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Commonwealth v. Lally (Lawyers Weekly No. 10-027-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-09926   COMMONWEALTH  vs.  THOMAS LALLY.       Norfolk.     November 6, 2015. – March 3, 2016.   Present:  Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.     Homicide.  Deoxyribonucleic Acid.  Evidence, Prior consistent statement, Prior misconduct, Subsequent misconduct.  Practice, Criminal, Capital case, New trial, Assistance of counsel, Argument by prosecutor, Redaction.       Indictment found and returned in the Superior Court Department on January 21, 2003.   The case was tried before Charles M. Grabau, J., and a motion for a new trial, filed on June 16, 2010, was heard by Kenneth J. Fishman, J.     Catherine J. Hinton (Charles W. Rankin with her) for the defendant. Pamela Alford, Assistant District Attorney, for the Commonwealth.     HINES, J.  The defendant, Thomas Lally, was convicted by jury of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.[1]  Represented by new counsel, the defendant filed a motion for a new trial based on claimed errors at trial:  (1) admission of deoxyribonucleic acid (DNA) evidence;[2] (2) admission of an audiotape of prior consistent statements made by the Commonwealth’s principal witness, a cooperating codefendant; (3) admission of a cooperating codefendant’s plea agreement without proper redaction; (4) admission of prior bad act evidence; and (5) ineffective assistance of counsel for improperly advising the defendant to testify and for failing to call surrebuttal witnesses.[3]  A judge of the Superior Court who was not the trial judge denied the defendant’s motion after an evidentiary hearing.  The defendant appealed and it was consolidated with his direct appeal, which raises the same issues.  We affirm the order denying the defendant’s motion for new trial as well as the defendant’s conviction, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. Background.  We recite the facts as the jury could have found them, reserving other facts for later discussion.  On December 19, 2001, the defendant hit the victim with a frying pan and tea kettle and then suffocated her until she died.  He moved her body to the bottom of a staircase and made it appear to be an accident. The night before the murder, the defendant slept at the victim’s house with two friends, Jason Weir and the victim’s great-nephew, Anthony Calabro.[4]  The victim, eighty-four years old at the time of her death, owned a […]

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Posted by Massachusetts Legal Resources - March 3, 2016 at 5:57 pm

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