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Appeals Court of Massachusetts.



Decided: March 08, 2021

By the Court (Neyman, Henry & Desmond, JJ.1)


The defendant appeals from his conviction of assault and battery pursuant to G. L. c. 265, § 13A (b). We vacate the judgment and set aside the verdict.

Background. The defendant was charged with assault and battery by means of a dangerous weapon, to wit, a blunt object, pursuant to G. L. c. 265, § 15A (b). After a jury trial, the defendant was convicted of the lesser included offense of assault and battery.

Discussion. The defendant argues that the judge erred by not instructing the jury on the law of self-defense when defending against nondeadly force. At trial, the judge instructed the jury as follows:

“If evidence of self-defense is present, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense․ If the defendant used deadly force, which is defined as force intended, or likely to cause death or great bodily harm, or used a dangerous weapon in a manner intended or likely to cause death or great bodily harm, the Commonwealth must prove one of the following three things beyond a reasonable doubt.

“First, that the defendant did not reasonably and actually believe that he was in immediate danger of great bodily harm or death. Or, second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force. Or, third, that the defendant used more force to defend himself than was reasonably necessary in the circumstances․ If there is evidence of self-defense, the Commonwealth also has the burden to prove beyond a reasonable doubt, that the defendant did not act in self-defense.

“The Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act, either words or a gesture, or some other action that that gave rise to a reasonable belief of attack or immediate -- or attack or of great bodily harm or death. A person ․ cannot lawfully act in self-defense, unless he or she has exhausted all other reasonable alternatives before resorting to force. A person may use physical force in self-defense, only if he could not get out of the situation in some other way that was available, and reasonable at the time. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant resorted to force without using avenues of escape that were reasonably available, and which would not have exposed the defendant to further danger. You may consider any evidence about where the incident took place, whether or not the defendant might have been able to escape by walking away, or otherwise getting to safety or by summoning help, if that could be done in time, or by holding the attacker at bay if the means were available, or by some other method. You may consider whether the use of force reasonably seemed to be the only means of protection in the circumstances. You may take into account that a person who is attacked may have to decide what to do quickly, and while under emotional strain.

“A person cannot lawfully act in self-defense if one uses more force than necessary in the circumstances to defend oneself. How much force is necessary may vary with the situation. Exactness is not always possible. You may consider whether the defendant had to decide how to respond quickly under pressure. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant used clearly excessive and unreasonable force.”

The defendant's trial counsel did not object to the jury instructions. We therefore review for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). “[W]e consider the strength of the Commonwealth's case against the defendant ․, the nature of the error, whether the error is ‘sufficiently significant ․ to make plausible an inference that the [jury's] result might have been otherwise but for the error,’ Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986), and whether it can be inferred ‘from the record that counsel's failure to object was not simply a reasonable tactical decision.’ Id.” Alphas, supra. Furthermore, “[w]e examine the jury instructions in their entirety ‘to determine their probable impact on the jury's perception of the fact-finding function.’ ” Commonwealth v. Noble, 429 Mass. 44, 47 (1999), quoting Commonwealth v. Mejia, 407 Mass. 493, 495 (1990).

Where the level of force cannot be determined as a matter of law, the Supreme Judicial Court has held that instructions on both the use of deadly force and nondeadly force must be given. See, e.g., Noble, 429 Mass. at 47; Commonwealth v. Baseler, 419 Mass. 500, 503-504 (1995). “In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998). See Noble, supra at 46 (“In construing the necessity for a nondeadly self-defense instruction, we view the evidence in the light most favorable to the defendant”). If a judge does not provide both instructions, the Commonwealth's burden of proof that the defendant did not act in self-defense is lowered; rather than having to “prove that the defendant did not have a reasonable concern over his own safety,” the Commonwealth must only “prove that the defendant did not have a reasonable belief that he was being attacked and in imminent danger of death or serious bodily injury.” Baseler, supra at 503-504.

Here, the Commonwealth's case against the defendant turned on whether the jury found the defendant or the victim more credible. It was a factual question for the jury whether the defendant's actions constituted lawful self-defense with deadly force, lawful self-defense with nondeadly force, or unjustified assault and battery. Without proper instruction, the jury lacked the basis to make this determination. The error here also went to the heart of the defense: the defendant's primary argument at trial was that he used nondeadly force, that he hit the victim with his fist to prevent himself from being hit with a brick. “[T]he force of one's fists, hands, and arms[ ] is considered to be nondeadly.” Noble, 429 Mass. at 46.

In addition, the elements of self-defense were not clearly absent but were disputed facts that were properly for the jury to decide. When viewed in the light most favorable to the defendant, had the jury received the nondeadly self-defense instruction, it is entirely plausible that it would have returned a not guilty verdict. As in Noble, “[t]he judge's instructions removed from the jurors’ consideration the issue whether the defendant used nondeadly force in response to a reasonable fear for his safety. That error substantially undermined the defendant's claim of self-defense and also deprived him of jury consideration of a substantial part of his defense.” Id. at 47. The defendant was thus entitled to a nondeadly force instruction.

While the Commonwealth argues that the judge's instructions were sufficient as a whole to mitigate any risk of miscarriage of justice, we do not agree. The judge's additional instructions were not about the amount of force a person may use in self-defense from nondeadly force. There is thus a substantial risk of miscarriage of justice here. If the jury believed that the defendant hit the victim with his fist, as the verdict suggests, the nondeadly force instruction would have been appropriate, but the jury were not instructed on, and therefore could not have properly considered, whether the defendant used an appropriate amount of nondeadly force in self-defense. The use of nondeadly force in self-defense requires only that the defendant had a “reasonable concern” for personal safety and does not require an overt act by the victim. Baseler, 419 Mass. at 502 n.2 (1995). Thus even had the jury believed that the victim took no action towards the defendant, if properly instructed, the jury might still have found the defendant's use of nondeadly force justified.2

The judgment of conviction against the defendant for assault and battery is vacated, and the verdict is set aside.

So ordered.

Vacated; verdict set aside


2.   Our disposition of this issue obviates any need for discussion of the defendant's other claimed errors.

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