MA CPJI §5.4.2 Defense of Another

MA CPJI §5.4.2 Defense of Another

State: Massachusetts

§ 5.4.2 Defense of Another

[Note: As with self-defense, this instruction in the discretion of the judge may be given as a stand-alone instruction prior to the instructions on the substantive crimes, or inserted within those instructions. [2] In a homicide case, the instruction is to be used where the evidence raises an issue of deadly force in defense of another, [3] and the theory of murder is not felony murder alone. [4] Because the Commonwealth need not prove the absence of defense of another to prove felony murder, this instruction does not apply to felony murder. If the Commonwealth is entitled to an instruction on murder and felony murder, the judge should instruct the jury that this instruction does not apply to felony murder, because the Commonwealth is not required to prove the absence of defense of another to prove felony murder.]

Because the issue of defense of another generally arises where there is also an issue of self-defense, the instruction below is premised on the jury having earlier been instructed as to the law of self-defense. Where an issue of defense of another arises without an issue of self-defense, the judge may still need to explain the law of self-defense to assist the jury in understanding the law of defense of another, because the jury are required to determine whether, based on the circumstances known to the defendant, a reasonable person would believe that the other person was justified in using deadly [or nondeadly] force to protect himself.

A person is not guilty of any crime if he/she acted in proper defense of another. It is the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant did not act in proper defense of another. The defendant does not have the burden to prove that he/she acted in proper defense of another. If the Commonwealth fails to prove beyond a reasonable doubt that the defendant did not act in proper defense of another, then you must find the defendant not guilty. [5]

The Commonwealth may satisfy its burden of proving that the defendant did not act in proper defense of another if it proves any one of the following three propositions beyond a reasonab le doubt: [6]

1. The defendant did not actually believe that the other person was in immediate danger of death or serious bodily harm from which the other person found save him/herself only by using deadly force. You need not determine whether the other person actually believed him/herself to be in immediate danger of death or serious bodily harm; you must focus instead on whether the defendant actually had that belief. [7]

2. A reasonable person in the circumstances known to the defendant would not have believed that the other person was in immediate danger of death or serious bodily harm from which the other person could save him/herself only by using deadly force. You need not determine whether a reasonable person in the circumstances known to the other person would have believed him/herself to be in immediate danger of death or serious bodily harm; you must focus instead on what a reasonable person in the circumstances known to the defendant would have believed. [8]

3. A reasonable person in the circumstances known to the defendant would not have believed that the other person was justified in using deadly force to protect him/herself. [9]

[Note: Where the evidence, viewed in the light most favorable to the defendant, would permit the jury to find that the force used by the defendant in committing the crime was either deadly or nondeadly force, the defendant is entitled to the following instruction on the use of both deadly and nondeadly force in defense of another, and the jury shall decide on the type of force used. [10] ]

Deadly or Nondeadly Force: Deadly force is force that is intended to or likely to cause death or serious bodily harm. Nondeadly force, by contrast, is force that is not intended to or likely to cause death or serious bodily harm. [11] If the defendant, based on the circumstances known to the defendant, had reasonable grounds to believe (1) that the other person was in immediate danger of harm from which the other person could save him/herself only by using nondeadly force, and (2) that the other person was justified in using nondeadly force to protect him/herself, then the defendant had the right to use whatever nondeadly means were reasonably nece3ssary to avert the threatened harm, but he/she could use no more force than was reasonable and proper under the circumstances. You must consider the proportionality of the force used to the threat of immediate harm in assessing the reasonableness of nondeadly force.

ENDNOTES

[1] . . .

[2] . . .

[3] . . .

[4] . . .

[5] See Commonwealth v. Glacken, 451 Mass. 163, 166-67 (2008).

[6] See Commonwealth v. Young, 461 Mass. 198, 208 (2012) (enumerating required factors for defense of another); Commonwealth v. Martin, 369 Mass. 640, 649 (1976) (same)

[7] See Commonwealth v. Barbosa, 463 Mass. 116, 135-36 (2012); Commonwealth v. Young, 461 Mass. 198, 209 & N.19 (2012); Commonwealth v. Martin, 369 Mass. 640, 649 (1976).

[8] See Commonwealth v. Young, 461 Mass. 198, 209 & N.19 (2012) (circumstances must be viewed from perspective of intervening defendant, not third party; “whether the third party was, in retrospect, actually entitled to use self-defense is not a consideration”); see also Commonwealth v. varvosa, 463 Mass. 116, 135-36 (2012).

[9] See Commonwealth v. Young, 461 Mass. 198, 208 (2012) (quoting Commonwealth v. Martin, 369 Mass. 640, 649 (1976); see also Commonwealth v. Barbosa, 463 Mass. 116, 135-36 (2012).

[10] Commonwealth v. King, 460 Mass. 80, 83 (2011).

[11] Commonwealth v. Cataldo, 423 Mass. 318, 325 (1996) (“force neither intended nor likely to cause death or great bodily harm”); see Commonwealth v. Lopez, 440 Mass. 731, 739 (2004) (using one’s fists is nondeadly force).

[12] Commonwealth v. King, 460 Mass. 80, 83 (2011) (“(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.’”) (quoting Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-69 (2004)); Commonwealth v. Adams, 458 Mass. 766, 774 (2011); Commonwealth v. Lopes, 440 Mass. 731, 739 (2004) (“use of nondeadly force is justified at a lower level of danger, in circumstances giving rise to a ‘reasonable concern over his personal safety’”) (quoting Commonwealth v. Baseler, 419 Mass. 500, 502-03 (1995)); Commonwealth v. Noble, 429 Mass. 44, 46 (1999).

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