Commonwealth v. Mercado (Lawyers Weekly No. 10-148-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑10832 COMMONWEALTH vs. THOMAS MERCADO.[1] Plymouth. April 5, 2013. ‑ August 7, 2013. Present: Ireland, C.J., Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Practice, Criminal, Assistance of counsel, Motion to suppress, Public trial, Immunity from prosecution, Instructions to jury, Presumptions and burden of proof, Capital case. Constitutional Law, Public trial, Burden of proof. Witness, Immunity. Due Process of Law, Burden of proof. Indictment found and returned in the Superior Court Department on June 1, 2006. A pretrial motion to suppress evidence was heard by Carol S. Ball, J.; the case was tried before John P. Connor, J., and a motion for a new trial was considered by him. Stephen Paul Maidman for the defendant. Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. A Superior Court jury found the defendant, Thomas Mercado, guilty of murder in the first degree; the jury reached their verdict on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. Before us is the defendant’s appeal from his conviction and the denial of his motion for a new trial. The defendant claims that (1) the defendant’s trial counsel was ineffective in preparing and presenting the defendant’s motion to suppress his statement to police; (2) the trial judge violated the defendant’s right to a public trial by closing the court room during a witness immunity hearing; and (3) the trial judge’s instructions on the Commonwealth’s burden of proof were erroneous. The defendant also argues that in the circumstances of this case, this court should exercise its power under G. L. c. 278, § 33E, and order a new trial. Although we conclude, in reviewing the case under § 33E, that the evidence was insufficient to support the defendant’s conviction on the theory of felony-murder, we affirm the defendant’s conviction on the theories of deliberate premeditation and extreme atrocity or cruelty, and also affirm the denial of his motion for a new trial. Background. We recite the facts as the jury could have found them, reserving other facts for later discussion. The victim was shot and killed sometime on the night of February 6, 2006, or the early morning of February 7, 2006, in an apartment building in Brockton. The evidence of the incident itself, introduced through the testimony of four different witnesses who were present […]