Opinion
No. 12–P–1619.
2013-11-1
COMMONWEALTH v. OMRI O., a juvenile.
By the Court (KANTROWITZ, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Juvenile Court, the juvenile was adjudicated delinquent on the charge of resisting arrest, G.L. c. 268, § 32B. The juvenile appeals on the grounds that the trial judge's jury instructions were erroneous and confusing, creating a substantial risk of a miscarriage of justice. The facts of record are undisputed and we refer to them as they arise in relation to the issues on appeal. We affirm.
On appeal, the juvenile asserts that the trial judge erred by impermissibly shifting the burden of proof to him, and by failing to inform the jury of their duty to acquit the juvenile if they had reasonable doubt that he acted in self-defense.
In reviewing jury instructions, we read them as a whole to consider how a reasonable juror would have interpreted the charge in the “over-all context of the instructions.” Commonwealth v. Starkweather, 79 Mass.App.Ct. 791, 804 (2011), quoting from Commonwealth v. Manzelli, 68 Mass.App.Ct. 691, 697 (2007). As a matter of law, we do not require that judges use specific language in jury instructions as long as the applicable law is carefully explained. Commonwealth v. Pickles, 393 Mass. 775, 779 (1985), citing Commonwealth v. Greenberg, 339 Mass. 557, 584 (1959). Burden shifting. Following the complete instruction on resisting arrest, and as he indicated he would during the conference before the charge,
the trial judge read the first paragraph of instruction 9.260.12 of the Model Jury Instructions for Use in the District Court (2009), through the phrase “whether the arrest is lawful or not.” The judge continued, “If you find there is evidence of excessive or unnecessary force by the police, I instruct you as follows: a police officer may not use unreasonable or excessive force in making an arrest.” The judge then quoted instruction 7.460.1 of the same compendium of instructions, describing the reasonable force that could be used in self-defense if an arresting officer uses excessive force, followed by part, but not all, of instruction 9.260 regarding self-defense.
Defense counsel did not object at the conference when the trial judge described the manner in which he would present the jury instructions. Nor did counsel object at trial following the charge.
As we repeatedly have said, a complete model instruction obviously is preferable, and as this case demonstrates, minimizes the risk of error. See, e.g., Commonwealth v. Riley, 433 Mass. 266, 271 n. 9 (2001), citing Commonwealth v. Burke, 44 Mass.App.Ct. 76, 81 (1997).
The juvenile faults the judge for omitting the second paragraph of Model Instruction 9.260.12, which concludes with the statement, “The Commonwealth must prove beyond a reasonable doubt that the police officer did not use excessive or unnecessary force in making the arrest.” The instruction the judge read in place of this omitted paragraph, instruction 7.460.1, states that the Commonwealth must prove beyond a reasonable doubt that the juvenile did not act in self-defense. The juvenile argues that these are separate burdens, and that the judge erred by omitting the Commonwealth's burden to prove the absence of excessive force beyond a reasonable doubt. We agree, but conclude that on the facts of this case the error benefited the juvenile and therefore presented no substantial risk of a miscarriage of justice.
We are not persuaded by defense counsel's contention that the alteration to the model instruction impermissibly shifted the burden of proof to the juvenile. Throughout the instructions, the trial judge made it clear that “the Commonwealth ... bears the burden of proving the elements of the offense beyond a reasonable doubt,” emphasizing that “[t]his burden of proof never shifts to the defendant.”
The judge directed the jury to consider whether the juvenile's resistance to arrest was reasonably responsive to the force used by the police. In so doing, the judge implicitly determined that the Commonwealth could not demonstrate the absence of excessive force beyond a reasonable doubt, and did not give the jury an opportunity to find in favor of the Commonwealth on that issue. The juvenile therefore benefited.
We note as well that there was evidence that the police used excessive force during the arrest. Specifically, the juvenile's mother and his sister testified that several officers threw the juvenile down on the ground, kneed him in the back, and sprayed him with pepper spray. In addition, there was evidence that the juvenile's father was also pepper-sprayed and that his arm was broken by the police. In light of this testimony, we conclude the omission of the final paragraph of instruction 9.260.12 could not have materially influenced the adjudication of delinquency.
Duty to acquit. The juvenile also faults the trial judge for omitting the sentence of model jury instruction 9.260 that reads, “[I]f you have a reasonable doubt whether or not the defendant acted in self-defense, your verdict must be not guilty.” It is well settled that we do not view jury instructions under a microscope, but rather, “look to the instructions in their entirety and assess the probable impact they had on the jurors.” Commonwealth v. A Juvenile (No. 2), 396 Mass. 215, 219 (1985), citing Commonwealth v. Garcia, 379 Mass. 442, 439, 441 n. 12 (1980). The trial judge emphasized that “[the] presumption of innocence is a rule of law that compels you to find the defendant not guilty unless the Commonwealth produces evidence that proves the defendant guilty beyond a reasonable doubt.” We find no confusion here. On the charge of resisting arrest, the jury were on notice that if the Commonwealth did not satisfy its burden of proof beyond a reasonable doubt, the presumption of innocence would control.
Adjudication of delinquency affirmed.