Opinion
10-P-1736
11-02-2011
COMMONWEALTH v. JAMES W. WALSH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James W. Walsh, was convicted by a jury of assault and battery. The victim was his wife. He appeals, claiming that (1) the jury instruction on defense of another was faulty; and (2) a comment by the judge to the jury concerning closing argument was improper. We affirm.
Putting aside that there was no objection to the jury instruction as given (indeed it was in language suggested by the defendant), the simple answer to the defendant's first claim is that there was insufficient evidence of defense of another in this case. Accordingly, no such jury instruction was mandated.
As for the second claim, the judge was merely explaining to the jury the order of presentation. In no way, especially given all of the jury instructions, was there any burden shifting. There was no error.
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm the judgment.
So ordered.
By the Court (Grasso, Brown & Kantrowitz, JJ.),