Com. v. Powers
Decision Date | 28 May 1980 |
Citation | 404 N.E.2d 1260,9 Mass.App.Ct. 771 |
Parties | COMMONWEALTH v. Kathleen M. POWERS (and a companion case). |
Court | Appeals Court of Massachusetts |
Richard J. Hayes, South Boston, for defendant.
Phyllis J. Broker, Asst. Dist. Atty., for the Commonwealth.
Before HALE, C. J., and GOODMAN and GRANT, JJ.
The defendant was convicted on two complaints charging her with obtaining possession of a controlled substance by "forgery or falsification of a prescription." See G.L. c. 94C, § 33(b ). She appeals and claims various errors in the judge's charge to the jury.
1. Reasonable doubt. The focus of the defendant's attack is on the judge's statement set out in the margin. 1 That comment was considered in Commonwealth v. Williams, 378 Mass. ---, --- - --- a, 391 N.E.2d 1202 (1979), and Commonwealth v. Hughes, --- Mass. ---, --- b, 404 N.E.2d 1246 (1980). See Commonwealth v. Delaney, --- Mass.App. ---, --- n.1 c, 394 N.E.2d 1006 (1979). In the Williams case, the court pointed out that it had never passed on the propriety of the comment, although it had cited generally with approval the charge set out in the preface to Commonwealth v. Madeiros, 255 Mass. 304, 306-312, 151 N.E. 297 (1926), from which the language was taken. The court then proceeded to examine the comment in the context of the charge as a whole and found no error. In the Hughes case (--- Mass. at --- d, 404 N.E.2d 1249), the court held that "the quotation from the Madeiros case is not of itself so one-sided as to require automatic reversal." A similar analysis of the charge as a whole in the case at bar convinces us that there is no danger that the jury misunderstood the reasonable doubt standard. 2
It would have been better to omit the comment; this "embellishment" has nothing to commend it except that through the years it appears to have passed unnoticed. See Commonwealth v. Therrien, 371 Mass. 203, 208, 355 N.E.2d 913 (1976). But it could not have led the jury astray in view of the clear instruction following that comment that Compare Commonwealth v. Robinson, 7 Mass.App.Ct. ---, --- e, 389 N.E.2d 758 (1979).
Moreover, the instruction on the presumption of innocence which preceded the instruction on reasonable doubt also emphasized that a defendant can be found guilty "only upon evidence, evidence of the guilt beyond a reasonable doubt produced in court." Further, the judge charged that the presumption "lasts until such time as the government offers evidence which convinces you, as reasonable individuals, that the defendant is guilty beyond a reasonable doubt." See Commonwealth v. Hughes, --- Mass. at --- f, 404 N.E.2d at 1249. Cf. Commonwealth v. Boyd, 367 Mass. 169, 189, 326 N.E.2d 320 (1975).
2. Failure to testify. The defendant focuses on the statement in the charge that "a defendant has the constitutional right not to incriminate himself or herself." 3 This sentence and the words in note 3, supra, to which the defendant objects, are both found in the portion of the charge reproduced in Commonwealth v. Morrissey, 351 Mass. 505, 515 n.5, 222 N.E.2d 755 (1967), which is almost verbatim the charge given in this case. The court in the Morrissey case held that this instruction was adequate. We considered the same instruction in Commonwealth v. Delaney, --- Mass.App. at --- g, 394 N.E.2d at 1008, and pointed out that "a reversal (is not) required solely by reason of the fact that the judge explained to the jury that the privilege was grounded in part on the defendant's constitutional right not to incriminate himself." We held, however, upon an analysis of the charge as a whole, that the conjunction of that instruction with other dubious instructions and the circumstances of that case created a risk that the charge could have been understood by the jury as a criticism of the defendant for failing to take the stand. We see nothing in the charge in this case, and the defendant points to nothing, which creates any such danger.
Since, as the Delaney case illustrates, a reference to the privilege against self-incrimination in a charge may result in error, such a reference places an additional burden on this court to analyze the charge as a whole. It seems significant to us that the court in Commonwealth v. Sneed, 376 Mass. ---, --- n.1 h, 383 N.E.2d 843, 846 (1978), pointed out that:
Accordingly, we would suggest that generally absent a request by the defendant or other special circumstances any reference to the privilege against self-incrimination should be omitted from the charge. It seems preferable to us that the defendant's right not to testify be put in terms of "the right to remain passive, and to insist that the Commonwealth prove its case beyond a reasonable doubt without explanation or denial by him." Commonwealth v. Madeiros, 255 Mass. at 307.
3. Of the two further criticisms of the charge...
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