Commonwealth v. Allen , 474 Mass. 162 ( 2016 )

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SJC-11850
COMMONWEALTH vs. JAMES ALLEN.
Suffolk. December 10, 2015. - April 20, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Firearms. Defense of Others. Practice, Criminal,
Instructions to jury. License. Constitutional Law, Right
to bear arms.
Indictments found and returned in the Superior Court
Department on February 1, 2011.
The cases were tried before Patrick F. Brady, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Matthew V. Soares for the defendant.
Amanda Teo, Assistant District Attorney (Jennifer J.
Hickman, Assistant District Attorney, with her) for the
Commonwealth.
Levi W. Swank, of the District of Columbia, & David A.F.
Lewis & Stephen D. Poss, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
2
CORDY, J. On March 21, 2012, a jury convicted the
defendant, James Allen, of murder in the second degree,1 and of
carrying a firearm without a license, possession of ammunition
without a firearms identification card, and possession of a
large capacity firearm feeding device without a license.2 At
trial, his defense was that he was justified in using deadly
force because he was coming to defense of a friend (Shawn
Buchanan) who was being threatened with deadly force by the
victim, Senai Williams.
The defendant timely appealed his conviction, and we
granted his application for direct appellate review. On appeal,
he raises several claims. First, he argues that the trial
judge's instruction to the jury on defense of another was
incorrect because it improperly suggested that the defendant may
have had a duty to retreat, and because it negated the
possibility of a finding of so-called excessive force
manslaughter by instructing that the defendant was required to
avail himself of available alternatives before employing deadly
force and that if the Commonwealth proved that the defendant
1
The defendant was charged with murder in the first degree,
and the jury was instructed on murder in the first degree by
reason of deliberate premeditation.
2
The defendant was tried together with Shawn Buchanan.
Buchanan was acquitted of being an accessory after the fact to
the offense of assault and battery by means of a dangerous
weapon, and of several firearms charges.
3
used excessive force then it had proved that he did not act in
lawful defense of another. The defendant also claims error
based on misstatements by the prosecutor in closing argument;
the admission of irrelevant and prejudicial testimony;
insufficient evidence supporting the firearms convictions; and
constitutional violations in connection with the firearm
indictments. We conclude that portions of the jury instructions
concerning excessive force manslaughter were erroneous and
prejudicial. Accordingly, we reverse the defendant's conviction
of murder in the second degree and remand the case for a new
trial on that charge. We affirm the defendant's remaining
convictions.3
1. Background. We summarize the evidence. On November
18, 2010, the defendant shot and killed the victim. The
shooting arose from a dispute between two groups of neighbors
and their associates residing at 20 and 23 Homestead Street in
the Roxbury section of Boston. The 20 Homestead Street group
included the victim; his girl friend, Shaquice Herring; and her
mother, brothers, and cousins. The 23 Homestead Street group
included the defendant; his friend, Shawn "Lucky" Buchanan;
Buchanan's mother; his girl friend; and his half-brother,
Rellindo Stephens.
3
We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
4
The events that culminated in the shooting began that
afternoon, when Stephens and some friends were looking for a
place to smoke marijuana. Because his mother was home, Stephens
decided to smoke in the hallway of 20 Homestead Street.
Herring's mother, who had received complaints from her landlord
about marijuana smoke in the hallway, told the victim and two
others in their group to go downstairs to tell Stephens and his
friends they could not smoke in the hallway. Following a tense
exchange of words, the victim grabbed Stephens and forced him
out the door.
As Stephens crossed the street to return to his house, he
saw Herring in her window and called her a bitch. Angered, she
went outside to confront him. The victim eventually separated
the two, but not before Herring slapped and punched Stephens in
the face.
Stephens called his brother, Buchanan, about the incident.
Buchanan, accompanied by the defendant, went to Homestead
Street. By the time they arrived, night had fallen and the
street lights were on. When Buchanan got to Homestead, he
beckoned to Herring and the victim to come down to the street.
Eventually, Stephens joined the three, who were speaking calmly
with one another. The conversation became more heated as they
began to discuss the earlier incident with Stephens. Someone
asked if the victim had hit Stephens, and Herring told Buchanan
5
that she, and not the victim, had hit him. The victim attempted
to demonstrate the manner in which he had made contact with
Stephens in the hallway; Stephens, however, was still upset and
demanded that the victim take his hands off of him. Likewise,
Buchanan told the victim he did not need to touch Stephens to
explain. The defendant, who was standing on the porch of 20
Homestead, said to Buchanan, "Handle your business, Luck." At
this time, the victim moved to the side of Herring and then
reached over her, trying to punch Buchanan.
A number of people had converged on their porches and
sidewalk to watch the escalating confrontation, including other
members of the two groups. A neighbor living at 21 Homestead
also watched the confrontation from her porch. The defendant
and others suggested that the victim and Buchanan have a "fair
one," a one-on-one fist fight.
While the defendant stood on the front porch of 20
Homestead, Buchanan and the victim began to fight. They
repeatedly swung at each other without making contact. At one
point, the two men were getting close to an automobile belonging
to the neighbor's father, which was parked on the street; at her
request, they moved away from the vehicle. It appeared to the
neighbor that "they . . . didn't really want to fight." Around
this time, the defendant came down the front steps of 20
Homestead into the street.
6
The testimony about what happened next, in the moments
prior to the shooting, is in conflict. Herring testified that
both Buchanan and the victim pulled out knives, and that she
made the victim walk away from Buchanan at that point. She also
testified that the latch on the victim's knife was broken, so
that the blade would not stand up straight. Others testified
that Buchanan pulled out a knife and then the victim pulled out
a knife. Still another witness testified that the victim never
had a chance to get his knife out of his pocket.
Stephens, however, testified that Buchanan had been holding
a cellular telephone when the fight broke out and that when he
went to put it in his pocket, the victim asked if Buchanan was
"reaching." He further testified that the victim began "jumping
at [Buchanan], like breasting," that he had a knife in his hand,
and that Buchanan began backing away from the victim. Another
witness testified that she saw a knife in the victim's hand,
although Buchanan's back was to her so she could not see if he
was holding anything.
The testimony concerning the distance between Buchanan and
the victim is also in conflict, with some witnesses testifying
the two men were a little more than an arm's length apart and
another testifying that they were at least one automobile length
apart. According to one witness, as the victim backed away from
Buchanan, the defendant came around a vehicle in a creeping
7
fashion, pulled a gun, and fired it over Buchanan's shoulder.
The victim fell to the ground. Some witnesses heard the
defendant say something like, "You don't bring a knife to a
gunfight." Herring heard the defendant say this before he fired
the gun; the others heard him say it after the gun had been
fired.
The victim got up and ran to the rear of 20 Homestead,
having been shot once in the right lower back.4 He was taken to
the hospital, where he was pronounced dead. The defendant fled
toward Walnut Avenue, while Buchanan ran into 23 Homestead.
When the police arrived, Herring screamed, "[H]urry up,
hurry up, he's dying," and ran to the back of the building.
Shortly thereafter, based on a description of the shooter,
officers stopped the defendant near the Jackson Square subway
station. The defendant told the officers that he had just
gotten off the bus, that he was coming from his girl friend's
apartment in Somerville, and that he was going to see his
sister.
The defendant was subsequently arrested. The K-9 unit
searched 23 Homestead the next day and recovered the firearm
4
The medical examiner who performed the autopsy testified
that he was not able to determine the angle that the victim was
at when he was shot.
8
used in the shooting, concealed behind a box inside a small
storage area in the basement.
The police also recovered the victim's knife. A Boston
police department criminologist testified that the knife's blade
did not stay up because the knife was missing its "innards."
She also testified that she did not know if the knife worked
before she examined it.
2. Jury instructions. The defendant argues that the
judge's instruction on defense of another (1) erroneously
conflated principles of self-defense and defense of another by
suggesting that the defendant had a duty to retreat; and (2)
improperly negated the possibility of a finding of so-called
excessive force manslaughter by stating, among other things,
that the defendant was required to avail himself of available
alternatives before employing deadly force.5,6 The ambiguous,
5
For the first time on appeal, the Commonwealth argues that
the defendant was not entitled to the defense of another
instruction. Notwithstanding the untimeliness of this argument,
the evidence, viewed in the light most favorable to the
defendant, see Commonwealth v. Okoro, 471 Mass. 51, 68 (2015),
was sufficient to require the instruction, especially given the
conflicting testimony about whether both the victim and Buchanan
had knives, who took his knife out first (if at all), and
whether either man was backing away from the other at the moment
of the shooting. See Commonwealth v. Norris, 462 Mass. 131, 141
(2012) (instructions on defense of another warranted where
evidence is sufficient to create reasonable doubt as to whether
defendant reasonably believed intervention was necessary to
prevent harm to third party).
9
6
The instruction was, in relevant part, as follows, with
added emphasis to the challenged portions:
"In order to defend another person with a dangerous
weapon likely to cause serious injury or death, or in other
words to use deadly force, the person using the weapon or
deadly force must have a reasonable apprehension that the
other person is in danger of great bodily harm or death,
and a reasonable belief that no other means would suffice
to prevent such harm.
"Put another way, the proper exercise of defense of
another person means that a person in the defendant's
circumstances, Mr. Allen's circumstances, would reasonably
believe that the other person was about to be attacked and
that the other person was in immediate danger of being
killed or seriously injured, and, and that there was no
other way to avoid the attack. A person using a dangerous
weapon or deadly force in defense of another must also have
actually believed, actually believed that the other person
was in imminent danger of serious harm or death. The
person may not use force in defense of another person until
he has availed himself of all proper means to avoid
physical combat. A person who reasonably but mistakenly
believes that the other person is in imminent danger of
serious bodily harm or death, and that he has used all
proper means to avoid the use of force, may still use
deadly force to defend the other person. . . .
"[T]he Commonwealth must prove beyond a reasonable
doubt that the defendant did not, did not act in defense of
another. The Commonwealth may satisfy that burden by
proving beyond a reasonable doubt any one, any one of the
following propositions. Number one, the defendant did not
subjectively believe that Shawn Buchanan was in imminent
danger of serious injury or death. Or, or, number two,
even if the defendant, Mr. Allen, believed Mr. Buchanan was
in such danger, the defendant's belief was not objectively
reasonable. Or, number three, the defendant failed to
avail himself of other available alternatives before
employing deadly force. If the Commonwealth has proved any
one of those things, then it has proved that the defendant
did not act in defense of another.
10
confusing, and contradictory nature of the instructions, argues
the defendant, warrants reversal of his conviction. We agree,
although for somewhat different reasons than those proffered by
the defendant.
Because the defendant raised a timely objection to the
judge's instruction to the jury, we review his claim for
prejudicial error. Commonwealth v. Kelly, 470 Mass. 682, 687
"Now there is one additional way in which the
Commonwealth may prove that the defendant did not act in
lawful defense of another. You will recall that I told you
when I was explaining the legal concept of defense of
another that a person may use no more force than is
reasonably necessary in all of the circumstances to defend
another person. If a person uses unreasonable force or
excessive force, then he is not acting in lawful defense of
another. Thus, if the Commonwealth proves that the
defendant used excessive force in defending Shawn Buchanan,
then it has proved that the defendant did not act in lawful
defense of another. However, . . . excessive force in
otherwise lawful defense of another is a mitigating
circumstance, a mitigating circumstance that reduces the
offense of murder to manslaughter. Manslaughter is the
unlawful killing of a human being using excessive force in
defense of another.
"Thus, if the Commonwealth has failed to prove any one
of the three things that I previously explained, number
one, that the defendant did not subjectively believe that
Shawn Buchanan was in imminent danger of serious injury or
death, or number two, even if the defendant, Mr. Allen,
believed Mr. Buchanan was in such danger, the defendant's
belief was not objectively reasonable, or, number three,
the defendant failed to avail himself of other available
alternatives before employing deadly force, but . . . the
Commonwealth has proved beyond a reasonable doubt that the
defendant used excessive force in self-defense, then you
would be warranted in finding the defendant guilty of
manslaughter."
11
(2015). We determine "whether the instructions were legally
erroneous, and (if so) whether the error was prejudicial." Id.
at 688, quoting Kelly v. Foxboro Realty Assocs., LLC, 454 Mass.
306, 310 (2009). We will not find prejudice where an error "did
not influence the jury, or had but very slight effect . . . .
But if one cannot say, with fair assurance, after pondering all
that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error, [then] it is impossible to conclude that substantial
rights were not affected." Kelly, 470 Mass. at 688,
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). We
evaluate jury instructions "as a whole, looking for the
interpretation a reasonable juror would place on the judge's
words . . . rather than scrutinizing bits and pieces removed
from their context" (citations, quotations, and alterations
omitted). Commonwealth v. Harris, 464 Mass. 425, 434 (2013).
The elements of defense of another are well settled: "An
actor is justified in using force against another to protect a
third person when (a) a reasonable person in the actor's
position would believe his intervention to be necessary for the
protection of the third person, and (b) in the circumstances as
that reasonable person would believe them to be, the third
person would be justified in using such force to protect
himself." Commonwealth v. Young, 461 Mass. 198, 208 (2012),
12
quoting Commonwealth v. Martin, 369 Mass. 640, 649 (1976).7 The
jury need not find that the third person was entitled to use
force in self-defense, "however, the intervening defendant must
have had a reasonable belief that the third person was being
unlawfully attacked." Commonwealth v. Okoro, 471 Mass. 51, 68
(2015). "The reasonableness of the belief may depend in part on
the relationships among the persons involved." Martin, supra at
649. "[I]f the defendant uses deadly force in order to protect
another where that amount of force was unwarranted, the
defendant's conduct will not be fully excused and he or she may
7
At the time of the defendant's trial, the model jury
instructions provided:
"A homicide is also excused and is therefore not a
crime, if it results from the proper exercise of the
defense of a third person. A person may lawfully use a
dangerous weapon (or deadly force) in defense of a third
person when a reasonable person in the actor's position
would believe that such intervention was necessary for the
protection of the third person, and in the circumstances as
that reasonable person would believe them to be, the third
person would have been justified in using a dangerous
weapon (or deadly force) to protect himself.
"The defense of another instruction should mirror the
self-defense instructions.
"The Commonwealth must prove beyond a reasonable doubt
that the defendant did not act in defense of a third
person. If the Commonwealth fails to [do so] . . . then
you must find the defendant not guilty." (Emphasis in
original.)
Model Jury Instructions on Homicide 58 (1999).
13
still be found guilty of manslaughter." Okoro, supra at 68,
citing, Martin, supra.
a. Duty to retreat. We first consider the defendant's
argument that the instruction on defense of another was
erroneous because it intermingled principles of self-defense
with defense of another, creating the improper suggestion that
the defendant had a duty to retreat before using force in
defense of another. Specifically, the defendant takes issue
with the following instruction:
"The person [claiming defense of another] may not use
force in defense of another person until he has availed
himself of all proper means to avoid physical combat. A
person who reasonably but mistakenly believes that the
other person is in imminent danger of serious bodily harm
or death, and that he has used all proper means to avoid
the use of force, may still use deadly force to defend the
other person."
The defendant argues that this language deviates from the
model jury instructions and is careless in its use of the
pronoun "he," creating ambiguity as to which actor, the aider
(the defendant) or the aided (Buchanan), must "avail himself of
all proper means to avoid physical combat." Moreover, says the
defendant, the instruction, contrary to Massachusetts law,
imposes both a duty to exhaust available alternatives before
using deadly force as well as a duty to retreat when defending
another. The defendant also posits that the ambiguity and error
were compounded by the judge's repeated use of this language,
14
which essentially added a "third prong" to the established
elements of the defense of another defense. Although we agree
that the instructions were flawed and confusing as to these
points, and we disapprove of the inclusion of the "third prong"
language,8 we disagree that the instruction, taken as a whole,
constitutes reversible error.
Although this court has not had occasion to address the
precise issue raised by the defendant, we have found two cases
from the Appeals Court that addressed the issue whether
instructions on defense of another improperly imposed a duty of
retreat. See Commonwealth v. Hakala, 22 Mass. App. Ct. 921
(1986); Commonwealth v. Sullivan, 17 Mass. App. Ct. 981 (1984).
These cases are instructive, as the defendants there, as here,
argued that the jury instructions, though somewhat differently
formulated, erroneously imposed a duty of retreat on a defendant
claiming defense of another.
In Sullivan, the defendant argued it was erroneous for the
judge to "employ[] the words 'self defense' in his explanation
8
The judge indicated that he believed our decision in
Commonwealth v. Williams, 450 Mass. 879, 885 n.3 (2008),
required the inclusion of this language. We take this
opportunity to clarify that Williams, which dealt with
instructions on self-defense, does not impose such a requirement
with respect to instructions on defense of another. Rather,
judges should look to the 2013 Model Jury Instructions on
Homicide, which provide a clear formulation of when deadly force
may be employed in defense of another.
15
of the defense of another principle," and by doing so,
"incorporated in the latter principle the idea that the
defendant had to take reasonable means to avoid combat."
Sullivan, 17 Mass. App. Ct. at 981-982. Similarly, in Hakala,
the defendant claimed error in the judge's statements that there
was a "duty to avoid physical contact" and that "a person must,
before resorting to deadly force to defend himself or another,
take advantage of all proper and reasonable means to avoid the
use of deadly force." Hakala, 22 Mass. App. Ct. at 922.
In both cases, the Appeals Court found no error, noting
that a jury was unlikely to construe the instructions as
imposing a duty to retreat because "coming to the aid of another
involves intervention and necessarily is irreconcilable with
retreat." Sullivan, 17 Mass. App. Ct. at 982. See Hakala, 22
Mass. App. Ct. at 922-923. And, insofar as the instructions
went to the occasion to use a deadly weapon, the statement that
a defendant must "take advantage of all proper and reasonable
means to avoid the use of deadly force," id. at 922, was
appropriate because "[i]f words would avert that occasion, they
should be used; the permissible use of force scaling up to
deadly force follows a rule of reason." Id. at 923. "The test
. . . is reasonableness under all the circumstances." Id. at
922.
 16
Likewise, the instructions here, although abstruse, do not
require reversal insofar as they blend together principles of
self-defense and defense of another. Nowhere in the instruction
did the judge say anything about "retreat." See id. at 922-923.
Taken as a whole, the judge's charge properly conveyed that the
Commonwealth bore the burden of proving beyond a reasonable
doubt that the defendant did not act in defense of another.
Moreover, given the incompatible nature of intervention and
retreat, we do not conclude that reasonable jurors would have
construed the instructions as imposing a duty to retreat.9 See
Commonwealth v. Miller, 457 Mass. 69, 75 (2010) ("[W]e consider
the jury charge as a whole, looking for the interpretation a
reasonable juror would place on the judge's words" [quotations
and citation omitted]). Additionally, we concur with the court
in Hakala that incorporating language from the self-defense
instructions is appropriate to convey the point that the
defendant was required to avail himself of other available
9
Massachusetts, unlike the Model Penal Code and a small
minority of jurisdictions, has never adopted a rule of retreat
in connection with the defense of others. See 2 Criminal Law
Defenses § 133, at 104 & n.6 (1984) (discussing § 3:05 of Model
Penal Code and relevant State statutes). We decline to do so
now, as we agree that "the retreat rule itself [is] unnecessary.
In this context, the obvious inability of a person in a defense
of others situation to even understand, let alone apply, such
complex retreat and surrender rules further supports the view
that they should be done away with." Id. at § 133, 104.
17
alternatives before employing deadly force was appropriate
inasmuch as it went to the circumstances in which a deadly
weapon might be used, and its reasonableness. We agree that, as
a matter of principle, intervention with a deadly weapon is an
act of last resort, and that a jury may consider whether other
actions would have "avert[ed] the occasion" to use deadly force.
Hakala, 22 Mass. App. Ct. at 923. The policy underlying the
defense of another defense is "to discourage indifference to the
plight of strangers." Young, 461 Mass. at 208. The defense
promotes "the social desirability of encouraging people to go to
the aid of third parties who are in danger of harm as the result
of the unlawful actions of others." Commonwealth v. Monico, 373
Mass. 298, 303 (1977). The facts in this case present a murkier
scenario than one where an innocent party is set upon by an
attacker. The victim and Buchanan were engaged in mutual combat
when the defendant fired his gun at the victim. The policy
underlying the defense of another intrinsically comprehends a
distinction between circumstances that justify coming to the aid
of another, and those where the actions of the aider, rather
than minimizing the effect of unlawful violent acts, aggravate
it, and it is for the fact finder to differentiate between these
scenarios. Given these considerations, it was not inappropriate
for the judge to instruct the jury to consider whether the
defendant had no other alternatives than to employ deadly force.
18
Accordingly, we conclude that the instructions, though imperfect
and confusing, did not constitute reversible error.
b. Excessive force instruction. The defendant also argues
that the judge's instructions were erroneous because they
negated the possibility of a finding of so-called excessive
force manslaughter by first stating that the defendant was
required to avail himself of available alternatives before
employing deadly force and then instructing the jury as follows:
"[T]here is one additional way in which the
Commonwealth may prove that the defendant did not act
in lawful defense of another. You will recall that I
told you when I was explaining the legal concept of
defense of another that a person may use no more force
than is reasonably necessary in all of the
circumstances to defend another person. If a person
uses unreasonable force or excessive force, then he is
not acting in lawful defense of another. Thus, if the
Commonwealth proves that the defendant used excessive
force in defending Shawn Buchanan, then it has proved
that the defendant did not act in lawful defense of
another. However, . . . excessive force in otherwise
lawful defense of another is a mitigating
circumstance, a mitigating circumstance that reduces
the offense of murder to manslaughter."
We agree with the defendant that the instructions
erroneously suggested that if he used excessive force, the
killing was murder and not manslaughter. The instructions
plainly state that a person who uses "excessive force" did not
act in "lawful defense of another," and thus, inferentially, is
not entitled to the benefit of the defense and is thus guilty of
some degree of murder. This formulation is contrary to the
19
settled law. "The proper rule, of course, is that where
excessive force is used in defense of another, the crime may be
mitigated from murder to manslaughter." Young, 461 Mass. at
212.
Put differently, "the use of excessive force in defense of
another does not cause the defendant to lose the benefit of the
defense entirely . . . but instead may warrant a finding of
manslaughter." Commonwealth v. Johnson, 412 Mass. 368, 371
(1992). Although a person who uses excessive force in defense
of another loses the justification for using force and is
therefore not relieved of criminal liability, in such cases,
"the degree of criminal liability becomes the issue, and the
defendant's guilt may be mitigated if, in the circumstances, he
had a right to use force in defense of another, but used
excessive force." Id. at 373. Here, we conclude that the
judge's instructions failed to distinguish adequately between
"justification and mitigation . . . [leaving the jury] with no
correct understanding of the defendant's principal . . .
defense." Id. at 373.
The judge went on to explain that if the Commonwealth
failed to prove that the defendant did not subjectively believe
that Buchanan was in imminent danger of serious injury or death,
or that his belief was not objectively reasonable, and that the
defendant failed to avail himself of other available
20
alternatives before employing deadly force, but that "the
Commonwealth has proved beyond a reasonable doubt that the
defendant used excessive force in self-defense [sic], then you
would be warranted in finding the defendant guilty of
manslaughter."
This part of the instruction did not cure the misstatement
of law in the preceding paragraph. Although the second
instruction is mostly correct, the judge appears to have
mistakenly used the term "self-defense" instead of "defense of
another." In addition to being confusing, the second
instruction also failed to "make it clear to the jury that it
carried more weight than . . . the incorrect one" (citation and
quotation omitted). Commonwealth v. Lapage, 435 Mass. 480, 484
(2001). Nor did the judge acknowledge or tell the jury that his
initial instruction on manslaughter was erroneous. Id. at 485.
This error was exacerbated by the imprecise quality of the
instructions as a whole.
We conclude that these errors were prejudicial. Although
the insertion of self-defense principles into the instructions
on defense of another did not, in this case, constitute
reversible error, the confusing nature of the instructions on
both defense of another and excessive force manslaughter, taken
together, created a strong possibility that the jury believed
that if the defendant used excessive force in defense of
21
another, he did not act in the lawful defense of another, and a
finding of murder in the second degree was required. See Kelly,
470 Mass. at 688. Accordingly, there must be a new trial.10
3. Defendant's firearm convictions. a. Commonwealth's
burden of proof. Citing the dissent in Powell v. Tompkins, 783
F.3d 332, 349 (1st Cir. 2015) (Torruella, J., dissenting), the
defendant argues that he was entitled to a required finding of
not guilty on his firearm convictions because the Commonwealth
presented no evidence that he lacked the required firearm
licenses, and thus failed to prove beyond a reasonable doubt
that he did not have a license to carry. We have addressed this
issue on several occasions, and consistently reaffirmed "that
under Massachusetts law, licensure is an affirmative defense,
not an element of the crime." Commonwealth v. Norris, 462 Mass.
at 145. See Commonwealth v. Gouse, 461 Mass. 787, 802–808
(2012); Commonwealth v. Powell, 459 Mass. 572, 582 (2011), cert.
denied, 132 S. Ct. 1739 (2012) (affirming Powell v. Tompkins,
10
The defendant makes two other arguments that we need not
belabor given that we have ordered a new trial. First, the
parties agree that the prosecutor misstated certain aspects of a
witnesses' testimony in her closing argument. We conclude that
these statements, though careless, did not impact the jury's
verdict, and assume that the misstatements will be avoided at a
retrial. Second, any improper appeal to sympathy intended by
the testimony of the victim's family member did not "make
plausible an inference that the [jury's] result might have been
otherwise but for the error." Commonwealth v. Alphas, 430 Mass.
8, 13 (1999), quoting Commonwealth v. Miranda, 22 Mass. App. Ct.
10, 21 (1986).
22
supra at 335); Commonwealth v. Jones, 372 Mass. 403, 406 (1977).
Accordingly, the defendant bore the burden of producing evidence
that he held a license, and he failed to carry that burden. The
Commonwealth was therefore not required to prove that he did not
have a license, and the defendant was not entitled to a required
finding of not guilty.
b. Second Amendment challenge. The defendant also
contends that the firearms indictments should be dismissed
because the statutes banning large capacity magazines violate
the Second and Fourteenth Amendments to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights. In cases raising similar claims, we have held that a
defendant may not challenge his convictions under G. L. c. 269,
§ 10 (h) (1), as unconstitutional under the Second Amendment
where he has not otherwise made a showing that he has applied
for (and was denied) a firearm identification card. See Powell,
459 Mass. at 589-590; Commonwealth v. Johnson, 461 Mass. 44, 58
(2011); Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011).
Those rulings apply in equal force to the defendant's case, and
his challenges to the licensing statute accordingly fail.
For these reasons, we reverse the defendant's conviction of
murder in the second degree and remand the matter for a new
trial. His remaining convictions are affirmed.
So ordered.
GANTS, C.J. (dissenting). The court reverses the
defendant's conviction of murder in the second degree because it
concludes that the following jury instruction "failed to
adequately distinguish between 'justification and mitigation,'"
ante at , and "created a strong possibility that the jury
believed" that they were precluded from finding the defendant
guilty of manslaughter if they found that the defendant used
excessive force in defense of another, ante at :
"[T]here is one additional way in which the
Commonwealth may prove that the defendant did not act in
lawful defense of another. You will recall that I told you
when I was explaining the legal concept of defense of
another that a person may use no more force than is
reasonably necessary in all of the circumstances to defend
another person. If a person uses unreasonable force or
excessive force, then he is not acting in lawful defense of
another. Thus, if the Commonwealth proves that the
defendant used excessive force in defending Shawn Buchanan,
then it has proved that the defendant did not act in lawful
defense of another. However . . . excessive force in
otherwise lawful defense of another is a mitigating
circumstance, a mitigating circumstance that reduces the
offense of murder to manslaughter."
I dissent because this instruction was not erroneous, and
is consistent in substance with the Model Jury Instructions on
Homicide approved by this court on March 21, 2013, approximately
one year after this case was tried.
The judge's instructions made clear that the Commonwealth
bore the burden of proving beyond a reasonable doubt that the
defendant did not act in defense of another. The judge properly
instructed the jury that, where a defendant used deadly force in
2
defense of another, "the proper exercise of defense of another
person" requires that: (1) the defendant actually believed that
another person was in imminent danger of serious harm or death,
(2) the defendant's belief was objectively reasonable, (3)
"there was no other way to avoid the attack" except with deadly
force, and (4) the use of deadly force was not excessive, that
is, the defendant used "no more force than [was] reasonably
necessary in all of the circumstances to defend another person."
The judge also made clear that, because all four of these
propositions are required for the proper exercise of defense of
another, the Commonwealth may satisfy its burden of showing that
the defendant did not act in "lawful defense of another" by
proving beyond a reasonable doubt "any one of the following
propositions":
(1) the defendant did not believe that Shawn Buchanan was
in imminent danger of serious injury or death;
(2) if the defendant believed Buchanan was in such danger,
the defendant's belief was not objectively reasonable;
(3) the defendant failed to avail himself of available
alternatives before using deadly force; or
(4) the defendant used unreasonable or excessive force in
defending Buchanan.
This is a correct statement of law. If the Commonwealth
were to prove any of these four propositions beyond a reasonable
3
doubt, the defendant did not act in lawful defense of another,
and therefore was not justified in using deadly force and may be
found guilty of a crime, provided the elements of that crime are
proven. See Commonwealth v. Young, 461 Mass. 198, 210 (2012)
("defense of another tracks the law of self-defense");
Commonwealth v. Glacken, 451 Mass. 163, 167 (2008) (describing
Commonwealth's burden where there is evidence of self-defense).
See also Model Jury Instructions on Homicide 33-35 (2013).
The judge also informed the jury that, if the Commonwealth
proved beyond a reasonable doubt that the defendant used
excessive force, then the defendant did not act in lawful
defense of another but the jury "would be warranted in finding
the defendant guilty of manslaughter."1 The judge earlier had
explained that "excessive force in otherwise lawful defense of
another is a mitigating circumstance . . . that reduces the
offense of murder to manslaughter."
These are correct statements of law. See Commonwealth v.
Silva, 455 Mass. 503, 525-526 (2009) ("One of the elements of
self-defense is the reasonableness of the force used to defend
1
The judge misspoke here in that he told the jury that, if
the Commonwealth were to prove beyond a reasonable doubt that
"the defendant used excessive force in self-defense, then you
would be warranted in finding the defendant guilty of
manslaughter" (emphasis added). But where the judge had just
told the jury to focus on the defendant's defense of Shawn
Buchanan, not himself, there is no material risk that the jury
were confused by this mistaken reference to self-defense.
4
oneself, and if the Commonwealth fails to disprove all the
elements of self-defense except the element of reasonableness of
the force used, i.e., that the defendant used excessive force in
self-defense, then self-defense does not lie, but excessive
force in self-defense will mitigate murder to voluntary
manslaughter"). Where the Commonwealth proves beyond a
reasonable doubt that a defendant used excessive force in
defense of another, two separate legal consequences are
triggered: the defendant's claim that he was justified in using
deadly force is defeated and therefore he is not entitled to an
acquittal but, if the defendant was otherwise justified in
defending another but for his excessive use of force, the crime
of murder is mitigated to manslaughter.
Our current Model Jury Instructions on Homicide, which, as
noted earlier, had not been approved when this case was tried,
are structured differently from the judge's instructions in that
the model instructions separate justification from mitigation,
but the judge's instructions here are consistent with their
substance. Where there is evidence of self-defense (but no
evidence that the defendant was the initial aggressor),2 our
model jury instructions provide in relevant part:
2
Because our model homicide instruction regarding defense
of another "is premised on the jury having earlier been
instructed as to the law of self-defense," Model Jury
5
"A person is not guilty of any crime if he acted in
proper self-defense. It is the Commonwealth's burden to
prove beyond a reasonable doubt that the defendant did not
act in proper self-defense. . . . If the Commonwealth
fails to prove beyond a reasonable doubt that the defendant
did not act in proper self-defense, then you must find the
defendant not guilty.
". . .
"The Commonwealth satisfies its burden of proving that
the defendant did not act in proper self-defense if it
proves any one of the following four . . . propositions
beyond a reasonable doubt:
"1. The defendant did not actually believe that he
was in immediate danger of death or serious bodily harm
from which he could save himself only by using deadly
force. Deadly force is force that is intended or likely to
cause death or serious bodily harm.
"2. A reasonable person in the same circumstances as
the defendant would not reasonably have believed that he
was in immediate danger of death or serious bodily harm
from which he could save himself only by using deadly
force.
"3. The defendant did not use or attempt to use all
proper and reasonable means under the circumstances to
avoid physical combat before resorting to the use of deadly
force.
"4. The defendant used more force than was reasonably
necessary under all the circumstances" (footnotes omitted).
Model Jury Instructions on Homicide 19-21 (2013).
Our model jury instructions separately discuss excessive
use of force in self-defense or defense of another as a
mitigating circumstance that the Commonwealth must negate beyond
Instructions on Homicide 32 (2013), it is simpler to refer to
our instruction regarding self-defense than defense of another.
See Commonwealth v. Young, 461 Mass. 198, 210 (2012).
6
a reasonable doubt to prove a defendant guilty of murder in the
first or second degree. Our instructions provide, "A killing
that would otherwise be murder in the first or second degree is
reduced to the lesser offense of voluntary manslaughter if the
defendant killed someone under mitigating circumstances." Id.
at 42. In describing excessive use of force in self-defense or
defense of another as a mitigating circumstance, our model jury
instructions provide in relevant part:
"As I have explained to you earlier, a person is not
guilty of any crime if he acted in proper self-defense [or
defense of another]. The Commonwealth must prove beyond a
reasonable doubt that the defendant did not act in the
proper exercise of self-defense [or defense of another].
If the Commonwealth fails to do so, then you must find the
defendant not guilty because [with the exception of felony-
murder] an element of the crime that the Commonwealth must
prove beyond a reasonable doubt is that the defendant did
not act in the proper exercise of self-defense [or defense
of another].
"In this case, you must consider whether the defendant
used excessive force in defending himself [or another].
The term excessive force in self-defense means that,
considering all the circumstances, the defendant used more
force than was reasonably necessary to defend himself [or
another]. . . .
"I have already told you that to prove the defendant
guilty of murder, the Commonwealth is required to prove
beyond a reasonable doubt that the defendant did not act in
the proper exercise of self-defense [or the defense of
another]. If the Commonwealth proves that the defendant
did not act in proper self-defense [or in the proper
defense of another] solely because the defendant used more
force than was reasonably necessary, then the Commonwealth
has not proved that the defendant committed the crime of
murder but, if the Commonwealth has proved the other
required elements, you shall find the defendant guilty of
voluntary manslaughter" (footnotes omitted).
7
Id. at 69-71.
To be sure, our model jury instructions regarding excessive
use of force in defense of another are clearer than the judge's
instructions regarding this issue, but the judge did not have
the benefit of those instructions when this case was tried and
his instructions are consistent with them. The judge's
instructions are also consistent with the Model Jury
Instructions on Homicide that were in effect at the time of
trial, which were no clearer than the judge's instructions.3 If
the jury were confused by this instruction, they could have
listened to the recording of the instructions provided to them
by the judge (with the tape recorder made available to them), or
3
The Model Jury Instructions on Homicide in effect at the
time of trial declared, "A homicide is excused and is therefore
not a crime if it results from the proper exercise of self-
defense." Model Jury Instructions on Homicide 55 (1999). In
describing the law of self-defense, the model jury instructions
later provided, "A person may use no more force than is
reasonably necessary in all of the circumstances to defend
himself." Id. at 57. Separately, the model jury instructions
provided:
"The Commonwealth has the burden of proving beyond a
reasonable doubt the absence of self-defense. If the
Commonwealth fails to prove beyond a reasonable doubt the
absence of self-defense, your verdict must be not guilty
with respect to the crimes of murder or voluntary
manslaughter. If, however, the Commonwealth does prove
excessive force in an effort to defend oneself, you would
be justified in finding the defendant guilty of voluntary
manslaughter."
Id. at 30.
 8
they could have sought clarification through a jury question
(none were asked).
Having chaired the committee that redrafted the Model Jury
Instructions on Homicide, I can attest that it is very difficult
to explain clearly to a jury that a defendant does not act in
lawful defense of another where he uses excessive force, but if
the use of excessive force is the only reason why the killing
was not lawful, the defendant is guilty of voluntary
manslaughter, not murder in the first or second degree, provided
the elements of that offense have been proven. The judge's
instructions regarding this challenging issue were not a model
of clarity, but they were not erroneous. Nor were they so
confusing that a reasonable jury could not understand them.
Nor, where the judge explicitly told the jury that "excessive
force in otherwise lawful defense of another is a mitigating
circumstance, a mitigating circumstance that reduces the offense
of murder to manslaughter" (emphasis added), can it reasonably
be said that these instructions "created a strong possibility"
that the jury believed that they were precluded from finding the
defendant guilty of manslaughter if they believed that the
defendant used excessive force in defense of another. Ante at
. For these reasons, I would not reverse this conviction
because of those instructions.