Commonwealth v. Coutu (Lawyers Weekly No. 11-183-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 08-P-986 Appeals Court 13-P-1363 COMMONWEALTH vs. DAVID COUTU. Nos. 08-P-986 & 13-P-1363. Middlesex. September 17, 2015. – December 8, 2015. Present: Katzmann, Meade, & Rubin, JJ. Assault and Battery by Means of a Dangerous Weapon. Burning of Property. Attempt. Evidence, Identification, Scientific test. Practice, Criminal, Failure to object, Identification of defendant in courtroom, Argument by prosecutor, Instructions to jury, New trial, Assistance of counsel, Collateral estoppel, Postconviction relief. Collateral Estoppel. Deoxyribonucleic Acid. Indictments found and returned in the Superior Court Department on March 23 and August 15, 2006. The cases were tried before S. Jane Haggerty, J., and motions for a new trial, for postconviction discovery, and for reconsideration, filed on April 26, 2012, June 7, 2012, and June 23, 2014, respectively, were heard by her. Amy M. Belger for the defendant. Randall F. Maas & Bethany Stevens, Assistant District Attorneys, for the Commonwealth. MEADE, J. After a jury trial in 2007, the defendant was convicted of aggravated rape, home invasion, mayhem, assault and battery by means of a dangerous weapon causing serious bodily injury, armed robbery, kidnapping, and attempt to burn personal property. The events leading to these convictions occurred in 2006, when the defendant, a stranger to the victim, broke into her apartment by tunneling through the wall with a crowbar, and then beat and raped the victim with the crowbar before burning a box of items. On appeal, the defendant claims the judge improperly permitted the victim to testify that she recognized the defendant by his “energy,” the prosecutor’s closing argument was improper, the judge erred in her jury instruction on identification, the evidence was insufficient to support the attempt to burn personal property conviction, the convictions of assault and battery by means of a dangerous weapon causing serious bodily injury and mayhem were duplicative, and the judge abused her discretion by denying the defendant’s second motion for new trial based on a claim of ineffective assistance and newly discovered evidence. We reverse the convictions of assault and battery by means of a dangerous weapon causing serious bodily injury and of attempt to burn personal property, affirm the remaining judgments of conviction, and remand the case for resentencing. We affirm the order denying the second motion for new trial. In a separate appeal, the Commonwealth claims error in […]