Commonwealth v. Alleyne (Lawyers Weekly No. 10-102-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11614 COMMONWEALTH vs. KYLE ALLEYNE. Middlesex. March 11, 2016. – July 15, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ. Homicide. Jury and Jurors. Evidence, Photograph, Inflammatory evidence, Relevancy and materiality. Practice, Criminal, Capital case, Jury and jurors, Interrogation of jurors, Instructions to jury. Search and Seizure, Consent. Intoxication. Indictments found and returned in the Superior Court Department on October 21, 2010. The cases were tried before Thomas P. Billings, J. Chauncey B. Wood for the defendant. Casey E. Silvia, Assistant District Attorney, for the Commonwealth. William Trach & Laura Carey, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. Paul R. Rudof, Committee for Public Counsel Services, & David Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. HINES, J. The defendant, Kyle Alleyne, was convicted by a jury of murder in the first degree on the theory of extreme atrocity or cruelty[1] for the stabbing death of his wife, Heather Alleyne, and of assault and battery of Josh Elinoff, the father of the victim’s newborn baby.[2] On appeal, the defendant challenges: (1) the judge’s failure to conduct a voir dire of an inattentive juror; (2) evidentiary rulings allowing the admission of numerous autopsy photographs, statements of the defendant, and the victim’s purse; (3) the judge’s modification of jury instructions pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004); and (4) the judge’s failure to alter the model instructions for extreme atrocity or cruelty. We affirm the defendant’s convictions, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.[3] Background. We summarize the evidence as the jury could have found it, reserving certain facts for later discussion. The victim met the defendant, who was six years older than she was, when she was thirteen or fourteen years of age. Insofar as relevant here, the two had a dating relationship. After the victim graduated from high school she and the defendant got married in March, 2009. She gave birth to their daughter in June, 2009. The victim and her daughter moved back to her father’s house for a period between October and December, 2009. At that time, the victim’s brother and one of his friends, Elinoff, also lived in the father’s […]