Opinion
No. 15–P–809.
10-04-2016
COMMONWEALTH v. Ricardo CORONADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant, Ricardo Coronado, of witness intimidation and acquitted him of two counts of assault and battery and one count of strangulation. The charges arose from a domestic altercation with his girl friend, Olinda Chavez. On appeal, the defendant contends that the trial judge's supplemental instruction to the jury in response to their question concerning the definition of a “witness” was erroneous. We affirm.
Background. Following the presentation of the evidence and closing arguments, the judge instructed the jury. He first discussed several issues applicable to all four charges, including that the Commonwealth must prove beyond a reasonable doubt that the defendant intended each of the acts with which he was charged. The judge then specifically instructed the jury regarding the three elements of the crime of witness intimidation, including the intent element. An hour into deliberations, the jury asked the judge a number of questions. The defendant challenges the judge's response to the following two-part question: “What is the definition of witness, who is the witness?” The judge's response was as follows:
“In this case, the party herself is a witness. Intimidating a witness is that the defendant directly threatens or attempts to cause physical injury, cause[d] physical injury, attempted to cause emotional injury, caused emotional injury, attempted to cause property damage or caused property damage to another person. That other person was a witness or potential witness at any stage of a criminal investigation or proceeding.”
After the jury resumed deliberations, defense counsel objected to the supplemental instruction on the grounds that it only included two of the three elements of the crime of witness intimidation. On appeal, the defendant argues that by omitting the third element (intent), the supplemental instruction impermissibly lowered the Commonwealth's burden of proof regarding the witness intimidation charge.
Discussion. It is well established that “[t]he proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly.” Commonwealth v. Bell, 455 Mass. 408, 420 (2009), quoting from Commonwealth v. Robinson, 449 Mass. 1, 7–8 (2007). Additionally, we must “judge the adequacy of a particular instruction not in isolation but in the context of the entire charge.” Commonwealth v. Stokes, 440 Mass. 741, 750 (2004). When providing a supplemental instruction, “[i]ssues not explicitly raised by the question may be omitted.” Ibid. Trial judges “need not repeat all or any part of the original instructions.” Ibid. See Commonwealth v. Sellon, 380 Mass. 220, 233–234 & n. 20 (1980). See also Commonwealth v. Barros, 425 Mass. 572, 577 (1997) ; Commonwealth v. Nelson, 468 Mass. 1, 16 (2014). Here, during the original instructions, the judge succinctly laid out all three elements of the crime of witness intimidation. The judge, having already given instructions explaining the three elements of the crime, tailored his response to the jury's two-part question that did not seek any guidance on the intent element of the offense. The supplemental instruction did not lower the Commonwealth's burden of proof because the supplemental instruction did not mitigate the force of or replace the original instructions. See Stokes, supra. Moreover, during the original instructions, the judge emphasized that the Commonwealth needed to prove beyond a reasonable doubt that the defendant intended each of the acts with which he was charged.
Moreover, the defense theory at trial was fabrication, not whether the defendant intended any of his actions.
The defendant also argues that the judge should have provided an additional instruction requiring the jury to consider his response to their question in conjunction with the original jury instructions . When providing supplemental jury instructions, “the judge should advise the jurors that all of the instructions are to be considered as a whole and that the supplemental instructions are to be considered along with the main charge.” Commonwealth v. Hicks, 22 Mass.App.Ct. 139, 145 (1986). However, this is not a requirement, and this court has stated that the Hicks instruction “was a recommendation which we hoped that trial judges would follow.” Commonwealth v. Conley, 34 Mass.App.Ct. 50, 59 (1993). We discern no risk that the failure of the judge to give a Hicks instruction lowered the Commonwealth's burden, as “[a] reading of the entire charge, including the supplemental instruction, ... demonstrates that the judge covered all the salient points required.” Ibid.
The defendant contends that “the record contains no reference to the trial judge seeking input from the parties with regard to the jury questions.” The trial record, however, shows that counsel had opportunity for input and had the opportunity to object. After receiving the questions from the jurors, the judge read the questions out loud to the defense attorney and the prosecutor and explained how he was going to answer the questions: “They're to determine the case based on the evidence that's been presented, and I will reinstruct them of what a witness is and the context of intimidation of a witness.” At this point, the prosecutor asked the trial judge to specifically instruct the jury that a witness's testimony is evidence. The judge declined to do so. The defense attorney did not object and did not make any statement to the court at this time. The parties also had the opportunity to object after the supplemental instruction and the defendant did so.
Accordingly, we find no error in the trial judge's supplemental instruction to the jury concerning the definition of a witness and thus the judge did not abuse his discretion in giving the supplemental jury instruction as he did.