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Commonwealth v. Cullinan

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 12, 2012
11-P-121 (Mass. Apr. 12, 2012)

Opinion

11-P-121

04-12-2012

COMMONWEALTH v. JONATHAN CULLINAN.


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

After a jury trial, the defendant was found guilty of two counts of violating a person's civil rights in violation of G. L. c. 265, § 37, assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A(b), and two counts of assault and battery in violation of G. L. c. 265, § 13A. On appeal, he claims the evidence was insufficient to convict him as a principal for the civil rights violation and the assault and battery as to one of the victims. He also claims that the judge failed to describe accurately the civil rights and privileges at issue, and failed to give the jury a specific unanimity instruction with regards to those charges. We affirm.

1. Joint and principal liability. The defendant claims that there was insufficient evidence to find him guilty as a principal and therefore the judge should have required the jury to specify on which theory they convicted the defendant. We disagree. In undertaking our review of this claim, '[w]e do not 'examine the sufficiency of the evidence separately as to principal and joint venture liability." Commonwealth v. Housen, 458 Mass. 702, 706 (2011), quoting from Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). 'Instead, ' we . . . examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime." Commonwealth v. Housen, supra at 706-707, quoting from Commonwealth v. Zanetti, supra.

We apply Zanetti, even though it was decided after the defendant's trial. See Commonwealth v. Jansen, 459 Mass. 21, 28-29 n.20 (2011).

Here, there was evidence that the defendant's van was used to drive to the crime location, one of the victims identified the defendant at trial, and another witness testified that when the defendant returned after the attack, he stated that he had beaten up a 'Mexican Hindu' and showed the witness his bleeding knuckles. There was also evidence that the defendant and other participants shouted terms like terrorist, and Osama Bin Laden at the victims. After denying his involvement, the defendant then admitted to the police that he was there, but that he did not participate in the crimes. The evidence at trial was sufficient 'to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime.' Ibid. See Commonwealth v. Marrero, 459 Mass. 235, 246-248 (2011) (where both principal and joint liability theories were presented to the jury with a general verdict form, conviction upheld due to sufficient evidence to permit rational juror to find beyond a reasonable doubt that defendant knowingly participated in crime with intent required to commit crime).

2. Jury instructions. The defendant next claims that his convictions based on G. L. c. 265, § 37, should be vacated because the judge failed to fully and accurately describe the civil rights and privileges he was alleged to have violated. We disagree. There was no objection to the instructions, so we review to determine whether there was error, and if so, if there is a substantial risk of a miscarriage of justice. Commonwealth v. Belcher, 446 Mass. 693, 696 (2006). 'We consider the jury charge as a whole, 'looking for the interpretation a reasonable juror would place on the judge's words." Ibid., quoting from Commonwealth v. Harbin, 435 Mass. 654, 658 (2002). As a whole, the jury instructions adequately explained the constitutional rights at issue: right to personal security, association, and the right to travel freely, regardless of race, ethnicity, or national origin. Despite the defendant's assertions, the explanation of the right to travel as a right for all people to 'travel freely or to go about their way between the states or within a state' adequately includes the right to walk on the street without being attacked, either verbally or physically because of their race, ethnicity, or national origin. The judge explained personal security by stating that '[a]ll persons have the same right to the full and equal benefit of all the laws and proceedings for the security of persons and property that is enjoyed by everyone living in the United States' (emphases added). 'Considering the charge in its entirety, we discern no substantial risk that the jury misunderstood what was required to be proved to establish the defendant's' violation of the victims' civil rights under G. L. c. 265, § 37. Commonwealth v. Pittman, 76 Mass. App. Ct. 905, 906 (2010). '[T]he adequacy of instructions must be determined in light of their over-all impact on the jury.' Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). As a whole, a reasonable jury would have understood the instructions to include the requirement that the defendant violated the victims' rights because of their ethnicity or national origin.

Right to association was explained as the right 'to associate with whomever they wish, regardless of race, sex, ethnicity, religion or national origin.'

There is no substantial risk that the jury believed the victims were attacked while exercising their rights under the First Amendment to the United States Constitution or of interstate travel.
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The defendant also claims he was entitled to a specific unanimity instruction, though one was not requested and no objection was made as to its absence. We disagree. 'Generally speaking, a specific unanimity instruction is appropriate where there is 'evidence of alternate incidents that could support the charge against the defendant." Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719 (2007), quoting from Commonwealth v. Kirkpatrick, 423 Mass. 436, 442, cert. denied, 519 U.S. 1015 (1996). 'A specific unanimity instruction is required if properly requested and if warranted by the evidence.' Commonwealth v. Federico, supra. In this case, there were not 'separate, distinct, and essentially unrelated ways in which the same crime can be committed.' Commonwealth v. Santos, 440 Mass. 281, 288 (2003). It is 'well established that a judge's failure to give a specific unanimity instruction sua sponte does not automatically give rise to a substantial risk of a miscarriage of justice where, as here, the Commonwealth presented evidence sufficient to withstand a motion for a required finding of not guilty on each of the charged offenses.' Commonwealth v. Federico, supra at 719-720.

Judgments affirmed.

By the Court (Mills, Meade & Rubin, JJ.),


Summaries of

Commonwealth v. Cullinan

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 12, 2012
11-P-121 (Mass. Apr. 12, 2012)
Case details for

Commonwealth v. Cullinan

Case Details

Full title:COMMONWEALTH v. JONATHAN CULLINAN.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 12, 2012

Citations

11-P-121 (Mass. Apr. 12, 2012)