Opinion
16-P-599
01-20-2017
COMMONWEALTH v. Shawn W. HILL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Shawn W. Hill, appeals from convictions of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A ; assault by means of a dangerous weapon, G. L. c. 265, § 15B ; and assault and battery, G. L. c. 265, § 13A(a ). He contends that the judge's instructions on self-defense were erroneous and that the evidence of recklessness was insufficient to sustain the conviction of assault and battery by means of a dangerous weapon. We affirm.
Self-defense instruction . The defendant contends that a substantial risk of a miscarriage of justice occurred because the judge instructed the jury that "a person cannot lawfully act in self-defense unless he is attacked or is immediately about to be attacked." The defendant correctly notes that an actual attack is not a prerequisite for self-defense, and that a person may act in self-defense if the person reasonably believes that a physical attack is imminent. See Commonwealth v. Glass , 401 Mass. 799, 808-809 (1998) ("an overt act against the defendant constituting an assault or threat"); Commonwealth v. Williams , 450 Mass. 879, 882 (2008).
However, we discern no substantial risk that the judge's instructions caused the jury to believe that the Commonwealth could disprove self-defense simply by showing that the victim did not actually attack the defendant. The judge began the self-defense instruction by explaining that the Commonwealth bears the burden of disproving self-defense beyond a reasonable doubt and could do so in any of three ways. The judge stated, "The first alternative is that the defendant did not reasonably believe he was being attacked or immediately about to be attacked, and that his safety was in immediate danger" (emphasis supplied). This is the very concept that the defendant now claims was absent from the deliberations.
Explaining the concept further, the judge then gave the instruction the defendant complains of, suggesting that the jury were required to find an actual or imminent attack. However, in the very next sentence, the judge clarified that the Commonwealth had the burden to prove "that there was no overt act, either words, a gesture, or some other action, that gave rise to a reasonable belief of attack or imminent danger " (emphasis supplied).
We evaluate jury instructions as a whole, and "do not consider bits and pieces of the instruction in isolation." Commonwealth v. Young , 461 Mass. 198, 207 (2012). We are confident that "on the whole, a reasonable juror would not have misunderstood the law" of self-defense. Id . at 211.
Sufficiency of the evidence . Assault and battery may be proved using either of two theories: intentional use of force, or "the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another." Commonwealth v. Ford , 424 Mass. 709, 711 (1997), quoting from Commonwealth v. Bruno , 396 Mass. 622, 625 (1986). The jury were instructed on assault and battery by means of a dangerous weapon as a result of reckless conduct.
The defendant contends that the evidence was insufficient to prove that he acted recklessly. We disagree. The flaw in the defendant's argument is that he views the evidence in the light most favorable to him, relying entirely on the testimony of his own witnesses that he "picked up the knife and had it pointing downward toward the floor as he began to walk toward the front door." But "[w]e review a claim of sufficiency of the evidence under the oft-repeated Latimore standard, viewing the evidence in the light most favorable to the Commonwealth." Commonwealth v. AdonSoto , 475 Mass. 497, 509 (2016), citing Commonwealth v. Latimore , 378 Mass. 671, 676-677 (1979). "It is for the jury to assess the weight and credibility of the evidence." Ibid . Viewed in the proper light, ample evidence supported the guilty verdict.
According to the testimony of the victim, Jack Bergert, and his wife, Bobbi Bergert, at the end of a heated argument in the Bergerts' living room the defendant went after Bergert with a knife in the presence of the their daughter Jacquelyn (who was the defendant's girlfriend) and their two small grandchildren (both Jacquelyn's children, one of whom was also the defendant's child). Jacquelyn's older child had been sitting on the defendant's knee when the defendant "tossed" him to the floor and grabbed a knife with a blade five to six inches long.
Bergert testified, "He literally came after me with a knife. I was in fear for my life." The defendant "come [sic ] running at [him] with it," approaching "within a foot and a half." The defendant was holding the knife with the blade "down in this position (demonstrating)," and "he went basically over to the door, and stood there and held the knife up, and said, ‘Come on outside, motherfucker, and I'll fuck you up.’ " Jacquelyn stepped in between the defendant and her father, and a struggle ensued as both Bergert and Jacquelyn tried to take the knife away from the defendant. Bergert ended up with cuts on his finger and thumb requiring stitches.
The evidence recited above was sufficient to prove that the defendant intentionally engaged in wilful, wanton, and reckless conduct, that is, "the defendant's ‘conduct involve[d] a high degree of likelihood that substantial harm will result to another,’ or that it constituted a disregard of probable harmful consequences to another, and that, as a result of that conduct, the victim suffered some physical injury." Commonwealth v. Welch , 16 Mass. App. Ct. 271, 275 (1983), quoting from Commonwealth v. Vanderpool , 367 Mass. 743, 747 (1975). Under the wanton and reckless theory, the Commonwealth was not required to prove that the defendant intended to injure Bergert. It was enough that his reckless attack with a knife created circumstances that resulted in serious injury to the victim; in this case, when he attempted "to protect my grandson, my wife, myself, everybody, that I could ... possibly protect."
Judgments affirmed .