|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts,
Argued
Decided
[411
Nijole Makaitis, Asst. Dist. Atty., for Com.
Before [411
[411
The
defendant appeals from his convictions of murder in the first degree and armed
robbery. (FN1) The defendant argues that (1) his right to an
impartial jury was violated by the prosecution's improper
exercise of peremptory challenges, as well as the trial judge's allegedly
unconstitutional remedy for that improper exercise; (2) the judge erred in concluding that the
defendant waived his right to remain silent and his right to counsel before
answering certain questions of police officers;
(3) the judge erred in refusing to excise portions of a tape recording
of his interrogation which the defendant introduced in evidence; (4) the judge in admitting evidence of the
defendant's arrest and the revolver that he was carrying at that time, four
months after the crimes; (5) the jury
verdict of not guilty on the indictment charging unlawful carrying of a shotgun
invalidates the two [411 Mass. 315] guilty verdicts and (6) the judge's
instructions to the jury were constitutionally deficient. (FN2)
There was
evidence that on the evening of
DeJesus
then heard the footsteps of more than one person going downstairs. About a minute after that, he heard the
victim yell out, "Oh no, not this.
You are going to have to shoot," and then he heard sounds of a
shuffle, a gunshot, and his brother yell out, "Compe." As DeJesus started out of the bathroom, Pope
placed a gun at his head and pulled him into the small room. He then demanded that DeJesus give him
everything that he had. DeJesus complied
and placed his money on a table.
The
defendant came back up the stairs, knelt on one knee in the hallway, pointed a
shotgun at DeJesus, and said to Pope, "Let's go." Pope grabbed the money, and both men then ran
down the stairs and out of the house.
DeJesus then picked up his crying children and went down the
stairs. He saw the victim lying at the
bottom of the stairs in a pool of blood.
According to the medical examiner, the victim died of a shotgun wound to
the heart and the left lung.
[411 Mass. 316] 1. The defendant's right to
an impartial jury trial. The
defendant is black. He contends that the
prosecutor's peremptory challenges violated the Massachusetts and Federal
Constitutions, and that the judge's remedy for these violations was also
unconstitutional and violated G.L. c. 234, § 26B (1990 ed.). Two of the seven peremptory challenges made
by the prosecutor resulted in the exclusion of black jurors. Only one out of the final sixteen members of
the jury was black. When the jury were
to be reduced to twelve members, the judge, sua sponte, set aside, along with
the foreperson's juror card, the juror card of the black juror in order to
ensure that he would be a member of the jury and not an alternate.
[1][2]
Both art. 12 of the Massachusetts Declaration of Rights, see Commonwealth v. Soares, 377 Mass. 461,
486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110
(1979), and the equal protection clause of the Fourteenth Amendment to the
United States Constitution, see Batson v.
Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986),
prohibit the exercise of peremptory challenges to exclude jurors solely by
reason of their race. While there is a
presumption of the proper use of peremptory challenges, that presumption is
rebuttable on a showing that "(1) a pattern of conduct has
developed whereby several prospective jurors who have been challenged
peremptorily are members of a discrete group, and (2) there is a likelihood
they are being excluded from the jury solely by reason of their group
membership." Soares, supra 377 Mass. at 490, 387
N.E.2d 499. See Batson, supra 476 U.S. at
97, 106 S.Ct. at 1723 (pattern of exclusion of black jurors is prima facie
showing of discrimination). Once the
judge determines that the party opposing the peremptory challenges has rebutted
the presumption of their proper use, the burden then shifts to the other party
to demonstrate neutral reasons for the challenges. Soares, supra 377 Mass. at
491, 387 N.E.2d 499. Batson, supra 476 U.S. at 97, 106 S.Ct.
at 1723. That burden, however, does not
rise to the level of the grounds required by a challenge for cause.
Soares, supra. Batson, supra.
[3] In
this case, because the prosecution disproportionately excluded sixty‑seven
per cent of the prospective black jurors and only fourteen per cent of the
available whites, the defendant[411
Mass. 317] established a prima facie rebuttal of the
presumption. See Soares, supra 377 Mass. at 490, 387 N.E.2d 499 (exclusion of
ninety‑two per cent of prospective black jurors as contrasted with thirty‑four
per cent of available whites indicated that blacks were being challenged
because of their race). At that point,
however, the burden then shifted to the prosecution "to justify the
challenge[s] with a persuasive neutral reason unrelated to the defendant's
group membership." Commonwealth v. Harris, 409 Mass. 461,
468, 567 N.E.2d 899 (1991).
[4] The
prosecutor advanced persuasive neutral justifications for his two
challenges. The prosecutor's basis for
challenging the first black juror was that she lived in a neighborhood in which
the prosecutor had investigated a multiple homicide. The prosecutor challenged the second black
juror because of her demeanor and her inconsistent responses to questions. Each of the prosecutor's bases for his
peremptory challenges was a neutral explanation and pertained to the individual
qualities of the prospective jurors and not to their group association. See
Soares, supra 377 Mass. at 491, 387 N.E.2d 499 (rationale must pertain to
juror's individual qualities); Batson, supra 476 U.S. at 98, 106 S.Ct.
at 1724 (prosecutor "must articulate a neutral explanation related to the
particular case to be tried").
Contrary to the defendant's assertion, the judge's removal of the black
juror's card was not indicative of his determination that the prosecution had
not met its burden of justification for its challenges, but instead was
indicative of his attempt to ensure that the defendant had a representative
jury.
[5][6][7][8]
The defendant next argues that the removal of the black juror's card was per se
prejudicial. Because the defendant found
this procedure acceptable at trial and did not object, we review the judge's
actions under G.L. c. 278, § 33E (1990 ed.), to determine if there was grave
prejudice or a substantial likelihood of a miscarriage of justice.
Commonwealth v. Stewart, 398 Mass. 535, 543‑544, 499 N.E.2d
822 (1986). The removal of a juror's
card from the alternate selection process, while inconsistent with the
procedures within G.L. c. 234, § 26B (1990 ed.), is not, by itself,
prejudicial. See Commonwealth v. Bellino, 320 Mass. 635, 638‑642, 71 N.E.2d
411 (no prejudice to [411 Mass. 318] defendant in exempting foreman from
discharge), cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947);
Commonwealth v. Paiva, 16 Mass.App.Ct. 561, 564, 453 N.E.2d 469
(1983) (no substance to claim that excluding forelady from alternate jurors'
selection was prejudicial to defendant).
We believe that, where a defendant fails to object to a procedural
defect, as in the present case, then that defendant has the burden of
presenting some proof of prejudice. See
G.L. c. 234A, § 74 (1990 ed.) (no
mistrial for irregularity in juror selection where no objection and no
prejudice). That is not the situation
here, where the judge's procedure actually improved the representativeness of
the jury.
2. The defendant's waiver of his right to
counsel and his right to remain silent.
Cambridge police arrested the defendant on an unrelated matter and
notified the Boston police department.
The defendant agreed to speak with Boston police officers. After reading the Miranda warnings to the
defendant from a printed card, Detective Peter O'Malley questioned him about
the victim's murder on May 23, 1984.
After the defendant described his activities on that evening for
approximately five to ten minutes, he agreed to Detective O'Malley's suggestion
that his statement be tape recorded. At
the beginning of the recording, Detective O'Malley and the defendant had a
discussion about the defendant's right to an attorney and his right to remain
silent. At that point, the defendant
commented that he had "been waiting to see [an attorney], but one hasn't
come down yet," and then he asked, "But I couldn't have one now
though?" After the defendant made
these remarks, Detective O'Malley continued the interrogation and obtained a
complete statement from the defendant.
[9]
Although the motion judge ruled that the government did not prove beyond a
reasonable doubt that the defendant waived his rights under the Fifth Amendment
to the United States Constitution or his right to cut off questioningafter the tape recorder was turned on,
the judge was satisfied that the statements made by the defendant before the tape recorder was turned on,
after being advised of his Fifth [411
Mass. 319] Amendment rights, were
made freely, voluntarily and without a denial of assistance of counsel. The defendant contends that: (1) the judge applied an inadequate standard
to the issue of the waiver of his right to counsel, (2) there was insufficient
evidence from which to find a waiver, and (3) the testimony at trial proved
that the defendant's constitutional rights were violated.
Although
the motion judge did not state explicitly that he was convinced beyond a
reasonable doubt that the defendant voluntarily made statements prior to the
tape recording, the record clearly establishes that he did apply the reasonable
doubt standard to these statements.
(FN3) See Commonwealth v. Williams, 378 Mass. 217, 224 & n. 4, 391
N.E.2d 1202 (1979) (while judge made no explicit finding of knowing and
intelligent waiver, record is clear that judge applied appropriate
standard). At the hearing on the
defendant's motion to suppress the statements, the motion judge stated, "I
have got to make my determination of, were the statements if any, were they
made, freely and voluntarily given? Am I
convinced of that beyond a reasonable doubt, and if so, I am going to let the
statements go to the jury."
However, he suppressed the tape recorded portion of the defendant's
statement because the government did not convince him beyond a reasonable doubt
that the defendant waived his right to an attorney and his right to remain
silent. We conclude, therefore, on the
basis of the entire record, that the motion judge applied the appropriate
standard.
[411 Mass. 320] [10] The defendant next contends that the testimony of the four
police officers concerning the defendant's waiver of his rights before the tape
recorder was turned on was "incredible." His major point is that the officers'
testimony concerning the defendant's oral, unrecorded waiver was inconsistent
with Detective O'Malley's recorded statements, which referred several times to
Miranda warnings given by the Cambridge police but referred to only a short
conversation between O'Malley and the defendant. The defendant argues that, if O'Malley had
just read the defendant the Miranda warnings minutes before the recorded
interview, then O'Malley's reference to the Cambridge officers' reading of the
Miranda warnings coupled with his
failure to mention his own recitation of Miranda warnings makes the testimony
of the four officers on this matter uniformly unbelievable. While the failure of Detective O'Malley to
refer to his own reading of the Miranda warnings during the recorded portion of
the statement could create a possible inference of a failure to give the
warnings, that possible inference is overwhelmingly outweighed by the
consistently uniform testimony of the four police officers who were present at
the interrogation. In the absence of
clear error, we accept the judge's subsidiary findings concerning the
credibility of these witnesses. See Commonwealth v. Monteiro, 396 Mass.
123, 131, 484 N.E.2d 999 (1985), and cases cited.
[11]
Finally, the defendant argues that the inconsistencies among those portions of
the police officers' trial testimony concerning the defendant's statements made
prior to the tape recording proves that the defendant's constitutional rights
were violated. Because the defendant
makes this argument for the first time on appeal, our review is limited to
whether there has been a substantial likelihood of a miscarriage of justice.
Commonwealth v. Stewart, supra 398 Mass. at 543‑544, 499
N.E.2d 822. After a thorough review of
the record, we conclude that these inconsistencies are not substantial. Furthermore, the defendant was given every
opportunity to cross‑examine these witnesses, and the judge also
instructed the jury on the Miranda warnings.
In these circumstances, we find no error. See
Commonwealth[411 Mass. 321]
v. Therrien, 359 Mass. 500, 507, 269 N.E.2d 687 (1971) (no error to
deny voir dire requests where inconsistencies in testimony were not substantial
and defendant was given every opportunity to cross‑examine witnesses).
[12] 3. The judge's refusal to excise portions of
the tape‑recorded statements.
In cross‑examining Detective O'Malley, the defendant sought to
introduce portions of the tape‑recorded interrogation of which he had
obtained suppression prior to trial.
Although the trial judge warned both the defendant and his counsel that
this could lead to the admission of the entire tape recording, both the
defendant and his counsel stated that they understood that the defendant was
waiving his right to have the tape recording suppressed. Defense counsel later sought to excise from
the tape recording a passage where Detective O'Malley referred to statements
attributed to Pope. The objectionable
statements were, "Joe Pope's story doesn't jive with your story,"
and, "Pope says you got out there in a vehicle.... He mentioned two people outside in the van,
but he didn't know who they were."
The defendant contends that these statements were inadmissible because
their introduction violated his right to confrontation under the Sixth
Amendment to the United States Constitution, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968).
The
objectionable statements in this case, however, were not the "powerfully
incriminating extrajudicial statements of a codefendant" not testifying at
trial.
Id. at 135‑136, 88 S.Ct. at 1627‑28. Nor were the statements the most inculpatory
evidence against the defendant. See Commonwealth v. Dias, 405 Mass. 131,
137, 539 N.E.2d 59 (1989). The
statements that the defendant's story differed from Pope's story and that the
defendant and Pope arrived at DeJesus's house in a van and not a taxicab were
not even inculpatory statements. Because
the defendant intimated that other individuals murdered the victim, the
statement concerning other individuals outside the house in a van was actually
exculpatory. Additionally, it was the
defendant and not the prosecutor who introduced the tape‑recorded
statements in evidence. The
objectionable portions of those statements related to other statements made by
the defendant[411 Mass. 322]
at the same time about the same subject, and were, therefore, admissible
under the "verbal completeness" doctrine. Commonwealth v. Watson, 377
Mass. 814, 827‑828, 388 N.E.2d 680 (1979).
[13] 4. Evidence of the defendant's arrest. The defendant was carrying a black revolver
when Cambridge police arrested him four months after the victim's murder. The gun was introduced in evidence, and
DeJesus testified that it looked "just like" the gun which was
pointed at his head during the robbery.
The defendant challenges the relevancy of the evidence and argues that
its unfair prejudice outweighs its probative value.
The fact
that the defendant, within four months of the crimes, had in his possession a
weapon that could have been the one used by Pope, was admissible in the judge's
discretion. Commonwealth v. Toro, 395 Mass. 354, 356,
480 N.E.2d 19 (1985). "[I]t is
commonly competent to show the possession by a defendant of an instrument
capable of being used in the commission of the crime, without direct proof that
that particular instrument was in fact used." Id., quoting Commonwealth v. O'Toole, 326 Mass. 35,
39, 92 N.E.2d 618 (1950). Even if there
are circumstances in which the prejudicial effect of the evidence outweighs its
probative value, a judge can ameliorate such prejudice by a jury instruction, id. 395 Mass. at 357, 480 N.E.2d 19
and, although unnecessary in this case, see
Commonwealth v. Storey, 378 Mass. 312, 322, 391 N.E.2d 898 (1979) (weapon
admissible and limiting instruction unnecessary where weapon clearly relevant
to show that defendant had means to commit offense), cert. denied, 446 U.S.
955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980), the judge twice instructed the jury
on the limited purpose for which the revolver was admitted in evidence. (FN4)
Consequently, there was no error in the admission of the revolver in evidence.
[411 Mass. 323] The defendant also contends that the evidence of his arrest by
Cambridge police was inadmissible. This
evidence, for the most part, did not suggest that the police arrested the
defendant on charges other than the ones for which he was on trial. The only possible exception was contained in
a question from Detective O'Malley to the defendant in the tape‑recorded
interview that the defendant himself introduced in evidence. (FN5)
Because the defendant did not move to strike the testimony and did not
request a limiting instruction, he must show that this evidence created a
substantial likelihood of a miscarriage of justice. G.L. c. 278, § 33E. Commonwealth v. Sawyer, 389
Mass. 686, 698‑699, 452 N.E.2d 1094 (1983). We conclude that this statement created no
prejudice. See id. (inadvertent testimony
concerning defendant's prior acts of misconduct did not create substantial
likelihood of miscarriage of justice).
[14] 5. The jury verdicts' pattern. Although the jury found the defendant guilty
of armed robbery and murder in the first degree, they found him not guilty of
carrying a shotgun. The defendant
contends that these verdicts demonstrate that the [411 Mass. 324] jury
rejected the factual theory on which the cases were submitted to them and that
the guilty verdicts were based on insufficient evidence. Because all of the evidence presented by the
prosecution identified the defendant as having a shotgun at the scene, the
defendant argues that the jury's disbelief of his possession of a shotgun
undermines the prosecutor's entire case and is manifestly inconsistent with
their guilty verdicts.
"[T]he
rule 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. Scott, 355 Mass. 471,
475, 245 N.E.2d 415 (1969). See Commonwealth v. White, 363 Mass. 682,
684, 296 N.E.2d 822 (1973), and cases cited.
The evidence warranted the jury's verdicts of murder in the first
degree, on a theory of either deliberate premeditation or felony‑murder,
and armed robbery. See Commonwealth v. Pope, 406 Mass. 581,
584‑586, 549 N.E.2d 1120 (1990).
While the not guilty verdict on the charge of possession of a shotgun
may seem inconsistent with the guilty verdicts on the other charges, "[a]
finding of not guilty at a criminal trial can result from any number of factors
having nothing to do with the defendant's actual guilt."
Commonwealth v. Cerveny, 387 Mass. 280, 285, 439 N.E.2d 754
(1982). For example, a jury have the
power to acquit a defendant out of prejudice or compassion. Id. In these circumstances, we shall not disturb
the jury's verdicts.
6. The judge's instructions. The defendant argues that the judge's
instructions were deficient in several respects: the judge's failure to instruct the jury on
the defendant's theory of defense; the
judge's instruction on joint venture felony‑murder; the judge's instruction that the jury could
consider evidence that the defendant used a false name as evidence of
consciousness of guilt, and the judge's failure to convey the proper meaning of
"moral certainty" as it relates to reasonable doubt. Because the defendant did not object to these
instructions at trial, we review his claims to determine whether there is a
substantial likelihood of a miscarriage of justice. [411 Mass. 325] Commonwealth v. Tavares, 385 Mass. 140,
149, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d
1356 (1982). We conclude that the
judge's instructions were without error.
The
defendant's first objection to the judge's instructions, that he failed to
instruct the jury that someone other than the defendant may have committed the
murder, is without merit. The judge's
instructions were correct as a matter of law.
(FN6) Having correctly instructed
the jury, the judge did not need to go further and discuss various theories
proposed by the defendant on which the jury might acquit him. See
Commonwealth v. DeChristoforo, 360 Mass. 531, 540, 277 N.E.2d 100 (1971),
quoting Commonwealth v. Greenberg,
339 Mass. 557, 585, 160 N.E.2d 181 (1959) ("[h]aving given the jury
correct rules for their guidance ... [the judge] is not required to go further
and discuss possible findings of fact upon which a defendant might be
acquitted").
The
defendant next contends that it was error for the judge to instruct the jury on
joint venture felony‑murder because there was insufficient evidence to
find the defendant guilty on this theory.
In order to prove the defendant guilty of felony‑murder, the
prosecution had to prove beyond a reasonable doubt that the defendant was a
joint venturer in a felony with Pope, that the defendant intentionally assisted
Pope in the commission of the felony, shared his mental state as to the
commission of the felony, and that a homicide occurred in the commission of
that felony and flowed naturally and probably from the carrying out of the
joint enterprise. Commonwealth v. Pope, supra 406 Mass. at 584‑585, 549 N.E.2d
1120. Contrary to the defendant's
assertion, the jury could have concluded from the evidence that the defendant
and Pope were engaged in a joint venture to rob DeJesus and the victim. The jury could have concluded that the
defendant and Pope shared a mental [411
Mass. 326] state to commit armed
robbery, with the defendant robbing the victim and Pope robbing DeJesus. There is no question but that a homicide
occurred during the commission of the armed robbery, and the jury could have
concluded that the homicide flowed naturally and probably from the carrying out
of the armed robbery. Additionally, it
would not be unreasonable for the jury to conclude that the defendant shot the
victim, even though the same jury found the defendant not guilty of carrying a
shotgun.
[15] The
defendant gave a false name to the Cambridge police officers when they
apprehended him four months after the murder, and this information was admitted
in evidence through the testimony of the arresting police officer. The defendant argues that it was error for
the judge to instruct the jury that they could consider his use of a false name
as evidence of consciousness of guilt.
"False statements made to the police are a standard example of
admissible evidence on consciousness of guilt." Commonwealth v. Carrion,
407 Mass. 263, 276, 552 N.E.2d 558 (1990).
We believe that the instructions on this evidence complied with the
standard articulated in Commonwealth v.
Toney, 385 Mass. 575, 585, 433 N.E.2d 425 (1982), that a judge should
instruct the jury not to convict a defendant on the basis of consciousness of
guilt alone, and that they may, but need not, consider such evidence as one of
the factors tending to prove the guilt of the defendant. (FN7)
Consequently, there was no error.
The
defendant's final objection to the judge's instructions is the inclusion of the
phrase "moral certainty" concerning [411 Mass. 327]
reasonable doubt. (FN8) The judge's instructions were consistent with
the language of Commonwealth v. Webster,
5 Cush. 295, 320 (1850), of which this court has approved on numerous
occasions. See Commonwealth v. Beldotti, 409 Mass. 553, 562, 567 N.E.2d 1219
(1991);
Commonwealth v. Wood, 380 Mass. 545, 551, 404 N.E.2d 1223 (1980),
and cases cited. The defendant offers no
compelling reason to depart from this long‑established precedent. (FN9)
After a
careful review of the defendant's arguments, as well as a review of the entire
record in accordance with G.L. c. 278, §
33E, we conclude that the defendant's convictions are consonant with
justice.
Judgments affirmed.
(FN1.) The jury found the defendant not guilty
on an indictment charging unlawful carrying of a shotgun on his person. The defendant's first trial, in which Joseph
Pope was a codefendant, ended in a mistrial.
Their cases were severed prior to the second trial. Pope was convicted of murder in the first
degree and armed robbery, and this court upheld his convictions. Commonwealth
v. Pope, 406 Mass. 581, 582 & n. 2, 549 N.E.2d 1120 (1990).
(FN2.)
Although the defendant does not ask this court to exercise its power under G.L.
c. 278, § 33E (1990 ed.), to review the entire record, we have, nevertheless,
undertaken such a review. See
Commonwealth v. Scott, 408 Mass. 811, 812 n. 1, 564 N.E.2d 370
(1990). We conclude that there is no
reason to exercise our power under § 33E.
(FN3.)
The motion judge's ruling of law on this issue is as follows: "With regard to that portion of the
defendant's statement made before the tape was turned on, I am satisfied that
the defendant answered those questions after having been advised of his Fifth
Amendment rights and that he answered those questions freely and voluntarily
and without being denied assistance of counsel.
However, the government has not convinced me beyond a reasonable doubt
that it has sustained its heavy burden of showing that the defendant waived his
Fifth Amendment rights or that the defendant's right to cut off questioning was
scrupulously honored. Therefore, so much
of the statement as the defendant made before the tape was turned on is
admissible and the portion of the statement made after the tape was turned on
is not admissible."
(FN4.)
The judge instructed the jury as follows:
"If someone is arrested after a crime has been committed, in this
case, September as against May, but it's admitted solely on the issue of
whether or not it's some evidence to you of whether the defendant had the means
at the time of the offense that you're hearing, or May offense. Is it some evidence to you that he had the
means to commit the crime that he's charged with on May? That's the only basis that it's admitted
for, and no other reason, and this should not be used by you for any other
purpose in this case."
In the
judge's final instructions to the jury, he also referred to the possession of
the revolver. "Now, in this case,
there was introduced a revolver or a weapon that was found in the possession of
the defendant at the time of his arrest in Cambridge. That weapon is admitted solely for the jury
to consider as to whether or not it lends any credible evidence to show that
the defendant had in May the means to commit the offense charged either by
himself or with an accomplice.
"It
has been held by our Court that it is commonly competent to show the possession
by a defendant of an instrument capable of being used in the commission of a
crime without direct proof that the particular weapon was, in fact, the one
used. You should consider the time
interval that passed here. But the fact
that the defendant had a weapon that could have been used in the commission of
a crime is relevant as a link in tending to prove that the defendant committed
that crime. And that is the sole ground
[ ] upon which that evidence would be admitted, solely to determine whether it
shows that he had the means capable of committing it."
(FN5.) The relevant question from Detective
O'Malley was: "Do you know that you
are going to have a lawyer coming in this case and you're going to have a
lawyer in the case that Cambridge has with you?"
(FN6.) The judge instructed the jury that
"[o]ne of the most important issues in this case is the identification of
the defendant as the perpetrator of the crime.
The Commonwealth has the burden of proving identity beyond a reasonable
doubt.... If you are not convinced
beyond a reasonable doubt that the defendant was the person who committed the
crime, then you must find him not guilty."
(FN7.) The judge instructed the jury as
follows: "There has been some
evidence in this case that the defendant may have used a false name at some
time. If you find that the defendant
knowingly did use a name other than his own in order to conceal his identity or
to avoid identification, you may but are not required to infer that the
defendant believed or had a consciousness of guilt. You may not, however, infer on that basis
alone that the defendant is, in fact, guilty of the crime for which he is
charged.
"You
may consider his feeling of guilt as evidence tending to show guilt, but you
are not required to do so. Under no
circumstances can you presume a defendant's guilt from the false statement[ ]
alone. You should consider and weigh it
if you find that there is a fact, if you find, by a defendant in connection
with all the other evidence in the case and give it such weight as in your
judgment it is fairly entitled to receive with respect to these indictments.
"In
any event, that evidence of consciousness of guilt relative to giving a false
name would not be considered by you in coming to a determination on the issue
of deliberate premeditation; because the
deliberate premeditation, as I will instruct you a little later, had to have
occurred back on the 23rd of May. So
what someone did some months later would have no bearing on that, that element
of the charges here."
(FN8.) The judge instructed the jury that
"[r]easonable doubt is that state of the case when after the comparison
and consideration of all of the evidence the minds of the jurors are left in
that condition that they cannot say they feel an abiding conviction to a moral
certainty of the truth of the charges."
(FN9.) The defendant's major argument is that
the United States Court of Appeals for the First Circuit found the use of the
phrase "moral certainty" objectionable in Lanigan v. Maloney, 853 F.2d 40, 47 (1st Cir.), cert. denied, 488
U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). In fact, the First Circuit wrote approvingly
of the Webster charge in Lanigan: "We find it hard to imagine, without
recourse to prolixity, a charge more reflective of the solemn and rigorous
standard intended." Id. at 43.