COMMONWEALTH v. FEDNA (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was tried for breaking and entering in the nighttime with the intent to commit a felony in violation of G. L. c. 266, § 16, and for assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B (b). The jury found him not guilty of breaking and entering with the intent to commit a felony; he was found guilty instead of the lesser included offense of breaking and entering in the nighttime with the intent to commit a misdemeanor. He was also convicted of assault by means of a dangerous weapon. He now appeals. The facts of the case are well known to the parties and will be discussed in the text of our discussion below only as relevant to the claims before us.

We turn first to the conviction of breaking and entering in the nighttime with the intent to commit a misdemeanor. The jury were erroneously instructed that “possession or purchasing of marijuana would be considered a misdemeanor in the State of Massachusetts.” In fact, under G. L. c. 94C, § 32L, neither the purchase nor possession of marijuana is a misdemeanor unless the weight of the marijuana is above two ounces. The jury were instructed correctly that “larceny in a building and larceny over $1,200 is a felony.”

The defendant argues that even though his trial counsel requested the instruction, because of it his conviction must be reversed. We review the defendant's claim to determine whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 342 (2017) (“In a criminal matter, an error in the giving of, or failure to give, a jury instruction, if occasioned by the defendant's own request, is regarded as an invited error, and is reviewable only to the extent necessary to prevent a substantial risk of a miscarriage of justice”).

The defendant was convicted of breaking and entering in the nighttime with the intent to commit a misdemeanor, and the only misdemeanors identified by the judge in her jury instructions were the purchase and possession of marijuana, which, standing alone, are not misdemeanors. Even if the jury might have somehow known of other misdemeanors which the evidence could have supported the defendant having an intent to commit, in these circumstances, the erroneous instruction created a substantial risk of a miscarriage of justice, a substantial risk that the defendant was convicted of breaking and entering in the nighttime with the intent to commit a misdemeanor for an act that as a matter of law did not amount to that crime. The judgment therefore must be reversed. See Commonwealth v. Williams, 428 Mass. 383, 387-378 (1998) (conviction reversed where defense counsel requested erroneous jury instruction used by trial judge because it allowed jury to convict defendant without prosecution having proved each element of crime).

The defendant argues further that a judgment of acquittal must enter because there is insufficient evidence of intent to commit any misdemeanor in the trial record. We disagree. Although the jury were not instructed on this, larceny under $1,200 is a misdemeanor, see G. L. c. 266, § 30 (1), and there was certainly sufficient evidence to support a conclusion by the finder of fact beyond a reasonable doubt that the defendant had the intent to commit that crime.

Consequently, the judgment of conviction for breaking and entering in the nighttime with the intent to commit a misdemeanor is reversed and the case remanded to the trial court where, should the Commonwealth so desire, the defendant may be retried. See Commonwealth v. Gorassi, 432 Mass. 244, 250 (2000) (allowing retrial on conviction reversed due to judge's application of incorrect definition of assault because Commonwealth had introduced sufficient evidence for that charge at trial).

The defendant also argues that there was error in the instruction with respect to intent as it relates to the breaking and entering charge. In light of our disposition of his claim with respect to that charge, we need not reach the issue as the defendant may ask the court to utilize what he considers a clearer instruction at a new trial.

As to the assault by means of a dangerous weapon charge, the defendant argues that the evidence was insufficient to support the conviction. We disagree. The victim testified that after he entered the home office holding a machete, where he discovered the defendant and the juvenile with whom the defendant had entered the house, the defendant held the knife “pointing kind of up” and “raise[d] it like he[ was] going to attack me.” The defendant and the victim were in close quarters, “probably about [two] feet” apart. This evidence suffices to support the conviction.

The defendant argues next that the judge erred in refusing to answer directly a jury question on the assault by means of a dangerous weapon charge about intent. Rather than answering the question with a yes or no, the judge reread the entire model jury instruction on the issue. The premise of the defendant's argument is not that rereading the model jury instruction would have been impermissible in all circumstances, but that, in this case, the judge believed that she lacked discretion to give a yes or no answer, and that failing to do so on this basis was error.

Even assuming, without deciding, that a claim might have force that an otherwise permissible exercise of discretion might be impermissible when a judge misunderstands the scope of her discretion, the defendant's argument is based entirely on an incomplete sentence the trial judge uttered: “I don't think I can answer the question directly with how really the instruction --.” The defendant has not met his burden of demonstrating that this meant the judge believed she lacked discretion to answer the jury question with a simple yes or no. It is, indeed, not the most natural reading of that language. On this record, we are not persuaded that the judge believed she lacked discretion to provide a yes or no answer. There can thus be no doubt that rereading the model jury instruction was in this circumstance well within her discretion. See Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998) (trial judge acted within his discretion when he responded to jury question by repeating entire instruction again rather than specifically answering question).

Finally, the defendant argues that the judge erred by failing sua sponte to give a self-defense instruction, which was not requested by the defendant. There are some circumstances in which in the face of evidence supporting a claim of self-defense, a judge may be required to instruct upon it sua sponte. See Commonwealth v. Norris, 462 Mass. 131, 144 n.12 (2012). In this case, we do think that, on one possible reading of various pieces of evidence, see Commonwealth v. Pike, 428 Mass. 393, 395 (1998), a self-defense instruction might have been warranted had it been requested. Nonetheless, no instruction was required to be given sua sponte here as, notwithstanding defendant's argument to the contrary, the defense “placed no reliance at trial” on the theory of self-defense. Commonwealth v. Hakkila, 42 Mass. App. Ct. 129, 130-131 (1997). Indeed the defendant's own testimony was that he had never raised his knife during the confrontation with the victim. “[I]f the judge had given such an instruction on [his] own, [he] might well have interfered with the defendant[’s] right to present [his] chosen defenses” (quotation and citation omitted). Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 661 (2013). See Norris, 462 Mass. at 144 n.12 (judge not required to instruct on self-defense in absence of request “in a case where the defendant has not relied on or even mentioned the defense at trial”).

On the charge of assault by means of a dangerous weapon the judgment is affirmed. On the charge of breaking and entering in the nighttime with the intent to commit a misdemeanor the judgment is reversed, the verdict is set aside, and the case is remanded to the District Court for further proceedings consistent with this memorandum and order.

So ordered.

Affirmed in part; reversed in part; remanded.