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[...]the defendant has not shown that the second judge erred. [...]the judge conducted an individual voir dire of the jury at the beginning of the seventh day of the trial. ..
Where the defendant was convicted of murder and drug possession, his convictions must be upheld despite his assertions of error in (1) the denial of his motions for a required finding of not guilty and motions to dismiss, (2) the judge's failure to declare a mistrial based on alleged jury tampering and (3) the judge's instruction pursuant to Commonwealth v. Ciampa, 406 Mass. 257 (1989).
Sufficiency of the evidence
"The evidence, taken in the light most favorable to the Commonwealth, was sufficient to support a conviction of deliberately premeditated murder. The defendant fired two shots at close range into the back of the head of the victim, which alone, is sufficient to support a conviction of deliberately premeditated murder. ... He then went around the other side of the car, opened the rear passenger's side door, and fired a third shot into the right temple of the victim. There was no error in the denial of the defendant's motion for a required finding of not guilty."
Speedy trial issue
"On September 20, 2011, the defendant filed a motion to dismiss, pursuant to M.R.Crim.P. 36 (b), alleging the denial of his right to a speedy trial. ...
"The Commonwealth filed a motion on July 20, 2011, to continue the trial date. The motion was allowed, and the trial was continued to October 14, over the defendant's objection. ... (T)he time between September 12 and September 20, 2011, is chargeable to the Commonwealth. The total amount of excludable time between March 2, 2010, and September 20, 2011, was 384 days, leaving 183 days chargeable to the Commonwealth. This was well within the one-year requirement of rule 36. The motion properly was denied."
Discovery issue
"The defendant filed a renewed motion to dismiss on December 2, 2011, alleging both a violation of rule 36 and a claim of prosecutorial misconduct in the delayed production of discovery. ...
"We first address the rule 36 claim. The period from September 20, 2011, to September 28, 2011, is a reasonable time in which to schedule a hearing on the rule 36 motion, and is excludable for that reason. ...
"The period of time from September 20 to December 2, 2011, the date the renewed motion to dismiss was filed, was seventy-three days, of which fifty-four days are excludable. The total time from arraignment to December 2, 2011, was 640 days, of which the Commonwealth had to account for 275 days. A total of 438 days are excludable. There was no violation of rule 36.
"We turn to the claim of prosecutorial misconduct. ...
"There was evidence that the delays were caused in part by the laboratory assigned to perform the DNA tests, by failure of the police to deliver reports and witness statements to the district attorney in a timely manner, and by the failure of the district attorney's office to provide timely disclosure of certain cellular telephone records. Some of this came to light at the July 20, 2011, hearing on the Commonwealth's motion to continue the September 12 trial date. ... The second judge rejected the claim of prosecutorial misconduct. He found that the belated discovery disclosure was 'not intentional but rather the result of oversight,' and that the defendant had not shown prejudice. Accordingly, the defendant has not shown that the second judge erred. The renewed motion to dismiss properly was denied."
Jury tampering claim
"Juror no. 14 approached a court officer on the seventh day of trial and informed him of troublesome conduct by certain individuals who had been in the court room. As a result, the judge conducted an individual voir dire of the jury at the beginning of the seventh day of the trial. ... All jurors indicated that they could remain fair and impartial. ...
" ... Here, the judge followed the correct procedure and was entitled to rely on the jurors' assertions of impartiality, and on her observations of them during voir dire in assessing whether they could remain fair and impartial. We also are mindful that experienced trial counsel voiced no objection. The defendant has failed to demonstrate any 'solid evidence of a distinct bias,' ... or that the judge otherwise abused her discretion. There was no error."
Jury instruction
"The defendant contends that the judge's instruction concerning the manner in which the jury should consider the testimony of a cooperating witness was error. In particular, he argues that the judge did not 'adequately focus the jury's attention on the incentives that could have influenced (Soto's and Felipe's) testimony.' ... In addition, he argues, the judge failed to instruct the jury that 'the government did not know whether (Soto and Felipe) were telling the truth).' ...
"In Ciampa, we pointed to specific deficiencies in the judge's instructions. We said that language in a cooperation agreement to the effect that the agreement was 'contingent upon the truthfulness of (the cooperating witness)' should be redacted 'onrequest' by a defendant ... Here, not only was there no request for such redaction, but also trial counsel specifically indicated he did not want anything redacted. This language went to the heart of the defense. ...
"We also said in Ciampa that a judge should warn the jury that 'the government did not know whether (the cooperating witness) was telling the truth.' ... However, failure to so instruct, standing alone, is not reversible error. ... Here, the prosecutor never vouched for Soto or Felipe. Nor did he suggest that he had special knowledge by which to determine that they were telling the truth. There was no error in the failure to give such an instruction.
"Finally, in Ciampa we said that a judge should 'focus the jury's attention on the particular care they must give in evaluating testimony given pursuant to a plea agreement that is contingent on the witness's telling the truth.' ... We also said that '(w)e do not prescribe particular words that a judge should use' in this regard. ... The judge did what minimally was required under Ciampa given the circumstances presented at the defendant's trial. ... She also reinforced the importance of such inquiry by instructing the jury that they should scrutinize the testimony of Soto and Felipe with great care by virtue of their being alleged accomplices, something we encourage but do not require. ... There was no error."
Commonwealth v. Roman (Lawyers Weekly No. 10-182-14) (28 pages) (Spina, J.) (SJC) A motion to dismiss was heard by Carey, J.; a renewed motion to dismiss was considered by Moriarty, J.; cases tried before Sweeney, J., in Superior Court. Donald A. Harwood on appeal for the defendant; Jane Davidson Montori for the commonwealth (Docket No. SJC-11311) (Nov. 4, 2014).
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