Posts tagged "1013513"

Commonwealth v. Franklin (Lawyers Weekly No. 10-135-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑10887   COMMONWEALTH  vs.  LEWIS FRANKLIN.     Plymouth.     March 8, 2013.  ‑  July 16, 2013. Present:  Ireland, C.J., Cordy, Gants, Duffly, & Lenk, JJ.     Homicide.  Evidence, Hearsay, State of mind, Threat, Identification.  Threatening.  Identification.  Practice, Criminal, Capital case, Assistance of counsel, Request for jury instructions, Argument by prosecutor, New trial.       Indictments found and returned in the Superior Court Department on December 7, 2007.   The cases were tried before Paul E. Troy, J.     Robert F. Shaw, Jr., for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth.     GANTS, J.  A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, in violation of G. L. c. 265, § 1, for the killing of John Falcone.[1]  The defendant raises four issues on appeal.  First, he argues that the judge erred in permitting statements of the victim to be introduced in evidence for the purpose of establishing the defendant’s motive to kill where the evidence failed to show that the defendant knew of these statements.  Second, he contends that his attorney’s failure to request that the jury be specifically instructed on issues relating to eyewitness identification constituted ineffective assistance of counsel.  Third, the defendant claims that the prosecutor made various improper and prejudicial statements in his closing argument.  Fourth, he argues that this court should exercise its authority under G. L. c. 278, § 33E, and order a new trial because the weight of the evidence does not support the verdict, or else reduce his conviction to either murder in the second degree or manslaughter.  For the reasons detailed below, we affirm the convictions and, after a complete review of the record, decline to exercise our authority under G. L. c. 278, § 33E, to order a new trial or to reduce the murder conviction to a lesser degree of guilt. Background.  The defendant does not challenge the legal sufficiency of the evidence at trial, but he does contend that the “verdict was against . . . the weight of the evidence,” G. L. c. 278, § 33E, so we summarize the relevant evidence rather than present the evidence in the light most favorable to the prosecution.   1.  Before the shooting.  In the early morning of August 23, 2004, the victim, a thirty year old white male, along with Anthony Robinson and Mary […]

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Posted by Massachusetts Legal Resources - July 16, 2013 at 4:00 pm

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