Commonwealth v. McGonagle (Lawyers Weekly No. 10-012-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12292 COMMONWEALTH vs. SHAWN A. McGONAGLE. Suffolk. October 5, 2017. – January 18, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Constitutional Law, Sentence, Cruel and unusual punishment. Due Process of Law, Sentence. Practice, Criminal, Sentence. Complaint received and sworn to in the West Roxbury Division of the Boston Municipal Court Department on April 3, 2015. The case was tried before Paul J. McManus, J. The Supreme Judicial Court granted an application for direct appellate review. Max Bauer for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. LOWY, J. General Laws c. 258B, § 3 (p), permits “victims . . . to be heard through an oral and written victim impact statement at sentencing . . . about the effects of the crime on the victim and as to a recommended sentence.”[1] We transferred this case here on our own motion to answer two questions: first, whether the United States Supreme Court’s recent decision in Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam), precludes a sentencing judge from considering victim impact statements “as to a recommended sentence” under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights; and second, whether the sentencing recommendation provision violates the defendant’s constitutional guarantee of due process. We conclude that a sentencing judge’s consideration of victim impact statements “as to a recommended sentence” is constitutional because the concerns underpinning the Supreme Court’s treatment of victim impact statements before a jury during the sentencing phase of a capital murder trial differ from those at issue here. We further conclude that a victim’s right to recommend a sentence pursuant to G. L. c. 258B, § 3 (p), satisfies the requirements of due process. We therefore answer both questions in the negative and affirm. Background and prior proceedings. Following a trial in the District Court, a jury convicted the defendant, Shawn McGonagle, of assault and battery, G. L. c. 265, § 13A. At the defendant’s sentencing hearing, the Commonwealth requested that the defendant be sentenced to two and one-half years in a house of correction, the maximum possible sentence under the statute, to be served from and after his release on an unrelated one-year sentence for violating an abuse prevention order. Immediately after the Commonwealth’s recommendation, the […]
Sbrogna v. Sbrogna (Lawyers Weekly No. 11-006-18)
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 17-P-194 Appeals Court RALPH F. SBROGNA vs. JUDITH L. SBROGNA. No. 17-P-194. Worcester. November 3, 2017. – January 16, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Divorce and Separation, Alimony. Practice, Civil, Motion to dismiss, Complaint. Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on June 27, 1994. A complaint for modification was filed on September 15, 2016, and a motion to dismiss was heard by Leilah A. Keamy, J. Richard M. Novitch for the husband. Erin M. Shapiro (David E. Cherny also present) for the wife. WOLOHOJIAN, J. This case, like many divorce cases, involved the filing of more than one complaint and/or petition for divorce. The question presented here is which of those pleadings is to be used for purposes of G. L. c. 208, § 48, enacted as part of the alimony reform act, which defines the phrase “length of the marriage” as “the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support.” G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3. We conclude that it is the pleading upon which judgment of divorce absolute entered. The parties were married on June 16, 1973. In 1975, the Legislature added irretrievable breakdown of the marriage as a ground for divorce. A divorce on this ground can be initiated in one of two ways. If both parties agree that the marriage is irretrievably broken, then a joint petition signed by both parties or their attorneys and accompanied by (among other things) a notarized separation agreement, may be filed under G. L. c. 208, § 1A (which for convenience, we shall call a § 1A petition). A § 1A petition need not be served and no summons or answer is required. If a divorce action has been initiated by a § 1A petition, the “court shall make no inquiry into, nor consider any evidence of the individual marital fault of the parties.” G. L. c. 208, § 1A, as appearing in St. 1985, c. 691, § 1. If, instead, one party alone initiates the divorce, then he or she must begin by filing a complaint under G. L. c. 208, § 1B (a § 1B complaint). A § 1B complaint, together with the summons, must be served on the other spouse. […]
G.G. v. L.R., et al. (Lawyers Weekly No. 10-009-18)
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-12418 G.G. vs. L.R. & another.[1],[2] January 16, 2018. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, G.G., obtained a civil harassment prevention order in the Superior Court, pursuant to G. L. c. 258E, against L.R. The order, and subsequent modifications of it, contained various directives addressed to L.R., as well as to L.R.’s employer, P.F. L.R.’s appeal presently is pending in the Appeals Court; both the Superior Court judge and a single justice of the Appeals Court denied L.R.’s motion to stay enforcement of the order pending appeal. While L.R.’s appeal has been pending, a series of events ensued in the Superior Court and the Appeals Court. Notably, a second single justice of the Appeals Court modified a provision of an order entered during the pendency of L.R.’s appeal, denied L.R.’s motion to stay contempt proceedings, and denied G.G.’s motion for sanctions. In addition, after the Superior Court judge allowed G.G.’s “motion to add” P.F. as a party to the proceedings and entered other orders, P.F. appealed. That appeal also is pending in the Appeals Court. On July 27, 2017, a third single justice of the Appeals Court allowed P.F.’s motion to stay enforcement of certain orders pending appeal and L.R.’s motion to stay enforcement of a portion of an order. The third single justice denied G.G.’s motions for reconsideration of both orders, but treated them as notices of appeal, and indicated that “the appeal shall proceed in the normal course.” Insofar as the record before us indicates, G.G. has not pursued those appeals.[3] Instead, G.G. filed a petition in the county court, pursuant to G. L. c. 211, § 3, primarily requesting that the court vacate the Appeals Court single justice’s July, 2017, orders. In addition, the petition sought an order disqualifying a particular attorney from representing L.R. or G.G., a declaration that a certain constitutional provision is unconstitutional as applied in the underlying proceedings, and other relief.[4] A single justice of this court denied the petition without a hearing. G.G.’s appeal from that particular ruling is what is now before us on a memorandum and appendix filed pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Rule 2:21 applies where a single justice has denied relief pursuant to G. L. c. 211, § 3, from a challenged interlocutory […]
Minkina v. Rodgers, Powers & Schwartz, LLP (Lawyers Weekly No. 10-011-18)
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-12407 NATALY MINKINA vs. RODGERS, POWERS & SCHWARTZ, LLP. January 16, 2018. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Nataly Minkina, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3. We affirm. Minkina is the defendant in a civil lawsuit commenced in the Superior Court in Norfolk County by the respondent, Rodgers, Powers & Schwartz, LLP, to collect on a judgment issued by the Superior Court in Suffolk County pursuant to G. L. c. 231, § 6F. In her G. L. c. 211, § 3, petition, Minkina sought review of several interlocutory trial court orders, including an order denying her motion to recuse and an order allowing a motion for expenses filed by Rodgers, Powers & Schwartz, LLP (related to its efforts to compel Minkina to produce 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). Minkina has not made, and cannot make, such a showing. She has already sought interlocutory review of the trial court rulings in question under G. L. c. 231, § 118, first par., and has been denied relief by a single justice of the Appeals Court. She is not entitled as of right to additional review at this stage. See Iagatta v. Iagatta, 448 Mass. 1016, 1017 (2007); Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020 (1996) (“Review under G. L. c. 211, § 3, does not lie where review under c. 231, § 118, would suffice”).[1] Moreover, she can adequately raise her claims, and get the appropriate relief if warranted, on appeal from any adverse final judgment in the trial court. The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3. This is the third time that Minkina has improperly sought relief in this court pursuant to G. L. c. 211, § 3. See Minkina v. Frankl, 464 Mass. 1021 (2013); Minkina v. Frankl, 458 Mass. 1003 (2010).[2] We made clear in those earlier decisions that relief pursuant to G. L. c. 211, § 3, is properly denied where, as here, […]
Wallace v. PNC Bank, N.A. (Lawyers Weekly No. 10-010-18)
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-12261 DAVID C. WALLACE vs. PNC BANK, N.A. January 16, 2018. Supreme Judicial Court, Superintendence of inferior courts. David C. Wallace (petitioner) filed a petition in the county court pursuant to G. L. c. 211, § 3 (general superintendence); G. L. c. 249, § 4 (relief in the nature of certiorari); and G. L. c. 249, § 5 (relief in the nature of mandamus), seeking relief from a judgment of the District Court in a summary process proceeding.[1] He also challenged a decision of the Appellate Division of the District Court affirming the appeal bond ordered by the trial judge in the same summary process proceeding. The single justice denied the petition without a hearing. We affirm. Regardless of whether relief is requested in the nature of certiorari or mandamus, or by means of the court’s extraordinary power of general superintendence, relief is available only where the petitioner demonstrates the absence of an adequate and effective alternative remedy. See Picciotto v. Appeals Court (No. 2), 457 Mass. 1002, 1002 (2010), cert. denied, 562 U.S. 1044 (2010) (certiorari review unavailable where other paths for review available); Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 82-83 (1968) (purpose of certiorari is to provide a remedy in absence of reasonably adequate alternative). See also Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006) (relief in nature of mandamus is extraordinary, and granted in court’s discretion only where other relief unavailable); Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996) (relief properly denied under G. L. c. 211, § 3, “where there are [other] adequate and effective routes . . . by which the petitioning party may seek relief”). The petitioner failed to carry his burden of showing that adequate alternative remedies were not available here. To the extent he challenged the Appellate Division’s decision affirming the District Court judge’s order declining to waive an appeal bond, “[t]he proper course for [him] to have followed, if [h]e wished further to challenge the bond, was to refuse to pay the bond, suffer the dismissal of [his] summary process appeal, and then appeal to the Appeals Court (on the limited bond issue) from the order of dismissal.”[2] Matter of an Appeal Bond (No. 1), 428 Mass. 1013, 1013 (1998) (collecting cases). See Erickson v. Somers, 446 Mass. 1015, 1015 (2006). To […]
Miller v. Miller (Lawyers Weekly No. 10-005-18)
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-12298 BENJAMIN H. MILLER vs. JOANNA ISABELLA MILLER. Middlesex. September 6, 2017. – January 12, 2018. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Divorce and Separation, Child custody. Minor, Custody. Parent and Child, Custody. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 20, 2013. The case was heard by Patricia A. Gorman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Elaine M. Epstein (Richard M. Novitch also present) for the husband. Matthew P. Barach (Melinda J. Markvan also present) for the wife. CYPHER, J. The husband, Benjamin H. Miller, appeals from a Probate and Family Court judgment permitting the wife, Joanna Isabella Miller, to remove and relocate the parties’ daughter to Germany, the wife’s home country. We have previously held that when deciding whether removal should be permitted, the particular criteria depends on whether physical custody of the child is sole or shared. Where the parent seeking removal has sole physical custody, his or her removal petition is analyzed using what has been called the “real advantage” standard of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). Where, however, the parents share physical custody, a parent’s removal request is evaluated using the standard articulated in Mason v. Coleman, 447 Mass. 177 (2006), known as the “best interests” standard. In this case, no prior custody order existed to guide the trial judge as to whether the Yannas or Mason analysis should apply. In such circumstances, we hold that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties’ respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard.[1] We also take this opportunity to emphasize that the best interests of the child is always the paramount consideration in any question involving removal. We are satisfied that the judge conducted the requisite functional analysis here, and in determining whether removal was in the child’s best interests she afforded considerable weight to the benefits the proposed move to Germany would offer the wife, the child’s primary caregiver. Because we discern no abuse of discretion or error of law from the judge’s consideration of […]
Cepeda v. Commonwealth (Lawyers Weekly No. 10-007-18)
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-12387 RONALDO CEPEDA vs. COMMONWEALTH. January 12, 2018. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Indictment, Dismissal. Youthful Offender Act. The petitioner, Ronaldo Cepeda, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Cepeda has been indicted for murder in the second degree, stemming from an incident that occurred on October 22, 2015. Cepeda was sixteen years old at the time. He moved to dismiss the indictment on the basis that “the Commonwealth failed to present material exculpatory and mitigating evidence to the grand jury, and that the grand jury was not properly instructed regarding the impact of a developing brain on threat response and decision making of a juvenile.” A judge in the Superior Court denied the motion. Cepeda then filed his G. L. c. 211, § 3, petition in the county court. In his petition, he argued, among other things, that, following this court’s decision in Commonwealth v. Walczak, 463 Mass. 808 (2012), when the Commonwealth seeks to indict a juvenile the grand jury must be instructed on the basic differences between juvenile and adult brains. In the Walczak case, the court concluded that “where the Commonwealth seeks to indict a juvenile for murder and where there is substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) presented to the grand jury, the prosecutor shall instruct the grand jury on the elements of murder and on the significance of mitigating circumstances and defenses.” Id. at 810. In Cepeda’s view, the required instructions will only be effective if the grand jury are also instructed on juvenile brain development. Essentially, his concern lies with the difference between an indictment for murder, pursuant to which the Commonwealth would proceed against him as an adult in the Superior Court, and an indictment for manslaughter, pursuant to which the Commonwealth would proceed against him in the Juvenile Court. In other words, if the grand jury were presented with information related to juvenile brain development, they would be better able to assess whether to indict the defendant as an adult (for murder) or as a juvenile (for manslaughter). The single justice denied the petition without a hearing, and the case is now before us pursuant […]
Elliot v. Commonwealth (Lawyers Weekly No. 10-008-18)
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-11947 RONNY ELLIOT vs. COMMONWEALTH. January 12, 2018. Supreme Judicial Court, Superintendence of inferior courts. Jurisdiction, Juvenile Court, Transfer hearing. Practice, Criminal, Transfer hearing. Department of Youth Services. The petitioner, Ronny Elliot, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. In 1995, Elliot was indicted on charges of murder in the first degree, armed assault with intent to murder, and possession of a firearm without a license. He was seventeen years old at the time. He was convicted by a Superior Court jury, in 1997, of the lesser offense of murder in the second degree as well as of the other offenses. This court affirmed the convictions. See Commonwealth v. Elliot, 430 Mass. 498 (1999). Elliot subsequently filed a motion for a new trial in 2000, and an amended motion for a new trial in 2003. After a hearing, the amended motion was denied, in 2008.[1] The Appeals Court affirmed the order denying the motion for a new trial, and this court denied Elliot’s application for further appellate review. See Commonwealth v. Elliot, 80 Mass. App. Ct. 1104 (memorandum and order pursuant to rule 1:28), S.C., 460 Mass. 1115 (2011). Then, in 2015, Elliot filed his petition pursuant to G. L. c. 211, § 3, in the county court. In the petition, he argued that because he had been “lawfully committed to the Department of Youth Services” at the time of the murder, he was entitled to a transfer hearing pursuant to G. L. c. 119, § 61, which was then in effect.[2] Because no transfer hearing was held, the Superior Court, in Elliot’s view, did not have jurisdiction to try him for murder.[3] The single justice denied the petition, noting that at the relevant time — when the murder occurred in 1995 — a seventeen year old was an adult in the eyes of the juvenile and criminal law. On that basis, Elliot was not entitled to a transfer hearing. In his appeal to this court, Elliot continues to press the argument that he was entitled to a transfer hearing in the Juvenile Court and that because he did not receive one, the Superior Court lacked jurisdiction over his case. General Laws c. 119, § 61, provided at the time that “[t]he [C]ommonwealth […]
Commonwealth v. Curran (Lawyers Weekly No. 10-006-18)
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-12293 COMMONWEALTH vs. EDWARD CURRAN. Worcester. September 6, 2017. – January 12, 2018. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Sex Offender. Practice, Civil, Sex offender. Evidence, Sex offender, Expert opinion, Competency, Insanity. Incompetent Person, Commitment. Witness, Expert. Civil action commenced in the Superior Court Department on December 3, 2015. A pretrial motion to admit expert testimony with regard to criminal responsibility was heard by Richard T. Tucker, J. An application for leave to prosecute an interlocutory appeal was allowed by Judd J. Carhart, J., in the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Marcia T. Kovner for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth. GAZIANO, J. General Laws c. 123A, § 15, allows incompetent persons who are unable to stand trial for qualifying sex offenses to be deemed sexually dangerous based on the commission of those offenses. In 2008, we held that this proceeding did not violate due process or equal protection because of the rights the Legislature explicitly included in the statute to “protect an incompetent defendant’s ability to defend himself against the allegations of crime and, thus, minimize the likelihood of a mistake.” Commonwealth v. Burgess, 450 Mass. 366, 375 (2008). Those protections encompass “all rights available to criminal defendants at criminal trials, other than the right not to be tried while incompetent,” G. L. c. 123A, § 15, including the retention of experts, the right to present evidence in defense of the charges, and “the right to a determination of the commission of the criminal acts made beyond a reasonable doubt.” Burgess, supra. Here, the defendant sought to introduce at a hearing on the Commonwealth’s G. L. c. 123A, § 15, petition expert testimony that he was not criminally responsible. Interpreting the statutory language “whether the person did commit the act or acts charged” to mean that he should determine only whether the acts were committed, not whether the defendant was guilty of the acts, the judge denied the motion and allowed the Commonwealth’s motion to preclude the testimony. We conclude that the right of an incompetent defendant to raise defenses in a proceeding pursuant to G. L. c. 123A, § 15, includes that of a lack of criminal responsibility. Therefore, the denial of the motion […]
Commonwealth v. Cousin (Lawyers Weekly No. 10-004-18)
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-12252 COMMONWEALTH vs. JOSEPH COUSIN. Suffolk. September 5, 2017. – January 11, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ. Conflict of Interest. Attorney at Law, Conflict of interest. Practice, Criminal, Assistance of counsel. Indictments found and returned in the Superior Court Department on September 4, 2002. The cases were tried before Nancy Holtz, J., and a motion for a new trial, filed on March 1, 2013, was heard by Janet L. Sanders, J. The Supreme Judicial Court granted an application for direct appellate review. Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth. Robert F. Shaw, Jr., for the defendant. LOWY, J. Following a jury trial in the Superior Court, the defendant, Joseph Cousin (Cousin), was convicted of murder in the second degree. Cousin filed a motion for a new trial, claiming that his trial counsel was ineffective because he was burdened by an actual conflict of interest. A Superior Court judge granted Cousin’s motion for a new trial. The Commonwealth appealed, and we allowed its application for direct appellate review.[1] The issue before this court is whether Cousin presented sufficient evidence to establish that his trial counsel was burdened by an actual conflict of interest. Although Cousin has set forth the basis for what may well constitute a potential conflict of interest, we conclude that he failed to meet his burden of demonstrating that his trial counsel was operating under an actual conflict of interest. Therefore, we vacate the allowance of Cousin’s motion for a new trial and remand the case to the Superior Court for further proceedings to determine whether there was a potential conflict causing prejudice that would warrant a new trial. Prior proceedings and background. We briefly indicate the nature of Cousin’s criminal case, followed by a summary of the facts pertinent to Cousin’s conflict claim, as they were found by the judge. We also reserve certain facts for later discussion. Following an investigation by the Boston police department (BPD) homicide division, Cousin and another man were charged with murder for the shooting death of a young girl. In 2004, Cousin and his codefendant were tried jointly for the murder, and the jury acquitted the codefendant. The jury were deadlocked concerning […]