Opinion
10-P-1500
10-21-2011
COMMONWEALTH v. MARCO A. ELLISON.
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
The defendant, Marco Ellison, was convicted on one count of assault and battery and one count of assault and battery by means of a dangerous weapon. G. L. c. 265, § 15A(b). He appeals, arguing that the trial judge's failure to instruct the jury on self-defense requires reversal. We agree, and reverse both convictions.
Discussion. The defendant requested a self-defense instruction at trial, and by objecting to the instructions as they were ultimately given, he preserved the issue on appeal. Therefore, the standard of review is whether the judge's decision not to give the self-defense instruction resulted in prejudicial error. See Commonwealth v. Rosado, 428 Mass. 76, 79 (1998); Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004). We conclude that it did.
To be entitled to a jury instruction on self-defense by nondeadly force, the defendant must produce evidence that he (1) had 'a reasonable concern over his personal safety'; (2) 'used all reasonable means to avoid physical combat'; and (3) 'used no more force than was reasonably necessary in all the circumstances of the case' (citations omitted). Commonwealth v. King, 77 Mass. App. Ct. 194, 197-198 (2010). In determining whether the self-defense instruction is warranted, the court must evaluate the evidence 'in the light most favorable to the defendant.' Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 915 (2000). See Commonwealth v. Burbank, 388 Mass. 789, 794 (1983).
'In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true.' Commonwealth v. Pike, 428 Mass. 393, 395 (1998).
At trial, the defendant testified that the victim tripped him as he exited the bus. When the defendant turned around to ask the victim why he had tripped him, the victim first sneered and then 'struck [him] several times in the face.' The defendant testified that he tried to defend himself, but that the victim grabbed onto him and would not let go. The defendant stated that he only kicked the victim in an effort to break free from his grasp.
Multiple witnesses stated that the victim is over one foot taller than the defendant. In his opening statement, defense counsel described the height and weight difference between the victim and the defendant and asked, 'If you have someone who is five foot four and one hundred forty pounds . . . what is that person going to do in terms of defending himself?'
Viewed in the light most favorable to the defendant, the evidence presented at trial was sufficient to raise the issue of self-defense. Indeed, Ellison's theory of the case depended almost entirely on the issue of self- defense. A self-defense instruction should have been given.
When a defendant and victim testify to 'a different sequence of events,' the evidence can still be sufficient to entitle the defendant to a self-defense instruction. King, supra, at 196. In King the victim alleged that during a physical altercation at a bowling alley the defendant had struck him first, while the defendant alleged that it was the victim who had thrown the first punch. Id. at 196-197. The court held that 'credibility issues aside, the defendant was entitled to a nondeadly force self-defense instruction' (emphasis added). Id. at 197. See Pike, supra, at 395.
It should be noted that a self-defense instruction can still be available to a first aggressor. Commonwealth v. Bray, 19 Mass. App. Ct. 751, 761-762 (1985).
In this case, as in King, the defendant had properly raised the issue of self-defense and was entitled to an instruction on the law relevant to his theory of the case. The absence of such an instruction constituted prejudicial error. For the foregoing reasons, the judgments are reversed and the verdicts are set aside.
So ordered.
By the Court (Trainor, Brown & Carhart, JJ.),