Commonwealth v. Keo (Lawyers Weekly No. 10-013-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑10949   COMMONWEALTH  vs.  KEVIN KEO.     Essex.     September 10, 2013.  ‑  January 21, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Homicide.  Constitutional Law, Assistance of counsel, Sentence, Cruel and unusual punishment, Parole.  Due Process of Law, Assistance of counsel, Sentence, Parole.  Evidence, Joint venturer, State of mind.  Joint Enterprise.  Accessory and Principal.  Parole.  Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor, Sentence, Parole.       Indictment found and returned in the Superior Court Department on December 28, 2007.   The case was tried before David A. Lowy, J., and a motion for a new trial, filed on December 28, 2011, was heard by him.     Leslie W. O’Brien for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for the District Attorney for the Plymouth District, amicus curiae, submitted a brief.       IRELAND, C.J.  On November 1, 2007, the victim in this case was shot and killed outside a restaurant in Lynn after being involved in an altercation with four young men, one of whom was Kevin Keo (defendant).[1]  The defendant was indicted on a charge of murder in the first degree, and at a jury trial, the Commonwealth proceeded against him on a theory of deliberate premeditation based on his knowing participation in the crime, alone (as the shooter), or with others, with the requisite intent for murder.[2]  See Commonwealth v. Zanetti, 454 Mass. 449, 466-468 (2009).  The jury convicted the defendant of murder in the first degree.  While his appeal was pending in this court, he filed a motion for a new trial that we remanded to the Superior Court.  That motion, as subsequently amended, was denied, as was the defendant’s request for an evidentiary hearing.  The defendant’s appeal from the denial of his motion for a new trial has been consolidated with his direct appeal.  Represented by new counsel on appeal, the defendant asserts error in the denial of his new trial motion on the grounds that:  (1) his trial counsel rendered constitutionally deficient assistance by failing to obtain a full transcript of a witness’s testimony from another trial (involving Bonrad Sok [Sok], see note 2, supra) for impeachment purposes, and (2) the trial judge erroneously admitted state of mind […]

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