Opinion
15-P-425
04-15-2016
COMMONWEALTH v. ERIC WORDELL.
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
After a jury trial, the defendant was found guilty of assault and battery, and breaking and entering with the intent to commit a misdemeanor. On appeal, he claims that the judge's jury instructions misstated the elements of the crime, and that the judge did not instruct the jury on how to deliberate with multiple defendants. We affirm.
1. Elements of the crime. The defendant first claims that the judge's mistaken instruction that assault and battery is a felony constituted a miscarriage of justice. We disagree. While "[a] trial judge has the duty to state the applicable law clearly and correctly," here, the judge timely corrected his error. Commonwealth v. Wall, 469 Mass. 652, 670 (2014). Once alerted to the error, the judge subsequently instructed the jury that "assault and battery is a misdemeanor, not a felony." Not only were the defendants explicitly satisfied with the correction, but the jury also alleviated any remaining doubt regarding the initial error by replacing the word "felony" with "misdemeanor" on the verdict slip for the breaking and entering charge. Any error that existed was corrected, and thus, the defendant has failed to establish a substantial risk of a miscarriage of justice.
The other defendants at trial were charged with breaking and entering to commit a felony while the defendant to this appeal was charged with the lesser crime of breaking and entering to commit a misdemeanor.
The defendants themselves corrected the judge.
2. Multiple defendants. The defendant also claims that the judge erred by failing to require the jury to consider separately the evidence against each of the defendants. We disagree. While a judge must "take care that the evidence against one defendant is not used . . . as a basis for convicting another defendant that is not connected to that evidence," here, the judge unequivocally instructed the jury to distinguish the defendants and the evidence appropriately. Commonwealth v. Evans, 438 Mass. 142, 158 (2002), quoting from United States v. Rosario-Diaz, 202 F.2d 54, 68 (1st Cir. 2000). Moreover, at the end of the trial, he listed each defendant separately, along with their respective charges, and provided the jury with separate verdict sheets.
The judge instructed the jury that "[t]his is not a collective issue . . . we're talking about individual defendants." He further stated that the "verdict on each individual complaint and defendant must be unanimous," and that "[e]ach of the defendants are judged individually . . . any comments that I make . . . [are] relative to each individual defendant."
Even if the judge erred, there was no substantial risk of a miscarriage of justice. The evidence here was "connected" to each defendant, thereby entitling the jury to consider the defendants' concerted efforts. In any event, the jury convicted the defendants of different offenses, and thereby indicated that each defendant received separate consideration.
The error was not preserved.
Judgments affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 15, 2016.