Commonwealth v. Errico, 87 Mass. App. Ct. 1122 (MA Ct. App. 2015)




87 Mass. App. Ct. 1122; 2015 Mass. App. Unpub. LEXIS 462

May 20, 2015, Entered

JUDGES: Katzmann, Meade & Rubin, JJ. [*1]


The defendant in this case was found guilty of assault and battery, in violation of G. L. c. 265, § 13A(a), and of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B(b). Before us he argues that he should have been permitted to introduce at trial a CORI record — which indicated that the victim had a history of arrests for violent crimes, including thirteen counts of assaults and firearm violations, but each of which resulted in a nolle prosequi — or to question the victim about them. See Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005) (Adjutant).

We conclude there was no Adjutant violation here. To begin with, with respect to the assault with a dangerous weapon charge there was no evidence that the defendant’s “personal safety or life was in peril,” Commonwealth v. Bastarache, 382 Mass. 86, 105, 414 N.E.2d 984 (1980), only that prior to the crime the victim was banging on the van into which the defendant was getting. And, even from that confrontation, there is no evidence that the defendant could not retreat. With no valid basis of self-defense, there can be no basis for introduction even of proper Adjutant evidence.

With respect to the assault and battery charge, even assuming there was evidence supporting a self-defense instruction, something we need not and do not decide, Adjutant requires evidence of “specific acts of prior violent conduct that the victim is reasonably alleged to have initiated.” Adjutant, 443 Mass. at 664. To be sure, the prior violent conduct of the victim need not have been something for which he or she was convicted. Nonetheless, this CORI record, indicating only that the defendant was repeatedly arrested and charged, provides no indication with respect to any of the acts for which the victim was arrested that he was, indeed, the first aggressor. Nor does the record indicate what steps, if any, the defendant took to obtain more specific information about each incident that led to the victim’s arrest — even assuming evidence that such steps were unsuccessful might be relevant, something we, again, need not and do not decide.

Judgments affirmed.

By the Court (Katzmann, Meade & Rubin, JJ).

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