Opinion
11-P-386
04-10-2012
COMMONWEALTH v. MICHAEL CUBERO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury, rejecting the defendant's claim of defense of another, convicted him of assault and battery, G. L. c. 265, § 13A, as a lesser included offense of aggravated assault and battery. On appeal, he contends that the judge, both during the initial jury instructions and in response to a jury question submitted during deliberations, provided the jury with incorrect and contradictory formulations of the affirmative defense of defense of another, thereby creating a substantial risk of a miscarriage of justice. We affirm.
Background. The incident culminating in the defendant's arrest began on February 22, 2010, after the victim, Robert Coffman, a person known to the defendant, allowed the defendant to borrow his car. The defendant promised to put gas in the car before returning it at a specific time. Eventually, the defendant returned the car, but an argument ensued involving the parties and their respective girlfriends regarding the amount of gas used by the defendant. According to testimony from the defendant's girlfriend, Jessica Ferreira, Coffman pushed her and stepped toward her. In response, the defendant walked over to Coffman and punched him in the face, sending him to the hospital.
Discussion. It is clear that, if any view of the evidence would provide support for an affirmative defense, a defendant is entitled to such an instruction. Commonwealth v. Martin, 369 Mass. 640, 644 (1976). The proper instruction of defense of another provides that '[a]n actor is justified in using force against another to protect a third person when (a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.' Id. at 649.
The judge's initial instructions on defense of another informed the jury that the defendant was privileged to use force against the victim in order to protect Ferreira if (1) a reasonable person in the defendant's position would have believed that the use of force was necessary to protect Ferreira from imminent harm, and, (2) if, under the circumstances, a reasonable person would have believed that Ferreira would have been justified in using such force to protect herself. If those conditions were met, the defendant was permitted to use force to defend Ferreira, provided such force was not punitive, retaliatory, or excessive. However, the judge's instructions regarding self-defense were flawed.
The judge instructed the jury, in part, as follows: '[I]n order for someone to exercise a right of self-defense and take advantage of that defense, the Commonwealth must prove these things beyond a reasonable doubt. One of these following three things the Commonwealth must prove beyond a reasonable doubt. That the person did not reasonably believe she was being attacked or [was] immediately about to be attacked, and that her safety was in immediate danger, or that she did not do everything reasonable under the circumstances to avoid physical combat before resorting to force. And third, that . . . more force was used to defend the person than was reasonably necessary in the circumstances.' The Commonwealth concedes, as it must, that the defendant's ability to invoke the defense of self-defense 'is obviously not dependent on the Commonwealth's proving anything,' and that 'this portion of the instructions, if considered in isolation, is confusing and even, if read in a literal-minded way, erroneous. . . . The judge quite obviously mis-spoke here.'
Later, in response to a juror's question asking for clarification of the self-defense instruction and burden of proof, the judge provided the jury with a clear and correct instruction regarding when a person could act in self-defense. However, as the defendant claims, the judge erred by essentially informing the jury that 'a defendant who raises a claim of defense of another steps in the shoes of the person he defends.' As stated above, a person may use reasonable force when that is necessary to help another person, if it reasonably appears that the person being aided is in a situation where the law would allow him to act in self-defense.
The Commonwealth appears to concede the statement was erroneous, but claims that the instruction in context, was not misleading.
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The defendant did not object; therefore, we review to determine whether the instruction was erroneous and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Whitman, 430 Mass. 408, 746, 755 (2006). Although a portion of the instructions was erroneous, there is little likelihood that the jury would have misunderstood the correct import of the entire charge. See ibid. Viewing the instructions as a whole, we conclude that the instruction, though flawed, conveyed to the jury the essential elements of the affirmative defense of defense of another.
Moreover, the errors did not create a substantial risk of a miscarriage of justice. Under any view of the evidence, the amount of force used by the defendant against Coffman was excessive. See Commonwealth v. Adams, 458 Mass. 766, 774-775 (2011). The defendant, a thirty year old, 200 pound man, coming to the aid of his girlfriend who was pushed, struck the smaller Coffman, a man in his mid-fifties, with such force that Coffman was transferred to a hospital for extensive surgical reconstruction of his eye socket. Clearly, the force used by the defendant was excessive, and any error in the instructions would not have affected the outcome. See Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Judgment affirmed.
By the Court (Graham, Grainger, & Hanlon, JJ.),