Commonwealth v. Middlemiss (Lawyers Weekly No. 10-113-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑10960   COMMONWEALTH  vs.  CHRISTOPHER MIDDLEMISS. Middlesex.     February 7, 2013.  ‑  June 17, 2013. Present:  Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ.   Homicide.  Robbery.  Evidence, Hearsay, Dying declaration, Identification.  Practice, Criminal, Capital case, Hearsay, Confrontation of witnesses.  Constitutional Law, Confrontation of witnesses.  Judicial Estoppel.  Identification.  Felony‑Murder Rule.       Indictments found and returned in the Superior Court Department on September 28, 2006.   The cases were tried before Maureen B. Hogan, J.     David Keighley for the defendant. Casey E. Silvia, Assistant District Attorney, for the Commonwealth.       CORDY, J.  In the early morning hours of July 4, 2006, the defendant, Christopher Middlemiss, and Joseph Morgan broke into Alberto Cintron’s apartment while he was not at home and lay in wait for him to return so they could rob him.  Their scheme was foiled when, on his arrival, Cintron recognized the defendant and resisted the robbery.  Amidst the ensuing struggle, Cintron was shot five times and died en route to the hospital.  Following an investigation, the defendant and Morgan were arrested, indicted, and tried separately.[1]  On May 27, 2010, the defendant was convicted of murder in the first degree on the theory of felony-murder with armed robbery while masked as the predicate felony, and unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a).  The trial judge sentenced the defendant to life in prison on the murder conviction and imposed an eighteen-month concurrent sentence on the firearm conviction.   On appeal, the defendant argues that the judge erred in admitting statements made by the victim to both a 911 operator and a responding police officer that identified the defendant by name and indicated he lived in an apartment downstairs from the victim’s apartment.  The defendant contends that the statements to the responding police officer should not have been admitted because they were hearsay not falling within a recognized exception.  He also posits that the statements made to the 911 operator were testimonial in nature and, thus, that their admission in evidence violated the defendant’s right to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.[2]  Additionally, the defendant argues that the judge erred in declining to apply the doctrine of judicial estoppel to preclude the Commonwealth from arguing that the victim’s intoxication […]

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