self-defense instruction in Massachusetts

2025A defendant is entitled to a self-defense instruction if the evidence, taken in the light most favorable to her, raises "a reasonable doubt as to whether the prerequisites of self-defense were present." Commonwealth v. Pike, 428 Mass. 393, 395 (1998).

2025See Commonwealth v. Pike, 428 Mass. 393, 395 (1998) ("A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present").

2019A self-defense instruction is warranted if "the evidence, viewed in its light most favorable to [the defendant], is sufficient to raise the issue." Commonwealth v. Harrington , 379 Mass. 446 , 450 (1980).

2016Specifically, Papandrea stated that he was behind both Iacoviello and Johnny as they rounded the corner near Soto’s truck and approached Lodie and the Talbot group, that at that moment he heard the first gunshot ring out and it was coming toward his group, and that only then did he see Iacoviello pull a gun from his waistband and fire one shot. 11 A self-defense instruction need only be given when deadly force was used if the evidence warrants “at least a reasonable doubt that the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death o

2001Commonwealth v. Pike, supra. Commonwealth v. Reed, 427 Mass. 100, 102-103 (1998).

1998Nevertheless, taking the facts in the light most favorable to the defendant, Torres, supra at 492 , we cannot conclude that it was error for the judge to interpret the defendant’s postarrest statements as requiring a self-defense instruction. 12 See Commonwealth v. Reed, 427 Mass. 100, 102 (1998).

2019Drawing reasonable inferences in the defendant's favor, see Commonwealth v. Pike , 428 Mass. 393 , 395, 701 N.E.2d 951 (1998) ; Commonwealth v. Toon , 55 Mass. App. Ct. 642 , 645, 773 N.E.2d 993 (2002), and taking the defendant's *1230 testimony as true, the evidence supported a finding that the defendant's actions against the complainant consisted solely of nondeadly force, i.e., holding and pushing her away, rather than choking her as she had claimed. 2 "Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to

2019Drawing reasonable inferences in the defendant's favor, see Commonwealth v. Pike , 428 Mass. 393 , 395, 701 N.E.2d 951 (1998) ; Commonwealth v. Toon , 55 Mass. App. Ct. 642 , 645, 773 N.E.2d 993 (2002), and taking the defendant's *1230 testimony as true, the evidence supported a finding that the defendant's actions against the complainant consisted solely of nondeadly force, i.e., holding and pushing her away, rather than choking her as she had claimed. 2 "Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to

2024Where, as here, nondeadly force is used, "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 5 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 (2011), quoting Commonwealth v. Franchino, 61 Mass. App. Ct.

2019Drawing reasonable inferences in the defendant's favor, see Commonwealth v. Pike , 428 Mass. 393 , 395, 701 N.E.2d 951 (1998) ; Commonwealth v. Toon , 55 Mass. App. Ct. 642 , 645, 773 N.E.2d 993 (2002), and taking the defendant's *1230 testimony as true, the evidence supported a finding that the defendant's actions against the complainant consisted solely of nondeadly force, i.e., holding and pushing her away, rather than choking her as she had claimed. 2 "Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to

2025See Commonwealth v. Espada, 450 Mass. 687, 695 (2008) ("Because the defendant is not entitled to a self-defense instruction, . . . an instruction on manslaughter by excessive force in self-defense is not available").

2009See, e.g., Commonwealth v. Espada, 450 Mass. 687, 700 (2008) (“[T]he defendant would not be entitled to a self-defense instruction where he initiated the confrontation and failed to retreat or attempt to retreat. . . [and] presented no evidence that there was no reasonable means of escape available”).

2025For this reason, "[i]t is for the trial judge to evaluate the proffered evidence's probative value and admit so much of that evidence as is noncumulative and relevant to the defendant's self-defense claim." Adjutant, 443 Mass. at 663 .

2023Even if the prosecutor could have conducted the direct examination so as to avoid soliciting testimony about the victim's prior criminal behavior, any inconsistencies in the girlfriend's testimony did not create a substantial risk of a 11"Adjutant evidence constitutes evidence of 'specific acts of prior violent conduct that the victim is reasonably alleged to have initiated,' Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005) . . . , offered by the defendant 'for the limited purpose of supporting the defendant's self-defense claim that the victim was the first aggressor.' Id. at 660 ." Common

2017See Daniels v. Commonwealth, 455 Mass. 1009 , 1009–1010 (2009) (defendant's "claim that the Commonwealth failed to disprove that she acted in self-defense beyond a reasonable doubt fails because, while the evidence at her trial, viewed most favorably to her, entitled her to a self-defense instruction, the jury were not required to credit her version of the altercation"); Hartfield v. Commonwealth, 443 Mass. 1022, 1022 (2005) ("The flaw in [the defendant's] argument is that the jury were not required to credit the evidence supporting her contention that she acted on provocation or in self-defen

2017See Daniels v. Commonwealth, 455 Mass. 1009 , 1009–1010 (2009) (defendant's "claim that the Commonwealth failed to disprove that she acted in self-defense beyond a reasonable doubt fails because, while the evidence at her trial, viewed most favorably to her, entitled her to a self-defense instruction, the jury were not required to credit her version of the altercation"); Hartfield v. Commonwealth, 443 Mass. 1022, 1022 (2005) ("The flaw in [the defendant's] argument is that the jury were not required to credit the evidence supporting her contention that she acted on provocation or in self-defen

2011“If deadly force is used, a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.” Commonwealth v. Fisher, 433 Mass. 340, 352 (2001), quoting Commonwealth v. Hart, 428 Mass. 614, 615 (1999).

2006Where deadly force is used, “a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.” Commonwealth v. Fisher, 433 Mass. 340, 352 (2001), quoting from Commonwealth v. Hart, 428 Mass. 614, 615 (1999).

2011“If deadly force is used, a self-defense instruction must be given only if the evidence permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.” Commonwealth v. Fisher, 433 Mass. 340, 352 (2001), quoting Commonwealth v. Hart, 428 Mass. 614, 615 (1999).

2011Thus, in context, Kirkland’s statement suggesting that the victim “was about to pull out a gun” was mere speculation, cf. Commonwealth v. Hinds, 457 Mass. 83, 89, 91 (2010) (male victim pushed his coat back with hand and defendant thought he had gun in belt or back pocket; no “reasonable person [would] have understood [the victim’s] purported hand movements to suggest that [he] was reaching for a gun to shoot the defendant”), and would not have supported a self-defense or defense of another instruction, see Commonwealth v. Fisher, supra. Further, the primary defense at trial was misidentificat

1999A self-defense instruction is required if the evidence, taken in the light most favorable to the defendant, raises a reasonable doubt whether “the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Souza, 428 Mass. 478, 486 (19

1998Nevertheless, taking the facts in the light most favorable to the defendant, Torres, supra at 492 , we cannot conclude that it was error for the judge to interpret the defendant’s postarrest statements as requiring a self-defense instruction. 12 See Commonwealth v. Reed, 427 Mass. 100, 102 (1998).

2024Where, as here, nondeadly force is used, "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 5 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 (2011), quoting Commonwealth v. Franchino, 61 Mass. App. Ct.

2019Drawing reasonable inferences in the defendant's favor, see Commonwealth v. Pike , 428 Mass. 393 , 395, 701 N.E.2d 951 (1998) ; Commonwealth v. Toon , 55 Mass. App. Ct. 642 , 645, 773 N.E.2d 993 (2002), and taking the defendant's *1230 testimony as true, the evidence supported a finding that the defendant's actions against the complainant consisted solely of nondeadly force, i.e., holding and pushing her away, rather than choking her as she had claimed. 2 "Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence, viewed in the light most favorable to

2026See id. at 698-699 . 5 to avail himself of another opportunity to retreat and thus did not act in self-defense.

2016Absence of jury instruction on self-defense. ‘“A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998). ‘“In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant.” Ibid. “'[ W|e do not balance the testimony of the witnesses for each side, nor do we consider the credibility of the evidence.” Commonwealth v. Santos, 454 Mass. at 773 . ‘“The evidenc

2024See Gibson, 492 Mass. at 568.26 "whether a defendant's belief concerning his exposure to danger was reasonable." Commonwealth v. Barros, 425 Mass. 572, 576 (1997) ("[s]ince malice does not require any actual or subjective intent to kill or to inflict grievous bodily harm, there is no basis in our law for the defendant's suggestion that provocation should be viewed subjectively . . . [and] [t]he same holds true for the self-defense test" [quotation and citation omitted]). 26In addition, Brown's opinion rested on the defendant's alleged fear of going outside and general paranoia; yet the evidenc

2018Where a "jury's question [is] a limited one, ... 'the judge [is] not required to repeat the whole or any part of his original instructions to them.' " Commonwealth v. Barros , 425 Mass. 572 , 577 (1997), quoting Commonwealth v. King , 366 Mass. 6 , 11 (1974), cert. denied sub nom.

2008“Because he did not object to the instruction[] at trial, we review for a substantial likelihood of a miscarriage of justice.” Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992).

2002See Commonwealth v. Kendrick, 351 Mass. at 212; Commonwealth v. Niemic, 427 Mass. at 722 ; Commonwealth v. Pike, 428 Mass. at 398-399 ; Commonwealth v. Fortini, 44 Mass. App. Ct. 562, 568 (1998).

2025"A defendant is entitled to have the jury . . . instructed on the law relating to self- defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue." Commonwealth v. Espada, 450 Mass. 687, 692 (2008), quoting Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). "[I]t must appear that the person [claiming self-defense] had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm." Commonwealth v. Benoit, 452 Mass. 212, 226 (2008), quoting Commonwealth v. Pike, 428 Mass. 393, 396 (1998

2024In turn, a self-defense instruction is only necessary where "there is some evidence that the defendant availed himself of all means, proper and reasonable in the circumstances, of retreating from the conflict before resorting to the use of deadly force." Yat Fung Ng, supra at 253 , quoting Commonwealth v. Benoit, 452 Mass. 212, 226-227 (2008).

2025"Self-defense is generally unavailable where the confrontation occurs on a public street and 'where "there is no evidence that the principal was not able to walk away."'" Commonwealth v. Ortega, 480 Mass. 603, 611 (2018), quoting Commonwealth v. Avila, 454 Mass. 744, 769 (2009). 2 Here, the defendant was not entitled to a self-defense instruction as the evidence, even when viewed in the light most favorable to the defendant, shows that he was able to retreat and did not do so.

2024"The evidentiary threshold for a defendant seeking an instruction on self-defense is low, as it is the Commonwealth's burden to prove that the defendant did not act in proper self- defense once the issue is raised." Commonwealth v. Ortega, 480 Mass. 603, 610 (2018).

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 (

2012See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651-654 (2004).

2017See Daniels v. Commonwealth, 455 Mass. 1009 , 1009–1010 (2009) (defendant's "claim that the Commonwealth failed to disprove that she acted in self-defense beyond a reasonable doubt fails because, while the evidence at her trial, viewed most favorably to her, entitled her to a self-defense instruction, the jury were not required to credit her version of the altercation"); Hartfield v. Commonwealth, 443 Mass. 1022, 1022 (2005) ("The flaw in [the defendant's] argument is that the jury were not required to credit the evidence supporting her contention that she acted on provocation or in self-defen

2017See Daniels v. Commonwealth, 455 Mass. 1009 , 1009–1010 (2009) (defendant's "claim that the Commonwealth failed to disprove that she acted in self-defense beyond a reasonable doubt fails because, while the evidence at her trial, viewed most favorably to her, entitled her to a self-defense instruction, the jury were not required to credit her version of the altercation"); Hartfield v. Commonwealth, 443 Mass. 1022, 1022 (2005) ("The flaw in [the defendant's] argument is that the jury were not required to credit the evidence supporting her contention that she acted on provocation or in self-defen

2011See Commonwealth v. Williams, supra at 721-722; Commonwealth v. Alebord, 49 Mass. App. Ct. 915 (2000); Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 750 (1980).

2002See Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 751 (1980); Commonwealth v. Cromartie, 11 Mass. App. Ct. 1003, 1004-1005 (1981).

2011See Commonwealth v. Tu Trinh, 458 Mass. 776,783 (2011) (voluntary manslaughter instruction under theory of provocation not warranted where victim unarmed and no evidence of action or combination of action and words on part of victim that reasonably would have provoked defendant to shoot victim); Commonwealth v. Fisher, supra at 353 (where defendant not entitled to instruction on self-defense, instruction on voluntary manslaughter based on use of excessive force in self-defense not required); Commonwealth v. Monico, 373 Mass. 298, 303 (1977) (“As is the case in the area of self-defense, there m

1998See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980); Commonwealth v. Monico, 373 Mass. 298, 299 (1977).

2004See Commonwealth v. Williams, 53 Mass. App. Ct. 719 , 723 n.1 (2002) (concepts of excessive force and self-defense are closely related).

2003See generally Commonwealth v. Williams, 53 Mass. App. Ct. 719, 720-721 (2002) (discussing requisites of self-defense by use of nondeadly force).

2002See Commonwealth v. Kendrick, 351 Mass. at 212; Commonwealth v. Niemic, 427 Mass. at 722 ; Commonwealth v. Pike, 428 Mass. at 398-399 ; Commonwealth v. Fortini, 44 Mass. App. Ct. 562, 568 (1998).

1998See Commonwealth v. Niemic, 427 Mass. 718, 722 (1998); Harrington, supra at 450 ; Commonwealth v. Fortini, 44 Mass. App. Ct. 562, 568 (1998).

1997As we noted in a related context regarding the distinction between murder and manslaughter, ‘[s]ince maUce does not require any actual or subjective intent to kill or to inflict grievous bodily harm, there is no basis in our law for the defendant’s suggestion that provocation should be viewed subjectively.’ Commonwealth v. Amaral, 389 Mass. 184, 190 (1983).

1984The judge’s charge was correct; its language closely tracked the self-defense standard we enunciated in Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). 5 As we noted in a related context regarding the distinction between murder and manslaughter, “[sjince malice does not require any actual or subjective intent to kill or to inflict grievous bodily harm, there is no basis in our law for the defendant’s suggestion that provocation should be viewed subjectively.” Commonwealth v. Amaral, 389 Mass. 184, 190 (1983).

1984See Commonwealth v. Kendrick, 351 Mass. 203, 211-213 (1966).

1982In this case there are no circumstances showing that the homicide was committed in self-defense and was therefore excusable, or that there were circumstances “which although they [did] not excuse or justify the act would mitigate the crime from murder to manslaughter.” Commonwealth v. Kendrick, 351 Mass. 203, 210 (1966).

2025See Commonwealth v. Norris, 462 Mass. 131, 144 (2012) (instructing on unrequested defense might "interfere[] with the defendants' right to present their chosen defenses").

2018Rather, counsel's choice to forego a self-defense instruction can only be ineffective in the constitutional sense if it was "so manifestly unreasonable as to be unprotected by the labels of 'trial strategy' or 'trial tactics.' " Commonwealth v. Norris , 462 Mass. 131 , 141-142 (2012), quoting from Commonwealth v. Smith , 459 Mass. 538 , 554 (2011).

2017The court in Souza , supra , further stated that "a defendant's trial strategy is respected" and that "there was no requirement that the judge give a self-defense instruction because there was no such request from the defendant or the Commonwealth." The question presented in Souza was "whether a defendant may veto a self-defense instruction" in a case where the instruction was warranted, and whether giving the instruction over the defendant's objection was error.

1999A self-defense instruction is required if the evidence, taken in the light most favorable to the defendant, raises a reasonable doubt whether “the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Souza, 428 Mass. 478, 486 (19

2008Voluntary manslaughter. 6 “Voluntary manslaughter is an unlawful killing ‘arising not from malice, but from . . . sudden passion induced by reasonable provocation, "sudden combat or excessive force in self-defense.’ ” Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting Commonwealth v. Carrion, 407 Mass. 263, 267 (1990).

2004See, e.g., Commonwealth v. Fisher, 433 Mass. 340, 352 (2001), quoting Commonwealth v. Naylor, 407 Mass. 333, 335 (1990) (right of self-defense not available to aggressor unless aggressor “withdraws in good faith” and “announces his intention to retire”); Commonwealth v. Carrion, supra. Because the evidence did not warrant a self-defense instruction, any error in the instruction could not have created a substantial likelihood of a miscarriage of justice. 2.

2006The evidence must also raise at least a reasonable doubt that the defendant used all proper means to avoid physi cal combat before using deadly force. 7 See Commonwealth v. Berry, 431 Mass. 326, 335 (2000); Commonwealth v. Fisher, supra. In determining whether a self-defense instruction is warranted, “all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998).

2001While it is true that, unlike the defendant in Commonwealth v. Berry, 431 Mass. at 335 , the defendant here did not affirmatively acknowledge that he could have walked away from the victim, the evidence nevertheless fails to warrant a self-defense instruction.

2026Commonwealth v. Adkinson, 442 Mass. 410, 421 (2004).