Opinion
14-P-1565
10-20-2015
COMMONWEALTH v. GARRETT KROSBY.
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, Garrett Krosby, appeals from his conviction, following a trial by jury, of assault by means of a dangerous weapon, to wit, a firearm. The defendant raises a single issue concerning the judge's instructions on self-defense. For the reasons that follow, we affirm.
Background. 1. The Commonwealth's case. The victim was driving home to New Bedford on Interstate Route 195 from his place of employment on Cape Cod when he noticed a BMW automobile tailgating him. When the victim pulled his vehicle into the right lane, the BMW automobile passed him at a high rate of speed. Moments later, the victim saw the same BMW in front of him. Suddenly, without warning or any apparent cause, the BMW slammed on its brakes and almost came to a complete stop in the right travel lane. The victim was forced to hit his brakes and swerve around the BMW to avoid a collision. The victim noticed that the operator of the BMW was looking at him in his rear view mirror and waving something.
The victim exited from the highway to purchase groceries at a Petro Mart store. As he parked his automobile, he saw the defendant seated in the BMW. The victim beeped his horn to get the defendant's attention and stated, "Hey, man; what's your problem? Why you messin' with me on the highway?" The defendant responded by reaching down and retrieving a handgun which he pointed at the victim's face. The defendant then exited through the passenger side of his vehicle, walked to the victim's vehicle, pointed the gun at the victim's head, and stated, "Get the fuck out the car." The defendant also said he was going to smash the victim's windshield and shoot him in the head. The defendant did smash the gun against the windshield, and fumbled with it. The victim drove off and called the police.
The defendant's BMW was pulled over by a Massachusetts State Trooper on Route 195 eastbound several miles away from the Petro Mart store. After a brief conversation with the defendant, marked by what one of the troopers on scene described as a series of "mood swings" from "extremely agitated and upset" to cooperative, the defendant admitted he had a gun. The police seized it and noticed that the magazine butt plate was missing. The missing butt plate was later located in the Petro Mart parking lot. The police also saw smudge marks on the driver's side window of the victim's car.
The Commonwealth offered in evidence a video surveillance recording obtained from the Petro Mart which shows the defendant's black BMW park between the front corner of the building and the gasoline pumps. Shortly thereafter, the victim's car pulls in alongside the BMW. The video recording also shows the defendant exit from the BMW and walk around the back of his vehicle as well as the victim's vehicle, with his arms outstretched holding what appears to be a handgun as he walks up to the driver's side of the victim's vehicle. The recording shows the defendant striking the window of the victim's vehicle with his right hand and then walking toward the front of the store. Later, the recording shows the defendant leaving the Petro Mart and wandering around the parking lot as if looking for something before he drives the BMW to the gasoline pumps. The defendant is shown making several trips from the pumps to the store before he drives off.
2. The defendant's case. The defendant testified and gave a different account of the events. According to the defendant, the victim precipitated the incident by tailgating him on the highway and following him into the Petro Mart parking lot. There, the defendant saw the victim seated in his car and smiling at him while holding a shotgun. The defendant responded by ducking down and getting out of his car with his gun, which was locked and could not be fired. The defendant held the door to the victim's car closed for about ten seconds, preventing the victim from getting out. The victim then suddenly backed his vehicle out of his parking space and left the parking lot. The defendant then entered the Petro Mart and asked someone to telephone the police.
Discussion. In his instructions to the jury, the judge included instructions on self-defense, and, in particular, explained that the Commonwealth could meet its burden of proof by proving beyond a reasonable doubt "that the Defendant used more force to defend himself than was reasonably necessary under the circumstances." The judge also told the jury they could consider the location where the event occurred and whether any weapons were involved. The defendant's sole argument on appeal is that the judge erred in his supplemental jury instructions relating to self-defense. The defendant contends that it was error to go beyond simply stating that a person does not act in self-defense when he uses deadly force to repel nondeadly force, and further tell the jury that "a handgun by its very nature is a dangerous weapon." The defendant argues that the implication of this comment is that merely brandishing a weapon, such as a handgun, is the use of deadly force as a matter of law. This interpretation requires several inferential leaps, and is contrary to the distinction between the use of a deadly weapon and the mere brandishing of such a weapon as set forth in Commonwealth v. Cataldo, 423 Mass. 318, 322 (1996) (excessive force in this context requires the jury to determine whether the defendant intended to use the deadly weapon in a deadly manner).
Because there was no objection to the judge's instructions to the jury, we review "solely to determine whether the error gives rise to a substantial risk of a miscarriage of justice." Commonwealth v. Russell, 439 Mass. 340, 345 (2003). We agree with the Commonwealth that this question can be answered with confidence in the negative, because when the evidence is viewed in a light most favorable to the defendant, one foundational requirement for a self-defense instruction is lacking: that the defendant "used all proper means to avoid physical combat." Commonwealth v. Bastarache, 382 Mass. 86, 105 (1980). Here, the defendant's testimony at trial was that he exited his vehicle in the Petro Mart parking lot and then walked around his vehicle and the victim's vehicle, with the result that his body was in close proximity to the vehicle in which he said the victim was seated while holding a shotgun. When the defendant exited his vehicle through the passenger side door, he was further from the victim than when he was seated in the driver's seat. At that point, he had the options of going directly into the store, departing from the scene on foot, seeking assistance from the persons who were pumping gasoline, or sheltering in place. Instead, the defendant moved himself directly into the line of the alleged shotgun's fire. As in Commonwealth v. Toon, 55 Mass. App. Ct. 642, 653 (2002), "[t]here was simply no evidence that an avenue of escape was unavailable to the defendant at the start of the confrontation. Nor was there any evidence that the defendant availed himself of all means to avoid combat before resorting even to nondeadly force."
Judgment affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 20, 2015.