Commonwealth v. Smith (Lawyers Weekly No. 11-126-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-413 Appeals Court COMMONWEALTH vs. BRIAN SMITH. No. 15-P-413. Suffolk. June 9, 2016. – September 15, 2016. Present: Carhart, Maldonado, & Henry, JJ. Practice, Criminal, New trial, Disclosure of evidence. Privileged Communication. Evidence, Privileged communication, Motive, Disclosure of evidence. Attorney at Law, Attorney-client relationship. Cooperation with Government Agents. Indictments found and returned in the Superior Court Department on May 3, 2005. A motion for a new trial, filed on February 21, 2012, was considered by Janet L. Sanders, J. Michelle Menken for the defendant. Zachary Hillman, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from the denial of his motion for a new trial without an evidentiary hearing. Because we conclude that the defendant has raised several substantial issues, we remand the case to the Superior Court for an evidentiary hearing. Background. 1. The trial. On August 18, 2006, the defendant was convicted by a Suffolk County Superior Court jury of armed home invasion, armed assault with intent to murder, and unlawful possession of a firearm (the Suffolk County case). His convictions were affirmed on appeal. Commonwealth v. Smith, 75 Mass. App. Ct. 196 (2009) (Smith I), S.C., 458 Mass. 1012 (2010). We summarize the facts underlying the convictions, which are set forth in full in Smith I. On the evening of March 13, 2005, Kenneth Lowe and his girlfriend Niki Semnack were in Lowe’s apartment in the Charlestown section of Boston, where Lowe had spent much of the evening ingesting “crack” cocaine. Around 11:30 P.M., Lowe heard a knock at the door and saw the defendant through the peephole. Lowe and the defendant had been friends for about eight months, and they usually smoked crack cocaine together. Lowe opened the door, and the defendant told him that a friend was downstairs and wanted Lowe to “take him up the street.”[1] Lowe declined, and, at that point, a white man wearing a “hoodie” with a bandana covering his face ran up the stairs holding a large silver gun. Smith I, supra at 197. “Lowe immediately tried to close the door, but the defendant placed his foot in the doorway, leaving a two- to three-inch gap. Lowe observed the masked man reach over the defendant and insert the gun into the apartment through the […]