Opinion
18-P-1297
12-13-2019
COMMONWEALTH v. Rafael A. AGUILAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant, Rafael A. Aguilar, was convicted of assault and battery by means of a dangerous weapon. On appeal, he primarily contends that misstatements in the judge's instructions concerning the law of self-defense created a substantial risk of a miscarriage of justice. We affirm.
Background. The defendant and Joel Maldonado (victim) were coworkers at a waste management company. On November 23, 2016, the victim was driving a sanitation truck for work. His supervisor instructed him to pick up another coworker, Jose Lemos, and the defendant at a Dunkin Donuts in the Dorchester section of Boston. According to the victim, the defendant was angry with him, "came into the truck furious," and threatened to kill the victim. The victim pulled the truck over, exited, and went around the front of the truck to try to calm the defendant. The defendant grabbed a knife from his backpack, and threatened to slice the victim's neck. The victim tried to flee as the defendant "was coming right after [him] trying to stab [him]." The defendant stabbed the victim through the right hand, with a lengthy knife. The victim was unarmed.
According to Lemos, the victim was angry because he had to wait for Lemos and the defendant.
Boston police officers arrived at the scene and applied pressure to the victim's wound until emergency medical technicians (EMT) arrived. An EMT arrived and provided emergency care. The victim had suffered "a puncture wound through and through his hand. ... It was bloody, macerated tissue." The victim told the EMT that "he was protecting his face." According to the EMT, the physical wound corroborated the victim's description of the attack.
An officer retrieved the knife used in the stabbing from the sanitation truck.
EMTs transported the victim to Carney Hospital. The victim was transferred to St. Elizabeth's Hospital because of the size of the wound. His right hand was also fractured from the stabbing.
Through cross-examination, the defendant claimed that he acted to protect himself from the victim. He elicited testimony from Lemos to the effect that the victim was angry, "ran over to [the defendant]," and at some point in time "went on top" of the defendant.
The defendant did not testify at trial or present witnesses.
Discussion. Prior to his final jury charge, the judge advised that he would read the District Court model jury instruction on self-defense and provide the nondeadly force instruction. See Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009). The judge further advised that he would include the supplemental instruction to the model jury instruction on "[r]easonable apprehension" in his jury charge. Defense counsel stated that he was "satisfied" with the proposed instructions.
The judge denied the Commonwealth's request for an instruction on the use of deadly force in self-defense.
As promised, the judge then read the model jury instruction on self-defense and the use of nondeadly force verbatim to the jury. Next, the judge read the supplemental instruction on reasonable apprehension. However, he added language for where use of deadly force is at issue. Specifically, he instructed, in relevant part:
"A person cannot lawfully act in self-defense unless he is attacked or is immediately about to be attacked. The Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act, either words, a gesture, or some other action that gave rise to a reasonable belief of attack or immediate danger of great bodily harm or death" (emphasis added).
The defendant now claims that the judge erred by adding the deadly force language to the reasonable apprehension instruction. As the defendant did not object to the instructions provided in the judge's final charge, our review is limited to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We evaluate jury instructions "as a whole, looking for the interpretation a reasonable juror would place on the judge's words," Commonwealth v. Glacken, 451 Mass. 163, 168-169 (2008), quoting Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), and "do not consider bits and pieces of the instruction in isolation." Commonwealth v. Young, 461 Mass. 198, 207 (2012). "[T]he adequacy of instructions must be determined in light of their over-all impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980).
Here, we discern no error. In the light most favorable to the defendant, the evidence indicated that the victim attacked the defendant (the victim "went on top" of the defendant). The evidence, including the defendant's use of a knife and stabbing of the victim thereby fracturing and macerating his hand, warranted an instruction on the use of deadly force. See Commonwealth v. Grassie, 476 Mass. 202, 209 n.6 (2017) (no dispute that use of knife constituted deadly force); Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007) (stabbing victim with knife constituted use of deadly force); Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644 n.3 (2002) (same). The defendant was not entitled to the nondeadly force instruction, and the cases he relies upon are not to the contrary. Compare Commonwealth v. Noble, 429 Mass. 44, 45-47 (1999) (defendant entitled to nondeadly force instruction where defendant strangled victim and did not use weapon); Commonwealth v. Cataldo, 423 Mass. 318, 322-323 (1996) (defendant entitled to nondeadly force instruction where some evidence indicated that defendant drew and pointed his handgun at police officer but did not fire it); Commonwealth v. Baseler, 419 Mass. 500, 503 (1995) (judge erred in only giving deadly force instruction where defendant was charged with both assault and battery and assault and battery by means of dangerous weapon, and evidence was sufficient to raise issue of self-defense).
In Commonwealth v. Allen, 76 Mass. App. Ct. 9 (2009), this court held that the defendant was not entitled to a nondeadly force self-defense instruction. Id. at 12-13. Because uncontroverted testimony at trial established that "the defendant ‘tried to hit’ [the victim] with a ten-inch-long folding knife after opening it," the court concluded that there was no genuine dispute of material fact whether the attempt constituted deadly force. Id. at 13. That reasoning applies to this case. The defendant did not testify at trial or present witnesses, and nothing elicited on cross-examination contradicted the evidence that warranted a deadly force instruction. The defendant's counsel also acknowledged at trial that the defendant stabbed the victim. See Commonwealth v. Walker, 443 Mass. 213, 217 (2005) ("the nondeadly force standard is used only where nondeadly force is used"). Compare Commonwealth v. Hubbard, 45 Mass. App. Ct. 277, 282 (1998) (holding that "whether the defendant, in holding the unloaded rifle at ‘port arms,’ intended to use that weapon in a deadly manner" is question for jury).
Assuming, arguendo, that the defendant was entitled to a nondeadly force instruction only, and that adding the words "of great bodily harm or death" to the instruction constituted error, we discern no substantial risk of a miscarriage of justice. The evidence was strong and the defendant's claim of self-defense was marginal at best. See Commonwealth v. King, 460 Mass. 80, 85 (2011) (under substantial risk analysis, we consider, inter alia, strength of Commonwealth's case to determine whether outcome of trial might have been different absent error, and "whether, in the context of the entire trial, it is reasonable to conclude that the error materially affected the verdict"). Moreover, the instructions, viewed as a whole, were comprehensive, explained and reiterated the Commonwealth's burden to prove that the defendant did not act in self-defense, and otherwise properly conveyed the law of self-defense. Finally, it is not reasonable to conclude that the alleged error materially affected the verdict where the evidence revealed (and the Commonwealth proved) that the defendant did not avail himself of all reasonable means to avoid physical combat, and used more force to defend himself than was reasonably necessary in the circumstances. See Commonwealth v. Houston, 332 Mass. 687, 690 (1955) (deadly force may be used only where person has "a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm").
"[J]urors are presumed to follow instructions" given by the judge. Commonwealth v. Britto, 433 Mass. 596, 612 (2001).
For the reasons discussed herein, we also discern no substantial risk of a miscarriage of justice from the prosecutor's closing argument, and see no merit to the claim of ineffective assistance of counsel. Where, as here, an ineffective assistance of counsel claim was not first raised through a motion for new trial, it can only be resolved on direct appeal "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Stone, 70 Mass. App. Ct. 800, 809 (2007), quoting Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124, cert. denied, 540 U.S. 1009 (2003). We find no such basis here.
We note, however, that the judge in this case held a final charge conference after the parties' closing arguments. The better practice is to conduct and complete the charge conference, whenever possible, prior to closing arguments to enable the parties to conform their arguments to the legal standards provided to the jury.
In short, the defendant's claims are unavailing.
Judgment affirmed.