Opinion
15-P-381
03-16-2016
COMMONWEALTH v. KENT JOHNSON.
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, Kent Johnson, appeals from his conviction after a jury trial in Superior Court of assault and battery causing serious bodily injury, in violation of G. L. c. 265, § 13A(b)(i). On appeal he argues that the trial judge erred by failing to instruct the jury on defense of another, namely, the defendant's friend (and codefendant) Rodney Finch. We affirm.
The defendant was charged with second degree murder causing the death of Brian Bishop. The jury convicted the defendant of this lesser included offense.
"'A defendant is entitled to a [defense of another] instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of [defense of another] were present.'. . . In making this inquiry 'all reasonable inferences should be resolved in favor of the defendant.'" Commonwealth v. Miranda, 77 Mass. App. Ct. 76, 78 (2010), quoting from Commonwealth v. Pike, 428 Mass. 393, 395 (1998). Moreover, "judges should 'err on the side of caution in determining that [defense of another] has been raised sufficiently to warrant an instruction.'" Miranda, supra at 79, quoting from Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 701 (2002).
The parties agree that the issue turns on the surveillance footage from the bar where the fight took place. We have reviewed the footage, and indulging all inferences in the defendant's favor, we conclude that the judge did not err in declining to give the instruction.
The defendant filed a motion requesting this court to accept for filing a video digital disc containing the surveillance footage. The disc contains a file labelled "Footage from Exhibit 8," which contains the entirety of exhibit 8 from the trial, as well as a file labelled "KJ POV.wmv," which we understand to include excerpts from exhibit 8 collated by defense counsel. We allow the motion only with respect to the file labelled "Footage from Exhibit 8." We have not viewed the file labelled "KJ POV.wmv."
We focus on the circumstances known to the defendant when he set upon Bishop. See Commonwealth v. Young, 461 Mass. 198, 209 (2012). Accordingly, we disregard the evidence that Finch initiated the fight by punching Bishop in the face immediately before the defendant emerged from the bar. The defendant saw only that Bishop and Finch were facing each other. Although Finch did in fact flinch at some imperceptible movement by Bishop, at no time does Bishop appear to be attacking, threatening, or menacing Finch. In fact, Bishop is seen walking away, with his back to Finch, when the defendant attacks him.
A reasonable person in the defendant's position would not have believed that his intervention was necessary to protect Finch. See Commonwealth v. Martin, 369 Mass. 640, 649 (1976). Nor, from the defendant's perspective, would Finch have been justified in using nondeadly force to protect himself from Bishop under the circumstances. See ibid. Finch did not have any reasonable concern for his safety, and he did not make the slightest effort, let alone "all reasonable means to avoid physical combat." Commonwealth v. Adams, 458 Mass. 766, 774 (2011). To the contrary, Finch had pursued and punched Bishop prior to the defendant's attack of Bishop. The evidence did not warrant an instruction on defense of another, and the trial judge was correct to deny the defendant's request for the instruction.
Judgment affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 16, 2016.