Posts tagged "1014014"

Commonwealth v. Torres (Lawyers Weekly No. 10-140-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10849   COMMONWEALTH  vs.  JOSE TORRES.       Suffolk.     April 11, 2014. – August 18, 2014.   Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.[1] Homicide.  Practice, Criminal, Capital case, New trial, Assistance of counsel, Argument by counsel, Instructions to jury.  Evidence, Opinion, Expert opinion.  Witness, Expert.     Indictment found and returned in the Superior Court Department on June 26, 2008.   The case was tried before Elizabeth M. Fahey, J., and a motion for a new trial, filed on October 19, 2011, was considered by her.     Emanuel Howard for the defendant. Donna Jalbert Patalano, Assistant District Attorney (David A. Deakin, Assistant District Attorney, with her) for the Commonwealth.     SPINA, J.  The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.  He filed a motion for a new trial alleging ineffective assistance of counsel, and he requested an evidentiary hearing.  The trial judge denied the motion without a hearing.  Her indorsement in the margin said, “for the reasons stated in [the Commonwealth’s] opposition.”  On appeal the defendant alleges error in the denial of his motion for a new trial, the judge’s failure to make findings, and the judge’s failure to hold an evidentiary hearing on the motion.  We affirm the conviction and the denial of the defendant’s motion for a new trial.  We decline to exercise our power under G. L. c. 278, § 33E. 1.  Background.  The defendant moved into his girl friend’s third-floor apartment in the Dorchester section of Boston in the middle of February, 2008.  His girl friend, the victim, had four children, the oldest of whom was six years old.  On March 8, 2008, Kristina Ortiz visited the victim at her apartment.  The defendant and the victim’s four children were there.  As Ortiz was leaving, the defendant made a disparaging remark about the victim’s children. That evening the victim sent her six year old son down to the first-floor apartment of a neighbor three times to ask the neighbor to come up to his mother’s apartment.  Each time the neighbor said she would be right up, but became distracted by her own children and failed to appear.  At 9 P.M. the defendant went down to the first-floor apartment and told the neighbor that his “wife was waiting” for her.  The neighbor went up […]

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Posted by Massachusetts Legal Resources - August 19, 2014 at 3:24 am

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