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Commonwealth v. Brescia (Lawyers Weekly No. 10-077-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10686   COMMONWEALTH  vs.  JAMES E. BRESCIA. Middlesex.     January 6, 2015. – May 8, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide.  Practice, Criminal, New trial, Witness, Capital case.  Witness, Credibility.  Evidence, Credibility of witness.     Indictments found and returned in the Superior Court Department on June 26, 2006.   The cases were tried before Wendie I. Gershengorn, J., and a motion for a new trial, filed on April 15, 2011, was heard by Douglas H. Wilkins, J.     Bethany Stevens, Assistant District Attorney, for the Commonwealth. Alan Jay Black for the defendant.   LENK, J.  At the defendant’s trial for murder and conspiracy, the theory of the prosecution was that the defendant had hired an assassin to kill the victim.  The victim was a man with whom the defendant believed his wife was romantically involved.  The defendant took the stand and testified on his own behalf, asserting that he had requested only that the victim be threatened or beaten, and that subsequently he had withdrawn from the arrangement altogether.  The defendant was cross-examined on the same day and on the following day. After the jury were charged, the defendant was taken to the hospital, where it was determined that he had suffered a stroke.  Testing later revealed that the stroke had occurred on the night between the first and second days of the defendant’s testimony.  The jury, who never learned of the defendant’s stroke, returned guilty verdicts on both indictments. The defendant filed a motion for a new trial.  Because the trial judge had retired, the motion was assigned to another judge, who held a four-day evidentiary hearing and issued a detailed written decision.  The judge determined that the defendant’s then-undetected stroke had affected the course of his testimony in a manner that well might have damaged his credibility in the jury’s eyes.  The outcome of the trial, the judge explained, had turned in large measure on the jury’s assessments of credibility.  Concluding essentially that “justice may not have been done,” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the judge ordered a new trial.  The Commonwealth appealed. We discern no significant error of law or abuse of discretion in the judge’s decision that a new trial was warranted, and we therefore affirm. 1.  Background.  a.  The Commonwealth’s […]

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Posted by Massachusetts Legal Resources - May 8, 2015 at 3:52 pm

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