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Appeals Court of Massachusetts.



Decided: October 28, 2021

By the Court (Green, C.J., Singh & Hand, JJ.1)


Following a jury trial in the Superior Court, the defendant was convicted of assault and battery causing serious bodily injury. See G. L. c. 265, § 13A (b) (i). The defendant appeals, asserting error in (1) the jury instructions, (2) the admission of hearsay evidence, and (3) the prosecutor's closing argument. We affirm.

Background. 1. The Commonwealth's case. After a brief tenure of employment at an automobile repair shop owned by the victim, the defendant was fired. A few days after being fired, the defendant returned to speak with the victim about past wages that the defendant believed he was owed. The victim directed the defendant to wait in the office and asked an employee to contact the payroll company. The defendant waited for approximately one hour, but the two men were unable to resolve the defendant's request. Instead, they began “swearing at each other back and forth.” Eventually, another employee escorted the defendant to the sidewalk at the edge of the repair shop's property, but the defendant and the victim continued to argue. As their exchange escalated, the victim walked down to the sidewalk and “went face to face” with the defendant, “shouting” and “swearing” at him. The defendant punched the victim in the face, causing him to sustain two fractures to his lower jaw, which required surgery to repair.2

2. The defendant's case. The defendant testified on his own behalf and claimed self-defense. He stated that, after he had gotten off the victim's business property and was standing on the sidewalk, the victim approached him, got “in [his] face,” and was “being disrespectful.” In response, the defendant “started talking about [the victim's] wife being a whore, which got him mad.” The victim said, “Say it one more time.” The defendant then “said it louder in his face, and then [the victim] acted like he was going to swing.” Although the victim had pushed him multiple times, the defendant only became fearful of “taking damage, like [he] was going to get harmed” when he saw the victim's “hands go up in a stance of fighting.” As a result, the defendant “swung one time,” giving the victim “a quick jab to his face.”

Discussion. 1. Jury instructions. The defendant contends that the judge's self-defense instruction conflated the standard for nondeadly force with the standard that is imposed when deadly force is used in self-defense. As the defendant did not object to the judge's instruction at trial, our review is limited to whether the error, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Evaluating the jury instructions “as a whole, [and] looking for the interpretation a reasonable juror would place on the judge's words” (citation omitted), Commonwealth v. Glacken, 451 Mass. 163, 168-169 (2008), we are satisfied that the jury were correctly instructed on the law. Contrary to the defendant's argument, the requirement that the defendant reasonably believed himself to be in “immediate danger of personal harm” and that the use of nondeadly force was necessary in order to “save himself” did not lower the Commonwealth's burden of proof. Rather, immediacy and avoidance are central to the doctrine of self-defense. “[T]he right of self-defense [using nondeadly force] attaches as soon as [a defendant is] placed in fear of physical harm,” Commonwealth v. Walker, 443 Mass. 213, 217 (2005), and the reasonableness of that fear is measured by evidence of some “overt act [by the victim] against the defendant” that suggests “imminent physical harm.” Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 916 (2000). However, the use of force in self-defense is not privileged “until the defendant has availed himself of all proper means to avoid physical combat.” Commonwealth v. Bastarache, 382 Mass. 86, 105 n.15 (1980). There is no legally significant distinction between the requirement that a defendant first attempt to avoid using force in self-defense and what the judge instructed the jury, which condoned the use of nondeadly force if such force was the only means “from which he could save himself [from personal harm].”3

2. Hearsay evidence. The defendant next contends that the judge erroneously permitted the victim to testify to a prior consistent statement where there was no claim of recent fabrication. See Mass. G. Evid. 613(b) (2021) (prior consistent statements are generally inadmissible but may be admitted to rebut claim of recent contrivance). Specifically, he claims that the victim was permitted to unfairly bolster his testimony that he didn't strike the defendant by adding that he had said the same thing to the police at the scene. We disagree.

On direct examination, the victim denied putting his hands on the defendant, maintaining that he kept his hands “down by [his] side the whole time.” After eliciting testimony regarding the victim's serious injuries, including a broken jaw, the prosecutor asked why the victim refused the police officers’ offer of medical assistance. In response to this question, the victim explained his frustration with the police:

“I had been waiting [forty-five] minutes for them to show up. The whole time, if they had showed up it probably wouldn't have escalated to the point it escalated. I probably wouldn't have got hit. I said to them, ‘Why don't you arrest him?’ They said, ‘Well, we asked him. He said, yes, I hit him.’ They said, ‘Did you hit him?’ I said ‘No, I didn't raise my hands to him.’ They said, ‘Well, we didn't see him physically hit you.’ ”

It was at this point that the defendant objected. The objection was overruled. The prosecutor thereafter summed up the victim's testimony by confirming that he didn't go to the hospital by ambulance, as offered by the police, because he was frustrated with them.

Although the basis for the objection went unstated, the context suggests no more than a general hearsay objection.4 The judge properly overruled the objection because the statements were not offered for their truth but rather to explain why the victim refused immediate treatment, despite his serious injuries. See Commonwealth v. Cruzado, 480 Mass. 275, 280 (2018) (“out-of-court statement not offered for its truth is not hearsay”). Although on appeal the defendant casts the statements as prior consistent statements, they were not offered as such. Indeed, the prosecutor's question did not call for the victim to relate what he had told the police at the scene.

To the extent there was any error, however, it was not prejudicial. The prosecutor did not emphasize the statement, but instead reiterated the original point of the inquiry. Indeed, the victim's statements, to the effect that he didn't strike the defendant and instead had his hands by his side the entire time, was not particularly helpful to the Commonwealth, given that it was contradicted by another Commonwealth witness, the victim's own employee. Defense counsel seized on this in his closing argument to undermine the victim's credibility.

Finally, even if the jury had credited the defendant's account of the victim having pushed him multiple times, evidence that the defendant responded with a closed-fist punch was sufficient for the jury to reject his claim of self-defense. See Commonwealth v. King, 460 Mass. 80, 89 (2011) (defense evidence alone sufficient for “the jury to conclude that the defendant used unreasonable force”); Commonwealth v. Pike, 428 Mass. 393, 395 (1998) (adequacy of self-defense claim “depends on the level of force he used on his victim and the circumstances that prompted those actions”).

3. Closing argument. Finally, and for the first time on appeal, the defendant claims that the prosecutor's closing argument “improperly appealed to the jury's sympathies and urged retribution.” We disagree. Prosecutors may “argue forcefully for the defendant's conviction.” Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). Accordingly, “[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole” are permissible (citation omitted). Id. “We consider the remarks in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.” Commonwealth v. Francis, 450 Mass. 132, 140 (2007).

In her closing argument, the prosecutor stated:

“That's all that happened here. [The defendant] got angry, and he punched someone. You are here today because of this young man's anger and for no other reason. And [the victim] was left to suffer the consequences of that anger. I urge you to turn the tables on that today. Make [the defendant] bear the burden of the consequences of his anger. Find him guilty.”

Because the defendant proceeded on a theory of self-defense, the Commonwealth was entitled to argue that the defendant's conduct was motivated by anger rather than fear. See Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 825 (2019), quoting Commonwealth v. Lyons, 426 Mass. 466, 472 (1998) (“The prosecutor may argue inferences from the evidence favorable to his case”). Nor was it improper for the prosecutor to ask the jury to hold the defendant accountable for his actions. Commonwealth v. Molle, 56 Mass. App. Ct. 621, 631 (2002). Particularly considering the defense theory, framing a criminal conviction as a “consequence” of the defendant's conduct was a permissible counter to the defendant's argument that his conduct was privileged under the law.

Judgment affirmed.


2.   Although the victim denied touching the defendant, the employee who had walked the defendant to the sidewalk testified that the victim pushed the defendant with both hands, just prior to the defendant punching the victim.

3.   The official comments to the Model Penal Code recognize that deadly force is “privileged only in extreme situations.” Designating the use of deadly force as a separate and distinct rule within the doctrine of self-defense and limiting its use to occasions where such force is necessary to protect against “death[ or] serious bodily injury” is an attempt to make that principle explicit. Model Penal Code and Commentaries, § 3.04 comment 4(a) (1985). Accordingly, the defense of self-defense is unavailable to a defendant who uses deadly force in response to nondeadly force. See Walker, 443 Mass. at 217.

4.   The objection did not come immediately after the alleged prior consistent statement. Nor was there a motion to strike the statement. Moreover, there was no request for a limiting instruction as to the proper use of the statement. In this context, it is difficult to see how the judge would have understood the defendant to have been objecting to the admission of an improper prior consistent statement. See Commonwealth v. McDonagh, 480 Mass. 131, 137-138 (2018) (appellate rights preserved when objection is made in form or context that reveals its basis and allows judge opportunity to correct any error).

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Docket No: 20-P-874

Decided: October 28, 2021

Court: Appeals Court of Massachusetts.

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