In Commonwealth v. Abubardar, the Supreme Judicial Court reversed the defendant’s conviction of assault and battery (as a lesser included offense of attempted murder), because the judge failed to instruct the jury on the use of non-deadly force in self-defense.
The background was as follows. On the basis of an altercation between the defendant and the complainant inside a parked van, the defendant was charged with attempted murder. At the trial, “[t]he defendant testified that the complainant instigated the events by hitting and scratching him, and he was ‘just sitting there,’ ‘trying to hold [the complainant] and contain her … so [he] could get away.’ The complainant testified that the defendant threatened and choked her; the defendant claimed he only pushed her away. When a passerby saw the altercation and knocked on the van window, the defendant pushed the complainant and she opened the door and fled. At the defendant’s request and over the Commonwealth’s objection, the judge gave an instruction on self-defense. Although the instruction was in its essence a deadly force instruction, it was not identified in that way: the jury was instructed on ‘proper self-defense’ as a general concept. Based on the instruction, the jury would have understood that ‘the defendant did not act in proper self-defense if [the Commonwealth] prove[d] … that the defendant did not actually believe that he was in immediate danger of death or serious bodily harm.’ On the evidence at trial, to be sure, the jury could have concluded that the defendant did not believe he was in ‘immediate danger of death or serious bodily harm’ during the altercation, and so,” in accordance with the instruction that was given, “the defendant could not have acted in ‘proper self-defense.’” The defendant did not object to the judge’s instruction. He was convicted of assault and battery as a lesser included offense. On appeal, the defendant contended “that he used only nondeadly force rather than deadly force to defend himself against the complainant,” such that the judge should have instructed the jury on the use of nondeadly force in self-defense.
In its decision, the SJC stated, “The [judge’s] failure to provide a nondeadly force self-defense instruction lowered the Commonwealth’s burden to prove the absence of proper self-defense,” thereby creating a substantial risk of a miscarriage of justice. The Court opined that “[d]rawing reasonable inferences in the defendant’s favor … and taking the defendant’s 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.” “‘Where nondeadly force is used, a defendant is entitled to a self-defense instruction if the evidence … supports a reasonable doubt that … the defendant had reasonable concern for his personal safety….’ Commonwealthv. King, 460 Mass. 80, 83 (2011).” Based on the instruction given by the judge, “the jury reasonably would have understood that the defendant did not act in ‘proper self-defense’ if the Commonwealth proved he did not have a reasonable belief that he was in imminent danger of death or serious bodily harm. Like in [Commonwealthv.] Baseler, [419 Mass. 500,] 504 , the omission of the nondeadly force component of self-defense effectively lowered the Commonwealth’s burden of proof as to self-defense, given that the Commonwealth did not have to demonstrate that the defendant did not have a ‘reasonable concern over his own safety’ before touching the complainant.”
If you or a loved one is charged with a crime in which you may have acted in self-defense, you will need a skilled and experienced attorney to persuasively argue your case to the court and to make sure that the jury instructions provided to the jurors are proper. Attorney Daniel Cappetta is such an attorney – he zealously advocates for all his clients and does not shy away from a fight. Call him for a consultation today.