Opinion
14-P-12
02-27-2015
COMMONWEALTH v. RODLYN PETITBOIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of voluntary manslaughter of Greenland Etienne, assault and battery (two counts), and assault by means of a dangerous weapon. On appeal, he claims the judge's instructions on self-defense created a substantial risk of a miscarriage of justice and the judge erred by admitting evidence of the defendant's prior bad acts. We affirm.
1. Self-defense instructions. For the first time on appeal, the defendant claims the judge's self-defense instructions violated G. L. c. 231, § 81, because they contained factual references, as well as other errors, which created a substantial risk of a miscarriage of justice. We disagree.
Prior to instructing the jury, the judge discussed his proposed jury instructions at length with counsel. The judge provided the parties with a complete draft of his proposed instructions, which included factual references to differentiate among the many charges. The judge also prefaced his charge with an explanation to the jury that although he would be referring to facts, the jury alone would be the sole arbiter of the facts and that they should draw no inference from any reference he made to the evidence. Despite this, the defendant raises four issues related to the self-defense instructions.
First, relative to indictment no. 6, an assault and battery on Sabinio St. Preux, the judge stated that under one version of the evidence, the defendant's assault against St. Preux occurred after St. Preux armed himself with a knife and attacked the defendant. The defendant claims that no version of the evidence puts a knife in St. Preux's hand. Even if this was false, despite the Commonwealth's suggestion that a compilation of testimony supports the judge's statement, it merely provided the defendant with a self-defense theory to which he was not entitled; it did not divest him of self-defense as explained in the Commonwealth's brief at 27-28.
Second, the defendant also claims error in the self-defense charge as to indictment no. 5, assault by means of a dangerous weapon. Here, the judge misspoke when he instructed the jury that if they had a reasonable doubt whether "the defendant acted in self-defense when he allegedly struck the defendant with his fist and put him on his shoulders, your verdict should be not guilty." The isolated reference to the defendant when the judge should have named St. Preux, did not result in a miscarriage of justice. In particular, the judge prefaced this statement with the phrase "in other words," which meant he was restating what he had already stated properly in reference to St. Preux. We do not believe the jury understood the judge to state the defendant assaulted himself.
Third, the defendant also claims that the self-defense instructions were deficient because the judge did not define the phrase "all proper means to avoid physical combat." We disagree. As we held in Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 115-116 (2011), the judge was not required to further define this phrase. We add only that at trial, the defendant never suggested that he wished to escape, but could not do so safely. Rather, the defendant testified that St. Preux told him to leave, but he refused to go without retrieving his children.
Finally, the defendant claims that the judge erred in failing to sua sponte provide an "initial aggressor" instruction as part of the self-defense instructions. We disagree. As a starting point, we note that the defendant fails to cite any authority for the proposition that the judge was required to sua sponte give such an instruction in the circumstances of this case, or in any circumstances. Also, the defendant's reliance on model "initial aggressor" jury instructions that were not in existence at the time of the trial, offers little as well.
In any event, the judge did not err by not giving the instruction. Had the judge instructed the jury that if it found the defendant was the initial aggressor, he would also have instructed them that the defendant would not be entitled to self-defense unless he first withdrew in good faith from the conflict and announced his intention to withdraw. See Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007); Commonwealth v. Harris, 464 Mass. 425, 434-436 (2013). Thus, as the Commonwealth notes, the instruction has the potential to function as a double-edged sword. At the very least, the absence of the instruction provided the Commonwealth with fewer means to defeat the self-defense claim.
As the Supreme Judicial Court has stated, when determining whether a judge's instruction created a substantial risk of a miscarriage of justice, we must keep in mind that "[e]rrors of this magnitude are extraordinary events and relief is seldom granted." Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). When we examine the instructions as a whole, we determine that the defendant has failed to establish that this case presents such an extraordinary circumstance.
2. Prior bad acts. The defendant also claims the judge erred in admitting his prior bad acts, which were largely prior acts of his physical abuse of his girl friend, Louna Eveillard. A trial judge has discretion to decide the relevancy of a prior bad act and to weigh its probative value against its potential for unfair prejudice. See Commonwealth v. McCowen, 458 Mass. 461, 478 (2010). A judge's decision regarding admission of prior bad act evidence will not be disturbed by a reviewing court absent a showing of "palpable error." Ibid. Assuming the defendant's claims are all preserved, we find no such error.
Here, the evidence was relevant to the defendant's motive and state of mind, as well as the hostile nature of his relationship with Eveillard. See Commonwealth v. Thomas, 448 Mass. 180, 188 (2007); Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 54 (2009). Also, the judge gave thorough limiting instructions on how the evidence was to be employed. As far as prejudice is concerned, we find it telling that the defendant was acquitted not only of murder, but of five of the six indictments involving Eveillard.
Judgments affirmed.
By the Court (Kafker, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 27, 2015.