BOSTON -- "We affirm."
That word came Friday, Aug. 13, from the Appeals Court in Boston that Ayer twin brothers Peter and Daniel McGuane have failed in their quest to reverse their convictions for the 2005 manslaughter of Kelly Proctor of Ayer.
Appeals Court Associate Justice R. Malcolm Graham wrote the decision for the court, holding that Middlesex Superior Court Judge Diane Kottmyer did not err in failing to provide the jury with a definition of the word "accident," didn't err in refusing Daniel's request for the jury to be instructed on the concepts of self defense, and didn't err by permitting in testimony of a prior bad act by Daniel McGuane against the victim.
Graham wrote it was proper for Kottmyer to refuse to permit the defendant's suggested jury instruction on the term "accident." When an'accident is claimed by a defendant, the burden shifts to the state to prove otherwise beyond a reasonable doubt.
The "accident" definition the defendants wanted but Kottmyer rejected read, in part, "An accident is defined as an unexpected happening that occurs without intention or design on the defendant's part. It means a sudden, unexplained event that takes place without the defendant's intending it...resulting in injury or loss. It is some sudden and unexpected event that takes place."
Kottmyer's jury instruction was on target, Graham wrote. The definition used was based on the model jury instructions put forth by the Supreme Judicial Court on homicide, which reads in part, "The Commonwealth must prove that the conduct of one or both of the defendants caused the death, and that the conduct was intentional, not the result of accident, mistake or negligence....The Commonwealth does not have to prove that a death was intended, but it must prove that the conduct caused death..."
The flap over the term 'accident' brought a dissenting opinion from Appeals Court Associate Justice David Mills, who wrote that he believed the conviction judgments should be reversed "because the accident instruction in this case was inadequate."
Citing a 1991 case Commonwealth v. Ferguson, Mills wrote "a jury should not be left to its uninstructed imagination in attempting to understand the meaning of the term accident."
Graham spent little time addressing the defense claim that Kottmyer made a mistake in refusing to instruct the jury using language of their choosing on the term "self defense." "The judge adequately instructed the jury that it was the Commonwealth's burden to p rove that the killing of the victim was not done in self defense or defense of another," Graham wrote.
During their oral appeal on May 7, Daniel McGuane's attorney Robert O'Meara had argued "Where would you have a stronger relationship that twin brothers?" supporting the McGuane's self defense claim. "Certainly if Peter had the right of self defense, then Daniel has the right to defend his brother," O'Meara had said.
PRIOR BAD ACT
Graham also wrote that Kottmyer did not make a mistake in admitting evidence of a prior battery by Daniel against Proctor at some point between 1998 and 2000 when Proctor was in middle school. The McGuanes were two years older than the victim.
At that earlier incident, Daniel grabbed the handle bars of a bike Proctor was riding and slapped Proctor across the face. "After that, there were instances when the victim and the defendants 'trash talked' to each other, and the defendants called the victim a 'bitch," wrote Graham.
Kottmyer was "commendably sensitive" in how she instructed the jury to consider the prior battery in relation to the manslaughter killing of Proctor.
"There was no abuse of discretion. Here, the earlier incident between the defendant and the victim was relevant to explain what happened later, and was admissible because it was reasonably intertwined with the description of the events and presented a full picture of the events surrounding the killing," said Graham.
"Moreover, there was evidence of ongoing animosity between the defendants and the victim -- other incidents of verbal jousting between them, including the defendants calling the victim a "bitch." The middle school incident was particularly relevant in this case, given that the defendants claimed that the victim's death occurred as the result of an accident, concluded Graham.
In recounting the facts of the case, Graham also noted the size disparity between the three. The twins were six feet, four inches tall and 200 pounds each. Proctor was five feet, eight inches tall and weighed 155 pounds at the time of his death.
The McGuane trial was controversial in that first degree murder charges brought against the twins were reduced to manslaughter charges after 30-year Medical Examiner William Zane admitted botching the Proctor autopsy. In addition to incorrectly documenting Proctor's race as white instead of black, Zane also reported a swelling and flattening of Proctor's brain and a cause of death of blunt trauma to the head.
A year and a half later, medical examiner and neuropathologist Elizabeth Bundock found otherwise. Though she agreed the cause of death was blunt trauma to the head, she found there was no swelling or flattening of the brain surface. The discord between the reports prompted the reduced charges against the brothers.
Attorney Obligato, representing Peter McGuane, responded on Monday that he had not yet reviewed the decision with his client. While no clear decision has yet been made on whether he'd appeal to the Supreme Judicial Court, Obligato did say, "Since there is a dissenting opinion, it seems likely that this avenue will be pursued. Whether the SJC will grant the application is undeterminable until such time as it makes its decision."
Daniel McGuane's attorney, Robert O'Meara, confirmed on Monday they're forging ahead with an appeal. "I've discussed the recent Appeals Court opinion with my client, Daniel McGuane, and we are both very disappointed with their decision. We now plan to apply to the Supreme Judicial Court for their review of the Appeals court decision. Our application should be filed in that court within the next 30 days," O'Meara said.