Opinion
16-P-305
03-22-2017
COMMONWEALTH v. Sean L. ROGERS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of assault and battery on a family or household member in violation of G. L. c. 265, § 13M(a ). He raises three arguments: (1) that the trial judge erred by omitting the element of consent in the specific unanimity instruction to the jury; (2) that the prosecutor mischaracterized evidence in his closing argument; and (3) that defense counsel's failure to request a jury instruction that the percipient witness could have made a mistaken observation constituted ineffective assistance. We affirm.
1. Specific unanimity jury instruction . At trial, the Commonwealth argued that the defendant could be convicted for committing a harmful battery, when he pulled the victim by the hair and slapped her face, or an offensive battery, when he pulled the victim into his car without her consent. Because either act "could support a conviction" under c. 265, § 13M(a ), the judge gave a specific unanimity instruction to the jury. Commonwealth v. Conefrey , 420 Mass. 508, 513 n.9 (1995). The defendant argues that the judge erred by omitting the element of consent from his specific unanimity instruction regarding the offensive battery. The defendant did not object following the judge's instruction. Therefore, "the court must determine whether there is an error in the [jury] charge that creates a substantial risk of a miscarriage of justice." Commonwealth v. Belcher , 446 Mass. 693, 696 (2006).
"The legal sufficiency of the instructions to the jury is to be judged on the basis of the charge as a whole, and not on the basis of limited or isolated portions of it." Commonwealth v. Redmond , 357 Mass. 333, 342 (1970). Here, the judge omitted the element of consent while discussing the difference between an offensive battery and a harmful battery during the specific unanimity instruction. However, using the model jury instructions, the judge instructed the jury on the element of consent on two separate occasions. In addition, the judge provided the jury with written instructions on the elements of c. 265, § 13M(a ). We presume that the jury followed the judge's instructions. Commonwealth v. Silanskas , 433 Mass. 678, 702 (2001). Considering the instructions in their entirety, it is clear that the elements of c. 265, § 13M(a ), were properly conveyed to the jury.
Moreover, in both closing arguments, the parties emphasized that the Commonwealth had to prove that the crime occurred without the victim's consent. The issue of consent was squarely placed before the jury. See Commonwealth v. Navarro , 86 Mass. App. Ct. 780, 784 (2014).
2. Closing argument . The defendant next argues that the prosecutor improperly mischaracterized the evidence by stating at various points that the defendant "yelled" at the victim and violently "yanked" her into the car. Once again, the defendant failed to object at trial and thus we review for a substantial risk of a miscarriage of justice. Commonwealth v. Jones , 471 Mass. 138, 148 (2015). "Prosecutors must limit the scope of their closing arguments to facts in evidence and the fair inferences that may be drawn therefrom." Commonwealth v. Valentin , 474 Mass. 301, 309 (2016). "Remarks made during closing arguments are considered in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Carriere , 470 Mass. 1, 19 (2014), quoting from Commonwealth v. Viriyahiranpaiboon , 412 Mass. 224, 231 (1992). Here, the defendant contends that the prosecutor's statement that the defendant "yanked" the victim into the car and "yelled" at her to "[g]et in the fucking car" was an improper characterization of what actually occurred. We disagree. The victim testified that the defendant "tugged" her sweater and pulled her into the car against her will. In addition, she testified that she was arguing with the defendant and that he said "[g]et in the fucking car" in a slightly elevated voice. Furthermore, a percipient witness testified that she saw the defendant pull the victim by her hair into the vehicle. The prosecutor's statements that the defendant "yanked" the victim and "yelled" at her were therefore grounded in the evidence presented at trial. See Carriere , supra at 22.
The judge also cured any potential error when he made it clear to the jury that closing arguments must always be distinguished from evidence and that the jury themselves were the final arbiters of the facts. See Commonwealth v. Miranda , 458 Mass. 100, 117 (2010).
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3. Pressley instruction . Lastly, the defendant argues that defense counsel was ineffective by failing to request a Pressley instruction. See Commonwealth v. Pressley , 390 Mass. 617, 620 (1983) (in certain circumstances, on request, a jury should be instructed that a witness may have made an honest but mistaken identification). The defendant did not raise this claim by the preferred method of a motion for a new trial, and so he did not offer an affidavit of trial counsel or any other evidence beyond the trial record. See Commonwealth v. Griffin , 475 Mass. 848, 857-858 (2016) (claim in this posture is in its "weakest form" [quotation omitted] ). To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Lane , 462 Mass. 591, 596 (2012), quoting from Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
A Pressley instruction was not warranted here because the identification of the defendant was never at issue. The witness's observation of the defendant's actions towards the victim was properly questioned through cross-examination. Thus, we cannot say defense counsel's failure to request a Pressley instruction about the witness's potentially mistaken observation satisfied either aspect of ineffective assistance.
Judgment affirmed .