Commonwealth v. McGee (Lawyers Weekly No. 10-114-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11209 COMMONWEALTH vs. JEFFREY McGEE. Middlesex. March 7, 2014. – July 1, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, & Lenk, JJ. Homicide. Evidence, Demonstration, Present recollection refreshed, Intent, State of mind. Intent. Witness, Refreshment of recollection. Practice, Criminal, Capital case, State of mind. Indictments found and returned in the Superior Court Department on January 3, 2008. The cases were tried before Kathe M. Tuttman, J. Eric S. Brandt, Committee for Public Counsel Services, for the defendant. Hallie White Speight, Assistant District Attorney (Katherine B. Folger, Assistant District Attorney, with her) for the Commonwealth. LENK, J. The defendant appeals from his conviction of murder in the first degree on a theory of deliberate premeditation.[1] On November 20, 2007, the defendant choked and stabbed his wife to death in their apartment; the killing was witnessed by the couple’s three and one-half year old son. The defendant did not dispute that he had killed his wife, asserting only that he had done so in the heat of passion and had not premeditated the act. On appeal, the defendant raises two issues. First, he contends that the trial judge erred in allowing the defendant’s son to demonstrate, on a couch in the court room, the position in which his mother was lying as the defendant was choking her. Second, he objects to a ruling prohibiting him from using a police report to refresh the recollection of a witness regarding a sexual overture made by the victim. For the reasons set forth below, we discern no error and affirm the defendant’s conviction of murder in the first degree. After a review of the entire record pursuant to G. L. c. 278, § 33E, we decline to exercise our power to reduce the defendant’s conviction to a lesser degree of guilt or to order a new trial. 1. Background. a. Facts. We recite the facts as the jury could have found them, reserving some details for later discussion. i. Defendant’s relationship with the victim. The defendant and the victim, Christine McGee,[2] met while the defendant was a singer in a rock and roll band dedicated to performing music from the 1980s, which Christine enjoyed.[3] At that time, the defendant looked like what Margaret Barone, a longtime friend of the defendant and a close friend of Christine, described as an […]