March 10, 2011
Commonwealth v. Sosa
Docket No. 10-P-484
Appeals Court of Massachusetts
Criminal, Homicide, Self-defense
The defendant was convicted of manslaughter after a jury trial. He appeals claiming (1) the prosecutor’s cross-examination violated Doyle v. Ohio, (2) the judge erred by refusing to instruct the jury on the probative value of a witness’ testimony, (3) and the jury instruction on the “duty to retreat” element of self-defense was insufficient.
Facts: The victim was a long-time friend and co-worker of the defendant. Both men were interested in a new waitress at the restaurant they worked at. The defendant became jealous of the victim’s friendship with the waitress and made angry comments to other co-workers. The victim initiated an argument with the defendant, which led the defendant to approach the victim with a knife and stab him four times as the victim tried to back away. The defendant was arrested at the scene and indicted for murder in the second degree.
The defense argued that the victim started the argument, tried to grab the defendant’s knife, escalated the interaction to a physical altercation by hitting him with a bowl, grabbed a knife, and cornered the defendant before the defendant stabbed him.
Issue 1: Did the prosecutor’s cross-examination of the defendant violate his right to remain silent because he asked if the defendant had told anyone that the victim attacked him with a knife and bowl?
No. Doyle v. Ohio protects a defendant’s silence following Miranda warnings, not before arrest and before being given Miranda warnings. Furthermore, Doyle grants the right to remain silent, not the right to tell a story and avoid explaining omissions. Since the defendant voluntarily spoke to police after receiving his Mirandas, the challenged question could not have constituted an inappropriate comment on his post-Miranda silence.
Issue 2: Did the judge err in instructing the jury that a witness’ adoption of a prior statement can only be used to determine credibility?
No. The judge’s instruction to the jury that a prior inconsistent statement can be used only for credibility and not as proof of the matter asserted was not error for two reasons. First, the prior testimony that the defense referred to was adopted by the witness at trial as current testimony, eliminating the possibility a jury would consider it a prior inconsistent statement. Second, the judge’s instructions clearly noted that witness testimony was only one of many forms of evidence and that questions to witnesses are not evidence.
Issue 3: Did the judge err in not explaining what “all proper means to avoid physical combat” means in the context of the self-defense instruction?
No. The judge used the SJC approved Model Jury Instruction on Homicide, which require no further explanation to be valid. No case law requires the use of more specific language.
--Prepared by RAA
