Commonwealth v. Unitt (and six companion cases) (Lawyers Weekly No. 11-017-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-29 Appeals Court COMMONWEALTH vs. PETER J. UNITT, THIRD (and six companion cases[1]). No. 16-P-29. Middlesex. December 7, 2016. – February 28, 2017. Present: Cypher, Maldonado, & Blake, JJ. Bail. Forfeiture Proceeding. Practice, Criminal, Restitution. Restitution. Indictments found and returned in the Superior Court Department on September 23, 2010. A bail forfeiture proceeding was had before Sandra L. Hamlin, J. Dennis M. Toomey for Peter J. Unitt, III. James E. McCall for Lee Peck Unitt. Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth. BLAKE, J. The married defendants, Peter J. Unitt, III (Peter), and Lee Peck Unitt (Lee), jointly operated a law office in Woburn prior to their arraignment on numerous crimes related to the theft and embezzlement of their clients’ funds.[2] Their adult children, Jade Unitt (Jade) and Peter Unitt, IV (Peter, IV), posted bail on their behalf.[3] Neither defendant defaulted, and each subsequently was convicted of a subset of the charged crimes. This appeal presents the question whether, where no default occurred, a judge of the Superior Court had the authority to order that the bail posted on the defendants’ behalf be forfeited and applied toward the restitution they owed. Because we conclude that under the circumstances presented by this case, the judge did not have such authority, we reverse the order of forfeiture. Background. On October 18, 2010, both Peter and Lee were arraigned on multiple indictments in the Superior Court, at which time bail was set at $ 50,000 cash for each defendant. On December 9, 2010, Jade, the defendants’ adult daughter, posted bail on behalf of Lee and was named as surety on the recognizance. On February 16, 2011, Peter, IV, the defendants’ adult son, posted bail on behalf of Peter and was named as surety on the recognizance. Both recognizance forms, which are identical, warn the surety of the risk of forfeiting the money posted for bail if the defendant defaults, but list no other potential risks of forfeiture. Between their arraignments in 2010, and their convictions in 2013, each of the defendants appeared for court as required under the recognizances, thereby satisfying the conditions of their bail. In April of 2013, a jury convicted Lee of four counts of larceny and one count of embezzlement. Thereafter, the judge adjudicated her […]
Commonwealth v. Mendez (and 11 companion cases) (Lawyers Weekly No. 10-034-17)
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-11869 SJC-11870 COMMONWEALTH vs. CHARLES MENDEZ (and eleven companion cases[1]). Bristol. October 11, 2016. – February 22, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Homicide. Firearms. Robbery. Assault and Battery by Means of a Dangerous Weapon. Felony-Murder Rule. Constitutional Law, Search and seizure, Reasonable suspicion. Search and Seizure, Reasonable suspicion. Practice, Criminal, Capital case, Motion to suppress, Trial of indictments together, Argument by prosecutor, Instructions to jury. Witness, Credibility. Jury and Jurors. Indictments found and returned in the Superior Court Department on January 7, 2011, and February 11, 2011. Pretrial motions to suppress were heard by Renee P. Dupuis, J., and a motion for joinder was also heard by her; and the cases were tried before D. Lloyd Macdonald, J. Cathryn A. Neaves for Charles Mendez. Jennifer H. O’Brien for Tacuma Massie. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. BUDD, J. On the evening of November 18, 2010, Edward Platts was shot and killed while sitting in his motor vehicle at a housing complex in Fall River. The defendants, Charles Mendez and Tacuma Massie, were each indicted on charges of (1) murder in the first degree[2]; (2) carrying a firearm without a license; (3) carrying a loaded firearm without a license; and (4) armed robbery. They additionally were charged with assault and battery by means of a dangerous weapon and armed robbery on separate indictments in connection with a separate incident involving a different individual. The motion judge denied the defendants’ motions to suppress evidence seized in connection with their warrantless stop. At the conclusion of a joint jury trial in September, 2013, the defendants were convicted of all charges. Each defendant filed a timely notice of appeal. Both assert the following errors: the denial of his motion to suppress; the joinder at trial of the indictments for two separate incidents; and portions of the prosecutor’s closing argument. Massie further argues that there was insufficient evidence to convict him of the armed robbery and felony-murder. Each defendant separately asserts additional errors pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981). We affirm the defendants’ convictions and decline to exercise our extraordinary power under G. L. c. 278, § 33E. Background. We summarize the facts in the light most favorable to […]
Adoption of Yadira (and two companion cases) (Lawyers Weekly No. 10-030-17)
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-12113 ADOPTION OF YADIRA (and two companion cases).[1] Suffolk. November 7, 2016. – February 14, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Adoption, Dispensing with parent’s consent. Minor, Adoption. Parent and Child, Adoption, Dispensing with parent’s consent to adoption. Regulation. Practice, Civil, Adoption, Report. Petitions filed in the Suffolk Division of the Probate and Family Court Department on March 20, 2014. A motion to deny the petitions was heard by Virginia M. Ward, J. The Supreme Judicial Court granted an application for direct appellate review. Jeanne M. Kaiser for the mother. Brian Pariser for Department of Children and Families. Nena S. Negron for Yadira & others. Michael F. Kilkelly, for the father, was present but did not argue. BUDD, J. We granted an application for direct appellate review in this case to determine whether the Code of Federal Regulations, 45 C.F.R. § 400.115(c) (1998), allows the Department of Children and Families (department) to petition for termination of parental rights on behalf of unaccompanied refugee minors whose parents also are present in the United States. We hold that the regulations do allow such petitions. Background. In December, 2010, four minor siblings arrived in Massachusetts from a Nepalese refugee camp through the Federal Unaccompanied Refugee Minors Program (minor refugee program). See Custody of Victoria, 473 Mass. 64, 65 n.1 (2015). The department placed two of the children in a foster home in Fitchburg and the other two in a foster home in Ashby.[2] No later than April, 2013, the children’s mother and father had entered the United States and settled in North Dakota and Ohio, respectively. Since coming to the United States, both the mother and the father have had “very limited contact” with the children. In March, 2014, the department petitioned the Probate and Family Court to free the children for adoption by terminating parental rights pursuant to G. L. c. 210, § 3.[3] The mother moved to deny the department’s petition. The judge denied the mother’s motion and subsequently reported the matter to the Appeals Court. In her report, the judge framed the following question for the court’s consideration: “Is it permissible under the Code of Federal Regulations for the [department] to proceed to seek a termination of parental […]
Adoption of Zak (and two companion cases) (Lawyers Weekly No. 11-004-17)
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-393 Appeals Court ADOPTION OF ZAK (and two companion cases).[1] No. 16-P-393. Norfolk. October 7, 2016. – January 9, 2017. Present: Hanlon, Sullivan, & Blake, JJ. Adoption, Visitation rights, Standing. Parent and Child, Adoption. Minor, Adoption, Visitation rights. Practice, Civil, Adoption, Standing. Petitions filed in the Norfolk County Division of the Juvenile Court Department on May 19, 2010, and September 9, 2011. Following review by this court, 87 Mass. App. Ct. 540 (2015), the cases were heard by Dana Gershengorn, J. Julia A. B. Pearson for the mother. Sherrie Krasner for the father. Kari B. Kipf Horstmann for Department of Children and Families. Steven B. Rosenthal for Zak. Yvette L. Kruger for Carol & another. SULLIVAN, J. In this case we consider whether a mother and father, whose parental rights have been terminated, have standing to participate in a hearing on posttermination visitation under the following circumstances. Termination of parental rights and posttermination visitation were originally litigated in a single trial. The termination of parental rights was affirmed on appeal, but the matter was remanded to the Juvenile Court on the question of posttermination visitation. The parents were not notified of the remand hearing and did not participate. Following the entry of an “amended order for posttermination/adoption visitation” (posttermination visitation order), the parents appealed again to this court. We now conclude that the remand hearing was a continuation of the original proceeding, and that the parents had standing to participate in the remand hearing. Accordingly, we vacate the posttermination visitation order and remand for further proceedings. Background. In Adoption of Zak, 87 Mass. App. Ct. 540 (2015) (Zak I), we affirmed the entry of decrees by a judge of the Juvenile Court terminating parental rights and dispensing with consent to adoption, but remanded on the question of posttermination visitation. Although the judge had considered the effect of domestic violence on the question of termination of parental rights, her order on the visitation issue was silent as to the impact of domestic violence on the question of posttermination visitation.[2] We remanded the case for further findings and rulings in order to permit the judge to consider that issue. We also noted the authority of the judge to consider whether circumstances had changed since the issuance of the original […]
Commonwealth v. Cawthron (and three companion cases) (Lawyers Weekly No. 11-003-17)
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 15-P-1751 Appeals Court COMMONWEALTH vs. KEITH CAWTHRON (and three companion cases[1]). No. 15-P-1751. Middlesex. November 10, 2016. – January 6, 2017. Present: Trainor, Meade, & Hanlon, JJ. Controlled Substances. Practice, Criminal, Motion to suppress, Admissions and confessions. Evidence, Admissions and confessions. Constitutional Law, Admissions and confessions, Investigatory stop. Due Process of Law, Police custody. Indictments found and returned in the Superior Court Department on April 24, 2014. Pretrial motions to suppress evidence were heard by Kenneth W. Salinger, J., and a motion for reconsideration was considered by him. An application for leave to prosecute an interlocutory appeal was allowed by Margot Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Timothy Ferriter, Assistant District Attorney, for the Commonwealth. Thomas M. Glynn for Keith M. Cawthron. Daniel E. Callahan, Committee for Public Counsel Services, for Craig Flodstrom. MEADE, J. A Middlesex County grand jury indicted the defendant, Keith M. Cawthron, and the codefendant, Craig Flodstrom, for trafficking in an amount more than eighteen and less than thirty-six grams of oxycodone, in violation of G. L. c. 94C, § 32E(c)(1), and conspiracy to traffic oxycodone, in violation of G. L. c. 94C, § 40. Prior to trial, the defendants moved to suppress the oxycodone and statements they made at the time they were stopped by the police. After conducting an evidentiary hearing, the motion judge issued findings and an order that allowed Cawthron’s motion to suppress in full, and allowed Flodstrom’s motion to suppress in part and denied it in part.[2] The Commonwealth timely noticed an appeal, and a single justice of the Supreme Judicial Court allowed the Commonwealth’s application for leave to pursue an interlocutory appeal and reported the matter to this court. See G. L. c. 278, § 28E; Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). This appeal presents the question whether the conduct of the police officers, during the course of an investigatory stop, elevated that stop to one of custodial interrogation requiring the recitation of Miranda rights. The motion judge determined that it did. We reverse. Background. Detective Michael Donovan and Detective Lieutenant Ryan Columbus of the Tewksbury police department testified at the motion hearing.[3] The motion judge made detailed findings of fact to support his order, as […]
Commonwealth v. Rosario (and a companion case) (Lawyers Weekly No. 11-156-16)
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-752 Appeals Court 15-P-753 COMMONWEALTH vs. CARLOS ROSARIO (and a companion case[1]). Nos. 15-P-752 & 15-P-753. Essex. May 17, 2016. – October 26, 2016. Present: Cypher, Blake, & Henry, JJ. Controlled Substances. Practice, Criminal, Identification of defendant in courtroom, Required finding, Disclosure of evidence. Constitutional Law, Identification. Due Process of Law, Identification. Evidence, Identification, Chain of custody, Disclosure of evidence, Cross-examination. “School Zone” Statute. Complaints received and sworn to in the Lawrence Division of the District Court Department on May 16, 2014. The cases were tried before Mark A. Sullivan, J. Daniel K. Sherwood for Carlos Rosario. Stephen E. Meltzer for Lylibeth Rosario. Quentin Weld, Assistant District Attorney, for the Commonwealth. CYPHER, J. In this consolidated appeal, the defendants, Carlos Rosario and Lylibeth Rosario, appeal from their convictions for distribution of heroin in violation of G. L. c. 94C, § 32(a), and a drug violation near a school or park in violation of G. L. c. 94C, § 32J. In addition, Carlos[2] was charged with possession of heroin in violation of G. L. c. 94C, § 34. The defendants filed a motion in limine to exclude any in-court identification of the defendants, which was denied. They argue that the trial judge committed error by admitting the confidential informant’s in-court identification in the absence of any pretrial identification procedure. They also argue that the chain of custody was inadequate to connect the drug evidence presented at trial to this case and, therefore, the evidence was insufficient to prove the drug charges beyond a reasonable doubt. Lylibeth also argues that she was not given pretrial notice of a map offered by the Commonwealth and admitted in evidence that supported the school zone charge. We affirm both defendants’ convictions. Background. On May 15, 2014, the Lawrence police department’s drug enforcement unit (unit) was conducting supervised controlled buys with the assistance of a paid confidential informant named William Demers. Detective Carmen Purpora searched Demers and the female who accompanied him for money and contraband before each controlled buy and then gave Demers marked currency to complete the drug transactions. Detective Purpora and Demers agreed that Demers would take off his hat and place it by his side to signal that a drug transaction had taken place. That morning, Demers and the unit […]
Beninati, et al. v. Borghi, et al. (and a companion case) (Lawyers Weekly No. 11-155-16)
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-953 Appeals Court ELIZABETH BENINATI & another[1] vs. STEVEN BORGHI & others[2] (and a consolidated case[3]). No. 15-P-953. Suffolk. May 16, 2016. – October 24, 2016. Present: Agnes, Massing, & Kinder, JJ. Contract, Construction of contract, Modification. Consumer Protection Act, Availability of remedy. Practice, Civil, Attorney’s fees. Damages, Attorney’s fees. Civil actions commenced in the Superior Court Department on May 24, 2012, and May 14, 2013. After consolidation, the case was heard by Janet L. Sanders, J.; a motion for attorney’s fees and costs was heard by her; and entry of final judgment was ordered by her. John W. Moran (Michael T. Grant with him) for Elizabeth Beninati. Charles R. Bennett, Jr., for Steven Borghi. Max D. Stern for Harold Dixon & others. Michael S. Marino, for Joseph Masotta & others, was present but did not argue. MASSING, J. The plaintiffs, Elizabeth Beninati and Joseph Masotta, together with defendants Steven Borghi and Linda Borghi, owned and operated a chain of fitness clubs licensing the “Work Out World” (WOW) trade name (collectively, WOW New England).[4] While actively involved in the management of WOW New England, Steven, working with an outside partner, defendant Harold Dixon, and using WOW New England’s inside information and resources, formed Blast Fitness Group, LLC (Blast), and opened a chain of similar clubs in the same geographic area, some using the WOW name, others using the name “Blast Fitness.” (We refer to the defendant clubs that Dixon and Steven controlled as the Blast clubs or, together with Blast, as the Blast defendants). After a jury-waived trial on two consolidated complaints,[5] a Superior Court judge found the Borghis and Dixon liable to Elizabeth, Masotta, and the other WOW New England owners for breach of fiduciary duty on the plaintiffs’ derivative claims and awarded approximately $ 4 million in damages. The judge held as a matter of law, however, that Dixon and the Blast defendants could not be liable for unfair competition under G. L. c. 93A because their misconduct involved only aiding and abetting Steven in the breach of his fiduciary duties. The judge also upheld corporate votes of the WOW New England companies removing the Borghis from management, and awarded attorney’s fees to Elizabeth under G. L. c. 156C, § 57, but not Masotta. On Elizabeth and Masotta’s appeal from the judge’s […]
Commonwealth v. Suters (and two companion cases) (Lawyers Weekly No. 11-145-16)
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-622 Appeals Court 15-P-623 15-P-624 COMMONWEALTH vs. MONIQUE L. SUTERS (and two companion cases[1]). Nos. 15-P-622, 15-P-623, & 15-P-624. Berkshire. May 9, 2016. – October 7, 2016. Present: Agnes, Massing, & Kinder, JJ. Search and Seizure, Probable cause, Fruits of illegal search, Consent, Emergency. Evidence, Result of illegal search. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Complaints received and sworn to in the Northern Berkshire Division of the District Court Department on January 10 and June 12, 2014. Pretrial motions to suppress evidence were heard by Michael J. Ripps, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth. James F. Petersen for the defendants. AGNES, J. In this case we consider the applicability of the attenuation exception to the exclusionary rule. Under this exception, evidence that would not have been obtained by the police but for an unlawful search or seizure is nonetheless admissible because the connection between the unlawful police conduct and the evidence seized is separated by an independent act by the defendant that is sufficient to dissipate the taint of the initial unlawful search or seizure. See Commonwealth v. Martin, 457 Mass. 14, 22-23 (2010).[2] The cases come to us by interlocutory appeals from the allowance of the defendants’ motions to suppress evidence of unlawful amounts of raw marijuana and related paraphernalia discovered in the basement of the defendants’ home. For the reasons that follow, we agree with the motion judge that the initial entry by the police into the defendants’ home without a warrant was justified based on voluntary consent by an occupant, as well as the emergency exception. We also conclude, contrary to the judge’s ruling below, that the police were justified in entering a basement room, where a large quantity of marijuana was observed, to effect the arrest of one of the defendants for assault and battery on a police officer. Because the exclusionary rule should not be applied in such circumstances, we reverse. Background. We summarize the facts as found by the motion judge, supplemented with uncontroverted testimony […]
Thompson, et al. v. Civil Service Commission, et al. (and a companion case) (Lawyers Weekly No. 11-144-16)
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-330 Appeals Court PRESTON THOMPSON & others[1] vs. CIVIL SERVICE COMMISSION & another[2] (and a companion case[3]). No. 15-P-330. Suffolk. May 10, 2016. – October 7, 2016. Present: Cypher, Blake, & Henry, JJ. Civil Service, Police, Termination of employment, Testing, Reinstatement of personnel, Decision of Civil Service Commission. Labor, Police, Collective bargaining, Discharge. Municipal Corporations, Police, Collective bargaining. Police, Discharge, Collective bargaining. Public Employment, Police, Collective bargaining, Termination, Reinstatement of personnel. Administrative Law, Substantial evidence. Damages, Back pay. Civil actions commenced in the Superior Court Department on April 3, 2013. After consolidation, the case was heard by Judith Fabricant, J., on motions for judgment on the pleadings. Alan H. Shapiro (John M. Becker with him) for Preston Thompson & others. Helen G. Litsas for Boston Police Department. Amy Spector, Assistant Attorney General, for Civil Service Commission. BLAKE, J. Between 2001 and 2006, ten officers of the Boston police department (department) submitted hair samples to the department that tested positive for cocaine. In response, the department terminated their employment. The ten officers appealed the terminations to the Civil Service Commission (commission). After extensive hearings, the commission issued a decision upholding the terminations of Preston Thompson, Rudy Guity, Oscar Bridgeman, and William Bridgeforth (hereinafter, four officers), and overturning the terminations of Richard Beckers, Ronnie Jones, Jacqueline McGowan, Shawn Harris, Walter Washington, and George Downing (hereinafter, six reinstated officers or six officers), who were ordered to be reinstated with back pay and benefits to the date the commission hearings commenced. The department and each of the ten officers filed a complaint for judicial review.[4] A judge of the Superior Court affirmed the commission’s decision, modifying only the back pay and benefits awards for the six reinstated officers to the date of each of their respective terminations. The four officers appeal, claiming that the department lacked just cause for their terminations. The department cross-appeals, claiming that there was substantial evidence to warrant the termination of the six reinstated officers.[5] We affirm. Background. 1. Legal framework. A tenured civil service employee who is aggrieved by a disciplinary decision of an appointing authority may appeal to the commission. See G. L. c. 31, § 41. After finding facts anew, the commission then must determine, by a preponderance of the evidence, whether the appointing authority met […]
Commonwealth v. Iacoviello (and three companion cases) (Lawyers Weekly No. 11-125-16)
OTICE: 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-1818 Appeals Court COMMONWEALTH vs. ROBERT IACOVIELLO (and three companion cases[1]). No. 13-P-1818. Suffolk. April 8, 2016. – September 15, 2016. Present: Cypher, Katzmann, & Massing, JJ. Homicide. Practice, Criminal, Instructions to jury. Self-Defense. Wanton or Reckless Conduct. Intoxication. Evidence, Prior violent conduct. Accessory and Principal. Indictments found and returned in the Superior Court Department on December 20, 2007. The cases were tried before Patrick F. Brady, J., and a motion for a new trial, filed on May 6, 2014, was heard by him. Sara A. Laroche (Patricia L. Garin with her) for Robert Iacoviello. Willie J. Davis for James Heang. Cailin M. Campbell, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth. CYPHER, J. In the early morning hours of September 29, 2007, two groups converged in the dark near a baseball field behind Revere High School. One group consisted primarily of off-duty Revere police officers dressed in civilian clothes. The other group consisted of four local young men who were either members of or affiliated with a gang. Both groups had been drinking for much of the night. Heated, gang-related words were exchanged. Guns were fired from both sides. One person, off-duty Revere police Officer Daniel Talbot, was fatally wounded. A second person, defendant Robert Iacoviello, was charged with murder in the first degree, carrying a firearm without a license, and possession of a firearm without a firearm identification card. A third person, defendant James Heang, who had not been present during the fateful encounter, was charged with being an accessory after the fact in aid of Iacoviello and carrying a firearm without a license. In a joint trial, a jury found Iacoviello guilty of murder in the second degree, G. L. c. 265, § 1, and carrying a firearm without a license, G. L. c. 269, § 10(a).[2] The jury found Heang not guilty of carrying a firearm without a license, G. L. c. 269, § 10(a), but guilty of being an accessory after the fact, G. L. c. 274, § 4. The defendants appeal, raising issues they preserved during the proceedings below. Iacoviello primarily argues that the trial judge erred by declining to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. Heang primarily argues that the trial judge erred by prohibiting […]
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