Commonwealth v. Carter (Lawyers Weekly No. 10-150-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11525 COMMONWEALTH vs. VERNON T. CARTER. Plymouth. April 8, 2016. – September 19, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.[1] Homicide. Robbery. Firearms. Felony-Murder Rule. Assault and Battery. Joint Enterprise. Identification. Evidence, Identification, Joint venturer. Intoxication. Constitutional Law, Right to bear arms. Practice, Criminal, Capital case, Duplicative convictions, Witness, Assistance of counsel, Argument by prosecutor, Instructions to jury, Conduct of judge. Indictments found and returned in the Superior Court Department on December 30, 2009. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J., and the cases were tried before Raymond P. Veary, Jr., J. Russell C. Sobelman for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. HINES, J. In April, 2013, a jury convicted the defendant, Vernon T. Carter, of murder in the first degree of Scott Monteiro on a theory of felony-murder, based on the predicate felony of armed robbery.[2] The defendant was also convicted of armed robbery, assault and battery of Sheldon Santos, possession of a firearm, and possession of ammunition.[3] On appeal, the defendant asserts error in (1) admission of identifications obtained through procedures alleged to be suggestive; (2) testimony from a last-minute Commonwealth witness; (3) the prosecutor’s closing argument; (4) omission of jury instructions regarding involuntary manslaughter, “humane practice,” and intoxication; (5) judicial bias; and (6) firearms-related convictions without evidence that he was not licensed.[4] The defendant also argues that he is entitled to relief under G. L. c. 278, § 33E. We vacate, as duplicative, the defendant’s armed robbery conviction, because it was the predicate felony for his felony-murder conviction, the only theory on which the jury found him guilty of murder in the first degree. See Commonwealth v. Alcequiecz, 465 Mass. 557, 558 (2013). We affirm the defendant’s remaining convictions, and we discern no other basis to exercise our authority pursuant to G. L. c. 278, § 33E. Background. We summarize the evidence as the jury could have found it, reserving certain facts for later discussion. At approximately 10 P.M. on Friday, September 4, 2009, a group of twenty to thirty people, in their late teens or early twenties and generally from the Wareham area, gathered at a residence in Wareham for a “house party.” People were socializing and drinking, “[j]ust teenage and adolescent kids […]