Opinion
13-P-1548
11-26-2014
COMMONWEALTH v. SHAWN P. HIXON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of assault and battery in violation of G. L. c. 265, § 13A. He raises two related claims on appeal, neither of which were preserved below.
The defendant argues first that the judge's instructions to the jury on the defendant's claim of defense of another were erroneous. See Commonwealth v. Martin, 369 Mass. 640, 649 (1976). Specifically, the defendant alleges that the jury instructions allowed the jury to conclude that the Commonwealth defeated his claim of defense of another merely by finding that the person the defendant claimed to be assisting, the defendant's son, himself had no viable claim of self-defense. The proper rule is that defense of another was available even if the son did not have a valid claim of self-defense so long as the defendant reasonably believed that his son (1) was in need of protection by the use of force against another person, and (2) would have been be justified in using such force to protect himself. See ibid. The defendant's related claim is that this error was exacerbated by aspects of the Commonwealth's closing that emphasized that the son had no valid claim of self-defense.
After parsing the jury instructions with some care, we think that the instructions were correct. The instructions included a lengthy discussion of the elements of self-defense. Such discussion was proper to provide guidance as the jury considered whether the defendant had a reasonable belief that his son had a valid claim of self-defense.
Further, even if we assume without deciding either that the instructions were, as the defendant argues, sufficiently confusing as to amount to error, or that, alone or in combination with the closing argument, the instructions could have misled the jury into thinking that the defense of another defense was defeated by proof that the son did not have a self-defense claim available regardless of the reasonable belief of the defendant, the defendant's claims would be unavailing.
Because the defendant objected neither to the instructions nor to the closing, we review his claims of error to determine whether, if error occurred, it created a substantial risk of a miscarriage of justice. "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence[] the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (citation and internal quotation marks omitted).
In this case, viewed in the light most favorable to the defendant, see Commonwealth v. Reed, 427 Mass. 100, 102 (1998), the evidence showed that the son moved away from the altercation toward an automobile in which the defendant and the codefendant, the son's mother, were sitting, before the defendant entered the fray. There is no view of this evidence on which an individual in the defendant's position could reasonably have thought that the son had no proper and reasonable means of retreating, an essential element of a claim of self-defense. See Commonwealth v. Espada, 450 Mass. 687, 692 (2008). Consequently, the defendant ab initio was not entitled to an instruction on defense of another, nor could the jury properly have found that he had made out a valid claim of such a defense. In these circumstances, we cannot conclude that, even if there were error in the instructions, in the Commonwealth's closing, or in the two combined, any such error created a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Trainor, Rubin & Sullivan, JJ.),
Panel members appear in order of seniority.
Clerk Entered: November 26, 2014.