Commonwealth v. Johnston (Lawyers Weekly No. 10-063-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑09919 COMMONWEALTH vs. BRYAN R. JOHNSTON. Hampshire. December 6, 2013. ‑ April 8, 2014. Present: Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Burglary. Firearms. Mental Impairment. Evidence, Field sobriety test, Admissions and confessions, Cross‑examination, Redirect examination, Hearsay, Relevancy and materiality. Constitutional Law, Assistance of counsel, Admissions and confessions. Due Process of Law, Assistance of counsel. Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor, Instructions to jury, Admissions and confessions, Opening statement, Hearsay, Conduct of prosecutor. Indictments found and returned in the Superior Court Department on January 19, 2005. The cases were tried before Bertha D. Josephson, J., and a motion for a new trial, filed on February 17, 2011, was considered by her. David J. Nathanson (Dan A. Horowitz with him) for the defendant. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. SPINA, J. The defendant was convicted of (1) murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder; (2) armed burglary; (3) possession of a large capacity firearm in the commission or attempted commission of a felony; and (4) possession of a large capacity firearm without a license. He filed a motion for a new trial that was denied without an evidentiary hearing. His appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. The defendant asserts that the judge erred in several evidentiary rulings, that counsel rendered ineffective assistance by failing to object to inadmissible evidence and by offering inadmissible evidence, that the prosecutor made improper closing argument, and that the judge gave erroneous instructions to the jury — particularly as to the issue of lack of criminal responsibility. We affirm the judgments of conviction and decline to reduce the degree of guilt or order a new trial pursuant to our power under G. L. c. 278, § 33E. 1. Background. a. The offenses. We summarize facts the jury could have found and reserve other details for discussion of particular issues. The defendant and the victim were members of a large circle of friends who had graduated from the same high school in June, 2000, and remained close. Both men attended a friend’s wedding in June, 2004. The defendant became drunk and told the victim’s girl friend that […]