schiff, Committee for Public Counsel Services, for the defendant. LENK, J. In the case before us, a Superior Court judge declined to include global positioning system (GPS) monitoring as a condition of the probationary portion of the sentence she imposed following the defendant’s pleas of guilty to several offenses. One of those offenses was the dissemination of visual material depicting a child in a state of nudity or sexual conduct, one of the “sex offense[s] involving a child” enumerated in G. L. c. 265, § 47, that requires a defendant convicted of such an offense to be subject to GPS monitoring as a condition of any term of probation, during “the length of his probation for any such offense.” We are called upon to decide whether the imposition of GPS monitoring in such circumstances is mandatory and, if so, whether such statutory mandate either constitutes an unreasonable search and seizure pursuant to the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, or violates substantive and procedural due process pursuant to the Fourteenth Amendment to the United States Constitution and arts. 1, 10, 11, and 12 of the Massachusetts Declaration of Rights. It is plain that G. L. c. 265, § 47, affords a sentencing judge no discretion whether to impose GPS monitoring on a defendant sentenced, as here, to a probationary term for an enumerated offense. Although, given the inadequate record before us, we do not reach the defendant’s Fourth Amendment claim, we conclude that G. L. c. 265, § 47, does not violate the defendant’s right to due process. Because the statute applied to the defendant in the circumstances, and because there was no constitutional bar to its application, the failure to include GPS monitoring as a condition of the defendant’s probation was error.[2] […]
Commonwealth v. Forte (Lawyers Weekly No. 10-148-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10991 COMMONWEALTH vs. MICHAEL FORTE. Hampden. January 10, 2014. – August 22, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, & Duffly, JJ.[1] Homicide. Identification. Evidence, Identification, Photograph, Videotape, State of mind, Prior misconduct, Disclosure of evidence, Exculpatory. Practice, Criminal, Capital case, Motion to suppress, New trial, Identification of defendant in courtroom, Required finding, Disclosure of evidence, Recalling witness, Self-representation. Due Process of Law, Disclosure of evidence. Witness, Recalling. Subornation of Perjury. Indictment found and returned in the Superior Court Department on September 24, 2008. A pretrial motion to suppress evidence was heard by Constance M. Sweeney, J.; the case was tried before her; and a motion for a new trial, filed on September 26, 2012, was considered by her. Kevin S. Nixon for the defendant. Katherine A. Robertson, Assistant District Attorney, for the Commonwealth. CORDY, J. Shortly before 3:30 A.M. on July 27, 2008, Steven Donoghue, a homeless man, was stabbed in the alcove of a storefront at the intersection of State and Bliss Streets in downtown Springfield. He died several hours later following extensive surgery. Two young women, who had gone out for a late-night meal, reported the incident after having passed the victim alive and minutes later discovering him bleeding profusely. They had seen only one other person on the street that night. Through a series of identification efforts, including reliance on footage from surveillance videotapes, the defendant was identified and indicted as the perpetrator. Following a trial at which the defendant represented himself with the assistance of standby counsel, the defendant was convicted of murder in the first degree on the theory of extreme atrocity or cruelty and sentenced to life in prison. Through appellate counsel, the defendant appeals from his conviction and from the denial of his motion for a new trial and for an evidentiary hearing.[2] He asserts that the judge, who served as trial judge and motion judge for all relevant matters, erred in denying his motion to suppress identifications, permitting the introduction of evidence of prior bad acts to show the defendant’s state of mind, denying his motion for a required finding of not guilty, and denying his request to recall the two percipient witnesses, which was the subject of his motion for a new trial. In addition, he claims that his due process […]