Commonwealth v. Riley (Lawyers Weekly No. 11-117-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-560 Appeals Court COMMONWEALTH vs. MICHAEL RILEY. No. 13-P-560. Norfolk. April 4, 2014. – September 19, 2014. Present: Graham, Wolohojian, & Milkey, JJ. Constitutional Law, Public trial. Practice, Criminal, Public trial, New trial. Indictments found and returned in the Superior Court Department on September 7, 2005. The case was tried before Barbara A. Dortch-Okara, J., and a motion for a new trial was considered by her. Following review by this court, 77 Mass. App. Ct. 1102 (2010), a motion for a new trial was heard by Kenneth J. Fishman, J. Joanne T. Petito for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. WOLOHOJIAN, J. The defendant appeals from the denial of his motion for new trial, contending that his right to a public trial under the Sixth Amendment to the United States Constitution was violated when a court officer prevented the defendant’s sister from entering the courtroom because “the lawyers were talking to the judge.” This occurred on the morning of the first day of trial — but before the trial began. The motion judge found that the sister was turned away when the court was not in session. Although the parties have asked us to determine whether the defendant’s Sixth Amendment right was violated in the circumstances presented, we need not reach that question because we determine that, even were we to assume the defendant’s right was infringed, he has not shown that he is entitled to a new trial. We accordingly affirm. The motion judge, after an evidentiary hearing,[1] made the following written findings. “The defendant’s case was called for trial on November 13, 2007. The defendant’s sister Ayges, arrived at Dedham Superior Court at around 9:00 a.m. on the first day of her brother’s trial. Ayges went through court security and was directed to the courtroom where her brother’s trial was to take place. When she approached the courtroom, Ayges observed that the courtroom door was open. She saw many people waiting outside of the courtroom, including one person she recognized as the victim’s grandmother. When Ayges peered into the courtroom, she saw her brother, the defendant, and lawyers standing next to the bench, talking to the judge. She did not see anyone else in the courtroom; it was otherwise empty.[[2]] Accordingly, the […]
Commonwealth v. Riley (Lawyers Weekly No. 10-071-14)
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‑10974 COMMONWEALTH vs. MICHAEL RILEY. Plymouth. December 6, 2013. ‑ April 15, 2014. Present: Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Practice, Criminal, Capital case, Assistance of counsel, New trial, Required finding, Instructions to jury, Costs. Malice. Intent. Evidence, Intent, Scientific test, Prior misconduct, Relevancy and materiality. Indictment found and returned in the Superior Court Department on March 23, 2007. The case was tried before Charles J. Hely, J., and motions for authorization of funds and for a new trial were considered by him. Dennis Shedd for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In 2007, a Plymouth County grand jury returned indictments charging the defendant and his wife, Carolyn Riley,[1] with the murder of their four year old daughter, Rebecca. The defendant and Carolyn were tried separately in 2010. Carolyn was convicted of murder in the second degree; the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. Before us is the defendant’s appeal from his conviction and from the denial of his motions for a new trial and for funds to retain a toxicologist. The defendant argues the following: (1) his trial counsel was ineffective in a number of respects; (2) his motion for a required finding of not guilty on the murder charge should have been allowed because there was insufficient evidence of malice; (3) the prosecutor improperly and excessively relied on evidence of the defendant’s bad character that was unfairly prejudicial; and (4) the judge abused his discretion in denying the defendant’s motion for a new trial without a hearing and the defendant’s related posttrial motion for funds to retain a toxicologist. Last, the defendant asks us to use our power under G. L. c. 278, § 33E, to reduce his conviction to involuntary manslaughter. We affirm the defendant’s judgment of conviction and the denial of his new trial motion and motion for funds, and we decline to reduce his conviction to a lesser degree of guilt. 1. Background. We summarize the facts as the jury could have found them, reserving certain details for our discussion of the issues raised. The defendant and Carolyn had three children: Gerard, […]
Commonwealth v. Riley (Lawyers Weekly No. 11-116-13)
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 11‑P‑846 Appeals Court COMMONWEALTH vs. CAROLYN RILEY. No. 11‑P‑846. Plymouth. January 11, 2013. ‑ September 20, 2013. Present: Cohen, Green, & Vuono, JJ. Homicide. Evidence, Scientific test, Prior misconduct. Malice. Indictment found and returned in the Superior Court Department on March 23, 2007. The case was tried before Charles J. Hely, J. Chrystal A. Murray for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. COHEN, J. A grand jury returned indictments charging the defendant, Carolyn Riley, and her husband, Michael Riley, with murder in the first degree in connection with the December, 2006, death of their four year old daughter, Rebecca, from an overdose of clonidine and other medications administered to her by her parents. After this court determined that the evidence before the grand jury was sufficient to sustain the indictments, see Commonwealth v. Riley, 73 Mass. App. Ct. 721, 722-726, 729-731 (2009), the defendant and her husband were tried separately in the Superior Court. In the defendant’s case, the jury returned a verdict of guilty of the lesser included offense of murder in the second degree.[1] She appeals, arguing that (1) the judge erroneously admitted the testimony of the Commonwealth’s forensic toxicologist without conducting a Daubert–Lanigan hearing;[2] (2) the evidence was insufficient to prove third prong malice and, hence, the jury should not have been instructed on that form of malice; and (3) the judge erroneously allowed prejudicial character evidence to be admitted. Discerning no merit in these arguments, we affirm. The facts that the jury could have found are not significantly different from those presented to the grand jury and are well summarized in Commonwealth v. Riley, supra at 722-726. We refer to relevant trial evidence and procedural facts in conjunction with our discussion of the issues raised. 1. Testimony of Commonwealth’s forensic toxicologist.Before trial, the defendant filed a motion in limine seeking a Daubert–Lanigan hearing on the scientific reliability and admissibility of the testimony of Dr. George S. Behonick, who, at the time of Rebecca’s death, was the director of forensic toxicology at the University of Massachusetts Memorial Medical Center in Worcester. The defendant’s challenge was predicated on the assumption that Dr. Behonick would opine as to the amount of clonidine consumed by Rebecca prior to her death based upon the level of […]
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Graziano, et al. v. Riley, et al. (Lawyers Weekly No. 11-025-13)
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 12‑P‑403 Appeals Court ANTHONY W. GRAZIANO & another[1] vs. VIRGINIA M. RILEY[2] & another.[3] No. 12‑P‑403. Norfolk. October 9, 2012. ‑ February 14, 2013. Present: Berry, Green, & Meade, JJ. Easement. Drain. Real Property, Easement, Drain, Nuisance, Riparian rights. Nuisance. Civil action commenced in the Superior Court Department on September 12, 2005. The case was heard by John P. Connor, Jr., J. Gerald T. Anglin for the defendants. Peter L. Eeley for the plaintiffs. GREEN, J. After a jury-waived trial, a Superior Court judge found that the defendants had erected a stone and earthen berm that blocked the path of a deeded drainage easement serving the plaintiffs’ property, but that the berm’s continued existence for more than forty years barred the plaintiffs from relying on the rights granted by the easement. The judge nonetheless ordered the defendants to remove the berm, based on his conclusion that its presence constitutes a continuing nuisance. Because the defendants erected the berm before the doctrinal change to Massachusetts common-law riparian rights announced in Tucker v. Badoian, 376 Mass. 907 (1978), however, its erection did not constitute a nuisance under then applicable law; we accordingly reverse the judgment concerning the plaintiff’s nuisance claim. Background. We summarize the findings of fact entered by the trial judge. The plaintiffs purchased 42 Deep Run Road in Cohasset on July 13, 2004. Abutting the plaintiffs’ property to the rear, and down gradient, is property owned by the defendant Virginia M. Riley, as trustee of V.M.R. Nominee Realty Trust (trust). Riley initially purchased the property with her husband, the defendant John J. Riley, on May 20, 1966; the couple built a home on the property that year and have resided there from that time to the present. The residence on the plaintiffs’ property was already in existence at the time the defendants purchased their property. Both properties slope downward in an easterly direction toward Jerusalem Road, and then to the Atlantic Ocean. Accordingly, surface water naturally flows from west to east across both properties, from the plaintiffs’ to the defendants’ property. A 1953 subdivision plan shows a drainage easement that begins on the westerly side of Deep Run Road, opposite the plaintiffs’ property, and then runs under the road and across the plaintiffs’ property onto the defendants’ […]