Commonwealth v. Penn (Lawyers Weekly No. 10-153-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10503 COMMONWEALTH vs. LUIS PENN. Essex. May 8, 2015. – September 9, 2015. Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ. Homicide. Firearms. Constitutional Law, Public trial. Identification. Practice, Criminal, Capital case, Public trial, Assistance of counsel, Instructions to jury, Argument by prosecutor, Sentence. Indictments found and returned in the Superior Court Department on May 5, 2004. The cases were tried before Howard J. Whitehead, J., and a motion for a new trial, filed on October 29, 2010, was heard by him. Dana Alan Curhan for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. GANTS, C.J. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation for the killing of the victim, Aneury Guzman.[1] The critical issue in the case was whether the victim had been shot by the defendant or by the defendant’s friend, Benjamin Serrano, who minutes before the shooting had confronted the victim with a firearm, handed the firearm to the defendant, and then engaged in a fist fight with the victim. On appeal, the defendant claims that he is entitled to reversal of the murder conviction because the evidence was insufficient as a matter of law.[2] Alternatively, he claims that, even if the evidence were legally sufficient, the court should exercise its authority under G. L. c. 278, § 33E, to vacate the conviction, order a new trial, or reduce the conviction to murder in the second degree because the verdict was contrary to the weight of the evidence and not consonant with justice. In addition, he claims that the murder conviction should be vacated or a new trial ordered because his right to a public trial was violated by the unconstitutional closure of the court room during jury selection; because the jury were not instructed about the risk of honest, but mistaken, eyewitness identification; and because the prosecutor vouched for the accuracy of the key eyewitness and expressed her personal belief in the defendant’s guilt during closing argument. Finally, the defendant claims that, even if his murder conviction were to be affirmed, he is entitled to a reduction in sentence to life with the possibility of parole where he was seventeen years old at the time of the killing. We affirm […]