COMMONWEALTH v. BIGELOW (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of one count of assault and battery on a family member.² On appeal, the defendant claims the trial judge erred in instructing the jury on consciousness of guilt because there was insufficient evidence that the defendant knew the victim had called the police before he fled. In addition, the defendant argues the instruction conveyed to the jury that the judge credited the victim's testimony. We affirm.

The defendant claims the consciousness of guilt instruction should not have been given to the jury because the evidence of flight rested entirely on his knowing that the victim was on her cell phone, calling the police as he left the driveway. We disagree. Because the defendant objected, we review for prejudicial error. See Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008).

Contrary to the defendant's claim, the Commonwealth is not required to prove that he immediately fled the scene with actual knowledge that the victim had contacted the police before such an instruction may be given. See Commonwealth v. Toney, 385 Mass. 575, 583 (1982). Here, the victim testified that when she and the defendant pulled into the driveway, she quickly left the vehicle and called 911. The victim also testified that the defendant knew she was calling 911 because he could see her dial the phone and she stated something to the effect of “I'm now having to call 911.” The defendant then drove off quickly.

“It is well established that flight constitutes classic evidence of consciousness of guilt.” Commonwealth v. Vick, 454 Mass. 418, 426 (2009). To rebut this evidence, the defendant asserted that he left the scene because he intended to divorce the victim, who was his wife at the time. However, it was for the jury to interpret the multiple explanations for the defendant's flight and to decide if his conduct constituted consciousness of guilt. See Commonwealth v. Prater, 431 Mass. 86, 97 (2000). As such, the instruction was appropriate where the evidence supported an inference of guilt based on the presented evidence of flight. See Commonwealth v. Morris, 465 Mass. 733, 737-738 (2013).

The defendant also claims that the consciousness of guilt instruction communicated to the jury that the judge had credited the victim's testimony.³ We disagree. The instruction given was well balanced and in accordance with the principles expressed in Toney, 385 Mass. at 585.⁴ See Vick, 454 Mass. at 426. The judge preserved the neutrality of the instruction by highlighting that innocent people may also engage in flight, that there may be alternative explanations, and that such conduct does not necessarily reflect feelings of guilt. See Commonwealth v. Almeida, 479 Mass. 562, 574 (2018). The instructions also adequately cautioned the jury that they must not convict the defendant based solely on evidence of flight. See Toney, supra. As such, the judge did not use “words tending to endorse as true any inference.” Commonwealth v. Harmon, 63 Mass. App. Ct. 456, 465 (2005). In any event, apart from flight, there was strong evidence that the defendant harbored feelings of guilt as shown by the postincident letters he wrote to the victim's mother in which he apologized and sought forgiveness. There was no error, and the judge did not abuse his discretion in giving the properly worded instruction.

Judgment affirmed.

FOOTNOTES

2.   The Commonwealth dismissed a charge of assault with intent to murder; and the defendant was found not guilty of strangulation or suffocation, a second count of assault and battery on a family member, and witness intimidation.

3.   The defendant further claims, based on Commonwealth v. Bastaldo, 472 Mass. 16 (2015), that a consciousness of guilt instruction is appropriate only where there is a dispute as to who committed the crime. We disagree. In Bastaldo, the Supreme Judicial Court held that that “a consciousness of guilt instruction relative to flight is generally inappropriate where there is no dispute that the crime was committed by the person fleeing from the crime scene, and the only contested issue is the identification of the defendant as the fleeing offender” (emphasis added). Id. at 33-34. Here, the defendant conceded that he was the person who fled.

4.   “We think that a judge should instruct the jury (1) that they are not to convict a defendant on the basis of evidence of flight or concealment alone, and (2) that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant. We do not think it necessary ․ that the judge bring to the attention of the jury the defendant's own innocent explanation for the alleged flight, although the judge may in his discretion do so” (citation omitted). Toney, 385 Mass. at 585.