Opinion
14-P-390
11-05-2015
COMMONWEALTH v. WILFREDO ALAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Wilfredo Alas, was convicted by a jury in Superior Court on a four-count indictment charging rape and abuse of a child under sixteen years of age, G. L. c. 265, § 23, assault with intent to rape a child, G. L. c. 265, § 24B, and two counts of indecent assault and battery on a child under fourteen years of age, G. L. c. 265, § 13B. On appeal he asserts that the judge committed reversible error in giving a reasonable doubt instruction violative of his State and Federal constitutional rights.
Reasonable doubt instruction. The defendant claims that the trial judge's deviation from the Webster charge on reasonable doubt set the Commonwealth's burden of proof too low and the standard for acquittal too high. Commonwealth v. Webster, 5 Cush. 295 (1850). This same argument is addressed in Commonwealth v. Russell, 470 Mass. 464 (2015) (Russell). There the Supreme Judicial Court determined that the same language used here "adequately 'impress[ed] upon the [jury] the need to reach a subjective state of near certitude of the guilt of the accused.'" Id. at 474, quoting from Victor v. Nebraska, 511 U.S. 1, 15 (1994), quoting from Jackson v. Virginia, 443 U.S. 307, 315 (1979). Although the Supreme Judicial Court exercised its authority "to require a uniform instruction on proof beyond a reasonable doubt," it provided the charge would not apply retroactively as "a reasonable jury would not have misunderstood the reasonable doubt instruction that was given." Russell, 470 Mass. at 477, 479.
The judge's instruction on reasonable doubt, in pertinent part, stated:
"Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. This is what we mean by proof beyond a reasonable doubt."
The same trial judge presided over Russell as in this case, and gave virtually the same instruction on reasonable doubt. See 470 Mass. at 470 n.7.
The defendant further argues that the presumption of innocence charge and role of the jury instruction were, unlike in Russell, inadequate here. The record shows otherwise. The trial judge's presumption of innocence charge contained the same material points as those prescribed in Russell's new model instruction, namely that every defendant is presumed to be innocent and that the burden of proof is on the prosecutor. 470 Mass. at 477. As he had in Russell, the trial judge also gave a lengthy instruction on the venerable role of the jury. See id. at 479 n.10, citing with approval the judge's instruction there.
The trial in this case occurred in 2012.
Judgments affirmed.
By the Court (Trainor, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 5, 2015.