Opinion
11-P-201
05-03-2012
COMMONWEALTH v. JOHN PICKENS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Upon review of the briefs, record appendix, and transcript, we find no merit in the defendant's various claims of error. Nor do we discern any serious missteps on the part of the motion judge. Accordingly, we address each claim of error in a summary manner, for the most part relying on the Commonwealth's brief and, where appropriate, citing relevant case law.
As to the defendant's claim that he was fatally prejudiced by the absence of a Pressley instruction, we think that issue was fully considered and correctly decided adversely to him in our earlier opinion. See Commonwealth v. Pickens, 57 Mass. App. Ct. 926, 926-927 (2003).
See Commonwealth v. Pressley, 390 Mass. 617, 620 (1983).
The defendant's claim that the motion judge abused his discretion or otherwise erred in concluding that the Commonwealth's failure to turn over exculpatory evidence -- the photograph of the defendant wearing glasses when he was booked -- is likewise unavailing. The judge properly could conclude, as he did, that the photograph was 'cumulative' of other evidence introduced at trial. We also agree that 'the defendant has not established [on this record] that the photograph would have likely influenced the jury's deliberations.' See Commonwealth v. Neal, 392 Mass. 1, 12 (1984).
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Rubin, Brown & Hanlon, JJ.),