Opinion
19-P-736
04-03-2020
COMMONWEALTH v. Wanda NAVARRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Roxbury Division of the Boston Municipal Court Department, a jury convicted the defendant, Wanda Navarro, of assault and battery. On appeal, the defendant contends that the trial judge's refusal to give a self-defense instruction constituted prejudicial error. She also argues that the judge erred in declining to give an absent witness instruction. The Commonwealth concedes that the judge should have instructed the jury on self-defense, and asks this panel to vacate the judgment. We agree that the evidence at trial warranted a self-defense instruction, and thus vacate the judgment and set aside the verdict.
Facts. The parties do not dispute the relevant facts, and thus we need not restate them in detail. In brief, the defendant and her daughter were involved in a confrontation with the victim. The confrontation took place at the police station. There was evidence that the defendant's daughter left the police station, spat on the front passenger side window of the victim's car, and subsequently opened the car door, jumped on top of the victim, and attacked her. A police officer testified that at some point he saw the defendant punching and kicking the victim. The officer said that the victim was in a "defensive posture," not swinging back, and that there was no obstruction preventing the defendant from leaving. However, the defendant's daughter testified that she saw the victim "choking" and kicking the defendant, and pulling the defendant into the victim's car by a scarf. The defendant's daughter further testified that she observed bruising on the defendant immediately following the incident. Finally, a different witness testified that the defendant told her that she had been attacked by the victim, and that the victim had hit her in the face with a boot. This witness likewise testified that she saw the defendant in the evening after the incident and noticed an injury to the defendant's face.
Discussion. 1. Self-defense instruction. We review to determine whether the failure to instruct the jury on self-defense was error and, if so, whether the error was prejudicial. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004). "The prejudicial error standard requires that the Commonwealth show ‘with fair assurance’ that the error did not ‘substantially sway[ ]’ the outcome of the case." Id., quoting Commonwealth v. Rosado, 428 Mass. 76, 79 (1998). "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). "In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true." Id. "The elements of self-defense, where nondeadly force is used, ... are (1) a reasonable concern for one's personal safety; (2) the use of all reasonable means to avoid physical combat; and (3) the degree of force used must be reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness" (citation omitted). Commonwealth v. Adams, 458 Mass. 766, 774-775 (2011).
Here, crediting the testimony from multiple witnesses who testified favorably to the defendant, a rational jury could have found that the Commonwealth failed to prove beyond a reasonable doubt that the defendant did not act in self-defense. Commonwealth v. Ortega, 480 Mass. 603, 611 (2018). The defendant argues that she only used force after first being struck by the victim. In support of the defendant's argument, there is evidence that the daughter observed the victim choking and kicking the defendant, and pulling the defendant into the victim's car by the scarf. This evidence would support the inference that the defendant used all reasonable means to avoid physical contact, but was unable to escape the situation because of the victim's actions. In addition, there was testimony from which the jury could have inferred that the degree of force used by the defendant was reasonable in the circumstances. "The evidentiary threshold for a defendant seeking an instruction on self-defense is low, as it is the Commonwealth's burden to prove that the defendant did not act in proper self-defense once the issue is raised." Id. at 610. The defendant argues that she was attacked, restrained from escape, and sustained visible injury. Therefore, as the Commonwealth concedes, the evidence here, considered in the light most favorable to the defendant, warranted a self-defense instruction.
We note that the judge instructed the jury on the alternative theory of defense of another, and that there is some tension between the two theories. Defense of another involves circumstances in which the defendant affirmatively intervenes with force to prevent harm to another, while (as we have observed) self-defense requires a defendant to avail herself of all means to avoid physical combat. However, in each case, the defendant is entitled to a view of the evidence in the light most favorable to the defendant, and both alternatives find support in the evidence that was presented in this case.
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2. Missing witness instruction. At oral argument, both parties agreed that if the judgment is vacated due to the absence of a self-defense instruction, we need not reach the claim regarding the absent witness instruction. Accordingly, we decline to address that issue herein.
Judgment vacated.
Verdict set aside.