Opinion
19-P-215
02-05-2021
COMMONWEALTH v. BRENDEN M. SWEET-RAINEY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury trial, the defendant was found guilty of assault and battery in violation of G. L. c. 265, § 13A (a), and disorderly conduct in violation of G. L. c. 272, § 53. On appeal, he claims: (1) the judge's instructions on self-defense impermissibly lowered the Commonwealth's burden of proof; and (2) there was insufficient evidence to prove that the defendant did not act in self-defense. We affirm.
The defendant does not appeal his disorderly conduct conviction.
1. Jury instruction. The defendant claims the judge's self-defense instruction for the use of nondeadly force, which included the requirement that the defendant believe he is "being attacked or immediately about to be attacked," is an inaccurate statement of the law. "We examine the trial judge's instructions in their entirety 'to determine their probable impact on the jury's perception of the fact-finding function.'" Commonwealth v. Baseler, 419 Mass. 500, 502 (1995), quoting Commonwealth v. Mejia, 407 Mass. 493, 495 (1990). An issue properly preserved at trial is reviewed for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The defendant requested the following jury instruction:
"A person is allowed to use reasonable force in self-defense when this is necessary to protect himself from physical harm . . . . [T]he Commonwealth may disprove self-defense by proving beyond a reasonable doubt one or more of the following three things; First: That defendant did not have a reasonable belief that [he] was in danger of personal harm" (emphasis added).The judge delivered the following jury instruction:
"To prove that the defendant did not act in self-defense, the Commonwealth must prove one of the following things beyond a reasonable doubt. First, that the defendant did not reasonably believe that he was being attacked or immediately about to be attacked and that his safety was in immediate danger; or, second, that the defendant did not do everything reasonable under the circumstances to avoid physical combat before resorting to force; or, third, that the defendant used more force to defend himself than was reasonably necessary under the circumstances" (emphasis added).The judge's instruction is identical to Instruction 9.260(I)(A) of the Criminal Model Jury Instructions for Use in the District Court (2009) (self-defense, use of nondeadly force).
The defendant claims there is a legal distinction between fear of "personal harm" and fear of "attack," and that including the latter in the jury charge lowered the Commonwealth's burden of proof. He contends that a wrongfully detained individual can reasonably fear for his personal safety without fearing an actual or imminent attack. However, the defendant cites no authority to support this contention and, in that posture, his argument does not rise to the level required for appellate advocacy. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See also Care & Protection of Martha, 407 Mass. 319, 330 n.11 (1990) (conclusory argument lacking legal authority is insufficient). In any event, the instruction is an accurate statement of the law. See Commonwealth v. King, 460 Mass. 80, 83-84 (2011) (self-defense discussed in terms of both "personal safety" and "attack"). Cf. Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 916 (2000) (requiring "overt act" causing "reasonable apprehension of imminent physical harm").
The defendant relies on two cases for the proposition that a faulty jury instruction that lowers the Commonwealth's burden constitutes reversible error. See Commonwealth v. Abubardar, 482 Mass. 1008, 1011 (2019); Baseler, 419 Mass. at 504-505. However, that reliance is misplaced. Baseler and Abubardar involved the self-defense instruction for use of deadly force, which is separate and distinct from the nondeadly force instruction at issue in this case. Compare Instruction 9.260(I)(A) of the Criminal Model Jury Instructions for Use in the District Court ("[T]he defendant did not reasonably believe he [she] was being attacked or immediately about to be attacked, and that his [her] safety was in immediate danger"), with Instruction 9.260(I)(B) ("[T]he defendant did not reasonably and actually believe that he [she] was in immediate danger of great bodily harm or death"). See also Commonwealth v. Monico, 373 Mass. 298, 302 (1977) ("[I]t is the familiar principle that the reasonableness of the force used in defense must be commensurate with the harm threatened which governs").
2. Sufficiency of the evidence. "When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt . . . .' Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 152 (2008), quoting Commonwealth v. Laro, 68 Mass. App. Ct. 556, 558 (2007), and Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979); Latimore, supra at 677-678. To satisfy its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, the Commonwealth must establish that at least one of the following factors did not exist: (1) the defendant had a reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; or (3) the degree of force used was reasonable in the circumstances. King, 460 Mass. at 83. As long as the evidence meets the Latimore sufficiency standard, "an appellate court never speculates as to the weight actually accorded by the jury to the properly admitted evidence." Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 534 n.6 (2000).
Here, the evidence permitted a rational conclusion that: (1) the defendant did not fear for his personal safety where the victim was turned away from him, casually leaned against a refrigerator, stood with his hands in his pockets, and otherwise did not approach the defendant in a manner that suggested imminent danger of harm; or (2) the defendant did not use all reasonable means to avoid combat when, as noted above, he reasonably could have waited for police to arrive; or (3) where the police were en route and the victim had not approached the defendant in any threatening manner, the defendant used unreasonable force in shoving the victim hard enough to knock him backwards. Accord Commonwealth v. Orbin O., 478 Mass. 759, 763 (2018) (rejecting claim that child could assert self-defense for battery against instructor who blocked classroom exit). In the light most favorable to the Commonwealth, there was sufficient evidence to support the jury's conclusion that the defendant did not act in self-defense.
Judgment affirmed.
By the Court (Meade, Milkey & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 5, 2021.