defendant requested instruction in Massachusetts

2024"We therefore review to determine whether the failure to instruct was error, and if it was, whether the error was prejudicial." Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004). 2 The defendant requested that the jury be instructed on self-defense during the charge conference and again during jury deliberations when the jury asked whether "it [is] reasonable to factor self-defense in the assessment of guilt within the legal definition of assault." 6 Viewing the evidence in the light most favorable to the defense of self-defense, see Commonwealth v. Tirado, 65 Mass. App. Ct. 571, 574 (

2017Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004).

2016The defendant's New Hampshire driver's record was admitted in evidence without having been disclosed during pretrial discovery, see Mass. R. 29 The defendant requested an instruction that "you must determine whether the indictments, if brought [more than twenty- seven] years [after] the alleged conduct, are supported by independent corroborating evidence." While the judge was not obligated to give the instruction in exactly this form, see Commonwealth v. Johnston, 467 Mass. 674, 702 (2014), the defendant's request accurately reflected the law as stated in G.

2016Cir. 1969) (“The corroboration doctrines in this jurisdiction require not only the existence of evidence sufficient to avoid a directed verdict, but also that the case be sent to the jury with instructions . . . that it is their' responsibility as jurors to determine whether evidence which they credit establishes such corroboration”). 29 The defendant requested an instruction that “you must determine whether the indictments, if brought [more than twenty-seven] years [after] the alleged conduct, are supported by independent corroborating evidence.” While the judge was not obligated to give the

2015An actor (defendant) may use force against another in order to protect a third person when “(a) a reasonable person in the [defendant’s] position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.” Commonwealth v. Young, 461 Mass. 198, 208 (2012), quoting Commonwealth v. Martin, 369 Mass. 640, 649 (1976).

1977In preparation for the judge’s charge the defendant requested an instruction, taken virtually verbatim from Commonwealth v. Martin, supra. The request was refused by the judge, and the refusal was excepted to.

2024"We therefore review to determine whether the failure to instruct was error, and if it was, whether the error was prejudicial." Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004). 2 The defendant requested that the jury be instructed on self-defense during the charge conference and again during jury deliberations when the jury asked whether "it [is] reasonable to factor self-defense in the assessment of guilt within the legal definition of assault." 6 Viewing the evidence in the light most favorable to the defense of self-defense, see Commonwealth v. Tirado, 65 Mass. App. Ct. 571, 574 (

2024The issue is preserved, as the defendant requested the instruction both in writing and orally.2 See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 463 (2013) ("when a judge refuses to give a requested instruction, a defendant's rights are saved without the necessity of a further objection").

2017Commonwealth v. Mattson, 377 Mass. 638, 642, 644 (1979).

2017See, e.g., Commonwealth v. Walker , 466 Mass. 268 , 283-284 (2013).

2016The instruction tracked the language of instruction 5.11 of the Massachusetts Superior Court Criminal Practice Jury Instruction (2013), and the language of Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990), an earlier 3 case in which the court makes reference to the defense.

2016See Gomes, 470 Mass. at 357 n.10.

2015See Commonwealth v. Prater, 431 Mass. 86, 97 (2000).

2015See Commonwealth v. Prater, 431 Mass. 86, 97 (2000).

2015An actor (defendant) may use force against another in order to protect a third person when “(a) a reasonable person in the [defendant’s] position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.” Commonwealth v. Young, 461 Mass. 198, 208 (2012), quoting Commonwealth v. Martin, 369 Mass. 640, 649 (1976).

2014See Commonwealth v. Bell, 460 Mass. 294, 306-307 (2011). “[T]he felony on which a charge of felony-murder is premised may be uncharged, so long as the evidence supports it.” Commonwealth v. Stokes, supra. The defendant requested an instruction on felony-murder in the second degree predicated on the uncharged offense of “drug *39 distribution.” The judge denied the request on the ground that the evidence did not provide a rational basis for conviction of that offense.

2014See Commonwealth v. Bell, 460 Mass. 294, 306-307 (2011). “[T]he felony on which a charge of felony-murder is premised may be uncharged, so long as the evidence supports it.” Commonwealth v. Stokes, supra. The defendant requested an instruction on felony-murder in the second degree predicated on the uncharged offense of “drug *39 distribution.” The judge denied the request on the ground that the evidence did not provide a rational basis for conviction of that offense.

2014See Commonwealth v. Cuffie, 414 Mass. 632, 639-640 (1993).

2008An alternative is that the Commonwealth may prove beyond a reasonable doubt that the defendant intentionally caused an injury to a person within a dwelling place.” The defendant requested an instruction similar to that recommended by the Appeals Court in Commonwealth v. Cowans, 52 Mass. App. Ct. 811, 821 (2001), requiring as essential for conviction a finding of specific intent to use or threaten the use of force. 5 The judge declined to give such an instruction, and the defendant now claims that the omission was error.

2004There was no specific objection to the instruction as given. 13 The Commonwealth now points out that the judge’s instruction on provocation contravened Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998). 14 . 15 We agree, but conclude that the error did not prejudice the defendant, because we are not persuaded that the evidence warranted any instruction on provocation. 16 A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is “sufficient to create a reasonable doubt in the minds of a rational jury that a defendant’s ac

1999The law is clear that mere insulting words and threatening gestures alone with nothing else are not adequate provocation to reduce a killing from murder to manslaughter.” The defendant describes this instruction as “incomplete.” The defendant requested an instruction tracking the language contained in Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976), 2 specifically: “The existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation.

1997Commonwealth v. Sullivan, 29 Mass. App. Ct. 93, 99 (1990) (Sullivan II).

1994See Commonwealth v. Washington, 15 Mass. App. Ct. 378, 383 (1983).

1992In concluding that we see no *288 substantial , risk of a miscarriage of justice in the trial judge’s failure to include an instruction on fresh complaint evidence in his final charge, we are guided by our recent decision in Commonwealth v. Almon, 30 Mass. App. Ct. 721, 724-726 (1991).