Opinion
10-P-1830
12-30-2011
COMMONWEALTH v. PEDRO J. MEDINA.
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, after a jury trial, of the crime of assault and battery. G. L. c. 265, § 13A(a). On appeal, he argues that (1) the trial judge erred in denying his request that the jury be instructed on self-defense, and (2) an error in the jury instruction on assault and battery created a substantial risk of a miscarriage of justice. We affirm.
The defendant was acquitted of two additional counts of assault and battery, one count of assault and battery by means of a dangerous weapon, and one count of accosting or annoying a person of the opposite sex.
The victim was the defendant's live-in girlfriend. She testified that the defendant followed her into the laundry room, yelling at her, and pushed her, sending her 'flying across' the hallway. The defendant did not testify at trial or call any witnesses. However, the defendant's statement to the police was introduced through the testimony of Officer Bussiere, who investigated the victim's complaint. Officer Bussiere testified that the defendant stated that he and the victim were arguing in the laundry room and that 'she got upset and attacked him. He grabbed both her wrists and pushed her down into a sitted (sic) position to kind of stop her from hitting him.' Defense counsel did not inquire into this statement on cross-examination. The defense focused on questioning the victim's credibility and suggested that she fabricated the allegations out of anger and jealousy.
We recite only the facts relating to the crime for which the defendant was convicted.
1. Request for self-defense instruction. The defendant argues that the trial judge erred when he refused to instruct the jury on self-defense. Because the defendant objected below, we review to determine whether there was error and, if so, whether the error was prejudicial. Commonwealth v. Rogers, 459 Mass. 249, 252-253 (2011). 'Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) 'the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness." Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting from Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004).
We accept the defendant's statement to Officer Bussiere as true for purposes of this analysis. And, taken in that light, examine whether it sufficiently satisfied the prerequisites for giving a self-defense instruction. We conclude that the first element is satisfied because we accept, arguendo, that the victim's 'attack' created in the defendant a reasonable concern for personal safety. As to the second element, however, the evidence is insufficient to raise a reasonable doubt that the defendant used all reasonable means to avoid physical combat. While there is no 'absolute duty to retreat regardless of personal safety considerations,' a defendant 'must, however, use every reasonable avenue of escape available to him.' Commonwealth v. Pike, 428 Mass. 393, 398 (1998). Here, there is no evidence that the defendant could not have retreated once the victim became violent. See id. at 399 (no self-defense instruction required '[i]n the absence of any evidence of an attempt to avoid further physical combat or of the defendant's inability to retreat').
The defendant argues that, in stopping the attack, he could not avoid touching the victim and was therefore not required to attempt to retreat before doing so. Our case law does not support this argument. Whether a defendant used reasonable means to avoid physical combat is a factual question that includes consideration of 'the availability of maneuver room in, or means of escape from, the area, and the location of the assault.' Id. at 399. See King, 460 Mass. at 87. The fact that a victim attacked at close range, without more, is insufficient to establish that a defendant could not have escaped without physical combat. There is no evidence in the record that the laundry room exit was blocked in any way, or that any other physical aspect of the room prevented the defendant from leaving. See Commonwealth v. Benoit, 452 Mass. 212, 227 (2008); Commonwealth v. Toon, 55 Mass. App. Ct. 642, 653 (2002). There is no evidence that the victim physically prevented the defendant from moving away from her or leaving the laundry room. Contrast Franchino, supra at 369 (defendant was entitled to self-defense instruction where he testified that 'he was set upon by the victim as he descended a flight of stairs'). And there is no evidence to suggest that the defendant was overpowered or immobilized in any way that prevented him from removing himself from the conflict without touching the victim. Contrast Commonwealth v. Harrington, 379 Mass. 446, 452 (1980) (where fight took place behind closed bedroom door and defendant testified that he fell backwards, '[t]he jury could have inferred that once the struggle began, the defendant was unable to rise up and open the door to retreat').
2. Erroneous assault and battery instruction. The defendant also argues that an error in the jury instruction on assault and battery created a substantial risk of a miscarriage of justice. In a prosecution for assault and battery, the Commonwealth must prove an intentional touching that was physically or potentially physically harmful, or nonconsensual. Commonwealth v. Burke, 390 Mass 480, 483-484 (1983). Here, after correctly instructing on touching and intent, the judge instructed that the Commonwealth must prove 'that the touching was done without [the victim's] consent.' This instruction incorrectly removed from the jury's consideration a potential basis upon which to convict; namely, that the touching was physically or potentially physically harmful. See ibid. ('[A] physically harmful touching is so regardless of consent. But an offensive touching is so only because of lack of consent').
The instruction was incomplete, but the defendant did not object. See Commonwealth v. Santos, 454 Mass. 770, 772 (2009).
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This error did not create a substantial risk of a miscarriage of justice. There is no such risk where an erroneous instruction 'actually made the Commonwealth's burden of proof more difficult.' King, 460 Mass. at 86, quoting from Commonwealth v. King, 77 Mass. App. Ct. 194, 200 (2010). Because the error took away means by which the Commonwealth could meet its burden of proof, the instruction was actually more favorable to the defendant, and no substantial risk of a miscarriage of justice resulted. See King, 460 Mass. at 86 (no substantial risk of a miscarriage of justice where defendant received more favorable instruction that omitted two of the three means by which the Commonwealth can prove lack of self-defense).
For these reasons, the conviction is affirmed.
Judgment affirmed.
By the Court (Green, Sikora & Wolohojian, JJ.),