defendant contends defense in Massachusetts

2025I'm not suggesting you have a question, that's just the formal way of doing it." Relying on Commonwealth v. Donovan, 15 Mass. App. Ct. 269 , 272- 273 (1983), the defendant contends that this instruction interfered with his right to a fair trial, and that if the instruction was error, its effect "cannot be determined" and he is excused from demonstrating that the error was substantial or prejudicial.

2025Whereas in Donovan, the jury was prevented from seeking reinstruction by a court officer, an error compounded by the judge's inaction once it was brought to her attention, see id. at 270-273 , here the judge merely explained the procedure for asking a question in the event the jury had one.

2015The failure to consider this special circumstance is an error of law that requires that the judge’s denial of the motion for a new trial and the motions for reconsideration be vacated and the matter remanded. 22 On remand, in deciding anew the question of prejudice, the judge will need to consider that this motion for a new trial differs from the more typical case where a defendant contends that defense counsel did not give fair warning that “if Federal authorities apprehended the defendant, deportation would be practically inevitable.” DeJesus, 468 Mass. at 181 .

2015This argument is at odds with our recent decision in Commonwealth v. Wall, 469 Mass. 652 (2014).

2013Under this more favorable standard of review, where defense counsel is claimed to be ineffective because he failed timely to object to an alleged trial error, we need not consider whether the failure to object fell measurably below the conduct expected from an ordinary fallible lawyer, but determine instead “whether there was error and, if so, whether the error was ‘likely to have influenced the jury’s conclusion.’ ” Walker, supra, quoting Commonwealth v. Gonzalez, supra. Here, the defendant contends that defense counsel erred both in failing to request an identification instruction and in fai

2013We need not address the alleged inadequacy of counsel’s conduct, because we conclude that the absence of a specific eyewitness identification instruction, including an instruction on the possibility of a good faith error in identification, was not “likely to have influenced the jury’s conclusion.” Walker, supra, quoting Commonwealth v. Gonzalez, supra. “We have long recognized that ‘[ejyewitness identification of a person whom the witness had never seen before the crime or other incident presents a substantial risk of misidentification and increases the chance of a conviction of an innocent de

2013Under this more favorable standard of review, where defense counsel is claimed to be ineffective because he failed timely to object to an alleged trial error, we need not consider whether the failure to object fell measurably below the conduct expected from an ordinary fallible lawyer, but determine instead “whether there was error and, if so, whether the error was ‘likely to have influenced the jury’s conclusion.’ ” Walker, supra, quoting Commonwealth v. Gonzalez, supra. Here, the defendant contends that defense counsel erred both in failing to request an identification instruction and in fai

2013We need not address the alleged inadequacy of counsel’s conduct, because we conclude that the absence of a specific eyewitness identification instruction, including an instruction on the possibility of a good faith error in identification, was not “likely to have influenced the jury’s conclusion.” Walker, supra, quoting Commonwealth v. Gonzalez, supra. “We have long recognized that ‘[ejyewitness identification of a person whom the witness had never seen before the crime or other incident presents a substantial risk of misidentification and increases the chance of a conviction of an innocent de

2008A killing is manslaughter if there is “provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).

2007We conclude, however, that the defendant fails to meet the first prong of the two-part test for ineffectiveness of counsel established in Commonwealth v. Saferian, supra, because defense counsel’s conduct did not fall below that of an average lawyer in the same or similar circumstances.

2004The judge’s insistence on “compliance with the Bishop-Fuller protocol” necessarily involves rule 17 (a) (2) because the protocol is not implicated until the holder of the privilege or the keeper of the records asserts a privilege in response to an order for production and refuses to produce the records, see Commonwealth v. Bishop, supra at 181 , or files a motion to quash based on a claim of privilege.

2003The defendant contends that an instruction on accident cannot cure an erroneous third prong malice instruction, citing Commonwealth v. Pichardo, 45 Mass. App. Ct. 296 (1998).

2002The defendant contends that the instruction was meaningless because the jury never heard the precise questions and answers before the grand jury and thus could not make the determination of inconsistency required under Commonwealth v. Daye, supra. The defendant concedes that he did not object to the instruction.

1984The defendant contends that the doctrine of plain view, as elaborated in Coolidge v. New Hampshire, 403 U.S. 443 (1971), is inapplicable “in situations where the police knew what they were looking for, what they might expect to find and in fact explicitly searched for said items" (emphasis in original).

1974In instructing the jury on the requirement that the defendant have reasonable grounds to believe he was in imminent danger of being killed or of sustaining grievous bodily harm before he could resort to shooting Scott and Santos, the judge *505 included the language which is quoted in the margin. 3 The defendant contends that this instruction erroneously inserted the standard of a “prudent person” into the legal definition of self-defence, and that the judge should have charged in the more frequently used language contained in Monize v. Begaso, 190 Mass. 87, 89 (1906) and Commonwealth v. Houst

1941As to the first contention, he relies upon the case of Query v. Howe, 273 Mass. 92 , It is true that the plaintiff admitted that he was sliding just before he was struck, but he also testified that, when struck, he was walking, dragging the sled behind him.

1937It was said in Gardner v. Kellogg, 23 Minn. 463, 466 , which was an action to recover damages for an indecent assault, that the rule in question “has for its support a foundation equally as firm and reasonable in civil as in criminal actions.” The applicability of the rule in civil cases brought to recover damages for such assaults is generally recognized.

1911The defendant contends that this defense is good on the authority of what was said by Holmes, J., in Archambeau v. Platt, 173 Mass. 249 , 251: “ Apart from the statute, we cannot see how it is possible to justify bringing an action which it is admitted never can result in satisfaction from the defendants.” The defendant also relies on Morse v. Toppan, 3 Gray, 411 , 412; Train v. Marshall Paper Co. 180 Mass. 513 ; Norfolk v. American Steam Gras Co. 108 Mass. 404, 407 .

1911The defendant contends that this defense is good on the authority of what was said by Holmes, J., in Archambeau v. Platt, 173 Mass. 249 , 251: “ Apart from the statute, we cannot see how it is possible to justify bringing an action which it is admitted never can result in satisfaction from the defendants.” The defendant also relies on Morse v. Toppan, 3 Gray, 411 , 412; Train v. Marshall Paper Co. 180 Mass. 513 ; Norfolk v. American Steam Gras Co. 108 Mass. 404, 407 .

1911The defendant contends that this defense is good on the authority of what was said by Holmes, J., in Archambeau v. Platt, 173 Mass. 249 , 251: “ Apart from the statute, we cannot see how it is possible to justify bringing an action which it is admitted never can result in satisfaction from the defendants.” The defendant also relies on Morse v. Toppan, 3 Gray, 411 , 412; Train v. Marshall Paper Co. 180 Mass. 513 ; Norfolk v. American Steam Gras Co. 108 Mass. 404, 407 .