formulation standard in Massachusetts

2024See Commonwealth v. Castillo, 55 Mass. App. Ct. 563, 568 (2002) (jury charge accurately stated 2 The different formulation of the instruction argued for by the respondent on appeal suffers from the same infirmity. 8 elements of crime, and judge properly rejected defendant's proposed instruction, which "would have effectively constrained the definition of the offense").

2017In this appeal, however, the defendant argues that the instruction created a substantial likelihood of a miscarriage of justice because the judge failed adequately to inform the jury of the real possibility that the defendant could be committed for life. 11 We have considered the additional arguments in the defendant's reply brief filed pursuant to Commonwealth v. Moffett, 383 Mass. 201, 207-208 (1981), and conclude that they are unavailing. 24 In Chappell, 473 Mass. at 205-206 , we modified the model Mutina instruction set forth in our Model Jury Instructions on Homicide, effective at the tim

2014Restatement (Second) of Contracts §265 (1981); see also Chase Precast, 409 Mass. at 375 (“the Restatement’s formulation of the doctrine is consistent with [the Supreme Judicial Court’s] previous treatment of impossibility of performance and frustration of purpose”).

2014Restatement (Second) of Contracts §265 (1981); see also Chase Precast, 409 Mass. at 375 (“the Restatement’s formulation of the doctrine is consistent with [the Supreme Judicial Court’s] previous treatment of impossibility of performance and frustration of purpose”).

2014Therefore, were we to determine the specific formulation of the standard for prejudice to be applied to defendants seeking to withdraw a guilty plea based on either newly discovered evidence or prosecutorial nondisclosure, we may well conclude that the most appropriate formulation would be the reasonable probability standard that we adopted in Clarke, supra, which also reflects the standard in Ferrara, supra. Consequently, passing on the question whether a voluntary guilty plea constitutes a waiver of the right to seek a new trial on the grounds of either newly discovered evidence or prosecuto

2014For example, these factors may include whether the defendant had a substantial ground of defense that would have been pursued at trial or whether any other special circumstances were present on which the defendant may have placed particular emphasis in deciding whether to accept the government’s offer of a plea agreement. 13 See Clarke, 460 Mass. at 47-48 .

2005In so ruling, we reject the city’s argument that erotic dancers, clad in the oft-cited sartorial combination of “pasties and G-strings,” may nevertheless express an equivalent “message” without dropping “the last stitch.” Erie, supra at 294 (opinion of O’Connor, J.).

1997This formulation of the doctrine as we have stated it was made abundantly clear in Commonwealth v. Rodriguez, 11 Mass. App. Ct. 379, 380 (1981) (“It has long been held that lesser included offenses are those necessarily included in the offense as charged” 5 ).

1996See Commonwealth v. O’Connor, 406 Mass. 112 , 121 n. 8 (1989).

1996I won’t let the Commonwealth down.” The unconditional reading that the defendant gives to Commonwealth v. Barber, 37 Mass. at 602-603, ignores the point, explicated in Commonwealth v. Nolan, 19 Mass. 491 , 494-501 (1985), that underlying the rules relating to withdrawal of guilty pleas and the cases that led to the rules’ formulation is the principle that the defendant must have “offered the plea voluntarily and knowingly.” See also Boykin v. Alabama, 395 U.S. 238, 242-243 (1969); Commonwealth v. Foster, 368 Mass. 100, 106 (1975).

1996I won’t let the Commonwealth down.” The unconditional reading that the defendant gives to Commonwealth v. Barber, 37 Mass. at 602-603, ignores the point, explicated in Commonwealth v. Nolan, 19 Mass. 491 , 494-501 (1985), that underlying the rules relating to withdrawal of guilty pleas and the cases that led to the rules’ formulation is the principle that the defendant must have “offered the plea voluntarily and knowingly.” See also Boykin v. Alabama, 395 U.S. 238, 242-243 (1969); Commonwealth v. Foster, 368 Mass. 100, 106 (1975).

1995For a discussion of this problem, see Brennan v. Cunningham, 813 F.2d 1, 7-8 (1st Cir. 1987).

1984See Commonwealth v. O’Malley, 14 Mass. App. Ct. 314, 319 (1982), which summarized the effect of the Thurber case as drawing attention to “a formulation of the defense [of necessity] which requires the presence of five specified circumstances” mentioned in the Lovercamp case. 2 In the Thurber case (at 330-331), the court went on to say that, if the court should ‘ ‘apply the doctrine [of necessity] as a justification for escape in a proper case, we think . . . [the Lovercamp] circumstances should at least be taken into account.” Mandile contends that the trial judge in his charge overstated the

1982In that case, the Supreme Judicial Court focused on a formulation of the defense which requires the presence of five specified circumstances, see People v. Lovercamp, 43 Cal. App. 3d 823, 831-832 (1974), 6 and stated the following: “Assuming that we would apply the doctrine as a justification for escape in a proper case [7] we think such circumstances should at least be taken into account.” Commonwealth v. Thurber, supra at 330 .

1977So ordered. 1 The defendant is not aided by the formulation of the standard for review in Langis v. Danforth, 308 Mass. 508, 510 (1941) —also found in Rubin v. Arlington, 327 Mass. 382, 385 (1951) —viz.: “Except in rare instances where, as matter of law, the exclusion of the proffered evidence would be unwarranted, the preliminary question of the qualification of a witness called as an expert must rest with the trial judge.” This formulation does not preclude reversal in “cases where the decision of the trial judge is plainly erroneous....” Rubin v. Arlington, supra at 384-385 , citing among o

1977So ordered. 1 The defendant is not aided by the formulation of the standard for review in Langis v. Danforth, 308 Mass. 508, 510 (1941) —also found in Rubin v. Arlington, 327 Mass. 382, 385 (1951) —viz.: “Except in rare instances where, as matter of law, the exclusion of the proffered evidence would be unwarranted, the preliminary question of the qualification of a witness called as an expert must rest with the trial judge.” This formulation does not preclude reversal in “cases where the decision of the trial judge is plainly erroneous....” Rubin v. Arlington, supra at 384-385 , citing among o

1977Cf. Commonwealth v. Seit, 373 Mass. 83, 91-92 (1977). 2 We note that in addition to a lifetime of experience with motor vehicles culminating in his work as a service manager for Ford dealerships for the past twenty-seven years, Mudie, according to his undisputed testimony at the voir dire, held a certificate issued by the Commonwealth to teach automotive engineering in vocational training programs and had attended about 20 to 25 one-to-three day programs at the Ford Motor Company factory with reference to mechanical work.

1977So ordered. 1 The defendant is not aided by the formulation of the standard for review in Langis v. Danforth, 308 Mass. 508, 510 (1941) —also found in Rubin v. Arlington, 327 Mass. 382, 385 (1951) —viz.: “Except in rare instances where, as matter of law, the exclusion of the proffered evidence would be unwarranted, the preliminary question of the qualification of a witness called as an expert must rest with the trial judge.” This formulation does not preclude reversal in “cases where the decision of the trial judge is plainly erroneous....” Rubin v. Arlington, supra at 384-385 , citing among o

1975Authy. v. Boston Safe Deposit & Trust Co. 348 Mass. 538, 544 (1965): “The standards for action to carry out a declared legislative policy may be found not only in the express provisions of a statute but also in its necessary implications.