Posts tagged "1002315"

Commonwealth v. McGhee (Lawyers Weekly No. 10-023-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11716   COMMONWEALTH  vs.  CRAIG McGHEE. Worcester.    December 1, 2014. – February 13, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Confining for Purpose of Stealing.  Jury and Jurors.  Practice, Criminal, Jury and jurors, Conduct of juror.       Indictments found and returned in the Superior Court Department on August 20, 2010.   The cases were tried before Richard T. Tucker, J.   The Supreme Judicial Court granted an application for direct appellate review.     Elizabeth Dembitzer for the defendant. Brett F. Dillon, Assistant District Attorney (Donna-Marie Haran, Assistant District Attorney, with him) for the Commonwealth.   LENK, J.  The defendant appeals from his convictions on two counts of “confin[ing] . . . or put[ting] any person in fear, for the purpose of stealing from a building, bank, safe, vault or other depository of money.”  G. L. c. 265, § 21.  Evidence was presented at trial that the defendant and another man intimidated victims into withdrawing funds from an automated teller machine (ATM) and handing those funds over to the defendant and the unidentified coventurer.  The defendant argues that these facts do not support a finding that he had the purpose required by G. L. c. 265, § 21.  We reject this argument.  We agree, however, with the defendant’s alternative assertion that the trial judge erred by failing to inquire into credible information that one of the jurors had slept through important portions of the evidence.  Because this was a structural error, we vacate the defendant’s convictions and remand for a new trial. 1.  Background.  The facts supported by the evidence at trial included the following.  In May, 2010, the defendant and his coventurer accosted the victims, James Fletcher, Thomas Brown, and John Wentworth, as they were walking toward their vehicle in a Worcester parking lot.  The defendant and his coventurer accused the victims, in a hostile and menacing manner, of being “up to trouble” and selling drugs.  They then ordered the victims to get into the vehicle.  The victims were frightened, and they cooperated with the defendant and his accomplice in the hope that they would not be hurt. Fletcher drove.  The defendant, who was aggressive and intermittently yelling, directed Fletcher to an ATM.  The defendant told Fletcher to get out of the vehicle, led Fletcher to the ATM, and ordered Fletcher to withdraw $ 150 from it.  Fletcher was […]

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Posted by Massachusetts Legal Resources - February 13, 2015 at 5:35 pm

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