Commonwealth vs. Callum A. Miller, June 10, 2010
Homicide, Jury Instructions, Malice, Closing Arguments by Prosecutor, Lesser Included Offense of Assault and Battery
The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty. He now appeals conviction and argues that the judge erred in his instructions to the jury, that the prosecutor’s closing argument contained several improprieties that violated the defendant’s right to a fair trial, and that the judge’s failure to include a jury instruction for the lesser included offense of assault and battery created a substantial likelihood of a miscarriage of justice. The SJC, after hearing this case on appeal from the Superior Court trial, rejected the defendant’s arguments and declined to exercise their authority under G.L. c. 278 § 33E, to reduce the degree of guilt or order a new trial.
Facts
The defendant killed his sixty year old roommate after he had been drinking and after the defendant alleges the roommate (a homosexual) attempted a sexual overture toward the defendant. After this act, the defendant chased the victim into the kitchen where he hit him in the face with his hand and then proceeded to grab a hammer from his nearby tool belt and strike the man in the head roughly twenty five times.
Jury Instruction on Malice
The trial judge gave the jury instructions for murder in the first degree based on a theory of deliberate premeditation, murder in the first degree based on extreme atrocity or cruelty, and the instruction for murder in the second degree. The judge followed the Model Jury Instructions on Homicide (1999), and in doing so he separately, and in accordance with the model instructions, defined the term “Malice”, including the instruction for the dangerous weapon inference instruction. The defendant contends that the inclusion of this instruction allowed the jury to focus on his use of the dangerous weapon rather than on whether in his intoxicated and impaired state the defendant intended its use and his acts. Because the defendant failed to object to this instruction at trial, the SJC reviews to determine whether the instruction created a substantial likelihood of a miscarriage of justice.
Noting that specific jury instructions should never be reviewed in isolation and out of context to determine whether they created a substantial likelihood of a miscarriage of justice, the court showed how the judge’s instructions taken in their entirety emphasized that whenever the Commonwealth has to prove intent evidence about the defendant’s mental state may be taken into consideration. The SJC found that after reviewing the judge’s instructions, there was no error, and accordingly no substantial likelihood of a miscarriage of justice.
Prosecutor’s Closing Arguments
The defendant contends that the prosecutors closing arguments contained various improprieties including referencing facts not in evidence, consideration of expert testimony, and exhortation to the jury. The SJC found that the prosecutor did reference facts not in evidence regarding the facts of the prior sexual assaults committed against the defendant, stating that the defendant had exchanged sexual favors for alcohol. While this was improper because only the fact that the defendant had been sexually abused had been stipulated by the parties, the circumstances of the abuses were to be left out and inadmissible, because the judge repeatedly reminded the jury that they could only consider this evidence to determine the defendant’s mental state, because the judge told the jury that the closing arguments were not evidence and that the jury was to consider their own recollection as controlling if the attorneys said anything that did not match their own recollection of the evidence, no substantial likelihood of a miscarriage of justice occurred.
The defendant next argues that the prosecution told the jury not to believe his expert witness, however the prosecutor basically argued that the defendant’s expert was not credible or trustworthy, but went on to say that if you follow that logic maybe the state’s expert is not credible or trustworthy either. The SJC deemed this argument, “Enthusiastic rhetoric”, but found it within the bounds of permissible advocacy.
The defendant’s last contention was that the prosecutor’s statement, “Members of the jury, the defendant is responsible for what he did and it’s a tough and sad decision you have, but you’re sworn to do it. And you should.” improperly implied that it was the jury’s duty to convict the defendant. The SJC noted that the commonwealth conceded this was an improper statement; however, case law supported the fact that a brief exhortation to convict at the end of a closing argument, while improper, is by itself not grounds for a reversal. Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 53 (2007).
Additionally the court noted in all these complaints that the defendant failed to object to any of these actions or statements during the trial, supporting the view that these statements were not prejudicial.
Lesser Included Offense
Neither the state nor the defendant requested at trial that the jury be instructed on the lesser included offense of assault and battery. The defendant now argues that not giving this instruction resulted in a substantial likelihood of a miscarriage of justice. The SJC stated that although assault and battery is a lesser included offense of murder, there is nothing in the instructions, case law, or statutes that would require a judge sua sponte to give that instruction without the request of either party. Therefore the judge did not err in not giving this instruction.
- Prepared by AEK
