MA CPJI §5.4.3 Self-defense: Nondeadly Force

MA CPJI §5.4.3 Self-defense: Nondeadly Force

State: Massachusetts

§ 5.4.3 Self-defense: Nondeadly Force [1]

[Note: This instruction, at 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] The instruction is to be used where the evidence raises an issue [3] of only nondeadly force in self-defense—i.e., force not intended to cause death or great bodily harm.]

Since this case raises a question whether the defendant properly used force to defend him/herself from an attack, I will provide you with instructions concerning the law governing the use of force in self-defense before discussing the elements of the crime(s).

A person is not guilty of any crime if he/she acted in proper self-defense. [5] It is the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant did not act in proper self-defense. [6] The defendant does not have the burden to prove that he/she acted 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. [7]

The law does not permit retaliation or revenge. [8] The proper exercise of self-defense arises from necessity of the moment and ends when the necessity ends. [9] An individual may use only sufficient force to prevent occurrence or reoccurrence of the attack. [10] The question of what force is needed in self-defense, however, is to be considered with due regard for human impulses and passions, and not to be judged too strictly. [11]

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 [or five] propositions beyond a reasonable doubt: [12]

1. The defendant did not actually believe that he/she was in immediate danger of harm from which he/she could save him/herself only by using force. [13]

2. A reasonable person in the same circumstances as the defendant would not reasonably have believed that he or she was in immediate danger of harm from which he or she could save him or herself only by using force. [14]

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 force. [15]

4. The defendant used more force than was reasonably necessary under all the circumstances. [16]

5. [Where there is evidence the defendant was the initial aggressor:] The defendant was the first to use or threaten force, and did not withdraw in good faith from the conflict and announce to the person (or persons) whom he/she provoked his/her intention to withdraw and end the confrontation without any use of or additional use of force.

I will now discuss each of these four [or five] propositions in more detail, and remind you that the Commonwealth may satisfy its burden of proving that the defendant did not act in proper self-defense by proving any one of these propositions beyond a reasonable doubt:

The first proposition is that the defendant did not actually believe that he/she was in immediate danger of harm from which he/she could save him/herself only by using force. [17]

[If applicable, insert supplemental instruction that mere words are insufficient from § 5.4.49a), below.]

The second proposition is that a reasonable person in the same circumstances as the defendant would not reasonably have believed that he/she was in immediate danger of harm from which he/she could save him/herself only by using force. [18]

In considering whether or not the defendant actually believed that he/she was in immediate danger of harm, and the reasonableness of that belief that he/she was in such danger, you may consider all the circumstances bearing on the defendant’s state of mind at the time. [19] [20] Moreover, in determining whether the defendant was reasonably in fear of harm, you may consider any or all of the following:

• evidence of the [deceased’s/alleged victim’s] reputation as a violent or quarrelsome person, but only if that reputation was known to the defendant. [21]

• evidence of other instances of the [deceased’s/alleged victim’s] violent conduct, but only if the defendant knew of such conduct; [22] and

• evidence of threats of violence made by the [deceased/alleged victim] against the defendant, but again, only if the defendant was aware of such threats. [23]

[Where there is evidence the defendant at the time of the offense had a mental impairment or was under the influence of alcohol or drugs:]

You may consider the defendant’s mental condition at the time of the [killing/crime], including any credible evidence of mental impairment or the effect on the defendant of his/her consumption of alcohol or drugs, in determining whether the defendant actually believed that he/she was in immediate danger of harm, but not in determining whether a reasonable person in those circumstances would have believed he or she was in immediate danger. [24]

[Where the evidence raises an issue of mistaken belief:]

A person may use force to defend him/herself even if he/she had a mistaken belief that he/she was in immediate danger of harm, provided that the defendant’s mistaken belief was reasonable based on all the circumstances presented in the case. [25]

The third proposition is that 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 force. [26] Whether a defendant used all reasonable means to avoid physical combat before resorting to the use of force depends on all of the circumstances, including the relative physical capabilities of the combatants, any weapons used, the availability of room to maneuver or escape from the area, and the location of the assault. [27]

[For self-defense cases not under the “castle law,” G.L. c. 278, § 8A:]

A person must retreat unless he/she cannot do so in safety, or unless retreat would increase the danger to his/her own life. [28]

[For self-defense cases under the “castle law,” G.L. c. 278, § 8A:]

A person who is lawfully residing in his/her house, apartment or some other dwelling is not required to retreat before using reasonable force against an unlawful intruder, if the resident reasonably believes that the intruder is about to kill or seriously injure him/her or another person lawfully in the dwelling, and also reasonably believes that such force is necessary to protect him/herself or the other person lawfully in the dwelling. [29]

[If applicable, insert definition of “dwelling” from § 5.4.4(d), below.]

The fourth proposition is that the defendant used more force than was reasonably necessary under all the circumstances. [30] In considering whether the force used by a person was reasonable under the circumstances, you may consider evidence of the relative physical capabilities of the combatants, the number of persons who were involved on each side, the characteristics of any weapons used, the availability of room to maneuver, the manner in which the force was used, the scope of the threat presented, or any other factor you deem relevant to the reasonableness of the person’s conduct under the circumstances. [31]

5. [Where there is evidence the defendant was the initial aggressor:] The fifth proposition is that the defendant was the first to use or threaten force, [32] and did not withdraw in good faith from the conflict and announce to the person (or persons) whom he/she provoked his/her intention to withdraw and end the confrontation without any use of or additional use of force.

The right of self-defense cannot be claimed by a defendant who was the first to use or threaten force, because a defendant must have used or attempted to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of force. A defendant who provokes or initiates such a confrontation must withdraw in good faith from the conflict and announce to the person (or persons) whom he/she provoked his/her intention to withdraw and end the confrontation without the use of force or additional force. [33] For the purpose of determining who attacked whom first in the altercation, you may consider evidence of the [alleged victim’s][and a third party acting together with the [alleged victim’s]] past violent conduct, whether or not the defendant knew of it. [34]

[If applicable, use supplemental instruction § 5.4.4(e) or (f) below—Use of Force in Resisting Arrest or Prison Regulation]

ENDNOTES

[1] . . .

[2] . . .

[3] . . .

[4] This instruction should be given in cases where it is clear that only nondeadly force was used—i.e., force not intended to cause death or great bodily harm. See Commonwealth v. Cataldo, 423 mass. 318, 321 (1996); Commonwealth v. Baseler, 419 Mass. 500, 503-04 (1995); Commonwealth v. Bastarache, 382 Mass. 86, 105 & n.15 (1980). “Nondeadly force, such as the force of one’s fists, hands, and arms, is considered to be nondeadly even if a death results.” Commonwealth v. Noble, 429 Mass. 44, 46 (1999). Where the evidence would permit the jury to find that the force used by the defendant was either deadly or nondeadly force, the defendant is entitled to instructions on the use of both deadly and nondeadly force in self-defense, and the jury shall decide on the type of force used, as set forth in § 5.4.5(f), below. See Commonwealth v. Walker, 443 Mass. 213, 217 (2005); Commonwealth v. Baseler, 419 Mass. 500, 503 (1995). But see Commonwealth v. Dyer, 460 mass. 728, 750 & N.30 (2011) (defendant not entitled to nondeadly force instructions where he testified that he used only his hands to struggle for gun and it went off accidentally), cert. denied, 132 S. Ct. 2693 (2012).

[5] Commonwealth v. Rogers, 459 Mass. 249, 269-70 (2011) (“if the defendant acted with reasonable force in self-defense, he was entitled . . . to a verdict of not guilty.”)

[6] Commonwealth v. King, 460 Mass. 80, 83 (2011) (“Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense”); Commonwealth v. Glacken, 451 Mass. 163, 166-67 (2008) (quoting Commonwealth v. Williams, 450 Mass. 879, 882 (2008) (“To obtain a conviction of murder ‘[w]here the evidence raises a question of self-defense, the burden is on the government to prove beyond a reasonable doubt that the defendant did not act in self-defense’”)

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

[8] See Commonwealth v. Pike, 428 Mass. 393, 398 (1998) (self-defense theory not submitted to jury where evidence showed defendant used force out of “anger or revenge”).

[9] Commonwealth v. Santos, 454 Mass. 770, 782-83 (2009) (quoting instruction with approval); Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966).

[10] Commonwealth v. King, 460 Mass. 80, 83 (2011) (“force that was used was greater than necessary in all the circumstances of the case”); Commonwealth v. Kendrick, 351 Mass. 203, 211-12 (1966).

[11] Commonealth v. Kendrick, 351 Mass. 203, 212 (1966) (quoting Monize v. Begaso, 190 Mass. 87, 89 (1906)); see also Commonweath v. Santos, 454 mass. 770, 773 (2009).

[12] See Commonwealth v. Glacken, 451 Mass. 163, 167 (2008) (enumerating required factors for self-defense).

[13] Commonwealth v. Cataldo, 423 Mass. 318, 321 (1996) (“A person may defend oneself with the use of nondeadly force if he or she reasonably fears for his or her personal safety.”) see also Commonwealth v. Baseler, 419 Mass. 500, 503-04 (1995); Commonwealth v. Bastarache, 382 Mass. 86, 105 n.15 (1980).

[14] Commonwealth v. Bastarache, 382 Mass. 86, 105 & n.15 (1980).

[15] Commonwealth v. Bastarache, 382 Mass. 86, 105 (1980); see also Commonwealth v. Mercado, 456 Mass. 198, 2090 (2010) (citing Commonwealth v. Benoit, 452 Mass. 212, 226 (2008) (“privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat”)).

[16] Commonwealth v. Baseler, 419 Mass. 500, 504 (1995); see also Commonwealth v. Glacken, 451 Mass. 163, 167 (2008) (“defendant used more force than was reasonably necessary in all the circumstances of the case”).

[17] Commonwealth v. Cataldo, 423 Mass. 318, 321 (1996); Commonwealth v. Baseler, 419 Mass. 500, 503-04 (1995); Commonwealth v. Bastarache, 382 Mass. 86, 105 & n.15 (1980).

[18] Commonwealth v. Bastarache, 382 Mass. 86, 105 & n.15 (1980).

[19] Cf. Commonwealth v. Santos, 454 mass. 770, 773 (2009) (“person using a dangerous weapon (or deadly force) in self-defense must also have actually believed that he was in imminent danger of serous harm or death”); Commonwealth v. Little, 431 Mass. 782, 787 (2000).

[20] In deciding whether the evidence in the case raises a question of self-defense, a judge may consider, among other evidence:

(a) evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse;
(b) evidence by expert testimony regarding the common pattern in abusive relationships; the nature and effects of physical, sexual or psychological abuse and typical responses thereto, including how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm; the relevant facts and circumstances which form the basis for such opinion; and evidence whether the defendant displayed characteristics common to victims of abuse.

G.L. c. 233, § 23F; see Commonwealth v. Anestal, 463 Mass. 655, 676 (2012) (“psychological consequences of a history of abuse are relevant to the consideration whether the defendant was in fear of serious injury or death”).

[21] Commonwealth v. Clemente, 452 Mass. 295, 308 (2008) (citing Commonwealth v. Fontes, 396 Mass. 733, 734-35 (1986) (“The judge instructed in regard to the reputation evidence that the jury could consider whether the victim had a reputation as a ‘violent or quarrelsome person that was known to the defendant before the alleged incident.’ That instruction was and is a correct statement of the law”)).

[22] Commonwealth v. Adjutant, 443 Mass. 649, 654 (2005) (quoting Commonwealth v. Fontes, 396 Mass. 733, 734-35 (1986) (“Massachusetts has long followed the evidentiary rule that permits the introduction of evidence of the victim’s violent character, if known to the defendant, as it bears on the defendant’s state of mind and the reasonableness of his actions in claiming to have acted in self-defense”)); Commonwealth v. Rodriquez, 418 Mass. 1, 5 (1994) (quoting Commonwealth v. Fontes, 396 Mass. 733, 735 (1986)); Commonwealth v. Pidge, 400 Mass. 350, 353 (1987) (“It is well established that a defendant asserting self-defense is allowed to introduce evidence showing ‘that at the time of the killing [she] knew of specific violent acts recently committed by the victim’” because such evidence is relevant in determining “ whether the defendant acted justifiably in reasonable apprehension of bodily harm”).

[23] Commonwealth v. Pidge, 400 Mass. 350, 353 (1987); Commonwealth v. Edmonds, 365 Mass. 496, 502 (1974). Where a defendant has been the victim of abuse, evidence of abuse and expert testimony regarding the consequences of abuse are admissible and may be considered by the jury with respect to the reasonableness of a defendant’s apprehension that death or serious bodily injury was imminent, the reasonableness of a defendant’s belief that he had used all available means to avoid physical combat, and the reasonableness of a defendant’s perception of the amount of force needed to deal with the threat. See G.L. c. 233, §23F.

[24] Cf. Commonwealth v. Barros, 425 Mass. 572, 576 (1997) (“determination as to whether a defendant’s belief concerning his exposure to danger was reasonable may not take into account his intoxication”).

[25] Commonwealth v. Pike, 428 Mass. 393, 396-97 (1998) (“If the defendant’s apprehension of grievous bodily harm or death, though mistaken, was reasonable, his actions in self-defense may be justifiable”); see also Commonwealth v. Glass, 401 Mass. 799, 808 (1988).

[26] Commonwealth v. Mercado, 456 Mass. 198, 209 (2010) (citing Commonwealth v. Benoit, 452 Mass. 212, 226 (2008) (“privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat”)).

[27] Commonwealth v. Pike, 428 Mass. 393, 399 (1988) (“Whether a defendant used all reasonable means of escape before acting in self-defense is a factual question dependent on a variety of circumstances, including the relative physical capabilities of the combatants, the weapons used, the availability of maneuver room in, or means of escape from, the area, and the location of the assault.

[28] Commonwealth v. Benoit, 452 Mass. 212, 226-27 (2008) (quoting Commonwealth v. Pike, 428 Mass. 393, 398 (1998) (“A self-defense instruction is not required unless there is some evidence tha the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force. ‘this rule does not impose an absolute duty ot retreat regardless of personal safety considerations; an individual need not place himself in danger nor use every means of escape short of death before resorting to self-defense . . . . He must, however, use every reasonable avenue of escape available to him.’” [citations omitted])); cf. Commonwealth v. Peloquin, 437 Mass. 204, 212 (2002) (noting in dicta that set of jury “instructions, taken as a whole, explained that a defendant need not retreat unless he can do so in safety, and need not do so when he would increase the danger to his own life”).

[29] This instruction is required by G.L. c. 278, § 8A, which provides that, where “an occupant of a dwelling . . . was in his dwelling at the time of the offense and . . . acted in the reasonable belief that the person unlawfully in [the] dwelling was about to inflict great bodily injury or death upon [the] occupant or upon another person lawfully in [the] dwelling, and that [the] occupant used reasonable means to defend himself or such other person lawfully in [the] dwelling[, that] [t]here shall be no duty on [the] occupant to retreat from [the] person unlawfully in [the] dwelling.” This instruction is not appropriate where the occupant if a dwelling uses force on another person lawfully in the dwelling. See Commonwealth v. Peloquin, 437 Mass. 204, 208 (2002) (“Nothing in G.L. c. 278 § 8A . . . eliminates the duty on the part of the occupant of the dwelling to retreat from a confrontation with a person who is lawfully on the premises”); see also Commonwealth v. Carlino, 449 Mass. 71, 76 (2007) (instruction not warranted where fatal encounter occurs outside of dwelling, in driveway); Commonwealth v. McKinnon, 446 Mass. 263, 267-68 (2006) (same; outside stairs and porch).

[30] Commonwealth v. Glacken, 451 Mass. 163, 167 (2008) (“defendant used more force than was reasonably necessary in all the circumstances of the case”).

[31] Commonwealth v. Walker, 443 Mass. 213, 218 (2005); Commonwealth v. King, 460 Mass. 80, 83 & n.2, 87 (2011), affirming the factors given in Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966) (“jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from, the . . . area”).

[32] See Commonwealth v. Barbosa, 463 Mass. 116, 136 (2012) (quoting Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (“right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault”)); see also Commonwealth v. Harris, 464 Mass. 425, 435-36 & n.11 (2013) (noting that instruction that “[a] person who provokes or initiates an assault ordinarily cannot claim the right of self-defense” is “potentially overbroad because it does not define what constitutes provocation of the type that results in the forfeiture of a self-defense claim” and advising judges to “make clear that conduct involving only the use of nonthreatening words will not be sufficient to qualify a defendant as a first aggressor’”).

[33] Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007) (quoting Commonwealth v. Maguire, 375 Mass. 768, 772 (1978) (“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 his intention to retire”)).

[34] Commonwealth v. Pring-Wilson, 448 Mass. 718, 736-38 (2007) (quoting Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005) (evidence of violent conduct, even when defendant did not know of such conduct, admissible to resolve contested identify of likely first attacker; “where the identify of the first aggressor is in dispute and the victim has a history of violence . . . trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant’s claim of self-defense”)).

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