Commonwealth v. Evelyn (Lawyers Weekly No. 10-034-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11643 COMMONWEALTH vs. SEAN EVELYN. Suffolk. November 3, 2014. – March 2, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Practice, Criminal, Argument by counsel, Admissions and confessions, Waiver. Constitutional Law, Waiver of constitutional rights, Admissions and confessions. Due Process of Law, Fair trial. Supreme Judicial Court, Superintendence of inferior courts. Indictments found and returned in the Superior Court Department on February 23, 2007. The cases were tried before Frank M. Gaziano, J. The Supreme Judicial Court granted an application for direct appellate review. Jeanne M. Kempthorne for the defendant. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth. Donald A. Harwood & David A.F. Lewis, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. GANTS, C.J. After an altercation with Cushings Fortuna (victim), the defendant returned to his vehicle, removed a gun from a hidden compartment, chased the victim, and shot him dead. At trial, the defendant’s attorney in opening statement conceded that the defendant committed the killing, and told the Superior Court jury that the issue they had to decide was whether the defendant was guilty of manslaughter or murder. The jury convicted the defendant of murder in the second degree and of possession of a firearm without a license.[1] The defendant appealed his convictions, and we granted direct appellate review. The defendant claims that his attorney’s concession at trial that the defendant was guilty of manslaughter was tantamount to a guilty plea, and that a colloquy between the judge and the defendant was therefore constitutionally required to ascertain that the defendant made the concession knowingly and voluntarily. The defendant contends that, because such a colloquy did not take place, he was deprived of due process and the right against self-incrimination, and he asks that we vacate his convictions and remand for a new trial. We conclude that, in these circumstances, no colloquy between the judge and the defendant is required. We note that the defendant in this case expressly did not claim ineffective assistance of counsel and there is nothing in the record to suggest that the defendant did not consent to his attorney’s strategic concession.[2] Background. We summarize the evidence at trial. On December 31, 2006, the defendant (who was then twenty years old) and his […]