Commonwealth v. Charles R. Jenkins.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-453

COMMONWEALTH

vs.

CHARLES R. JENKINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1989, the defendant, Charles R. Jenkins, having been

indicted for murder in the first degree, was convicted of murder

in the second degree after an eight-day jury trial, and was

sentenced to life in prison. On June 16, 2023, the defendant

filed a third motion for a new trial1 pursuant to

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),

arguing the trial judge committed structural error during jury

selection by failing to properly ask prospective jurors

1Although this is the defendant's third motion for a new
trial, this is the fourth time the defendant's conviction has
been reviewed on appeal.
statutorily-required questions pursuant to G. L. c. 234, § 28.2

The defendant also argued that the prosecutor's closing argument

was rife with improper statements and argument that created a

substantial risk of a miscarriage of justice. On April 2, 2024,

a judge of the Superior Court denied the defendant's motion

without an evidentiary hearing, and this appeal followed. We

affirm.

Discussion. While a defendant may obtain a new trial "if

it appears that justice may not have been done," Mass. R.

Crim. P. 30 (b), "[a] strong policy of finality limits the grant

of new trial motions to exceptional situations, and such motions

should not be allowed lightly" (citation omitted). Commonwealth

v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 39-40 (2015). As

such,

"[a]ny grounds for relief not raised by the defendant in
his original or amended motion for a new trial are 'waived
unless the judge in the exercise of discretion permits them
to be raised in a subsequent motion, or unless such grounds
could not reasonably have been raised in the original or
amended motion.'"

Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting

Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501

(2001). "The rule of waiver applies equally to constitutional

2 General Laws c. 234, § 28, was repealed in 2016. In
relevant part, it was identical to the current statute, G. L.
c. 234A, § 67A.

2
claims which could have been raised, but were not raised on

direct appeal or in a prior motion for a new trial" (quotation

and citation omitted). Id. As such, when claims are not

preserved on appeal, "we need only ask whether those claimed

errors produced a substantial risk of a miscarriage of justice."

Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

Here, the defendant fails to raise any arguments that could

not have been raised either on direct appeal or in his two

previous motions for a new trial. Therefore, we agree with the

motion judge that the arguments set forth in the defendant's

third motion are waived.3 See Roberts, 472 Mass. at 359. See

also Commonwealth v. Francis, 485 Mass. 86, 105-106 (2020),

cert. denied, 141 S. Ct. 2762 (2021) (discussing influence of

passage of time on waiver). Nevertheless, given the stakes at

issue, we review the defendant's claims for a substantial risk

of a miscarriage of justice. See Randolph, 438 Mass. at 297.

1. Impartial jury. The defendant argues that he was

denied a trial by an impartial jury because the trial judge

purportedly altered language, statutorily required under G. L.

3 The defendant correctly states that our review of his
motion for a new trial is de novo because "the motion judge was
not the trial judge and the evidence produce was purely
documentary." Commonwealth v. Watt, 493 Mass. 322, 328 (2024).
However, the standard of review does not alter our decision that
the defendant's arguments are waived.

3
c. 234, § 28, when he asked the venire during voir dire

examination whether they were "aware" of certain fundamental

principles such as the presumption of innocence and the burden

of proof, rather than if they could "accept" those principles —-

the language requested by the defendant's attorney.4 To be

clear, G. L. c. 234, § 28, required that voir dire examination

"include questions designed to learn whether such juror

understands that a defendant is presumed innocent until proven

guilty, that the commonwealth has the burden of proving guilt

beyond a reasonable doubt, and that the defendant need not

present evidence in his behalf" (emphasis added). Therefore,

the defendant claims error in the trial judge's questioning,

asserting that a juror's mere awareness of these principles does

not equate to an understanding or a willingness to apply those

principles. However, after reviewing the judge's instructions

"as a whole" (citation omitted), Commonwealth v. Hill, 387 Mass.

619, 624-625 (1982), we disagree.

After the venire was advised as to the nature of the case

and the charge against the defendant, the judge inquired if any

members of the venire had any biases or personal interests in

4 The defendant's requested jury instructions sought to ask
potential jurors, in detail, if they understood and could accept
the presumption of innocence and the government's burden of
proof beyond a reasonable doubt.

4
the case that would preclude them from serving as a juror. The

judge then informed the venire that "there are certain

principles of law that apply to all criminal cases" and asked

whether the venire was "aware of these principles in a general

way." The trial judge went on to describe the principles of the

presumption of innocence, the Commonwealth's burden of proof,

and the reasonable doubt standard, and after he stated each

principle, he asked if there is "any member of the venire who is

not aware of that principle." When the judge asked whether

there was any member of the venire who was "aware of any reason

why he or she could not be a fair and impartial juror and decide

this case fairly and impartially, based exclusively and solely

upon evidence introduced," multiple members of the venire

identified themselves and the judge questioned them

individually. As a result of this questioning, the judge

excused certain jurors for their inability to be impartial.

Accordingly, given that the judge accurately identified and

described the principles,5 informed the jurors that the

principles applied to the case at hand, and asked each juror if

the juror was "aware" of each principle, we conclude that the

judge's examination of the venire in its totality sufficed to

5 The defendant does not challenge the judge's description
of the principles.

5
ensure that the jurors understood the relevant constitutional

principles in compliance with the requirements of G. L. c. 234,

§ 28.6 Furthermore, following the close of evidence, the judge

provided a final instruction to the jury where he described the

relevant principles in greater detail and again informed the

jurors that those principles apply to the case before them.

Given this context, the judge's initial examination of the

venire was not error and as such did not create a substantial

risk of a miscarriage of justice. Randolph, 438 Mass. at 297.

2. Commonwealth's closing argument. The defendant also

asserts that the prosecutor's closing argument substantially

risked a miscarriage of justice because the prosecutor

improperly (1) argued that the presence of spectators in the

courtroom influenced a key eyewitness's testimony; (2) vouched

for the defendant's prior identification by a key witness; and

(3) speculated that the defendant acted with malice by

deliberately moving the knife's aim from the victim's knee to

the victim's chest when stabbing him during the assault. Again,

we disagree and address each claim in turn.

a. Spectators in the courtroom. The defendant asserts

that the prosecutor impermissibly argued outside of the evidence

6 Notably, neither G. L. c. 234, § 28, nor the current
statute, G. L. c. 234A, § 67A, mandate that a judge conducting
an examination use specific language.

6
by speculating that the change in the testimony of the key

witness, Debra Howard, may have been influenced by the presence

of certain spectators in the courtroom. Previously we

summarized the changes in Howard's testimony as follows:

"[Howard] testified at the defendant's probable cause
hearing that she saw the defendant pull a knife out of the
victim's chest, and she told the grand jury that she saw
the defendant stab the victim. At trial, however, she
testified that she could no longer state that it was the
defendant who stabbed the victim. She knew only that the
assailant had on a red shirt, as did the defendant and
others in the crowd. Debra acknowledged her prior
testimony and stated that she believed the truth of those
statements at the time that she made them. However, after
speaking with the other witnesses the very morning of her
trial testimony, she could no longer state with certainty
that the defendant stabbed the victim. The only fact about
which she was certain was that the victim's assailant was
wearing a red shirt."

Commonwealth v. Jenkins, 34 Mass. App. Ct. 135, 144-145 (1993),

S.C., 416 Mass. 736 (1994).7

Howard also testified at trial that she was told not to

testify by multiple people and that there was a disturbance at

her home, which she attributed to her decision to testify for

the Commonwealth. Indeed, we previously recognized that

"[t]here was evidence of intimidation of [Howard]." Jenkins, 34

Mass. App. Ct. at 145. Importantly, during her direct

7 While the Supreme Judicial Court's subsequent decision
superseded our decision, it was on another ground; the court
"agree[d] with the Appeals Court's treatment of" this issue.
Jenkins, 416 Mass. at 741.

7
examination, the prosecutor asked Howard about the presence of

certain people sitting in the back of the courtroom, and the

judge made sure that the record reflected that "the man in the

white [shirt] that [the prosecutor] just referred to just ran

out of the Courtroom." Although Howard denied that the presence

of anyone in the courtroom influenced her testimony, it was not

improper for the prosecutor to pose the following questions to

the jury:

"And you may also noticed [sic], and ask yourself, did she
at all change her testimony depending upon who was in the
back of the courtroom. Was there certain times of her
testimony when she was more certain of the red shirt when
certain people were absent? More certain when they were
absent and less certain when they were present?"

These questions simply called on the jury to "rely on their

common sense and life experience in assessing evidence and

[Howard's] credibility." Commonwealth v. Salazar, 481 Mass.

105, 117 (2018). Indeed, "[a] prosecutor can address, in a

closing argument, a witness's demeanor, motive for testifying,

and believability, provided that such remarks are based on the

evidence, or fair inferences drawn from it, and are not based on

the prosecutor's personal beliefs." Commonwealth v. Freeman,

430 Mass. 111, 118–119 (1999). Therefore, because it was each

juror's role to assess Howard's credibility, Commonwealth v.

Montanino, 409 Mass. 500, 504 (1991), and because the spectators

came and went from the courtroom during Howard's testimony in

8
front of the juror's eyes, the prosecution was free to urge the

jurors to apply their common sense and ask themselves whether

Howard's testimony or demeanor was influenced by the presence of

certain spectators as it relates to her credibility. As such,

there was no error.

b. Improper vouching. The defendant also claims that the

prosecutor improperly vouched that the science behind eyewitness

identification supported Howard's initial identification of the

defendant, which he avers undercut her testimony at trial, by

stating the following:

"When you talk about identification, what we're talking
about is a witness's ability to recall –- to go back into
their memory and recall the physical features an[d]
appearances that had been imprinted on their memory of a
person they had seen before. The eyes are like a lens.
And they take pictures that are imprinted and burned into
your memory. And although you may not be able to
articulate all the subtle differences in description, you
are able to recall that, and bring that forward."

It is well settled that "[a] prosecutor may marshal the

evidence in closing argument, and, in doing so, may urge the

jury to believe the government witnesses and disbelieve those

testifying for the defendant." Commonwealth v. Beaudry, 445

Mass. 577, 587 (2005). It is also well settled that "[i]mproper

vouching occurs if 'an attorney expresses a personal belief in

the credibility of a witness, or indicates that he or she has

knowledge independent of the evidence before the jury.'"

9
Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting

Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Importantly,

"[t]he jury are presumed to understand that a prosecutor is an

advocate, and [therefore] statements that are [e]enthusiastic

rhetoric, strong advocacy, and excusable hyperbole will not

require reversal" (quotation and citation omitted).

Commonwealth v. Martinez, 476 Mass. 186, 199 (2017).

Here, although the prosecutor's hyperbolized comparison of

Howard's eyes to a camera or a "lens" arguably toed the line of

permissible argument and would better have been left unsaid, we

conclude that it did not cross the line. See Commonwealth v.

Yesilciman, 406 Mass. 736, 746 (1990) ("certain measure of jury

sophistication in sorting out excessive claims on both sides may

fairly be assumed" [citation omitted]). The prosecutor did not

vouch for his personal belief in the veracity of Howard's prior

identification. Nor do we agree with the defendant that the

prosecutor's statement can be fairly characterized as

communicating some specialized scientific knowledge.

Nevertheless, the judge instructed the jury that closing

arguments are not evidence, and we presume that the jury

understood and followed those instructions. Commonwealth v.

Hernandez, 473 Mass. 379, 392 (2015). Accordingly, we are not

persuaded that the analogy constituted reversible error. See

10
Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 511 (2022)

(closing referred to defendant as "liar" and characterized

defense as "garbage"; under circumstances, no substantial risk

of miscarriage of justice).

c. Evidence of malice. The defendant finally contends

that the prosecutor's statement that malice can be inferred from

the fact that defendant first stabbed the victim in the knee and

then stabbed the victim in the chest amounted to improper

speculation. This argument misstates the record. The

prosecutor argued to the jury that they could infer malice from

"the very nature of the use of the weapon" and from the fact

that "[t]he defendant consciously took that knife and directed

it at that portion of the chest, the vital organ of the body."

The prosecutor did not argue, as the defendant claims, that the

jury should infer malice simply from the sequence of the stab

wounds. Moreover, while Howard did not testify that she saw the

defendant inflict the fatal blow, she did testify that she saw

the "man with a red shirt" withdraw the knife from the victim's

chest. The prosecutor was therefore entitled to argue that the

defendant intentionally stabbed the victim in the chest.

Commonwealth v. Paradise, 405 Mass. 141, 152 (1989) (prosecutor

"entitled to argue the evidence and fair inferences to be drawn

therefrom").

11
Accordingly, the prosecutor's closing argument did not

create a substantial risk of a miscarriage of justice.8

Randolph, 438 Mass. at 297. The judge's order denying the

defendant's third motion for a new trial is affirmed.

So ordered.

By the Court (Desmond,
Ditkoff & Englander, JJ.9),

Clerk

Entered: June 9, 2025.

8 For the reasons discussed supra, we conclude that there
was no cumulative error requiring reversal.

9 The panelists are listed in order of seniority.

12