Opinion
11-P-260
11-18-2011
COMMONWEALTH v. DOUGLAS E. WIGHT.
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
The defendant was charged with assault and battery, and convicted after a jury trial in the District Court. He asserts error in the prosecutor's closing and the trial judge's failure to give instructions relating to self-defense and cumulative evidence. We affirm.
Background. We summarize the facts as the jury could have found them. The defendant was a patron at a local tavern when the incident occurred. The charges were the result of an altercation between the defendant and the bartender over a football belonging to the defendant, but in the possession of the bartender. Viewed in the light most favorable to the defendant, the evidence indicates that the defendant used unnecessary force because he admittedly pushed the bartender after he was free of her grasp.
Discussion. Below, the defendant did not request a self-defense or a cumulative evidence instruction, and did not object to the prosecutor's closing statement. On appeal, he argues that the trial judge erred in not giving these instructions sua sponte.
We review unpreserved errors under the 'substantial risk of a miscarriage of justice' standard. See Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Because no view of the evidence would support a theory of self-defense, we find no error with the judge's instructions as delivered. See Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 916 (2000).
Similarly, we find no error with the judge's lack of a cumulative evidence instruction or his allowance of the prosecutor's closing argument. The judge's closing charge -- where he explained the Commonwealth's burden, the function of the jury, and that closing arguments are not evidence -- adequately instructed the jury. The defendant has not demonstrated that these waived issues created 'a serious doubt whether the result of the trial might have been different.' Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
Judgment affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),