Commonwealth v. Kelly (and 11 companion cases) (Lawyers Weekly No. 10-026-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11616 COMMONWEALTH vs. AMANDA KELLY (and eleven companion cases[1]). Plymouth. October 7, 2014. – February 20, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Assault or Battery for the Purpose of Intimidation. Civil Rights. Practice, Criminal, Instructions to jury, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on August 14, 2008. The cases were tried before Paul E. Troy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kirsten A. Zwicker Young (Glen A. Tagliamonte with her) for Amanda Kelly. Meghan E. Tafe Vadakekalam for Christopher M. Bratlie. Thomas C. Foley for Kevin P. Shdeed. Kristin Freeman, Assistant District Attorney, for the Commonwealth. Steven M. Freeman, Melissa Garlick, Lauren A. Jones, & Seth M. Marnin, of New York, & Michael N. Sheetz & Adam S. Gershenson, for Anti-Defamation League & others, amici curiae, submitted a brief. SPINA, J. This case arises from events that transpired shortly after midnight on June 12, 2008, during a house party in Marshfield where multiple guests, who are Caucasian, committed acts of physical violence against Tizaya Robinson, who is African-American. Following a jury trial in the Superior Court, the defendant, Amanda Kelly, was convicted of, among other offenses, a violation of civil rights with bodily injury, G. L. c. 265, § 37, and assault and battery for the purpose of intimidation resulting in bodily injury, G. L. c. 265, § 39 (b).[2] Her codefendants, Christopher M. Bratlie and Kevin P. Shdeed, each were convicted of a violation of civil rights without bodily injury, and assault and battery for the purpose of intimidation without bodily injury. Bratlie also was convicted of assault and battery as a lesser included offense of assault and battery by means of a dangerous weapon (shod foot), and assault and battery. All three defendants appealed their convictions to the Appeals Court, and we transferred their cases to this court on our own motion. Principal among the several claims of error is the defendants’ contention that the judge failed to instruct the jury properly that in order to convict the defendants of assault and battery for the purpose of intimidation, the jury must find that race was a “substantial factor” motivating the commission of the unlawful conduct. We conclude that […]
Commonwealth v. DePiero (Lawyers Weekly No. 11-014-15)
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-572 Appeals Court COMMONWEALTH vs. JOHN C. DEPIERO. No. 13-P-572. Middlesex. January 10, 2014. – February 19, 2015. Present: Kantrowitz, Vuono, & Sullivan, JJ. Constitutional Law, Investigatory stop, Reasonable suspicion. Search and Seizure, Reasonable suspicion. Motor Vehicle, Operating under the influence. Practice, Criminal, Motion to suppress. Complaint received and sworn to in the Cambridge Division of the District Court Department on August 11, 2011. A pretrial motion to suppress evidence was heard by Antoinette E. McLean Leoney, J., and the case was heard by Joseph W. Jennings, III, J. Jane D. Prince (Randy S. Chapman with her) for the defendant. Radu Brestyan, Assistant District Attorney, for the Commonwealth. VUONO, J. Following a jury-waived trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (second offense). On appeal, he principally contends that the motion judge erred in denying his motion to suppress evidence obtained during what he claims was an unlawful investigatory stop of his automobile.[1] The stop was prompted by an anonymous telephone call concerning a “drunk” driver. We conclude that the motion to suppress was properly denied and we affirm the judgment.[2] Facts.[3] At approximately 2:00 A.M. on August 11, 2011, an unidentified man made a 911 telephone call which was received by a State police emergency operator in Framingham. After informing the caller that the 911 line is recorded, the operator asked the caller, “[W]hat is your emergency?” The caller replied, “Just a call, you got a drunk driver on Memorial Drive near Harvard Square and I’ve got his license number, but he’s swerving all over the road.” The operator immediately transferred the call to the State police barracks in Brighton. The caller stayed on the line and then spoke to a dispatcher who identified himself as Trooper Usom. The motion judge found that the caller provided the color, make, and license plate number of the vehicle in question to Trooper Usom.[4] Trooper Usom then initiated the following broadcast: “H5, H5 patrols, one call erratic operation Memorial Drive westbound passing the Weeks Footbridge on MA PC 7785AN . . . [t]hat vehicle comes out of Belmont, the owner is on probation for drunk driving.” In a subsequent broadcast, Trooper Usom provided the address for the registered owner of the motor vehicle.[5] State police […]
Commonwealth v. Housewright (Lawyers Weekly No. 10-025-15)
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-11617 COMMONWEALTH vs. LARRY HOUSEWRIGHT. Bristol. October 7, 2014. – February 19, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Intimidation of Witness. Firearms. Assault by Means of a Dangerous Weapon. Evidence, Testimony at prior proceeding, Previous testimony of unavailable witness, Unavailable witness, Photograph, Firearm. Witness, Intimidation, Unavailability. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses. Complaint received and sworn to in the New Bedford Division of the District Court Department on May 17, 2010. After transfer to the Fall River Division of the District Court Department, the case was tried before Kevin J. Finnerty, J. The Supreme Judicial Court granted an application for direct appellate review. Benjamin Evans, Committee for Public Counsel Services, for the defendant. Shoshana E. Stern, Assistant District Attorney, for the Commonwealth. GANTS, C.J. On May 11, 2010, the defendant, Larry Housewright, pointed a weapon at a second-story window where a witness in his friend’s criminal case was standing, and fired as the truck in which he was a passenger drove away. A District Court jury convicted the defendant of intimidating a witness, carrying a firearm without a license, discharging a firearm within 500 feet of a building, and assault by means of a dangerous weapon. On appeal, the defendant claims that (1) the judge abused his discretion in allowing the Commonwealth to present a witness’s prior recorded testimony without sufficient proof of the witness’s unavailability;(2) the judge abused his discretion in admitting two photographs of a handgun that looked like the unrecovered handgun fired by the defendant;and (3) the judge erred in denying the defendant’s motion for a required finding of not guilty because the evidence was insufficient to support the conviction of unlawful carrying of a firearm, where no reasonable jury could find beyond a reasonable doubt that the defendant’s handgun was capable of discharging a bullet. Although we find no error in the admission of the photographs or in the denial of the motion for a required finding of not guilty, we conclude that the judge abused his discretion in determining that the Commonwealth’s witness was unavailable to testify based solely on a doctor’s four-sentence letter that listed her medical conditions and opined that the stress of testifying in court “might” be […]
Categories: News Tags: 1002515, Commonwealth, Housewright, Lawyers, Weekly
Shea v. Federal National Mortgage Association, et al. (Lawyers Weekly No. 11-012-15)
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-1630 Appeals Court PAUL SHEA vs. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.[1] No. 13-P-1630. February 18, 2015. Real Property, Mortgage. Assignment. Mortgage, Real estate, Assignment, Foreclosure. Practice, Civil, Motion to dismiss. At issue is whether a judge properly dismissed[2] the plaintiff’s claims[3] attacking the validity of a mortgage foreclosure to which Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), does not apply.[4] The plaintiff contends that the foreclosure was void because the mortgage was not validly assigned to OneWest Bank FSB (OneWest), the foreclosing mortgagee. He argues that the assignment was invalid because (1) the assignor never held the underlying note, and (2) the assignment was not specifically authorized by the owner of the debt.[5] We affirm.[6] Background.[7] The plaintiff (and another person who is not a party to this case) purchased the property at issue in April 2005. In 2007, as part of a refinancing of the property, the plaintiff granted a mortgage to IndyMac Bank, FSB (IndyMac) to secure a loan in the amount of $ 281,600. In pertinent part, the 2007 mortgage contained the following provisions. The mortgage defines IndyMac, which is the owner of the debt, as the “Lender.” The mortgage defines Mortgage Electronic Registration System, Inc. (MERS), as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument” (emphasis in original). A section entitled “TRANSFER OF RIGHTS IN THE PROPERTY” provides that the mortgage secures both the repayment of the loan and the borrower’s performance of covenants and agreements to the Lender. That section continues as follows: “Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . . . . . “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing […]
Commonwealth v. Ruano (Lawyers Weekly No. 11-013-15)
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-830 Appeals Court COMMONWEALTH vs. GEOVANNI RUANO. No. 13-P-830. Essex. October 14, 2014. – February 18, 2015. Present: Cypher, Grainger, & Maldonado, JJ. Intimidation of Witness. Witness, Intimidation. Evidence, Intent. Intent. Indictment found and returned in the Superior Court Department on May 25, 2011. The case was tried before Howard J. Whitehead, J. Patricia A. DeJuneas for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. GRAINGER, J. The defendant appeals from a conviction of influencing a witness by intimidation, G. L. c. 268, § 13B, by a jury of the Superior Court.[1] He asserts insufficiency of the evidence on appeal. Factual background. As relevant to the issue on appeal, the jury could have found from the evidence introduced by the Commonwealth[2] that on July 31, 2010, the defendant and the witness had an altercation. While the underlying reason for the altercation remains unclear from the record, the Commonwealth’s evidence was that the defendant entirely lost control of his temper when he believed the witness’s motor vehicle was blocking his sport utility vehicle (SUV), that the defendant screamed obscenities at the witness and informed the witness that he was a police officer, and, finally, that the defendant shoved the witness with his SUV until the witness was on the SUV’s hood. The jury found the defendant not guilty of all charges stemming from the incident. The next day, and after the defendant ascertained that the witness had reported the incident to police, the defendant’s girl friend, who lived across the street from the witness, appeared at the witness’s door and inquired whether the defendant could come over to apologize. The witness agreed, but asked that the visit not take place for twenty minutes. The defendant waited for a period of time and then appeared with his girl friend, whereupon they were invited by the witness into his kitchen. During the ensuing conversation the defendant and the witness sat at opposite ends of the kitchen table. In addition to the defendant’s girl friend, the witness’s roommate was also present. In that conversation, the defendant asked the witness to recant and again mentioned that he was a police officer, this time stating that he had been one for fifteen years. The witness testified that the defendant stated that his superiors would “burn […]
DIRECTV, LLC, et al. v. Department of Revenue (Lawyers Weekly No. 10-024-15)
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-11658 DIRECTV, LLC, & another[1] vs. DEPARTMENT OF REVENUE. Suffolk. November 4, 2014. – February 18, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Taxation, Excise, Broadcasting company. Interstate Commerce. Constitutional Law, Interstate commerce. Civil action commenced in the Superior Court Department on January 26, 2010. The case was heard by Thomas P. Billings, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. E. Joshua Rosenkranz, of New York (Jeremy N. Kudon & Nicholas G. Green, of New York, Eric A. Shumsky, of the District of Columbia, & Kelley A. Jordan-Price with him) for the plaintiffs. Pierce O. Cray, Assistant Attorney General (Kirk G. Hanson, Assistant Attorney General, with him) for the defendant. The following submitted briefs for amici curiae: Eric S. Tresh, Amelia Toy Rudolph, & Zachary T. Atkins, of Georgia, & Nicholas M. O’Donnell & David Nagle for New England Cable & Telecommunications Association. John Bergmayer, of the District of Columbia, & Karen A. Pickett for Public Knowledge. Kristen S. Scammon for Satellite Broadcasting & Communications Association. John A. Hinman, of California, & Allison M. O’Neil & Jamie C. Notman for National Association of Wine Retailers. Sheldon H. Laskin & Lila D. Disque, of the District of Columbia, for Multistate Tax Commission. David Parkhurst, of the District of Columbia, & David Hadas for National Governors Association. LENK, J. General Laws c. 64M, § 2, imposes a five per cent excise tax on video programming delivered by direct broadcast satellite (tax). The plaintiffs are two companies that provide services subject to the tax (satellite companies). They brought a complaint for declaratory and injunctive relief in the Superior Court, alleging that the tax violates the commerce clause of the United States Constitution.[2] The satellite companies contend that the tax discriminates against interstate commerce, both in its effect and in its purpose, by disfavoring them as compared with those companies that provide video programming via cable (cable companies). The satellite and cable companies that operate in Massachusetts are all incorporated and headquartered in other States; the satellite companies argue, however, that the cable companies represent in-State interests inasmuch as their in-State commercial operations are substantially greater than those of the satellite companies. A Superior Court judge granted summary judgment […]
Commonwealth v. Scott (Lawyers Weekly No. 10-204-14)
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-11303 COMMONWEALTH vs. ROBERT SCOTT.[1] Suffolk. September 5, 2014. – December 26, 2014. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Evidence, Third-party culprit. Constitutional Law, Fair trial. Due Process of Law, Fair trial. Fair Trial. Jury and Jurors. Practice, Criminal, Capital case, Fair trial, Argument by prosecutor, Jury and jurors, Substitution of alternate juror, Question by jury, Instructions to jury. Indictment found and returned in the Superior Court Department on December 19, 2008. The case was tried before Peter M. Lauriat, J. Ruth Greenberg for the defendant. Paul B. Linn, Assistant District Attorney, for the Commonwealth. LENK, J. In December, 1984, a young woman was found dead, her body badly beaten, in a vacant lot in Boston. Twenty-three years later, deoxyribonucleic acid (DNA) was extracted from samples taken from the victim’s body and clothing soon after her death and run through a national computerized database. A match was found with the defendant’s DNA. The defendant was tried for murder in the first degree. His defense at trial was that he had had consensual sex with the victim but had not been the killer. The jury returned a verdict of guilty on theories of premeditation, extreme atrocity or cruelty, and felony-murder. The defendant appeals from his conviction. The defendant claims that the evidence was insufficient to support the verdict, and that other errors in the proceedings require a new trial. These include the judge’s exclusion of evidence purported, by the defendant, to show that police had investigated the case inadequately or that the crime might have been committed by a third party; the prosecutor’s remarks, in his closing argument, that there had been no evidence that the victim had engaged in “risky behavior”; and the judge’s instruction to the jury, after one original juror had been discharged, that an alternate juror should get “up to speed” about a question that had been posed by the jury and answered by the judge. Having reviewed the entire record pursuant to G. L. c. 278, § 33E, we discern no error requiring reversal, and no cause to exercise our authority to reduce the defendant’s conviction to a lesser degree of guilt or to order a new trial. 1. Facts. We summarize the facts the jury could have found, reserving certain details for later […]
Commonwealth v. Ilya I., a juvenile (Lawyers Weekly No. 10-022-15)
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-11637 COMMONWEALTH vs. ILYA I., a juvenile. Suffolk. October 6, 2014. – February 13, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Probable Cause. Juvenile Court, Delinquent child. Practice, Criminal, Juvenile delinquency proceeding, Complaint, Dismissal. Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on June 4, 2012. A motion to dismiss was heard by Leslie E. Harris, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Gail S. Strassfeld for the juvenile. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. HINES, J. After a street encounter in the Dorchester section of Boston, a police officer arrested the juvenile and charged him with possession of a class D substance with the intent to distribute in violation of G. L. c. 94C, § 32C (a). A clerk-magistrate issued a delinquency complaint formally charging the juvenile with the offense. A judge in the Juvenile Court allowed the juvenile’s motion to dismiss the complaint for lack of probable cause. The Commonwealth sought review in the Appeals Court, which reversed the dismissal in an unpublished decision. See Commonwealth v. Ilya I., 84 Mass. App. Ct. 1128 (2014). We granted the juvenile’s petition for further appellate review and now affirm the dismissal of the complaint. Background. Our review of the judge’s order of dismissal is confined to the four corners of the application for complaint, which in this case is essentially the police incident report detailing the facts underlying the juvenile’s arrest.[1] Following is a summary of the police incident report.[2] On June 1, 2012, members of the youth violence strike force, a unit within the Boston police department, were conducting surveillance in Codman Square in Dorchester. The police officers were familiar with that area as being one where drug and gang activity took place. Shortly before 5 P.M., the officers observed four black teenagers in the vicinity of Washington Street and Talbot Avenue. A male and a female approached the teenagers and engaged them in a “brief conversation.” Two of the teenagers walked up Washington Street toward Southern Avenue with the couple. The other two teenagers remained in the location where the first encounter with the couple occurred and appeared to look up […]
Commonwealth v. McGhee (Lawyers Weekly No. 10-023-15)
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-11716 COMMONWEALTH vs. CRAIG McGHEE. Worcester. December 1, 2014. – February 13, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Confining for Purpose of Stealing. Jury and Jurors. Practice, Criminal, Jury and jurors, Conduct of juror. Indictments found and returned in the Superior Court Department on August 20, 2010. The cases were tried before Richard T. Tucker, J. The Supreme Judicial Court granted an application for direct appellate review. Elizabeth Dembitzer for the defendant. Brett F. Dillon, Assistant District Attorney (Donna-Marie Haran, Assistant District Attorney, with him) for the Commonwealth. LENK, J. The defendant appeals from his convictions on two counts of “confin[ing] . . . or put[ting] any person in fear, for the purpose of stealing from a building, bank, safe, vault or other depository of money.” G. L. c. 265, § 21. Evidence was presented at trial that the defendant and another man intimidated victims into withdrawing funds from an automated teller machine (ATM) and handing those funds over to the defendant and the unidentified coventurer. The defendant argues that these facts do not support a finding that he had the purpose required by G. L. c. 265, § 21. We reject this argument. We agree, however, with the defendant’s alternative assertion that the trial judge erred by failing to inquire into credible information that one of the jurors had slept through important portions of the evidence. Because this was a structural error, we vacate the defendant’s convictions and remand for a new trial. 1. Background. The facts supported by the evidence at trial included the following. In May, 2010, the defendant and his coventurer accosted the victims, James Fletcher, Thomas Brown, and John Wentworth, as they were walking toward their vehicle in a Worcester parking lot. The defendant and his coventurer accused the victims, in a hostile and menacing manner, of being “up to trouble” and selling drugs. They then ordered the victims to get into the vehicle. The victims were frightened, and they cooperated with the defendant and his accomplice in the hope that they would not be hurt. Fletcher drove. The defendant, who was aggressive and intermittently yelling, directed Fletcher to an ATM. The defendant told Fletcher to get out of the vehicle, led Fletcher to the ATM, and ordered Fletcher to withdraw $ 150 from it. Fletcher was […]
Commonwealth v. Cowels; Commonwealth v. Mims (Lawyers Weekly No. 10-021-15)
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-11630 SJC-11631 COMMONWEALTH vs. MICHAEL COWELS. COMMONWEALTH vs. MICHAEL MIMS. Suffolk. October 9, 2014. – February 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Deoxyribonucleic Acid. Evidence, Credibility of witness. Witness, Credibility. Practice, Criminal, Capital case, New trial. Indictments found and returned in the Superior Court Department on August 6, 1993. Following review by this court, 425 Mass. 279 (1997), motions for a new trial, filed on February 4 and March 24, 2008, were considered by Thomas E. Connolly, J. Requests for leave to appeal were allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk. David J. Apfel (Nicholas K. Mitrokostas & Joshua M. Daniels with him) for Michael Cowels. Philip G. Cormier for Michael Mims. Helle Sachse, Assistant District Attorney (Janis DiLoreto Noble, Assistant District Attorney, with her) for the Commonwealth. LENK, J. The defendants, Michael Cowels and Michael Mims, were convicted by a Superior Court jury in December, 1994, of murder in the first degree in the stabbing death of Belinda Miscioscia. Among the evidence presented against them at trial were two “bloody” towels. The Commonwealth offered testimony suggesting that the defendants had used the towels to clean themselves after stabbing the victim. Testing performed on the towels at the time of the trial indicated the presence of human blood. The testing, however, was inconclusive. Further testing was performed on just one of the towels; the sample on the other was too small to be tested. An expert testified that the further testing neither identified nor excluded the defendants or the victim as the sources of the blood. In June, 1997, this court affirmed the defendants’ convictions. See Commonwealth v.Cowels, 425 Mass. 279, 285-293 (1997). In 2008, the defendants filed separate motions for a new trial, based in part on deoxyribonucleic acid (DNA) testing performed on the previously tested towel by an independent laboratory after their convictions. That testing revealed that the blood contained on the towel did not belong to either of the defendants or the victim, but instead to an unidentified male. The defendants also argued in their motions that they had been deprived of the effective assistance of counsel. After a nonevidentiary hearing, the motion judge, who was also the trial judge, denied […]