witness hearing in Massachusetts

2024As both parties agree, "[t]he failure to give a requested instruction on the use of prior inconsistent statements in assessing the credibility of a witness is error if there is evidence that a witness made prior inconsistent statements." Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), citing Commonwealth v. Martin, 19 Mass. App. Ct. 117, 119-120 (1984).

2004“The failure to give a requested instruction on the use of prior inconsistent statements in assessing the credibility of a witness is error if there is evidence that a witness made prior inconsistent statements.” Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), citing Commonwealth v. Martin, 19 Mass. App. Ct. 117, 119-120 (1984).

2024As both parties agree, "[t]he failure to give a requested instruction on the use of prior inconsistent statements in assessing the credibility of a witness is error if there is evidence that a witness made prior inconsistent statements." Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), citing Commonwealth v. Martin, 19 Mass. App. Ct. 117, 119-120 (1984).

2004“The failure to give a requested instruction on the use of prior inconsistent statements in assessing the credibility of a witness is error if there is evidence that a witness made prior inconsistent statements.” Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), citing Commonwealth v. Martin, 19 Mass. App. Ct. 117, 119-120 (1984).

2014Their purpose was to arrest the defendant on the warrant that they believed was still outstanding.” We pause in our recitation of the judge’s findings to note that Officer Burrows, who was the sole witness at the hearing and whose testimony is not disputed (see Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 [2007], S.C., 450 Mass. 818 , 819-821 & n.4 [2008]), testified in addition that by 4:30 p.m. at least seven officers had returned to the area and were “just waiting for transmissions” from the two detectives who had remained behind and were still watching the residence.

2014Their purpose was to arrest the defendant on the warrant that they believed was still outstanding." We pause in our recitation of the judge's findings to note that Officer Burrows, who was the sole witness at the hearing and whose testimony is not disputed (see Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 [2007], S.C., 450 Mass. 818 , 819-821 & n.4 [2008]), testified in addition that by 4:30 P.M. at least seven officers had returned to the area and were "just waiting for transmissions" from the two detectives who had remained behind and were still watching the residence.

2014Their purpose was to arrest the defendant on the warrant that they believed was still outstanding.” We pause in our recitation of the judge’s findings to note that Officer Burrows, who was the sole witness at the hearing and whose testimony is not disputed (see Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 [2007], S.C., 450 Mass. 818 , 819-821 & n.4 [2008]), testified in addition that by 4:30 p.m. at least seven officers had returned to the area and were “just waiting for transmissions” from the two detectives who had remained behind and were still watching the residence.

2014Their purpose was to arrest the defendant on the warrant that they believed was still outstanding." We pause in our recitation of the judge's findings to note that Officer Burrows, who was the sole witness at the hearing and whose testimony is not disputed (see Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 [2007], S.C., 450 Mass. 818 , 819-821 & n.4 [2008]), testified in addition that by 4:30 P.M. at least seven officers had returned to the area and were "just waiting for transmissions" from the two detectives who had remained behind and were still watching the residence.

2014Commonwealth v. Doe, supra. At the same time, we also have recognized that “[w]hen it is a ‘foregone conclusion’ that a witness has certain items, and the items themselves are not privileged, the witness has no privilege.” Id. at 680-681, citing Commonwealth v. Hughes, supra at 590 , and Fisher v. United States, 425 U.S. at 411 .

1989See Commonwealth v. Hughes, 380 Mass. 583, 590 (1980), citing Fisher v. United States, 425 U.S. 391, 411 (1976).

2014Commonwealth v. Doe, supra. At the same time, we also have recognized that “[w]hen it is a ‘foregone conclusion’ that a witness has certain items, and the items themselves are not privileged, the witness has no privilege.” Id. at 680-681, citing Commonwealth v. Hughes, supra at 590 , and Fisher v. United States, 425 U.S. at 411 .

1989See Commonwealth v. Hughes, 380 Mass. 583, 590 (1980), citing Fisher v. United States, 425 U.S. 391, 411 (1976).

2006Commonwealth v. Kitchings, 40 Mass. App. Ct. 591 , 593 n.4 (1996).

2001See Commonwealth v. Kitchings, 40 Mass. App. Ct. 591 , 593 n.4 (1996) (where police officer was the only witness at the hearing on the motion to suppress, and the motion judge plainly credited his testimony, appellate court may adopt officer’s testimony as to certain additional facts).

2024The obligation to instruct only attaches when a statement "either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict." Ortiz, supra at 72 , quoting Commonwealth v. West, 312 Mass. 438, 440 (1942).

2019See Commonwealth v. Jones-Pannell , 472 Mass. 429 , 433, 35 N.E.3d 357 (2015). 3 Torres explained that a bladed stance refers to a fighting position. 4 The Commonwealth does not argue that an inventory search was conducted at any point. 5 The record is unclear as to whether the defendant undressed himself or whether the officers removed his clothing. 6 The defendant also moved to suppress on the grounds that police lacked reasonable suspicion to justify the initial stop and frisk, and that his arrest was not supported by probable cause.

2019See Commonwealth v. Jones-Pannell , 472 Mass. 429 , 433, 35 N.E.3d 357 (2015). 3 Torres explained that a bladed stance refers to a fighting position. 4 The Commonwealth does not argue that an inventory search was conducted at any point. 5 The record is unclear as to whether the defendant undressed himself or whether the officers removed his clothing. 6 The defendant also moved to suppress on the grounds that police lacked reasonable suspicion to justify the initial stop and frisk, and that his arrest was not supported by probable cause.

2015While deference is still appropriate, the revised abuse of discretion standard confirms that an appellate court is entitled to correct a decision that is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. 10 See, e.g., Commonwealth v. Rosenthal, 432 Mass. 124, 124-125 (2000) (defendant convicted of murder despite insanity defense where victim’s organs were removed and impaled on stake). 11 Dr. Fox testified as a witness for the defense as requested by counsel notwithstanding his advice that “PTSD might be a defense worth pursuing” and that “further evaluat

2015Recently, in Commonwealth v. Vacher, 469 Mass. 425, 437, 439-441 (2014), we rejected constitutional challenges to the witness immunity statute, G.

2014See Commonwealth v. Diaz, 383 Mass. 73 , 76 n.5 (1981) (no serious constitutional issue of self-incrimination raised by disclosure of information that is “foregone conclusion”).

2014“In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

2014“In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

2014Evid. § 613(a)(1) (2014). 11 Because the error was preserved, we must determine whether “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (nonconstitutional error). 12 The defendant, who was the sole witness for the defense, was prejudiced by the improper insinuations and innuendo.

2014Evid. § 613(a)(1) (2014). 11 Because the error was preserved, we must determine whether “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (nonconstitutional error). 12 The defendant, who was the sole witness for the defense, was prejudiced by the improper insinuations and innuendo.

2009See Commonwealth v. Cintron, 435 Mass. 509, 522-525 (2001); Commonwealth v. Roberts, supra at 50-51 . 10 We no longer see any reason to preserve an element that may be satisfied by the absence of evidence.

2008The record shows that trial counsel tried to impeach Langley’s trial testimony with the police report in which he recounted hearing the threat. 13 Even if we accept the defendant’s contention, there is an obvious tactical reason trial counsel might not have wanted to impeach Langley: it would have reinforced Rolon’s testimony that she overhead the defendant say something about getting “heat.” See Commonwealth v. Candelario, 446 Mass. 847, 854 (2006) (deference given to tactical decisions of trial counsel unless decisions manifestly unreasonable).

2006Commonwealth v. Maillet, 400 Mass. 572, 576-578 (1987).

2005See Commonwealth v. Warren, 403 Mass. 137, 141 (1988).

2004See Commonwealth v. Licata, 412 Mass. 654, 660-661 (1992) (defendant entitled to have a hearing on his motion for new trial where his allegations, if true, raised serious issues as to the adequacy of his trial counsel's defense).

2004See Adoption of Larry, 434 Mass. 456, 462 (2001) (deferring to judge’s assessment of witness credibility).

2003Galvin v. New York, New Haven & Hartford Railroad, 341 Mass. 293, 296 (1960).

2002See Commonwealth v. Alvarado, supra at 268 n.2.