Commonwealth v. Povez (Lawyers Weekly No. 11-150-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑998 Appeals Court COMMONWEALTH vs. JANLEER POVEZ. No. 12‑P‑998. Worcester. September 16, 2013. ‑ December 31, 2013. Present: Kantrowitz, Sikora, & Hines, JJ. Jury and Jurors. Practice, Criminal, Jury and jurors, Challenge to jurors, Instructions to jury. Intoxication. Indictments found and returned in the Superior Court Department on June 25, 2008. The cases were tried before Janet Kenton-Walker, J. Leslie W. O’Brien for the defendant. Michelle R. King, Assistant District Attorney (Lisa Casella, Assistant District Attorney, with her) for the Commonwealth. KANTROWITZ, J. Charged with murder in the first degree, the defendant, Janleer Povez, was found guilty of murder in the second degree.[1] He appeals, claiming error in (1) the allowance of a peremptory challenge of a prospective Hispanic juror; (2) the judge’s failure to order, sua sponte, a competency examination; and (3) the instructions provided to the jury. As we are constrained to agree with the defendant on his first claim, we reverse. Facts. On April 21, 2008, Jack McGuire was a victim of a drug deal gone wrong. That morning, shortly after midnight, McGuire went to an area known for drug dealing, a parking lot of a local Dunkin’ Donuts, to purchase “crack” cocaine. Eventually, he met with Lance Savage, a drug middle-man, and asked if Savage could secure one hundred dollars’ worth of crack cocaine. Savage called the defendant, who agreed to meet at a convenience store in Worcester. A short time later, the defendant and his girlfriend met Savage and McGuire at the prearranged destination and entered McGuire’s car. Savage told the defendant that McGuire wanted “six for a hundred,” or six twenty-dollar “rocks” of crack cocaine for one hundred dollars, but McGuire first wanted to “taste it.” McGuire then drove the car to a secluded location and sampled the drug. Satisfied with the “hit,” McGuire said, “[l]et me get the rest . . . .” The defendant handed over the remaining rocks. Suddenly, McGuire pulled a gun from his left side and shouted for the occupants to “[g]et the fuck out the [sic] car.” The defendant and his girlfriend jumped out. Savage stayed in and a struggle ensued. The defendant shouted to Savage: “Get him, . . . get him. Pull him out the [sic] car.” Soon both combatants were out of the car and still fighting despite […]