Opinion
13-P-1814
08-20-2015
COMMONWEALTH v. THOMAS McCANN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Thomas McCann was convicted after a jury trial of assault and battery causing serious bodily injury, G. L. c. 265, § 13A(b)(i). He asserts on appeal that the judge erroneously declined to instruct on the defense of another. The defendant suggests the evidence supported an inference that he acted in defense of either his sister, Ashley McCann, or his friend, Sean Opila -- both of whom were present and involved in the fight that the defendant joined. At trial, the defendant requested the defense of another instruction as to Ashley only; the judge denied his request. We affirm.
The defendant was charged with assault and battery by means of a dangerous weapon and causing serious bodily injury, G. L. c. 265, § 15A(c), and the jury convicted him of the lesser included offense.
Because the defendant and his sister employ the same surname, we will refer to the sister by her first name.
"A defendant is entitled to a [defense of another] instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of [defense of another] were present." Commonwealth v. Miranda, 77 Mass. App. Ct. 76, 78 (2010), quoting from Commonwealth v. Pike, 428 Mass. 393, 395 (1998). "In making this inquiry, 'all reasonable inferences should be resolved in favor of the defendant,'" Miranda, supra (citation omitted), and we determine "whether there was a factual predicate for a defense of another instruction based upon any view of the evidence." Id. at 79.
The defense of another instruction is warranted when the evidence shows that "(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. McClendon, 39 Mass. App. Ct. 122, 125 (1995), quoting from Commonwealth v. Martin, 369 Mass. 640, 649 (1976). The second requirement "tracks the elements of self-defense." McClendon, supra at 126. Self-defense is justified when "(1) [the actor] had reasonable concern for [her] personal safety; (2) [s]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 from Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369 (2004). However, "[t]he right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless that person withdraws in good faith from the conflict and announces [her] intention to retire." Commonwealth v. Naylor, 407 Mass. 333, 335 (1990), quoting from Commonwealth v. Maguire, 375 Mass. 768, 772-773 (1978).
There is no dispute that Ashley was the first aggressor here. She dealt the first blow -- hitting the victim with her handbag -- and also the second -- striking the victim with her handbag again. It is equally clear that she did not announce any intention to retire or withdraw, despite ample opportunity to do so. The defendant asserts that Ashley was nevertheless entitled to defend herself against the victim's responsive use of excessive force. See Miranda, supra at 80. He makes this claim on the basis of the victim stating, in response to Ashley's first two blows, "you hit me with your bag one more fucking time I will kill you," and then proceeding to punch Ashley with a closed fist across the face after she struck him yet again.
The fight ensued outside a home. The defendant's car was parked nearby. Nothing prevented Ashley from retreating to the car away from the victim.
The defendant's reliance on Commonwealth v. Miranda, supra, is misplaced. The defendant in Miranda was defending another from a police officer's use of excessive force while effectuating an arrest, not defending another from a victim's alleged use of excessive force against a first aggressor. See ibid.
The trooper "had thrown [the arrestee] to the ground and . . . [the arrestee] was lying face down with the trooper's knee on her back." Miranda, 77 Mass. App. Ct. at 80.
In any event, the victim's use of force here was not excessive. Ashley dealt the first and second strikes. The victim responded with a challenge, "hit me [again and] I will kill you," and, after being hit again, he struck back. This use of force did not give rise to a right of self-defense for Ashley or defense of another for the defendant. Compare Commonwealth v. Evans, 390 Mass. 144, 153 (1983) ("We note that the victim's apparently unarmed struggle with the defendant could not be said to constitute the use of excessive force"); Naylor, supra at 334-335 & n.3 (1990) (patron who "exchanged blows" with the defendant did not use excessive force).
We also see no merit to the defendant's claim that he was nevertheless entitled to the instruction for coming to the aid of his friend, Opila. The defendant did not request the instruction on this basis. Nor did he argue to the jury that he acted in defense of Opila. See Commonwealth v. Norris, 462 Mass. 131, 143 (2012) (Where the "defendant placed [no] reliance of the theory of defense of another at trial, nor was there any testimony or argument to support the claim that [the defendant] believed [a particular third party] was in danger or wanted to protect him," the judge "was not required to give an instruction on defense of another sua sponte"). Moreover, even if the defendant had requested the instruction on this basis, he would not have been not entitled to it. A person "is not entitled to use force in defense of another if the other person intervened in a fight by his own volition," as Opila did here. Commonwealth v. Barbosa, 463 Mass. 116, 136 (2012), citing Commonwealth v. Adams, 458 Mass. 766, 775 (2011). Accordingly, we perceive no error.
Judgment affirmed.
By the Court (Kafker, C.J., Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 20, 2015.