Commonwealth v. Hayes, 2015 Mass. App. Unpub. LEXIS 421 (MA Ct. App. 2015)




2015 Mass. App. Unpub. LEXIS 421

May 14, 2015, Entered

Vuono, Meade & Carhart, JJ.



After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon. On appeal, he claims the judge erred by denying his request for a jury instruction on self-defense, and that the prosecutor’s closing argument created a substantial risk of a miscarriage of justice. We affirm.

1. Self-defense instruction. The defendant claims he was entitled to a jury instruction on self-defense. We disagree. “[A] defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to the defendant without regard to credibility, supports a reasonable doubt that (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.'” Commonwealth v. King, 460 Mass. 80, 83, 949 N.E.2d 426 (2011), quoting from Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 368-369, 810 N.E.2d 1251 (2004).

Viewing the evidence in the light most favorable to the defendant, there may be a reasonable doubt as to whether the defendant initiated the fight. However, even under this lenient standard of review, the evidence failed to show that the defendant had reasonable concern for his personal safety, or that he used all reasonable means to avoid physical combat. Instead, the evidence demonstrated that after unsuccessful attempts by the defendant and the victim to hit each other, the victim was face down on the ground. Rather than retreating into the nearby woods, or announcing his intention to retire, the defendant stabbed the victim twice in the back and once in his elbow. At this point in the fray, while the victim was face down on the ground, there was no evidence that the victim committed an overt act or a threat towards the defendant. See Commonwealth v. Gonzalez, 465 Mass. 672, 682-684, 991 N.E.2d 1036 (2013).1 At bottom, the evidence did not support self-defense and it was not an abuse of discretion for the judge to deny the requested instruction.

2. Closing argument. For the first time on appeal, the defendant claims that the prosecutor improperly used the defendant’s prearrest silence as evidence of consciousness of guilt.2 We disagree. The claim centers on the prosecutor’s argument that when the defendant was being chased by the victim and Todd Varley (the victim’s friend), the defendant neither told the police officer (who asked him to stop) that he was being chased nor did he ask for help. Instead, the defendant ran into the woods.

“Although a defendant’s prearrest silence may be used as an adoptive admission, the ‘impeachment of a defendant with the fact of his prearrest silence should be approached with caution.'” Commonwealth v. Gonzalez, 68 Mass. App. Ct. 620, 630-631, 863 N.E.2d 958 (2007), quoting from Commonwealth v. Nickerson, 386 Mass. 54, 62, 434 N.E.2d 992 (1982). “[W]herever [such impeachment] is undertaken, it should be prefaced by a proper demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances.” Commonwealth v. Nickerson, supra.

Although the defendant did not speak before he ran into the woods, when he returned from the woods the police officer saw blood on the defendant’s shoe and a small cut on his thumb. When the officer asked the defendant why he ran, the defendant replied that he “had two guys chasing [him], wouldn’t you?” The officer also asked why the defendant returned to the scene, and the defendant stated that he did not want to have his car towed.

As described above, the defendant did not remain silent but instead explained why he ran and why he returned. Having offered these explanations, it was not improper for the prosecutor to suggest that it did not make sense for the defendant to have run when he could have requested the police officer’s assistance. As such, the defendant’s claim fails for the simple reason that he did not remain silent on the subject of his flight. In any event, even if we were to parse the matter chronologically, it would have been entirely natural for the defendant to have stopped and sought the assistance of the police if he were in imminent danger as he claimed. See ibid. There was no error, and thus no risk that justice miscarried.

The defendant also claims the prosecutor misstated the evidence by arguing that the defendant only ran after the police told him to stop, when the evidence was that the defendant was already running. This was not a misstatement, but an argument based on the victim’s testimony that the defendant had remained at the scene until the officer activated his blue lights and then the defendant ran towards the woods.3 Although the officer’s testimony supports the defendant’s claim that he was already running, the prosecutor was permitted to ask the jury to credit the victim’s testimony.

Finally, the defendant claims the prosecutor improperly suggested that it was a cold night, so the defendant must have taken his shirt off in anticipation of fighting. Given the other evidence that a fight would soon occur, and that the victim could not remember who threw the first punch, the prosecutor’s suggested inference, even if improper, was not likely to affect the verdict.

Judgment affirmed.

By the Court (Vuono, Meade & Carhart, JJ.4),

Entered: May 14, 2015.


1 The defendant claims his belief that he was in imminent danger of serious bodily harm was evidenced by his being chased by the victim and Todd Varley. However, the defendant’s flight occurred after he stabbed the victim, not to avoid a fight.

2 At trial, as reconstructed, the defendant claimed that the prosecutor’s argument was improper because it “called for drawing a negative inference on one’s exercising their right to remain silent.” As the defendant was neither in custody nor being interrogated, the “right to remain silent” was not implicated. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 To the extent the prosecutor improperly implied that Varley complied with the order to stop, the prosecutor corrected himself.

4 The panelists are listed in order of seniority.

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