Posts tagged "1109716"

Commonwealth v. Olivier (Lawyers Weekly No. 11-097-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-1216                                       Appeals Court   COMMONWEALTH  vs.  HERVE OLIVIER, JR.     No. 13-P-1216.   Middlesex.     October 7, 2015. – August 10, 2016.   Present:  Katzmann, Rubin, & Wolohojian, JJ.     Rape.  Practice, Criminal, Indictment, Lesser included offense, Sentence, Subpoena, Argument by prosecutor, Jury and jurors, Voir dire.  Subpoena.  Evidence, Relevancy and materiality, Privileged record, Expert opinion.  Search and Seizure, Warrant, Affidavit.  Witness, Expert.       Indictments found and returned in the Superior Court Department on December 15, 2011.   A pretrial motion for presumptively privileged records was considered by Thomas P. Billings, J., and a renewed motion was heard by Kathe M. Tuttman, J; a pretrial motion for a hearing on the adequacy of the affidavit supporting a search warrant was heard by Thomas P. Billings, J.; and the cases were tried before Bruce R. Henry, J.     Stanley D. Helinski for the defendant. Kate Cimini, Assistant District Attorney, for the Commonwealth.     RUBIN, J.  This case presents a question of first impression about the adequacy of the subsequent offense portion of an indictment where, on the main indictment, a defendant is convicted not of the charged offense, but of a lesser included offense that carries a subsequent offense enhancement. The defendant was indicted on December 15, 2011, on ten counts.  Count 1 charged rape of a child by force under G. L. c. 265, § 22A.  A second part of that count, captioned “Forcible Rape of a Child — Subsequent Offense,” charged that at the time of the offense charged in the first count the defendant “was previously convicted of Indecent Assault and Battery on a Child Over Fourteen, a violation of Massachusetts General Laws Chapter 265 Section 13[H] in the Framingham Juvenile Court Docket No. DL05FO606 on November 28, 2007.”[1]  See G. L. c. 265, § 22C.[2] After a jury trial, the defendant was convicted on count 1 not of rape of a child by force, but of the lesser included offense of rape of a child (i.e., statutory rape) under G. L. c. 265, § 23.  Some eleven days later, a new jury was empanelled, and the defendant was tried on the subsequent offense penalty enhancement for the latter crime under G. L. c. 265, § 23B.  See G. L. c. 278, § 11A; Commonwealth v. Pelletier, 449 Mass. 392, 396 (2007), quoting from Commonwealth v. Miranda, 441 Mass. 783, 788 (2004) […]

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Posted by Massachusetts Legal Resources - August 10, 2016 at 4:53 pm

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