COMMONWEALTH v. Ryan GAMBOA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of assault with a dangerous weapon, G. L. c. 265, § 15B (b), on a theory of attempted battery.2 ,3 On appeal, he argues that the judge erred in failing to instruct the jury on self-defense and on an essential element of attempted-battery-type assault. The defendant also challenges the admission of certain phone records and text messages. We affirm.
Background. The defendant and the victim, who had an antagonistic history, were in the same convenience store in New Bedford shortly after 10 o'clock one evening. When the victim saw the defendant, the victim said something to the effect of, “What's good,” to which the defendant responded, “You know what's good,” and indicated that the parties should take their disagreement outside.4 The two men then moved toward the door of the store, and the victim punched the defendant in the head. In response, the defendant drew a knife. What else he did with the knife was a matter of dispute. One store clerk testified that the defendant fished for something in his pocket and followed the victim outside. Another store clerk testified that, in response to the punch, the defendant slashed at the victim with something that looked like a knife and chased him out of the store. A customer testified that the defendant flipped something out of his pocket or from his side, which caused the victim to run in the other direction. Regardless of these differing details, the evidence showed that the defendant followed the victim out of the store. As the victim fled from the store, the defendant's son (who had been waiting outside) fatally shot the victim in the back.
Discussion. The defendant argues that the judge erred in declining to give a self-defense instruction, as the defendant requested.5 We disagree.
“Before either nondeadly force or deadly force may be invoked[,] the duty to retreat must be observed.” Commonwealth v. Toon, 55 Mass. App. Ct. 642, 654 (2002). One must “use[ ] all reasonable means to avoid physical combat” before resorting to nondeadly force, Commonwealth v. Abubardar, 482 Mass. 1008, 1010 (2019), quoting Commonwealth v. King, 460 Mass. 80, 83 (2011), and “us[e] all proper means and reasonably available avenues of escape prior to resorting to deadly force.” Commonwealth v. Miranda, 484 Mass. 799, 811 (2020). The defendant did not contest at trial and does not contest on appeal that he drew a knife; rather, he argues that the conflicting testimony was inconclusive as to whether he merely displayed the knife or swung it at the victim. For these purposes, the conflict does not matter because there was no evidence to permit a finding that the defendant attempted to retreat or to avoid physical combat. Indeed, the evidence was that the defendant, in order to continue the altercation, followed the victim as he left the store. In these circumstances, the judge correctly determined that the defendant was not entitled to a self-defense instruction.
The defendant also argues that the judge erred in failing to instruct the jury on an essential element of assault with a dangerous weapon, namely that the defendant came “reasonably close” to completing the crime. See Commonwealth v. Walker, 460 Mass. 590, 615 (2011), quoting Commonwealth v. Melton, 436 Mass. 291, 295 (2002) (“Under the attempted battery theory [of assault], the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so”). Because there was no objection to the instruction, we review the omission to determine whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Nee, 83 Mass. App Ct. 441, 447-448 (2013) (erroneous omission of element from model jury instruction did not result in substantial risk of miscarriage of justice); Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001). A substantial risk of a miscarriage of justice exists where there is “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. McGann, 484 Mass. 312, 322 (2020).
The trial judge instructed the jury in accordance with the Superior Court's model criminal instructions as they existed at the time of trial.6 But unlike the District Court's model instructions, the Superior Court's model did not include the “reasonably close” language. Although we have previously stated that the District Court's model jury instruction “provides a clearer statement of assault by attempted battery” because it articulates the “reasonably close” element, Commonwealth v. Boodoosingh, 85 Mass. App. Ct. 902, 903 (2014), neither we nor the Supreme Judicial Court has ever held that the Superior Court's model is inadequate or necessarily results in a substantial risk of a miscarriage of justice. Id. at 903 (“[W]e need not resolve the adequacy of [the] Superior Court [instruction] because even were we to assume that the challenged instruction is erroneous, the defendant's conviction must be affirmed”). We decline to do so for the first time here.
As instructed, the jury's guilty verdict necessarily means that the jury found that the defendant took an act toward the commission of an assault. Whether that act was brandishing (as the defendant characterizes it), rather than slashing with, the knife, in either event the defendant wielded the weapon within arm's length of the victim and chased him out of the store. Whatever the precise contours are of “reasonably close,” the defendant's actions in this case fell within them. See Commonwealth v. Porro, 458 Mass. 526, 530 n.5 (2010) (defendant “reasonably close” to completing an assault where he “had committed overt acts that brought him very near -- in time and ability -- to the actual commission of the completed crime”).
Finally, the defendant argues that certain cell phone records and text messages between himself and his son were erroneously admitted.7 The Commonwealth introduced this evidence to support its theory that the defendant was in a joint venture with his son to murder the victim. Because the jury acquitted the defendant of the murder charge, even were we to assume for the sake of argument that the evidence was erroneously admitted, the defendant has shown no prejudice. See Commonwealth v. Medina, 81 Mass. App. Ct. 525, 531 n.7 (2012) (“Perhaps most demonstrative of [the evidence's] nonprejudicial effect is the jury's conviction of the defendant on only the lesser included charge”).
2. This was the sole theory upon which the Commonwealth proceeded.
3. The jury acquitted the defendant of murder, G. L. c. 265, § 1. The Commonwealth nol prossed charges of assault with intent to murder and being an accessory before the fact.
4. We disagree with the defendant's assertion that two witnesses had different memories of the conversation. Both witnesses identified the victim as the person who spoke first and the defendant as the one who responded. We do not think it a noteworthy difference that, nearly four years after the incident, one witness recalled the parties using the word “good” while the other recalled the word “poppin.”
5. When an “objection was not waived, we review to determine whether any error to instruct created prejudicial error” (citation omitted). Commonwealth v. Zimmerman, 441 Mass. 146, 150 (2004).
6. At the time of trial, the Superior Court model instruction read that “[t]he Commonwealth must prove beyond a reasonable doubt that the defendant intended to physically harm [the victim] ․ did an act towards the commission of inflicting physical harm on [the victim] ․ [and] that the defendant had the actual or apparent ability to inflict bodily harm.” Massachusetts Superior Court Criminal Practice Jury Instructions § 2.19 (Mass. Cont. Legal Educ. 1999 & 1st Supp. 2003).Since this case was tried, the Superior Court has revised this language so that it now reads “[t]he Commonwealth must also prove that the defendant did an act toward the commission of inflicting physical harm on (the alleged victim/name) and came reasonably close to accomplishing the intended act” (emphasis added). Massachusetts Superior Court Criminal Practice Jury Instructions § 3.9 (Mass. Cont. Legal Educ. 2018).
7. Because the defendant moved to exclude the evidence in a motion in limine, we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
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