Commonwealth v. Johnson

The defendant filed an application in the county court under G. L. c. 278, § 33E, for leave to appeal from the denial of his second motion for a new trial. A single justice reserved and reported the case to the full court on the question whether a so-called Acevedo error in the jury instructions on the burden of proof on provocation presents a “new and substantial” question under the statute, Commonwealth v. Acevedo, 427 Mass. 714, 717 (1998) (Acevedo), and if it does, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290,…