Commonwealth v. Kirker
Commonwealth v. Kirker
Opinion of the Court
We transferred this case from the Appeals Court on our own motion to consider the proper method for
The defendant appealed from his conviction under G. L. c. 266, § 127, and from a conviction of assault and battery by means of a dangerous weapon (a knife) under G. L. c. 265, § 15A (b), claiming error in certain jury instructions and in the prosecutor’s closing argument.
1. Background. This matter arises from a violent altercation outside a bar in Fall River on the night of May 4, 1999. Reviewing the record in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), a reasonable jury could have found the following.
On the evening in question, the defendant was sitting at the bar with a friend. The victim, accompanied by a man he knew
The same witness testified that he then saw the defendant puncture a rear tire of an automobile, the victim’s Toyota Célica. The first police officer on the scene testified that the defendant was near the rear tire of the victim’s automobile, moving his arm; the officer then heard a hissing sound. The officer testified that the Toyota had two flat tires on its right side. The victim testified that he had paid $7,500 for the Toyota some two years before the incident, and that it was in “mint condition.”
2. Malicious destruction of property. At the close of the Commonwealth’s evidence, the defendant moved unsuccessfully for a required finding of not guilty, arguing that the Commonwealth had presented insufficient evidence of the value of the two slashed tires, which, he maintained, was the correct measurement of the “value” of the property damaged. G. L. c. 266, § 127. The Commonwealth contended, and the judge instructed,
In this case only the tires of the victim’s automobile were destroyed; there was no other damage to the Toyota. Accordingly, the proper measure of the value of the property damaged is the replacement cost of the two tires. Commonwealth v. Deberry, supra at 224. Because the Commonwealth introduced no evidence to that effect, it failed to prove an essential element of the felony crime of malicious destruction of property over $250, under G. L. c. 266, § 127.
3. Jury instructions. In his instructions to the jury on self-defense, the judge stated, in part: “[I]f you find that the defendant acted reasonably in self-defense and did not use
The use of “finding” language in jury instructions on self-defense is disapproved. See, e.g., Connolly v. Commonwealth, 377 Mass. 527, 533-534 (1979) (noting with disapproval “repeated use of ‘finding’ language when explaining the law of self-defense”). Such use, however, “does not automatically render a set of instructions constitutionally defective.” Commonwealth v. Albert, 391 Mass. 853, 859 (1984), citing Commonwealth v. Simmons, 383 Mass. 40, 44 (1981). Here, the judge correctly instructed the jury on self-defense, repeatedly instructed that the defendant did not need to prove anything or produce any evidence, and repeatedly instructed that the Commonwealth always bears the burden of proof. The judge stated specifically that “the Commonwealth must prove beyond a reasonable doubt that [the defendant] did not act in self-defense.” Reviewing these instructions in their entirety, we conclude that a single, fleeting misuse of the word “find” did not shift the burden to the defendant to prove self-defense.
4. Prosecutor’s closing argument. In his closing argument the prosecutor told the jury that, while the defendant was seated at the bar before the victim and his companion arrived, he was “showing off his battle scars from the previous week.” He was, continued the prosecutor, “[pjulling up his shirt and showing a knife wound from some knife fight he got into a week before” (emphasis added). The prosecutor’s statement that the defendant had been in a “knife fight” was not supported by the evidence.
There was no objection to the prosecutor’s remark. We therefore determine whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Thomas, 400 Mass. 676, 682 (1987). We consider the improper remark in the context of the entire argument, the judge’s instmctions to the jury, and the evidence at trial.
The prosecutor made only one reference to a “knife fight.”
5. Conclusion. The defendant’s conviction of assault and battery by means of a dangerous weapon is affirmed. The judgment on the defendant’s conviction of malicious destruction of property over $250 is reversed, the verdict is set aside, and the case is remanded to the Superior Court, where a finding of guilty of the lesser included offense of malicious destruction of property under $250 is to enter. The defendant is to be sentenced pursuant to those provisions of G. L. c. 266, § 127, that pertain to the misdemeanor offense.
So ordered.
General Laws c. 266, § 127, as amended through St. 1994, c. 168, § 4, provides, in pertinent part: “Whoever destroys or injures the personal property, dwelling house or building of another in any manner or by any means not particularly described or mentioned in this chapter shall, if such destruction or injury is wilful and malicious, [be guilty of a felony]; if the value of the property so destroyed or injured is not alleged to exceed two hundred and fifty dollars, [the offender shall be guilty of a misdemeanor].”
On July 28, 1999, the defendant was indicted for armed assault with intent to murder; assault and battery by means of a dangerous weapon, a knife; and malicious destruction of property valued over $250. On April 13, 2001, after a jury trial in the Superior Court, the defendant was convicted of assault and battery by means of a dangerous weapon and malicious destruction of property valued over $250. The defendant was sentenced to from nine to ten years in State prison on the assault and battery by means of a dangerous weapon conviction, and to from one to five years on the malicious destruction of property valued over $250 conviction, to be served concurrently.
The defendant called Thomas a “drug dealer,” and told.him to go into the bathroom. While holding a knife in his hand, the defendant said, “I’m going to stick him.” The victim responded, “Why don’t you leave him alone. We only came to shoot a game of pool.”
The victim was stabbed in the chest and collapsed. Emergency medical technicians succeeded in resuscitating him.
The defendant did not argue at trial that the correct measurement for determining the value of the property destroyed was the replacement cost of the two tires. For the reasons we explained in Commonwealth v. Deberry, ante 211, 221 n.19 (2004), the defendant did not waive the claim.
The Commonwealth argues on appeal that the defendant was not entitled to an instruction on self-defense because no view of the evidence warranted a reasonable doubt that the defendant had a reasonable or actual fear of death or serious bodily injury when he stabbed the victim, that he used all available means to avoid physical contact before resorting to the use of deadly force, or that he used no more force than was reasonably necessary in the circumstances of the case. See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). The Commonwealth did not object when the defendant sought and obtained such a self-defense instruction.
We reject the defendant’s contention that, to cure the error, the judge should have immediately restated that it was the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. The defendant did not alert the judge to the misstatement. There were no other instructions that so much as hinted at a shift in the burden of proof, to the
The defendant also contends that the judge should have given an instruction on consciousness of guilt. The defendant did not request an instruction on consciousness of guilt, and a judge is not required to give one sua sponte. Commonwealth v. Simmons, 419 Mass. 426, 435-436 (1995). There was no error.
There was evidence that the defendant previously had been stabbed. One witness testified that the defendant was “seated at the bar having a drink” with a friend, engaged in “normal small talk,” and that at one point the defendant explained that “somebody . . . had stabbed him the week before.” Another witness testified that the defendant showed his scar on his stomach to his friend and the employees at the bar. She also testified that “he was talking about being upset that he had been stabbed prior to that, the week before or so.”
Prior to trial, the defendant filed a motion in limine to exclude evidence of any prior convictions. The motion was allowed, but the prosecutor alerted the defendant that he would refer to the defendant’s earlier stab wound. Defense counsel did not object to the prosecutor’s plan to elicit such testimony, nor did he object when the evidence was introduced.
Reference
- Full Case Name
- Commonwealth v. Edward Kirker
- Cited By
- 2 cases
- Status
- Published