Posts tagged "1017113"

Commonwealth v. Horne (Lawyers Weekly No. 10-171-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11304   COMMONWEALTH  vs.  DANIEL HORNE.     Hampden.     May 7, 2013.  ‑  September 16, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Homicide.  Malice.  Wanton or Reckless Conduct.  Joint Enterprise.  Practice, Criminal, Instructions to jury, Double jeopardy.  Evidence, Joint enterprise, Impeachment of credibility, Exculpatory.  Witness, Impeachment.  Constitutional Law, Double jeopardy.  Firearms.       Indictments found and returned in the Superior Court Department on October 28, 2009.   The cases were tried before C. Jeffrey Kinder, J.   The Supreme Judicial Court granted an application for direct appellate review.     Jane Larmon White, Committee for Public Counsel Services, for the defendant. Marcia B. Julian, Assistant District Attorney, for the Commonwealth.     DUFFLY, J.  At approximately 1:30 A.M. on October 18, 2009, eight bullets were fired at the front room window of a first-floor apartment in Springfield; the window was covered by venetian blinds and dark curtains.  Four of those bullets struck and killed nineteen year old Brittany Perez as she stood near the window. The defendant, who was seen fleeing from the scene of the shooting, was convicted by a Superior Court jury of murder in the second degree.  He was convicted also of possession of ammunition without a firearm identification (FID) card and of two separate counts of unlicensed carrying of a rifle outside his residence or place of business. On appeal, the defendant contends that a number of errors at trial require reversal of his convictions.  He asserts error in the judge’s decision not to instruct the jury on involuntary manslaughter; the judge’s instruction on joint venture liability; and the prosecutor’s improper impeachment of a defense witness’s credibility.  In addition, the defendant argues that the two convictions of the unlicensed carrying of a rifle are duplicative. We conclude that the judge erred in declining to instruct the jury on involuntary manslaughter, where the jury reasonably could have found that the defendant did not know the room was occupied when he fired the rifle at the window and, therefore, that the defendant’s conduct was wanton or reckless but not necessarily conduct that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would follow.  Consequently, the defendant’s conviction of murder in the second degree cannot stand.  We reject the […]

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Posted by Massachusetts Legal Resources - September 18, 2013 at 7:43 am

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