Opinion
No. 11–P–1278.
2013-07-15
COMMONWEALTH v. Franco REYES.
By the Court (MILKEY, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of assault and battery by means of a dangerous weapon (metal pipe) and assault and battery with serious bodily injury (a lesser included offense of mayhem). We affirm.
Background. A jury could have found the following. Late in the evening on November 25, 2004, the victim was stopped in his vehicle at the intersection of Commercial Street and Neptune Avenue in Lynn. Another car, in which the defendant was a passenger, was stopped at the opposite side of the intersection. As the vehicles passed each other from opposite directions, the front-seat passenger in the other vehicle threw a beer bottle at the victim's vehicle. The victim then made a U-turn to follow the other vehicle and “see ... who it was.” As the victim's vehicle approached the other vehicle from the rear, the other vehicle stopped near a traffic light. Once the victim's vehicle stopped behind the other car, the defendant got out and, with a beer bottle in hand, approached the victim. A physical altercation ensued when the defendant reached the driver's side window of the victim's car. The defendant began striking the victim with the beer bottle. The victim, during the attack, reached for a steering wheel antitheft device (club) that was on the passenger seat, and once he had the club in his grasp, he began striking the defendant. The fight spilled from the victim's vehicle into the street. At some point, the defendant gained hold of one part of the club (as it was comprised of two parts) and began striking the victim with it. During the fight, the defendant bit the victim's forehead and also bit off a piece of the victim's ear. The fight ended soon thereafter.
The victim's girlfriend, with whom the defendant had a child, was also in the vehicle with the defendant.
The defendant was arrested three days later. He was indicted for mayhem (count 1), assault and battery by means of a dangerous weapon, to wit: a metal pipe (count 2), and assault and battery by means of a dangerous weapon, to wit: a beer bottle (count 3). At trial, the defendant relied upon the defense of self-defense. The defendant also sought to elicit evidence that the victim was the initial aggressor. Pursuant to Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005), the judge allowed the defendant to elicit testimony from the victim regarding the victim's prior acts of violence toward two of his former girlfriends. Because the defendant first entered evidence about the victim's prior violent acts, the judge, relying on Adjutant, allowed the victim to testify that the day before the assault, the defendant tried to hit the victim from behind while both were in their cars. After each party elicited Adjutant-type evidence, the judge gave a limiting instruction. After the Commonwealth rested and again after the defendant rested, the defendant moved for required findings of not guilty. Those motions were denied.
Before allowing the defendant to introduce prior violent acts of the victim, the judge informed defense counsel that he would allow the prosecutor to offer similar evidence about the defendant: “[ Adjutant ] hasn't specifically addressed that issue, but this is a matter which has been discussed substantially among members of the court and I think there's a consensus that I agree with that prior acts of violence where the complaining witness was the aggressor are admissible. However, when they are admitted, then the prior acts of violence where the defendant was the aggressor is equally admissible for the same terms and for the same reason.”
At the close of the trial, the judge instructed the jury regarding the law of self-defense. Although the defendant was charged with the use of deadly force, the judge did not explain the difference between deadly and nondeadly force, instead instructing the jury that the Commonwealth must prove beyond a reasonable doubt that the defendant did not need to use nondeadly force. On count 1, the jury returned a verdict of guilty of assault and battery with serious bodily injury, a lesser included offense of mayhem; a verdict of guilty on count 2; and a not guilty verdict on count 3.
The judge commented that “[i]t is a little hard to read the verdict,” as “there was a not guilty on [count 3], but guilty on the other two.” The judge concluded that “[p]robably the most reasonable scenario to conclude that the jury found was that it was a mutual affray, maybe even initiated by [the victim], but a mutual affray but that excessive force was used during the course of the affray because [the jury] didn't find [that the defendant had] the specific intent to maim [the victim] so [the jury] essentially found it in a sort of a passionate moment excessive force was used probably.”
Discussion. On appeal, the defendant first argues that because the judge instructed the jury regarding nondeadly force, rather than deadly force, the judge impermissibly lowered the Commonwealth's burden to prove the absence of the necessity of self-defense. We review an erroneous jury instruction, to which there was no objection, in order to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Here, the judge should have instructed the jury regarding deadly force, and therefore he erred in this regard. This error, however, prejudiced the Commonwealth, not the defendant. The necessity to defend oneself with deadly force arises from a higher level of danger than does the necessity to defend oneself with nondeadly force. Commonwealth v. Pike, 428 Mass. 393, 305 (1998). Additionally, to be entitled a self-defense instruction, “the defendant has the burden of producing sufficient evidence to raise the issue.” Commonwealth v. Monico, 373 Mass. 298, 304 (1977). Thus, the judge here, in effect, instructed the jury that the defendant could claim self-defense if the evidence established that the defendant, out of necessity, had to defend himself with nondeadly force. We therefore conclude that no substantial risk of a miscarriage of justice arose from the judge's instruction. Compare Commonwealth v. Baseler, 419 Mass. 500, 503–504 (1995) (judge lowered Commonwealth's burden to disprove self-defense by instructing jury regarding the use of deadly force, when instruction should have been on use of nondeadly force).
The defendant's second argument attacks the judge's decision to allow, on redirect examination, testimony by the victim about the defendant's prior bad acts. For the reasons set forth in Commonwealth v. Morales, 464 Mass. 302, 303 (2013), we disagree. Further, although Morales had not been decided before the trial, defense counsel was nonetheless aware that if he introduced evidence of the victim's prior acts of violence on the issue of first aggressor, the judge was going to allow the prosecutor to introduce similar evidence against the defendant. See id. at 312 (no error in trial judge allowing victim to offer evidence of defendant's prior bad acts even though not expressly authorized by Adjutant ).
Finally, the defendant argues that the judge abused his discretion in denying the defendant's motions for required findings of not guilty. We disagree. There was sufficient evidence presented to warrant the jury's verdicts. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Judgments affirmed.