Posts tagged "1000315"

Commonwealth v. Johnson (Lawyers Weekly No. 10-003-15)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJC-11567 COMMONWEALTH vs. KENNETH JOHNSON. Suffolk. 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 June 11, 2001. Following review by the Appeals Court, 74 Mass. App. Ct. 1129 (2009), the cases were tried before Patrick F. Brady, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Brad P. Bennion for the defendant. Cailin M. Campbell, Assistant District Attorney (David S. Bradley, Assistant District Attorney, with her) for the Commonwealth.   David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Natalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley, for American Psychological Association & another, amici curiae, submitted a brief.   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, amicus curiae, submitted a brief.2 ANTS, C.J.  In Commonwealth v. Franklin, 465 Mass. 895, 912 (2013), we recognized “that eyewitness identification may be an important issue at trial even where no eyewitness made a positive identification of the defendant as the perpetrator, but where eyewitnesses have provided a physical description of the perpetrator or his clothing, or have identified a photograph in an array as someone who looks like the perpetrator,” and we declared that, “where requested by the defendant, a judge should provide specific guidance to the jury regarding the evaluation of such eyewitness testimony through some variation of the approved identification instruction.”  Here, the eyewitnesses described only the defendant’s gender and race, and the color of his shorts; identified other individuals as the perpetrator when shown a live lineup; and made no in-court identification.  The trial judge declined the defendant’s request to give a variant of the approved identification instruction that included the directive, “You may take into account whether a witness ever participated in an identification procedure and failed to identify the defendant as the perpetrator.”  We conclude that the judge did not abuse his discretion in declining to give the proposed instruction where there was no positive identification and no other eyewitness testimony that significantly incriminated the defendant.  Therefore, we affirm the defendant’s convictions.[1] Background.  On December 10, 2004, the defendant was convicted by a Superior Court jury of (1) assault by […]


Posted by Massachusetts Legal Resources - January 12, 2015 at 11:30 pm

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