Opinion
No. 15–P–648.
10-12-2016
COMMONWEALTH v. Michael T. MENSAH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Michael T. Mensah, was convicted of aggravated assault and battery causing serious bodily injury. The jury acquitted him of assault and battery by means of a dangerous weapon. The charges arose following an altercation between the defendant and his roommate during which the defendant bit the roommate's thumb. On appeal, the defendant claims error in the jury instructions and in the prosecutor's closing argument, and challenges the sufficiency of the Commonwealth's evidence at trial. We affirm.
The roommate's thumb was severed as a result of the defendant's bite. At trial, the parties stipulated that the roommate suffered a serious bodily injury.
1. Self-defense instruction. Without objection from either party, the judge instructed the jury on the use of self-defense only in response to an aggressor's use of nondeadly force. The defendant now argues that the judge also should have included an instruction on deadly force. We review for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
As here, “where a defendant is charged with both assault and battery by means of a dangerous weapon and assault and battery, and the evidence is sufficient to raise the issue of self-defense, ... the trial judge must instruct the jury on the law of self-defense relating not only to deadly force, but also to nondeadly force.” Commonwealth v. Baseler, 419 Mass. 500, 503 (1995). No substantial risk of a miscarriage occurred as a result of the error, however, as no prejudice resulted to the defendant. The necessity to defend oneself with nondeadly force arises from a “somewhat lower level of danger” than does the necessity to defend oneself with deadly force. Commonwealth v. Pike, 428 Mass. 393, 395 (1998), quoting from Baseler, supra at 502. Accordingly, the instruction as given was more favorable to the defendant because he was required to show only that he was responding to a “reasonable concern over his personal safety” as opposed to a reasonable and actual belief that he was in “imminent danger of death or serious bodily harm.” Commonwealth v. Lopes, 440 Mass. 731, 739 (2004) (quotations omitted). Contrast Baseler, supra at 503–504 (judge lowered Commonwealth's burden to disprove self-defense by instructing jury regarding the use of deadly force, when instruction should have been on use of nondeadly force).
2. Closing argument. There is no merit to the claim that the prosecutor's closing argument impermissibly vouched for the credibility of the roommate, misstated evidence of the defendant's injuries, or disparaged the defendant's trial counsel. Because the defendant did not object, we review for error creating a substantial risk of a miscarriage of justice, examining the prosecutor's closing in light of the entire argument, the judge's instructions to the jury, and the evidence at trial. See Commonwealth v. Renderos, 440 Mass. 422, 425 (2003).
Here, taken in context, the prosecutor's closing consisted of permissible comments about the roommate's credibility in response to the defendant's trial counsel's closing, and permissible inferences about the defendant's injuries based on the evidence presented. See Commonwealth v. Johnson, 429 Mass. 745, 748–749 (1999) ; Commonwealth v. Monzon, 51 Mass.App.Ct. 245, 253–254 (2001). We also note that the absence of an objection from trial counsel is some indication that, in context, the prosecutor's words were more innocuous than now argued. See Commonwealth v. Mello, 420 Mass. 375, 380 (1995). Finally, the judge instructed the jurors that closing arguments are not evidence. We presume the jury followed those instructions. See Commonwealth v. Degro, 432 Mass. 319, 328 (2000).
3. Sufficiency of the evidence. The defendant argues that the evidence was insufficient to convict because it “tend[ed] equally to establish” that either the defendant or the roommate was the aggressor. See Commonwealth v. Scesny, 472 Mass. 185, 194 (2015). The facts here raise no such concern. Although the roommate and the defendant presented differing accounts of the altercation, the evidence was sufficient to establish the defendant's commission of assault and battery. “An appellate court never speculates as to the weight actually accorded by the jury to the properly admitted evidence. As long as the evidence, as presented, meets the familiar Latimore standard of sufficiency, our inquiry is finished. See Commonwealth v. Latimore, 378 Mass. 671, [676–]677 (1979).” Commonwealth v. Fernandez, 48 Mass.App.Ct. 530, 534 n. 6 (2000). See Commonwealth v. Merry, 453 Mass. 653, 660–661 (2009).