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

22-P-124

COMMONWEALTH

vs.

SCOTT T. CARNEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the District Court, a jury convicted 

the defendant, Scott T. Carney, of assault.1 Because the trial 

judge failed to provide a jury instruction defining reasonable 

doubt, we vacate the judgment.2

Background. On March 18, 2021, Norton police dispatch 

received a call for a "well-being check" at a residence in 

Norton. The caller reported that an individual at that address 

1 The defendant was convicted of "simple assault" as a lesser

included offense of assault and battery on a police officer. He 

was also charged with one count of assault and battery and found 

not guilty.

2 The result we reach obviates any need to address the 

defendant's other claims on appeal that (1) the judge provided 

an erroneous instruction on intoxication and mental impairment, 

(2) the Commonwealth's closing argument constituted reversible 

error, and (3) there was no evidence warranting the judge's 

lesser included offense instruction.
2

had threatened suicide. Three Norton police officers, 

accompanied by emergency medical technicians (EMTs) responded 

and were met at the door by the defendant's mother. She led 

them into the basement to check on the defendant who was found 

lying on a bed and appeared intoxicated to the officers.

On examination of the defendant's phone, the police 

discovered text messages indicating that the defendant planned 

to overdose. Concerned for the defendant's well-being, the 

officers attempted to take him to a hospital. The defendant 

initially agreed to go and started walking toward the door. 

Officers informed the defendant that they would need to conduct 

a patfrisk for weapons before allowing him into the ambulance. 

As the officers began the frisk, the defendant became agitated, 

and "started yelling" and swearing, and pulled away. The 

defendant clenched his fists and stiffened his posture as he 

walked toward the door, which prompted one of the officers to 

grab him and inform him that they had to finish the frisk. As 

the encounter escalated, the defendant flailed his feet, kicked 

toward the officers, thrashed around for five to ten minutes, 

swore at the officers, and attempted to gather saliva in his 

mouth to spit toward them. The defendant was eventually subdued 

and brought to the hospital in the ambulance.

Discussion. The present case suffers from a glaring 

infirmity: the judge did not provide an instruction defining 
3

reasonable doubt. In Commonwealth v. Russell, 470 Mass. 464, 

477 (2015), the Supreme Judicial Court exercised its "inherent 

supervisory power to require a uniform instruction on proof 

beyond a reasonable doubt" pursuant to G. L. c. 211, § 3.3 In 

3 In Russell, 470 Mass. at 477-478, the court specified that 

going forward, Massachusetts judges sitting on criminal trials 

must instruct the jury as follows:

"The burden is on the Commonwealth to prove beyond a 

reasonable doubt that the defendant is guilty of the 

charge(s) made against him (her).

"What is proof beyond a reasonable doubt? The term is 

often used and probably pretty well understood, though it 

is not easily defined. Proof beyond a reasonable doubt 

does not mean proof beyond all possible doubt, for 

everything in the lives of human beings is open to some 

possible or imaginary doubt. A charge is proved beyond a 

reasonable doubt if, after you have compared and considered

all of the evidence, you have in your minds an abiding 

conviction, to a moral certainty, that the charge is true. 

When we refer to moral certainty, we mean the highest 

degree of certainty possible in matters relating to human 

affairs -- based solely on the evidence that has been put 

before you in this case.

"I have told you that every person is presumed to be 

innocent until he or she is proved guilty, and that the 

burden of proof is on the prosecutor. If you evaluate all 

the evidence and you still have a reasonable doubt 

remaining, the defendant is entitled to the benefit of that 

doubt and must be acquitted.

"It is not enough for the Commonwealth to establish a 

probability, even a strong probability, that the defendant 

is more likely to be guilty than not guilty. That is not 

enough. Instead, the evidence must convince you of the 

defendant's guilt to a reasonable and moral certainty; a 

certainty that convinces your understanding and satisfies 

your reason and judgment as jurors who are sworn to act 

conscientiously on the evidence.
4

the present case, it is beyond dispute that the judge did not 

provide the instruction required by Russell, supra at 477-478. 

We are aware of cases in which we have held that a deviation 

from the language required by Russell was nonetheless not 

constitutionally deficient. See, e.g., Commonwealth v. Whitson, 

97 Mass. App. Ct. 798, 799 (2020) (judge's omission of portion 

of Russell instruction defining "moral certainty" did not 

mandate reversal). In the present case, however, the judge 

provided no definition or explanation whatsoever of "reasonable 

doubt." We are unaware of any published appellate case or other 

binding authority in Massachusetts upholding a conviction where 

the jury charge contained such an omission.4 Indeed, 

"This is what we mean by proof beyond a reasonable doubt."

4 The judge referenced the term "moral certainty" in his 

instructions, but only in the context of explaining 

circumstantial evidence. He stated: 

"If the Commonwealth's case is based solely on its 

circumstantial evidence, you may find the defendant guilty 

only if those circumstances are conclusive enough to leave 

you with a moral certainty, a clear and settled belief, the 

defendant is guilty and that there is no other reasonable 

explanation of the facts as proven." 

Viewing the instructions as a whole, this brief mention of moral 

certainty did not convey to the jury the meaning of reasonable 

doubt within the requirements of Russell, 470 Mass. at 477-478,

or other precedent. Contrast Commonwealth v. Veiovis, 477 Mass. 

472, 490 (2017) (judge's omission of language defining moral 

certainty did not create risk that jury did not understand 

reasonable doubt standard where he otherwise adhered to language 

defining reasonable doubt).
5

Massachusetts courts have found a substantial risk of a 

miscarriage of justice in cases where the instructions defined 

reasonable doubt, but inadequately so. See, e.g., Commonwealth

v. Rembiszewski, 391 Mass. 123, 133-134 (1984) (where jury 

instructed to "treat proof beyond a reasonable doubt, proof to a 

moral certainty, and proof to a degree of certainty that the 

jurors would want in making decisions about their futures as 

equivalent concepts," judge repeatedly stating that Commonwealth 

had burden of proof beyond reasonable doubt made no difference 

because "jury's knowledge of which party had the burden did not 

inform them with respect to the extent of that burden"); 

Commonwealth v. Wood, 380 Mass. 545, 547 (1980) (judge's 

erroneous instruction that reasonable doubt is "that doubt which 

amounts to a moral certainty" amounted to substantial risk of 

miscarriage of justice); Commonwealth v. Viera, 42 Mass. App. 

Ct. 916, 916-917 (1997) (despite instruction that "beyond a 

reasonable doubt mean[s]" that "[t]he evidence taken in its 

totality must establish the truth of the fact to a reasonable 

and moral certainty . . . [a] certainty which convinces and 

directs the understanding, satisfies the reason and judgment of 

those who are bound to act conscientiously upon it," substantial 

risk of miscarriage of justice existed because judge's "cursory 

words to the jurors regarding reasonable doubt were, at best, 

ambiguous. In her apparent attempt to paraphrase a part of the 
6

model jury instructions, the judge neither elaborated on the 

meaning of reasonable doubt nor linked 'moral certainty' with 

other explanatory words"). Accordingly, we conclude that the 

failure to provide an instruction explaining reasonable doubt

created a substantial risk of a miscarriage of justice.5 See 

generally Commonwealth v. Ferreira, 373 Mass. 116, 128 (1977)

("no part of the usual instructions to juries in criminal cases 

is of more significance than the discussion of reasonable 

doubt").

5 Our holding is limited to the unique facts and posture of this 

case.
7

The judgment is vacated, and the verdict is set aside.6

So ordered.

By the Court (Green, C.J., 

Blake, Neyman, Shin & 

Smyth, JJ.7),

Clerk

Entered: August 24, 2023.

6 We note that:

"We are acutely aware of the [potential] hardship imposed 

on all those involved by the need to conduct a [possible] 

second trial in this case. Either party, however, could 

have prevented the need for reversal here by pointing out 

to the judge at trial the obvious error contained in his 

charge." 

Wood, 380 Mass. at 550. We remind judges and counsel in future 

cases to provide the Russell instruction verbatim. See Russell, 

470 Mass. at 477-478. 

7 The panelists are listed in order of seniority.