Opinion
No. 12–P–1467.
2013-10-11
COMMONWEALTH v. Ramon SOTO, Jr.
By the Court (Hanlon, Brown & Sullivan, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of resisting arrest, G.L.c. 268, § 32B, assault and battery on a police officer, G.L.c. 265, § 13D, and threatening to commit a crime, G.L.c. 275, § 2, after a trial by jury in the District Court. On appeal he contends that (1) it was error for the judge to refuse to instruct the jury on self-defense, and (2) there was insufficient evidence that he threatened to commit a crime. We affirm.
Self-defense. The defendant contends that the police officer's forcibly removing him from his car “without trying to peaceably remove him with an exit order was excessive force,” and that he was therefore entitled to a self-defense instruction.
There must be some basis in the evidence supporting the requested instruction. See Commonwealth v. Pike, 428 Mass. 393, 398 (1998) (“A self-defense instruction is not required unless there is some evidence” to support the instruction). Cf. Commonwealth v. Anestal, 463 Mass. 655, 674 (2012). Both officers testified that an exit order was issued. One officer testified that the order was issued once. The second officer testified it was issued multiple times. The defendant argues that the conflict in the testimony discredits both officers and would permit a jury to disbelieve both. Even so, disbelief does not constitute affirmative evidence that is sufficient to raise the defense. Commonwealth v. Donlan, 436 Mass. 329, 337 (2002) (evidence needed to place element in dispute “cannot be the mere possibility that the jury might not credit a portion of the Commonwealth's evidence”). There was no error in the denial of the instruction. Threatening to commit a crime. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the evidence was sufficient to support a conviction of threatening to commit a crime. Judged by an objective standard, the defendant's statement to Officer Collins at booking that the defendant would find Officer Collins when he got out and kill him was sufficient to “justify apprehension on the part of the recipient.” Commonwealth v. Hamilton, 459 Mass. 422, 427 (2011), quoting from Commonwealth v. Sholley, 432 Mass. 721, 724–725 (2000). The defendant's argument that Officer Collins's alleged lack of fear showed that a reasonable person would not actually be apprehensive as a result of the threat presented a question of fact for the jury.
Judgments affirmed.