outset analysis in Massachusetts

1994We note at the outset of our analysis that the “principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Id. at 791, citing Clark v. Community for Creative Non-Violence, supra at 295.

1994We note at the outset of our analysis that the "principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Id. at 791, citing Clark v. Community for Creative Non-Violence, supra at 295.

2018See Barry , 390 Mass. at 295 -296 , 455 N.E.2d 437 ( rule 36"creates a means through which [criminal] defendants who desire a speedy trial can secure one," but "the opportunity conferred by the rule is not a fundamental constitutional right, or even a right created by statute").

2018See Barry , 390 Mass. at 295 -296 , 455 N.E.2d 437 ( rule 36"creates a means through which [criminal] defendants who desire a speedy trial can secure one," but "the opportunity conferred by the rule is not a fundamental constitutional right, or even a right created by statute").

2017See id. ("Giving cautionary instructions to each juror at the outset of the inquiry and, if necessary, again during the inquiry will reduce the likelihood of answers that stray into revelation of the jury's thought process.

2011See Commonwealth v. Silva, supra. Articulable facts, then, must demonstrate a suspicion that the defendant possessed 14 more than one ounce of marijuana, because possession of one ounce or less of marijuana is not a crime.

2011See Commonwealth v. Silva, supra .

2009It has been suggested that our opinions in this area — regarding instructing the jury with respect to the possibility that a witness might honestly, but also mistakenly, identify a defendant as the perpetrator of a particular crime — are “unclear.” See Commonwealth v. Delong, 72 Mass. App. Ct. 42, 48 (2008).

2008We note at the outset that a claim of ineffective assistance of counsel is usually “best left for resolution in the first instance by the trial judge on a motion for new trial.” Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), quoting from Gibney v. Commonwealth, 375 Mass. 146, 148 (1978). “[O]ur case law strongly disfavors raising ineffective assistance claims on direct appeal,” Commonwealth v. Zinser, 446 Mass. 807 , 809 n.2 (2006), because this issue “is most appropriately left to the trial judge.” Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 553 (2006).

2008We note at the outset that a claim of ineffective assistance of counsel is usually “best left for resolution in the first instance by the trial judge on a motion for new trial.” Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), quoting from Gibney v. Commonwealth, 375 Mass. 146, 148 (1978). “[O]ur case law strongly disfavors raising ineffective assistance claims on direct appeal,” Commonwealth v. Zinser, 446 Mass. 807 , 809 n.2 (2006), because this issue “is most appropriately left to the trial judge.” Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 553 (2006).

2008We note at the outset that a claim of ineffective assistance of counsel is usually “best left for resolution in the first instance by the trial judge on a motion for new trial.” Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), quoting from Gibney v. Commonwealth, 375 Mass. 146, 148 (1978). “[O]ur case law strongly disfavors raising ineffective assistance claims on direct appeal,” Commonwealth v. Zinser, 446 Mass. 807 , 809 n.2 (2006), because this issue “is most appropriately left to the trial judge.” Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 553 (2006).

2005See United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990) (to infer voluntary consent from occupant’s actions in walking toward officers in hallway, then walking back into apartment and leaving door open in response to inquiry from officer about whereabouts of suspect, would be “conjecture”); Holmes v. State, 347 Ark. 530, 540 (2002) (occupant’s opening door and stepping back in response to question about where of ficers could talk with occupant was marked by “uncertainty and lack of clarity” and did not constitute consent to enter).

2005See United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990) (to infer voluntary consent from occupant’s actions in walking toward officers in hallway, then walking back into apartment and leaving door open in response to inquiry from officer about whereabouts of suspect, would be “conjecture”); Holmes v. State, 347 Ark. 530, 540 (2002) (occupant’s opening door and stepping back in response to question about where of ficers could talk with occupant was marked by “uncertainty and lack of clarity” and did not constitute consent to enter).

2003However, “[w]e note at the outset that when a challenge is made to the constitutionality of a legislative enactment, the person making the challenge has an onerous burden of proof in establishing the invalidity of the statute.” Commonwealth v. Henry’s Drywall Co., 366 Mass. 539, 541 (1974), and cases cited. 1.

1984See Commonwealth v. Little, 384 Mass. 262, 268-269 (1981); Commonwealth v. Cook, 380 Mass. 314, 320 (1980); Commonwealth v. Gagne, 367 Mass. 519, 526 (1975).

1984See Commonwealth v. Little, 384 Mass. 262, 268-269 (1981); Commonwealth v. Cook, 380 Mass. 314, 320 (1980); Commonwealth v. Gagne, 367 Mass. 519, 526 (1975).

1984See Commonwealth v. Little, 384 Mass. 262, 268-269 (1981); Commonwealth v. Cook, 380 Mass. 314, 320 (1980); Commonwealth v. Gagne, 367 Mass. 519, 526 (1975).

1983The judge instructed at the outset on the presumption of innocence and told the jury that “the government has the burden of proof: it never shifts.” The judge also instructed the jury that “the burden of proof is always on the prosecution to prove each and every item and element.” See Commonwealth v. Fitzgerald, 380 Mass. 840, 842-843 (1980). *742 The trial judge gave the required definition of reasonable doubt.

1974Commonwealth v. Chamberlain, 343 Mass. 49, 51 (1961).

1973See also Commonwealth v. Pinnick, 354 Mass. 13, 15 (1968); Commonwealth v. Richardson, 354 Mass. 773 (1968).

1973By his second assignment of error, the defendant questions the failure of the trial judge to charge the jury in accordance with his requested instruction No. 3. 3 It is clear at the outset that the test of a charge is not any particular language but “the impression created by it as a whole.” Commonwealth v. Kelley, 359 Mass. 77, 92 (1971).