Opinion
No. 09–P–1975.
2013-03-21
COMMONWEALTH v. Joseph A. BEBO, Jr.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of murder in the second degree. In this consolidated appeal, he makes several claims, all of which lack merit. We affirm.
1. Postverdict inquiry. A day after the jury found the defendant guilty, defense counsel found a book on a window ledge in the jury deliberation room. The book was entitled “Guilty: Liberal ‘Victims' and their Assault on America,” by Ann Coulter. Inside the book was a piece of paper on which the names of the defense counsel, the prosecutor, and the judge were written. Based on this, the defendant requested the judge conduct an inquiry of the jury. After permitting the defendant to supplement his motion, the judge held a nonevidentiary hearing and denied the motion. On appeal, the defendant claims the judge abused his discretion by denying the motion. We disagree.
It was the defendant's burden to demonstrate that the jury were in fact exposed to extraneous material. See Commonwealth v. Fidler, 377 Mass. 192, 201 (1979). “The party seeking judicial investigation must make a colorable showing that an extrinsic influence may have had an impact upon the jury's impartiality.” Commonwealth v. Dixon, 395 Mass. 149, 151–152 (1985). Here, the judge (after reading the book) properly determined that the defendant failed to make this preliminary showing. The book contains general political and social commentary written by a provocative, conservative author. As the judge found, the book's premise is that “liberals use any means to take unfair advantage of conservatives.” The book contained a few isolated passages that address crime and violence and that speak disparagingly about defense attorneys. It did not constitute extraneous matter, as it did not contain “information, knowledge, or specific facts about one of the parties or the matter in litigation that did not come from the evidence at trial.” Commonwealth v. Greineder, 458 Mass. 207, 246 (2010). See Commonwealth v. Fidler, supra at 200. Also, as the judge held, even if we concluded the book constituted extraneous matter, the defendant has not shown—beyond speculation—that the jury considered the book during deliberations. See Commonwealth v. Dixon, supra. Finally, the jury were instructed to confine their deliberations to the evidence, and we are to presume the jury followed that instruction. See Commonwealth v. Lynch, 439 Mass. 532, 544 (2003).
2. Closing argument. The defendant claims the prosecutor's closing argument improperly attacked defense counsel and vouched for witnesses. We disagree. Defense counsel argued that the police had engaged in “an abusive investigation with threats and intimidation,” and had prematurely focused on the defendant as the perpetrator. In response, the prosecutor told the jury not to be “fooled” or “distracted” by counsel's attack on the police investigation and to focus on the evidence instead. This was a proper argument. See Commonwealth v. Cameron, 385 Mass. 660, 669–670 (1982); Commonwealth v. Cohen, 412 Mass. 375, 386–387 (1992). “The prosecutor [was] entitled to make a fair reply to the defendant's closing argument.” Commonwealth v. Smith, 404 Mass. 1, 7 (1989). Indeed, the prosecutor argument did not personally disparage defense counsel, but rather urged the jury to find the defendant guilty based upon the evidence.
The defendant objected to the claimed attack on defense counsel, but did not raise an objection related to vouching.
Also contrary to the defendant's claim, the prosecutor did not vouch for any witness. The challenged remarks merely outlined the difficulties the police and prosecutors had when faced with witnesses who were less than forthcoming or deceptive. This argument was based on the evidence that several witnesses were reluctant to cooperate or even lied to investigators. It was not the prosecutor's opinion or an attempt to inject extraneous material into the trial. See Commonwealth v. Stewart, 411 Mass. 345, 357 (1991).
Finally, even if we were to assume error in the prosecutor's closing argument, any prejudice or any risk of a miscarriage of justice was sufficiently mitigated by the judge's instructions regarding the purpose of closing arguments, and the judge's specific admonition that neither attorney had attempted to deceive the jury. See Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).
3. Jury instructions. The defendant claims for the first time on appeal that the judge's instruction on malice and voluntary manslaughter allowed the jury to find both malice and the existence of mitigating factors. As to mitigating factors, the defendant acknowledges that the judge correctly instructed on heat of passion upon reasonable provocation or sudden combat, but claims he erred on the burden of proof concerning the use of excessive force in self-defense. We disagree.
In order to prove malice, the Commonwealth must prove beyond a reasonable doubt the absence of certain mitigating circumstances. See Ariel A. v. Commonwealth, 420 Mass. 281, 285–286 (1995). In contrast, the issue of excessive force arises only if the Commonwealth fails to disprove actions justified by self-defense. If self-defense is disproved, then excessive force is irrelevant. See Commonwealth v. Fitzgerald, 380 Mass. 840, 844 (1980). If there is reasonable doubt regarding self-defense, there can be no conviction of murder. Along these lines, the judge properly explained that if the Commonwealth failed to disprove self-defense, but did prove the defendant used excessive force, the jury would then be warranted in finding the defendant guilty of voluntary manslaughter. Excessive force does not mitigate what would otherwise be murder; it mitigates what would otherwise be an acquittal based on self-defense. For these reasons, and for those in the Commonwealth's brief at pages forty-two through forty-seven, there was no error in the judge's instruction or supplemental instruction, and thus no risk of a miscarriage of justice.
4. Request to reduce the verdict. The defendant claims the judge abused his discretion by denying his motion to reduce the verdict to manslaughter. We disagree. The defendant went to the expected fight armed with a knife, even though the two factions had agreed there would be no weapons. Also, the defendant refused two separate requests to discard his knife. When the unarmed victim ran at the defendant, the defendant made no attempt to avoid combat and instead stabbed the victim in the heart. Where the weight of this evidence did not point to the lesser offense of manslaughter, the judge did not abuse his discretion by denying the motion. See Commonwealth v. Almeida, 452 Mass. 601, 613–614 (2008).
Judgment affirmed.