Commonwealth v. Gomes (Lawyers Weekly No. 10-022-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us SJC-12290 COMMONWEALTH vs. JEREMY D. GOMES. February 5, 2018. Practice, Criminal, Assistance of counsel, Request for jury instructions. Identification. Evidence, Identification. In 2015, we affirmed Jeremy D. Gomes’s convictions of mayhem and breaking and entering a vehicle in the nighttime with intent to commit a felony. Commonwealth v. Gomes, 470 Mass. 352, 378 (2015). At trial, “[t]he defendant requested that the judge provide a jury instruction regarding eyewitness identification that essentially mirrored a model instruction that had become effective in New Jersey approximately one week before the defendant’s trial commenced.” Id. at 357 & n.10, citing State v. Henderson, 208 N.J. 208, 219, 228-229 (2011). The judge instead gave the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979) (Appendix). Gomes, supra at 353. We concluded that the judge did not abuse his discretion in doing so where the defendant failed to furnish “any expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine whether the principles in the defendant’s proposed instruction were ‘so generally accepted’ that it would be appropriate to instruct the jury regarding them . . . and where there was an instruction approved by this court that was not erroneous but, at worst, inadequate and incomplete.” Id. at 359-360. In that opinion, however, “[a]fter reviewing the scholarly research, analyses by other courts, amici submissions, and the [Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence], we conclude[d] that there are various principles regarding eyewitness identification for which there is a near consensus in the relevant scientific community and that it is appropriate to revise the Rodriguez instruction to include them.” Id. at 367. We therefore proposed a provisional model eyewitness identification instruction to be given in trials commencing after the date of the Gomes opinion. Id. at 376 (new instruction intended to have no retroactive application). The defendant subsequently moved for a new trial, arguing that he was deprived of the effective assistance of counsel because his trial counsel failed to furnish the judge with the expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine that the principles in the defendant’s proposed instruction were generally accepted in the relevant scientific community. The motion […]
Commonwealth v. Gomes (Lawyers Weekly No. 10-168-16)
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-11427 COMMONWEALTH vs. JOSEPH GOMES. Suffolk. April 8, 2016. – October 26, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1] Homicide. Armed Assault with Intent to Murder. Assault and Battery by Means of a Dangerous Weapon. Joint Enterprise. Intent. Evidence, Joint venturer, Intent, Relevancy and materiality, Spontaneous utterance, Identification, Hearsay, Motive. Jury and Jurors. Identification. Practice, Criminal, Capital case, Jury and jurors, Question by jury, Instructions to jury, Request for jury instructions. Indictments found and returned in the Superior Court Department on May 2, 2007. The cases were tried before Raymond J. Brassard, J. David Keighley for the defendant. Teresa K. Anderson, Assistant District Attorney (Julie Sunkle Higgins, Assistant District Attorney, & Gretchen Lundgren with her) for the Commonwealth. BOTSFORD, J. In December, 2010, a Superior Court jury convicted the defendant, Joseph Gomes, of murder in the first degree and of various related offenses involving the use of a dangerous weapon. The charges arose from a drive-by shooting incident that took place in Boston on February 13, 2007, leaving Fausto Sanchez dead and several other young men wounded. In this direct appeal from his convictions, the defendant argues that the judge erred by (1) denying his motion for a required finding of not guilty; (2) admitting in evidence certain items, including drugs, cash, and guns, that were seized from an apartment building owned by his parents; (3) permitting jurors to pose questions to witnesses, three of which were prejudicial; (4) admitting or excluding certain testimonial evidence; and (5) declining to instruct the jury on the theory of transferred intent. The defendant also requests relief pursuant to G. L. c. 278, § 33E. We affirm the defendant’s convictions and decline to grant relief pursuant to § 33E. Background. a. Facts. We summarize the trial evidence in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Whitaker, 460 Mass. 409, 410 (2011). In February, 2007, several members of the Gomes and DaSilva families lived in the same apartment building on Langdon Street in the Roxbury section of Boston. The defendant’s parents owned the building and lived in an apartment on the second floor; the defendant’s sister, brother-in-law, and nephew, Anthony DaSilva, lived in the first-floor apartment. Anthony and the defendant’s original codefendant, Emmanuel DaSilva, are cousins.[2] […]
Commonwealth v. Gomes (Lawyers Weekly No. 10-002-15)
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-11537 COMMONWEALTH vs. JEREMY D. GOMES. Berkshire. September 2, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Request for jury instructions, Instructions to jury. Indictments found and returned in the Superior Court Department on October 24, 2011. The cases were tried before by John A. Agostini, J. The Supreme Judicial Court granted an application for direct appellate review. John Fennel, Committee for Public Counsel Services, for the defendant. John Bossé, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Daniel F. Conley, District Attorney, & Cailin M. Campbell, Assistant District Attorney, for District Attorney for the Suffolk District. Lisa J. Steele for Massachusetts Association of Criminal Defense Lawyers. David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Nathalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley for American Psychological Association & another.2 M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan for the Innocence Network. GANTS, C.J. In the early morning of September 10, 2011, the defendant slashed the face of the victim, Zachary Sevigny, with a box cutter while the victim was sitting in the driver’s seat of his vehicle. A Superior Court jury found the defendant guilty of mayhem, in violation of G. L. c. 265, § 14; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b); and breaking and entering a vehicle in the nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16.[1] On appeal, the defendant claims that the judge erred by giving the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), rather than the instruction he requested, which would have informed the jury about various scientific principles regarding eyewitness identification. We conclude that the judge did not err by declining to instruct the jury about these principles where the defendant offered no expert testimony, scholarly articles, or treatises that established that these principles were “so generally accepted that . . . a standard jury instruction stating [those principles] would be appropriate.” Commonwealth v. Santoli, 424 Mass. 837, 845 (1997), citing Commonwealth v. Hyatt, 419 Mass. 815, 818-819 […]
Commonwealth v. Gomes (Lawyers Weekly No. 10-075-13)
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‑11278 COMMONWEALTH vs. MICHAEL S. GOMES. May 8, 2013. Practice, Criminal, Sentence, Comment by judge. Judge. Six years after his convictions were affirmed, see Commonwealth v. Gomes, 61 Mass. App. Ct. 1111 (2004), and four years after the denial of his motion for a new trial was affirmed, see Commonwealth v. Gomes, 66 Mass. App. Ct. 1111 (2006), the defendant filed a motion for relief from unlawful sentence. See Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The motion alleged that the trial judge perceived the defendant’s trial testimony as perjurious, and then improperly considered his testimony in imposing sentence. The judge stated during sentencing, “I was also — I’m also affected by the testimony of the defendant himself who told a story that was really not believable at all.” The motion was denied by a different judge, as the trial judge had retired. The Appeals Court affirmed the denial in a decision pursuant to its rule 1:28. See Commonwealth v. Gomes, 81 Mass. App. Ct. 1122 (2012). We granted the defendant’s application for further appellate review. Our common law forbids a judge from considering a defendant’s perceived perjured trial testimony in determining the punishment imposed for a criminal conviction. See Commonwealth v. Coleman, 390 Mass. 797, 806-808 (1984). Consideration at sentencing of such testimony is error that creates a substantial risk of a miscarriage of justice, even where the sentence imposed does not exceed the prosecutor’s recommendation, as here. Id. at 810. The trial judge did not merely discredit the defendant’s testimony, she implied that it was perjured and she acknowledged that it “affected” her. We infer that the judge considered the defendant’s testimony in imposing sentence. Because sentencing was improper, the defendant must be resentenced. The defendant’s sentences are hereby vacated and the matter is remanded for resentencing. So ordered. Ethan C. Stiles for the defendant. Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth. Full-text Opinions