MA CMJI 9.260. Self-Defense; Defense of Another; Defense of Property

MA CMJI 9.260. Self-Defense; Defense of Another; Defense of Property

State: Massachusetts

 

Massachusetts District Court: Criminal Model Jury Instructions

MA Instruction 9.260 (2009)

SELF-DEFENSE; DEFENSE OF ANOTHER; DEFENSE OF PROPERTY

I. SELF-DEFENSE

INTRODUCTION

A person is allowed to act in self-defense. If evidence of self-defense is present, 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 or not the defendant acted in self-defense, your verdict must be not guilty.

A. USE OF NON-DEADLY FORCE

To prove that the defendant did not act in self-defense, the Commonwealth must prove one of the following things beyond a reasonable doubt:

First, that the defendant did not reasonably believe he (she) was being attacked or immediately about to be attacked, and that his (her) safety was in immediate danger; or

Second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or

Third, that the defendant used more force to defend himself (herself) than was reasonably necessary in the circumstances.

B. USE OF DEADLY FORCE

If the defendant (used deadly force, which is force intended or likely to cause death or great bodily harm) (or) (used a dangerous weapon in a manner intended or likely to cause death or great bodily harm), the Commonwealth must prove one of the following three things beyond a reasonable doubt:

First, that the defendant did not reasonably and actually believe that he (she) was in immediate danger of great bodily harm or death; or

Second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or

Third, that the defendant used more force to defend himself (herself) than was reasonably necessary in the circumstances.

In conclusion, to obtain a conviction for the offense(s) of______________ , the Commonwealth must prove each element of the offense beyond a reasonable doubt. If there is evidence of self-defense, the Commonwealth also has the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense.

If each element of the crime has been proved beyond a reasonable doubt and it has also been proved beyond a reasonable doubt that the defendant did not act in self-defense, you should return a verdict of guilty.

If any element of the crime has not been proved beyond a reasonable doubt, or the Commonwealth did not prove beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTIONS

1.Reasonable apprehension. 

A person cannot lawfully act in selfdefense unless he (she) is attacked or is immediately about to be attacked. The Commonwealth may prove that the defendant did not act in self-defense by proving beyond a reasonable doubt that there was no overt act — either words, a gesture, or some other action — that gave rise to a reasonable belief of attack or immediate danger

(Where use of deadly force is at issue add: “of great bodily harm or death.”

2. Duty to retreat. 

A person cannot lawfully act in self-defense unless he or she has exhausted all other reasonable alternatives before resorting to force. A person may use physical force in self-defense only if he (she) could not get out of the situation in some other way that was available and reasonable at the time. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger. You may consider any evidence about where the incident took place, whether or not the defendant might have been able to escape by walking away or otherwise getting to safety or by summoning help if that could be done in time, or by holding the attacker at bay if the means were available, or by some other method. You may consider whether the use of force reasonably seemed to be the only means of protection in the circumstances. You may take into account that a person who is attacked may have to decide what to do quickly and while under emotional strain.

3. Excessive force. 

A person cannot lawfully act in selfdefense if one uses more force than necessary in the circumstances to defend oneself. How much force is necessary may vary with the situation. Exactness is not always possible. You may consider whether the defendant had to decide how to respond quickly under pressure. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant used clearly excessive and unreasonable force. You may also consider any evidence about the relative size or strength of the persons involved, where the incident took place, (and what kind of weapons, if any, were used), among other things

4. Retaliation. 

A person cannot lawfully act in self-defense when one uses force in retaliation. The right to self-defense arises from necessity and ends when the necessity ends. The Commonwealth may prove the defendant did not act in selfdefense by proving beyond a reasonable doubt that the defendant was no longer in any immediate danger and was just pursuing his (her) attacker for revenge or to ward off any possibility of attack in the indefinite future.

5. The “castle rule”: retreat not required in dwelling. 

A person lawfully occupying a house, apartment or other dwelling is not required to retreat from or use other means to avoid combat with an unlawful intruder, if two circumstances exist:

First, the occupant reasonably believes that the intruder is about to inflict great bodily injury or death on him (her) or on another person lawfully in the dwelling; and

Second, the occupant uses only reasonable means to defend himself (herself) or the other person lawfully in the dwelling.

A “dwelling” is a place where a person lives; a place where one is “temporarily or permanently residing and which is in [one’s] exclusive possession.” The term includes all buildings or parts of buildings used as dwellings, including (apartment houses) (tenement houses) (hotels) (boarding houses) (dormitories) (hospitals) (institutions) (sanitoriums) (or) (other buildings where people reside).

The term “dwelling” does not extend to common areas such as common hallways in an apartment building. In multiunit housing, the “dwelling” only extends to areas over which the person has a right of exclusive control.

The Commonwealth may prove that the defendant did not act in self-defense in a dwelling by proving beyond a reasonable doubt:

First, that (the premises were not a dwelling) (or) (the defendant was not a lawful occupant of the premises) (or) (the alleged victim was not an unlawful intruder) (or) (the defendant did not reasonably believe that the alleged victim was about to inflict great bodily injury or death on him (her) or on anothe person lawfully in the dwelling) (or) (the defendant used clearly excessive force to defend himself (herself) or the other person lawfully in the dwelling); and

Second, that the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger.

If there is an issue as to whether the alleged victim was an unlawful intruder, the jury must be instructed on trespass (Instruction 8.220) or given other appropriate instructions.

6. Defendant as original aggressor. 

Generally, the original aggressor has no right of self-defense unless he (she) withdraws from the conflict in good faith and announces his (her) intention of abandoning the fight.

7. Victim’s prior threats and violence against defendant. 

In considering who was being attacked by whom, you may take into account any threats of violence made by [the alleged victim] against the defendant and whether, as the defendant contends, [the alleged victim] was trying to carry out such threats during this incident. If the defendant was aware, at the time of the incident, that such threats had been made, you may also consider them in determining whether the defendant was reasonably afraid for his (her) own safety.

You may also consider any specific, recent acts of violence that were committed by [the alleged victim] against the defendant and that were known to the defendant, on the issue of whether the defendant was reasonably afraid for his (her) own safety.

8. Victim’s prior acts of violence unknown to defendant. 

In considering who was being attacked by whom, you may take into account any act (acts) of violence that may have been initiated by [the alleged victim] on (a prior occasion) (prior occasions), even if the defendant did not know of (that act) (those acts) of violence at the time of this incident. You may consider that evidence on the issue of whether [the alleged victim] initiated this incident.

9. Victim’s reputation for violence known to defendant. 

You may consider whether [the alleged victim] had a reputation for violence or quarreling that was known to the defendant on the issue of whether the defendant was reasonably (and actually) afraid for his (her) own safety.

10. Mutual combat.

When two people engage in a fist fight by agreement, generally neither of them is acting in self-defense because they have not used all reasonable means to avoid combat. But a person regains the right of self-defense if during the fight he (she) reasonably concludes that the other person, contrary to their mutual understanding, has escalated the fight by introducing deadly force.

11. Injury-prone victim. 

If a person has exhausted all proper means to avoid physical combat, he (she) may use appropriate non-deadly force in self-defense if he (she) reasonably believes that his (her) personal safety is in danger, even against someone, like a drunk, who is known to be susceptible to injury.

12. Police privilege; Resisting arrest. 

Because of the nature of the job, a police officer is permitted to use force in carrying out his (her) official duties if such force is necessary and reasonable. A person who is arrested by someone who he (she) knows is a police officer is not allowed to resist that arrest with force, whether the arrest is lawful or not. Even if the arrest is illegal, the person must resort to the legal system to restore his (her) liberty. However, if a police officer uses excessive or unnecessary force to make an arrest — whether the arrest is legal or illegal — the person who is being arrested may defend himself (herself) with as much force as reasonably appears to be necessary. The person arrested is required to stop resisting once he (she) knows or should know that if he (she) stops resisting, the officer will also stop using excessive or unnecessary force. The Commonwealth must prove beyond a reasonable doubt that the police officer did not use excessive or unnecessary force in making the arrest.

13. Deadly force during citizen’s arrest. 

A person may use deadly force to make a citizen’s arrest only if:

First, he (she) believes that such force is necessary to make a lawful arrest;

Second, the arrest is for a felony;

Third, either he (she) announces the purpose of the arrest or believes it is already known to the person being arrested or believes it cannot reasonably be made known to the person being arrested;

Fourth, either he (she) is assisting a person whom he (she) believes is a peace officer; or he (she) is a peace officer;

Fifth, he (she) believes there is no substantial risk of injury to innocent persons;

Sixth, he (she) believes that the person being arrested used or threatened to use force in committing the felony;

Seventh, he (she) believes that there is a substantial risk that the person being arrested will cause death or serious bodily harm to someone if he (she) is not immediately arrested.

( If made pursuant to a warrant: “and Eighth, that the warrant was valid or was believed by the citizen to be valid.”)

Deadly force is force that is (intended or likely to cause death or great bodily harm) (or) (applied using a dangerous weapon likely to cause death or serious injury). It is the level of force used, not to the degree of injury caused, if any, that determines whether it is deadly force.

( If a warrantless arrest was made by a police officer outside his/her jurisdiction: A police officer who makes a warrantless arrest outside of his [her] jurisdiction acts as a private citizen. The officer must have probable cause to believe that a felony was committed and that this person committed it.)

14. Non-deadly force during citizen’s arrest. 

A person may use reasonable force to make a citizen’s arrest only if:

First, he (she) believes that such force is immediately necessary to make a lawful arrest;

Second, he (she) announces the purpose of the arrest or believes that it is already known to the person being arrested or believes that it cannot reasonably be made known to the person being arrested, and

Choose appropriate instruction below:

A. If arrest was made pursuant to a warrant: Third, the arrest was pursuant to a valid warrant or the citizen making the arrest

 believed it was valid.

B. If arrest was made without a warrant: Third, the arrest without a warrant was for a felony. Crimes that may be punished with a state prison sentence are called “felonies” while other crimes are called “misdemeanors.”

C. If warrantless arrest was made by a police officer outside his/her jurisdiction: Third, the police officer made a warrantless arrest outside of his (her) jurisdiction and had probable cause to believe a felony was committed and that it was committed by this person

By | 2014-11-16T14:07:19+00:00 January 14th, 2013|Comments Off on MA CMJI 9.260. Self-Defense; Defense of Another; Defense of Property