Opinion
13-P-1667
04-14-2015
COMMONWEALTH v. IBRAHIM TOURE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ibrahim Toure, appeals from his conviction of assault and battery, G. L. c. 265, § 13A, following a jury trial in the Boston Municipal Court. He argues that the judge gave insufficient jury instructions on reasonable doubt and presumption of innocence and erroneously admitted photographs of the victim's injuries. We affirm.
He was acquitted of the second charge, larceny under $250.
Because Toure did not object to the judge's instructions, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). We discern no such risk here. As to the judge's instructions on reasonable doubt, they were "wholly consistent with [the Commonwealth v. Webster, 59 Mass. 295 (1850), language] and not in any sense prejudicial." Commonwealth v. Gerald, 356 Mass. 386, 390 (1969). Moreover, the judge gave content to the terms "reasonable certainty" and "moral certainty" sufficient to inform the jury of the nexus between those terms and the high degree of certainty they needed to possess in order to convict the defendant. Specifically, the judge stated that the Commonwealth must present "such evidence that you have accepted as believable and that substantially to your satisfaction proves that the defendant is guilty beyond a reasonable doubt." Further the judge instructed, "Now, it's not enough for the Commonwealth to prove a probability, even a strong probability that the defendant is guilty. The evidence must convince you of the defendant's guilt to a reasonable certainty, one that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence." See Commonwealth v. Smith, 427 Mass. 245, 252-254 (1998) (where used, the phrase "moral certainty" must be given context and meaning). See also Commonwealth v. Byers, 62 Mass. App. Ct. 148, 151 (2004) ("[U]se of the phrase 'reasonable certainty' is also not error, provided that it is similarly linked to appropriate language [that lends content to the phrase]").
Although the Supreme Judicial Court recently mandated that trial judges adopt a modernized version of the Commonwealth v. Webster instructions, see Commonwealth v. Russell, 470 Mass. 464, 477 (2015), the changes effected by Russell only apply prospectively. See id. at 465.
Concerning the presumption of innocence, the judge instructed the jury that "[t]he prosecution bears the burden of proof," the burden "does not shift ever to the defendant," and that the jury are required to determine "whether the Commonwealth has proved its case based on the evidence that was presented in the case." This was sufficient. See Commonwealth v. Boyd, 367 Mass. 169, 188 (1975); Commonwealth v. Drayton, 386 Mass. 39, 46 (1982) ("[J]udges need not give any particular content to the phrase 'presumption of innocence,' if the instructions make clear that an indictment does not imply guilt, and that the jury must base their decision on the evidence, and not on 'suspicion or conjecture'").
We note that during the empanelment, the judge instructed the venire that "[t]he burden of proof in a criminal trial remains at all times with the charging authority . . . the Commonwealth of Massachusetts."
Finally, although Toure claims the photographs were "irrelevant" and overly prejudicial, they clearly were probative, depicting injuries corroborative of the victim's testimony concerning Toure's assault and battery upon her. The jury could consider whether the injuries seen in the photographs may have resulted from actions of the defendant. Also, the photographs were not unnecessarily duplicative of each other because they depicted various and different parts of the victim's body and injuries thereto, nor were they unfairly prejudicial. Consequently, the judge did not abuse her discretion in admitting the seven photographs. See Commonwealth v. Bradshaw, 385 Mass. 244, 270 (1982); Commonwealth v. Tassinari, 466 Mass. 340, 349 (2013).
The judge excluded one photograph - -of a bruise on the victim's foot - -because the victim could not recall how the injury was specifically inflicted by the defendant.
Judgment affirmed.
By the Court (Grainger, Meade & Fecteau, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: April 14, 2015.