Opinion
13-P-1905
03-18-2015
COMMONWEALTH v. TALLI CLEMONS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On appeal from his conviction of assault and battery by means of a dangerous weapon, the defendant claims error in the judge's instruction to the jury regarding self-defense. The defendant lodged no objection to the instruction at trial; accordingly, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Shea, 467 Mass. 788, 790-791 (2014).
As a threshold matter, we observe that the Commonwealth is correct in its assertion that the judge's instruction on self-defense included each of the required elements of the defense, as articulated in Commonwealth v. King, 460 Mass. 80, 83 (2011). The self-defense instruction itself was a correct statement of the law, and therefore not in error.
To the extent the defendant argues that the judge's inclusion of an instruction regarding a fistfight by agreement was unwarranted by the evidence, and could have confused or distracted the jury, we discern no cause to disturb the judgment. Though that portion of the instruction is not a model of clarity, it (like the principal instruction on self-defense) correctly states the law. As a general matter, "[t]he necessity, scope, and character of a judge's supplemental jury instructions are within his or her discretion." Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). In the context of the evidence as a whole, and the instructions as a whole, and particularly in light of the defense theory that the defendant and victim engaged in an altercation after exhibiting mutual animus, we discern no substantial risk of a miscarriage of justice resulting from the judge's inclusion of a legally correct instruction on self-defense in a fistfight by agreement. Indeed, if anything, the instruction furnished a basis for the jury to conclude that the defendant was entitled to act in self- defense even if they believed that the defendant and the victim initiated the fight by agreement; in that respect, in addition to being a correct statement of the law, the instruction was potentially favorable rather than prejudicial to the defendant.
We note that the trial judge tape recorded his instructions for the benefit of the jury, and appeared to administer his instructions from a prepared text. Nonetheless, the instructions in several instances contain garbled syntax, suggesting either that the judge misread his prepared instructions or that the court reporter mistranscribed them. However, neither party has attempted to reconstruct or correct the record, pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979), and we accordingly consider the defendant's claim on the basis of the instruction as it appears in the transcript.
Judgment affirmed.
By the Court (Green, Grainger & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 18, 2015.