Commonwealth v. King , 77 Mass. App. Ct. 194 ( 2010 )

Meade, J.

After a jury trial, the defendant was convicted of assault and battery in violation of G. L. c. 265, § 13A, and was sentenced to one year of supervised probation. On appeal he claims that the judge’s jury instruction on self-defense, and the prosecutor’s closing argument, created a substantial risk of a miscarriage of justice. The defendant also claims that trial counsel was ineffective for not objecting to the prosecutor’s closing argument. We affirm.

1. Background, a. The Commonwealth’s case. On the evening of October 23, 2006, Christopher Garden, the victim, had been bowling at King’s, a bar and restaurant in Boston, where he worked. The victim was a member of King’s bowling team, which bowled on Monday nights. After bowling, the victim went into the lounge area of the restaurant, where he saw the defendant “making his girlfriend pay for his drinks.” He told the defendant, whom he did not know, “Don’t make your bitch pay for your drinks.” Words were exchanged between the two, and the victim “removed” himself from “the situation.” The victim did not threaten the defendant in any way, and instead walked away from the altercation so as not to jeopardize his job at King’s.

On the following Monday night, October 30, 2006, the victim was again bowling at King’s. At approximately 1:50 a.m., he left the bowling area and walked into the lounge area, which was dimly lit. There, the defendant, without first speaking to or interacting with the victim, punched the left side of the victim’s face with his right fist. The next thing the victim remembered was waking up in an ambulance. The victim was brought to the hospital where he was treated for several injuries, including fractures to his eye socket and face that required surgery.

Crecía Taboh, a hostess at King’s, was also bowling on the night of the crime. At the time of the assault, a girl’s scream drew Taboh’s attention to the lounge area, where she saw the victim “kneeled down, [with] his chest to his knee.” The defendant was standing a few tables away from the victim, and he was being held back by some of his friends. Taboh could see the victim had blood on the left side of his face, over his eyes, and on his forehead. There was also broken glass on the floor around him. Taboh left and called the police. When Taboh returned to the lounge area, she noticed that, while there were no tables overturned, there was a pint glass on the floor, the top part of which was shattered and lay in pieces around the victim along with blood.

When the police arrived, Boston police Sergeant John Doris spoke with the defendant, who claimed that he had been “attacked by the victim and several of his friends” but did not specify that he had been punched by the victim or anyone else. The defendant admitted that he had punched the victim, and stated a couple times that he was “very sorry.” Doris also spoke with the victim, who did not remember what had happened.

b. The defense. The defendant and two of his friends testified to a different sequence of events. One friend, Sean Griffin, who was also bowling on October 30, noticed the victim and the defendant exchanging looks. Around 1:30 a.m., the defendant and Griffin went into the lounge area. As they walked into the lounge, the victim was standing in front of the doorway to the lounge. The defendant stood in front of Griffin in the doorway; the defendant was “blocked in.”¹ After a heated exchange between the victim and the defendant, the victim turned, put down the glass he was holding, and came at the defendant with a clenched fist. A fight ensued.

The defendant agreed with the victim’s testimony as to what had transpired at their first meeting on October 23, but added that the victim had also invited the defendant to fight outside, and that he declined the invitation. On the night of the crime, the defendant went into the lounge area and the victim stood four feet away from him at the doorway. Words were exchanged between the two, the victim put his glass down and punched the defendant. The defendant returned the punch, the victim stumbled on the table, then fell and hit his head hard on the floor. The defendant denied that he hit the victim with a glass, and he did not understand why the eventual police report did not contain his claim that the victim punched him first. The defendant was then kept at the scene by the King’s manager and employees. When the police arrived, the defendant told the police he had been attacked by the victim² and that he was sorry.

2. Discussion, a. Standard of review. The defendant claims that because he requested the model jury instruction on self-defense, and the judge denied the request, the claimed error is preserved for appellate review. In general, this is correct. See Commonwealth v. White, 452 Mass. 133, 138 (2008). Here, however, the record does not show that counsel submitted instructions; they were not filed with the clerk of the court and docketed, nor were they provided to the prosecutor. Although the transcript reflects that counsel informed the court at the beginning of the trial that he would be requesting a self-defense instruction, he did not state that he would be submitting proposed jury instructions.³ At the close of the instructions given at trial, the trial judge asked if defense counsel was satisfied, and he answered, “Yes, thank you.” In this circumstance, we conclude the claim is not preserved, and review only to determine if a substantial risk of a miscarriage of justice was created. Compare Commonwealth v. Smith, 449 Mass. 12, 17 (2007) (concluding defendant failed to preserve claimed error in jury instructions where trial transcript indicated counsel submitted written requests for instructions, but requests were not filed with court clerk and docketed, and not discussed with detail at charge conference).

b. Self-defense instruction. There is no dispute that in the light most favorable to the defendant, credibility issues aside, the defendant was entitled to a nondeadly force self-defense instruction. See Commonwealth v. Pike, 428 Mass. 393, 395 (1998). This is because, based on any view of the circumstances, there was evidence warranting at least a reasonable doubt that the defendant (1) had “a reasonable concern over his personal safety,” Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995); (2) “used all reasonable means to avoid physical combat,” Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 369 (2004); and (3) “used no more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).⁴ Thus, in order for the defendant to be found guilty, the Commonwealth had the burden of proving beyond a reasonable doubt that any one of these factors did not exist. See Commonwealth v. Santos, 454 Mass. 770, 780-781 (2009).

On self-defense, the judge gave the following instruction:

“Evidence in this case has been offered that the defendant acted in self-defense. In sum, a person may lawfully use reasonable force to defend himself from physical attack. Once evidence of self-defense is presented, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. In other words, if you have a reasonable doubt whether the defendant acted in self-defense, your verdict must be not guilty. A person may use no more force than is reasonably necessary in all of these circumstances to defend himself or herself. Unreasonable or excessive force is force that is manifestly disproportionate under all of these circumstances. The question as to how far a defendant could go in defending himself or herself is for you, the jury, to decide.

“You may give new [sic] regard to the infirmity of human impulses and passions. In considering the reasonableness of the defendant’s conduct, you may consider evidence of the relative physical capabilities of the individual involved in the incident. You may also consider how many persons were involved in each side. You may also consider the availability of room to maneuver or the means of escape from the area in question. The Commonwealth must prove beyond a reasonable doubt that the defendant acted with excessive force. Bear in mind the defendant does not have to prove anything. If there is evidence that he may have acted in self-defense, then the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you determine that the Commonwealth has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty. In other words, if you have a reasonable doubt about whether or not the defendant acted in self-defense, your verdict must be not guilty.”

Thus, the charge did not include two of the three requirements generally contained in self-defense instructions: whether the defendant had reasonable concern for his safety, and whether he could have reasonably retreated, that is, whether he had availed himself of all proper means to avoid physical combat before resorting to the use of force. The judge only focused on the third requirement, namely, that the defendant used no more force than was reasonably necessary in all the circumstances.

To determine whether the judge’s instruction created a substantial risk of a miscarriage of justice, and keeping in mind that “[e]rrors of this magnitude are extraordinary events and relief is seldom granted,” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions. They are: “(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? (4) May we infer from the record that counsel’s failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?” Id. at 298 (citations omitted). Only if the answer to all four questions is “yes,” may we find that there exists a substantial risk that justice miscarried. Ibid. See Commonwealth v. Russell, 439 Mass. 340, 345 (2003).

Here, only one of these questions may be answered in the affirmative. Yes, there was error. “The jury must receive complete instructions from the trial judge, including an explanation of the proper factors to be considered in determining the issue of self-defense.” Commonwealth v. Shaffer, 367 Mass. 508, 512 (1975). Because the judge omitted two of the three requirements, the self-defense instruction was not complete.

Although there was error, it did not prejudice the defendant. Once self-defense is properly raised either through the Commonwealth’s case-in-chief or by the defendant’s case, the burden then becomes the Commonwealth’s to prove beyond a reasonable doubt that one of the three requirements of self-defense was missing. See Commonwealth v. A Juvenile (No. 1), 396 Mass. 108, 113 (1985); Commonwealth v. Glacken, 451 Mass. 163, 167 (2008).

Thus, the Commonwealth could meet its burden by showing, beyond a reasonable doubt, any one of the following: (1) the defendant did not have a reasonable concern for his personal safety; or (2) the defendant had not availed himself of all proper means to avoid physical combat before resorting to the use of force; or (3) the defendant used more force than was reasonably necessary in all the circumstances of the case. See Commonwealth v. Tirado, 65 Mass. App. 571, 575-576 & n.2 (2006). Proving any one of the three would establish that the defendant did not act in self-defense.

Here, the judge’s error deprived the Commonwealth of two separate means to defeat self-defense, and left the Commonwealth with the single opportunity of proving that the defendant used more force than was reasonable. This instruction prejudiced the Commonwealth, not the defendant.⁵ The effect of the error was that the first two requirements of self-defense were established for the defendant and not open to contrary proof. Far from harming the defendant, this actually made the Commonwealth’s burden of proof more difficult. If the Commonwealth had not proved beyond a reasonable doubt that the defendant used unreasonable force in the circumstances, the jury’s only option would have been to acquit the defendant.

We also determine, considering the error in the context of the entire trial, that the error did not materially influence the verdict in a manner harmful to the defendant. See Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). The defendant’s theory of the case was that the victim struck first and the defendant acted in self-defense. In his closing argument, the defendant primarily stressed what he urged to be inconsistencies in the victim’s accounts of the incident. He argued that the prosecution was relying on the victim to carry its burden to disprove self-defense, and that because the victim’s testimony was not credible, the jury were required to acquit the defendant.

The defendant did not argue that his fear of the victim justified the force he used, that the victim’s injuries were accidently inflicted, or that the Commonwealth had failed to prove that the force he used was excessive.⁶ Rather, he merely maintained that “if [a] person reasonably uses self-defense in the face of imminent danger, a physical threat, . . . that’s a defense to assault and battery.” Although imperfect, the judge did instruct the jury on the proper criteria for assessing whether the amount of force used by the defendant in response to the alleged attack by the victim was proportionate,⁷ and therefore whether the defendant used lawful self-defense. See Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966).

Furthermore, by the removal of two of the self-defense requirements from the jury’s consideration, the defendant received a benefit to which he was not entitled. If, for example, the trial judge had instructed on the requirement that the Commonwealth prove beyond a reasonable doubt that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force, the jury may well have found on that ground that the defendant was not entitled to use self-defense. Although Griffin testified that he was “behind [the defendant] in the doorway,” and that the defendant was “blocked in,” the jury could have appreciated that Griffin, as the defendant’s friend, was biased in his favor. If properly instructed, it would have been reasonable for the jury to conclude that, after having been punched by the victim, the defendant could have turned around and walked out the door where Griffin was standing, rather than returning the punch. After all, Griffin, as the defendant’s friend, had no purpose in blocking the defendant’s exit to facilitate the victim’s purported attack. Thus, even though the error, which provided the defendant with two of the three requirements of self-defense, may have materially influenced the verdict, it was not to the defendant’s detriment. As such, the error in the instruction did not create a substantial risk of a miscarriage of justice.

c. The prosecutor’s closing argument. The defendant claims, for the first time on appeal, that the prosecutor’s closing argument misstated the evidence and distorted key eyewitness testimony. Because the defendant lodged no objection to the argument, we review to determine if the argument was erroneous, and if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Bonds, 445 Mass. 821, 836 (2006); Commonwealth v. Robinson, 74 Mass. App. Ct. 752, 763 (2009). Specifically, the defendant claims that it was improper for the prosecutor to argue as follows:

“[TJhink about the limitations of the witnesses that the defense has brought to the stand. You’ve got these eyewitnesses, right? But Mr. Griffin was standing behind the defendant. So [he] really couldn’t see much and he didn’t say that — we didn’t hear him testify that he saw the victim actually hit the defendant. We only heard him testify that he saw the victim coming in for a swing, at which point the defendant clocked the victim before the defendant was ever hit. So we’ve got conflicting stories even from them.”

The defendant claims that this argument distorted Griffin’s testimony and cast the defendant as the first aggressor. We disagree.

Griffin did not testify that the victim landed the first punch. Rather, Griffin merely testified that “[the victim] set[] his glass down at the table behind him and then came at [the defendant] to punch him,” and “[ijmmediately there was a fight. It was pretty much immediately over. I saw [the victim] fall back.” Thus, while the defendant and his other eyewitness both testified that the victim punched first, Griffin did not. The prosecutor’s statement that “[w]e only heard [Griffin] testify that he saw the victim coming in for a swing” did not misstate or distort the evidence. See Commonwealth v. Johnson, 429 Mass. 745, 750 (1999) (“the prosecutor is allowed to assist jurors in analyzing the evidence and suggesting what conclusions they should draw from the evidence”). There was no error. Finally, because there was no error in the prosecutor’s closing argument, counsel was not ineffective for not objecting to it. Commonwealth v. Kirwan, 448 Mass. 304, 317 (2007). See Commonwealth v. Velazquez, 61 Mass. App. Ct. 667, 675 (2004), cert. denied, 546 U.S. 850 (2005) (counsel not ineffective for not pursuing an objection that would have been unsuccessful).

Judgment affirmed.

1 The doorway to the lounge was a double door, with one door shut, but there was no evidence that it was locked.

2 The police report stated that the defendant claimed he had been attacked by the victim and the victim’s friends, but at trial the defendant denied making that claim.

3 In support of a motion to reconstruct the record, the defendant’s trial counsel submitted an affidavit that claimed he had filed a proposed jury instruction on self-defense, and the judge denied the request over his objection. The judge held a hearing in an attempt to reconstruct whether that was the case. After the hearing, the judge ruled that he had no independent memory on the issue. While the judge was inclined to take trial counsel at his word, he ultimately did not accept the affidavit because he thought counsel could have been mistaken.

4 In the light most favorable to the defendant, there was evidence that the defendant punched the victim only after the victim had first punched the defendant, and that the defendant was “blocked in” by the victim, the walls, the doorway to the lounge, and his friend, and thus had no avenue of escape before resorting to force.

5 In light of this, we can infer from the record that counsel’s choice to not object to the omissions was tactical. See Commonwealth v. Randolph, 438 Mass. at 298.

6 The dissent suggests that the extent of the victim’s injuries may have been accidentally occasioned by his fall over the table, but no witness claimed they were the result of an accident and the defendant did not argue that they were.

7 The majority does not dispute the dissent’s claim that the defendant’s reasonable apprehension is a factor in determining what force the defendant may use under all the circumstances. However, the judge did properly instruct on proportionality and its importance when assessing the reasonableness of the defendant’s actions. See Commonwealth v. Franchino, 61 Mass. App. Ct. at 368-369. Although the judge did not instruct on the defendant’s concern for his safety and the ability to retreat, factors the Commonwealth could then not disprove, the judge did not limit the circumstances that could be considered.