Opinion
11-P-1448
04-24-2012
COMMONWEALTH v. DEMITRIOS S. GALATIS.
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 appeals his conviction, after a District Court jury trial, of assault and battery as a lesser included offense of the charged crime of assault and battery by means of a dangerous weapon. His sole argument is that the trial judge erroneously excluded evidence of a ruling (by a prior judge) denying the victim's request for an extension of a temporary abuse prevention order. We affirm.
The charge against the defendant arose from an incident in which the defendant sprayed mace in the face of the victim, his neighbor, when she walked over to him in his car as he was about to leave the parking lot of the complex where they both lived. According to the victim, the two had been engaged in a sexual relationship in the past, during which the defendant had taken provocative photographs of her that he refused to return, and she peacefully was trying to speak with him about this when he sprayed her. The defendant testified that the sexual relationship and the photographs were a figment of the victim's imagination, that she had been harassing him and his girlfriend, and that he sprayed her in self-defense when she grabbed his collar and tried to reach into the car.
As a result of the incident, the victim applied for an abuse prevention order. After granting a temporary order, the prior judge declined to extend it, writing in the margin: 'Both Ptys present -- insufficient rel'ship between [plaintiff and defendant] (appears [plaintiff] fabricated Rel'ship).' It is this ruling that the defendant sought to introduce in evidence.
The trial judge's exclusion of the ruling was a proper exercise of discretion. As he reasoned, the admission of an order based upon what a judge believed about the nature of the parties' relationship would have placed a judicial imprimatur on a credibility determination that was for the jury to make. See Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 515 (2001). Furthermore, the nature of the relationship was collateral to the only genuine issue in the case: whether the elements of self- defense were present in the circumstances.
'The elements of self-defense, where nondeadly force is used, are (1) a reasonable concern for one's personal safety; (2) the use of all reasonable means to avoid physical combat; and (3) the degree of force used must be reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.' Commonwealth v. Adams, 458 Mass. 766, 774-775 (2011) (internal footnote and citations omitted).
Judgment affirmed.
By the Court (Cohen, Green & Graham, JJ.),