Commonwealth v. Horne (Lawyers Weekly No. 10-008-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12068 COMMONWEALTH vs. CALVIN HORNE. Suffolk. October 7, 2016. – January 10, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Controlled Substances. Evidence, Expert opinion, Relevancy and materiality. Indictments found and returned in the Superior Court Department on October 4, 2012. The cases were tried before Linda E. Giles, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Justin Florence for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae. Teresa K. Anderson, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant was convicted by a Superior Court jury of possession of cocaine with intent to distribute. The Appeals Court affirmed the conviction, see Commonwealth v. Horne, 88 Mass. App. Ct. 1109 (2015), and we granted the defendant’s application for further appellate review. The question before us is whether the admission in evidence of so-called “negative profiling” testimony, suggesting that the defendant did not look like a “crack” cocaine addict, gave rise to a substantial risk of a miscarriage of justice. We conclude that it did.[1] Background. a. The defendant’s arrest. We recite the relevant facts the jury could have found. In the early morning hours of September 14, 2012, the defendant was stopped by police on Colonial Avenue in the Dorchester section of Boston for traffic violations. The automobile that the defendant was driving was registered to a woman named Denise Barton.[2] The officer who conducted the stop, Boston police Sergeant Thomas Brooks, determined that the defendant’s driver’s license had been suspended. When Brooks, joined by Boston police Officer Pele James, attempted to arrest him, the defendant forcefully resisted. With the assistance of three additional officers, the defendant was subdued and placed under arrest. Thereafter, the arresting officers found nearby a clear plastic bag containing twenty-six individually wrapped “rocks” of crack cocaine, totaling 3.87 grams. The defendant apparently had kept the bag in his boot, which came off during the melee. Later that night, Boston police Officer David Lanteigne conducted an inventory search of the motor vehicle. He found two cellular telephones and eighty-three dollars in cash in the center console of the automobile, another cellular telephone on […]
Commonwealth v. Horne (Lawyers Weekly No. 10-171-13)
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‑11304 COMMONWEALTH vs. DANIEL HORNE. Hampden. May 7, 2013. ‑ September 16, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Homicide. Malice. Wanton or Reckless Conduct. Joint Enterprise. Practice, Criminal, Instructions to jury, Double jeopardy. Evidence, Joint enterprise, Impeachment of credibility, Exculpatory. Witness, Impeachment. Constitutional Law, Double jeopardy. Firearms. Indictments found and returned in the Superior Court Department on October 28, 2009. The cases were tried before C. Jeffrey Kinder, J. The Supreme Judicial Court granted an application for direct appellate review. Jane Larmon White, Committee for Public Counsel Services, for the defendant. Marcia B. Julian, Assistant District Attorney, for the Commonwealth. DUFFLY, J. At approximately 1:30 A.M. on October 18, 2009, eight bullets were fired at the front room window of a first-floor apartment in Springfield; the window was covered by venetian blinds and dark curtains. Four of those bullets struck and killed nineteen year old Brittany Perez as she stood near the window. The defendant, who was seen fleeing from the scene of the shooting, was convicted by a Superior Court jury of murder in the second degree. He was convicted also of possession of ammunition without a firearm identification (FID) card and of two separate counts of unlicensed carrying of a rifle outside his residence or place of business. On appeal, the defendant contends that a number of errors at trial require reversal of his convictions. He asserts error in the judge’s decision not to instruct the jury on involuntary manslaughter; the judge’s instruction on joint venture liability; and the prosecutor’s improper impeachment of a defense witness’s credibility. In addition, the defendant argues that the two convictions of the unlicensed carrying of a rifle are duplicative. We conclude that the judge erred in declining to instruct the jury on involuntary manslaughter, where the jury reasonably could have found that the defendant did not know the room was occupied when he fired the rifle at the window and, therefore, that the defendant’s conduct was wanton or reckless but not necessarily conduct that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would follow. Consequently, the defendant’s conviction of murder in the second degree cannot stand. We reject the […]