Commonwealth v. Facella (Lawyers Weekly No. 10-189-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-10339 COMMONWEALTH vs. JOSEPH FACELLA. Essex. May 5, 2017. – November 21, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ.[1] Homicide. Evidence, Rebuttal, Prior misconduct, Hearsay, Expert opinion. Practice, Criminal, Instructions to jury, New trial, Assistance of counsel, Hearsay, Argument by counsel, Capital case. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Indictment found and returned in the Superior Court Department on May 15, 2002. The case was tried before David A. Lowy, J. Brian J. Kelly for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Joseph Facella, of murder in the first degree on a theory of extreme atrocity and cruelty for beating his girl friend, Annette Soares, to death in 2002.[2] At trial, his defense was that an antiviral drug he was taking at the time of the killing rendered him unable to appreciate the wrongfulness of his conduct or to conform his behavior to the requirements of the law. To rebut this defense, the Commonwealth presented evidence that the defendant, before ever taking the drug, had beaten and threatened to kill two other women with whom he was romantically involved between 1978 and 1989. The defendant makes four arguments on appeal: (1) the trial judge erred by admitting evidence in the Commonwealth’s case-in-chief of the defendant’s previous incarceration; (2) the trial judge erred by giving untimely limiting instructions regarding prior bad act evidence admitted in the Commonwealth’s case-in-chief;[3] (3) the trial judge erred by admitting evidence of the defendant’s prior bad acts in the Commonwealth’s rebuttal case; and (4) this court should exercise its power under G. L. c. 278, § 33E (§ 33E), to reduce the verdict or order a new trial. Following oral argument, the defendant also filed a motion for a new trial claiming ineffective assistance of counsel. After careful consideration of the defendant’s arguments on appeal and in his motion for a new trial, we affirm the judgment of conviction, deny the defendant’s motion for a new trial, and decline to exercise our power under § 33E. Background. We begin by discussing the facts presented in the Commonwealth’s case-in-chief as the jury could have found them. We then discuss the defense case. […]