judge to give instruction in Massachusetts

2026Co. v. Lizotte, 396 Mass. 143, 149 (1985).

2026"When no objection is taken to the failure of a judge to give an instruction, and the attention of the judge is not called to the matter, such failure cannot be raised on appeal." Karen Constr. 7 Co. v. Lizotte, 396 Mass. 143, 149 (1985).

2026See Flood, 416 Mass. at 67 .

2025See Commonwealth v. Johnson, 461 Mass. 44 , 54 n.12 (2011). 5 negated any responsibility for the judge to give an instruction on a lesser included offense.

2025See id.

2024It is proper for a judge to give an instruction on a lesser included offense "if on any hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense] and not guilty of the greater offense." Commonwealth v. Russell, 470 Mass. 464, 480 (2015), quoting Commonwealth v. Porro, 458 Mass. 526, 537 (2010).

2024In determining whether to give a lesser included offense instruction in cases involving sexual assault, the judge may consider the possibility that "a jury reasonably could be convinced by the victim's testimony that the defendant sexually assaulted her but not be convinced beyond a reasonable doubt that penetration occurred." Porro, supra at 537 n.10.

2024It is proper for a judge to give an instruction on a lesser included offense "if on any hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense] and not guilty of the greater offense." Commonwealth v. Russell, 470 Mass. 464, 480 (2015), quoting Commonwealth v. Porro, 458 Mass. 526, 537 (2010).

2019See Waweru , 480 Mass. at 188 -189 , 102 N.E.3d 391 ; Dunn , supra .

2019See Waweru , 480 Mass. at 188 -189 , 102 N.E.3d 391 ; Dunn , supra .

2018See Commonwealth v. Velez , 479 Mass. 506 , 512 (2018).

2012“A substantial risk of a miscarriage of justice exists when we have ‘a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Randolph, 438 Mass. at 297 , quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

2009We conclude that in the circumstances of this case, it was proper for the judge to give an instruction on consciousness of guilt with respect to the defendant’s statements to the police and his alleged flight. 5 “Consciousness of guilt instructions are permissible when there is an ‘inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,’ such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness.” Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting Commonwealth v. Toney, 385 Mass. 575 , 584 &

2009See Commonwealth v. Porter, 384 Mass. 647, 653 (1981) (evidence “susceptible of a finding” that defendant “embarked on a series of actions consciously designed to deflect attention from himself” may indicate consciousness of guilt).

2006You must also decide whether that witness’s identification is accurate and instead may well have been an honest good faith identification that may nonetheless have been mistaken.” Providing these instructions to the jury comported with our holding in Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), that “[f]airness to a defendant compels the judge to give an instruction on the possibility of an honest but mistaken identification when the facts permit it and when the defendant requests it.” 13 Contrary to the defendant’s argument, Tran never identified the victim’s killer as Nak Choeum.

2005See Commonwealth v. Comtois, 399 Mass. 668, 675-677 (1987); Commonwealth v. Black, 50 Mass. App. Ct. 477, 478 (2000) (no substantial risk of miscarriage of justice where acts occur within close proximity as part of same criminal episode and defendant did not request specific unanimity instruction). v. Sufficiency of evidence.

2005See Commonwealth v. Comtois, 399 Mass. 668, 675-677 (1987); Commonwealth v. Black, 50 Mass. App. Ct. 477, 478 (2000) (no substantial risk of miscarriage of justice where acts occur within close proximity as part of same criminal episode and defendant did not request specific unanimity instruction). v. Sufficiency of evidence.

2002Cf. Commonwealth v. Christian, supra at 558 (explaining that “[a]n instruction on felony-murder in the second degree is required only when there is a rational basis in the evidence to warrant the instruction”).

2001See Commonwealth v. Desorbo, 49 Mass. App. Ct. 910, 911 (2000) (better practice is for the judge to give warnings as specified by the Legislature).

1994See, e.g., Commonwealth v. Campbell, 352 Mass. 387, 398-399 (1967) (error to refuse to instruct on involuntary manslaughter in trial of murder indictment).

1985See Weeks v. Harbor Nat'l Bank, 388 Mass. 141, 146-147 (1983); Hoyt v. Kennedy, 170 Mass. 54, 55 (1898); Zedros v. Kenneth Hudson, Inc., 11 Mass. App. Ct. 1007, 1008 (1981).

1985See Weeks v. Harbor Nat'l Bank, 388 Mass. 141, 146-147 (1983); Hoyt v. Kennedy, 170 Mass. 54, 55 (1898); Zedros v. Kenneth Hudson, Inc., 11 Mass. App. Ct. 1007, 1008 (1981).

1985See Weeks v. Harbor Nat'l Bank, 388 Mass. 141, 146-147 (1983); Hoyt v. Kennedy, 170 Mass. 54, 55 (1898); Zedros v. Kenneth Hudson, Inc., 11 Mass. App. Ct. 1007, 1008 (1981).