Commonwealth v. Scott T. Carney. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-124
COMMONWEALTH
vs.
SCOTT T. CARNEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury convicted
the defendant, Scott T. Carney, of assault. 1 Because the trial
judge failed to provide a jury instruction defining reasonable
doubt, we vacate the judgment. 2
Background. On March 18, 2021, Norton police dispatch
received a call for a "well-being check" at a residence in
Norton. The caller reported that an individual at that address
1 The defendant was convicted of "simple assault" as a lesser
included offense of assault and battery on a police officer. He
was also charged with one count of assault and battery and found
not guilty.
2 The result we reach obviates any need to address the
defendant's other claims on appeal that (1) the judge provided
an erroneous instruction on intoxication and mental impairment,
(2) the Commonwealth's closing argument constituted reversible
error, and (3) there was no evidence warranting the judge's
lesser included offense instruction.
had threatened suicide. Three Norton police officers,
accompanied by emergency medical technicians (EMTs) responded
and were met at the door by the defendant's mother. She led
them into the basement to check on the defendant who was found
lying on a bed and appeared intoxicated to the officers.
On examination of the defendant's phone, the police
discovered text messages indicating that the defendant planned
to overdose. Concerned for the defendant's well-being, the
officers attempted to take him to a hospital. The defendant
initially agreed to go and started walking toward the door.
Officers informed the defendant that they would need to conduct
a patfrisk for weapons before allowing him into the ambulance.
As the officers began the frisk, the defendant became agitated,
and "started yelling" and swearing, and pulled away. The
defendant clenched his fists and stiffened his posture as he
walked toward the door, which prompted one of the officers to
grab him and inform him that they had to finish the frisk. As
the encounter escalated, the defendant flailed his feet, kicked
toward the officers, thrashed around for five to ten minutes,
swore at the officers, and attempted to gather saliva in his
mouth to spit toward them. The defendant was eventually subdued
and brought to the hospital in the ambulance.
Discussion. The present case suffers from a glaring
infirmity: the judge did not provide an instruction defining
2
reasonable doubt. In Commonwealth v. Russell, 470 Mass. 464,
477 (2015), the Supreme Judicial Court exercised its "inherent
supervisory power to require a uniform instruction on proof
beyond a reasonable doubt" pursuant to G. L. c. 211, § 3. 3 In
3 In Russell, 470 Mass. at 477-478, the court specified that
going forward, Massachusetts judges sitting on criminal trials
must instruct the jury as follows:
"The burden is on the Commonwealth to prove beyond a
reasonable doubt that the defendant is guilty of the
charge(s) made against him (her).
"What is proof beyond a reasonable doubt? The term is
often used and probably pretty well understood, though it
is not easily defined. Proof beyond a reasonable doubt
does not mean proof beyond all possible doubt, for
everything in the lives of human beings is open to some
possible or imaginary doubt. A charge is proved beyond a
reasonable doubt if, after you have compared and considered
all of the evidence, you have in your minds an abiding
conviction, to a moral certainty, that the charge is true.
When we refer to moral certainty, we mean the highest
degree of certainty possible in matters relating to human
affairs -- based solely on the evidence that has been put
before you in this case.
"I have told you that every person is presumed to be
innocent until he or she is proved guilty, and that the
burden of proof is on the prosecutor. If you evaluate all
the evidence and you still have a reasonable doubt
remaining, the defendant is entitled to the benefit of that
doubt and must be acquitted.
"It is not enough for the Commonwealth to establish a
probability, even a strong probability, that the defendant
is more likely to be guilty than not guilty. That is not
enough. Instead, the evidence must convince you of the
defendant's guilt to a reasonable and moral certainty; a
certainty that convinces your understanding and satisfies
your reason and judgment as jurors who are sworn to act
conscientiously on the evidence.
3
the present case, it is beyond dispute that the judge did not
provide the instruction required by Russell, supra at 477-478.
We are aware of cases in which we have held that a deviation
from the language required by Russell was nonetheless not
constitutionally deficient. See, e.g., Commonwealth v. Whitson,
97 Mass. App. Ct. 798, 799 (2020) (judge's omission of portion
of Russell instruction defining "moral certainty" did not
mandate reversal). In the present case, however, the judge
provided no definition or explanation whatsoever of "reasonable
doubt." We are unaware of any published appellate case or other
binding authority in Massachusetts upholding a conviction where
the jury charge contained such an omission. 4 Indeed,
"This is what we mean by proof beyond a reasonable doubt."
4 The judge referenced the term "moral certainty" in his
instructions, but only in the context of explaining
circumstantial evidence. He stated:
"If the Commonwealth's case is based solely on its
circumstantial evidence, you may find the defendant guilty
only if those circumstances are conclusive enough to leave
you with a moral certainty, a clear and settled belief, the
defendant is guilty and that there is no other reasonable
explanation of the facts as proven."
Viewing the instructions as a whole, this brief mention of moral
certainty did not convey to the jury the meaning of reasonable
doubt within the requirements of Russell, 470 Mass. at 477-478,
or other precedent. Contrast Commonwealth v. Veiovis, 477 Mass.
472, 490 (2017) (judge's omission of language defining moral
certainty did not create risk that jury did not understand
reasonable doubt standard where he otherwise adhered to language
defining reasonable doubt).
4
Massachusetts courts have found a substantial risk of a
miscarriage of justice in cases where the instructions defined
reasonable doubt, but inadequately so. See, e.g., Commonwealth
v. Rembiszewski, 391 Mass. 123, 133-134 (1984) (where jury
instructed to "treat proof beyond a reasonable doubt, proof to a
moral certainty, and proof to a degree of certainty that the
jurors would want in making decisions about their futures as
equivalent concepts," judge repeatedly stating that Commonwealth
had burden of proof beyond reasonable doubt made no difference
because "jury's knowledge of which party had the burden did not
inform them with respect to the extent of that burden");
Commonwealth v. Wood, 380 Mass. 545, 547 (1980) (judge's
erroneous instruction that reasonable doubt is "that doubt which
amounts to a moral certainty" amounted to substantial risk of
miscarriage of justice); Commonwealth v. Viera, 42 Mass. App.
Ct. 916, 916-917 (1997) (despite instruction that "beyond a
reasonable doubt mean[s]" that "[t]he evidence taken in its
totality must establish the truth of the fact to a reasonable
and moral certainty . . . [a] certainty which convinces and
directs the understanding, satisfies the reason and judgment of
those who are bound to act conscientiously upon it," substantial
risk of miscarriage of justice existed because judge's "cursory
words to the jurors regarding reasonable doubt were, at best,
ambiguous. In her apparent attempt to paraphrase a part of the
5
model jury instructions, the judge neither elaborated on the
meaning of reasonable doubt nor linked 'moral certainty' with
other explanatory words"). Accordingly, we conclude that the
failure to provide an instruction explaining reasonable doubt
created a substantial risk of a miscarriage of justice. 5 See
generally Commonwealth v. Ferreira, 373 Mass. 116, 128 (1977)
("no part of the usual instructions to juries in criminal cases
is of more significance than the discussion of reasonable
doubt").
5 Our holding is limited to the unique facts and posture of this
case.
6
The judgment is vacated, and the verdict is set aside. 6
So ordered.
By the Court (Green, C.J.,
Blake, Neyman, Shin &
Smyth, JJ. 7),
Clerk
Entered: August 24, 2023.
6 We note that:
"We are acutely aware of the [potential] hardship imposed
on all those involved by the need to conduct a [possible]
second trial in this case. Either party, however, could
have prevented the need for reversal here by pointing out
to the judge at trial the obvious error contained in his
charge."
Wood, 380 Mass. at 550. We remind judges and counsel in future
cases to provide the Russell instruction verbatim. See Russell,
470 Mass. at 477-478.
7 The panelists are listed in order of seniority.
7