Opinion
11-P-50
03-14-2012
COMMONWEALTH v. JAMES R. FOLEY.
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
We discern no substantial risk of a miscarriage of justice arising from the two claims raised by the defendant on appeal from his conviction of second-degree murder, and accordingly affirm the judgment.
The defendant raised no objection or other claim of error at trial regarding the matters he argues on appeal.
As to the defendant's first contention, that the jury could have been confused by the judge's (correct) instruction that the Commonwealth bore the burden to prove the absence of lawful self-defense in order to return a verdict of guilty on the charge of second-degree murder, we observe that the judge instructed the jury clearly and specifically that: (i) if the Commonwealth failed to prove the absence of lawful self-defense, 'the defendant is not guilty of any offense on indictment number one, not murder, not first degree, not second degree and not voluntary manslaughter'; and (immediately following the previously quoted language) (ii) that '[i]f the Commonwealth has proved the defendant used excessive force in order -- in an effort to defend himself and thereby intentionally caused the death of Steven Raferty,[ ] you would be justified in finding the defendant guilty of voluntary manslaughter.' We consider the instructions as a whole. See Commonwealth v. Williams, 450 Mass. 879, 882 (2008). We perceive little risk (if any) that references elsewhere in the charge to the Commonwealth's burden to prove the absence of lawful self-defense in order to support a verdict of first or second-degree murder, could have misled the jury into a belief that they could not return a verdict of voluntary manslaughter if the Commonwealth proved that the defendant used excessive force in self-defense. For these and the other reasons explained by the Commonwealth in its brief at pages seventeen to thirty we discern no cause to disturb the judgment. There is likewise no merit to the defendant's contention that the judge erred by including instructions concerning the Commonwealth's burden to prove the affirmative elements of voluntary manslaughter, in order to support a conviction on that charge, rather than simply instructing the jury to return a verdict of guilty on the lesser charge of voluntary manslaughter upon a failure by the Commonwealth to prove the absence of mitigation (having otherwise proven the other elements of first or second-degree murder), for substantially the reasons set forth in the Commonwealth's brief at pages thirty to thirty-eight. See also id. at 885 n.4.
The indictment spells the victim's last name as Raftery.
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Judgment affirmed.
By the Court (Cypher, Green & Trainor, JJ.),