Commonwealth v. Jordan, 125 N.E.3d 800 (2019)

Citation: Commonwealth v. Jordan, 125 N.E.3d 800 (2019)
Parent Document: Commonwealth v. Jordan, 125 N.E.3d 800 (2019)
Jurisdiction: Massachusetts (state)
Effective Date: 2019-05-15
Original Source: https://www.courtlistener.com/opinion/7179122/commonwealth-v-jordan/ ↗

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Here, there was no model jury instruction for the willful injury charge pursuant to G. L. c. 272, § 77A. Accordingly, the judge read the statutory language to the jury and read the jury instruction proposed and sought by the defendant.5 The statutory language was clear; the portion of the instruction requested by the defendant, however, was incorrect, because it could have allowed the jury to convict the defendant based merely upon a "touching" of the dog "without consent." We note, however, that defense counsel was concerned with the issue of intent, and the requested instruction required the jury to make a finding of intent.6 See note 4, supra. Viewed in context, the defense made a tactical decision to provide the jury with an instruction that accommodated the defense in this case -- lack of intent. See Leary, 92 Mass. App. Ct. at 343.7 Viewing the instructions as a whole and the strength of the evidence at trial, the erroneous instruction did not create a substantial risk of a miscarriage of justice.

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