Posts tagged "Brown"

Commonwealth v. Brown (Lawyers Weekly No. 10-042-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReportersjc.state.ma.us   SJC-12313   COMMONWEALTH  vs.  JOHNELLE M. BROWN.       Middlesex.     November 7, 2017. – March 16, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Assault and Battery.  Intimidation of Witness.  Witness, Intimidation.  District Court, Jurisdiction.  Practice, Criminal, New trial, Assistance of counsel, Instructions to jury, Sentence, Allocution, Restitution.  Restitution.       Complaint received and sworn to in the Cambridge Division of the District Court Department on May 2, 2014.   The case was tried before Michele B. Hogan, J.; a restitution hearing was held before Daniel C. Crane, J.; and a motion for postconviction relief was heard by Hogan, J.   The Supreme Judicial Court granted an application for direct appellate review.     Luke Rosseel for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.          CYPHER, J.  A jury in the District Court convicted the defendant, Johnelle M. Brown, of assault and battery and witness intimidation.  After beginning the sentencing hearing, the trial judge revoked the defendant’s bail and delayed sentencing for four days.  After reconvening, the judge imposed a sentence of a one-year commitment to a house of correction, suspended for two years, probation, and restitution.  The defendant disputes the District Court’s jurisdiction over the witness intimidation prosecution.  The defendant also appeals from the denial of her motion for a new trial, revocation of bail, and order of payment of restitution.  We affirm. Facts.  We recite the facts as the jury could have found them, reserving certain facts for later discussion. Mahboobe Aria and Mehdi Aria[1] managed a restaurant.  On April 6, 2014, the restaurant closed at 2:30 A.M.  At approximately 2:40 A.M., Mahboobe and Mehdi were completing tasks relevant to closing the restaurant.  Mehdi was outside, cleaning the outdoor seating.  Mahboobe was inside. The defendant and a man arrived in an automobile and parked outside the restaurant.  The man was not identified by name at trial, but the defendant’s motion for a new trial, appellate brief, and affidavits identify this man as Tyrell Carr. Carr remained in the automobile while the defendant went into the restaurant.  Mahboobe was near the cash register when the defendant walked into the restaurant. Mahboobe told the defendant that the restaurant was closed.  The defendant said that she needed to use the bathroom.  Mahboobe refused to allow the defendant to […]

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Posted by Massachusetts Legal Resources - March 16, 2018 at 9:09 pm

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Brown v. Woods Mullen Shelter/Boston Public Health Commission (Lawyers Weekly No. 09-001-17)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 16-805-C                                                                         JASON BROWN                                                                                v.                                                      WOODS MULLEN SHELTER/                                        BOSTON PUBLIC HEALTH COMMISSION                                        MEMORANDUM OF DECISION AND ORDER ON                            DEFENDANT’S MOTION FOR SUMMARY JUDGMENT     Plaintiff Jason Brown, appearing pro se, has brought what appears to be a three-claim complaint against the owner-operator of the Woods Mullen Shelter, a public homeless shelter located in Boston.  All claims arise out of the plaintiff’s expulsion from the shelter on August 10, 2014, when Woods Mullen staff informed Mr. Brown that he would not be permitted to enter the facility as a resident with even medically prescribed marijuana.[1]  As a matter of policy, the Boston Public Health Commission (which manages the shelter) does not allow marijuana or other controlled substances – whether for medical reasons or otherwise – onto its property.  According to Commission Director of Emergency Shelter Services Elizabeth Henderson, “[t]he Commission is constantly striving to monitor and remove substances from the shelter, whether that is [sic] marijuana, alcohol, drugs, unmarked prescription drugs and other similar substances.  The Commission treats marijuana of any nature as it does alcohol and prohibits it from its shelters.”  (Henderson Aff. at para. 6)(emphasis supplied).[2]  Plaintiff refused to leave the shelter, and shelter staff summoned the Boston Police.  When efforts by the police to escort plaintiff off of the site were unsuccessful, Mr. Brown was arrested for trespassing. Plaintiff has brought claims for negligence, negligent infliction of emotional distress and unspecified “civil rights” violations.  These claims are addressed exclusively to Mr. Brown’s expulsion from the Woods Mullen Shelter by the Boston Public Health Commission, and do not reach his arrest at the hands of the Boston Police Department.[3]  The defendant has moved for summary judgment on all counts.  The Court conducted a hearing in respect to this motion on August 28, 2017, at which hearing the plaintiff and counsel for Woods Mullen Shelter/Boston Public Health Commission appeared and presented arguments.  For the reasons which follow, the defendant’s Motion for Summary Judgment shall be ALLOWED IN PART and DENIED IN PART. DISCUSSION The defendant’s first contention is that the Complaint’s claims for negligence and negligent infliction of emotional distress are barred by the plaintiff’s failure to make proper presentment of such claims to the Commission’s chief executive.  The Court agrees. Under G.L. c. 258, _ 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G.L. c. 258, _ 1 as its “nominal chief executive officer or board,” within two years after the cause of action arose.  In the case of the Boston Public Health Commission, the chief executive […]

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Posted by Massachusetts Legal Resources - September 27, 2017 at 6:54 pm

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Commonwealth v. Brown (Lawyers Weekly No. 10-151-17)

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-11669   COMMONWEALTH  vs.  TIMOTHY BROWN.       Middlesex.     March 10, 2017. – September 20, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1]     Homicide.  Felony-Murder Rule.  Home Invasion.  Robbery.  Firearms.  Joint Enterprise.  Accessory and Principal.  Practice, Criminal, Capital case, Instructions to jury, Argument by prosecutor, Opening statement, Jury and jurors, Voir dire, Presumptions and burden of proof.  Evidence, Joint venturer, Prior misconduct.       Indictments found and returned in the Superior Court Department on December 22, 2009.   The cases were tried before Sandra L. Hamlin, J.     David H. Mirsky for the defendant. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.     GAZIANO, J.  We address, in this opinion, the scope of criminal liability under the common-law felony-murder rule.  The charges stem from an attempted armed robbery and home invasion into a Lowell townhouse shared by Hector and Tony Delgado.  Two armed gunmen fatally shot the brothers during the botched robbery.  The defendant was not present at the scene.  The Commonwealth alleged that the defendant was liable as an accomplice to felony-murder because he supplied one of the gunmen with a pistol and provided hooded sweatshirts to the intruders to help them conceal their identities.  A Superior Court jury convicted the defendant of two counts of felony-murder in the first degree based on the predicate felonies of an attempted commission of armed robbery, home invasion, unlawful possession of a firearm, and unlawful possession of ammunition. The defendant raises the following claims on appeal:  (1) the Commonwealth failed to produce sufficient evidence to prove that he was a knowing participant in the felony-murders; (2) the judge provided erroneous instructions on shared intent and accomplice liability; (3) portions of the prosecutor’s opening statement and closing argument were improper; (4) the judge should have excluded prejudicial evidence of prior misconduct; (5) the judge asked improper voir dire questions of potential jurors; and (6) we should abolish the felony-murder rule.  The defendant also asks us to order a new trial under our extraordinary authority pursuant to G. L. c. 278, § 33E. We conclude that the Commonwealth introduced sufficient evidence to prove that the defendant knowingly participated in the underlying felonies and, therefore, was an accomplice to felony-murder.  We conclude also that the defendant’s other challenges do not raise error warranting reversal or a new […]

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Posted by Massachusetts Legal Resources - September 20, 2017 at 3:11 pm

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Commonwealth v. Brown (Lawyers weekly No. 11-039-17)

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   16-P-67                                         Appeals Court   COMMONWEALTH  vs.  TYRIEK BROWN.     No. 16-P-67.   Worcester.     February 6, 2017. – March 31, 2017.   Present:  Cypher, Milkey, & Neyman, JJ.     Firearms.  Evidence, Firearm.  Practice, Criminal, Argument by prosecutor.  Words, “Knowingly.”     Indictments found and returned in the Superior Court Department on December 13, 2013.   The cases were tried before William F. Sullivan, J.     Deborah Bates Riordan for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth.     MILKEY, J.  During an inventory search of the car that the defendant had been driving, a State trooper discovered a loaded handgun.  Based on this, the defendant was indicted on two related counts:  unlawful possession of a firearm, and unlawful possession of a loaded firearm.  See G. L. c. 269, § 10(a) & (n).  A Superior Court jury convicted him of those charges.[1]  His appeal primarily focuses on a question of law that the Supreme Judicial Court flagged without answering:  “whether, to be convicted of unlawful possession of a loaded firearm, a defendant must know that the firearm he possessed was loaded.”  Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7 (2012).  The Commonwealth maintains that proof of such knowledge is not required.  Although we are not unsympathetic to the textual arguments on which the Commonwealth relies, existing case law requires us to conclude that the Commonwealth must prove that the defendant knew that the gun was loaded.  We further conclude that the evidence here was legally insufficient to establish such knowledge, and that the defendant therefore is entitled to a judgment of acquittal on the indictment for unlawfully possessing a loaded firearm.  We otherwise affirm. Background.  On July 4, 2013, a State trooper stopped the car that the defendant was driving because of an inoperable tail light.  After learning that the defendant’s driver’s license had been suspended, the trooper placed him in custody.  Although the defendant had two passengers with him, neither possessed a valid license, and the trooper therefore determined that the car needed to be towed.  During an inventory search of the car, the trooper discovered a handgun in the console between the rear passenger seats.  There were five bullets in the gun’s magazine. While the defendant was being transported to the police station by a second trooper, he made various statements regarding the gun.[2]  He initially stated […]

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Posted by Massachusetts Legal Resources - April 1, 2017 at 3:42 am

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Brown, et al. v. Kalicki, et al. (Lawyers Weekly No. 11-153-16)

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-923                                        Appeals Court   PETER R. BROWN, trustee,[1] & others[2]  vs.  JAN H. KALICKI & another.[3]     No. 15-P-923.   Suffolk.     June 13, 2016. – October 20, 2016.   Present:  Cohen, Milkey, & Massing, JJ.     Real Property, Registered land, Littoral property, Certificate of title, Easement.  Land Court, Registration proceedings.  Adverse Possession and Prescription.       Civil actions commenced in the Land Court Department on September 29, 2011.   The cases were heard by Alexander H. Sands, III, J., on a motion for summary judgment.     Diane C. Tillotson for the defendants. Brian M. Hurley for the plaintiffs.     COHEN, J.  The plaintiffs are the respective owners of three parcels of registered land located at 3, 7, and 11 Davis Lane, a private way in the town of Harwich (town).  These parcels extend in a more or less southerly direction from Davis Lane to the shoreline of Nantucket Sound.  Over time, the shoreline has changed, and the parcels have accreted[4] significant portions of formerly submerged land. On September 29, 2011, the parcel owners filed supplemental petitions in the Land Court, seeking to amend their certificates of title.  Jan H. Kalicki and John Michael Hershey (interveners) moved to intervene as defendants, alleging that they had acquired prescriptive rights over the accreted land.  Upon informal consolidation of the cases for decision on the plaintiffs’ motions for summary judgment, the motion judge rejected the objections of the interveners and granted summary judgment to the plaintiffs. The question for the judge was whether the accreted beachfront took on the status of registered land as it formed, or whether registered status could be obtained only through court proceedings to amend the certificates of title.  The  judge ruled that the accreted beachfront automatically became registered, and, therefore, was protected from the interveners’ claims that they have a prescriptive easement to use the beach area on the plaintiffs’ land.  Applying well-established standards of review,[5] we affirm. Background.  The material facts are not in dispute.  The land comprising the plaintiffs’ parcels was registered in the 1920’s and 1930’s.[6]  Under the terms of each certificate of title, “[a]ll of said boundaries, except the water lines, are determined by the Court to be located as shown on” the associated Land Court plan.  Each of the registration plans shows and identifies the southern boundary of the subject […]

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Posted by Massachusetts Legal Resources - October 20, 2016 at 3:56 pm

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Brown v. Office of the Commissioner of Probation (Lawyers Weekly No. 10-161-16)

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   SJC-11987   HELEN BROWN  vs.  OFFICE OF THE COMMISSIONER OF PROBATION.       Suffolk.     March 7, 2016. – October 11, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]     Governmental Immunity.  Commonwealth, Claim against.  Judgment, Interest.  Interest.  Damages, Interest, Punitive, Attorney’s fees.  Practice, Civil, Interest, Costs, Attorney’s fees.       Civil action commenced in the Superior Court Department on August 13, 2007.   Following review by the Appeals Court, 84 Mass. App. Ct. 1109 (2013), a motion for postjudgment interest was considered by Paul E. Troy, J., and judgment was entered by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff. Sally A. VanderWeele, Assistant Attorney General, for the Office of the Commissioner of Probation. Jamie Goodwin, for Massachusetts Employment Lawyers Association & others, amici curiae, submitted a brief.     LENK, J.  In this case, we consider whether sovereign immunity bars a plaintiff who is awarded punitive damages, costs, and attorney’s fees as part of a judgment under G. L. c. 151B, § 9, from recovering postjudgment interest on those awards from a public employer.  The trial judge denied a request by the plaintiff, Helen Brown, for such interest, concluding that sovereign immunity has not been waived with respect to such interest, and judgment was entered accordingly.  A divided panel of the Appeals Court affirmed the judgment, see Brown v. Office of the Commissioner of Probation, 87 Mass. App. Ct. 729, 735 (2015), and we allowed the plaintiff’s application for further appellate review.  Because we conclude that G. L. c. 151B, § 9, does not waive sovereign immunity from liability for postjudgment interest, either expressly or by necessary implication, we affirm.[2] Background.  We recite only those facts necessary for understanding in context the question of law at issue here.  The plaintiff and a colleague sued the defendant, the office of the Commissioner of Probation, for sex discrimination, race discrimination, and retaliation, pursuant to the procedure set forth in G. L. c. 151B, § 9.  On February 9, 2011, a Superior Court jury found for the plaintiff on her retaliation claim,[3] and awarded $ 6,000 in compensatory damages and $ 500,000 in punitive damages.  The award of punitive damages was reduced to $ 108,000 by an order of remittitur.  […]

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Posted by Massachusetts Legal Resources - October 12, 2016 at 12:24 am

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Commonwealth v. Brown (Lawyers Weekly No. 10-086-16)

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   SJC-11671   COMMONWEALTH  vs.  MARQUISE BROWN.       Middlesex.     February 12, 2016. – June 17, 2016.   Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.     Homicide.  Firearms.  Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights, Confrontation of witnesses.  Evidence, Admissions and confessions, Voluntariness of statement, Hearsay, Common criminal enterprise, Joint enterprise, Telephone conversation, Relevancy and materiality.  Joint Enterprise.  Telephone.  Imprisonment, Inmate telephone calls.  Practice, Criminal, Capital case, Motion to suppress, Admissions and confessions, Voluntariness of statement, Waiver, Confrontation of witnesses, Instructions to jury, Request for jury instructions.       Indictments found and returned in the Superior Court Department on August 6, 2009.   A pretrial motion to suppress evidence was heard by John T. Lu, J., and the cases were tried before Kimberly S. Budd, J.     Gail S. Strassfeld for the defendant. Jamie Michael Charles, Assistant District Attorney (Christopher M. Tarrant, Assistant District Attorney, with him) for the Commonwealth.          SPINA, J.  The defendant, Marquise Brown, was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.  He also was convicted of illegally carrying a firearm, illegal possession of a loaded firearm, and illegal possession of ammunition.  On appeal the defendant asserts error in (1) the denial of his motion for a required finding of not guilty as to the theory of murder by extreme atrocity or cruelty; (2) the denial of his motion to suppress his statements to police; (3) the admission in evidence of accusations by police during the interrogations of the defendant; (4) the admission of a statement of the codefendant[1] under the joint venture exception to the hearsay rule; (5) the admission of recorded jailhouse telephone calls; (6) jury instructions on the theory of extreme atrocity or cruelty; and (7) jury instructions that precluded the jury from considering the defendant’s youth as to various issues.  The defendant claims that the cumulative effect of the various errors requires a new trial, pursuant to G. L. c. 278, § 33E.  We affirm the convictions and decline to exercise our powers under § 33E to reduce the degree of guilt or to order a new trial. 1.  Background.  The jury could have found the following facts.  Other details are reserved for discussion of specific issues.  On the evening of June […]

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Posted by Massachusetts Legal Resources - June 18, 2016 at 12:53 am

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Brown v. Office of the Commissioner of Probation (Lawyers Weekly No. 11-086-15)

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   14-P-1055                                       Appeals Court   HELEN BROWN  vs.  OFFICE OF THE COMMISSIONER OF PROBATION. No. 14-P-1055. Suffolk.     April 21, 2015. – August 4, 2015.   Present:  Green, Fecteau, & Agnes, JJ.     Public Employment.  Governmental Immunity.  Judgment, Interest. Damages, Punitive, Interest, Attorney’s fees.  Interest. Waiver.  Practice, Civil, Interest, Waiver, Attorney’s fees, Costs.       Civil action commenced in the Superior Court Department on August 13, 2007.   Following review by this court, 84 Mass. App. Ct. 1109 (2013), a motion for postjudgment interest was considered by Paul E. Troy, J., and judgment was entered by him.     Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff. Sally A. VanderWeele, Assistant Attorney General, for the defendant. David A. Russcol, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.      FECTEAU, J.  This case presents the novel issue of whether a plaintiff who recovers punitive damages as part of a judgment under the provisions of G. L. c. 151B, § 9, against a subdivision of the Commonwealth may be awarded postjudgment interest on that award and on the award of attorney’s fees and costs, or whether sovereign immunity bars such interest.[1]  The statutes relevant to the issue, including those under which the punitive damages were awarded, i.e., c. 151B, and G. L. c. 235, § 8 (interest on judgments), are silent on the matter.  Neither the Appeals Court nor the Supreme Judicial Court has squarely addressed the issue in a published opinion with respect to     c. 151B.  In Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 465 Mass. 584, 597‑598 (2013), the Supreme Judicial Court stated, “the general rule is that ‘the Commonwealth . . . is not liable for postjudgment interest in the absence of a clear statutory waiver of sovereign immunity in that regard,’” and “entities entitled to sovereign immunity are not liable for interest under G. L. c. 235, § 8, absent an unequivocal statutory waiver,” citing Chapman v. University of Mass. Med. Center, 423 Mass. 584, 586 (1996).  Thus, we must discern whether this case presents an exception to the general rule. In Todino v. Wellfleet, 448 Mass. 234, 238 (2007) (Todino), the court generally observed that “[m]unicipal liability implicates the doctrine of sovereign immunity, which protects the public treasury from unanticipated money judgments.  Sovereign immunity prohibits liability against the Commonwealth [and] . . . its instrumentalities […]

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Posted by Massachusetts Legal Resources - August 4, 2015 at 2:45 pm

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Commonwealth v. Brown (and a companion case) (Lawyers Weekly No. 10-020-15)

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-11570   COMMONWEALTH  vs.  ENFRID BROWN, JR. (and a companion case[1]).[2] Suffolk.     October 9, 2014. – February 11, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Homicide.  Practice, Criminal, Double jeopardy, Capital case,  Verdict.  Constitutional Law, Double jeopardy.       Indictments found and returned in the Superior Court on May 16, 1973.   Following review by this court, 367 Mass. 24 (1975) and 378 Mass. 165 (1979), motions for a new trial, filed on September 23, 2009, and July 26, 2012, were considered by Frank M. Gaziano, J.   A request for leave to appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk.     Ryan M. Schiff, Committee for Public Counsel Services, for William J. Johnson. Matthew Sears, Assistant District Attorney, for the Commonwealth. Robert L. Sheketoff, for Enfrid Brown, Jr., was present but did not argue.     HINES, J.  The defendants, Enfrid Brown, Jr., and William J. Johnson, were indicted on charges of murder and armed entry with the intent to commit a felony in connection with the 1973 death of the victim, Hakim A. Jamal.[3]  The defendants were convicted by a jury of murder in the first degree at their first trial.[4]  We reversed the first convictions on grounds not pertinent to this appeal and remanded for a new trial.  Commonwealth v. Brown, 367 Mass. 24, 32 (1975) (Brown I).  They were retried and again convicted.  We affirmed the second convictions.  Commonwealth v. Brown, 378 Mass. 165, 166 (1979) (Brown II). After various proceedings, which we detail below, the defendants filed a third[5] motion for a new trial in July, 2012, arguing that the jury’s initial report of not guilty verdicts in the first trial was in fact an acquittal of murder in the first degree on the theory of deliberate premeditation and the retrial on that same theory in the second trial violated their double jeopardy rights.  In a thoughtful memorandum of decision, a Superior Court judge denied the motion.  The defendants petitioned a single justice of this court, pursuant to the “gatekeeper” provision of G. L. c. 278, § 33E, for leave to appeal.  The single justice allowed the appeal to proceed on the question whether the jury’s initial verdict has the double jeopardy consequence, under Federal constitutional law and the statutory and […]

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Posted by Massachusetts Legal Resources - February 11, 2015 at 3:29 pm

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Commonwealth v. Brown (Lawyers Weekly No. 10-203-13)

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‑11454   COMMONWEALTH  vs.  MARQUISE BROWN. Middlesex.     September 4, 2013.  ‑  December 24, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Severability.  Due Process of Law, Sentence, Parole.  Parole.  Homicide.  Practice, Criminal, Sentence, Parole, Capital case.  Statute, Severability.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 6, 2012.   The case was reported by Botsford, J.     Michael A. Kaneb, Assistant District Attorney (Christopher M. Tarrant & Robert J. Bender, Assistant District Attorneys, with him) for the Commonwealth. Barbara Kaban, Committee for Public Counsel Services, for the defendant. The following submitted briefs for amici curiae: Marsha L. Levick, Emily C. Keller, & Lauren A. Fine, of Pennsylvania, for Juvenile Law Center & others. Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot.       SPINA, J.  This case is before us on a reservation and report from a single justice.  We must determine the effect of the United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), on the sentencing of juvenile defendants convicted of murder in the first degree under G. L. c. 265, § 1.  In Miller, the Supreme Court held that the mandatory imposition of life-without-parole sentences on homicide offenders who were juveniles at the time of their crimes violates the bar against cruel and unusual punishment under the Eighth Amendment to the United States Constitution.  Miller, 132 S. Ct. at 2469.  Additionally, we held today in Commonwealth v. Diatchenko, ante at   ,   (2013), that all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights.  We now hold that Brown is entitled to the benefit of Miller and Diatchenko and that he may not be sentenced to life without parole.  He may only be sentenced to the lesser punishment under G. L. c. 265, § 2, of mandatory life in prison with the possibility of parole set pursuant to the parole eligibility statute in effect at the […]

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Posted by Massachusetts Legal Resources - December 24, 2013 at 4:02 pm

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