Opinion
14-P-794
06-03-2015
COMMONWEALTH v. RANDY ARIAS.
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
On December 15, 2010, the defendant was convicted of second degree murder and assault and battery by means of a dangerous weapon. On October 30, 2013, this court affirmed the convictions, and further appellate review was denied. Commonwealth v. Arias, 84 Mass. App. Ct. 454 (2013), rev. denied, 467 Mass. 1101 (2014). On May 1, 2014, a Superior Court judge (who was also the trial judge) denied the defendant's motion for release from unlawful restraint, a new trial, or posttrial discovery and hearings. The defendant now appeals from the denial of the motion for a new trial. We affirm.
The defendant first claims that the jury instruction on reasonable doubt was flawed because it omitted the "moral certainty" language of Commonwealth v. Webster, 5 Cush. 295, 320 (1850). He claims that appellate counsel's failure to raise the issue on direct appeal constituted ineffective assistance of counsel. Although defense counsel objected, after the charge, to the lack of "moral certainty" language in the reasonable doubt instruction, the defendant made no claim on direct appeal in this court that the instruction was flawed. He has thus waived the claim. See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). Our review is thus limited to a determination whether the reasonable doubt instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002). The Supreme Judicial Court recently re-examined reasonable doubt instructions in Commonwealth v. Russell, 470 Mass. 464, 479 (2015). Just as the trial judge did in this case, the judge in Russell gave a reasonable doubt instruction that omitted the "moral certainty" language from Webster and instead included language from the Federal Judicial Center's Instruction 21, including "firmly convinced" and "real possibility." Russell, supra at 470-471. While the court in Russell set out new reasonable doubt jury instructions to be used by trial judges in future criminal cases, see id. at 477, it concluded that the instructions used by the trial judge, when reviewed in their entirety to determine the overall impact on the jury, were adequate and caused no prejudice to the defendant. Id. at 479. The jury instructions on reasonable doubt were similarly adequate in this case. There was no substantial risk of a miscarriage of justice. See Commonwealth v. Figueroa, 468 Mass. 204, 221 (2014) (no substantial risk of a miscarriage of justice where instructions did not lead jury to believe they could convict on proof less convincing than beyond a reasonable doubt).
This court has found Instruction 21, by itself, to be sufficient to constitute a proper reasonable doubt instruction. See, e.g., Commonwealth v. Hurd, 65 Mass. App. Ct. 788, 789-792 (2006); Commonwealth v. Lebron, 66 Mass. App. Ct. 907, 908-909 (2006).
The defendant next contends that the jury instruction on presumption of innocence was flawed because it did not warn the jury not to base their decision on "suspicion or conjecture." As with the reasonable doubt instruction, trial counsel objected but the issue was waived because it was not raised on direct appeal. See Rodwell, 432 Mass. at 1018. We review to determine whether the instruction created a substantial risk of a miscarriage of justice. See Randolph, supra at 295-296. The judge explicitly instructed the jury not to "base [its] verdict on guess work or speculation." He explained that "the defendant is presumed to be innocent unless and until at trial he's proven guilty. And the Commonwealth has to prove him guilty beyond a reasonable doubt." In addition, the judge otherwise adequately explained the presumption of innocence standard. See Commonwealth v. Sleeper, 435 Mass. 581, 600 (2002), citing Commonwealth v. Drayton, 386 Mass. 39, 46 (1982). There was no error.
The defendant also contends that there was insufficient evidence to prove second degree murder. His argument focuses on the possibility of a misidentification. This argument was his primary defense at trial, see Arias 84 Mass. App. Ct. at 454, but he failed to raise this sufficiency claim in his first appeal. See generally ibid. It is therefore waived and subject to review for substantial risk of a miscarriage of justice. See Commonwealth v. Joyner, 467 Mass. 176, 180 (2014). In any event, as set forth in this court's statement of facts on direct appeal, Arias, supra at 456 & n.4, 456-457, there was sufficient evidence supporting the conviction. See Commonwealth v. Clements, 436 Mass. 190, 195 (2002) (witness identification of a shooter is sufficient to sustain a conviction).
Relatedly, the defendant appears to assert for the first time that there was insufficient evidence of malice aforethought. We agree with the Commonwealth that the evidence was sufficient. Malice may be inferred from the use of a dangerous weapon; in the instant case, the gun qualifies. Commonwealth v. Perez, 444 Mass. 143, 153 (2005), citing Commonwealth v. Guy, 441 Mass. 96, 107 (2004).
Lastly, the defendant argues that the trial judge's manslaughter instructions were "errant," "confusing," and "nonexistent" because they did not adequately explain that the jury could convict him of manslaughter if they found he was using excessive force to defend another. This claim was already substantially decided in the defendant's original appeal. Arias, supra at 467. The defendant cannot in a motion for new trial obtain "review and reconsider[ation]" of questions already "reviewed by an appellate court." Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). To the extent, if any, as the defendant claims, the instructional issues are "completely different" from those raised by appellate counsel, they are waived and subject to review only for substantial risk of a miscarriage of justice. This court has determined that because the trial judge explained mitigation in relation to self-defense, and explained that defense of another "mirror[ed]" self-defense, Arias, supra at 459, "[w]hen the instructions are considered as a whole, and not parsed out in isolation, we conclude that the defendant's claims are without merit." Id. at 467-468. The Arias court further stated that, even if there were error in the instructions, the court "could not conclude that the defendant suffered any real prejudice or that the error materially influenced the verdict." Id. at 468. The motion judge properly denied any new claim of error in the manslaughter instructions.
Order denying motion for new trial affirmed.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 3, 2015.