83 Mass. App. Ct. 1132 (2013)
The defendant appealed his
conviction for armed assault with intent to rob and assault and battery by
means of a dangerous weapon. The defendant appealed on several grounds. The
Appeals Court affirmed the conviction.
The defendant claimed that the
evidence presented at both the trial and grand jury stages was insufficient.
The Commonwealth presented evidence on the following facts: On the evening of
March 8, 20111, the victim was leaving the Montello Commuter Rail station in
Brockton when he observed the defendant in the parking lot of a store. As the
victim walked towards his home, he was approached by the defendant and another
male, both brandishing knives. The defendant and the other assailant demanded
money from the victim. The victim repeatedly stated that he had no money. The
defendant then stated “Let’s just cut him…” and the victim was stabbed four
times by the unknown assailant, once in the leg and tree times in the chest.
Both attackers fled and the victim identified the defendant from a photographic
array administered by the Brockton police department twelve days later. Under
the governing standard of Commowealth v. Latimore, 378 Mass. 671, 676-678, the
court found that the evidence was sufficient. In addition, the court found that
the grand jury claim was waived because the defendant failed to raise the issue
during a pre-trial motion to dismiss.
The defendant claimed that he was
unduly prejudiced by errors the judge made in the jury instructions. Because there was no objection at trial, the
court reviewed the instructions for a substantial risk of a miscarriage of
justice. The court found that the jury instructions were sufficient to inform
the jurors of what they had to consider and there was no substantial risk of a
miscarriage of justice.
The defendant claimed that the
prosecutor’s closing was improper. During the closing argument, a prosecutor
may comment on evidence developed at trial and draw inferences from such
evidence. Further, the judge instructed the jury that they were not to view the
lawyer’s opening and closing statements as evidence. Therefore, the court found
there was no error in the prosecutor’s closing argument.
The defendant claimed that the judge
erred when he did not consult defense counsel after the jury reported they were
deadlocked. The court found that the judge did not abuse his discretion when he
sent the jury back for further deliberation. Counsel was present when the judge
sent the jury back and did not voice an objection or offer any alternative
solutions.
Lastly, the defendant claimed that
the judge erred when he allowed photographs into evidence. It is the discretion
of a trial judge to determine whether the inflammatory quality of a photograph
outweighs its probative values and precludes its admission into evidence. After
reviewing the photographs, the judge found that photographs of injuries and
some medical procedures were not so inflammatory as to outweigh their probative
value. The court found that the judge
did not abuse his discretion in allowing the photographs into evidence.
The
defendant’s conviction was affirmed.
Note: This decision
was issued by the appeals court pursuant to its Rule 1:28 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.
Written 6/30/13
