Opinion
11-P-165
03-14-2012
COMMONWEALTH v. CHARLES J. BOUCHARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of one count of vandalizing property and two counts of assault by means of a dangerous weapon (a shovel). In responding to the jury's request that he 'clarify [the] rules of assault,' the judge did not abuse his discretion, or otherwise err, in declining to repeat in full the correct self-defense (or defense-of-property) instructions he initially gave. His answer was responsive to the question the jury asked and was correct. Indeed, the judge referred in his supplemental instruction to his prior self-defense instruction. Nothing more was required.
Given the verdict slips, which specifically referred to the shovel, and the prosecutor's closing, which made clear that the shovel was the dangerous weapon the jury were being asked to find, any unpreserved error in failing to specify in the instructions what the dangerous weapon at issue was did not create any substantial risk of a miscarriage of justice. See Commonwealth v. Olivo, 58 Mass. App. Ct. 368, 373 (2003).
The evidence of past repossession was relevant to the defense-of-property defense (i.e, as evidence that the defendant knew one could get one's repossessed car back simply by making payment). The judge did not abuse his discretion in determining that the evidence of past repossession was more probative than prejudicial. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006). The defendant did not request the limiting instruction on use of that evidence that he now claims is error; he has not shown that failure to give this instruction, even if error, created a substantial risk of a miscarriage of justice. See Olivo, 58 Mass. App. Ct. at 374-375.
The arguments in closing that the defendant's acts were retaliatory, and about the speed of the truck, were each based on fair inferences from the evidence. See Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978). The unobjected-to statement that the driver and passenger of the tow truck were 'probably fighting for their lives too' may not have been supported by the evidence, but in light of the closing as a whole and the evidence in the record, it has not been shown to have created a substantial risk of a miscarriage of justice. Likewise, even if the prosecutor's rhetorical question about the knowledge of the man repossessing the defendant's car was in error, cf. Commonwealth v. Habarek, 402 Mass. 105, 111 (1988) ('As a general rule, . . . rhetorical questions should not be used in closing argument where they could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant '), something we need not and do not decide, it was not objected to, and it has not been shown to have created a substantial risk of a miscarriage of justice.
We are also not persuaded by the defendant's final argument that the combination of claimed errors created a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Mills, Meade & Rubin, JJ.),