Opinion
10-P-2283
11-02-2011
COMMONWEALTH v. ZACARIAS Z., a juvenile (and a companion case).
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
Juvenile Zacarias Z. (Z.Z.) was found delinquent in the Juvenile Court on the charge of assault and battery, in violation of G. L. c. 265, § 13A(a). Juvenile Jebediah J. (J.J.) was found delinquent on the charge of assault and battery causing serious bodily injury, in violation of G. L. c. 265, § 13A(b) (I), but was not found to be a youthful offender. Z.Z. argues that the trial judge incorrectly instructed the jury on the elements of assault and battery and that the prosecutor's closing argument was improper. J.J. argues that the jury's verdict was internally inconsistent, and also attacks the prosecutor's closing argument. Because the instructions on assault and battery were appropriate, the inconsistency in the verdict was permissible, and the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice, we affirm.
Prosecutor's closing argument. The juveniles assert that the following aspects of the prosecutor's closing argument were improper: references to gang violence and activities in general, discussion of the 'no snitch' rule in relation to one witness, the statement that 'we would not all be here' if the incident had been a simple fight between two children, and the request that the jury consider the force necessary to break a leg. Because there were no objections at trial to these statements, we review to determine whether, if error, they created a substantial risk of a miscarriage of justice. See Commonwealth v. Shanley, 455 Mass. 752, 773 (2010). The comments about gang violence were permissible to give context to the incident, as there was evidence that it was part of a gang initiation. Compare Commonwealth v. Marrero, 60 Mass. App. Ct. 225, 233 (2003) ('this is not a case where references to gang affiliation were unnecessary or irrelevant to the case being tried'). The reference to the 'no snitch' rule in judging the witness's credibility was based on reasonable inferences, given that the witness acknowledged the rule's existence and gave limited testimony on who else had taken part in the beating. As to the comment that 'we would not all be here,' '[e]xcusable hyperbole is not a ground for reversal, and the jury 'are presumed to have a certain measure of sophistication in sorting out excessive claims on both sides." Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010), quoting from Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). The question of the force necessary to break a leg primarily asked the jury to use their common sense and did not improperly appeal to the jury's sympathy. See Commonwealth v. Kebreau, 454 Mass. 287, 305 (2009) (prosecutor may argue 'based on the evidence and the jury's common sense understanding of the events'). The prosecutor's closing argument, therefore, did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12 (2010).
Jury instruction. Z.Z. contends that the trial judge gave 'a blended instruction that combined elements of both intentional and reckless assault and battery.' In particular, he claims that the jury had to find that a touching was either without consent or caused bodily injury, whereas the instruction was that the touching must have been either without consent or likely to cause bodily injury. The judge's instruction recited nearly verbatim the model jury instruction for intentional assault and battery, and was a correct statement of the law. See Commonwealth v. Burke, 390 Mass. 480, 482 (1983). We therefore find no error.
Inconsistent findings. J.J. argues that the jury's verdict, which found that J.J. committed assault and battery causing serious bodily injury but that the Commonwealth had not proven the youthful offender enhancement for a crime involving the infliction or threat of serious bodily harm, demonstrates such confusion that it should be set aside. However, '[it] is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.' Commonwealth v. Hamilton, 411 Mass. 313, 324 (1991), quoting from Commonwealth v. Scott, 355 Mass. 471, 475 (1969). As the trial judge found in denying a posttrial motion, the jury may not have wanted to subject J.J. to the increased penalties applicable to a youthful offender. '[A] jury have the power to acquit a defendant out of . . . compassion.' Ibid., quoting from Commonwealth v. Cerveny, 387 Mass. 280, 285 (1982). This is not a situation where the juvenile was convicted of two mutually exclusive crimes, or, e.g., where the crime of which he was convicted required the participation of multiple individuals, and all but one were acquitted. See Commonwealth v. Medeiros, 456 Mass. 52, 57-59 (2010). Other than in these limited circumstances, inconsistent verdicts generally stand. Id. at 57-58.
Adjudications of delinquency affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),
A pseudonym.