Opinion
10-P-642
09-28-2011
COMMONWEALTH v. JAMES MISKEL.
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 in Superior Court, the defendant was found guilty of the lesser included offense of voluntary manslaughter on an indictment charging second degree murder. On appeal the defendant challenges the propriety of the humane practice instruction given during the final charge. Even assuming that voluntariness was a live issue at trial, there was no error. Contrary to the defendant's contention on appeal, the judge did not give the jury the option of deciding whether to consider statements that they failed to find were voluntarily made, as occurred in Commonwealth v. Sunahara, 455 Mass. 832, 836 (2010). With respect to the defendant's invitation to require that the humane practice instruction be given contemporaneously with the admission of the defendant's statements, we note, as the defendant acknowledges, that our decisional law does not require such a contemporaneous instruction. See generally Commonwealth v. Tavares, 385 Mass. 140, 149-150, cert. denied, 457 U.S. 1137 (1982). Indeed, as the Commonwealth observes, because the instruction directs the jury to assess the question of voluntariness based upon all the evidence in the case, such an instruction is appropriately given at the conclusion of the trial. See generally Commonwealth v. Lopes, 455 Mass. 147, 168 (2009). It is not appropriate to require a contemporaneous instruction. In any event, more was not required, and it is not within our province to expand the requirement. See Commonwealth v. Vasquez, 456 Mass. 350, 357 (2010), citing Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486 (2003). The defendant's claim of ineffective assistance of counsel thus also fails.
Judgment affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),