Opinion
No. 13–P–59.
2013-12-18
COMMONWEALTH v. Ricardo BLAKE.
By the Court (GREEN, CARHART & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant raises various claims of error on appeal from his conviction on a charge of wantonly and recklessly permitting substantial bodily injury to a child in his custody, and claims ineffective assistance of his trial counsel. We discern no cause to disturb the judgment, addressing the defendant's various claims in turn.
1. Juror voir dire. Because the defendant indicated an intention to raise a defense of lack of criminal responsibility by reason of mental illness, the trial judge conducted individual voir dire of potential jurors. See Commonwealth v. Seguin, 421 Mass. 243, 247 (1995). In substance, the judge's inquiry of each juror explained that the evidence at trial might include psychiatric evidence concerning the defendant's mental state at the time of the incidents giving rise to the charge, and then asked each juror whether such evidence would interfere with his or her ability to be fair and impartial. On appeal, the defendant challenges the adequacy of the judge's inquiry on the subject, contending that the judge should have described the issue by means of explicit reference to an “insanity defense.” Because the defendant did not object to the form of the judge's inquiry during the voir dire, the issue is not preserved and we review for a substantial risk of a miscarriage of justice. We do not believe omission of the exact words “insanity defense” or “not guilty by reason of insanity” from the judge's inquiry rendered it inadequate to achieve the objective described in Seguin: to ascertain whether any juror harbored personal opinions or bias relating to the effect of mental illness on criminal responsibility that would prevent him or her from returning a verdict of not guilty by reason of insanity if the Commonwealth failed to carry its burden of establishing, beyond reasonable doubt, that the defendant was criminally responsible. See id. at 249. In substance, the judge's inquiry forecast the presentation of psychiatric evidence and placed the question of criminal responsibility before the individual jurors. Critically, the judge's inquiry asked jurors if such evidence would affect their ability to weigh the evidence, and consider the defendant's criminal responsibility, in a fair and impartial manner. If any juror expressed confusion or misunderstanding, the judge pursued the question further with that juror. See Commonwealth v. Auguste, 414 Mass. 51, 57–58 (1992). While the judge's inquiry did not use the words “insanity defense” in so many words, the rule announced in Seguin does not require any particular formulation of words; instead, it dictates only that the judge inquire into the topic “in some manner.” Seguin, supra. We are satisfied that the form of the judge's inquiry did not create a substantial risk of a miscarriage of justice.
2. Consequences instruction. The defendant requested the trial judge to instruct the jury on postverdict consequences of an acquittal by reason of insanity, thereby triggering his entitlement to such an instruction. See Commonwealth v. Mutina, 366 Mass. 810, 822–823 (1975). Though the judge gave such an instruction, the defendant claims on appeal that the form of the instruction given by the judge was confusing and erroneous.
The defendant is correct that the second sentence of the relevant portion of the instruction was incorrect; it stated, incorrectly, that the Commonwealth had the burden of proving a lack of criminal responsibility, instead of correctly reminding jurors that the Commonwealth had the burden of proving that the defendant was criminally responsible. However, in the circumstances, it would have been obvious to the jury that the comment was a mere slip of the tongue, inasmuch as the judge previously had correctly instructed them of the Commonwealth's burden to prove criminal responsibility nineteen times. See, e.g., Commonwealth v. Ortiz, 463 Mass. 402, 419–420 (2012). Nor was the third sentence of the instruction error; in context, the judge was merely advising the jury that the defendant would not be released if found not guilty by reason of insanity.
The relevant portion of the judge's instruction was as follows:
“I give you the information so that you understand the practical consequences. It is not, if I may suggest, a factor that you may consider in assessing the substantive decision of whether or not the Commonwealth has proven lack of criminal responsibility beyond a reasonable doubt. But it's something that you should be aware of as you make that determination, if you reach that issue.”
3. Ciampa instruction. At trial, the defendant's girlfriend, Claudia Villa Lobo, testified for the Commonwealth, and her testimony included reference to the fact that she had pleaded guilty to the same charge as the defendant faced at trial. After the Commonwealth referred to Lobo's guilty plea in its opening statement, the judge gave a forceful curative instruction to the jury, advising that jurors could not consider her guilty plea against the defendant under any circumstances, and that they could not draw any adverse inference against him by reason of the plea. The defendant's reliance on Commonwealth v. Ciampa, 406 Mass. 257 (1989), for the proposition that he was entitled to further instruction concerning Lobo's guilty plea, is misplaced. In Ciampa, the concern was not with the guilty plea as such, but with the portion making it contingent on the witness testifying truthfully. The danger cited by the court was its potential influence on the jury's assessment of the witness's credibility: the possibility that the jury would believe the witness was telling the truth because his agreement depended on him doing so. Id. at 262, 264–266. In the present case, by contrast, the reference to Lobo's plea included no reference to an obligation imposed therein to testify truthfully, and the prosecutor did not attempt to argue such an inference in her closing. See Commonwealth v. Daye, 411 Mass. 719, 739–740 (1992).
4. Other issues. There is no merit to the defendant's claim (asserted without reference to authority, see Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1979] ) that the judge gave erroneous instruction on the standard of wanton or reckless conduct, for substantially the reasons explained in the Commonwealth's brief at pages thirty-three to thirty-six. The defendant's claim that his trial counsel was ineffective for failing to object to opinion testimony given by the Commonwealth's rebuttal witnesses is without merit, because any such objection would have been fruitless. See, e .g., Commonwealth v. Berry, 457 Mass. 602, 610–611 (2010); Commonwealth v. DiPadova, 460 Mass. 424, 429–430 (2011).
Judgment affirmed.