Commonwealth v. Alcequiecz (Lawyers Weekly No. 10-106-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑10699   COMMONWEALTH  vs.  SPASSKY ALCEQUIECZ.     Essex.     February 7, 2013.  ‑  June 13, 2013. Present:  Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ.       Homicide.  Assault and Battery by Means of a Dangerous Weapon.  Constitutional Law, Assistance of counsel.  Due Process of Law, Assistance of counsel.  Practice, Criminal, Assistance of counsel, Instructions to jury, Argument by prosecutor, Duplicative convictions, Capital case.  Felony‑Murder Rule.       Indictments found and returned in the Superior Court Department on May 30, 2007.   The cases were tried before Howard J. Whitehead, J., and a motion for a new trial was heard by him.     Dennis Shedd for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.       DUFFLY, J.  After entering the home of his former girl friend, the defendant struck her in the head with a car battery “charger pack,” and fatally stabbed her new boy friend with a kitchen knife.  The defendant was convicted of murder in the first degree on a theory of felony-murder, G. L. c. 265, § 1.[1]  He was also convicted of armed burglary, G. L. c. 266, § 14, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b).  Represented by new counsel, the defendant filed a motion for a new trial alleging ineffective assistance of trial counsel.  That motion was denied. The defendant’s appeals from his convictions and from the denial of his motion for a new trial have been consolidated before this court.  On appeal, the defendant argues that his trial counsel was ineffective in several respects; the prosecutor’s closing argument was improper; and that his conviction of armed burglary was duplicative of his conviction of felony-murder.  The defendant also seeks relief pursuant to G. L. c. 278, § 33E. We affirm the convictions of felony-murder and assault and battery by means of a dangerous weapon.  Because the armed burglary was the predicate felony for the defendant’s felony‑murder conviction, it is duplicative and must be vacated.  See Commonwealth v. Johnson, 463 Mass. 95, 97 (2012).  Having examined the entire record pursuant to our duty under G. L. c. 278, § 33E, we discern no basis on which to grant extraordinary relief. Background.  The jury could have found the following facts.  The defendant and Amanda Poisson began dating in 2001.  By early 2007, they, their three year old son, and Poisson’s nine year old […]

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