Commonwealth v. Whitson

• Decision Date: 06 July 2020
• Docket Number: No. 19-P-568,19-P-568
• Citation: 151 N.E.3d 455,97 Mass.App.Ct. 798
• Parties: COMMONWEALTH v. William WHITSON.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 798

151 N.E.3d 455

COMMONWEALTH

v.William WHITSON.

No. 19-P-568

Appeals Court of Massachusetts, Bristol..

Argued March 3, 2020.

Decided July 6, 2020.

James E. Methe for the defendant.

Alysia V. Sanchez, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Massing, & Wendlandt, JJ.

WENDLANDT, J.

As told by the Commonwealth's witnesses, three year old Smokey (a 110-pound, gray blue-nose pit bull) is a gentle giant. Smokey was stabbed repeatedly by the defendant, William Whitson, outside the defendant's Fall River barbershop. Smokey survived. After a jury trial in the Superior Court, the defendant was convicted of animal cruelty, pursuant to G. L. c. 272, § 77.

On appeal, the defendant maintains that the trial judge committed structural error when he deviated from the instruction prescribed by the Supreme Judicial Court in Commonwealth v. Russell, 470 Mass. 464, 477, 23 N.E.3d 867 (2015), regarding the Commonwealth's burden to prove guilt beyond a reasonable doubt. In particular, the judge omitted the following portion of the Russell charge defining "moral certainty":

"When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case."

Id. We hold that, in the context of the entire jury charge, which otherwise adhered to Russell and to which the defendant did not object, the error does not mandate reversal. Concluding that the defendant's remaining arguments lack merit, we affirm.

Background. We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). While on their daily walk, Smokey and his then-owner, Heather Lemieux, passed the defendant's Fall River barbershop. Smokey was well-trained, docile, and leashed. Travis, an unleashed small white Maltese-Cocker Spaniel mixed breed, ran at Smokey and began biting Smokey's ankles; Smokey responded playfully and was not aggressive. The defendant, who was in his barbershop at the time the canines engaged, responded to calls for assistance from Janine Ainsworth, Travis's owner. The defendant helped separate the dogs, and Travis ran across the street.

The defendant returned briefly to his barbershop. When he came back outside, he grabbed Smokey in a headlock with his left arm. As he held Smokey, the defendant reached into his pocket with his right hand, drew out a knife and flicked it several times to open it. When the knife finally opened, the defendant plunged it repeatedly into Smokey, using his right hand, while restraining Smokey with his left arm. All told, the defendant stabbed Smokey five times.

Smokey slumped down on his side, bleeding profusely. He was transported to a nearby veterinarian urgent care where he was treated for his extensive injuries and massive internal bleeding.

Fall River Police Department officers responded to the scene after receiving several 911 calls. The defendant surrendered the knife to the officers. The knife had a curved tip and no guard; it was covered in hair and blood. The defendant was transported to the hospital for treatment of a laceration on his right hand, running between his thumb and pointer finger. Hospital records report the injury was caused by a dog bite; the defendant declined treatment. While at the hospital, the defendant was very animated and yelled, "I'm glad I killed the [expletive] dog." As mentioned, Smokey survived.

Defense. At trial, the defense was that the defendant was justified in stabbing Smokey. The defendant alleged that Smokey bit him and that he stabbed Smokey in an effort to free his hand from the dog's grip. No witness testified that Smokey bit the defendant. However, Ainsworth testified that Smokey had been the aggressor in the dogs' altercation; Travis had a small red spot behind his ear that officers found unremarkable. Two other defense witnesses confirmed that Smokey grabbed Travis with his mouth.

Smokey's prior "bad acts." The defendant filed a motion in limine to permit one prior and three subsequent "bad acts" in evidence regarding Smokey. The judge allowed the motion as to Smokey's prior bad act. Specifically, approximately one week prior to Smokey's stabbing, Lemieux and the defendant exchanged hostile words when Lemieux and Smokey were on their daily walk. As Lemieux and Smokey passed the defendant's barbershop, the defendant's dog (also a pit bull) was unleashed and ran outside. He approached Smokey. As the dogs faced off, the defendant came out with a golf club. Lemieux, who was intoxicated and belligerent,¹ yelled at the defendant and threatened that Smokey would chew the defendant's dog. Smokey was leashed at the time. While the dogs barked at each other, they did not fight. Parts of this altercation were captured on video recordings played for the jury.

Discussion. On appeal, the defendant challenges the jury charge, the sufficiency of the evidence, several evidentiary rulings, the prosecutor's closing argument, and the judge's failure sua sponte to instruct the jury as to the necessity defense. We address each in turn.

1. Jury charge. Although he raised no objection at trial, on appeal the defendant contends that the jury charge, which we set forth in full in the margin,² violated due process. The instruction deviated from the charge mandated by Russell by omitting language defining "moral certainty" as "the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case."

Russell, 470 Mass. at 477, 23 N.E.3d 867. In Russell, the court modernized the Webster charge, first set forth in 1850, Commonwealth v. Webster, 59 Mass. 295, 5 Cush. 295 (1850), in response to criticism that the language was outmoded and archaic and that the use of the phrase "moral certainty" might suggest that "certainty is based on a feeling, i.e., moral conviction, rather than facts" (citation omitted). Russell, supra at 476, 23 N.E.3d 867. See id. at 476, 23 N.E.3d 867 n.8. The court exercised its inherent supervisory power "to require a uniform instruction on proof beyond a reasonable doubt that uses more modern language, but preserves the power, efficacy, and essence of the Webster charge." Id. at 477, 23 N.E.3d 867. Given the uniform instruction's mandatory nature, the judge's deviation here was error. We take the opportunity to reiterate the court's caution that "[w]here issues as important as reasonable doubt are concerned, judges would do well to follow approved models." Id. at 475, 23 N.E.3d 867, quoting Commonwealth v. Riley, 433 Mass. 266, 271 n.9, 741 N.E.2d 821 (2001).

Although the deviation from the Russell instruction was error, it does not necessarily follow that the instruction was constitutionally deficient, thus requiring reversal.³ The Constitution requires no "particular form of words" advising the jury of the government's burden of proof, so long as the words chosen "impress[ ] upon the [fact finder] the need to reach a subjective state of near certitude of the guilt of the accused" (citation omitted). Russell, 470 Mass. at 468, 474, 23 N.E.3d 867. In assessing whether this standard was met, we look at the charge as a whole. See id. at 474, 23 N.E.3d 867.

The judge's instruction met this standard. The jury "specifically were instructed that even a ‘strong probability’ of the defendant's guilt would not support a conviction." Id. at 472, 23 N.E.3d 867 (considering similar "strong probability" language in holding that instruction met constitutional muster). The jury were also instructed that they must have in their "minds an abiding conviction to a moral certainty that the charge is true" in order to convict. See Commonwealth v. Veiovis, 477 Mass. 472, 490, 78 N.E.3d 757 (2017) ("use of the phrase ‘abiding conviction’ in conjunction with the moral certainty language does much to alleviate any concerns that the phrase ‘moral certainty’ might be misunderstood in the abstract" [quotation and citation omitted] ). Although the instruction omitted the aforementioned definition of "moral certainty," the judge captured much of the missing instruction at the beginning of his charge, instructing the jury that "the [d]efendant is not to be found guilty of an indictment based on suspicion o[r] conjecture, but only on the evidence produced and admitted in this courtroom." In light of the judge's fidelity to the Russell charge in its other aspects, the totality of the judge's instructions "impress[ed] upon the [jury] the need to reach a subjective state of near certitude of the guilt of the accused" (citation omitted). Russell, 470 Mass. at 474, 23 N.E.3d 867. Because the instruction adequately conveyed the Commonwealth's burden of proof beyond a reasonable doubt, there was no substantial risk of a miscarriage of justice. See Veiovis, 477 Mass. at 489-490, 78 N.E.3d 757 (omission did not present substantial likelihood of miscarriage of justice where instruction otherwise mirrored Webster charge); Commonwealth v. Gonzalez, 426 Mass. 313, 318, 688 N.E.2d 455 (1997) (analyzing unpreserved objection to reasonable doubt instruction for substantial risk of miscarriage of justice).

2. Sufficiency of evidence. The defendant challenges the sufficiency of the evidence. General Laws c. 272, § 77, provides that "[w]hoever ... cruelly beats, mutilates or kills an animal ... shall be punished ...." Cruelty is "[s]evere pain inflicted upon an animal ... without any justifiable cause."⁴ Commonwealth v. Zalesky, 74 Mass. App. Ct. 908, 909, 906 N.E.2d 349 (2009), quoting Commonwealth v. Lufkin, 89 Mass. 579, 7 Allen 579, 581 (1863). The Commonwealth must prove beyond a reasonable doubt that the defendant "intentionally and knowingly [committed] acts [that] were plainly of a nature to inflict unnecessary pain" (citation omitted). Zalesky, 74 Mass. App. Ct. at 909, 906 N.E.2d 349.

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