Commonwealth v. Villalobos (Lawyers Weekly No. 11-059-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   14-P-497                                        Appeals Court   COMMONWEALTH  vs.  ANTHONY VILLALOBOS. No. 14-P-497. Suffolk.     September 10, 2015. – May 27, 2016.   Present:  Green, Rubin, & Hanlon, JJ. Homicide.  Assault and Battery.  Practice, Criminal, Required finding, Voir dire, Jury and jurors, Conduct of juror, Argument by prosecutor, New trial, Assistance of counsel, Admissions and confessions, Motion to suppress.  Evidence, Joint venturer, Admissions and confessions.       Indictments found and returned in the Superior Court Department on November 9, 2009.   The cases were tried before Patrick F. Brady, J., and a motion for a new trial was heard by him.     Elda S. James for the defendant. Amanda Teo, Assistant District Attorney (David J. Fredette, Assistant District Attorney, with her) for the Commonwealth.        HANLON, J.  After a joint jury trial,[1] the defendant, Anthony Villalobos, was convicted of the lesser included offense of involuntary manslaughter of Jose Alicea and two counts of assault and battery, one on Gregory Pimental[2] and one on Omar Castillo.[3]  He appeals from the convictions and also from the denial of his motion for a new trial, arguing that (1) the evidence was insufficient to support his convictions; (2) the judge erroneously failed to conduct a voir dire of allegedly sleeping jurors; (3) the prosecutor made improper and prejudicial statements during closing argument; and (4) trial counsel was ineffective in attempting to exclude at trial statements the defendant had made to the police, because counsel failed to raise the issue of whether the defendant had invoked his right to remain silent.  We affirm. Background.  The jury could have found the following facts.  On August 20, 2009, the defendant and a large group of others attended the funeral of a friend in Lynn; many of the funeral attendees wore red and black tuxedos to honor the deceased. Later that night, a group of the attendees went to Club 33 in Boston, arriving in two limousines, a Porsche and a Cadillac, with most still wearing the red and black tuxedos.  The defendant was part of this group but, instead of a tuxedo, he was wearing a white T-shirt, a black button down shirt with a picture of his deceased friend on the back, and black pants; the defendant also had long braided (or corn-rowed) hair. Also at Club 33 that night were the five victims.[4]  At closing time, they […]

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