Commonwealth v. Britt (Lawyers Weekly No. 10-078-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑10877 COMMONWEALTH vs. TONIEKA BRITT. Suffolk. January 11, 2013. ‑ May 10, 2013. Present: Spina, Cordy, Botsford, Gants, & Duffly, JJ. Homicide. Armed Assault with Intent to Murder. Firearms. Intent. Evidence, Hearsay, Intent, Self‑defense, Joint venturer, Argument by prosecutor. Constitutional Law, Assistance of counsel. Practice, Criminal, Hearsay, Argument by prosecutor, Instructions to jury, Assistance of counsel, Capital case. Self‑Defense. Joint Enterprise. Indictments found and returned in the Superior Court Department on March 7, 2008. The cases were tried before Frank M. Gaziano, J., and a motion for a new trial was considered by him. Joseph A. Hanofee for the defendant. Teresa K. Anderson, Assistant District Attorney (David J. Fredette & Julie Sunkle Higgins, Assistant District Attorneys, with her) for the Commonwealth. SPINA, J. The defendant was convicted of the murder of Jessie Calhoun with deliberate premeditation and the murder of Robert Turner with deliberate premeditation and extreme atrocity or cruelty. She also was convicted of armed assault with intent to murder Antoine Phillips and unlawful possession of a firearm.[1] While her appeal was pending in this court she filed a motion for a new trial that we remanded to the Superior Court. That motion was denied without a hearing. Her appeal from the denial of the motion for a new trial has been consolidated with her direct appeal. The defendant asserts error in the denial of her motion for a new trial on the grounds that the judge erred in admitting a hearsay statement of a deceased victim; the prosecutor misstated the evidence in his closing argument; and her trial counsel failed effectively to develop an innocent explanation why the defendant parked her motor vehicle where she did and, thus, provided ineffective assistance of counsel. She also challenges the judge’s jury instruction on the excessive use of force in self-defense, and refusal to instruct the jury that the Commonwealth had to prove that the defendant knew that her codefendant was armed with the murder weapon to convict her of the deliberately premeditated murder of Calhoun on a theory of joint venture. We affirm the convictions and the denial of the defendant’s motion for a new trial, and decline to exercise our power under G. L. c. 278, § 33E. 1. Background. The facts of this […]