suggested instruction in Massachusetts

2011His instruction to the jury was based on this court’s suggested instruction in Commonwealth v. Sires, 413 Mass. 292, 300-301 (1992), which reads: “Whenever the Commonwealth must prove the defendant’s intention to do something, you should consider all the credible evidence relevant to the defendant’s intent, including any credible evidence of the effect on the defendant of (his) (her) consumption of (alcohol) (drugs) (alcohol and other drugs).” The defendant argues that the judge erred when he did not give the model jury instruction on intoxication, which the defendant had requested after the j

1995The judge did not have the benefit of subsequent cases such as Commonwealth v. Sama, 411 Mass. 293, 297-299 (1991); Commonwealth v. Sires, 413 Mass. 292, 298-301 (1992), and the suggested instruction set out in that case (id. at 300-301 & n.8); and Commonwealth v. Delaney, 418 Mass. 658, 663-668 (1994).

2002It is not required that judges adhere to the literal text of the suggested instruction in Commonwealth v. Rodriguez, supra, particularly where, as here, there was no evidence that Rautenberg or Matías identified the defendant by any means other than sight.

1998She largely followed the suggested instruction appearing in the appendix to Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (1979).

2011The defendant cites Commonwealth v. Smith, 449 Mass. 12, 17 (2007), in which we “recommended that a judge give the model instruction on intoxication.” This was only a recommendation, not a mandate.

1995The judge did not have the benefit of subsequent cases such as Commonwealth v. Sama, 411 Mass. 293, 297-299 (1991); Commonwealth v. Sires, 413 Mass. 292, 298-301 (1992), and the suggested instruction set out in that case (id. at 300-301 & n.8); and Commonwealth v. Delaney, 418 Mass. 658, 663-668 (1994).

1995The Grey decision, id. at 470 n.l, at the point indicated, reads as follows: “Malice aforethought may be shown by proof that the defendant, without justification or excuse, intended to kill the victim or to do the victim grievous bodily harm.

1995The judge did not have the benefit of subsequent cases such as Commonwealth v. Sama, 411 Mass. 293, 297-299 (1991); Commonwealth v. Sires, 413 Mass. 292, 298-301 (1992), and the suggested instruction set out in that case (id. at 300-301 & n.8); and Commonwealth v. Delaney, 418 Mass. 658, 663-668 (1994).

1983Where, as here, none of the defendant’s claims of error rests on a valid objection or relates to a suggested instruction submitted before or after the charge, we will reverse only if we find that the instructions given created “a substantial risk of a miscarriage of justice.” Commonwealth v. Wood, 380 Mass. 545, 547 (1980), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

1983Where, as here, none of the defendant’s claims of error rests on a valid objection or relates to a suggested instruction submitted before or after the charge, we will reverse only if we find that the instructions given created “a substantial risk of a miscarriage of justice.” Commonwealth v. Wood, 380 Mass. 545, 547 (1980), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

1983Considering the charge as a whole, and not by bits and pieces, nor by fragments lifted from context and then subjected to scrutiny as though each fragment had to stand or fall on its own without the aid of the remainder of the charge, Commonwealth v. McInerney, 373 Mass. 136, 149 (1977), we conclude that there was no prejudicial error.

1981See Brown v. United States, 356 U.S. 148, 154-155 (1958) (waiver of analogous Federal constitutional privilege).

1980Compare the suggested analysis in Jackson v. Superior Court , discussed supra under “Double Jeopardy.” Second, in Stokes v. Commonwealth, 368 Mass. 754, 766-771 (1975), we recognized that this tactical dilemma was the principal problem addressed and eliminated by Breed v. Jones, supra, and we considered its due process, as well as its double jeopardy implications, in our determination not to apply Breed retroactively.

1980Compare the suggested analysis in Jackson v. Superior Court , discussed supra under “Double Jeopardy.” Second, in Stokes v. Commonwealth, 368 Mass. 754, 766-771 (1975), we recognized that this tactical dilemma was the principal problem addressed and eliminated by Breed v. Jones, supra, and we considered its due process, as well as its double jeopardy implications, in our determination not to apply Breed retroactively.

1979See also ABA Code of Professional Responsibility DR 7-103(A) (1969); ABA Standards Relating to the Prosecution Function § 3.9 (Approved Draft 1971); United States v. Lovasco, 431 U.S. 783, 790-791 (1977). 7 The usual occasion for the application of the suggested standard would be in the appraisal of hearsay, but it might also be relevant to indictments based in part or as a whole on other testimony. 8 There are jurisdictions which limit the evidence that may be presented to a grand jury to that admissible according to the rules of evidence (usually with some exceptions).

1979We nevertheless consider each and conclude that the defendant suffered no "grave prejudice.” Commonwealth v. Burnett, 371 Mass. 13, 16 (1976).

1977See State v. Antes, supra. In our view, the defendant’s suggested rule might well cause a prosecutor to forgo probable cause hearings in favor of seeking direct indictments.