MA CPJI §5.4.4 Supplemental Instructions

MA CPJI §5.4.4 Supplemental Instructions

State: Massachusetts

§5.4.4 Supplemental Instructions [1]

(a) Mere Words Insufficient [2]

A person may not lawfully use force to defend himself or herself because of reproachful words or names, regardless of how grievous, indecent or unjustifiable, or to whom addressed, if they are unaccompanied by an actual or menaced assault. [3] One need not submit to a physical attack before one may defend oneself, but there must be come overt act by the other person, threatening in nature, that places the defendant in reasonable and actual apprehension of physical attack. [4]

ENDNOTES

[1] . . .

[2] . . .

[3] Commonwealth v. Bermudez, 370 Mass. 438, 440-41 (1976); Commonwealth v. Vanderpool, 367 Mass. 743, 746-47 (1975); Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 305 (1850); see also Commonwealth v. Harris, 464 Mass. 425, 434-35 (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”).

[4] Commonwealth v. Glass, 401 Mass. 799, 808 (1988); Commonwealth v. Doucette, 391 Mass. 443, 453-54 n.5 (1984); Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966); Commonwealth v. Barnacle, 134 Mass. 215, 215-26 (1883).

(b) Mutual Combat

Generally, where two people engage in a fistfight by agreement, neither is acting in self-defense. [1] However, if contrary to the mutual understanding the use of force by one person escalates to such a degree that the other person reasonably believes he or she is in imminent danger of death or great bodily harm, then he or she may use force to defend himself or herself. [2]

ENDNOTES

[1] Commonwealth v. Bertrand, 385 Mass. 356, 362-63 (1982); Commonwealth v. Barber, 18 Mass. App. Ct. 460, 463 (1984).

[2] Commonwealth v. Barber, 18 Mass. App. Ct. 460, 463 (1984).

(c) Defendant’s Past Physical Sexual or Psychological Abuse [1]

. . .

(d) Definition of Dwelling Under “Castle Law,” G.L. c. 278, § 8A

A dwelling is a place where one is temporarily or permanently residing and that is in one’s exclusive possession. [1] As for apartment buildings, a tenant’s dwelling cannot reasonably be said to extend beyond his or her own apartment and perhaps any separate areas subject to his or her exclusive control. [2]

ENDNOTES

[1] This instruction is paraphrased form Commonwealth v. Albert, 391 Mass. 853, 861-62 (1984) (citing Commonwealth v. Thomas, 358 Mass. 771, 774-75 (1971)); see also Commonwealth v. Carlino, 449 Mass. 71, 75 (2007) (driveway not within meaning of dwelling); Commonwealth v. McKinnon, 446 Mass. 263, 267 (2006) (porch and exterior stairs).

[2] Commonwealth v. Albert, 391 Mass. 853, 861-62 (1984); see also Commonwealth v. Goldoff, 24 Mass. App. Ct. 458, 460-62 (1987) (common area of apartment not within dwelling).

(e) Use of Force in Resisting Arrest or Prison Regulation [1]

. . .

(f) Use of Force to Resist Arrest or Law Enforcement Action—Alternate Instruction

. . .

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