defendant argues instruction in Massachusetts

2026The defendant argues that defense counsel's failure to object to evidence of anal penetration was "deficient performance" and "resulted in material prejudice." When attempting to establish a claim of ineffective assistance of counsel, a defendant "bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89,

2003The defendant argues that defense counsel was ineffective because he “failed to specify in either the motion to suppress or the supporting memorandum the fact that there was a second entry . . . into the apartment.” Because we conclude that the defendant voluntarily consented to the officers’ second entry, we also conclude that defense counsel’s behavior did not fall below the standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2012“Error in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.” Commonwealth v. Petetabella, 459 Mass. 177, 184 (2011), quoting Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert. denied, 451 U.S. 973 (1981).

2007We determined in Commonwealth v. Walker, 68 Mass. App. Ct. 194, 204 (2007), that “[t]he content and manner of delivery of jury instructions is ultimately a matter that must be left to the discretion of the trial judge.” We find “error ... by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.” Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert. denied, 451 U.S. 973 (1982). “[T]he propriety of a jury instruction” calls for consideration of “the context in which it was delivered, in order that we might determine its probable effect on the jur

2000The Commonwealth had the burden of demonstrating beyond a reasonable doubt that any Miranda waiver by the defendant was “knowing, intelligent, and voluntary.” Commonwealth v. Judge, 420 Mass. 433, 447 (1995), citing Miranda v. Arizona, 384 U.S. 436, 475 (1966), Commonwealth v. Tavares, 385 Mass. 140, 143 , cert. denied, 457 U.S. 1137 (1982), and Commowealth v. Cobb, 374 Mass. 514, 518 (1978).

1985In his charge the judge stated in part “that anything that a defendant says has to be voluntary, he has to know what he’s doing and speak voluntarily. . . . [T]he police can’t con a man into saying something he doesn’t want to say. . . . [T]he statement of anybody being questioned by the police must be an intelligent and voluntary act.” Because Commonwealth v. Tavares, 385 Mass. 140, 152 (1982), requires the Commonwealth to prove beyond a reasonable doubt the voluntariness of a defendant’s admissions, the defendant argues that the instruction was fatally flawed.

2026The defendant argues that defense counsel's failure to object to evidence of anal penetration was "deficient performance" and "resulted in material prejudice." When attempting to establish a claim of ineffective assistance of counsel, a defendant "bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89,

2026The defendant takes the phrase "immediate self-defense" from District of Columbia v. Heller, 554 U.S. 570, 635 (2008), which struck down a law that required any firearm in the home be disassembled or bound by a trigger lock at all times, rendering the firearm inoperable.

2025The defendant argues that rule 36 (b) (2) (F) should not apply here because it applies only to continuances and the scheduling of a previously unscheduled trial date is not a "continuance" or "delay." See id. at 532-533 ("where a defendant agrees for the first time to schedule a previously unscheduled event, there is no 'continuance' or 'delay' that can be excluded under rule 36").

2024See Commonwealth v. Sepheus, 468 Mass. 160, 172 (2014) (trial 12 counsel was ineffective for failing to move to strike nonresponsive answer on cross-examination that supplied Commonwealth with proof of essential element of crime).

2024As no objection was raised to this instruction at trial, we review this unpreserved claim to determine "whether there was error and, if so, whether it created a substantial likelihood of a miscarriage of justice." Brown, 477 Mass. at 814-815 , citing Commonwealth v. Wright, 411 Mass. 678, 681 (1992), S.C., 469 Mass. 447 (2014).

2020The defendant argues that the waiver and the statements were involuntary based on these deceptive representations. "[D]eception or trickery does not necessarily compel suppression of the confession or admission but, instead, is one factor to be considered in a totality of the circumstances analysis." Newson, 471 Mass. at 230 , quoting Commonwealth v. Tremblay, 460 Mass. 199, 208 (2011).

2017The defendant argues that the instruction concerning the relationship between the voluntary consumption of drugs or alcohol and the question of criminal responsibility did not conform to the instructions provided in Commonwealth v. Berry, 457 Mass. 602 , 617-618 & n.9 (2010), S.C., 466 Mass. 763 (2014), and revised in Commonwealth v. DiPadova, 460 Mass. 424, 439 (2011) (Appendix), and thereby created a substantial risk of a miscarriage of justice. 15 In *15 particular, the defendant argues that the judge’s instruction in this case was flawed insofar as it could have caused the jury to discount

2017The defendant argues that the rule established in Department of Youth Servs. has been called into question by our subsequent decisions in Commonwealth v. Brown, 449 Mass. 747, 768 (2007), and Commonwealth v. Rutkowski, 459 Mass. 794 , 799- 800 (2011).

2017Although Berry and DiPadova were decided a decade after the defendant’s trial, “he is entitled to the benefit of changes in decisional law that are announced after trial and pending his direct review.” Commonwealth v. Johnston, 467 Mass. 674, 704 (2014).

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

2015The defendant argues error in the judge’s instructions on extreme atrocity or cruelty based on second and third prong malice. 8 To prove malice required for a murder committed on a theory of extreme atrocity or cruelty, “the Commonwealth must prove one of three prongs: (1) intent to kill the victim; (2) intent to cause grievous bodily harm to the victim; or (3) commission of an act that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood of death.” Commonwealth v. Riley, 467 Mass. 799, 821-822 (2014).

2015The defendant argues error in the judge's instructions on extreme atrocity or cruelty based on second and third prong malice.8 To prove malice required for a murder committed on a theory of extreme atrocity or cruelty, 8 The Commonwealth also proceeded against the defendant on the theory of deliberate premeditation, but the jury did not find him guilty on that theory. 10 "the Commonwealth must prove one of three prongs: (1) intent to kill the victim; (2) intent to cause grievous bodily harm to the victim; or (3) commission of an act that, in the circumstances known to the defendant, a reasonab

2015That *626 objection focused on the judge’s unwillingness to give an “amplification” of the instruction regarding eyewitness identification in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), S.C., 419 Mass. 1006 (1995), and his inclination to give a “straight” Rodriguez instruction, an inclination the judge later revised when he learned there was no positive identification of the defendant as the shooter.