Opinion
19-P-792
03-10-2020
COMMONWEALTH v. Timothy SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of kidnapping in violation of G. L. c. 265, § 26. On appeal, he claims the judge erred in refusing the defendant's request that the jury be instructed on self-defense, and that the judge abused her discretion by denying his motion for new trial which raised the same issue. We affirm.
The defendant's motion for a required finding of not guilty was allowed relative to an indictment which charged him with strangulation, and the defendant was acquitted on an indictment which charged him with rape.
The defendant's motion for new trial also raised other issues, but they have not been pressed on appeal.
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A defendant is entitled to an instruction on the use of nondeadly force in self-defense "if the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (1) the defendant had reasonable concern for his personal safety; (2) he used all reasonable means to avoid physical combat; and (3) ‘the degree of force used was reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.’ " Commonwealth v. King, 460 Mass. 80, 83 (2011), quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 369 (2004). See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). If, however, the evidence was insufficient to allow a reasonable doubt to be raised, no self-defense instruction would be necessary. See Commonwealth v. Maguire, 375 Mass. 768, 772 (1978).
As a starting point, the defendant can cite no case, and we are aware of none (in or outside the Commonwealth), in which a court has held that a defendant could kidnap a victim in self-defense. In fact, in Commonwealth v. Clark, 20 Mass. App. Ct. 392, 397 (1985), we held that "[t]here could be no issue of self-defense relating to the charge of rape or kidnapping." Even if we assume this was not a blanket statement of law, the defendant's claim in that case is similar to the defendant's claim here. In Clark, the Commonwealth's evidence showed that the defendant offered the victim a ride home in his van. Id. at 393. Instead of taking her home, the defendant tied, beat, and raped the victim before she managed to escape. Id. at 393-394. According to the defendant, there was no sexual encounter, and the incident ended when the victim threatened him with a knife and he fought off her attack before pushing her out of the van. Id. at 396. In the end, we held that even under the defendant's version, his assault on the victim did not have "additional significance," because it did not raise an issue of self-defense to the charge of rape or kidnapping. Id. at 397.
Here, the Commonwealth did not allege or argue that the kidnapping occurred on the couch, but more broadly that the defendant would not let the victim leave his apartment after the sexual assault. The defendant's claim is that he should have received the self-defense instruction because his action of restraining the victim on the sofa was done to protect himself from the victim's unprovoked attacks and that he was only trying to hold her until she stopped stabbing him. If the defendant had been charged with assault and battery stemming from the couch incident, he would have been entitled to a self-defense instruction. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004) ("Self-defense is reasonably invoked at a criminal trial only if there was a threat of harm to the person protected"). But he was not so charged.
In fact, the kidnapping charge did not stem from his momentary restraint of the victim on his sofa, but instead, was the result of the defendant grabbing the victim's waist when she tried to run out of his apartment, telling her, "Bitch, you're not leaving here," and forcing the victim to escape out of his third-floor bathroom window. In other words, even in the light most favorable to the defendant, his claim of self-defense was untethered to the conduct that constituted the kidnapping. As in Clark, his assault on the victim did not have "additional significance" on the kidnapping charge. See Clark, 20 Mass. App. Ct. at 397. That is, the evidence did not raise a reasonable doubt as to whether the defendant had a reasonable concern for his personal safety (aside from the momentary fight on the couch) which bore any relation to the acts that amounted to the kidnapping. Accordingly, no view of the evidence would have entitled the defendant to a self-defense instruction in relation to the kidnapping charge. Id. For the same reasons, the judge did not abuse her discretion by denying the motion for new trial.
Judgment affirmed.
Order denying motion for new trial affirmed.