COMMONWEALTH v. GOODWIN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction of two counts of assault and battery. We discern in the claimed errors no cause to disturb the conviction, and affirm.

Admission of statement. There was no error in admission of the defendant's statement, “Fucking Moroccan, go back to your country. I will get you,” made to the victim shortly after the altercation, because the statement was relevant to the charge. The statement illustrated the defendant's animus toward the victim, and thus was relevant to the defendant's motive in assaulting and battering the victim. See Commonwealth v. Cruzado, 480 Mass. 275, 278-279 (2018) (defendant's use of n-word to describe black murder victim was offered to show his “animus toward African-Americans, and thus as a partial motive for the killing”). The Commonwealth also argued that the defendant became upset upon seeing his girlfriend speaking with the victim. The hostility revealed by the statement does not exclude that theory but, rather, corroborates it.

The trial judge did not abuse her discretion in weighing the probative value of the statement against the risk of unfair prejudice. “The most significant factor in determining whether racial references are improper is the extent to which they have probative value with respect to the issues at trial.” Commonwealth v. Washington, 28 Mass. App. Ct. 271, 273 (1990). The statement had probative value as it tended to explain why the defendant would assault the victim over what appeared to be a minor conflict. The judge mitigated the risk of unfair prejudice when she asked the venire during voir dire about their ability to be fully fair and impartial in light of the defendant's offensive language.² See Commonwealth v. Alleyne, 474 Mass. 771, 780 (2016) (judge may mitigate prejudice by alerting venire of potentially inflammatory evidence and asking if it might cause jurors difficulty). Moreover, where there was no statute or rule requiring individual voir dire, the judge's decision to ask the question to the entire venire was not an abuse of discretion.³ See Commonwealth v. Reavis, 465 Mass. 875, 887 (2013). Lastly, though the judge did not give a limiting instruction, none were requested and a judge is not required to give a limiting instruction sua sponte. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002).

Jury instruction. Before a missing witness argument may properly be made, “the trial judge must rule, as a matter of law, that there is sufficient foundation for such inference in the record.” Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 658 (1989). Here, defense counsel did not apprise the judge of the missing witness argument before making it, and the judge was offered no occasion to rule whether there was a sufficient foundation for such an argument. Therefore, it was within the judge's discretion to instruct the jury not to follow defense counsel's invitation to draw an inference from the “missing witness,” and to do so immediately after the defense's closing argument.⁴ Compare id. (where party failed to apprise judge of its missing witness argument, judge did not abuse discretion in interrupting party's closing argument to disregard that argument).

To the extent that some portions of the judge's instructions could be understood as directed at the defense's Bowden argument,⁵ in the absence of an objection, we see no substantial risk of a miscarriage of justice in the timing of the instruction.⁶ The judge did not interrupt the defense's closing argument, nor was the instruction given directly in response to a jury question. See Commonwealth v. Alvarez, 480 Mass. 299, 318 (2018). Moreover, the judge's instructions did not explicitly instruct the jury to disregard the failure of the police to investigate potential video footage. See Commonwealth v. Preziosi, 399 Mass. 748, 751-752 (1987) (no substantial risk of miscarriage of justice because nonspecific instructions did not explicitly preclude Bowden defense). Indeed, in context, the judge's instruction is best understood as directed to defense counsel's attempt to introduce a missing witness argument without alerting the trial judge in advance.

Response to jury question. The judge did not abuse her discretion in declining to reinstruct the jury on reasonable doubt in response to their question,⁷ because that question did not reflect confusion about the burden of proof. The judge need not address issues not explicitly raised by a jury question. See Commonwealth v. Stokes, 440 Mass. 741, 750 (2004).

Judgments affirmed.

FOOTNOTES

2.   The trial judge asked the venire: “You may hear evidence that the defendant used language that you may consider offensive or hurtful based on another person's nationality. Given that, do you feel in any way that you could not be fully fair and impartial given that inflammatory language?” There was no response from the venire.

3.   An abuse of discretion will be found only if the judge made “a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

4.   The judge instructed:“Members of the jury, I'm just going to just say one quick thing to you. You are to confine your deliberations to the testimony and evidence presented in this case. You are not to speculate or guess about why any witness who is not here, in other words, an absent witness who did not testify, or make any inference about what that absent witness's testimony may have been. You are to confine your deliberations to whether the Commonwealth has proved the charges beyond a reasonable doubt through the testimony and evidence admitted in this case.”

5.   See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). The defense argued in closing:“[W]hen you ․ think, wow, that dispatcher that we kept hearing about who would have heard if there was something said on the radio, I wish we'd heard from that dispatcher, that's the Commonwealth's burden ․ [D]id something happen in Tedeschi's or in this booth and did either of those have video or did the police check ․ When you hear there's an MBTA inspector maybe, there's other people standing around the area ․ Were there other people present that the police could have talked to that could have testified in front of you? That's another missing brick that could have been used to build the bridge that the Commonwealth wants you to walk over.”

6.   A substantial risk of a miscarriage of justice exists only “if we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

7.   The jury asked: “If we cannot conclude that the defendant was acting in self-defense and we are in agreement that an assault occurred, are we to acquit?”