Commonwealth v. Jackson (Lawyers Weekly No. 10-090-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11308 COMMONWEALTH vs. DAVID JACKSON. May 21, 2014. Practice, Criminal, Capital case, New trial. Evidence, Cumulative evidence, Impeachment of credibility. Witness, Impeachment. The defendant, David Jackson, was convicted of murder in the first degree, armed robbery, and burglary arising out of events occurring in April, 1990. We affirmed the defendant’s convictions and the denial of his first motion for a new trial. Commonwealth v. Jackson, 428 Mass. 455 (1998). His second motion for a new trial also was denied, and he was denied leave to appeal, pursuant to the gatekeeper provisions of G. L. c. 278, § 33E.[1] In July, 2009, the defendant filed a third motion for a new trial, and a Superior Court judge who was not the trial judge ordered the Commonwealth to provide additional discovery. Thereafter, the judge denied the motion without an evidentiary hearing. Less than one month later, on April 13, 2011, the defendant filed a gatekeeper petition for leave to appeal, pursuant to G. L. c. 278, § 33E. A single justice of this court allowed the appeal to proceed. Background. According to the evidence at trial, a key Commonwealth witness, Steven Olbinsky, was present on the night of the crimes, directed the defendant to the location where they occurred, and witnessed him loading a weapon before prying opening the front door at that location. Commonwealth v. Jackson, supra at 456-457. Olbinsky left before any violence occurred, but was indicted for the same crimes. Id. at 458. The record shows that the defendant’s counsel sought to impeach Olbinsky in myriad ways, which we need not detail here. In summary, however, he elicited testimony that Olbinsky also faced murder charges for the same killing; that there were some discrepancies between the statements Olbinsky made to police in July, 1990, and his trial testimony; and that, at the time he made those statements, he was facing unrelated charges in Massachusetts. Although defense counsel additionally sought to introduce evidence of drug charges pending against Olbinsky in Oregon, the evidence was excluded on the ground that the charges were brought long after Olbinsky made his original statements to the police, and his trial testimony had not deviated from his original statements “in any substantial and material way.” See Commonwealth v. Haywood, 377 Mass. 755, 762 (1979). Olbinsky additionally testified […]