Opinion
No. 15–P–1131.
12-22-2016
COMMONWEALTH v. Christopher McCARTHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was found not guilty of assault with intent to murder, but guilty of assault and battery by means of a dangerous weapon. On appeal, he claims that the judge erred in failing to use specific language in his final charge to the jury regarding testimony about prior violent acts of the defendant. He also asserts error by the prosecutor in his closing argument by, among others, use of alleged unfair inferences and rhetorical questions, and shifting the burden of proof. We affirm.
1. Final charge. The defendant claims that the judge erred in his final charge to the jury regarding what was the proper evidentiary use of the defendant's prior violent acts. We disagree.
In Commonwealth v. Morales, 464 Mass. 302, 311 (2013), the Supreme Judicial Court determined that if prior violent acts evidence is admitted at trial, the "judge must instruct the jury specifically on the proper and limited use of such evidence, both contemporaneously with the introduction of the evidence and at the end of the case." In reviewing jury instructions, we look at "the charge as a whole to determine whether it fairly instructs the jury." Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). Because the defendant did not object to the jury instructions at trial, we review his claim of error only to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Here, when considering each instruction given throughout the course of the trial as a whole, the judge properly and abundantly instructed the jury. As identity of the first aggressor was an issue in the case, the judge appropriately allowed evidence of the victim's prior violent acts, as well as prior violent acts of the defendant. See Commonwealth v. Adjutant, 443 Mass. 649, 660–664 (2005). When prior violent acts evidence was introduced as to the defendant and the victim, the judge properly instructed the jury as to the purpose and limitations of such evidence, that is, for use only to evaluate the issue of first aggressor. This instruction was given four times over the course of the trial. He then twice gave similar, though not verbatim, instructions during his final charge.
Specifically, before testimony as to the prior violent acts of the defendant, the judge informed the jury: "We are about to hear evidence regarding the defendant in this case. I am going to give you the same instructions that in this case here, who was the first aggressor is in dispute. Therefore, the law permits you to consider on this limited issue of initial aggressor, and on this issue alone, is the evidence that you are going to hear at this point. So you may consider the evidence that you are going to hear at this point and give it whatever weight you deem appropriate on the issue of who was the first aggressor in this incident."
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There are no specific instructions a judge must give when charging the jury regarding first aggressor and prior violent acts evidence, only that the charge be "specifically on the proper and limited use of such evidence." Commonwealth v. Morales, supra at 311. The only other requirement is that it be given "contemporaneously with the introduction of the evidence and at the end of the case." Ibid. Contrary to the defendant's assertion, there is no requirement that the words, "could not be used for any other purpose," be contained in the jury instruction.
In his final instruction, the judge stated, "[f]or the purposes of determining who attacked whom first in the altercation, you may consider evidence of [the victim's] past violent conduct and whether or not the defendant knew of it. You may also consider evidence of the defendant's past conduct on the issue of who attacked whom first ." He also addressed the issue a second time, stating, "[f]or the purposes of determining who attacked whom first in the altercation, you may consider evidence of both the defendant's and [the victim's] past violent conduct, whether or not the defendant knew of it." By repeatedly informing the jury that the prior violent acts testimony may be used for the purpose of determining who attacked whom first in the altercation, the jury were informed of the specific purpose of such evidence.
2. Closing argument. The defendant also claims that the prosecutor erred in his closing argument by using rhetorical questions, thereby shifting the burden of proof to the defendant, and engaging in sympathy seeking and credibility vouching. We disagree. Because there was no objection to the closing argument at trial, we again review the claim of error to determine whether it created a substantial risk of a miscarriage of justice.
First, a prosecutor may use rhetorical questions in closing argument to explain the case. "[A] prosecutor may ask the jury rhetorical questions that touch on the defendant's constitutional right not to incriminate himself without violating that right provided the questions are not of such a nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify." Commonwealth v. Grant, 418 Mass. 76, 83 (1994) (quotation omitted). Here, the prosecutor's comments were attacking only the defendant's theory of the case, self-defense, and not his choice not to testify. Furthermore, any chance of harm was cured by the judge's instruction that the burden of proof rested with the Commonwealth, and that the defendant had a right not to testify. Commonwealth v. Nelson, 468 Mass. 1, 13 (2014).
Second, the prosecutor did not engage in vouching for credibility of witnesses or engendering sympathy from the jury. A prosecutor is allowed to help jurors analyze what has been presented to them through the closing argument. See Commonwealth v. Johnson, 429 Mass. 745, 750 (1999). The prosecutor's statement, "science doesn't lie," was not vouching for the credibility of the deoxyribonucleic acid evidence, as the prosecutor was summarizing the actual evidence presented at trial, and was attempting to establish the Commonwealth's position on the results of that evidence. Similarly, the prosecutor did not attempt to appeal to the sympathies of the jury, as he was emphasizing the testimony of the paramedic who tended to the victim's neck wound ; the paramedic testified that "there was copious amounts of blood coming out, like a waterfall of blood just coming out of [the victim's] throat." In fact, both the prosecutor in his closing argument, and the judge, told the jury that their feelings were not to be considered. Even if there was error, it does not rise to the level of a substantial risk of a miscarriage of justice.
Judgment affirmed.