Posts tagged "1015715"

Commonwealth v. Niemic (Lawyers Weekly No. 10-157-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11535   COMMONWEALTH  vs.  JONATHAN NIEMIC.       Bristol.     April 9, 2015. – September 17, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide.  Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor, Cross-examination by prosecutor, Instructions to jury.  Evidence, Argument by prosecutor, Self-defense, Cross-examination, Impeachment of credibility, Prior inconsistent statement.  Self-Defense.  Constitutional Law, Assistance of counsel.       Indictment found and returned in the Superior Court Department on December 9, 2010.   The case was tried before Thomas F. McGuire, Jr., J.     Theodore F. Riordan (Deborah Bates Riordan with him) for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth.     SPINA, J.  On October 20, 2010, the defendant stabbed the victim six times with a small folding pocket knife, killing him.  The Commonwealth’s theory of motive was that both men had been vying for the affection of the same woman.  The primary dispute at trial was whether the victim was the first aggressor, whether the defendant acted in self-defense, and who first had possession of the knife.  The jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty.  On appeal the defendant asserts error by trial counsel, by the prosecutor, and by the judge.  He claims that trial counsel was ineffective (1) for making an incorrect argument about voluntary manslaughter (which he asked the jury to find), and (2) for failing to request an instruction on involuntary manslaughter.  The defendant argues that the prosecutor improperly cross-examined him on his right to remain silent, including (1) questions about why he had not gone to police with his version of events, (2) questions about his failure to tell his grandmother and friends that he was defending himself, and (3) questions that emphasized his failure to tell anyone his version of events until trial.  The defendant also contends that the prosecutor (4) improperly appealed to the sympathy of the jury in his closing argument, and (5) made improper argument about the defendant’s failure to call witnesses to corroborate his testimony.  The defendant asserts that the judge erred (1) by failing to instruct the jury that the Commonwealth must disprove the absence of excessive force in self-defense, and (2) by giving an incorrect instruction on self-defense.  We conclude that the combined effect […]

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Posted by Massachusetts Legal Resources - September 17, 2015 at 2:12 pm

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