Commonwealth v. Smith (Lawyers Weekly No. 10-034-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11723 COMMONWEALTH vs. DONOVAN K. SMITH. Worcester. November 6, 2015. – March 11, 2016. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Robbery. Attempt. Felony-Murder Rule. Constitutional Law, Admissions and confessions, Assistance of counsel. Evidence, Admissions and confessions, Videotape. Practice, Criminal, Admissions and confessions, Assistance of counsel, Capital case. Indictments found and returned in the Superior Court Department on December 7, 2010. A pretrial motion to suppress evidence was heard by Janet Kenton-Walker, J., and the cases were tried before John S. McCann, J. Aziz Safar for the defendant. Susan M. Oftring, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. A Superior Court jury found the defendant guilty of the attempted armed robbery and murder in the first degree of Michelle Diaz on theories of extreme atrocity or cruelty and felony-murder. In this direct appeal from his convictions, the defendant challenges the admission in evidence of his videotaped statement to the police, and the admission of an enhanced recording of a statement made by the defendant while he was left alone during the police interrogation. He requests relief pursuant to G. L. c. 278, § 33E. We conclude that the failure of the police to honor the defendant’s right to terminate questioning, a claim the defendant did not raise below, created a substantial likelihood of a miscarriage of justice and requires the reversal of the defendant’s convictions; the defendant is entitled to a new trial. 1. Background. From the evidence presented at trial, the jury could have found the following. On August 24, 2010, at approximately 12:45 P.M., Sara Ventura parked her automobile on Fairfax Road in Worcester. As she was getting out of the vehicle, she heard a loud scream and looked in the direction of the scream. She saw nothing, but a few seconds later, she heard what sounded like a gunshot. She then saw a young African-American man running very quickly down the street.[1] Around the same time, Carlos Tumer, who was in his apartment on Fairfax Road, heard a “pop” and looked outside the window, where he saw a woman, later identified as the victim, sitting in the driver’s seat of a Lexus automobile with the front passenger’s door open. Tumer also noticed a dark-skinned man wearing a black shirt […]