Opinion
No. 13–P–907.
10-08-2014
COMMONWEALTH v. Marvin GARCIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marvin Garcia, was indicted for murder in the first degree. After a jury trial, he was found guilty of the lesser included offense of voluntary manslaughter. The defendant appeals, claiming that (1) the trial judge abused his discretion by excluding evidence of prior violent behavior of the victim; (2) the prosecutor improperly elicited summaries of a statement in evidence; (3) the prosecutor improperly commented in closing argument on the condition of the victim's body and improperly commented on the credibility of the witnesses; and (4) the trial judge incorrectly instructed the jury on excessive use of force in self-defense and on the “castle” exception to the duty to retreat. Finding no error, we affirm.
1. The exclusion of the victim's prior offenses was proper. The defendant sought to admit evidence of two incidents of domestic violence allegedly committed by the victim. The judge did not abuse his discretion in excluding the incidents. Commonwealth v. Adjutant, 443 Mass. 649, 665, 824 N.E.2d 1 (2005). The judge conducted a voir dire of the proposed witness and declined to admit the evidence because the charged offense was “radically different” from the two incidents of domestic violence as well as being “significantly separated in time.” When determining whether alleged Adjutant evidence is admissible, the judge may consider the similarity of the incidents as well as their temporal proximity. Commonwealth v. Gaynor, 73 Mass.App.Ct. 71, 75–76, 895 N.E.2d 758 (2008). The judge did not abuse his discretion by excluding the evidence.
2. The prosecutor's examination of the State trooper was proper . The jury saw and heard the interview of the defendant in its entirety. In addition, the jury received complete translated transcripts. The prosecutor elicited testimony from a State trooper regarding his interview of the defendant, including a summary of the defendant's statement. The testimony was properly elicited as an admission of a party opponent, Commonwealth v. Bright, 463 Mass. 421, 426 n. 8, 974 N.E.2d 1092 (2012), as well as a summary of the defendant's statement because the underlying statement was admitted and the summary accurately reflected the statement. Commonwealth v. Carnes, 457 Mass. 812, 825, 933 N.E.2d 598 (2010). There was no error.
3. The prosecutor's closing argument was proper. The prosecutor was entitled to comment on the condition of the victim's body as it reflected the evidence in the case and was relevant to the elements that the Commonwealth was attempting to prove for the charge of murder in the first degree and the defense of self-defense. Commonwealth v. Allison, 434 Mass. 670, 687, 751 N.E.2d 868 (2001). The term “moral compass,” in context, referred to the juror's ability to assess the evidence and determine credibility. In any event, as the Commonwealth argues, the phrase is substantially similar to calling the jury the “conscience of the community” which has been held to be proper in cases alleging extreme atrocity and cruelty. Commonwealth v. Torres, 437 Mass. 460, 465, 772 N.E.2d 1046 (2002). Finally, the prosecutor's comments regarding the law enforcement witnesses did not constitute improper vouching. The argument was a fair response to defense counsel's attempts to disparage the witnesses during cross-examination and during his closing argument. Commonwealth v. Chavis, 415 Mass. 703, 713, 616 N.E.2d 423 (1995). When all of the remarks complained of are viewed as a whole and in context, it is apparent that there was no error and thus no substantial risk of a miscarriage of justice.
4. The jury instructions were proper. The defendant challenges the jury instructions, arguing that the instruction on self-defense did not explain that it was the Commonwealth's burden to prove excessive force beyond a reasonable doubt and did not explain the “castle” exception to the duty to retreat. The defendant did not object at trial. Viewing the instructions as a whole, we conclude that there was no error. The judge properly and adequately instructed the jury regarding the Commonwealth's burden to prove excessive force in self-defense. Furthermore, the judge did instruct the jury on the duty to retreat and the application of the “castle” doctrine to the room that the defendant rented from the victim, and further (correctly) instructed the jury on the topic in response to a question. There was no error.
Judgment affirmed.