Commonwealth v. Pomerleau

406 N.E.2d 430, 10 Mass. App. Ct. 208, 1980 Mass. App. LEXIS 1222
CourtMassachusetts Appeals Court
DecidedJuly 3, 1980
StatusPublished
Cited by8 cases

This text of 406 N.E.2d 430 (Commonwealth v. Pomerleau) 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. Pomerleau, 406 N.E.2d 430, 10 Mass. App. Ct. 208, 1980 Mass. App. LEXIS 1222 (Mass. Ct. App. 1980).

Opinion

Hale, C.J.

The defendant was convicted after a jury trial on an indictment charging armed robbery. He claims error in the judge’s use of two examples in his charge to explain reasonable doubt and in his failure to strike certain testimony of a police officer alluding to the defendant’s arrest “on a warrant for a previous offense.”

There was evidence before the jury that on November 17, 1978, at about 8:00 p.m. a robbery occurred at a fast food restaurant in Lowell. The only persons present in the restaurant at the time of the robbery were four young women employees. The police were called immediately after the robber had left. The women gave descriptions of him which, with minor variations, were the same. Two of the women then went to a police station where, after going through several books of photographs, they selected one of the defendant. On the following day a third witness select[209]*209ed the same photograph. The defendant was arrested on December 9, 1978. A new photograph was taken of him and placed in a book containing other photographs. The three women were given the book to examine, and each selected the new photograph as that of the robber. Each made an in-court identification of the defendant at trial. The fourth witness, while unable to identify the defendant, not having observed his face, testified to the description of the robber. Although the closing arguments of counsel were not recorded, it is clear from defense counsel’s cross-examination of the Commonwealth’s witnesses and from the alibi testimony of the witnesses for the defense, that the issue being seriously contested was that of identification.

1. In his charge the judge clearly stated the burden of the Commonwealth to prove every essential element of the crime charged beyond a reasonable doubt. He defined reasonable doubt in the following words:

“And that really means that you have got to be sure in your own mind that that’s what happened — all right? — to what we call a moral certainty. In good conscience, you can make that determination of guilt. And that has to be beyond a reasonable doubt.”

He then went on as follows:

“Now, the words ‘reasonable doubt’ we’ve got to wrestle with a little bit. There are certain things that are not subject to absolute, mathematical certainty; and there’s certain things that you can’t be absolutely positive of, which is a little bit different from being sure, and without a reasonable kind of a doubt.
“The milkman normally delivers milk, and in this case it’s normally delivered at six o’clock. There’s a rattle of bottles and he’s taken your note, if you have left one, and responded accordingly. If you put a note out last night for two quarts of milk and a jar of cream . . . and [210]*210there’s a noise at six o’clock the following morning and a rattling of bottles, and then the milk is there when you go out to pick it up just as you left the order, you have the right to presume and find that the milkman left the bottles there. You didn’t see it — all right? — you don’t know for sure; something else may have happened. But, if, under the circumstance, without having heard anything else, there is no question to be determined whether or not your regular milkman delivered these bottles, and you heard nothing to the contrary, and there is a decision to be made on that particular subject, and one of you were of the position that: Hey! I don’t know for sure. I didn’t see it. It may have been a different company and they are using my old company’s bottles. That person would be throwing in a doubt that wasn’t reasonable, in my opinion. They don’t find that as a particular fact, and is hanging on it: it wasn’t proved to me, and I can’t be certain. To a mathematical certainty, it hasn’t been proven to me.”

After a few transitional words, the judge related this example:

“I will run through a progression of things in relation to reasonable doubt. Somewhere along the line, in this progression of things, the doubt that a person has, I think, would become unreasonable. Just when that would take place would be a determination that you will have to make. But, let’s say that you have — that a friend of yours or a family member has been found in the Mystic River dead, and you are talking to another mutual friend, and that mutual friend says to you that that was a suicide; and your opinion is: There’s no way. That’s Charlie — or whoever it happened to be — no way would he commit suicide.
[211]*211“Well, it turns out that your friend is able to point out to you that he was drowned. Then it turns out. So you say: Well, if he was drowned, he could have been pushed off or fallen off a boat or whatever. Then your friend and you learn that a body was seen hurtling from the bridge that fits the description of your friend. You still don’t know. He may have been pushed. It may be a robbery-type of thing. You find that he has his wallet and all his money is intact. It turns out that still he could have been pushed, or still it could have been an accident.
“ It turns out later that there are seventeen people who were traveling on the Mystic River Bridge on this particular occasion and saw a person standing there with nobody else being around him. You are still not convinced. He just wouldn’t do that, and I’m going to hire a detective to find out more. Then it turns out there was a note — a typical suicide note: I am doing this. I apologize to everybody; and all this and that, and it’s signed by your friend, and there’s no question in your mind that is your friend’s signature — all right? You still have some doubts whether it was a suicide or not: He had no reason to do that. You find out later that he was found with the evidence, and that he was just caught. He is a bank employee and there has been an investigation which determined that he embezzled some $200,000 — all right? — and that, you find, is a fact, and you still have doubts about whether or not there was a suicide. Somewhere along the line, you are bringing your — if you still have that doubt — still using your heart and your intuition, which is different from making a judgment on the facts that you have heard — all right? — at that stage of these proceedings, that would be an unreasonable doubt.
“You have to make that determination on your own. I just want to make sure that you know there is a difference — that there is a difference between relying upon the hunches and the facts; and there is a difference be[212]*212tween moral certainty — being sure — and being positive to a mathematical certainty.”

At the conclusion of the charge defense counsel objected to the two portions of the charge set out above, stating that the “milkman” portion of the charge was “confusing” when given in a charge on reasonable doubt. He indicated to the judge that such an analogy is usually given in the context of a charge on drawing inferences. His objection to the portion of the charge concerning “a fellow being thrown off a bridge” was general. The position taken by defense counsel was that the charge was so far off the mark that it could not be corrected and for that reason a mistrial should have been declared.

The judge stated he would give further instructions and denied the defendant’s motion for a mistrial. The further charge as it related to the parts of the main charge set out above were:

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Cite This Page — Counsel Stack

Bluebook (online)
406 N.E.2d 430, 10 Mass. App. Ct. 208, 1980 Mass. App. LEXIS 1222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pomerleau-massappct-1980.