error instruction in Massachusetts

2011See Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

2010See Commonwealth v. Wright, 411 Mass. 678, 682 (1992). 4.

2006See also Commonwealth v. Sanna, 424 Mass. 92, 101-102 (1997) (“Where no evidence exists that the defendant did not have knowledge of the circumstances of the killing, an error in the instruction on the effect of intoxication on the defendant’s knowledge does not constitute reversible error”); Commonwealth v. Sires, 413 Mass. 292, 299 (1992) (where trial judge omitted requested instruction on effects of intoxication on third prong of malice, no error where “no evidence that the defendant did not know what he was doing at the time of the killing”); Commonwealth v. Blake, 409 Mass. 146, 155-156 (

1997See Commonwealth v. Blake, 409 Mass. 146, 155-156 (1991) (defendant not entitled to instruction on effects of intoxication on third prong of malice where no showing that intoxication had any relevant effect on knowledge of circumstances of killing). 14 Where no evidence exists that the defendant did not have knowledge of the circum stances of the killing, an error in the instruction on the effect of intoxication on the defendant’s knowledge does not constitute reversible error.

2015Where the case comes to this court on § 33E review, we ask whether “we are substantially confident that, if the error had not been made, the jury verdict would have been the same.” Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 441 Mass. 822 (2004).

2015Where the case comes to this court on § 33E review, we ask whether “we are substantially confident that, if the error had not been made, the jury verdict would have been the same.” Commonwealth v. Spray, 467 Mass. 456, 472 (2014), quoting Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 441 Mass. 822 (2004).

2013Nor is this a case where the jury’s verdict or questions made it clear that the jury had rejected the claim of self-defense or defense of another, Commonwealth v. Torres, 420 Mass. 479, 492-493 (1995), or where the error in the instruction worked to the defendant’s benefit, Commonwealth v. Puleio, 394 Mass. 101, 108 (1985).

2013Nor is this a case where the jury’s verdict or questions made it clear that the jury had rejected the claim of self-defense or defense of another, Commonwealth v. Torres, 420 Mass. 479, 492-493 (1995), or where the error in the instruction worked to the defendant’s benefit, Commonwealth v. Puleio, 394 Mass. 101, 108 (1985).

2010Commonwealth v. Horton, 434 Mass. 823, 831 (2001).

2009While we concluded that the error in Bynoe did not create a substantial risk of a miscarriage of justice, id. at 693-695 , here, trial counsel preserved the error and the error was prejudicial. “[Wjhere an essential word or clause is omitted from an indictment, such omission is fatal and the essential allegations cannot be supplied by any intendment, argument, inference or implication.” Commonwealth v. Bracy, 313 Mass. 121, 124 (1943).

2007See Commonwealth v. Lattimore, 396 Mass. 446, 453 (1985).

2006See also Commonwealth v. Sanna, 424 Mass. 92, 101-102 (1997) (“Where no evidence exists that the defendant did not have knowledge of the circumstances of the killing, an error in the instruction on the effect of intoxication on the defendant’s knowledge does not constitute reversible error”); Commonwealth v. Sires, 413 Mass. 292, 299 (1992) (where trial judge omitted requested instruction on effects of intoxication on third prong of malice, no error where “no evidence that the defendant did not know what he was doing at the time of the killing”); Commonwealth v. Blake, 409 Mass. 146, 155-156 (

2006See also Commonwealth v. Sanna, 424 Mass. 92, 101-102 (1997) (“Where no evidence exists that the defendant did not have knowledge of the circumstances of the killing, an error in the instruction on the effect of intoxication on the defendant’s knowledge does not constitute reversible error”); Commonwealth v. Sires, 413 Mass. 292, 299 (1992) (where trial judge omitted requested instruction on effects of intoxication on third prong of malice, no error where “no evidence that the defendant did not know what he was doing at the time of the killing”); Commonwealth v. Blake, 409 Mass. 146, 155-156 (

1999See Commonwealth v. Vizcarrando, 427 Mass. 392, 397 (1998); see also Commonwealth v. Niland, 45 Mass.App.Ct. 526, 532 (1998). 5 There is, therefore, no danger that the jury improperly inferred malice, see Vizcarrando, 427 Mass. at 397-98 , and the Court is not left “with an abiding sense that a miscarriage of justice has occurred,” Amirault, 424 Mass. at 650 ; see also Commonwealth v. Watson, 409 Mass. 110, 114 (1991).

1999See Commonwealth v. Vizcarrando, 427 Mass. 392, 397 (1998); see also Commonwealth v. Niland, 45 Mass.App.Ct. 526, 532 (1998). 5 There is, therefore, no danger that the jury improperly inferred malice, see Vizcarrando, 427 Mass. at 397-98 , and the Court is not left “with an abiding sense that a miscarriage of justice has occurred,” Amirault, 424 Mass. at 650 ; see also Commonwealth v. Watson, 409 Mass. 110, 114 (1991).

1999See Commonwealth v. Vizcarrando, 427 Mass. 392, 397 (1998); see also Commonwealth v. Niland, 45 Mass.App.Ct. 526, 532 (1998). 5 There is, therefore, no danger that the jury improperly inferred malice, see Vizcarrando, 427 Mass. at 397-98 , and the Court is not left “with an abiding sense that a miscarriage of justice has occurred,” Amirault, 424 Mass. at 650 ; see also Commonwealth v. Watson, 409 Mass. 110, 114 (1991).

1999See Commonwealth v. Vizcarrando, 427 Mass. 392, 397 (1998); see also Commonwealth v. Niland, 45 Mass.App.Ct. 526, 532 (1998). 5 There is, therefore, no danger that the jury improperly inferred malice, see Vizcarrando, 427 Mass. at 397-98 , and the Court is not left “with an abiding sense that a miscarriage of justice has occurred,” Amirault, 424 Mass. at 650 ; see also Commonwealth v. Watson, 409 Mass. 110, 114 (1991).

1999See Commonwealth v. Vizcarrando, 427 Mass. 392, 397 (1998); see also Commonwealth v. Niland, 45 Mass.App.Ct. 526, 532 (1998). 5 There is, therefore, no danger that the jury improperly inferred malice, see Vizcarrando, 427 Mass. at 397-98 , and the Court is not left “with an abiding sense that a miscarriage of justice has occurred,” Amirault, 424 Mass. at 650 ; see also Commonwealth v. Watson, 409 Mass. 110, 114 (1991).

1997See Commonwealth v. Coyne, 420 Mass. 33, 36 (1995).

1995The error in the instruction on the third prong of malice that the ingestion of alcohol and drugs was irrelevant does not affect the conviction on those grounds. “ ‘Where a crime can be committed in any one of several ways . . . [t]hen the defendant should be convicted if it is proved that he committed the crime in any of those ways.’ Commonwealth v. Chipman, 418 Mass. 262 , 270 n.5 (1994), quoting Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943).” Commonwealth v. Nichypor, supra at 212 .

1994Because the defendant was convicted of murder in the first degree, “[t]he question on appeal is whether, because of an error by defense counsel, the prosecutor or the judge, or for any other reason, there is a substantial likelihood of a miscarriage of justice unless relief is given. . . . [That] standard of review, including an evaluation of trial counsel’s performance, is more favorable to the defendant than the ineffective assistance of counsel test set forth in Commonwealth v. Saferian, [ 366 Mass. 89, 96 (1974)].” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

1994Because the defendant was convicted of murder in the first degree, “[t]he question on appeal is whether, because of an error by defense counsel, the prosecutor or the judge, or for any other reason, there is a substantial likelihood of a miscarriage of justice unless relief is given. . . . [That] standard of review, including an evaluation of trial counsel’s performance, is more favorable to the defendant than the ineffective assistance of counsel test set forth in Commonwealth v. Saferian, [ 366 Mass. 89, 96 (1974)].” Commonwealth v. Plant, 417 Mass. 704, 715-716 (1994).

1993See also Sullivan v. Louisiana, 113 S.Ct. 2078, 2082 (1993), holding that an error in an instruction on reasonable doubt is not susceptible to harmless error analysis but that such analysis can be applied to a “jury-instruction error of erecting a presumption regarding an element of the offense.” Judgments affirmed.

1986“In a civil action, a reasonable inference adverse to a party may be drawn from the refusal of that party to testify on the grounds of self-incrimination.” Wansong v. Wansong, 395 Mass. 154, 157 (1985), quoting Labor Relations Comm’n v. Fall River Educators’ Ass’n, 382 Mass. 465, 471 (1981).

1986“In a civil action, a reasonable inference adverse to a party may be drawn from the refusal of that party to testify on the grounds of self-incrimination.” Wansong v. Wansong, 395 Mass. 154, 157 (1985), quoting Labor Relations Comm’n v. Fall River Educators’ Ass’n, 382 Mass. 465, 471 (1981).