Commonwealth v. McDonald
Commonwealth v. McDonald
Opinion of the Court
2. The defendant’s brother Willie was also indicted and tried for murder in the first degree. The Commonwealth’s theory of his guilt was based on a joint enterprise. In his jury instruction on joint enterprise, the judge twice used the words “the murder.” The defendant made no objection, but he now claims that the judge’s failure to use a conditioned phrase, such as “the possible murder” or “the alleged murder,” must be viewed as an improper indication to the jury by the judge as to what inferences the jury should draw. In view of the charge in its entirety as well as the jury’s verdict (guilty of manslaughter rather than murder), we see no substantial risk of a miscarriage of justice. See Commonwealth v. Mitchell, 12 Mass. App. Ct. 354, 357 (1981). We reach the same conclusion on the defendant’s claim concerning the judge’s instruction on what factors the jury could consider in determining the credibility of the witnesses, including the defendant and his brother, who was acquitted. We do not view the judge’s discussion of these factors as error similar or comparable to that found in Commonwealth v. Rodriguez, 6 Mass. App. Ct. 738, 742-744 (1978), S.C., 378 Mass. 296, 301-302 (1979).
3. In charging on self-defense and excessive force, the judge instructed the jury that they were to consider all the circumstances, “including whether or not [the defendant] had any other avenues or whether he had to shoot five times or more than once in self-defense.” Even if we view this statement in the same manner as the defendant, an indication by the
4. Having made no objection at trial to the judge’s instructions on self-defense and excessive force, the defendant claims that there is a substantial risk of a miscarriage of justice by reason of the following portion of the charge: “[The defendant] doesn’t have to convince you that the means he took were reasonable; the Commonwealth has to convince you that they were not. And if the Commonwealth has not convinced you of that, if, after weighing all the evidence, having in mind the Commonwealth’s burden beyond a reasonable doubt that this was not a legitimate self-defense, then you take into consideration whether he used excessive force.” The defendant argues that the judge should have instructed the jury that if they concluded that the Commonwealth had met its burden of proving that the defendant had not acted in self-defense, then and only then should the jury consider whether the basis of their conclusion was the amount of force used by the defendant. The judge touched upon all the elements of “a legitimate self-defense” in his charge and conveyed to the jury that if the defendant used reasonable force in defending himself against the victim, he would be entitled to an acquittal; if, however, he used excessive force, he would be guilty of manslaughter. The instructions in their entirety are consistent with Commonwealth v. Kendrick, 351 Mass. 203, 211-213 (1966). See also Commonwealth v. Bastarache, 382 Mass. 86, 105 n.15 (1980).
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.