Opinion
No. 12–P–1059.
2013-05-14
COMMONWEALTH v. Michael F. LAUGHNANE.
By the Court (RUBIN, FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, after jury trial in the District Court, of assault and battery (causing serious bodily injury). He complains that the judge's omission of the phrase “moral certainty” from her instruction on the Commonwealth's burden of proof, over his objection, was structural or prejudicial error requiring a new trial. We disagree and affirm.
Originally, the defendant was charged with an aggravated assault and battery by means of a dangerous weapon; the jury verdict was to a lesser included offense.
The judge's instruction on the Commonwealth's burden of proof (reasonable doubt) was virtually identical to that previously approved by this court in Commonwealth v. Byers, 62 Mass.App.Ct. 148 (2004) ( Byers ), in which the judge replaced the first reference to “ ‘moral certainty’ ... [with] ‘near certitude,’ a phrase that is equivalent to ‘reasonable doubt.’ “ Id. at 150, citing Jackson v. Virginia, 443 U.S. 307, 315 (1979). Indeed, in Byers, the court noted the criticism often repeated that “moral certainty” dilutes the burden of the Commonwealth. Byers, supra at 150. In Commonwealth v. Riley, 433 Mass. 266 (2001), the court observed that the defendant sought an instruction that substituted the phrase “near certitude” in place of “moral certainty,” but declined the invitation to impose such language as a requirement, implicitly because the phrase has been perceived to impose a heavier burden on the Commonwealth. Id. at 270, 272 & n. 11. Similarly, the judge here also removed “moral” from the phrase “reasonable and moral certainty,” leaving in place the phrase “reasonable certainty.” As in Byers, supra at 150–151, the defendant's contention that this substitution lessens the Commonwealth's burden is without merit. “Just as the use of the phrase ‘moral certainty’ is not error if it is linked with language that lends content to the phrase, the use of the phrase ‘reasonable certainty’ is also not error, provided that it is similarly linked to appropriate language.” Id. at 151. Such was the case here.
Notwithstanding the difference between the standard by which we review the instructions given here from the standard in Byers that governed review of the claimed erroneous instructions, which had not been preserved by objection, we consider the judge's variations from the preferred Commonwealth v. Webster, 5 Cush. 295, 320 (1850), instructions on reasonable doubt to be without error for the reasons expressed in Byers, supra at 151–152. Thus we conclude, as did the court in Byers, that “[v]iewed as a whole, ‘... the instruction correctly conveyed to the jury the level of proof required to convict the defendant.’ “ Id. at 152 (citation omitted).
Notwithstanding our discussion, we repeat the recommendation of the Supreme Judicial Court: “the [ Webster ] charge has always been, and remains today, the preferred and adequate charge on the Commonwealth's burden of proof.” Commonwealth v. Watkins, 433 Mass. 539, 546–547 (2001). “It is well settled that where a judge has read the Webster charge in a reasonable doubt instruction, there can be no error.” Commonwealth v. McKinnon, 446 Mass. 263, 268–269 (2006).
Judgment affirmed.