MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of motor vehicle homicide by negligent operation. On appeal, he claims that (1) the prosecutors closing argument was improper, depriving him of a fair trial; and (2) the judge erred in failing to give clarifying jury instructions on causation and duty of care in an emergency situation. We affirm.
Discussion. 1. Closing argument. The defendant was an on-duty police officer responding to a dispatch at the time of the collision that caused the victims death. The defendants cruiser hit the rear passenger side of the victims car as the victim drove through an intersection. Data from the airbag control module on the cruiser showed the defendant was traveling at eighty-three miles per hour immediately prior to the collision. This fact was uncontested at trial. The defense theory was that the victim caused the collision either by failing to stop at the stop sign or by entering the intersection despite seeing the cruiser approaching. This theory rested largely on testimony from the defense expert, a retired State police lieutenant and accident reconstructionist, whose evidence suggested the victim might have failed to stop.
The defendant challenges two elements of the prosecutors closing on appeal. The first was an attack on the credibility of the defense theory in the form of a hypothetical conversation among the defense team: “So since you cant defeat the speed, how else can we shift the blame here away from [the defendant]? Lets blame the victim. Lets blame the individual who lost his life and whos not here.” Shortly after that, the prosecutor continued: “Well, weve got to come up with a scenario here where [the victim] blew the stop sign and just blasted out in front of [the defendant]. So they call [the defense expert].” The prosecutor then characterized the defense expert as “playing a different game than he used to when he was a sworn law enforcement officer,” questioned whether the jury could trust “anything [the expert] tried to sell you in this courtroom,” and compared the expert to “an eighth grader trying to get a term paper done before finals.”
1
We review the prosecutors comments regarding the defense theory and expert witness for prejudicial error, as they were timely objected to at trial. See Commonwealth v. Santiago, 425 Mass. 491, 500 (1997). We determine whether a prosecutors closing argument constituted prejudicial error based on “[t]he cumulative effect of all the errors in the context of the entire arguments and the case as a whole.” Id. We consider the following factors:
“whether defense counsel seasonably objected to the arguments at trial, whether the judges instructions mitigated the error, whether the errors in the arguments went to the heart of the issues at trial or concerned collateral matters, whether the jury would be able to sort out the excessive claims made by the prosecutor, and whether the Commonwealths case was so overwhelming that the errors did not prejudice the defendant” (citations omitted).
Id.
Although one portion of the prosecutors argument was impermissible, we nonetheless conclude that there was no prejudicial error in the overall circumstances of this case. A prosecutor may argue the Commonwealths case “forcefully and aggressively,” but must do so “in a way that states the evidence clearly and fairly.” See id. at 494. Here, although the prosecutor pushed the boundaries of forceful or aggressive argument,
2
most of his comments remained grounded in the evidence. They addressed the defense theory that the victim caused the collision,
3
and the defense experts very last-minute submission of his written materials.
4
Moreover, although the judge did not immediately give a corrective instruction, she instructed the jury on three occasions that closing arguments are not evidence. In this context, we assume the jury would be able to distinguish the facts from the prosecutors rhetoric. See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987) (“A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed”).
The strength of the Commonwealths case also leads us to conclude that the prosecutors comments did not prejudice the defendant. It was uncontested at trial that the defendant was traveling eighty-three miles per hour on a residential road, where the posted speed limit was thirty miles per hour. The defense expert testified that, had the defendant been traveling seventy-four miles per hour or less, the impact would not have occurred. The expert also conceded that his calculations were consistent with a scenario in which the victim stopped at the stop sign before proceeding into the intersection.
5
For these reasons, we find no prejudicial error. See Santiago, 425 Mass. at 500.
2. Jury instructions. The defendant claims the judge improperly instructed the jury by (1) not specifying that the jury could consider the victims negligence as a potential cause of the collision, and (2) not sua sponte delivering supplemental instructions on negligence of another driver and emergency situations.
6
We disagree.
The judge instructed the jury on the elements of motor vehicle homicide practically verbatim from Instruction 5.160 of the model jury instructions. See Instruction 5.160, Criminal Model Jury Instructions for Use in the District Court (2009) (hereinafter Model Instructions). In addition to the standard instruction on causation, the judge delivered the supplement to Instruction 5.160 on “intervening and superseding causes.”
7
The supplemental instruction reads:
“There may be more than one cause of a persons death. The Commonwealth is not required to prove that the defendant was the only cause of the victims death, but it is required to prove beyond a reasonable doubt that the defendant caused the death in the sense that he directly and substantially set in motion a chain of events that produced the death in natural and continuous sequence.
“If the defendants actions would not have brought about the death all by themselves, without the intervention of some other person or event, the defendant is still held responsible as the cause of the death if two conditions are met:
“First: The defendants actions directly and substantially set in motion a natural and continuous sequence of events that caused the death; and
“Second: A reasonable person in the defendants position would have foreseen that his (her) actions could easily result in serious injury or death to someone like the victim.
“If both of these two conditions are proved beyond a reasonable doubt, then the defendant is responsible as the cause of the death, even if there were other causes which contributed to some degree in producing the fatal result -- for example, if the victim was also negligent or intoxicated, or if rescue personnel or medical personnel later were also negligent.
“On the other hand, the law does not consider the defendant to be the cause of the death, and therefore must be acquitted, if some other person or event was the direct and substantial cause of the death, and the defendants actions were only a minor and remote link in the chain of events leading to the death. The defendant must also be acquitted if the death would not have occurred without the intervention of some other person or event, and a reasonable person in the same circumstances would not have foreseen the likely possibility of such a result” (emphasis added).
Model Instruction 5.160, Supplemental Instruction.
The defendant claims the supplemental instruction could have led the jury to believe they could not consider the victims conduct as a possible cause of the collision. “[A] defendant, in a criminal case, is entitled to have the issues of fact clearly presented to the jury and the law applicable thereto carefully explained.” Commonwealth v. MacDonald, 371 Mass. 600, 603 (1976). “As long as a judge gives adequate and clear instructions on the applicable law, the phraseology, method and extent of the charge are matters within [the judges] discretion.” Commonwealth v. Roberts, 378 Mass. 116, 130 (1979). When reviewing jury instructions, “[w]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judges words.” Commonwealth v. Young, 461 Mass. 198, 207 (2012).
In this case, the supplemental instruction explained that even if another persons actions contributed to the death, the jury should find the defendant guilty if he set events in motion that he should have foreseen would lead to serious injury or death. Model Instruction 5.160, Supplemental Instruction. The instruction mentions the victims negligence as a possible intervening cause. Id., par. 5. The final paragraph of the supplement clarified that if another person was the “direct and substantial cause of the death,” and the defendants role was minor, the jury should acquit the defendant. Id., par. 6. Similarly, if an unforeseeable event intervened to cause the death, the instruction required acquittal. Id.
Taken as a whole, the causation instruction adequately explained the potential effect of another persons actions, including the victims, on the defendants culpability. The “method and extent” of the instruction was within the judges discretion, and we find no error in her decision not to specify that the jury could consider the victims actions as a potential contributing factor. MacDonald, 371 Mass. at 603. As the Commonwealth properly notes, there were no other possible intervening or superseding causes in this case. A reasonable juror could therefore interpret the supplemental instruction to include the victims actions.
8
See Young, 461 Mass. at 207. See also Commonwealth v. Brown, 481 Mass. 77, 87 (2018) (instructions adequate despite not including defendants proposed modifications because defendants conduct fell within existing instructions and modifications would not provide additional guidance to jury). Contrast Commonwealth v. Whitlock, 39 Mass. App. Ct. 514, 519 (1995) (instruction improper where judge omitted several factors essential to jurys consideration of elements of offense, such that instruction could confuse jury).
The defendants second claim is that the judge erred by not instructing the jury on “negligence or intoxication of other driver,” the supplement to Instruction 5.240, which reads:
“You have heard testimony suggesting that the driver of the other vehicle involved in this matter, [name], was (negligent) (or) (intoxicated). It is up to you to decide whether or not to accept that testimony as accurate. If you do conclude that the other driver was (negligent) (or) (intoxicated), then you must determine what role that drivers (negligence) (or) (intoxication) played in this matter. The other drivers driving is irrelevant to the defendants guilt or innocence on this charge unless the other driver was the sole cause of what happened. The defendant is not excused merely because the other driver was (negligent) (or) (intoxicated), if the defendants negligence was the direct cause of what happened, and the other drivers (negligence) (or) (intoxication) merely aggravated the result. On the other hand, if the other drivers (negligence) (or) (intoxication) was the sole cause of what happened and the defendant was not negligent, then the defendant must be found not guilty.”
Model Instruction 5.240, Supplemental Instruction 1.
The supplement to Instruction 5.240 covers substantially the same ground as the supplement to Instruction 5.160.
9
The judge had already directed the jury to consider intervening and superseding causes; she was not required to specify that another drivers negligence could be one of those causes. See MacDonald, 371 Mass. at 603 (“Even where requested instructions may be sound in law, a judge is not compelled to give them where duplication or confusion may result”); Commonwealth v. King, 366 Mass. 6, 10 (1974) (instruction adequate where judge declined defendants proposed instruction because it was duplicative).
The defendant finally claims the judge erred in not delivering the supplement to Instruction 5.240 on emergency situations.
10
While this supplement was relevant to the defense theory, the defense neither requested it in advance nor objected to its absence from the instructions. We therefore review for error, and if one occurred, whether it created a substantial risk of a miscarriage of justice, meaning the error is only reversible if we are persuaded that it materially influenced the verdict. See Commonwealth v. Alphas, 430 Mass. 8, 13-14 (1999). Here, defense counsel plainly demonstrated to the jury, both during testimony and in his closing argument, that the defendant was acting in his official capacity in an urgent situation. We are therefore not persuaded the emergency-situation instruction would have changed the verdict. See Commonwealth v. Penn, 472 Mass. 610, 626 (2015) (where defendants cross-examination and closing argument covered same ground as missing instruction, “jury would have known what the missing instruction would have told them”).
Judgment affirmed.
FOOTNOTES
1
. The defendant failed to object to a third comment, which he also contests on appeal. The prosecutor ended his closing argument with the line: “He was a cowboy and [the victim] died, and hes guilty.” As the defendant did not object, we review only to determine whether the comment was erroneous, and if so, whether it created a substantial risk of miscarriage of justice. See Commonwealth v. Pearce, 427 Mass. 642, 646 (1998). For the same reasons that we conclude that there was no prejudicial error, we also conclude that even if the prosecutors “cowboy” comment were improper, it did not create a substantial risk of miscarriage of justice.
2
. The prosecutor is a “representative not of an ordinary party,” but that of the government, whose obligation is to seek justice, not merely to win cases. Berger v. United States, 295 U.S. 78, 88 (1935). The prosecutor was entitled to forcefully argue, based on the evidence, for a conviction. However, childish mocking of the defendants expert witness as a method of impeachment was beneath what is to be expected of a representative of the government.
3
. An improper portion of the prosecutors argument occurred when the prosecutor chose to denigrate the defense by offering a hypothesis of how defense counsel developed his theory of the case. The prosecutor argued: “So the defense, not questioning speed, says, Well, weve got to come up with a scenario here where [the victim] blew the stop sign and just blasted out in front of [the defendant]. So[,] they call [defenses expert witness].” This was neither supported by the evidence, nor was it a fair inference from the evidence.
4
. The defense expert testified that he provided diagrams to the Commonwealth twelve hours before trial, despite having some of the accident data for months and the State police report over a year.
5
. This directly contradicted much of the experts other testimony, where he opined that the victims car could not have stopped, either at the stop sign or farther into the intersection where he could see better, and still reached the speed it was traveling at the time of impact.
6
. The defendant properly preserved the first claim of error in the instructions, so we review it for prejudicial error. See Commonwealth v. Brown, 481 Mass. 77, 86 (2018). The defendant concedes that the second claim is unpreserved, so we review for error, and if one occurred, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). In both instances, there was no error. See Brown, supra; Marinho, supra.
7
. The standard causation instruction reads: “[t]hat the defendants actions caused the death of another person. The defendant caused the death if his actions directly and substantially set in motion the entire chain of events that produced the death. The defendant is the cause of the death if his actions produced it in a natural and continuous sequence, and the death would not have occurred without the defendants actions.” Model Instruction 5.160.
8
. The defendant claims that the judge effectively refused to give the defendants requested instruction when overruling defense counsels objection. Defense counsel did not in fact request any specific instruction during the charge conference.Moreover, if the judge did refuse, it would “be reversible error only if the requested instruction was substantially correct; was not substantively covered in the jury charge; and ․ [if] the failure to give [it] seriously impaired the defendants ability to present a given defense.” Brown, 481 Mass. at 86. Here, there would be no error under this standard because Instruction 5.160 substantively covered the victims potential negligence as a causal factor. The defendant had also had a full opportunity to present evidence that the victims entry into the intersection was unforeseeable.
9
. Instruction 5.160 requires acquittal if “some other person” primarily caused the death; Instruction 5.240 requires the same if another driver was “the sole cause.” Model Instruction 5.240, Supplemental Instruction; Model Instruction 5.160, Supplemental Instruction, par. 6. Both instructions also require a guilty verdict if the defendants negligence was the direct cause, or set the events in motion, and the other persons or drivers negligence merely contributed to the result. Model Instruction 5.240, Supplemental Instruction; Model Instruction 5.160, Supplemental Instruction, pars. 1-5.
10
. The supplement reads: “[i]n determining whether the defendants conduct was negligent, you may consider whether there was a sudden emergency which required rapid decision. If there was, you must determine whether the defendant acted as a reasonable person would under similar emergency circumstances.” Model Instruction 5.240, Supplemental Instruction 2.