Opinion
15-P-614
03-28-2016
COMMONWEALTH v. LADJUAN GUICHARD.
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
The defendant, Ladjuan Guichard, appeals from his conviction in the District Court of assault and battery on a correctional facility employee, in violation of G. L. c. 127, § 38B, claiming that the judge erred in denying his request for a jury instruction on self-defense. The defendant also contends that the video evidence depicting the assault and battery, which was played for the jury, had been altered, thus violating his due process rights and depriving him of the effective assistance of counsel due to defense counsel's failure to investigate the videotape. We affirm.
The latter contention is brought pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).
Background. At approximately 8:00 A.M. on October 5, 2012, the victim, Sergeant Timothy O'Leary, was stationed at the podium on the main floor of the Essex County house of correction. A red line is painted on the floor around the podium. Inmates know that they may not cross the red line without permission from a correction officer. While seated at the podium, O'Leary sensed something behind him. He turned around and saw the defendant, in "an area that is completely off limits to anybody except an officer," with his hand on the glass panel that controls all the doors and the emergency button to the unit. O'Leary ordered the defendant to move back. The defendant "got very aggressive" and said, "[D]on't you fucking tell me what to do." O'Leary ordered the defendant to "lock in," which required the defendant to immediately return to his cell. The defendant did not comply, and instead, while O'Leary remained a "good distance" away, said, "[D]on't you fucking put your hands on me." O'Leary called out "inmate refusal" over his radio, but the radio failed. The defendant subsequently grabbed O'Leary around the waist, picked him up, and slammed him to the ground. In an adjacent room, O'Leary's partner, Edilberto Nunez, heard O'Leary's keys jingling, and saw the defendant "with his fists clenched." Nunez ran into the room, tackled the defendant, and worked with O'Leary to restrain and handcuff the defendant. As a result of the attack, O'Leary sustained injuries to his right knee (requiring arthroscopic surgery), right arm, elbow, and wrist.
A video of the incident was admitted in evidence without objection and played for the jury. The video showed, inter alia, the defendant crossing the red line, picking O'Leary up, and slamming O'Leary to the ground.
This panel of the Appeals Court has viewed the video.
At the close of the Commonwealth's case, the defendant filed a request for jury instructions, including a self-defense instruction. After discussing the request with counsel, the judge denied the request, stating as follows:
"I had a chance to check my notes and look and think through the evidence and I'm trying to sort out whether in my view there was any basis at all for a self defense instruction, because it seems to me if it's a close call better to err on the side of caution and give it. I just don't see it here. I looked at my notes and I thought through the evidence and not that the Defendant is required to testify to put that into evidence; if there's other evidence that would suggest a self defense, that instruction would be appropriate. But the only actual evidence I had as far as I could tell was that the first physical contact was initiated by Mr. Guichard to the extent that any contact existed and that even, it seemed to me, if this were not a situation where this was a correctional officer inside a facility dealing with an inmate there would be no self defense; and certainly with the heightened level of -- or the heightened requirement as it relates to the relationship between an inmate and a correctional officer, it seems to me that it's not there. So I am not going to give that. I will certainly save your rights on that."Citing Commonwealth v. Francis, 24 Mass. App. Ct. 576, 579 (1987), the defendant claims that the judge's refusal to provide a self-defense instruction deprived him of his entire trial defense.
Discussion. "A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998). "To be entitled to an instruction about self-defense by nondeadly force, the evidence, taken in the light most favorable to the defendant, must warrant reasonable apprehension by the defendant that he (1) is in danger of personal harm; (2) can avoid that harm only by resort to force; (3) attempted to avoid physical combat or was unable to do so before resorting to force; and (4) used only the force necessary in the circumstances." Commonwealth v. Alebord, 49 Mass. App. Ct. 915, 915-916 (2000).
In the present case, we agree with the judge that no view of the evidence warranted a self-defense instruction. The evidence adduced at trial demonstrated that the defendant was in no danger of personal harm, was able to retreat behind the red line or to his cell as instructed by O'Leary, appeared to initiate rather than attempt to avoid physical combat, and used excessive force by slamming O'Leary to the floor.
The defendant did not testify at the trial.
Even assuming, arguendo, that the prerequisites of self-defense existed, "[t]he right of an individual to defend himself is modified where a police or correction officer is involved. Even in circumstances where the defendant would be justified in using force in lawful defense of his person against a third person, he may not do so against a police or correction officer unless the officer uses excessive or unnecessary force." Francis, supra. Here, we agree with the judge that the record is devoid of any evidence that O'Leary used any force, much less excessive or unnecessary force. The judge applied the correct standard and did not err in refusing to give a self-defense instruction.
The defendant argues that because the defendant told O'Leary, in profanity-laced language, "to not put his hands on him," the evidence supported a reasonable inference that O'Leary not only touched the defendant, but used excessive force in doing so. The defendant cites to no authority for such a proposition, points to no evidence from which such an inference could be drawn, and thus we are unpersuaded. See Commonwealth v. Donlan, 436 Mass. 329, 337 (2002) (evidence needed to place element in dispute "cannot be the mere possibility that the jury might not credit a portion of the Commonwealth's evidence").
Finally, the defendant's claim that "the video used against him at trial had been altered" is without merit. The assertion is not supported by the record, and thus does not warrant appellate relief.
See note 1, supra.
Judgment affirmed.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2016.