Commonwealth v. Shelley (Lawyers Weekly No. 10-141-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12209 COMMONWEALTH vs. WALTER SHELLEY. Middlesex. February 7, 2017. – August 24, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Homicide. Practice, Criminal, Capital case, Instructions to jury, Lesser included offense. Limitations, Statute of. Indictments found and returned in the Superior Court Department on May 26, 2011. The cases were tried before Janet Kenton-Walker, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert L. Sheketoff for the defendant. Laura Kirshenbaum, Assistant District Attorney, for the Commonwealth. LOWY, J. We now address whether a defendant charged with murder is entitled to an instruction on the lesser included offense of manslaughter, even when the statute of limitations for manslaughter has lapsed. We conclude that, under Massachusetts law, a defendant is not entitled to a lesser included offense instruction when the defendant cannot be convicted of the offense due to the statute of limitations. A defendant may, however, elect to waive the statute of limitations and invoke his or her right to the lesser included offense instruction. The trial judge correctly presented this choice to the defendant, who declined to waive the statute of limitations. We affirm the defendant’s convictions. Background. On September 13, 2013, a Middlesex County jury found Walter Shelley, the defendant, guilty of murder in the first degree, as a participant in a joint venture.[2] On the defendant’s motion, the trial judge reduced the murder conviction to murder in the second degree pursuant to Mass. R. Crim. P. 25 (b) (2), 379 Mass. 886 (1979). The charges stemmed from his involvement, along with two friends, in the 1969 death of fifteen year old John McCabe, the victim. An indictment for murder was not returned against the defendant until after the investigation into the crime recommenced around 2007. Subsequently, the defendant and his friends were all charged with murder.[3] Although there is no statute of limitations for murder, there is a six-year statute of limitations for manslaughter. G. L. c. 277, § 63. There is no dispute that the defendant would have been entitled to a manslaughter instruction had the limitations period not run. Accordingly, we only briefly summarize the facts. In 1969, the then seventeen year old defendant was upset with the victim […]
New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)
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 16-P-654 Appeals Court NEW BEDFORD EDUCATORS ASSOCIATION vs. CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]). No. 16-P-654. Middlesex. May 4, 2017. – August 23, 2017. Present: Trainor, Vuono, & Sullivan, JJ. Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review. Declaratory Relief. Mandamus. Board of Education. Commonwealth, Education. Education. School and School Committee. Labor, Public employment. Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014. After consolidation, motions to dismiss were heard by Kimberly S. Budd, J. Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants. VUONO, J. In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J. The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3] The unions sought declaratory relief pursuant to G. L. c. 231A. NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5. The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction. Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions. On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing. For the reasons […]
Categories: News Tags: 1110817, Association, Bedford, Board, cases, Chairman, consolidated, Education, Educators, Elementary, Lawyers, massachusetts, Secondary, Weekly
Athanasiou, et al. v. Board of Selectmen of Westhampton, et al. (Lawyers Weekly No. 11-107-17)
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 15-P-894 Appeals Court GEORGE ATHANASIOU & another1 vs. BOARD OF SELECTMEN OF WESTHAMPTON & another.2 No. 15-P-894. Suffolk. January 12, 2017. – August 22, 2017. Present: Vuono, Milkey, & Henry, JJ. Adverse Possession and Prescription. Easement. Municipal Corporations, Adverse possession. Way. Real Property, Easement, Adverse possession. Practice, Civil, Summary judgment. Civil action commenced in the Land Court Department on May 20, 2013. The case was heard by Alexander H. Sands, III, J., on motions for summary judgment. Harry L. Miles (Michael Pill also present) for the plaintiffs. Janelle M. Austin for the defendants. 1 Louanne Athanasiou. 2 Town of Westhampton. 2 VUONO, J. The issue in this case is whether the town of Westhampton (town) has acquired an easement by prescription over a triangular parcel of land (triangle) and an abutting roadway (way), together the “disputed area,” owned by the plaintiffs, Louanne and George Athanasiou. On cross motions for summary judgment,3 a Land Court judge determined that the public’s use of the way for a continuous period in excess of twenty years, coupled with the town’s maintenance of the disputed area to provide for such public use, was sufficient to establish a prescriptive easement over the disputed area for the benefit of the town and its inhabitants. The plaintiffs appeal. Background. The following facts are not in dispute. The way is an unnamed, paved roadway that connects North Road and Southampton Road in the rural town. The roads merge at an intersection located at the tip of the triangle, and the way provides a convenient connection between the two roads (known in 3 The plaintiffs commenced this action by filing a complaint in the Land Court seeking, among other things, a declaration that they are the rightful fee title owners of the disputed area. The defendants counterclaimed, asserting that the town had acquired a prescriptive easement over the disputed area. The defendants subsequently filed a motion for summary judgment after which the plaintiffs cross-moved for summary judgment on the defendants’ counterclaim. Ultimately, summary judgment entered in favor of the plaintiffs on their claim of ownership and in favor of the defendants on their counterclaim. The defendants have not cross-appealed; therefore, the issue of ownership is not before us. 3 common parlance as a “cut-through”). The way is wide enough to accommodate traffic in both directions and has been used by the public […]
Categories: News Tags: 1110717, Athanasiou, Board, Lawyers, Selectmen, Weekly, Westhampton
Zelby Holdings, Inc. v. Videogenix, Inc. (Lawyers Weekly No. 11-106-17)
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 16-P-874 Appeals Court ZELBY HOLDINGS, INC. vs. VIDEOGENIX, INC. No. 16-P-874. Norfolk. February 10, 2017. – August 18, 2017. Present: Green, Milkey, & Neyman, JJ. Negotiable Instruments, Note, Payment. Uniform Commercial Code, Payment on negotiable instrument. Payment. Limitations, Statute of. Practice, Civil, Motion to dismiss, Statute of limitations. Common Law. Contract, Unjust enrichment. Unjust Enrichment. Civil action commenced in the Superior Court Department on July 24, 2015. A motion to dismiss was heard by Rosalind H. Miller, J. Thomas Hemmendinger for the plaintiff. Andrea L. Martin for the defendant. NEYMAN, J. Zelby Holdings, Inc. (Zelby), brought this action in 2015 in the Superior Court against VideogeniX, Inc. (VideogeniX), to collect on a promissory note (note) due in 2006. VideogeniX successfully moved to have the complaint dismissed. The primary issue on appeal is whether the common-law partial payment rule applies to actions subject to the six-year statute of limitations set forth in G. L. c. 106, § 3-118. We conclude that it does and reverse accordingly. Background. We summarize the facts alleged in Zelby’s complaint, accepting them as true. On March 24, 2005, VideogeniX’s predecessor signed a note for $ 30,000 in favor of Zelby’s predecessor. The note was due on March 25, 2006. On September 15, 2008, Zelby’s predecessor demanded payment.[1] On June 1, 2010, VideogeniX issued a check for $ 250 to Zelby’s predecessor. VideogeniX made no other payments.[2] On July 24, 2015, Zelby filed the present action alleging breach of contract, “book account,” and unjust enrichment. A Superior Court judge allowed VideogeniX’s subsequent motion to dismiss, concluding that all three counts were barred by the statute of limitations under G. L. c. 106, § 3-118, and that the unjust enrichment count failed to state a cognizable claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Discussion. 1. Legal standards. a. Motion to dismiss. “We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Harrington v. Costello, 467 Mass. 720, 724 (2014). “To survive a motion to dismiss, the factual allegations must plausibly suggest that the plaintiff is entitled to relief.” Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Statute of limitations. In 1998, the Legislature adopted G. L. […]
Commonwealth v. Wampler (Lawyers Weekly No. 10-134-17)
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-12333 COMMONWEALTH vs. LARRY D. WAMPLER, JR. August 18, 2017. Practice, Criminal, Capital case, Postconviction relief, Appeal. The defendant, Larry D. Wampler, Jr., was convicted of murder in the first degree by reason of deliberate premeditation. We affirmed the conviction. Commonwealth v. Hung Tan Vo, 427 Mass. 464 (1998).[1] The defendant recently filed, in the Superior Court, a motion to vacate, set aside, or correct sentence, which was denied. He then applied to a single justice of this court for leave to appeal from the denial of that motion pursuant to G. L. c. 278, § 33E. The single justice denied the application. The defendant has appealed, and the Commonwealth has moved to dismiss the appeal. “A defendant who is denied leave to appeal from a single justice acting as a gatekeeper pursuant to the last sentence of G. L. c. 278, § 33E, has no right to appeal from the single justice’s ruling denying leave. The single justice’s ruling is ‘final and unreviewable.’” Commonwealth v. Companonio, 472 Mass. 1004 (2015), quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010). The defendant cannot appeal to the full court.[2] Appeal dismissed. The case was submitted on briefs. Larry D. Wampler, Jr., pro se. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. [1] At the time of trial, the defendant was referred to as Hung Tan Vo. He now goes by the name Larry D. Wampler, Jr. [2] Because the defendant has no right to appeal to the full court, his motion for appointment of counsel in this court is also denied. There is no right to counsel where there is no right to appeal. Full-text Opinions
Riva v. Massachusetts Parole Board (Lawyers Weekly No. 10-136-17)
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-12270 JAMES RIVA vs. MASSACHUSETTS PAROLE BOARD. August 18, 2017. Supreme Judicial Court, Superintendence of inferior courts. Parole. Practice, Criminal, Discovery. The petitioner, James Riva, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Riva is currently serving a life sentence for second degree murder. After the parole board (board) denied him parole in January, 2015, he filed a complaint in the Superior Court seeking certiorari review and a declaratory judgment in connection with claimed constitutional violations that occurred in the course of the proceedings before the board. The board’s motion to dismiss the complaint was allowed as to the declaratory judgment claim but denied as to the certiorari claim. Riva’s subsequently-filed motion to compel discovery was initially denied, but, on Riva’s motion for reconsideration, the motion judge indicated that the motion was allowed “to the extent that the administrative record shall reflect the evidence relied upon by the parole board to issue its decision.” Riva then filed a “motion for relief,” which also pertained to certain discovery. After this motion was denied, Riva filed his G. L. c. 211, § 3, petition in the county court. In the petition, he argued that his case could not proceed in the trial court without the requested discovery. The single justice denied the petition without a hearing. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). Riva has not made, and cannot make, such a showing. He argues that the board has been “allowed” to “disobey a compelled discovery order” and that, essentially, if the board is allowed to continue to do so, the issue will eventually become moot by the time he is again eligible for parole. There is no reason, however, why the rulings related to discovery cannot adequately be addressed in an appeal from any adverse judgment, including the mootness issue. See, e.g., Madison v. Commonwealth, 466 Mass. 1033, 1033 (2013), and cases cited. The single justice did not err or abuse his discretion in denying relief under […]
Martin v. Superior Court Department of the Trial Court (Lawyers Weekly No. 10-137-17)
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-12288 JAMES MARTIN vs. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT. August 18, 2017. Supreme Judicial Court, Superintendence of inferior courts. Attorney at Law, Disqualification. District Attorney. The petitioner, James Martin, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Martin, an attorney with a practice in the Springfield area, has been indicted by a Hampden County grand jury on charges of rape, in violation of G. L. c. 265, § 22 (b), and indecent assault and battery, in violation of G. L. c. 265, § 13H. He filed a motion to disqualify the Hampden County district attorney’s office from prosecuting the case on the basis that it would constitute a conflict of interest because he has worked closely with that office in resolving cases for a number of years. After a judge in the Superior Court denied the motion, Martin filed his G. L. c. 211, § 3, petition in the county court. A single justice denied the petition without a hearing. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). Martin has not made, and cannot make, such a showing. Although Martin argues that allowing the Hampden County district attorney’s office to prosecute the case will violate his constitutional rights to a fair and impartial trial, and that it will be “too late” if the disqualification issue is not addressed prior to his trial, the ruling on the disqualification issue is the very type of ruling that is routinely reviewed on appeal from a conviction. See Luke v. Commonwealth, 460 Mass. 1002, 1002-1003 (2011), citing Commonwealth v. Colon, 408 Mass. 419, 429-432 (1990). There is no reason why that is not also so here. The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Alan J. Black for the petitioner. Full-text Opinions
Wassilie v. Commonwealth (Lawyers Weekly No. 10-135-17)
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-12306 SAM C. WASSILIE vs. COMMONWEALTH. August 18, 2017. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Dismissal. The petitioner, Sam C. Wassilie, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Wassilie was indicted on twenty-two counts of videotaping, with his cellular telephone, individuals who were nude or partially nude, in violation of G. L. c. 272, § 105 (b). The charges stem from two recordings, made continuously and on the same day at a public restroom, showing twelve adults and five juveniles in various states of nudity. Wassilie filed a motion to dismiss, and at a hearing on the motion, a judge in the Superior Court ordered that any duplicative charges be dismissed. The Commonwealth subsequently filed a nolle prosequi as to five of the twenty-two counts. Wassilie’s motion to dismiss was otherwise denied, as was his motion to suppress evidence. He then filed a G. L. c. 211, § 3, petition in the county court, arguing that the statute does not allow for separate prosecutions as to each individual videotaped, that the charges are therefore duplicative, and that he should not have to be subject to a trial on multiple indictments that expose him to multiple punishments. A single justice denied the petition without a hearing.[1] The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). Wassilie has not made such a showing. “The denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule. Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.” Bateman v. Commonwealth, 449 Mass. 1024, 1024-1025 (2007), quoting Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002). See Ventresco v. Commonwealth, 409 Mass. 82, 83-84 […]
Commonwealth v. Duart (Lawyers Weekly No. 10-132-17)
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-12302 COMMONWEALTH vs. PETER J. DUART. Dukes. May 4, 2017. – August 17, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. Judge. Practice, Criminal, New trial, Disqualification of judge, Assistance of counsel. Indictments found and returned in the Superior Court Department on April 5, 2010. A motion for a new trial, filed on February 18, 2015, was heard by Charles J. Hely, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Afton M. Templin for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. HINES, J. Following a jury-waived trial in the Superior Court, the defendant, Peter Duart, was convicted of rape, subsequent offense, G. L. c. 265, § 22 (b); and indecent assault and battery on a person age fourteen or older, as a lesser included offense of assault and battery on a person with an intellectual disability.[1] The judge sentenced the defendant to from ten years to ten years and one day in State prison on the rape and subsequent offender convictions, and to a probation term of three years on the indecent assault and battery conviction. In a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the defendant challenged the convictions on the grounds that (1) his jury waiver was neither knowing nor intelligent because the trial judge did not disclose that his son was employed as an assistant district attorney in the office of the district attorney for the Cape and Islands district, which prosecuted the indictments; and (2) defense counsel was constitutionally ineffective in failing to disclose the judge’s relationship to the prosecutor’s office in counsel’s advice on the strategic choice to waive the right to a trial by jury. A different judge held an evidentiary hearing and denied the motion in a written decision. The defendant filed a timely appeal, and we transferred the case to this court on our own motion. We conclude that the trial judge’s failure to inform the defendant of his familial relationship with a member of the prosecuting attorney’s office during the jury-waiver colloquy was not error, and thus the denial of the defendant’s motion for a new trial on this ground was […]
Commonwealth v. Santana (Lawyers Weekly No. 10-133-17)
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-12039 COMMONWEALTH vs. CESAR SANTANA. Essex. January 10, 2017. – August 17, 2017. Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ. Homicide. Constitutional Law, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement, Hearsay, Expert opinion. Witness, Expert. Practice, Criminal, Capital case, Motion to suppress, Admissions and confessions, Voluntariness of statement, Mistrial, Argument by prosecutor, Plea. Indictments found and returned in the Superior Court Department on December 12, 2008. A pretrial motion to suppress evidence, filed on June 8, 2009, and amended October 3, 2011, was heard by Kimberly S. Budd, J.; a second pretrial motion to suppress evidence, filed on April 12, 2012, was heard by Howard J. Whitehead, J.; a third pretrial motion to suppress evidence, filed on June 4, 2013, was heard by Richard E. Welch, III, J.; and the cases were tried before David A. Lowy, J. Elizabeth Caddick for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. HINES, J. In January, 2014, a Superior Court jury convicted the defendant, Cesar Santana, of murder in the first degree of Rafael Castro, on the theories of extreme atrocity or cruelty, and felony-murder with home invasion and armed burglary, assault on occupant as the predicate felonies. On appeal, the defendant asserts error in (1) the denial of his motion to suppress statements; (2) the admission of hearsay testimony from various witnesses; (3) the denial of a requested DiGiambattista jury instruction; (4) the denial of the motion for a mistrial following the jury’s exposure to inadmissible evidence; and (5) certain improper statements made in the prosecutor’s closing argument. The defendant also requests that we exercise our authority pursuant to G. L. c. 278, § 33E, to reduce the murder conviction or to order a new trial. We affirm the defendant’s convictions and decline to grant relief under G. L. c. 278, § 33E. Background. 1. The murder. We summarize the facts the jury could have found, reserving certain details for our discussion of the alleged errors. On the night of August 25, 2004, Norma Cedeno and her stepfather, Rafael Castro, were attacked by a group of men as the two entered Castro’s Lawrence apartment.[1] Cedeno, who entered the apartment first and did not turn on any lights, walked to the bathroom, where she […]