Opinion
16-P-250
05-22-2017
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial in the District Court, the defendant was convicted of assault and battery on his girl friend (victim). He appeals from the order denying his motion for new trial, arguing his conviction was the product of speculation and conjecture and based on findings for which there is no record support. We affirm.
Following his conviction, the defendant filed a motion for new trial. According to the docket, a hearing on that motion was held on December 18, 2014. The judge then entered a written margin order stating, "After a hearing, this motion is denied. Findings of fact stated on the record." The defendant timely appealed the denial of his motion for new trial, but failed to provide this court with a transcript of that hearing.
Discussion. In an action for assault and battery, once the issue of self-defense has been properly raised, the Commonwealth bears the burden of demonstrating the defendant did not act in self-defense. Commonwealth v. King, 77 Mass. App. Ct. 194, 199-200 (2010). The Commonwealth can meet this burden by proving beyond a reasonable doubt that "the defendant [did] not avail [ ] himself of all proper means to avoid physical combat before resorting to the use of force." Id. at 200. Importantly, "the right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless that person withdraws in good faith from the conflict and announces his intention to retire." Commonwealth v. Maguire, 375 Mass. 768, 772 (1978).
The defendant here argues that the judge failed properly to consider whether the defendant acted in self-defense based on the speculative finding that he and the victim engaged in "mutual combat," meaning "a fistfight by agreement." , Although he did not directly appeal his conviction, the defendant's argument is essentially an attack on the sufficiency of the evidence as it relates to self-defense. Thus, we review whether any rational trier of fact could have found the Commonwealth proved beyond a reasonable doubt the defendant did not act in self-defense. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
We assume for purposes of our review that the defendant properly raised the issue of self-defense at trial.
The defendant relies on the Massachusetts Superior Court Criminal Practice Jury Instructions § 5.4 (Massachusetts Cont. Legal Educ. 2d ed. 2013), for this definition. The instruction states that in that context, self-defense is generally precluded.
The defendant's argument is unavailing. It is clear from the judge's overall statements that his use of the term "mutual combat" did not indicate any speculation or conjecture that the couple agreed to a duel. Most importantly, the record reflects the judge's appropriate consideration of self-defense as well as sufficient evidence for a rational trier of fact to find the defendant did not act in self-defense.
A more logical interpretation of the judge's use of the phrase is found in the context of homicide and provocation in which the Supreme Judicial Court has stated, "When two meet not intending to quarrel and angry words suddenly arise, and a conflict springs up in which blows are given on both sides, without much regard to who is the assailant, it is a mutual combat." Commonwealth v. Webster, 5 Cush. 295, 308 (1850), abrogated on other grounds by Commonwealth v. Russell, 470 Mass. 464 (2015).
In announcing his verdict, the judge found, "there may have actually been assault[s] and batteries committed by each of these individuals." Testimony from the defendant and the victim, as well as the responding officer's testimony which corroborated portions of each party's version of events, provided ample support for this finding. As a result of this evidence, the judge placed responsibility on both the defendant and the victim and found that "neither of them is acting in self-defense." It is therefore clear that the judge reasonably inferred that due to each party's intentional conduct (regardless whether properly referred to as "mutual combat"), neither the defendant nor the victim "availed himself [or herself] of all proper means to avoid physical combat before resorting to the use of force." Commonwealth v. King, 77 Mass. App. Ct. at 200. See Commonwealth v. Milo M., 433 Mass. 149, 152 (2001) (In a bench trial, "the legal framework in which facts are to be found is not generally stated with the precision and amplitude of instructions to a jury [and] it is presumed that the judge as trier of fact applies correct legal principles"). The defendant cites no authority, nor are we aware of any, in which a fact finder is prohibited from concluding the defendant did not act in self-defense in this context.
Notably, the culpability of the victim does not negate the illegality of the defendant's actions. See Commonwealth v. Collberg, 119 Mass. 350, 353 (1876) (consensual fight between friends is no defense to cross complaints of assault and battery; "such license is void, because [assault and battery] is against the law").
The judge also reasonably found that the defendant was not entitled to self-defense because he was the initial aggressor. During her testimony, the victim explained that the defendant initiated physical contact when he punched her in the face. The defendant testified that he never punched her, and it was the victim who first put her finger in his face and then grabbed him by his shirt and neck. The defendant did acknowledge he grabbed the victim's hands in response which caused her to fall into the closet. Later, during the reading of the verdict, defense counsel argued that the defendant's testimony supported his self-defense theory. The judge responded, "based upon the testimony, that would have been the push [into the closet], but based upon the testimony and considering even on cross-examination, considering the punch, whether it was one punch, two punches, I will accept there was one punch. But I will accept that."
The responding officer testified that the victim told him the defendant punched her in the face twice.
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It is clear from this exchange that regardless whether the defendant grabbed the victim to defend himself, the judge found the victim's testimony about the defendant's initial punch to be credible. This finding is consistent with the judge's statement that he found the defendant credible "to some degree." Because no evidence was presented to show that the defendant withdrew in good faith and announced his intention to retire, he was not entitled to claim self-defense. Commonwealth v. Maguire, 375 Mass. at 772.
Conclusion. The judge did not engage in speculation or conjecture, and there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that the defendant did not act in self-defense.
Judgment affirmed.
Order denying motion for new trial affirmed.