Opinion
15-P-1686
03-07-2017
COMMONWEALTH v. Jessie TORRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was convicted of assault and battery on his grandmother. He appeals, arguing that the Commonwealth failed to disprove that he acted in self-defense. We affirm.
The complaint charged the defendant with (1) assault and battery on a person age sixty or older, with injury, and (2) intimidation of a witness. The judge found him not guilty of intimidation and of so much of the assault and battery complaint as charged that the victim was age sixty or older and that she was injured.
At trial, the judge heard evidence from two Pepperell Police Department officers. On April 18, 2013, Officer Jeremiah Friend was directed to an address where he observed two women on the front steps; one woman, "an elderly senior citizen," was crying. Friend spoke with both of the women and he observed that the victim, the woman who was crying, had "a swollen face and red marks on her skin and her upper body ... just on her chest area." She was taken to the hospital by ambulance.
The victim gave a statement to the police within about twenty minutes of the incident, but the Commonwealth's pretrial motion in limine to admit those statements as excited utterances was denied and the victim did not testify.
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Sergeant William Greathead, the midnight patrol supervisor also testified. He said that he was on duty when the defendant came into the station. After he was given Miranda rights, the defendant agreed to speak with him. The defendant said that he had gotten into an altercation with his grandmother regarding her care of his daughter. According to the defendant, his grandmother slapped him and then he pushed her. She began to throw things at him, including her cellular telephone, and he broke it. The defendant told police officers that he then got dressed and began to leave with his daughter, but his grandmother blocked the door. He pushed her out of the way and left with his daughter.
The defendant bears the burden of production when asserting an affirmative defense. See Commonwealth v. Cabral , 443 Mass. 171, 178 n.15 (2005). According to him, he pushed his grandmother away from the door when he left the house. Given that, regardless of what had occurred earlier, before he got dressed, and even taken in the light most favorable to the defendant, we fail to see the evidence as fairly having raised the issue of self-defense. That is, there was neither a subjective nor objective basis, as is required, upon which to conclude that the twenty year old defendant's personal safety was at risk from his grandmother at the time that he pushed her out of the way. See, e.g., Commonwealth v. Adams , 458 Mass. 766, 775 (2011) ; Commonwealth v. Mellone , 24 Mass. App. Ct. 275, 282 (1987) ; Commonwealth v. Alebord , 49 Mass. App. Ct. 915, 915-916 (2000). Nor does it appear that the defendant did anything to avoid pushing her, such as asking her to move or seeking a second means of egress. See id . at 916. See also Commonwealth v. Zhan Tang Huang , 87 Mass. App. Ct. 65, 66 (2015).
Even if we were to assume that the evidence was sufficient to meet the minimal requirements necessary to raise the issue, evaluating the evidence was in the hands of the fact finder, here, the judge. We are satisfied that there was sufficient evidence for him to conclude that the Commonwealth had met its burden to prove the absence of self-defense beyond a reasonable doubt.
Judgment affirmed .