Judges: Spina
Filed Date: 7/11/2013
Status: Precedential
Modified Date: 11/10/2024
In the early morning of November 27, 2005, the
1. Background. The jury could have found the following facts. At approximately 2 a.m. on November 27, 2005, the defendant and his friend, Steven Monge, left Porters Bar and Grill, located near North Station, and began walking down Portland Street in the direction of Monge’s vehicle, which was parked near the corner of Valenti Way. Around this same time, Ryan Flanagan and Kevin Bums left the Purple Shamrock, a nearby bar and restaurant, and began walking up Portland Street toward North Station to find a taxicab. As Flanagan walked several yards ahead of Bums, he noticed the defendant and Monge approaching him. According to Flanagan, the defendant gave him a “dirty look” as they passed each other but kept walking. Flanagan then heard a commotion behind him, turned around, and saw Bums standing face-to-face with the defendant. The defendant appeared to push Bums in the chest. Flanagan began walking toward Bums, who lifted up his shirt, revealing a wound to his chest. As the defendant backed away, Flanagan observed a shiny object in the defendant’s hand. The defendant and Monge then got into Monge’s vehicle, whereupon the defendant said, “Let’s get out of here. Just drive.” The vehicle “took off around the comer,” but Flanagan was able to note its registration plate number. According to Monge, the defendant appeared to be “nervous and shaken up,” and he seemed to be experiencing an “adrenaline rush.”
The defendant disputed the circumstances surrounding the
Once the incident was over, Flanagan called 911. Emergency medical technicians arrived on the scene within a few minutes and determined that Bums had a stab wound in his left chest, approximately two inches deep. Based on the registration plate information provided by Flanagan, the police located Monge that night in Chelsea, where Flanagan identified him as the driver of the vehicle, and Monge was arrested. Bums was hospitalized for two days. The police apprehended the defendant approximately eight months later.
During the charge conference held after the close of the evidence in the defendant’s trial, the judge brought up the issue of consciousness of guilt by stating: “I guess obviously if he’s believed, then there was ■— then there wasn’t flight from the scene inasmuch as he was fleeing because he’s continued to feel that he was in peril. However, if the Commonwealth’s evidence is believed, then he did flee after committing the act.” In response to the judge’s inquiry about what was “fair game for the jury,” the prosecutor stated that a consciousness of guilt instruction would be appropriate. Defense counsel disagreed,
2. Instruction on consciousness of guilt. When the judge reached the portion of her instructions pertaining to consciousness of guilt, she stated:
“[Y]ou should never think, ‘[the judge is] kind of giving us an instruction like she’s kind of trying to channel us in this direction or that.’ It just, again, it doesn’t work that way.
“So and with regards — with regard to the instruction, I want to talk to you about what you can make of the evidence the defendant had left after the alleged incident, or after the incident that has been testified to.
“To the extent that you heard evidence that the defendant left and, indeed, may have fled after — after the incident, the stabbing incident, you the jury can consider that if you wish in your deliberations. If the Commonwealth has proven that the defendant did that conduct, the fact that he fled the scene of the stabbing, you can consider whether such actions indicate feelings of guilt by the defendant, and whether in turn such feelings of guilt might tend to show actual guilt on this charge.
“You are not required to draw such inferences and you should not do so unless they appear to be reasonable in light of all the circumstances of the case.
“If you decide that such inferences are reasonable, it*737 will be up to you to decide how much importance to give them.
“However, you should always remember there may be numerous reasons why an innocent person might do such things. Such conduct does not necessarily reflect feelings of guilt. Please also bear in mind that a person having feelings of guilt is not necessarily guilty in fact. For such feelings are sometimes found in innocent people.
“Finally, remember that standing alone, such evidence is never enough by itself to convict a person of a crime. You may not find the defendant guilty on such evidence alone, but you may consider it in your deliberations if you choose along with all the other evidence.”
At the conclusion of her instmctions, the judge called the prosecutor and defense counsel to sidebar to discuss the charge. Defense counsel did not voice any objections to the judge’s charge.
3. Discussion. The defendant acknowledges that the consciousness of guilt instruction given by the judge was the standard, approved instruction that has been in use since the principles articulated in Commonwealth v. Toney, 385 Mass. 575, 583-585 (1982) {Toney). See Instruction 3.580 of the Criminal Model Jury Instructions for Use in the District Court (2009). Nonetheless, he contends that such an instruction should not be given, unless a defendant requests it, in those cases where a defendant has asserted a claim of self-defense and alleged that his flight from the scene was a consequence of fear arising from the particular situation. In the defendant’s view, such an instruction unfairly bolsters the Commonwealth’s case because it focuses the jury’s attention on the possibility that the defendant’s flight was motivated by something other than fear, thereby negating his claim of self-defense. We disagree.
An instmction on consciousness of guilt may be given where
To determine whether a consciousness of guilt instruction is warranted, a judge need only assess the relevancy of the evidence. See id. at 583-584. See also Commonwealth v. Villafuerte, 72 Mass. App. Ct. 908-909 (2008). “In the case of flight, the evidence must be probative of the defendant’s feelings of guilt concerning the crime of which he is accused.” Id. at 908. See Toney, supra at 584. It is within the trial judge’s discretion whether to instruct the jury regarding the evaluation of evidence pertaining to consciousness of guilt. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 553 (2011); Commonwealth v. Prater, 431 Mass. 86, 97 (2000); Commonwealth v. Brousseau, 421 Mass. 647, 652 (1996). We have said that, “[wjhen there are multiple possible explanations for a defendant’s flight, it is for the jury to decide if the defendant’s actions resulted from consciousness of guilt or some other reason.” Commonwealth v. Prater, supra, citing Commonwealth v. Booker, 386 Mass. 466, 470-471 (1982).
Here, we conclude that the judge properly acted within her discretion in deciding to give an instruction on consciousness of guilt over the defendant’s objection. See Commonwealth v. Prater, supra; Commonwealth v. Cruz, 416 Mass. 27, 33 (1993). The evidence showed that, after the defendant stabbed Bums, he immediately got into Monge’s vehicle, and the two men quickly left the scene of the altercation. It was the province
Notwithstanding our conclusion, we are mindful that where self-defense is an issue, a defense attorney may have tactical reasons for not wanting a jury instmction on consciousness of guilt. See Commonwealth v. Simmons, 419 Mass. 426,435 (1995). For example, as the defendant here suggests, a defense attorney might think that it would not help a client’s case to have the judge focus the jury’s attention on matters such as flight, even with cautionary language about how the evidence should be weighed. See id. Defense counsel simply may wish to discuss evidence pertaining to consciousness of guilt in closing argument and, in any event, leave such evidence for the jury’s reflection unadorned by additional commentary from the judge. See id. at 435-436. However, if a prosecutor argues consciousness of guilt, the standard instruction balances the argument and adds the important caveat that a defendant may not be convicted on such evidence alone.
It remains our opinion that Instmction 3.580 of the Criminal Model Jury Instructions for Use in the District Court (2009) (consciousness of guilt), reflecting the principles articulated in Toney, supra, is thoughtful and well balanced. See Com
Judgment affirmed.
The police were unable to locate the defendant right after the incident because the address information provided by the defendant’s employer was out of date.
At the charge conference, defense counsel disagreed with the judge’s determination that an instruction on consciousness of guilt would be appropriate. The judge considered the defendant’s argument in opposition, rejected it, and gave the instruction. In these circumstances, the issue was properly preserved for appeal. See Commonwealth v. Vick, 454 Mass. 418, 423 n.5 (2009), and cases cited. Thus, we consider whether the judge erred, and, if so, whether