Opinion
13-P-1942
12-23-2014
COMMONWEALTH v. GEORGE P. PANAGOS.
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 by a District Court jury of assault and battery pursuant to G. L. c. 265, § 13A. He now appeals. We affirm.
Though he did not object below, nor request different instructions, the defendant now complains about the jury charge in two respects: the judge failed to explain to the jury that, to satisfy its burden of proof of the crime of assault and battery, the Commonwealth had to prove that the defendant touched Raymond without justification or excuse; and he failed to instruct the jury on the defenses of self-defense and defense of another.
"It is the rule that where the issue of self-defense has been sufficiently raised by the evidence, the defendant is entitled to an instruction which places on the Commonwealth the burden of disproving the factor of self-defense beyond a reasonable doubt . . . . But such an instruction need not be given where there was insufficient evidence to support a theory of self-defense." Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (citations omitted). "To be entitled to an instruction about self-defense by nondeadly force, the evidence, taken in the light most favorable to the defendant, must warrant reasonable apprehension by the defendant that he: (1) is in danger of personal harm; (2) can avoid that harm only by resort to force; (3) attempted to avoid physical combat or was unable to do so before resorting to force; and (4) used only the force necessary in the circumstances." Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 915-916 (2013). There was no error in not instructing the jury on self-defense and defense of another, let alone a substantial risk of a miscarriage of justice. The record contains no evidence that compelled the judge to provide these instructions. Instead, the evidence shows that Michael Krautler (Michael) was the first aggressor, he never withdrew to remove that status, and that the defendant was aware of this.
"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) (citations omitted). The defendant contends that the facts support both a self-defense instruction and a defense of another instruction. We disagree. The defendant testified that he witnessed Michael kick in the car windows, shattering them onto Raymond, the victim, provoking the defendant. Raymond subsequently exited the vehicle and he and Michael engaged in a fist-fight. The defendant testified further, "I went over and tried to get Ray off of Michael and I got involved in the scuffle also." The evidence presented does not allow for any favorable inferences that would allow us to conclude that the defendant had the privilege of defense of Michael or the privilege of self-defense. Evidence shows that the defendant was the one who first contacted Raymond during what the defendant now characterizes as defense of another. While defense of another may be available even if the one being protected has no valid claim of self-defense, the defendant must have been reasonable in believing that Michael (1) was in need of protection by the use of force against another and, (2) would have been justified in using such force to protect himself. See Commonwealth v. Barbosa, 463 Mass. 116, 135-136 (2012). See also Commonwealth v. Martin, 369 Mass. 640, 649 (1976). It does not avail the defendant here. The evidence prevents the defendant from being reasonable in his belief that Michael had a valid claim of self-defense. "In our common law, a criminal defendant who is found to have been the first aggressor loses the right to claim self-defense unless he withdraws in good faith from the conflict and announces his intention to retire." Commonwealth v. Chambers, 465 Mass. 520, 528 (2013) (quotation and citations omitted). The defendant argues that Michael was seeking to withdraw when Raymond was holding onto his leg, and that by doing this he attained the privilege of self-defense, making the defendant's contact with Raymond justified. We find no merit to this argument. Raymond had grabbed on to Michael's leg immediately after Michael kicked him. The first aggressor is not permitted to have the last kick and then withdraw and achieve the privilege of self-defense.
Because the defendant's actions were not justified, the intentional assault and battery that he inflicted on Raymond with Michael was unlawful. Therefore the omission of the element of justification or excuse from the definition of the crime did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Avila, 454 Mass. 744, 768 (2009).
To meet its burden of proof, the Commonwealth had to prove that the touching of Raymond was intentional, that the touching was either harmful or offensive, and that the touching was committed without justification or excuse. See Doe v. Sex Offender Registry Bd., 456 Mass. 612, 616 (2010); Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194 (2008).
Judgment affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 23, 2014.