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Mass. high court hears argument over whether prosecutors can raise new intent theories on appeal in breaking-and-entering case
Summary
At oral argument in SJC13813, defense counsel argued the Commonwealth cannot advance new theories of intent on appeal, citing Commonwealth v. Lee; the Commonwealth urged the court to allow unspecified underlying misdemeanors or felonies where evidence supports them, citing Rogan and older variance cases.
At oral argument in SJC13813, appellate counsel Brad Baranowski told the court the key question is whether the Commonwealth may "raise new theories of intent on appeal" to uphold a conviction for breaking and entering. "The Commonwealth cannot do so," Baranowski said, urging the court to apply Commonwealth v. Lee and related precedent that appellate arguments must be rooted in theories presented at trial.
The Commonwealth, represented by Ellen Lazar (who opened the argument after counsel for the appellant), asked the court to affirm the conviction for breaking and entering with intent to commit a misdemeanor, arguing the record supported either larceny or criminal trespass as the intended crime. "In Rogan the court explicitly said that the case…
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