Opinion
11-P-468
02-16-2012
COMMONWEALTH v. JUDITH HERNANDEZ.
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
After a jury-waived trial, the defendant was found guilty of assault and battery in violation of G. L. c. 265, § 13A(a). On appeal, the defendant claims that the Commonwealth did not meet its burden to disprove self-defense beyond a reasonable doubt. We affirm.
The defendant was found not guilty of malicious destruction of property.
The defendant may use nondeadly force in self-defense if '(1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) 'the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness." Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting from Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). The Commonwealth then 'bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense, by establishing that at least one of the three factors did not exist . . . .' Ibid.
The defendant claims that the evidence was not sufficient to satisfy a rational trier of fact beyond a reasonable doubt that she did not act in self-defense. We disagree. Even though the defendant may have reached her initial burden, therefore placing the burden on the Commonwealth to disprove self-defense, '[t]he fact finder . . . ultimately remains free to disbelieve (or credit) any evidence offered by either party relating to the availability of such defenses in a particular case.' Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 249 (1999).
Here, like Haddock, there was conflicting testimony about whether the victim pushed the defendant first or tried to provoke her with words. In this case, the judge specifically credited the three Commonwealth witnesses, who all testified that other than using the staircase where the defendant was seated, the victim did not initiate the contact. The judge also stated that even if the victim came down the stairs and brushed the defendant's leg or hit her, this alone was not enough to warrant a closed-fist punch to the victim. 'As we review the evidence brought out at trial, the judge may have found that the defendant's actual belief that the situation required the use of [non]deadly force was simply not objectively warranted.' Ibid. The Commonwealth presented sufficient evidence to enable a rational fact finder to find beyond a reasonable doubt that the defendant did not act in self-defense.
Judgment affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),