Opinion
No. 11–P–1299.
2012-10-22
COMMONWEALTH v. Justin CRUZ.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court, the defendant was convicted of armed robbery and two counts of armed assault with intent to rob. On appeal he argues that there were errors in the jury instructions and the prosecutor's closing argument, and that the Commonwealth's case at trial was impermissibly at odds with the case it presented to the grand jury. We affirm.
Facts. At trial, two victims testified that as they were walking together down Bedford Street in Fall River on the night of May 30, 2009, they were accosted by a group of men. One of the men, identified at trial as the defendant, threatened the victims with a knife and demanded that they hand over their property. A second man also brandished a knife at the victims, and when the victims ran away, both men chased after them. Jury instructions. The judge correctly instructed the jury that they were to find the defendant guilty if they concluded that he had “intentionally participat[ed] in some meaningful way in the commission of the offense with the intent required to commit the offense.” See Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). However, she did not explain that in order to find the defendant guilty of armed assault with intent to rob, they would have to find either that the defendant himself directly committed the assault with a knife, or that the other individual committed the assault and the defendant participated while knowing that his coventurer was armed with a knife. The Commonwealth concedes that the defendant would have been entitled to such an instruction had he requested it. See Commonwealth v. Bolling, 462 Mass. 440, 450–451 (2012). No such request was made, however, and the defendant did not object to the jury charge. We therefore review for a substantial risk of a miscarriage of justice, a standard under which “[w]e review the entirety of the case to determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ “ Id. at 452, quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
The Commonwealth's evidence detailed two incidents of robbery, one involving a single victim and another involving two victims. In light of the specific issues raised on appeal, we do not recite the facts of the former incident.
One of the victims positively identified the defendant at trial. The other offered a more equivocal identification, based in part on the difference between the color of the defendant's hair at trial and its color during the robbery, at which time it was dyed bright red. The Commonwealth presented evidence from which the jury could have concluded that the defendant's hair had been dyed bright red during the spring of 2009.
No such doubt exists in this case. The judge instructed the jury that in order to return a guilty verdict, they had to be convinced beyond a reasonable doubt that the defendant had “knowingly” and “intentionally” participated in the crime charged, with the intent required to commit the offense. The only crimes with which the defendant was charged were armed robbery and armed assault with intent to rob, both of which the judge correctly defined as requiring the use of a dangerous weapon. The jury were thus aware that they were required to find that the defendant knowingly participated in a crime involving the use of a dangerous weapon. See Commonwealth v. Palmer, 59 Mass.App.Ct. 415, 424 (2003); Commonwealth v. Dosouto, 82 Mass.App.Ct. 474, 481 (2012). Contrast Commonwealth v. Bolling, supra at 451 n. 9 (twenty-six pages in transcript between Zanetti charge and instruction on elements of armed assault).
Moreover, the evidence at trial consistently showed that both robbers openly brandished knives and that both actively participated in the robbery attempt. The defense at trial was not that the defendant was unarmed and had no knowledge of his compatriot's knife, but instead that he was not present at the robbery at all and had been misidentified by the victims. It is thus unlikely that the omitted jury instruction would have made a difference to the outcome of the case. See Commonwealth v. Dosouto, supra. See also Commonwealth v. Hoa Sang Duong, 52 Mass.App.Ct. 861, 869–870 (2001); Commonwealth v. Luciano, 79 Mass.App.Ct. 54, 60–61 (2011). Contrast Commonwealth v. Claudio, 418 Mass. 103, 113 (1994) (“The identity of the stabber, and whether any member of the group [including the defendant] was visibly armed, were disputed at trial”); Commonwealth v. Colon, 52 Mass.App.Ct. 725, 726 (2001) (weapon was in coventurer's inside coat pocket); Commonwealth v. Bolling, supra at 452 (defendant testified that he did not know coventurer was armed until after the assault took place).
Closing argument. There is no merit to the defendant's claim that the prosecutor's closing argument improperly disparaged the role of defense counsel or contained a statement of personal opinion as to the defendant's guilt. In context, the passage of the closing that referenced defense counsel was merely an argument to the jury that while the defense may have succeeded in pointing to some inconsistencies, the evidence as a whole still supported a finding of guilt beyond a reasonable doubt. Similarly, the passage the defendant complains of as a statement of the prosecutor's personal opinion merely constituted an argument that the evidence in the case strongly supported an inference of guilt. See generally Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Finally, while the prosecutor's comments on the defendant's interview with the police were inartfully stated, read in context they are best seen as an argument that the defendant's statements during the interview did not make sense and should not be credited. We note that the closing drew no objection, which “is not only ‘a sign that what was said sounded less exciting at trial than appellate counsel now would have it seem,’ ... but it is also ‘some indication that the tone [and] manner ... of the now challenged aspect of the prosecutor's argument were not unfairly prejudicial.’ “ Commonwealth v. Leach, 73 Mass.App.Ct. 758, 768 (2009) (citations omitted). There was no substantial risk of a miscarriage of justice.
Estoppel. The Commonwealth did not take contradictory positions at different stages of the proceedings. Instead, the Commonwealth consistently asserted that the defendant and another man, both carrying knives, accosted the two victims, demanded their property, and then chased after them when they ran away. The difference between the details of one victim's police interview (as relayed to the grand jury through an officer's recollection of a police report written by another officer) and the testimony at trial, as to which robber held a knife to which victim's throat, went to the weight of the evidence, and defense counsel fully aired the issue at trial.
Judgments affirmed.