Commonwealth v. Holman

748 N.E.2d 509, 51 Mass. App. Ct. 786, 2001 Mass. App. LEXIS 383
CourtMassachusetts Appeals Court
DecidedJune 6, 2001
DocketNo. 99-P-1573
StatusPublished
Cited by6 cases

This text of 748 N.E.2d 509 (Commonwealth v. Holman) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Holman, 748 N.E.2d 509, 51 Mass. App. Ct. 786, 2001 Mass. App. LEXIS 383 (Mass. Ct. App. 2001).

Opinion

Mason, J.

After a jury trial in the Superior Court, Kevin Holman was convicted on three counts of indecent assault and battery on a child under fourteen (G. L. c. 265, § 13B), and two counts of assault and battery on a police officer (G. L. c. 265, § 13D). On appeal he claims that (1) the judge’s instructions regarding reasonable doubt were flawed; (2) the judge’s additional instructions on prior consistent statements unfairly bolstered the victim’s trial testimony and undermined the [787]*787defense; and (3) there was insufficient evidence to support two of the indecent assault and battery convictions. We affirm the convictions.

The facts. The jury could have found the following. Jane (a pseudonym) was bom on February 16, 1982, and resided with her mother in Plymouth. Sometime in April, 1994, when Jane was twelve years old, Jane’s mother met and began dating Holman. This relationship continued for only about two weeks, but, during this period, Holman visited Jane’s home on several different occasions and sometimes spent the night there. He also took Jane and her mother out on trips, including visits to a carnival and a movie attraction at a local furniture store.

During this two-week period, Holman frequently reached out his arms and invited Jane to give him a hug before leaving or upon returning to her home. Jane would respond by jumping up into Holman’s arms and putting her legs around Holman’s waist. On at least two occasions, Holman reached down in the midst of such a hug and rubbed his hand up and down on Jane’s buttocks.

On the evening of April 28, 1994, Jane’s mother went out to visit a neighbor and left Jane alone with Holman in the living room of their home for a brief period of time. At this time, Holman forced his hand down the front of Jane’s pants and was touching her underwear when Jane pushed his hand away. He then forced his hand down the back of her pants and touched the top of her buttocks under her underwear. At this point, Jane ran out of the house, jumped on her bicycle and rode around the block. When she arrived back at her home, her mother had returned and Jane reported what had happened. Jane’s mother told Holman to leave the house and called the police.

Shortly after Holman had left, Plymouth police officer Peter Flynn arrived and, after speaking briefly to Jane and her mother, obtained assistance from another Plymouth police officer, Roy Ahlquist. Flynn and Ahlquist went to the home of a neighbor and found Holman hiding crouched behind a dog house in the neighbor’s yard. After identifying himself as a police officer, Flynn instructed Holman to come out from behind the dog house and walk toward him. Holman responded by charging Flynn, causing Flynn to fall over and hit his head on the top of [788]*788the dog house. When Ahlquist came to Flynn’s assistance, Holman charged him as well and then fled into a wooded area behind the neighbor’s house.

The trial. Jane, her mother, and officers Ahlquist and Flynn all appeared as witnesses for the Commonwealth and testified to the foregoing facts. The defense did not call any witnesses but introduced as an exhibit a videotape of an interview a representative of the Plymouth County district attorney’s office had taken of Jane on August 12, 1997. The videotape was offered purportedly to establish certain inconsistencies with Jane’s trial testimony. Although there were some inconsistencies, Jane stated during the interview, consistent with her trial testimony, that Holman had dated her mother for about a week and one-half approximately three years before the interview and, during this period, had patted and stroked her buttocks on two different occasions when he was hugging her, and subsequently had put his hand down the front and back of her pants during the incident she had reported to her mother.

1. Reasonable doubt instruction. In instructing the jury on the concept of reasonable doubt, the judge used the “moral certainty” language from Commonwealth v. Webster, 5 Cush. 295, 310 (1850). He then told the jury that if the Commonwealth had established only that “it is more probable or more likely than not” that the defendant committed one or more of the charged offenses, then the Commonwealth’s proof was not sufficient, and “[similarly, if your -minds are left wavering, unsettled and unsatisfied because of a conscious uncertainty as to the guilt of the defendant, you must also return a verdict of not guilty.”1

Holman objected to this instruction, claiming that it [789]*789improperly substituted the “more likely than not” civil standard for the “strong probability” language of Webster 2 and, hence, understated the degree of certainty required to convict. The judge overruled the objection, and Holman raises this issue on appeal.

We think the judge’s instructions were sufficient to convey to the jury the Commonwealth’s burden of proof. See Commonwealth v. Riley, 433 Mass. 266, 271-272 (2001). The judge stated and repeated the key concept that the jurors must have “an abiding conviction to a moral certainty of the truth of the charge.” See Commonwealth v. Andrews, 427 Mass. 434, 444 n.9 (1998); Commonwealth v. Silanskas, 433 Mass. 678, 703-704 (2001). He then referred to the preponderance of the evidence standard only as an example and followed it immediately with the admonition that the jury should return a verdict of not guilty if their minds were left “wavering, unsettled and unsatisfied because of a conscious uncertainty as to the guilt of the defendant.” This “conscious uncertainty” language exhorted the jury to acquit if they were aware of any uncertainty, and hence was substantially equivalent to the Webster “strong probability” language. See Commonwealth v. Gonzalez, 426 Mass. 313, 318 (1997) (“by exhorting the jury to acquit if they were aware of any uncertainty, the ‘conscious uncertainty’ language helped [the defendant] rather than hurting him”); Commonwealth v. Riley, supra at 272.

A similar instruction was approved by the Supreme Judicial [790]*790Court in Commonwealth v. Murphy, 415 Mass. 161, 166-167 (1993). Although Holman asserts that the judge’s entire charge was not reproduced in the Murphy opinion, and that the jury may have been instructed in the Webster “strong probability” language at some point during the judge’s charge in that case, the court did not cite or rely on any such language in approving the supplementary instruction at issue in the case. The court instead reviewed the instruction and concluded that the jurors could not have been confused by the judge’s reference to the civil preponderance of the evidence standard since it was placed within instructions that were “consistent with the Webster charge.” Commonwealth v. Murphy, supra at 168.

Similarly, in the present case, the judge’s reference to the civil preponderance of the evidence standard was placed within instructions that were fully consistent with the Webster charge. We therefore conclude that the judge’s instructions were adequate to explain the applicable burden of proof. See Commonwealth v. Beverly, 389 Mass. 866, 872-873 (1983).

We note, however, that the Supreme Judicial Court in several decisions has encouraged trial judges to use the Webster

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Cruz
99 N.E.3d 827 (Massachusetts Appeals Court, 2018)
Commonwealth v. Lyons
885 N.E.2d 848 (Massachusetts Appeals Court, 2008)
Commonwealth v. Walker
861 N.E.2d 457 (Massachusetts Appeals Court, 2007)
Commonwealth v. Yonaitis
21 Mass. L. Rptr. 151 (Massachusetts Superior Court, 2006)
Commonwealth v. Quinn
789 N.E.2d 138 (Massachusetts Supreme Judicial Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
748 N.E.2d 509, 51 Mass. App. Ct. 786, 2001 Mass. App. LEXIS 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-holman-massappct-2001.