Commonwealth v. Sullivan (Lawyers Weekly No. 10-156-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11568 COMMONWEALTH vs. JOSEPH D. SULLIVAN. Middlesex. May 6, 2014. – September 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.[1] Attempt. Kidnapping. Idle and Disorderly Person. Practice, Criminal, Assistance of counsel. Indictments found and returned in the Superior Court Department on November 27, 2007. The cases were tried before Hiller B. Zobel, J.; motions for a new trial and to vacate a conviction, filed on November 2, 2010, were considered by Sandra L. Hamlin, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Kevin J. Curtin, Assistant District Attorney (Nicole L. Allain, Assistant District Attorney, with him) for the Commonwealth. Dennis A. Shedd for the defendant. Timothy St. Lawrence, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. SPINA, J. Following a jury trial in the Superior Court in December, 2008, the defendant, Joseph D. Sullivan, was convicted of attempted kidnapping, G. L. c. 274, § 6, and of accosting or annoying a person of the opposite sex, G. L. c. 272, § 53.[2] He was sentenced to from three to five years in the State prison on his conviction of attempted kidnapping, and he was sentenced to three years’ probation on his conviction of accosting or annoying a person of the opposite sex, to commence on and after the attempted kidnapping sentence. On appeal, the defendant argued that (1) the Commonwealth failed to present sufficient evidence to prove every element of the charged crimes beyond a reasonable doubt;[3] (2) his motion to vacate the attempted kidnapping conviction was wrongly denied; and (3) his counsel provided ineffective assistance during the course of the trial.[4] The Appeals Court affirmed the judgment on the indictment charging attempted kidnapping, concluding that the Commonwealth had proved all of the required elements of the offense. Commonwealth v. Sullivan, 84 Mass. App. Ct. 26, 28-30, 32 (2013). On the indictment charging accosting or annoying a person of the opposite sex, the Appeals Court reversed the judgment, set aside the verdict, and entered judgment for the defendant. Id. at 30-32. It concluded that because the Commonwealth had not demonstrated that the defendant’s conduct involved “sexually explicit language or acts,” the Commonwealth failed to meet its burden of proving that the defendant’s […]