Opinion
10-P-2136
05-31-2012
COMMONWEALTH v. NAZARIO A. MARTINEZ.
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
This appeal is from the defendant's convictions by a Boston Municipal Court jury of possession of heroin, G. L. c. 94C, § 32C, and escape from a penal institution, G. L. c. 268, § 16. We affirm.
1. Reasonable doubt instruction. The defendant asserts that the judge's jury charge on reasonable doubt was 'incomplete, misleading and lowered the Commonwealth's burden of proof,' and more specifically asserts the instructions omitted certain language and made one modification.
The judge's instruction, quoted in the margin, appears to follow the alternate Instruction 2.200 in the Criminal Model Jury Instructions for Use in the District Court (2009).
The judge instructed as follows:
'The defendant has pled not guilty to these charges and he is entitled to be presumed innocent until such time as the evidence that has been presented to you convinces you otherwise. The burden of proof as I mentioned to you earlier on never shifts from the Commonwealth to the defendant, it is the Commonwealth's burden to prove the case and they must prove their case beyond a reasonable doubt.
. . .
'Now, the Commonwealth must prove this case, every element of every charge beyond a reasonable doubt. When we say reasonable doubt we don't mean doubt to a mathematical certainty. For example you take two you add another two you'll get four, that's not exactly what we're talking about. Reasonable doubt doesn't mean that kind of doubt that's conjured up in the mind of a person who is looking for an excuse to acquit the defendant or to doubt the facts. Instead it means such doubt as remains in the mind of a reasonable person who is earnestly seeking the truth. The Commonwealth is required to prove the defendant's guilt to the kind of certainty that satisfies your judgment and your consciences as reasonable jurors and leaves in your mind a clear and settled conviction that the defendant is guilty.'
The defendant first complains that the judge omitted language from Commonwealth v. Webster, 5 Cush. 295, 320 (1850), to the effect that it is not enough for the Commonwealth to establish even a strong probability that a defendant is more likely than not to be guilty. While such language appears in Instruction 2.180 (the modern syntax Webster charge), there is no 'strong probability' language in the alternate charge, only the statement: 'It is not enough for the Commonwealth to show that it is more likely than not that the defendant is guilty.' The judge omitted that sentence. We do not think that omitting such language was error that lowered the Commonwealth's burden of proof. Such 'negative' language has been said to 'tell[] the jury what does not constitute proof beyond a reasonable doubt.' Commonwealth v. Pires, 389 Mass. 657, 664 (1983). In any event, such a negative instruction on reasonable doubt does not 'dilute the Commonwealth's burden of proof.' Commonwealth v. O'Brien, 432 Mass. 578, 592 (2000).
Next, the defendant complains that the judge did not instruct, in the language of the alternate Webster charge, that 'if you have any reasonable doubt about the existence of any fact which is essential to proving the guilt of the defendant . . . the defendant must have the benefit of that doubt and must be acquitted.' An instruction on the duty to acquit if the Commonwealth fails to prove a crime has never been required. Commonwealth v. O'Brien, supra at 591. Compare Commonwealth v. Sheline, 391 Mass. 279, 297 (1984).
Last, the defendant complains that in giving the instruction, '[r]easonable doubt doesn't mean that kind of doubt that's conjured up in the mind of a person who is looking for an excuse to acquit the defendant or to doubt the facts,' the judge's addition of the words 'or to doubt the facts' was unwarranted and affirmatively misstates the jury's obligation as fact finders. We do not agree that the jury would have taken the phrase 'to doubt the facts' as a comment on their role as a fact finder because the judge had not only correctly instructed the jury on their role as fact finders, but followed the questioned sentence with the phrase, '[i]nstead it means such doubt as remains in the mind of a reasonable person who is earnestly seeking the truth.' Again, the judge was explaining to the jury what does not constitute reasonable doubt.
The alternate model instruction 2.200 states: 'A reasonable doubt does not mean the kind of doubt that could be conjured up by someone who is seeking for doubts or for an excuse to acquit a defendant.'
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Finally, the judge instructed that the Commonwealth is required to prove guilt 'to the kind of certainty that satisfies your judgment and your consciences as reasonable jurors and leaves in your mind a clear and settled conviction that the defendant is guilty.' Such language is consistent with the Webster concept of reasonable doubt. Compare Commonwealth v. Doherty, 394 Mass. 341, 351 (1985); Commonwealth v. Andrews, 10 Mass. App. Ct. 866, 867-868 (1980).
For these reasons and for the reasons and authorities given in greater detail in the Commonwealth's brief at pages eight through twenty-two, we conclude that the judge's reasonable doubt instruction, viewed in the context of her other instructions such as the presumption of innocence, could not have caused the jury to convict on a lesser standard than proof beyond a reasonable doubt.
2. Other issues. a. The defendant complains that the prosecutor oversimplified the Commonwealth's burden of proof on the crime of escape by stating that the defendant left the Brooke House without permission and that he did not address the intent element. There is no merit in this assertion. The defendant made no objection at trial. The judge instructed the jury on the elements of escape in accordance with Instruction 7.220 of the Criminal Model Jury Instructions for Use in the District Court (2009), stating that the Commonwealth had to prove, inter alia, that the 'defendant intentionally left custody without permission.' It was open for the jury to infer wrongful intent from the defendant's unlawful departure. Commonwealth v. Parzyck, 44 Mass. App. Ct. 655, 661-662 (1998). The prosecutor did not misstate the law. There was no error.
b. The defendant asserts that he should have been prosecuted under G. L. c. 127, § 49, rather than G. L. c. 268, § 16. This assertion is not accompanied by adequate appellate argument or citation to relevant authority, and we do not address it. Mass. R.A.P. 16(a)(4), 367 Mass. 921 (1975). For the reasons given in the Commonwealth's brief at pages twenty-two through thirty-six, the defendant properly was prosecuted under G. L. c. 268, § 16. In any event, there is nothing in the statutes prohibiting the defendant from being charged under G. L. c. 268, § 16. See Commonwealth v. Hughes, 364 Mass. 426, 430-431 (1973).
c. The defendant's bare assertions -- that trial counsel's failure to object to the judge's reasonable doubt instructions and to the prosecutor's closing argument constituted ineffective assistance -- fail to show that counsel's performance fell below the standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or that he was deprived of 'an otherwise available, substantial ground of defence.' Ibid.
Judgments affirmed.
By the Court (Cypher, Cohen & Wolohojian, JJ.),